Rapua ngā tuhinga ruku tātari

Claim Wai 9, the Orakei claim, was filed in February 1984 by Joe Hawke and 12 others on behalf of Ngati Whatua and concerned the Orakei block in Auckland.

The Tribunal constituted to hear the claim comprised Chief Judge Eddie Durie (presiding), Sir Graham Latimer, and Paul Temm QC, and hearings were held in May and July 1985. However, a Bill was then before Parliament that proposed extending the Tribunal’s jurisdiction to cover events dating back to 1840, and the case was adjourned at the claimants’ request to await the outcome of the Bill.

Following the enactment of the Treaty of Waitangi Amendment Act in 1986, the claimants formally abandoned their old claim and filed another in April of that year. The claimants then alleged that, by the actions of the Crown, Ngati Whatua of Orakei were wrongly deprived of the 700-acre Orakei block. They claimed that the block ought to have been reserved for them as a whole in tribal ownership and control, in accordance with their customs, and they claimed to have been prejudicially affected by the loss of their land.

The Tribunal reconstituted to hear this new claim comprised Chief Judge Eddie Durie (presiding), Bishop Manuhuia Bennett, Sir Monita Delamere, Professor Gordon Orr, Professor Keith Sorrenson, and Georgina Te Heuheu. A hearing was held in November 1986, and the Tribunal released its report a year later, in November 1987.

‘These recommendations we make that the Crown may yet support its Treaty commitment to Ngati Whatua. For a tribe that initiated and aided substantially the establishment of Auckland on its land, that stood by the Crown in moments of great crises, that held fast to law and order despite every vicissitude put upon it, and which suffered the most dreadful consequences and then through no fault of its own – and great fault on the part of others – what we recommend is small recompense indeed. Yet it would be a major step to implementing the principles of the Treaty, that the tribal right long denied should now be re-affirmed in a realistic way and that the Crown should move in no unstinting manner to promote the re-establishment of the tribe it displaced.’

The Waitangi Tribunal

The Waitangi Tribunal found that the Crown had breached the Treaty of Waitangi when it purchased the Orakei block and that the block should have been kept as a reserve in tribal ownership. The Crown had also failed to protect the rights and property of the hapu, in breach of its Treaty obligations. The Tribunal recommended that Okahu Park and the headlands of Bastion Point be returned to Ngati Whatua to be used as public parks and that the Orakei marae and the Okahu church and urupa be returned to Ngati Whatua.

‘Ngati Whatua of Orakei may have little land left, but it is the only tribe in New Zealand to own all that it has in the customary way.’

The Waitangi Tribunal

‘We are frankly appalled by the events of the past and by the effect that they have had on the Manukau tribes.’

The Waitangi Tribunal

‘The Manukau not only belongs to us, but we to it. We are a people begotton from within the depths of its waters.’

Carmen Kirkwood

‘The Maori New Zealander points out, with justification, that at a time when his people outnumbered the European by over one hundred to one he agreed to allow the European to live and settle in New Zealand on terms and conditions solely agreed to in writing by both parties. He says that he has kept his side of the bargain throughout its existence.

‘The Manukau claim throws into relief the way in which it is said that the European New Zealander has failed to live up to his obligations.’

The Waitangi Tribunal

Claim Wai 8, the Manukau claim, was brought by Nganeko Minhinnick for and on behalf of all the hapu of Waikato–Tainui and concerned the Manukau Harbour and its environs.

The claim alleged that, by failing to protect the Waikato–Tainui hapu in the use, ownership, and enjoyment of their lands and fisheries, the Crown had not met its Treaty responsibilities. And, further, that Crown policies in regard to discharges and water rights had caused ‘a serious and continuing deterioration in the quality and quantity of seafoods available to the Waikato–Tainui hapu’. The claim sought recommendations that the bed of the Manukau Harbour and the control of its waters be revested in the hapu; that a moratorium be imposed with respect to the granting of water rights affecting the harbour until such time as the ancestral and Treaty rights of the hapu had been investigated and protected; and that the Water and Soil Conservation Act 1967 be repealed and replaced by legislation that acknowledged, protected, and enhanced the rights of Maori people with respect to water and soil conservation matters.

‘In the Maori perspective, the Europeans are regarded as foolish or ignorant by some, and by others as simply “unschooled”. They fish anywhere at any time, make loud noises in the harbour, urinate and drop food in the water, gut fish in the sea or open shellfish on the shore, trample the shellfish beds or raid the sea to line their own pockets (without a thought for those who “own” and rely upon it). Worse, they treat a great food garden as a garbage can for unwanted waste.’

The Waitangi Tribunal

The Tribunal constituted to hear the claim comprised Chief Judge Eddie Durie (presiding), Sir Graham Latimer, and Paul Temm QC. Hearings were held in July, August, and November of 1984, and the Tribunal released its report in July 1985.

At the time that it inquired into the claim, the Tribunal’s jurisdiction extended only to events that occurred since 1975. And thus, while it outlined the Manukau tribes’ historical grievances – which began with land confiscations in the 1860s – the Tribunal could make no findings or recommendations on those matters. However, it did comment that:

‘The claim in respect of current concerns cannot be severed from the earlier events of the past. From their one time extensive lands, forests, estates and fisheries all that is left to the claimants is a few pockets of land, a severely restricted ability to enjoy traditional fisheries, and a legacy of their denigration as a people. If that which is left to them cannot be protected for their benefit, not as a consequence of a recent environmental awareness, but through a substantive recognition of their status as the indigenous people, then the pattern of the past, the plundering of the tribes for the common good, will simply be affirmed and continued.’

In regard to the events over which it did have jurisdiction, the Tribunal considered that the claim was well founded, in that the omission of the Crown to provide protection to the Waikato–Tainui tribes’ use, ownership, and enjoyment of their lands and fisheries was contrary to the principles of the Treaty of Waitangi:

‘The act of omission began last century with policies that led to war and the confiscation of tribal territories. It was continued in this century by a failure to give adequate protection to or recognition of Maori rights in the acquisition of lands or the proposal of major works. It is reflected after 1975, from whence our jurisdiction begins, in an omission to recognise or give appropriate priority to Maori interests in laws and policies and in planning in a number of statutory jurisdictions.’

The Tribunal made a number of recommendations, among them that better policies and laws be formulated to honour the fishing guarantees of the Treaty; that the Whatapaka and Pukaki–Oruarangi inlets be reserved for the exclusive use of the hapu of local marae; and that a comprehensive study on the effects of commercial fishing in the Manukau Harbour and the lower Waikato River be undertaken.

‘Basically the claim is about the despoliation of the Manukau Harbour and the loss of certain surrounding lands of the Manukau tribes. More potently underlying this claim is an enormous sense of grievance, injustice and outrage that continues to haunt the Manukau Maori and bedevil the prospect of harmony in greater Auckland.

‘… the pattern of unjust treatment continues still, and unless arrested, will yet continue until nothing is left but a deeply embittered people and the shreds of a worthless treaty.’

The Waitangi Tribunal

Claim Wai 6, the Motunui–Waitara claim, was brought by Aila Taylor on behalf of the Te Atiawa tribe on 2 June 1981 and concerned the control of discharge of sewage and industrial waste into the sea between New Plymouth and Waitara.

The claimants alleged that they had been prejudicially affected by a Crown policy that had resulted in a failure to properly control the discharge of sewage and industrial waste. They claimed that such a policy was inconsistent with the principles of the Treaty in that it had adversely affected Te Atiawa's main traditional fishing grounds and was causing irreversible damage to the larger seabed. The fishing grounds were a valuable source of food for the tribe, and they claimed that they had been deprived of the full, exclusive, and undisturbed possession of fisheries which they desired to retain, as confirmed and guaranteed to them by the Treaty.

The Te Atiawa fishing reefs (or kaawa) extend for some 30 to 35 miles along the sea coast of the north Taranaki bight and provide an abundant source of seafood. Collectively, they constitute one of the most extensive traditional fishing reefs of the Maori people. They are referred to in the songs and legends of the Te Atiawa people and were a source, not only of food, but of tribal pride and prestige.

The Waitangi Tribunal

Many of Te Atiawa's reefs were no longer useable by the 1980s because they had been polluted. The pollution had come from sewer outfalls along the coast and also from run-off. The worst pollution was from the Waitara Borough outfall, which emptied sewage and industrial waste into the sea near some of the reefs. This outfall was damaged and overloaded, which made the problem worse.

In 1981, the New Zealand Synthetic Fuels Corporation (Syngas) was given permission to build another outfall for its synthetic fuels plant at Motunui. This outfall would have emptied more sewage and industrial waste onto the reefs and would have affected the Motunui Reef, which was one of the few safe reefs left for collecting seafood. The outfall was to be built under strict conditions, but neither Syngas nor the Planning Tribunal, which gave Syngas permission to build the outfall, could guarantee that there would be no further pollution of the reefs. It was at this point that Te Atiawa made their claim to the Waitangi Tribunal.

The general Motunui reef system to which we are referring is unusual on the west coast because it is the only system of any consequence facing north. These areas contain an abundance of sea life which is an important food source for both the Maori and the European races. The Te Atiawa Tribe and its hapus have historic associations with the coast line in this area and depend upon the sea resources to provide them with the diet to which they have been accustomed for many centuries. Each hapu has its own particular reef or area and tribal custom discourages members of the one hapu from gathering food from the reef of another hapu. Thus the contamination of one reef would deprive the hapu which customarily was entitled to the sea food from that reef. Although the law does not prevent the gathering of sea food from anywhere along the coast, the evidence indicated that Maori custom, which is very strong amongst the members of the Te Atiawa Tribe, would act as an effective social prohibition.

The Maori people treat the reefs with the greatest of respect in so far as cleanliness is concerned: there are stringent tribal rules concerning the personal hygiene of the sea food gatherers which are incompatible with any discharge of sewage effluent into the ocean, no matter how well such effluent is treated.

The Planning Tribunal

The Tribunal constituted to hear the claim comprised Chief Judge Eddie Durie (presiding), Sir Graham Latimer, and Walter Willis. Hearings were held in July, October, and November of 1982, and the Tribunal presented its report to the Minister of Maori Affairs and the claimants on 17 March 1983.

The Tribunal found that the Crown had failed to recognise Maori interests guaranteed by the Treaty and that Maori interests should have been taken into account in the management of New Zealand's natural resources. It recommended that the proposal for an ocean outfall at Motunui be discontinued and that the Crown seek an interim arrangement with the Waitara Borough Council for the discharge of the synthetic fuels plant's effluent through the council's outfall. The Tribunal also recommended that both a regional task force and an interdepartmental committee be established; the former to plan for development in the region in the medium term and the latter to promote legislation for the reservation and control of significant Maori fishing grounds.

We were convinced that there is a need for a much greater awareness of the spiritual and mental concepts of the Maori in relation to seafood and water by non Maori who share the seafood resource and by those who are charged with its protection. It would be particularly wrong if the administration of Maori fishing grounds was entrusted only to those whose judgements are founded upon cultural values that are entirely irrelevant to Maori people.

The Waitangi Tribunal

In 1979, the secretary of the Te Tii (Waitangi) B3 Trust asked the Waitangi Tribunal to make representations in connection with the imposition of land tax on land administered by trustees under section 438 of the Māori Affairs Act 1953.

Four months later, the claimants advised the Tribunal that they wished to withdraw their claim, reasoning that section 6(1) of the Treaty of Waitangi Act 1975 was negated and overridden by section 6(6) and that it was fruitless for any Māori to make representations to the Waitangi Tribunal.

In its report of 20 February 1990, the Tribunal stated that it would not be inquiring further into the claim. The Tribunal commented that it was regrettable that the claimants saw section 6(6) as preventing the Tribunal from adequately considering their grievance and noted that the claimants’ right to file a fresh claim in relation to the same subject matter was not prejudiced. The report was signed by Deputy Chief Judge Ashley McHugh.

Claim Wai 4, the Kaituna River claim, was brought on 30 January 1978 by six claimants on behalf of the Ngati Pikiao people, a sub-tribe of Te Arawa, and concerned the Kaituna River pipeline scheme, a project developed to address pollution affecting Lake Rotorua. The main cause of the pollution was effluent from the Rotorua sewage works, so the Bay of Plenty Catchment Commission, along with the Rotorua District Council and the Ministry of Works, had gained approval to build a pipeline to take the effluent directly to the Kaituna River instead of to the lake. The Government had approved a subsidy for the scheme.

The Tribunal constituted to hear the claim comprised Chief Judge Eddie Durie (presiding), Sir Graham Latimer, and Paul Temm QC. Hearings were held in July and October 1984, and the Tribunal released its report in December 1984.

The claimants alleged that the pipeline project was contrary to the principles of the Treaty of Waitangi and asked that it be stopped because it would transfer the pollution process into their territory and was objectionable on medical, social, cultural, and spiritual grounds.

The opposition of the claimants was found by the Tribunal to be deep-seated, intense, and to a degree implacable. Ngati Pikiao elder and claimant Tamati Wharehuia urged upon the Tribunal the need to protect the Kaituna River from harm and likened the river to his own people, whom he had a duty to protect from harm. At the hearing, he demonstrated the depth of his objection to the proposed pipeline:

If this scheme goes ahead I want to make it clear that I will myself have to take direct action. I will take the patu that has been handed down to me from my ancestors generation by generation and do injury to stop this thing. After that the law must take its course with me, but that is beside the point.

Alec Wilson of the Arawa Trust Board came forward at the hearings to support the claimants. A member of the Ngati Whakaue people, he said that for them Lake Rotorua no longer provided the food that they had long been accustomed to obtain from it:

We have to come here to ask our relatives for food. It is too late for us. The damage is done. The only fish in the lake is trout. None of the native fish is left in the Utuhina Stream nor in Lake Rotorua. … This is our last stand.

The Tribunal found that the scheme was contrary to the principles of the Treaty because of the pollution it would cause to the Kaituna River fisheries and that there were alternatives to the pipeline which were practical and did not go against Maori values. It recommended that the pipeline not proceed, that research be carried out into land disposal as an alternative method for getting rid of the effluent, and that the Water and Soil Conservation Act 1967 and related legislation be amended so that regional water boards and the Planning Tribunal had to take account of Maori spiritual and cultural values when they made decisions about water rights.

The Crown subsequently abandoned all financial support for the pipeline and instead announced its support for a combined treatment plant and land-disposal option for Rotorua’s effluent.

In 1977, the Housing Corporation at Tauranga proposed to discharge sewage collected from 15 State houses into Welcome Bay. A claim was received in June 1977 from the Tauranga executive of Maori committees asserting that Rangataua (Welcome Bay) had traditionally been an important place for local Maori and that shellfish which they habitually collected in the area would be adversely affected by the proposed discharge.

The claimants’ counsel withdrew the claim in August and letters subsequently received by the Tribunal from the Housing Corporation showed that the corporation had abandoned the sewage discharge plan and the water right obtained for it. Therefore, the Tribunal reported on 20 February 1990 that it would not be inquiring further into the claim. The report was signed by Deputy Chief Judge Ashley McHugh.

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

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.