Rapua ngā tuhinga ruku tātari

In October 1976, Joe Hawke, Henry Matthews, Te Witi McMath, and Rua Paul became the first claimants to the Waitangi Tribunal with a claim relating to fishing rights in the Waitemata Harbour. Specifically, the claim concerned the matter of prosecutions brought by the Ministry of Agriculture and Fisheries pursuant to regulations 106K(2) and 106KA(3) of the Fisheries (General) Regulations 1950.

The claimants had been apprehended by fisheries inspectors while in possession of a quantity of shellfish and had been subsequently prosecuted under the above regulations, though at a hearing at Auckland Magistrate’s Court, they had been discharged without conviction. The Tribunal was asked to determine whether in such a case article 2 of the Treaty of Waitangi protected the claimants from prosecution and, further, whether the regulations discriminated against Maori by ignoring both the fishing rights guaranteed under the Treaty and the importance of seafood in the diet of Maori.

It is essential that the Māori people be recognised as having different needs and values to their pākehā contemporaries. For over one hundred years now the pākehā has been telling Māoris what is best for them. But the time has come for the Māori people to decide these questions for themselves, and this is their inherited right.—Joe Hawke

The Tribunal constituted to hear the claim comprised Chief Judge Kenneth Gillanders Scott (presiding), Sir Graham Latimer, and Laurence Southwick QC, and the claim was heard on 30 May and 1 June 1977. The Tribunal’s report was released in March 1978.

The Tribunal found that it could not make a declaration in the manner of the Supreme Court that article 2 of the Treaty protected the claimants from prosecution because such a declaration was outside the Tribunal’s jurisdiction. And, while it could consider whether a prosecution under a regulation was, in the circumstances and as established by evidence, prejudicial to or likely to prejudicially affect a claimant, in the present case the discharging of the claimants made it impossible to allege prejudice or likely prejudice as a consequence of their prosecution. In regards to the claim that the regulations discriminated against Maori, the Tribunal found that there was no prejudice to be found in the Fisheries (General) Regulations 1950 because there was no evidence to show that the regulations had been interpreted in any prejudicial manner.

Accordingly, the Tribunal did not find the claim to be well founded and it therefore made no recommendations.

Claim Wai 2, the Waiau Pa power station claim, was brought on 1 February 1977 by Mr T E Kirkwood on behalf of the Waikato subtribes and the Manukau Harbour Action Association on behalf of the Waiau Pa community and the associated communities of Glenbrook, Karaka, and Patumahoe. It concerned a proposal by the New Zealand Electricity Department to construct a 1400-megawatt power station consisting of four 350 megawatt units on a site close to Waiau Pa on the south-western shores of Manukau Harbour.

The proposed power station required a system of condenser cooling, and two different systems were thought by the Electricity Department to be applicable to the site. These were a cooling pond, which would require about 560 hectares of intertidal land, or cooling towers. The claimants objected, alleging that the scheme was inconsistent with the principles of the Treaty in that, if it was undertaken, they would suffer the loss of a substantial continuing food supply and thereby be prejudically affected.

The Tribunal constituted to hear the claim comprised Chief Judge Kenneth Gillanders Scott (presiding), Graham Latimer, and Laurence Southwick QC. The claim was heard in June 1977, and the Tribunal released its report in March 1978.

The Tribunal found that the claimants would have been prejudicially affected had the New Zealand Electricity Department proceeded with its proposal to erect a power station and cooling pond in the vicinity of Waiau Pa. Before it made its findings, however, the Government decided not to proceed with the project.

From the evidence, the Tribunal is satisfied that, for the people from Waiau Pa, the principal fishing ground is that area of the harbour whence the intended cooling ponds would be situated. The cooling ponds, if built, would occupy 560ha, a significant portion of the fishing area. Any loss of fishing area is serious in this harbour because of what has already taken place, but when a number of factors are taken into account, the seriousness of the loss becomes more significant. …

The Tribunal believes from the evidence adduced that the waters in the Waiau Pa area are too important from so many points of view associated with fishing and fish life to permit of any situation to arise whereby damage is likely to occur.
—The Waitangi Tribunal