Rapua ngā tuhinga ruku tātari

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.