Mana whenua and tangata whenua

The following are some extracts from the Wai 64 Waitangi Tribunal Report 2001 REKOHUA Report on Moriori and Ngati Mutunga Claims in the Chatham Islands in which the terms ‘mana whenua’ or ‘tangata whenua’ are discussed.

1.3.7 p.11
Statutory injunctions for authorities to consult with tangata whenua, being persons with mana whenua, or, so it is said, customary authority, have created needless headaches on Rekohu and have engendered an unnecessary bitterness. As used, the terms appear to us to be out of kilter with Moriori and Māori custom. Mana is inherent in persons, not land, and ‘mana whenua’ appears to be a modern thought that does violence to traditional ethics. It has prejudiced all on the islands and prejudices Māori generally. We recommend that the term ‘mana whenua’ be taken from the legislation.

2.6.1 p.25
We find that we must part company with the understanding of ‘tangata whenua’ and ‘mana whenua’ as used in the Reserves Act 1977, the Conservation Act 1987, and the Resource Management Act 1991. In section 2 of the latter, ‘mana whenua’ means ‘customary authority exercised by an iwi or hapu in an identified area’. ‘Tangata whenua’, in relation to a particular area, is defined as meaning ‘the iwi or hapu that holds mana whenua over that area’. We think that this confuses several things, not least by its association of‘ ‘tangata whenua’ with power. We have thought it best to leave aside the legal definitions and to look at the matter solely in customary terms.

As we see it, the core meaning of ‘tangata whenua’ relates to an association with the land akin to the umbilical connection between an unborn child and its mother. It comes from creation beliefs holding that Māori were born of Papatuanuku (Mother Earth) and is used to describe the first people of a place, as though they were born out of the land. However, it is also used to describe those who have become one with the land through occupation over generations. It is relevant to ask whether the newcomers placed the placenta of the newborn on the land, whether their ancestors have been regularly buried in particular sacred sites, and whether regular respect for those ancestors and sites is still maintained. These and similar questions define the degree of permanence or transience in cultural terms.

Accordingly, it is possible that some people can be more ‘tangata whenua’ than others, so that the term ‘tangata whenua tuturu ake’ or ‘the true tangata whenua’ might be used to distinguish, for example, Moriori from Ngati Mutunga of Rekohu. Moriori described the latter as ‘tangata whenua iho’, meaning ‘afterwards’. …

The status of tangata whenua is a fact that cannot be changed for as long as the people exist and maintain an emotional connection. In illustration, Ngati Mutunga claimed tangata whenua status in Taranaki even after 40 years of absence and even though they left after being defeated by Waikato. In similar vein, particular interests arising from aboriginality cannot be extinguished. An ancestral association with particular places is a fact that cannot be changed, even though possessory rights may be affected by adverse occupations.

… we cannot support the approach adopted in the Resource Management Act 1991, which defines tangata whenua by asking who has the customary authority in a place. If that question can be answered at all, the answer will surely exclude many who are properly tangata whenua as well. If it is the intention of the Act that some special consideration should be given to Māori who have ancestral associations with particular areas of land, then we think that it would be best if that were said. It might then be found that more than one group has an interest. If in any particular case it is intended that particular Māori communities should be heard, then it would be best to describe the type of community, be it traditional or modern. What must be guarded against is the assumption that in any particular area only one tribal group can be involved. Māori had no land boundaries like those of states, overlaps and pockets of holdings were usual, different groups had different interests in the same resource, and political authority was distributed amongst such local communities as existed from time to time. And what must be watched closely is the tendency to use Māori terms without an appreciation of the associated cultural ethic.

p.28
The term ‘mana whenua’ appears to have come from a nineteenth-century Māori endeavour to conceptualise Māori authority in terms of the English legal concepts of imperium and dominium. It links mana or authority with ownership of the whenua (soil). But the linking of mana with land does not fit comfortably with Māori concepts. Recent research tends to agree that the term ‘mana whenua’ itself does not appear in the early records about customary rights to land.

… the term ‘mana’ was personal and was used in regard to the influence or authority of chiefs. Other opinions … consider that mana whenua was a nineteenth-century invention. Crown counsel likewise challenged – we think correctly – its use to describe a general authority of a particular group over any area of land.

We are inclined to think that the term ‘mana whenua’ is an unhelpful nineteenth-century innovation that does violence to cultural integrity. However, subject to such arrangements as may have been settled by the people themselves, our main concern is with the use of the words ‘mana whenua’ to imply that only one group can speak for all in a given area when in fact there are several distinct communities of interest, or to assume that one group has a priority of interest in all topics for consideration. Some matters may be rightly within the purview of one group but not another.

13.2.2 p.257
The thrust of conservation and resource management law is that consultation is to be with ‘tangata whenua’. Literally, this means ‘the people of the land’; but in the statute it means the ‘iwi’ (the people) or ‘hapu’ (tribe) that holds ‘mana whenua’, that being said to mean ‘customary authority’. In essence, the Crown or local authority must consult the people with customary authority. …

The main problem is the statutory language. What sort of ‘customary authority’ does ‘mana whenua’ entail? Amongst Māori, there is a large dispute on that and, indeed, on whether the term has value at all. We think that in this case the infusion of Māori words has muddied the statutory intent. If it was meant to say that consultation should be had with runanga or other bodies generally accepted as representing the people traditionally associated with an area, then it would have been better had the legislation said that.

13.2.4
A major difficulty over the use of ‘mana whenua’ in the statutes is that it requires people to proclaim that they have mana, when in Māori ethic that is not done, except as a boastful challenge or in contemplation of war. More regularly, it is thought that those who find it necessary to proclaim that they have mana will almost certainly not have it.

For the reasons indicated above, we consider that the term ‘mana whenua’ should not be used in the statutes. It cuts across customary concepts and protocols. We add that the term appears to be relatively new, having been coined for the authority of Māori as against that of Governor Grey. It was also used in the context of pending war. There is nothing wrong in coining new words. However, it does not sit comfortably with customary concepts when it is used, as here, to describe relationships between Māori groups.

p.262
We especially bring to attention the fact that the word ‘mana’ was kept out of the Treaty of Waitangi. The drafter of the Māori text was fully acquainted with the term, but it was assiduously avoided and, with hindsight, rightly so. We think that the Treaty provided a good precedent that the Legislature should follow. ‘Rangatiratanga’ is now used to describe the authority of people in respect of people.

The association of mana with temporal authority and with whenua offends other concepts. For Māori, mana is primarily a spiritual or personal quality. As for temporal authority, it is seen to exist within the people, and not within the land …


Tribunal:
Chief Judge Eddie Durie (presiding), John Kneebone, Professor Gordon Orr, Makarini Temara (died in 1994 before completion of report).

The full report, along with other Waitangi Tribunal Reports, can be downloaded from this page. The Wai 64 document is here.

Extracts here published are provided pursuant to NZGOAL and CCA 4.0 licence.

LGOIMA and OIA responses

DOC’s view on tree felling and non-answers to One Tree Hill.

Department of Conservation and TMA

Response to an inquiry relating to felling of trees on Ōwairaka and what is DOC’s view. Note: a long but important document relating to Department of Conservation and TMA: (Redacted document. Published with permission of the addressee gratefully received.)

One Tree Hill

This is the response to an inquiry relating to the 19 February 2019 Notice of Withdrawal of the application by TMA in the matter between TMA and Council. (Redacted document. Published with permission of the addressee gratefully received.)


The TMA creeps

Tupuna Maunga Authority extends its area of influence over consents etc.

Time for anyone and everyone living or working within or even near any of these pink zones of Tūpuna Maunga Authority (TMA) control. TMA have given themselves oversight of subdivision, stormwater and wastewater, earthworks, height and other matters that may require resource consent.

For full details, download the details and maps compiled from official Auckland Unitary Plan geomaps overlays.

Here are a few examples:

Maungakiekie – One Tree Hill
ŌWAIRAKA-MOUNT-ALBERT
Ōwairaka – Mount Albert

This is the overall map for Auckland. Check the full document compiled by Tree Advocates (the maps provided by TMA are unhelpfully low in resolution) here.

Tupuna Maunga Authority extends its area of influence over consents etc.
Pink areas show extent of land claimed by Tūpuna Maunga Authority under their doctrine of ‘Tūpuna Maunga Areas’.

Maunga and The Reserves Act

TMA has failed in its duty under The Reserves Act.

A brief note on the relation of Tūpuna Maunga Authority (TMA) activities to The Reserves Act. And its failures.

1. The Reserves Act 1977 is administered by Department of Conservation.
2. Ngā Mana Whenua o Tāmaki Makaurau Collective Redress Act 2014 (Redress Act) refers repeatedly to Reserves Act in Part 2: essentially, it revokes the Act for each maunga, then transfers fee simple to TMA.

3. Redress Act Part 2: Cultural redress: § 17 Statement of Association says: (1) The Crown acknowledges the statements of association of iwi and hapū.(2) However, the statements—(a) must not affect, or be taken into account by, a person exercising a power or performing a function or duty under an enactment or a bylaw made by a local authority under an enactment; and (b) do not affect the lawful rights or legal obligations of any person; and (c) do not grant, create, or affect any interests or rights relating to the lands referred to in the statements.(My emphasis: that’s why we can protest on ‘their’ land.)

4. Subpart 1 goes through the vesting of maunga (other than Maungauika and Rarotonga) for each maunga.
5. In each §, after the fee simple of each is vested in the trustee (TMA), each maunga is “then declared a reserve and classified as a XXX reserve subject to section YY of the Reserves Act 1977.” XXX refers to the reserve being either a a local purpose reserve, historic reserve, or recreation reserve. According type of reserve, different sections apply: respectively 17, 18, 23. Some maunga have more than one type of reserve.(There’s also a clause for easement for Watercare.)

6. The germane bits are: § 17 ‘Recreation reserves’ stipulates: (2) (b) that “every recreation reserve shall be so administered under the appropriate provisions of this Act that … where scenic, historic, archaeological, biological, geological, or other scientific features or indigenous flora or fauna or wildlife are present on the reserve, those features or that flora or fauna or wildlife shall be managed and protected to the extent compatible with the principal or primary purpose of the reserve… and (c) those qualities of the reserve which contribute to the pleasantness, harmony, and cohesion of the natural environment and to the better use and enjoyment of the reserve shall be conserved (d) to the extent compatible with the principal or primary purpose of the reserve, its value as a soil, water, and forest conservation area shall be maintained.”(My emphases.) (Ōwairaka is a recreation reserve)
7. § 18 ‘Historic reserves’ uses essentially the same wordings, adding protections of historical sites. It adds (e) except where the Minister otherwise determines, the indigenous flora and fauna and natural environment shall as far as possible be preserved … (My emphasis.)

8. § 23 ‘Local purpose reserves’ makes similar requirements regarding managing and protecting biological or natural features, conserving forest etc.
9. Note that Maungakiekie northern land and Māngere Mountain are administered lands meaning the Crown owns them, but TMA administers them for purposes of Reserves Act.

10. Whole point is: TMA has failed in its duty and obligations pursuant to § 17, 18, 23 of Reserves Act 1977 in respect of Ōhiuarangi, Mangere Maunga and Maungarei in that TMA has (a) destroyed the pleasantness, harmony and cohesion of the natural environment of these maunga by their indiscriminate and insensitive felling operations, (b) harmed irrevocably the use and enjoyment of the reserves (c) damaged their value as soil, water and forest conservation areas through felling and failure to revegetate(d) destroyed flora, fauna and wildlife through indiscriminate felling of trees and insensitive, polluting planting practices(e) destroyed flora, fauna and wildlife through mismangement allowing unacceptable fire risks to lead to wild fires (f) caused environmental harm by decreasing slope stability, increasing soil erosion and depleting tree cover.

Image by Eric Von Dutch: place-holder pending approval.

Tūpuna Maunga Authority Submission August 2019

The Tūpuna Maunga Authority (TMA) is seeking public input about its future plans for Auckland’s Tūpuna Maunga, ancestral mountains/volcanic cones.
You have 12 days in which to give ‘public input’ if you happen to see the request.There are to be no in-person hearings. All written feedback will be considered by the Tūpuna Maunga Authority.

Paul Majurey, chairman of the Tūpuna Maunga Authority, says “We try as hard as we can to keep people informed, we want to bring people with us.”
Exactly what is being asked here? What is the envisaged outcome? Is this supposed to be some sort of box ticking consultation? 12 days is hardly consultation. Why ask for ‘public input’ now? What will TMA do with it, change their plans and vision?

The Integrated Management Plan setting out the TMA future plans for Auckland’s Maunga is dated 2016. The TMA has already set about implementing its ‘vision’ for Auckland’s Maunga by the clearances of Auckland’s valuable healthy mature exotic trees.

Already 180 valuable mature healthy public trees on Mt Wellington/Maungarei, a Significant Ecological Area, have been destroyed by Treescape on a non-notified resource consent. Did they also remove the Scheduled Notable Macrocarpa within the Memorial Grove which was part of the plan?
152 mature healthy trees have been destroyed by Treescape on Mangere Maunga
112 mature healthy trees destroyed by Treescape on Ohuiarangi /Pigeon Mountain. Seven of the trees were over 1000 mm in diameter, one was 11000 mm.

Many of these trees were ‘protected’ trees (over 3 or 4 metres high and 300- 400mm diameter) because they are located in an Open Space Zone or Historic Heritage Overlay.

The Auckland Senior Arborist said of the Mt Wellington Resource Consent application

“I do not support the proposal to remove these trees from Maungarei for the reasons stated in the Application. There is no arboricultural reason to do so and I do not believe that the visual effects of the proposal can be dismissed as minor. I do not consider that the tree removals are in the interest of “all of Auckland’s communities and generations to come. The proposal places no value on the European historical and cultural links with the site, which is documented as predominantly the planting of the existing trees (both exotic and indigenous). The application amounts to the removal of a recognised significant urban forest feature, which further reinforces the need to assess this proposal in the wider context of eco-system services provided by trees, with particular reference to the objectives and policies at E15.2, E154.3, E16.1, E16.2, E16.3 and assessment criteria at E16.8.2.”

This assessment of the Senior Arborist of Auckland Council can be applied to the non notified resource consents obtained by TMA on Ohuiarangi and Mangere Maunga and Owairaka as well.

A further 345 healthy mature trees on Owairaka/Mt Albert another Significant Ecological Area are to be destroyed on another non notified resource consent, dated 20 February 2019.

There are plans to destroy significant numbers of valuable mature exotic trees on Mt Richmond, Mt Smart Mt Roskill, Big King, One Tree Hill, Mt St John, Mt Eden Mt Hobson, Mt Victoria and North Head.

Or as the Senior Auckland Council Arborist puts it destruction of “recognised significant urban forest” features on each of these Maunga.

But it’s the scale of the destruction of ecosystem services, biodiversity habitat and carbon release that is not being factored into this deeply misguided plan.
How can these resource consents on Significant Ecological Areas proceed as non notified when SEA overlay under the Unitary plan is supposed to be our highest level of protection?

These Resource Consents demonstrate that a SEA designation means nothing when a Commissioner can determine that “there are no special circumstances to warrant the application being notified…because there is nothing exceptional or unusual about the application” . Yet this is public amenity, financed by ratepayers, that is being destroyed and Auckland’s public have a right to be notified, according to the caselaw.

What about the Environment Aotearoa 2019 Government Stocktake report that told us that New Zealand’s environment and biodiversity were in serious trouble?

These clearances involve habitat destruction and the ecology reports are inadequate in failing to assess the effect of these clearances, let alone the cumulative effect, on loss of habitat for Auckland’s fast disappearing biodiversity that live on these Maunga trees.

New Zealand’s endemic species, including epiphytes, live on our exotic trees as well as native species and none of the reports consider what is to happen to the biodiversity in the 30 -50 years it will take for this overstorey to regrow. A forest structure is an overstorey, understorey and forest floor. In destroying these valuable overstorey trees we are destroying protection for the native understorey trees and habitat for overstorey biodiversity not to mention the hugely important carbon sequestration and habitat opportunities of senescing trees.

Most of the ecology reports I have seen are desktop assessments which means that no actual surveys are being done. Furthermore the bat studies that are being done are not best practice and are known to be ineffectual. Once again we have experts going through the motions to obtain the desired resource consent result. Development once again trumps the environmental protections of the RMA.

Let’s be clear here what the TMA is trying to do is somebody’s view of what something used to look like at some point in history and which we know is inaccurate if we think about it. What point in history do you start from ? Someone has to make the decision. So it really is HIS STORY.

To my mind the TMA non notified resource consents are challengeable and Auckland Council’s undemocratic, self-serving and unfair Resource Consent process is once again being shown up for the sham that it is.

What about the climate change declaration that Auckland Council made surely Council is factoring that into its decision-making ? No it is not. No carbon studies are being done.

Council is totally failing to take into consideration its own Urban Forest Strategy by enabling and allowing the destruction of vast numbers of Auckland’s valuable mature urban forest trees without proper oversight of the overall affect of the clearances on Auckland’s climate. Take out 100s of the most valuable mature trees and you negatively affect Auckland’s climate and the stormwater sequestration that these trees are providing.

How is this consistent with the TMA belief systems? These clearances are taking place without proper ceremony. They are destroying the web of life and the spirit of Tane’s children.

Members of the TMA speak a lot about the ‘living’ Maunga. What do they mean? Is it life on the Maunga, some forseeable life they wish to create? What is the life of this Maunga?

Papatūānuku is always changing she is never still. She nurtures all life. The trees and all who live on them, under them and over them were brought to us by Tane. All create the web of life that sustains life. The tikanga is that we must not harm, we must uplift and be protective of plants, trees and biodiversity. The whakapapa of plants and trees is senior to humans they were created before people. There is therefore a duty of care to protect trees, they are our ancestors.
The way forward is Tiwaiwaka.*

It is a collective of people committed to healing the mauri of the whenua. Caring for the whenua is the first priority. Everything else must be measured against this.

The greatest gift we can give to coming generations is a world that is worth living in!

Note your ‘public input’ has to be in by 5pm 16 August 2019 to:
MaungaStrategies@aucklandcouncil.govt.nz

Wendy Gray : 6 August 2019

*Note: With thanks to Rob McGowan (Pa Ropata) for his principles of Tiwaiwaka for more details