Rapua ngā tuhinga ruku tātari

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.

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 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