Rapua ngā tuhinga ruku tātari

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.

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.

Claim Wai 273 was filed in 1992 by Paul White and related to the Tapuwae 1B and 4 Incorporation. The land under the incorporation was managed under the Maori Affairs Act 1953 and was returned to Maori shareholders, with outstanding debts, in 1982. The claim alleged negligence during the period of Crown management which resulted in the outstanding debts.

In 1993, the claimants filed a notice of discontinuance, and Crown counsel advised that the details of a confidential agreement between the parties constituted a full and final settlement of the claim. The Tribunal therefore closed its inquiry into the matter without making any findings or recommendations. Its report on the matter, signed by Chief Judge Eddie Durie, was issued on 8 March 1993.

In 1993, Sandra Lee and Tuhuru Tainui lodged a claim for themselves and the rangatira Tuhuru and his descendants which endeavoured to establish that a grievance would be caused by the passing of the proposed Ngai Tahu Bill.

In March 1987, John Paki lodged a claim with the Waitangi Tribunal concerning the Maori-owned Pouakani B9B block and adjoining Crown lands. Mr Paki brought the claim on behalf of himself and the other trustees and beneficial owners of the lands held by the Titiraupenga and Pouakani B9B Trusts. The claim came to be registered as Wai 33.

The Tribunal constituted to hear the claim comprised Judge Ross Russell (presiding), Emarina Manuel, Professor Evelyn Stokes, and Bill Wilson. Three hearings were held in 1989, in May, August, and October, and the report was released in February 1993.

The Tribunal found that the claim was well founded and recommended that the Crown refund the costs incurred by the claimants in researching the boundaries of the Pouakani B9B and other blocks and that it return 343 acres of land taken as payment for survey charges. It also recommended that the Pouakani B9B block become whenua rahui, or protected land.

In 1992, Hariata Gordon lodged a claim on behalf of herself and Ngati Paoa which concerned the appointment of members to the Treaty of Waitangi Fisheries Commission under the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. The claim alleged that Ngati Paoa, and others that joined the claim, were prejudicially affected by the consultation proposals in the 1992 Act and by a proposed policy of the Minister of Māori Affairs not to consult collectively at a hui, and that the Act and the policy were to that extent inconsistent with the Treaty of Waitangi.

The Tribunal, comprised of Chief Judge Eddie Durie (presiding), Bishop Manuhuia Bennett, and Mary Boyd, recommended that a hui be called, and considered it within the competence of the Ministry of Māori Development for it to call one. They recommended that the hui be directed first to the criteria for appointment and then to the selection of possible candidates.

In June 1991, Archie Taiaroa, on behalf of himself and Māori affiliated to the National Māori Congress, lodged a claim with the Waitangi Tribunal concerning the disposal of surplus New Zealand Railways lands. The Tribunal constituted to hear the claim comprised Judge Eddie Durie (presiding), Professor Gordon Orr, and Georgina Te Heuheu, and it reported on four such cases, Auckland, South Auckland, Wellington and Waikenae.

In 1992, the Crown-Congress Joint Working Party proposed a scheme for the disposal of 3605 square metres of surplus Railways lands at Waikanae. In its Report on Railway Land at Waikanae of 21 December 1992, the Tribunal said that, having heard the party, it was satisfied that the only Māori with an interest in the land were the Ruakohatu Urupa Trustees and that the Crown would not be acting contrary to the principles of the Treaty of Waitangi in treating with them.

As old Father Thames is to the Londoner
As the Ganges is sacred to the Indian
As the Jordan is spiritual to the Palestines
So is the Mohaka all these things to Ngati Pahauwera
—Ramon Joe

The Mohaka River Report 1992 was the first report concerning Ngati Kahungunu and the East Coast. It was also one of the first of the Waitangi Tribunal’s ‘rivers reports’. The claim concerned the tino rangatiratanga of Ngāti Pahauwera over the Mohaka River and was brought by the late Ariel Aranui, for himself and on behalf of Ngāti Pahauwera, in January 1990. The claimants said that their tino rangatiratanga over the river, as confirmed and guaranteed in article 2 of the Treaty of Waitangi, had never been relinquished.

The word rangatiratanga is one which Ngati Pahauwera favours. That is the mana, the essential force, that they speak of in respect of their river. That is the spirit of them all and the power, essential force and awe. Their rangatiratanga is the Mohaka River.
—Charlie King

Rangatiratanga of a river as a ‘spiritual, subsistence’ and economic base can be a tremendous heritage and resource. This would have continued for Ngati Pahauwera if the Treaty and its promises had been honoured. However … Government neglect of Maori Sovereignty in terms of Article 2 occurred.

If our rangatiratanga over the river is recognised … we will be able to sustain our life and begin to rebuild a corporate resource base and offer real hope for the development of Ngati Pahauwera people today and for future generations.
—Tureti Moxon

The river claim formed part of a wider claim relating to tribal lands in Hawke’s Bay and Wairarapa. In November 1991, it was severed from that wider claim and accorded urgency by the Tribunal at the request of the claimants because the Planning Tribunal had recommended to the Minister for the Environment that a national water conservation order be placed over the river. The claimants alleged that the making of such an order without their consent would usurp their rangatiratanga and be a breach of the principles of the Treaty.

We always talk about our river, the control of it, and its spirituality. These are the waters of sustenance.

Even though administration of the river and the land has passed into pakeha hands, we retain the control. It is in these treasures (ie the land and the river) that rests the mana. This is what we are fighting for. We know that this is where our salvation is. The control of the river has been our mana from way back. It came from our ancestors and down through the generations.
—Canon Huata

Ngāti Pahauwera’s claim related to the lower reaches of the Mohaka, and they claimed that the river, including its waters, bed, and fisheries, was a taonga of theirs. In particular, they placed great emphasis on the role that the river played in their tribal identity.

The river is a taonga that we as kaitiaki know we have to preserve. Our ancestors taught us to respect the river and if we respected the river, the river looked after us. If the river is desecrated, it will affect the very deep beliefs we have about the river. That is our Taniwha, the life force of the river, our respect for the river.
—Derek Huata

Ngati Pahauwera is at the beginning of the river, at the river mouth here and out to sea. To us, those who stand on the marae, that is the spirit which is upon us. Our sacred mountain, the river of Mohaka, Ngati Pahauwera are the people.

The spirituality of the river, the mana, the sacredness and the authority relates to Ngati Pahauwera solely. The life of the river we do not want interfered with, lest it be lost. It must be left to flow onward, in the way that it did in the days of the elders. If they were here they would be at the river as it flows onward.
—Charlie King

The Mohaka River Tribunal comprised Bill Wilson (presiding), Bishop Manuhuia Bennett, Mary Boyd, Dr Ngapare Hopa, and Georgina Te Heuheu, and hearings were held in Wellington, Mohaka, and Napier between April and June of 1992. There, the claimants argued that the Crown, through legislation (in particular, the Water and Soil Conservation Act 1967), had failed to recognise and give effect to their rangatiratanga over the Mohaka River. They claimed that this legislation was inconsistent with the principles of the Treaty because it failed to recognise tribal authority and to provide appropriate mechanisms for its exercise. The claimants sought a finding that the relevant statutes failed to provide for rangatiratanga, in breach of the Crown’s Treaty obligations, and that new forms of authority for regulating the use of waters and other natural resources should be devised.

The Tribunal released its report in November 1992. In it, the Tribunal found that the Crown’s obligation to protect Māori property to the fullest extent reasonably practicable was crucial to the claim and that, far from doing this, the Crown had actively undermined that interest by promoting legislation and adopting practices which had given little or no recognition to the position of Ngāti Pahauwera. The Tribunal reached the conclusion that the Mohaka River was a taonga of Ngāti Pahauwera when the Treaty was signed and still remained so. Ngāti Pahauwera did not relinquish te tino rangatiratanga over the river, or transfer ownership of its bed or waters. All statutory provisions which assumed that the Crown owned the riverbed and waters, or which conferred exclusive control over the waters on central or local government, were in breach of the Treaty.

We urge Ngati Pahauwera and the Crown, as treaty partners, to enter negotiations as soon as possible as to our recommendations. We are confident that the outcome of such discussions will be an agreement which recognises the legitimate interests in the river of both Ngati Pahauwera and the other citizens of this country and which demonstrates the Treaty of Waitangi can be made to work in a sensible and realistic way in its application to a beautiful river which is both an undoubted taonga of Ngati Pahauwera and a great asset to the country as a whole.
—The Waitangi Tribunal

In reaching its findings, the Tribunal had traversed the issue of the ad medium filum aquae rule, a common-law presumption that would also be argued in other river claims. Ad medium filum aquae holds that the ownership of land adjoining a non-tidal river also includes the ownership of the bed of the river to its mid point. Thus, if the bank of the river is sold, that portion of the riverbed is also sold. The Tribunal distinguished the present claim from the 1962 Court of Appeal decision in Re the Bed of the Whanganui River, and found that the presumption did not apply in this case because the parties to the sale deed would not have intended that the purchase of the land would carry with it the ownership of the adjacent half of the Mohaka riverbed:

In any event the Crown was not entitled to rely on the ad medium filum aquae rule, an English common law presumption which would have been known to few if any settlers in this country in 1851. To rely on such an esoteric rule to acquire a taonga of Ngati Pahauwera without their knowledge would we think have been clearly unjust and in breach of article 2 of the Treaty.

 

In late 1992, the Waitangi Tribunal inquired into several claims concerning a September 1992 settlement between the Crown and Maori on fisheries, commonly known as the Sealords deal. Hearings took place at the end of September and the beginning of October, and the Tribunal, which consisted of Chief Judge Eddie Durie (presiding), Bishop Bennett, Hugh Kawharu, and Joanne Morris, released its report in November.

The fisheries settlement had been hailed as historic. While it was not the only national settlement, it was the first to extinguish claims (the forestry and State Enterprise settlements being steps along the way) and the first to affect all iwi. It was significant too in that, previously, 'first in, first served' applied, while this settlement proposed the allocation of benefits according to a regular plan.

None the less, there were objections. The complaint in this claim was that the Deed of Settlement, or the Crown policy that it proposed, was contrary to the Treaty and prejudicial to the claimants in that it would diminish their rangatiratanga and fishing rights and impose new arrangements that had not been adequately agreed on.

The Court of Appeal, referring to apparently conflicting provisions in the deed, said:

This weakness in the Deed and other aspects of it which are criticised by the appellants could be in part accounted for by input into it from different hands. Certainly it is a most unusual document and, perhaps, even designedly, obscure in some major respects.

The Tribunal considered that the Crown had done well in seeking to provide for Māori interests in commercial fisheries, but that the spirit had become lost in the small print, leading to complaints from Māori:

Most especially it needs to be appreciated that any settlement of this nature has two essential goals, not just to pay off for the past, but also to buy into the future. The Treaty, it must be understood, is primarily concerned with the latter. It is not the extinguishment of rights that is essential but the affirmation of them. Somehow the Deed does not capture this, apart from the preamble, and Māori anxieties were understandable.

The Tribunal concluded that the Crown's Treaty obligations to hapu required any allocation of benefits to be based on principles that were fair. As the Deed stood, these obligations were likely to be compromised; both inconsistently with Treaty principles and in a manner prejudicial to some Māori. The Tribunal therefore recommended that:

that the allocation scheme should not be based on Treaty principles alone, but according to what is tika, or fair, in all the circumstances. This may include Treaty principles but need not be exclusive to them;[and]

that objections should not be referred to this Tribunal, as our jurisdiction is constrained, but should be sent to some court or especially established body that is able to consider all relevant matters.

Despite its controversial aspects, the commercial sea-fisheries agreement was subsequently embodied in the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. Māori now own some 50 percent of New Zealand's commercial sea fisheries and, in return, have agreed to relinquish future Treaty claims in respect of commercial sea fisheries.