IN THE WAITANGI TRIBUNAL

IN THE MATTER OFthe Treaty of Waitangi Act 1975

AND

IN THE MATTER OFa claim by Arahia Waimarie-o-Te Rangi Koia for herself, and on behalf of her people, the Ruawaipu native aboriginal peoples of Aotearoa

CONCERNINGParliamentary discrimination

STATEMENT OF CLAIM

Dated this 6th day of February 2006

Mai te Atua o te rangi, ka aroha pumau, i nga uri a Ruawaipu

“Through the darkness there shall come the light to embrace the people of Ruawaipu”

Kaitiaki: Henry Koia

Address:79A Whittaker Road, Rotorua, New Zealand

Telephone:021 132 4133

Email:

THE CLAIMANT

  1. Ruawaipu is a traditional tribal grouping of native aboriginal peoples of Aotearoa (New Zealand). Ruawaipu was and remains an autonomous tribal group that has always held the manawhenua and manamoana[1] over its traditional tribal territories. Ruawaipu whanau hapu whakapapa[2] to Te Ruawaipu the tribe’s eponymous ancestor. Bob McConnell writes in his book “Te Araroa” at page 8:

“Of Ruawaipu the person we know little --- an honoured name in a whakapapa and no more, but of supreme importance as the carrier of the mana whenua.”

  1. The Apirana Ngata theory asserts that the tribal boundary for Ruawaipu was from the Whangaparoa river to the Tuparoa stream. However, there exists evidence to suggest that the boundary was much larger.
  1. The claimant is tangata whenua (or “Maori” for the purposes of the Waitangi Tribunal Act 1975) and descendant of Ruawaipu.
  1. The claimant’s father’s, father’s, father’s, father’s, father’s, father’s, father was Matenga Koia-uru-terangi, descendant of Ruawaipu, Chief who lived on one side of the Waiapu river, and signatory to the indigenous text[3] of Te Tiriti o Waitangi (Te Tiriti). Koia-uru-terangi married the eldest daughter of the claimant’s other Tipuna, Rawiri (David) Rangikatia, descendant of Ruawaipu, Chief who lived on the other side of the Waiapu river, and also signatory to Te Tiriti.
  1. The claimant’s Tipuna signed Te Tiriti expecting the “utmost good faith” on the part of te Kuini o Ingarani(Queen of England) and in the belief that Te Tiriti would not be injurious to the hapu.[4]
  1. Although the limited authorityconferred upon the Tribunal, including the authority for individuals to make representations to it, derive from the rules and stipulations laid down by the alleged wrongdoer, the claimant prosecutes her claim against theCrown through herKaitiaki (Litigation Guardian) appointed under the superior authorityof mana tupuna.[5]
  1. The claimant is due to be born on 7 May 2006.
  1. The bringing of herclaim as an unborn is symbolic of the intent of the claimant’s Tipuna when they signedTe Tiriti. That intent was to preserve the tino rangatiratanga (absolute freedom)[6]of Ruawaipu over themselves and their tribal estate forever, and to leave the land here, for the future generations of Ruawaipu descendants yet to be born.
  1. The bringing of her claim as an unborn on the one hundred and sixty sixth anniversary of the Waitangi signing of Te Tiriti is testimony of the resilience, and the unfettered determination of the Ruawaipu indigenous peoples in their relentlesspursuit forjustice regardless of time, and to signal to the Crown that if today’s generation cannot bring the ends of justice in their lifetime, then the next generation will take over … and the next … and the next.

THE CLAIM

  1. The claim concerns inequality between the parties to Te Tiriti arising from the discriminatory policies, practices, and activities of the New Zealand Parliament.Parliament essentially appropriates tax payer monies (including the taxes of Ruawaipu whanau hapu) to fund the litigation capability of one Tiriti partner, in order that itmayeffectively discharge its Tiriti response function, whilst excluding the other. However, as the Tribunal is devoid of jurisdiction to inquire into the policies, practices, and activities of Parliament, the claim is pitched against the Crown of the United Kingdom and the failings of Her Majesty Queen Elizabeth II to intervene on petition and remove the discrimination. Consequently, the claimant and her people are prejudiciallyaffected by acts done or omitted, by or on behalf of the Crown, in breach of Te Tiriti. A prominent aspect of the prejudice is that the claimant and her people lack equality in capability, through legal process,to protect their indigenous rights, and to look to the international community,[7] to influenceCrown policy change on Tiriti issues, including in particular, its settlement policy.

JURISDICTION

  1. The claimant meets the Crown’s definition of “Maori” as interpreted in s 2 of the Treaty of Waitangi Act 1975 (the Act).
  1. Section 6(1)(a)&(b) of the Act confers power upon the Tribunal to inquire only into any ordinance (statute enacted) of the General Legislative Council or any Act passed at any time on or after the 6th day of February 1840. There is nojurisdiction to inquire into the practices, policies, oractivities of the General Legislative Council.
  1. New Zealand’s government institutions are based on those of Britain. That is, there are three branches of government – Parliament, the executive, and the judiciary – and the Queen is the head of state.
  1. Although Parliament forms part of our system of governance, it is not part of the executive branch of government. The Tribunal has held that the “Tribunal has no jurisdiction to inquire into bodies that are not part of the executive branch of government. However, the Tribunal may have to consider in respect of any particular body whether the consequences of the decisions and activities of that body, even if lawful and proper, require the Crown to take remedial action in order to comply with the principles of the Treaty.”[8]
  1. This claim is not pitched against Parliament and its policies, practices, or activities. The limitations of s 6(1)(a)&(b) prevents the Tribunal from inquiring into a claim framed in such a way. This claim is pitched against the (UK)Crown, and the failures of Her Majesty Queen Elizabeth II through Her Majesty’s representative in New Zealand to take remedial action in order for Parliament to comply with the principles of Te Tiriti.
  1. Therefore, the claimant states that this claim meets the provisions of s 6(1)(d) of the Act.

STATEMENT OF CLAIM

  1. The New Zealand Parliament derives from, and remains, a ‘settlers’ parliament. The New Zealand Parliament is not the ‘Crown’nor is it a so called ‘treaty partner.’ This was brought out even more so in 1986[9] when Geoffrey Palmer repealed the Queen’s Imperial Acts to get rid of s 71 New Zealand Constitution Act 1852 (Imp) (tikanga protectorate from the Queen). In doing so, Parliament effectively cut off the branch they were sitting on that connected them to the Queen.
  1. The Crown is a party to Te Tiriti and therefore bound by its instruments, principles and spirit. TheCrown has an inherent right under Te Tiriti to confront present and historical issues of non-conformity by other Tiriti partners and the right to seek competent legal advice and representation on those issues and to pursue such remedy asdomestic and international law allows.
  1. TheCrown’s law officers and principal legal advisers in New Zealand are effectively the Attorney General and the Solicitor-General.[10] TheCrown’s law officers are supported by the Crown Law Office. In essence the Crown Law Office is the legal firm for the Crown and has been providing legal advice and representation services to the New Zealand Government since 1875. The Crown Law Office performs a Tiriti response function and receives payment for legal services from tax payer monies appropriated by Parliament for the purpose of discharging that function. Ultimately, the Crownhas ‘litigationcapability’ through the consolidated fund to pursue remedy for breaches of Te Tiriti in an international forum if such a course is deemed necessary by the Crown to bring the ends of justice.
  1. Ruawaipu is a party to Te Tiriti and therefore bound by its instruments, principles and spirit.[11] Like its Tiriti partner, it too has an inherent right under Te Tiritito confront present and historical issues of non-conformity by the Crown and the right to seek competent legal adviceand representation on those issues and to pursue such remedy as domestic and international law allows. However, unlike the Crown, Ruawaipu has no principal legal adviser(s) or law office to perform a Tiriti response function on its behalf, and that is because Ruawaipu receives no ‘litigationcapability’funding from monies appropriated by Parliament for that express purpose. Therefore it can rightfully be construed that Parliament is guilty by way of discrimination, of prejudicially affecting Ruawaipu. The result of that prejudice is that ultimately, unlike its Tiriti partner, Ruawaipu are devoid of any ‘litigation capability’ to pursue remedy for Tiriti breaches in an international forum if such a course was deemed necessary by Ruawaipu to bring the ends of justice.
  1. On 10 December 2004 the claimant’s Matua keke Jason Koia petitioned the Governor General to intervene and remove the prejudice. Jason Koia wrote:

“… 11. It is without question, that it can be derived from our nation’s founding document that Her Majesty Queen Victoria was anxious to protect the just rights of the Native Chiefs and Tribes of New Zealand. It would be treasonous for any Agent or Successor of Her Majesty to fail as protectorate of the native title [sic]

12. It is equally without question that it is within the Governor-General’s sphere of sworn duty to uphold the honour of the Crown, to honour the good spirit within which promises were exchanged between Treaty partners, to have regard to the equitable doctrine of fiduciary duty, and to act decisively and with purpose to cure the ills of government malpractice. Any Act [sic] of Parliament that causes subordination of right between the Treaty partners cannot be held in a moral or legal sense to be lawful. The Bill of Rights (1688) guarantees the right of the subjects to petition Her Majesty free of all commitments and prosecutions. The Bill of Rights 1688 was designed to control royal power. These days it is not royal power which is in need of control.

13. The Ruawaipu Tribal Authority hereby petitions Your Excellency, as Her Majesty’s representative, that Your Excellency may see fit to intervene and to exercise Your Excellency’s undoubted right “to be consulted … to encourage … and to warn” and to counsel your Ministers that they may be encouraged to make good and pass motion in Parliament that it appropriates monies to the Ruawaipu Tribal Authority for the purpose of establishing and maintaining legal office to support Ruawaipu iwi’s Treaty response function. Or in the alternative, that Your Excellency sees fit to intervene and counsel your Minister of Finance that he may be encouraged to make good and exercise his discretionary powers pursuant to s 3(1) of the Finance Act 1989 and approves expenditure out of the Public Account of such sum that the Minister considers necessary for the purpose, and to work with the Ruawaipu Tribal Authority in the utmost good faith to put into place sound and proper accounting procedures and controls. …”

  1. Despite an urgent follow-up letter sent by Jason Koia to Her Excellency in February 2005, the Governor General has to date failed or refused to acknowledge receipt of the petition, let alone do justice to it.

CROWN BREACHES OF TE TIRITI O WAITANGI

  1. The Court has determined “partnership” to be the key concept defining the relationship of the parties to Te Tiriti. The concept of partnership under Te Tiriti “creates responsibilities analogous to fiduciary duties.” The reciprocal responsibilities of the parties to Te Tiriti were to act towards each other reasonably, with “utmost good faith,” commensurate with the duty which, in civil law, partners owe to each other. The Waitangi Tribunal has noted that of particular importance to Maori, the Treaty gave them equality of status in the partnership it created. In 1989 the Labour Government released the document Principles for Crown Action on the Treaty of Waitangi. The document expressed the Government’s commitment to work towards negotiated settlements of Treaty claims and endorsed Treaty principles which included the principles of equality and cooperation.
  1. The Parliamentary practice, policy, or activity of funding the Tiriti response function of one partner to Te Tiriti and not the other in a fair and equitable manner is clearly … and unequivocally … discrimination. A government system that empowers one Tiriti partner to enter the international dispute resolution arena, and fails to accord equal power to the other is clearly … and unequivocally … discrimination.
  1. The failure or refusal by the Governor General to act on the petition aforementioned in the utmost good faith and to intervene to remove the discrimination are acts and omissions by or on behalf of the Crown in breach of the Crown’s protectorate and fiduciary duties enshrined in the ‘active protection’ and‘partnership’ principles of Te Tiriti.

THE PREJUDICIAL AFFECTS OF CROWN BREACHES OF TE TIRITI O WAITANGI

  1. The claimant is, or is likely to be prejudicially affected by the Crown’s Tiriti breaches in that unlike the Crown, her people lack the litigation capabilityto be responsive to contemporary Tiriti breaches as they occur. The harmful affects of the prejudice is that she and her people are denied their right to equal participation in ensuring:
  • that the operations and responsibilities ofParliament and of the Crown are conducted lawfully, and
  • that Parliament and the Crown are prevented, through legal process,from unlawfully implementing their chosen policies and discharging their Parliamentary andCrown responsibilities.
  1. The claimant is, or is likely to be prejudicially affected by the Crown’s Tiriti breaches in that unlike the Crown, her people lack the litigation capability to take their historical Tiriti grievances to an international forum to bring the ends of justice, should the Crown’s so called process of settlement negotiation break down. The harmful affects of the prejudice is that the claimant and her people will eventually be left with no option but to take what is placed on the table when they would have otherwise been entitled to full redress under international law.

REMEDY

  1. The claimant seeks the following relief:

(a)That the Tribunal finds that her claim is well founded; and

(b)That the Tribunal recommends to the Crown that the Crown acts without delay to remove the prejudice by facilitating Parliamentary change to remove Parliament’s discriminatory policies, practices, and activities by appropriating such monies as necessary from the Public Account for the establishment and maintenance of the Ruawaipu Law Office to be organised and funded in equity with the Crown Law Office, free of Crown influence and financial restraint, so that the legal interests, constitutional rights, and indigenous rights guaranteed to Ruawaipu under Te Tiriti will be recognised, respected, and honoured to the fullest extent by the Crown.

ADMINISTATIVE MATTERS

  1. The Claimant seeks to have the claim consolidated into the WAI 900 Inquiry.
  1. The Claimant requests the Tribunal to commission a report on the claim. The report should include the following issues:
  1. The constitution of the NZ Parliament (NZP)
  1. What are the origins of the NZP?
  2. What is the relationship between the NZP and the Crown?
  3. What is the relationship between the NZP and maori?
  4. What is the relationship between the NZP and Te Tiriti?
  5. What is the relationship between the NZP and Treasury?
  1. The constitution of the Crown Law Office (CLO)
  1. What are the origins of the CLO?
  2. What are its functions, and how is it funded?
  3. What is the relationship between the CLO and the Crown?
  4. What is the relationship between the CLO and maori?
  5. What is the relationship between the CLO and the NZP?
  6. What is the relationship between the CLO and Treasury?
  7. What is the relationship between the CLO and Te Tiriti?
  1. Litigation capability of Te Tiriti partners
  1. Is the Crown capable of litigating against maori in the international arena in respect of Te Tiriti, and if so, who would the Crown instruct as its legal representative? How would the legal representative be paid?
  2. Is Ruawaipu capable of litigating against the Crown in the international arena in respect of Te Tiriti, and if so, who would Ruawaipu instruct as its legal representative? How would Ruawaipu’s legal representative be paid?
  1. Parliamentary discrimination and the prejudicial affects on Ruawaipu
  1. Is Parliament guilty of discriminating against Ruawaipu in the manner alleged by the claimant?
  2. If so, is the Crown obligated under Te Tiriti to remove the discrimination and how can this be done in a practicable sense?
  3. Will the claimant be prejudicially affected if the discrimination is not removed, and if so, how?
  1. The Claimant reserves her right to amend herstatement of claim.
  1. The Claimant proposes that her claim be heard at Te Ao Hou Marae, Rangitukia, East Coast, New Zealand.
  1. The Claimant requests the Registrar to forward a copy of her claim to every claimant within the East Coast Inquiry District.

…………………………….

Henry Koia (Kaitiaki)

Dated at Rotorua this 6th day of February 2006

To: RegistrarTo: Queen Elizabeth II

Waitangi TribunalBuckingham palace

P O Box 5022London

WELLINGTONENGLAND

To:Crown Law OfficeTo:Governor General

P O Box 2858Government House

WELLINGTONWELLINGTON

To:Prime MinisterTo:Tariana Turia

Parliament BuildingsMaori Party

WELLINGTONParliament Buildings

WELLINGTON

To:Dr Pita Sharples

Maori Party

Parliamentary Buildings

WELLINGTON

1

[1]Mana is the enduring, indestructible power of the gods. It is the sacred fire that is without beginning and without end. Manawhenua is the power associated with the possession of lands. Manamoana is the power associated with the possession of the waters (oceans, rivers, lakes and streams).

[2]Whakapapa is the genealogical descent of all living things from the gods to the present time. The meaning of whakapapa is ‘to lay one thing upon another’ as for example, to lay one generation upon another.

[3] Ruawaipu Chiefs did not sign the English version of Te Tiriti. Under international law, where language difficulties arise between the parties to a treaty, then the ‘contra proferentem’ rule applies which allows preference to be given to the indigenous language version. Of significance therefore is the interpretation and application of the indigenous text in the adjudication of these proceedings.