Rapua ngā tuhinga ruku tātari

Rarely has a Māori river claim been so persistently maintained as that of the Whanganui people. Uniquely in the annals of Māori settlement, the country’s longest navigable river is home to just one iwi, the Atihau-a-Paparangi. It has been described as the aortic artery, the central bloodline of that one heart.

The Atihau-a-Paparangi claim to the authority of the river has continued unabated from when it was first put into question. The tribal concern is evidenced by numerous petitions to Parliament from 1887. In addition, legal proceedings were commenced as early as 1938, in the Māori Land Court, on an application for the investigation of the title to the riverbed. From there the action passed to the Māori Appellate Court in 1944, the Māori Land Court again in 1945, the Supreme Court in 1949, to a further petition and the appointment of a Royal Commission in 1950, to a reference to the Court of Appeal in 1953, to a reference to the Māori Appellate Court in 1958 and to a decision of the Court of Appeal in 1962. This may represent one of the longest set of legal proceedings in Māori claims history, yet in all those proceedings, it is claimed, the principles of the Treaty of Waitangi had no direct bearing. Nor did the matter rest there for the court hearings were followed by further petitions and investigations, and in more recent times, Atihau-a-Paparangi were again involved in the Catchment Board inquiry on minimum river flows in 1988 and in the Planning Tribunal and High Court hearings on the same matter in 1989, 1990 and 1992.

Claim Wai 176 was lodged with the Tribunal in early 1991 by Huirangi Waikerepuru and Graham Latimer. The claimants alleged Treaty breaches by the Crown in its broadcasting policies, and they sought, inter alia, that the Broadcasting Act 1989 and the Radiocommunications Act 1989 be amended to ensure that Maori, their language, and their culture had a secure place in broadcasting in New Zealand.

In its report of 22 July 1994, signed by Chief Judge Eddie Durie, the Tribunal noted that many of the issues raised had been canvassed in earlier reports (the Report on the Te Reo Maori Claim and the Report on Claims Concerning the Allocation of Radio Frequencies) and in the general courts, and accordingly it was to make no further inquiry into the claim.

The Tribunal's Mohaka ki Ahuriri Report was released on Saturday 5 June 2004. It covers 20 Hawke's Bay claims spanning a district bounded by the Tutaekuri River to the south, Hawke Bay to the east, the Waiau River to the north, and the inland ranges and the old Hawke's Bay provincial boundary to the west. The claimants were predominantly Ngati Kahungunu, although some identified more or equally with Ngati Tuwharetoa.

In summary, the claims concerned Māori land in two broad ways. First, they related to the loss of land through pre-1865 Crown purchases, the operation from 1865 of the Native Land Court, the 1867 Mohaka–Waikare confiscation, and later Crown purchasing (mainly conducted from 1910 to 1930). Secondly, they related to the barriers to the use and enjoyment of lands retained in Māori ownership, including title disruption, the lack of development opportunities, the fragmentation and multiple ownership of tiny parcels, and the lack of access.

In particular, the Tribunal investigated:

The status of the first land transactions with the Crown in the district in 1851, which the claimants asserted to be akin to ‘treaties’. Whether a supposed ‘rebellion’ justified the military engagements in 1866 and the confiscation in 1867. The propriety of the Crown’s handling of both the ‘return’ of certain lands after the confiscation and the title disputes which followed for over 80 years. The point at which the Crown should have stopped purchasing Māori land and put its effort into helping develop the remaining Māori land base; and whether there is a link between poverty and landlessness.

The Tribunal found a number of serious breaches relating to land loss and remaining Māori land base:

Overall, we have identified serious breaches of the principles of the Treaty of Waitangi by the Crown in the loss of Māori land in our inquiry district. We have also found that the Crown acted in clear breach of the Treaty in its treatment of the remaining Māori land base. We have also made the point that by far the bulk of that surviving base (some 125,000 acres out of a total of roughly 800,000) remains in Māori ownership principally because it was viewed by the Crown as too rugged and unproductive to bother purchasing.

Of particular note was the Crown's use of section 363 of the Native Land Act in 1910, alienating Māori land ownership:

from 1911 the Crown persisted over two decades in buying up individual interests in land, more than halving the amount of land left in Māori ownership at Mohaka in 1910. It adopted the usual tactics of employing alienation restrictions under section 363 of the Native Land Act 1909, as well as making payments on the basis of out-of-date valuations. This purchasing not only conflicted with the Stout–Ngata recommendations but seemed to serve no clear purpose. And, because the Crown had acquired so many partial interests, scattered throughout the various blocks, it decided upon a scheme to consolidate its interests. Even after this decision was made, however, purchasing continued unabated – in fact, the impetus for it increased, as the Crown tried to gain as much land as it could in the northern part of the Mohaka block, where the blackberry infestation was less, before the exchanges took place.

The Tribunal recommended that the Crown and the claimants negotiate over the settlements of the claims, and it made some suggestions as to the appropriate groups for the Crown to deal with. It also noted that Crown counsel had made a number of concessions of failings by the Crown to live up to the standards envisaged in the Treaty.

In 1990, the Tamaki Maori Development Authority lodged a claim with the Tribunal alleging that the Crown’s actions in delaying the authority’s review proceedings against the former Department of Māori Affairs were a denial of the rights of due process secured to Māori under the Treaty of Waitangi.

The Tribunal decided not to inquire further into the claim because there was an adequate remedy for the matters complained of within the general courts.

The water from the puna wai [water of the spring] of a whanau is considered a taonga to that whanau as it carries the Mauri [life force] of that particular whanau. Of course all the waters of the puna wai find their way into the river and thereby join with the Mauri of the river. In essence then the very spiritual being of every whanau is party of the river … In this sense the river is more than a taonga; it is the people themselves.

Wiremu McAuley

Claim Wai 212 concerned the mana and tino rangatiratanga of the hapu of Te Ika Whenua over the Rangitaiki, Wheao, and Whirinaki Rivers and their tributaries. It built on the Te Ika Whenua energy assets claim and, like that claim, was severed from Te Ika Whenua’s original claim and accorded urgency by the Tribunal.

The claim was brought in the name of Hohepa Waiti and Kini Porima, as the chairman and secretary of Te Runanganui o Te Ika Whenua Incorporated Society, on behalf of themselves and the hapu represented by Te Ika Whenua.

The Tribunal constituted to hear the Te Ika Whenua rivers claim comprised Judge Glendyn Carter, Bishop Manuhuia Bennett, Mary Boyd, and Georgina Te Heuheu, though Ms Te Heuheu resigned from the Tribunal following her appointment as a list candidate for the National Party in September 1996. The first hearing was held at Tipapa Marae in Murupara in early November 1993, the second hearing at the Maori Land Court in Rotorua in late August 1994, and the third and final hearing at Painoaiho Marae in Murupara in mid-October 1994.

The Tribunal heard how the rivers served as a vitally important food source and means of transport and communication, and how they were essential for Te Ika Whenua’s spiritual and cultural well-being. Claimant evidence ‘clearly established’ that the middle reaches of the Rangitaiki and the Whirinaki and Wheao Rivers were a taonga over which the hapu of Te Ika Whenua had mana and rangatiratanga.

The Tribunal also heard of the effect that hydro schemes had had on the resident eel population and the flow of the rivers.

Maori anger is mounting over development on the Rangitaiki River that has seriously depleted eel populations in the Murupara District … Below the Te Mahoe dam, eel populations are building up. But in the quiet Ikawhenua Range country, the river’s birth place, Maoris are concerned that one of their traditional foods is disappearing.

Moves to press the Internal Affairs Department into building a run-off or race for eels so they might ‘climb’ over the dam have been turned-down because of high costs.

The Rotorua Daily Post

one of the greatest tragedies of the diversion of the Rangitaiki and the Wheao ‘blowout’ was that all the beautiful little pools of clear water that made the Wheao one of the greatest trout fishing rivers in the world, as well as a great place for tuna, were wiped out. The Wheao they had known, the lands on which they had lived for weeks and what used to be a great place for mahinga kai were all gone.

The Waitangi Tribunal

Like the Mohaka River Tribunal before it, the Ika Whenua rivers Tribunal considered the application of the common law rule ad medium filum aquae, which assumes that the owner of land bordering a non-navigable river owns the adjacent riverbed to the middle line. According to the Tribunal, this rule conflicted with the Maori view of ownership, and in the Tribunal’s view, it was ‘inescapable’ that the application of this rule was a major factor in Te Ika Whenua’s loss of title and tino rangatiratanga over their rivers.

Clearly, the customary and Treaty rights of rangatira and hapu and tangata katoa (all the people) of Te Ika Whenua are part of their tino rangatiratanga and are in conflict with Crown assertions on the ownership of rivers by virtue of statute or common law. Claimant evidence shows that rivers were and still are a taonga that provides material and spiritual sustenance and a strong continuing bond. The people belong to the river and the river belongs to the people.

The Waitangi Tribunal

In its report, released in September 1998, The Tribunal found that Te Ika Whenua held a proprietary interest akin to ownership of the rivers as at 1840 in that they had full and unrestricted use and control of the waters thereof while they were in their rohe. That right or interest was property guaranteed protection under article 2 of the Treaty and Te Ika Whenua were entitled to have had conferred on them in 1840 a proprietary interest in the rivers that could be practically encapsulated within the legal notion of the ownership of the waters.

The Tribunal also made a number of recommendations to the Crown relating to the recognition of Te Ika Whenua’s residual rights in the rivers, the management and control of the rivers, the vesting of certain parts of the riverbeds in the claimants, and the compensation owed to them for the loss of title resulting from the application of the ad medium filum aquae rule.

Claim Wai 212 concerned the mana and tino rangatiratanga of the hapu of Te Ika Whenua over the Rangitaiki, Wheao, and Whirinaki Rivers and their tributaries under article 2 of the Treaty by permitting the Bay of Plenty Electric Power Board and the Rotorua Area Electricity Authority to erect the Aniwhenua and Wheao Dams on the Rangitaiki and Wheao Rivers.

The water from the puna wai [water of the spring] of a whanau is considered a taonga to that whanau as it carries the Mauri [life force] of that particular whanau. Of course all the waters of the puna wai find their way into the river and thereby join with the Mauri of the river. In essence then the very spiritual being of every whanau is party of the river. … In this sense the river is more than a taonga; it is the people themselves.

Wiremu McAuley

Claim Wai 212 concerned the mana and tino rangatiratanga of the hapu of Te Ika Whenua over the Rangitaiki, Wheao, and Whirinaki Rivers and their tributaries. It built on the Te Ika Whenua energy assets claim and, like that claim, was severed from Te Ika Whenua's original claim and accorded urgency by the Tribunal.

The claim was brought in the name of Hohepa Waiti and Kini Porima, as the chairman and secretary of Te Runanganui o Te Ika Whenua Incorporated Society, on behalf of themselves and the hapu represented by Te Ika Whenua.

The Tribunal constituted to hear the Te Ika Whenua rivers claim comprised Judge Glendyn Carter, Bishop Manuhuia Bennett, Mary Boyd, and Georgina Te Heuheu, though Ms Te Heuheu resigned from the Tribunal following her appointment as a list candidate for the National Party in September 1996. The first hearing was held at Tipapa Marae in Murupara in early November 1993, the second hearing at the Maori Land Court in Rotorua in late August 1994, and the third and final hearing at Painoaiho Marae in Murupara in mid-October 1994.

The Tribunal heard how the rivers served as a vitally important food source and means of transport and communication, and how they were essential for Te Ika Whenua's spiritual and cultural well-being. Claimant evidence 'clearly established' that the middle reaches of the Rangitaiki and the Whirinaki and Wheao Rivers were a taonga over which the hapu of Te Ika Whenua had mana and rangatiratanga.

The Tribunal also heard of the effect that hydro schemes had had on the resident eel population and the flow of the rivers. The Rotorua Daily Post reported that:

Maori anger is mounting over development on the Rangitaiki River that has seriously depleted eel populations in the Murupara District. … Below the Te Mahoe dam, eel populations are building up. But in the quiet Ikawhenua Range country, the river's birth place, Maoris are concerned that one of their traditional foods is disappearing.

Moves to press the Internal Affairs Department into building a run-off or race for eels so they might 'climb' over the dam have been turned-down because of high costs.

‘One of the greatest tragedies of the diversion of the Rangitaiki and the Wheao “blowout”’, the Tribunal wrote, was that:

all the beautiful little pools of clear water that made the Wheao one of the greatest trout fishing rivers in the world, as well as a great place for tuna, were wiped out. The Wheao they had known, the lands on which they had lived for weeks and what used to be a great place for mahinga kai were all gone.

Like the Mohaka River Tribunal before it, the Ika Whenua rivers Tribunal considered the application of the common law rule ad medium filum aquae, which assumes that the owner of land bordering a non-navigable river owns the adjacent riverbed to the middle line. According to the Tribunal, this rule conflicted with the Maori view of ownership, and in the Tribunal's view, it was 'inescapable' that the application of this rule was a major factor in Te Ika Whenua's loss of title and tino rangatiratanga over their rivers:

Clearly, the customary and Treaty rights of rangatira and hapu and tangata katoa (all the people) of Te Ika Whenua are part of their tino rangatiratanga and are in conflict with Crown assertions on the ownership of rivers by virtue of statute or common law. Claimant evidence shows that rivers were and still are a taonga that provides material and spiritual sustenance and a strong continuing bond. The people belong to the river and the river belongs to the people.

In its report, released in September 1998, The Tribunal found that Te Ika Whenua held a proprietary interest akin to ownership of the rivers as at 1840 in that they had full and unrestricted use and control of the waters thereof while they were in their rohe. That right or interest was property guaranteed protection under article 2 of the Treaty and Te Ika Whenua were entitled to have had conferred on them in 1840 a proprietary interest in the rivers that could be practically encapsulated within the legal notion of the ownership of the waters.

The Tribunal also made a number of recommendations to the Crown relating to the recognition of Te Ika Whenua's residual rights in the rivers, the management and control of the rivers, the vesting of certain parts of the riverbeds in the claimants, and the compensation owed to them for the loss of title resulting from the application of the ad medium filum aquae rule.

On Saturday 3 September 2010, the Tribunal released its report Tauranga Moana, 1886–2006: Report on the Post-Raupatu Claims.

In stage 2 of its inquiry into Tauranga Moana claims, the Tribunal examined issues relating to the decades since the confiscation (the latter having been the subject of stage 1). Over 50 claims had grievances needing investigation in this second stage, including three claims from groups that had not appeared in stage 1, namely Ngati Mahana, Ngati Motai, and Ngati Hinerangi.

The Tribunal, consisting of Judge Stephanie Milroy (presiding), John Clarke, Areta Koopu, and Professor Keith Sorrenson, found that Tauranga iwi and hapu continued to lose significant amounts of land after 1886, notably through Crown purchasing, public works, pressures caused by actual and potential rates debt, and the processes of urbanisation and subdivision. The tangata whenua could ill afford to lose any land at all, and the scale of the loss has compounded the prejudice they suffered from the raupatu and its aftermath. Particularly disappointing was the lack of adequate protection or assistance for those groups that were left landless or nearly so. However, no group was totally unaffected by land loss.

Even where Maori managed to retain land, they faced considerable difficulty trying to develop it. To a large extent, the cause of this was the land tenure and administration system imposed by the Crown on Maori owners. While the Tauranga panel acknowledges that the Crown made efforts at times to assist Maori to overcome the disadvantages created, it is in no doubt that overall the Crown failed to provide the level of protection and support promised under the Treaty.

The Tribunal also found that rates have often been a particular problem for Maori land held in multiple ownership, and it recommended the introduction of new valuation legislation that is more consistent with the Treaty. The Tribunal looked at the planning legislation that had underpinned urbanisation and economic development over the years, concluding that such legislation had often failed to reflect Maori needs, perspectives, and aspirations, and it discussed the lack of political representation for Maori at the local level. It is only in recent years that legislation to encourage Maori participation in local government has been put in place, with Environment Bay of Plenty leading the way in creating Maori seats and electorates. The Tribunal commented that there needed to be much more vigorous pursuit of such policies if development sensitive to Maori views and aspirations were to flourish.

The Tribunal noted that, along with their loss of land, Tauranga Maori suffered reduced access to, and use of, traditional resources from the rivers, sea, and forests of Tauranga Moana. The intensification of economic activity and the accelerating pace of urban development also often led to degradation and pollution of those environments. Alongside that, development had endangered the cultural heritage of Tauranga Maori: despite some protections, many sites of cultural, spiritual, and historical importance had been modified or even destroyed. Where their environment and cultural heritage were concerned, the tangata whenua had to fight hard to maintain even a faint shadow of the tino rangatiratanga and kaitiakitanga they exercised at the time the Treaty was signed. The Tribunal recommended various ways by which the Crown could assist in restoring a measure of rangatiratanga to the iwi and hapu of the district.

In conclusion, the Tribunal found that the cumulative and interlinked effects of different Government processes and legislative provisions have created considerable prejudice to Tauranga Moana Maori, all too often marginalising them socially, culturally, and economically in the area that has for centuries been their home. Further, the economic marginalisation had resulted in lost opportunity costs that impacted on their ability to recover. Despite some improvements over recent years, Maori socio-economic statistics still lagged some way behind those of non-Maori. Looking forward, the Tribunal urged greater collaboration and information flow between various arms of Government in order to redress the prejudice suffered and to assist Maori in their future development. It recommended that the settlement of claims of Tauranga iwi and hapu be addressed as a matter of high priority, and it urged that substantial redress be made for post-1886 breaches, separately and in addition to redress for the raupatu. The Tribunal particularly stressed the importance of returning land wherever possible.

This report concerns the raupatu (confiscation) of Maori land in the Tauranga district, following the war of 1864. The report covers 55 separate claims. The claimants represent several iwi, including Ngati Ranginui, Ngai Te Rangi, Waitaha, and the Marutuahu people. The Tribunal's inquiry was not the first but it was the fullest inquiry into the confiscation that has ever been conducted. In contrast to the royal commission of 1927, which reported on the Tauranga confiscation and concluded that Tauranga Maori had not been badly treated, the Tribunal found that they have substantial grievances. The key findings of the majority report are outlined below.

War at Tauranga

The battles at Gate Pa (Pukehinahina) on 29 April 1864 and Te Ranga on 21 July 1864 followed on from the Waikato war. The Tribunal found that the Crown breached the Treaty in substantial ways by landing troops at Tauranga and attacking local Maori. This resulted in large-scale loss of life and property on the part of Tauranga Maori. The Crown then used the resistance of Tauranga Maori as an excuse to confiscate their land, breaching the Treaty obligation to allow Maori to retain ownership and control of their land. The Crown justified the confiscation on the ground that Maori were in 'rebellion'. However, the Tribunal rejected this justification because it failed to take into account the circumstances of New Zealand in the 1860s.

Loss of land

The report details the loss of Maori land as a result of raupatu. The entire Tauranga district, estimated at 290,000 acres, was included in the confiscation proclamation of 1865. Of this area, the Crown retained a 50,000-acre area known as the 'confiscated block'. Though the land outside the 50,000-acre block was returned to Maori between 1865 and 1886, most of this land was quickly lost from Maori ownership as well. The Crown purchased some 90,000 acres within the district known as the Te Puna-Katikati block and a further area of 'returned land', estimated at 75,000 acres, was sold to the Crown or private purchasers. By 1886, Tauranga Maori retained only an estimated 75,000 acres of relatively poor quality land and this was no longer held under customary title.

The confiscated block

The confiscation of 50,000 acres of land in the central part of the district, was a Treaty breach that was never really contested by the Crown in the Tribunal's inquiry. The Crown did argue that because the amount of land finally taken from Tauranga Maori was relatively small, little actual prejudice to Tauranga Maori resulted. The Tribunal rejected this and concluded that the Tauranga confiscation was a grave injustice on the part of the Crown, which has severely hindered the aspirations of Tauranga Maori since the 1860s. In particular, the Tribunal found that the hapu of Ngati Ranginui, who lived largely within the confiscated block, lost most of their land and have suffered deprivation as a result.

Te Puna-Katikati Crown purchase

In August 1864, in an effort to acquire more land, some Government Ministers took a number of Ngai Te Rangi chiefs to Auckland and persuaded them to sign a deed to sell the land from Te Puna through to Katikati. The chiefs of Ngati Pukenga, Ngati Ranginui, and Marutuahu, as well as many of Ngai Te Rangi, were not consulted and thus never agreed to sell their land in the area. Despite the protests of these rangatira, the Government insisted that the land had been sold. Some chiefs not party to the original transaction eventually got some payment but they were not allowed to keep their land. The Treaty of Waitangi promised Maori they could retain their land for as long as they so desired but the Crown did not allow Maori to retain Te Puna-Katikati. The Tribunal found that this, too, was a significant breach of the Treaty.

Returned land

The report also details the fate of the land returned to Maori outside the 50,000-acre confiscated block and the Te Puna-Katikati block. The Crown used land commissioners to ascertain rights to this land and returned it to them over the next 20 years. But it was returned in individual rather than customary title and could be sold to the Crown or Pakeha without the consent of local chiefs. All but some 75,000 acres was sold by 1886. The Crown took advantage of this situation to purchase some significant blocks of land including, even, the sacred mountain of Mauao (Mount Maunganui) - despite the protests of the leading chief of the area.

Conclusion

Tauranga Maori suffered considerable prejudice as a result of breaches of the principles of the Treaty arising from the Crown's confiscation, return and purchase of Maori land in the Tauranga district before 1886. It is the recommendation of the Tribunal that the Crown move quickly to settle the Tauranga claims with generous redress.

Minority opinion

One member of the Tauranga Tribunal - the Honourable Dr Michael Bassett - wrote a five-page dissenting opinion in which he takes issue with three of the general findings of the majority members. These are: that the Crown was not justified in taking military action against Tauranga Maori in the 1860s, that the Crown breached the Treaty by individualising the tenure of Maori land at Tauranga, and that the Crown failed to adequately supervise the alienation of returned Maori land. However, despite his dissenting views on these points, Dr Bassett concluded that the other Treaty breaches suffered by Tauranga Maori were serious enough to warrant generous redress from the Crown. He stated in his opinion that 'my conclusions do not warrant any lessening of the quantum of settlement made with Tauranga Maori'.