A treaty settlement opinion from the Minister in charge of the negotiations
An expert opinion on the relationship between
Tūpuna maunga authority and;
Auckland council and;
Nga mana whenua o tamaki makaurau and;
The other people of Auckland
Honour The Maunga’s sole focus is an environmental one, which centres on our concerns around unnecessarily removing hundreds of mature, healthy trees from Ōwairaka / Mt Albert all at once.
The occupation group on the mountain is the tip of a very large iceberg and we have received support from many people – Maori and non-Maori alike. Just because someone isn’t in a photo, does not mean they don’t support our action.
We have been dismayed to see Tūpuna Maunga Authority and (weirdly) the Tree Council stirring up racial division by positioning us as culturally insensitive / culturally ignorant.
We do NOT feel it is appropriate for our group to be drawn into discussion about treaty-related matters, so we asked the opinion of Chris Finlayson, QC. He is a former Member of Parliament and Cabinet minister who, for a time, was Minister for Treaty of Waitangi Negotiations.
When reading this, please note that “the other people of Auckland” does not just refer to Pakeha and non-Maori people; it also refers to the many Maori people who are not part of the Nga Mana Whenua o Tamaki Makaurau collective.
Here is Christopher Finlayson’s unabridged response:
Maunga Authority
1 Thank you for calling me yesterday about the recent actions of the Maunga Authority which seem to be concerning some members of the community. I said I would look at the Nga Mana Whenua o Tamaki Makarau Collective Redress Act 2014 (“the Act”) and send you a brief memorandum on my views. I give these views as a former Minister. This isn’t legal advice.
2 At all relevant times I was both the Ministry of Treaty of Waitangi Negotiations and the Minister for Arts, Culture and Heritage. I mention the Arts portfolio as my Ministry was pursuing the idea of applying for UNESCO World Heritage status for Tamaki’s volcanic cones because of their uniqueness in an urban landscape and their beauty. I do not know the current status of this project, or whether it is still being considered. I hope so.
3 As Ministry for Treaty of Waitangi Negotiations between 2008–2017, I was very busy in Tamaki. During this period a number of settlements were achieved, including the Collective Settlement which was given effect to by the Act. An important aspect of the Act was to recognise the importance of the maunga to local iwi and give them an opportunity to have a say in their governance and remediation. I was determined to avoid the mistakes of 2006 when a previous government was criticised for the way it had proposed redress for certain maunga in an agreement it initiated with Ngati Whatua o Orakei. The maunga needed to be part of a collective settlement involving all Tamaki iwi (see the preamble to the Act and section 3 which sets out the Act’s purpose).
4 As an aside, during negotiations it became apparent that there were unregistered easements over the maunga, particularly related to what is now Watercare Services facilities. As a result of the settlement, all these matters were tidied up (see Schedule 1 of the Act).
5 It was understood by the Crown that the maunga were not in a good condition. One has only to drive past Maungawhau (Mt Eden) to see, for example, old pine trees probably planted in the 1930’s, and also wilding pines. There are a mixture of native trees and exotics on most of the maunga. It was anticipated that restoration work would take many years and that it would also be expensive. It was always my hope that in due course the maunga would be restored to their original state and, as I said earlier, receive UNESCO recognition. I for one never thought that this project could be achieved in a decade – I always saw it as a project that would take fifty years. (That having been said, I had a similar view of Wellington’s Tinakori Hills after thousands of damaged pine trees were removed in the early 2000s. The native regeneration has been spectacular and has transformed the backdrop to Thorndon and the CBD, though much more needs to be done. These are intergenerational projects).
6 Part 3 of the Act established the Tūpuna Maunga o Tamaki Makaurau Authority. The membership (see section 107) reflects the fact that this is to be a co-governance arrangement with the Auckland Council. (I am not sure whether there is still a non-voting member appointed by the Minister of Arts, Culture and Heritage).
7 Note section 109 which sets out the Authority’s functions and powers. The Authority must have regard to “the spiritual, ancestral, cultural, customary, and historical significance of the maunga to Nga Mana Whenua o Tamaki Makaurau” and also section 41(2) which is very important. It provides that the maunga are held “for the common benefit of Nga Mana Whenua o Tamaki Makaurau and the other people of Auckland”. This phase was inserted to emphasise the legitimate ongoing interest of the broader community. It was accepted that the community generally loved the maunga and no-one had a monopoly on care for the maunga. Sensitivity to the broader community’s aspirations is relevant. This important principle was emphasised by me in the third reading on 23 July 2014 (see Hansard at p.19495). So too Kelvin Davis, now Minister for the Crown/Maori Relationship (Hansard at p.19948).
8 I refer you to the following sections which highlight the essential involvement of the Auckland Council:
(a) Section 60 provides that each financial year, the Authority and the Council must agree an annual operational plan. Note subsection (4) which sets out the kinds of matters that need to be addressed, including restoration work and strategic projects;
(b) The Auckland Council is responsible for routine management and costs (sections 61 and 62);
(c) Each year, the Council must meet with Tamaki iwi to discuss matters related to the maunga, including:
(i) The performance of the Maunga Authority during the year; and
(ii) The proposed activities of the Maunga Authority in the following year (section 64).
As can be seen, the Council is not some nodding automaton. It needs to engage with the Authority on both current and future activities. It must have its say bearing in mind that the maunga are held for the common benefit of Manawhenua and the other people of Auckland. That is why I would expect the Council to have a view about, for example, removing crosses from Mount Roskill, removal of trees from Mount Albert and arrangements for the Pakuranga Tennis Club at Ohuiarangi/Pigeon Mountain. I would also have thought that the Council would be keen to consult with the Auckland community about their hopes for the maunga.
9 As I have said all along – the law can set things out but success will only be achieved if: first, the Authority works with the local community. I understand that the Authority has actually consulted with the public on its plan but I am unaware of the detail. As you doubtless know, consultation does not always mean both sides end up agreeing. The Authority, having consulted, may reach a different conclusion to some community groups. Secondly, if the community recognises that times have changed and that the views of Manawhenua, so unfairly ignored for so long, are very important. Change is coming for the maunga. Depending on how it is dealt with, that change will either be a source of division and rancour or something exciting in which all can share. Generosity of spirit is required on all sides.