Rapua ngā tuhinga ruku tātari

In September 1984, the Tribunal received a claim from Tom Te Weehi and Reremoana Hauraki. They claimed that the Fisheries Act 1983 and regulation 8(b) of the Fisheries (Amateur Fishing) Regulations 1983 were contrary to the principles of the Treaty of Waitangi in restricting them in the exercise of fishing rights. They claimed to be prejudicially affected, as was evidenced by their prosecution for an alleged breach of the statute and regulations referred to (namely, possessing undersized paua).

In June 1985, the Tribunal of Chief Judge Eddie Durie (presiding), Sir Graham Latimer, and Paul Temm QC delivered its unanimous determination that it was ‘quite unwilling to deal with any matter that is still before the Courts lest in any way we embarrass the course of proceedings in the Courts’.

Mr Te Weehi was subsequently convicted in the District Court but successfully appealed the conviction to the High Court. Leave to withdraw the claim to the Waitangi Tribunal was granted, and the Tribunal issued its report on the matter on 6 May 1987.

In August 1984, Ringakapo Payne sought advice on how to lay a claim about the flooding of Māori-owned building sections at Tokaanu. She was sent instructions for laying a claim, but no more correspondence was received and the Tribunal did not inquire further into the matter. The report was signed by Deputy Chief Judge Ashley McHugh and was dated 20 February 1990.

In 1984, the Tai Tokerau District Maori Council lodged claim Wai 13 alleging that fisheries regulations were contrary to the Treaty of Waitangi.

Before the Wai 13 claim was ready to proceed, the Tribunal constituted to hear the Muriwhenua fishing claim (Wai 22) began sitting and later substantially covered the same issues in its Report on the Muriwhenua Fishing Claim. Because of this, in a report dated 20 February 1990, Deputy Chief Judge Ashley McHugh advised that the Tribunal would not be inquiring further into Wai 13.

For almost 20 years since 1966, Motiti Island had operated without an operative district scheme, and the people there had largely managed their own affairs. In 1984, however, the Local Government Commission notified a plan to include Motiti Island within the Tauranga County for local government purposes. The Motiti Advisory Committee subsequently made a claim to the Waitangi Tribunal seeking help in persuading the Local Government Commission to set aside its scheme.

In its report of 21 May 1985, the Tribunal of Chief Judge Eddie Durie (presiding), Sir Graham Latimer, and Paul Temm QC found that the islanders’ claim was not a claim within section 6 of the Treaty of Waitangi Act 1975 and that the Tribunal could not consider the relief sought in it. It declined to inquire further into the claim as filed, though without prejudice to the claimants’ right to file a reformulated claim if they so wished.

Ka ngaro te reo, ka ngaro taua, pera i te ngaro o te Moa

If the language be lost, man will be lost, as dead as the moa

There is a great body of Maori history, poetry and song that depends upon the language. If the language dies all of that will die and the culture of hundreds and hundreds of years will ultimately fade into oblivion. It was argued before us that if it is worthwhile to save the Chatham Islands robin, the kakapo parrot or the notornis of Fiordland, is it not at least as worthwhile to save the Maori language?

Wai 11, the te reo Maori claim, was brought by Huirangi Waikerepuru and Nga Kaiwhakapumau i te Reo and concerned the official recognition of the Maori language. The claimants alleged that the Crown had failed to protect the language as required by article 2 of the Treaty of Waitangi and proposed that it be made official for all purposes, enabling its use as of right in Parliament, the courts, Government departments, local authorities, and public bodies.

the claim was simple; its ramifications are not. To do justice to it we have looked at the past, we have looked at the present situation and we have tried to see what lies ahead in the future.

The Waitangi Tribunal

The frustrations of being a Maori language teacher are just the same as those of being a Maori in New Zealand society. The frustrations of being a Maori language teacher are essentially summed up in the feeling that the education system has invited you to be a mourner at the tangihanga of your culture, your language, and yourself …

Maika Marks

Some New Zealanders may say that the loss of Maori language is unimportant. The claimants have in reply reminded us that the Maori culture is a part of the heritage of New Zealand and that the Maori language is at the heart of that culture. If the language dies the culture will die, and something quite unique will have been lost to the world.

The Waitangi Tribunal

The Tribunal constituted to hear the claim was comprised of Eddie Durie (presiding), Sir Graham Latimer, and Paul Temm QC. Hearings were held in June, October, and November of 1985, and the Tribunal presented its report to the Minister of Maori Affairs and the claimants on 29 April 1986.

an understanding of Maori language and culture was necessary not only to develop the full personal development of Maori children but also to assist the Pakeha to fully appreciate the history, achievements and character of Maori society.

The Waitangi Tribunal

The Tribunal recommended that:

• legislation be introduced enabling any person who wishes to do so to use the Maori language in all courts of law and in any dealings with Government departments, local authorities and other public bodies;
• a supervising body be established by statute to supervise and foster the use of the Maori language;
• an inquiry be instituted into the way Maori children are educated to ensure that all children who wish to learn Maori be able to do so from an early age and with financial support from the State;
• broadcasting policy be formulated in regard to the obligation of the Crown to recognise and protect the Maori language;
• and amendments be made to make provision for bilinguism in Maori and in English as a prerequisite for any positions of employment deemed necessary by the State Services Commission.

The Tribunal did not recommend that te reo Maori be a compulsory subject in schools, nor that all official documents be published in both English and Maori at that time, ‘for we think it more profitable to promote the language than to impose it’.

When the question for decision is whether te reo Maori is a ‘taonga’ which the Crown is obliged to recognise we conclude that there can be only one answer. It is plain that the language is an essential part of the culture and must be regarded as ‘a valued possession’. The claim itself illustrates that fact, and the wide representation from all corners of Maoridom in support of it underlines and emphasises the point. …

We question whether the principles and broad objectives of the Treaty can ever be achieved if there is not a recognised place for the language of one of the partners to the Treaty. In the Maori perspective the place of the language in the life of the nation is indicative of the place of the people.

The Waitangi Tribunal

In 1987, te reo Maori was made an official language of New Zealand and Te Taura Whiri i te Reo Maori (the Maori Language Commission) was established to promote the language.

Claim Wai 10, the Waiheke Island claim, was brought by Hariata Gordon for Ngati Paoa on 8 March 1985. The claim concerned the disposal, by the Board of Māori Affairs, of lands comprising the Waiheke development scheme to the Waiheke Station Evans Partnership, when it ought, the claimants said, to have passed the land to the Ngati Paoa tribe. The scheme comprised some 2050 acres at Onetangi to the north-east of Waiheke Island.

The claimants alleged that, by overlooking them when the board disposed of the Waiheke scheme, the policies of the Crown failed to support the tribal groups that were parties to the Treaty of Waitangi and, in particular, those tribes like Ngati Paoa now rendered almost landless. The claimants sought a recommendation that the lease of the land to the Evans partnership be declared null and void and that the board negotiate with the tribe to establish a Ngati Paoa trust upon the land.

Hariata Gordon said that the people of Ngati Paoa saw in the Waiheke scheme ‘a chance to follow the path other tribal groups were on, and a base from which to they could draw in their young people again and help them to stand tall, as Ngati Paoa, as Māori and as New Zealanders’.

Our entire future as a people, our opportunity to create our own employment, our chance to establish an economic tribal base for the benefit of controlling our own destiny both economically and spiritually, has been affected.

Te Tii Kaaho Andrews

The Tribunal constituted to hear the claim comprised Eddie Durie (presiding), Ned Nathan, and Marcus Poole. A hearing was held in September 1985 and the Tribunal presented its report to the Minister of Māori Affairs and the claimants on 2 June 1987.

There is little Crown land left in the Ngati Paoa territory, not already committed to an existing public need, with which to make amends. The Waiheke Scheme, however, was excess to the Crown’s requirements it having been said that it could readily be sold as surplus Crown land. Thus, there was an opportunity to reaffirm in a modern way the Treaty with Ngati Paoa, the Treaty on which Ngati Paoa had relied in a time of great stress to ensure its own survival. I hold to the view that the omission to seek a land base for Ngati Paoa, when the opportunity presented itself, and although a substantial gift of equity would have been involved, was contrary to the principles of the Treaty having regard to Ngati Paoa’s landless state.

Eddie Durie

The members of the Tribunal followed different lines of reasoning but came to a common conclusion. They recommended that the Crown negotiate with the Board of Maori Affairs, the Waiheke Station Evans Partnership, and the Ngati Paoa Development Trust with a view to release the Waiheke Station to a Ngati Paoa tribal trust, or failing that agreement, that the Crown seek for Ngati Paoa some other endowment that involved a land base within its ancestral territory.

Because the claim was filed by the claimants before the jurisdiction of the Tribunal was extended back to 1840, it was beyond the Tribunal’s authority to review the Government transactions of the 1840s which acquired nearly all the Ngati Paoa lands around Auckland, other than to provide a background to the Ngati Paoa people.

I realise that the Board of Māori Affairs is not expected to re-establish Ngati Paoa as a tribe, but because of their past history and the suffering endured for 150–200 years, it would be worthwhile to find relief for this particular tribe. History informs us of their suffering.

Ned Nathan

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