r RECEIVED CLADMIN lq '4. I ~ .,.... r<)l..-- ,.....,..-._ ...... 1
Kawerau AS and other blocks
by Sharyn Green
This report was commissioned by the Waitangi Tribunal for the claim by JH Fox for Tuwharetoa Te Atua Reretahi Trust Board relating to Te Wai U 0 Tuwharetoa (Wai 21)
Any conclusions drawn or opinions expressed are those of the author Introduction
My name is Sharyn Green (N gati Maniapoto) and I am employed as a researcher for the Waitangi Tribunal. I have produced research reports for the Waitangi Tribunal on Wai 247, 248, and 238. I have a law degree from the University of Otago in Dunedin and I am an admitted barrister and solicitor of the court as of October 1992. I completed some Maori studies papers while at the University of Otago and tutored Maori language for the department for three years. I was commissioned by the tribunal to produce this report in May 1992.
This report concerns an ancillary claim to Wai 62. Wai 62 was lodged with the Waitangi Tribunal by John Henry Fox, Beverly Adlam, and William Savage of the iwi Tuwharetoa ki Kawerau, in 1988. That claim concerns lands confiscated by the Crown pursuant to legislation in the 1860s following the New Zealand wars.1
This ancillary claim to Wai 62 concerns Tasman Pulp and Paper Mill Ltd (Tasman) creating part of an effluent treatment system on land where the rangatira Tuwharetoa had a pa, and features other sites considered significant by Ngati Tuwharetoa. This report is confined to discussing the establishment of this system. This report has used official information supplied by the Maori Land Court, Waiariki, and Crown agencies. The relationship Tuwharetoa ki Kawerau have with land subject to this report, has also come from Maori Land Court files. This report does not give an account of the history of the ownership of the Maori land where the sludge system has been established, since no claim has been lodged in that respect. It is anticipated that the proceedings of the larger Wai 62 claim will provide an avenue for any claim about the ownership of the blocks. The issue of pollution and the effect of the sludge pond on the spring also remains unresolved. A suitably qualified person such as an engineer is required to make such a judgement.
Because this report is exploratory in nature only, all interested parties may comment on the information or analysis in, or omitted from, this report. It should be noted that claimants still have the right to amend their statement of claim, despite the release of this report.
The step by step establishment of Tasman's effluent treatment system, on the land subject to this claim, will first be discussed. This is for the reader to use as a reference for the terminology used throughout the report referring to certain sites in the system, and to explain the entire system from its outset to the present time.
Location
The land subject to this claim is at Kawerau, Bay of Plenty. The area is on the west bank of the Tarawera river, while Tasman's mill is to the east of the river. (See Map 1)
Cathy Marr Background to the Tuwharetoa ki Kawerau Raupatu claim 30 June 1991 (Tuwharetoa Ki Kawerau Record of Inquiry, Part 2 Record of Documents, A2(a):1) oMotiti Is
a OJ-
Rurima Is
SH.5 MAP 2
...... Putauaki~ (Mt Edgecombe) .. ,ef «I' Tarawera
o 20km
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MAP LOCALITY MAP
2 Kawerau A8 and other blocks
Background
The site chosen for Tasman's effluent treatment system comprises a catchment basin, beginning at the head with the spring Te Wai U 0 Tuwharetoa. Prior to Tasman leasing parts of this basin area, water from this spring flowed down a stream, into a lake known as Rotoiti paku, then on to the Tarawera river. (See Map 2).
In 1971, Tasman obtained a lease of four Maori owned blocks, in the catchment basin. The four blocks concerned were Kawerau A9, Kawerau All, Matata 39A4 and Matata 160. Tasman attempted to obtain a lease of another block in the basin, Kawerau A8, but the owners (some of whom are claimants) refused to lease.
"Kawerau A8" refers to a large block of approximately 187 hectares. Kawerau A8 was partitioned into Kawerau ASA and ASB by 1981, and that year was allocated the new appellations ASC and ASD.2 (See Map 3).
Kawerau A8C, is a smaller block of 1.77 ha within the larger A8D, and was regazetted as a marae reservation in 1988. At this court sitting, part of A8D was also set aside as an urupa reservation. 3 These reservations were regazetted as reservations already existed over the "A8" block since 1961 at least. When Kawerau A8 went through the court in 19S1 to be partitioned, the blocks were vested in trustees, nominated by a meeting of owners. The three trustees (also owners) were: John Fox, William Savage and Kanui Hunia. 4 The particulars of title from 1980 for the A8 blocks lists 24 owners.5 The spring, Te Wai U 0 Tuwharetoa is situated on the A8D block.
Kawerau A9 lies adjacent to the AS block. Rotoiti paku is situated on this block. In 1970 Kawerau A9 and All, and Matata 39A4 and 160 were vested in New Zealand Insurance Company Limited (NZI) as responsible trustee. This was a result of an application by Tasman. 6 The trust order also nominated seven advisory trustees, who were owners. 7 Isobel Fox (married to John Fox) was one nominated advisory trustee. In 19S0 new advisory trustees were appointed, which included Isobel Fox
2 Whakatane minute book vol 72, 10 July 1981, p256; document bank (db hereafter) pI
3 New Zealand Gazette, No 180, 27 October 1988, p4240; db p2
4 Whakatane minute book vol 72, 19 October 1981, p374; db pp 3-4
5 Particulars of title, certified as correct as at 13 October 1980 for Kawerau A8A and A8B (known as A8C and A8D respectively by an order of the court in 1981); db pp 5-6
6 Application to the Maori Land Court for orders pursuant to ss435, 438 of the Maori Affairs Act 1953, 22 September 1969; db pp 7-8
7 Opotiki minute book vol 45, 15 June 1970, pp 270-280; db p9
3 Kawerau A8 and other blocks
and Beverly Adlam. 8 Tasman began infilling the lake on the A9 block for its sludge pond in 1971.
Within the Matata 39A4 block, are three urupa sites: Waitahanui, Otukoiro and Te Atua Reretahi. In 1976, the three urupa were gazetted as Maori reserves. 9 Waitahanui is situated on a hill that was once an old pa site. This report is particularly concerned with this urupa because according to the records and the claimants, it has been directly threatened by Tasman's actions in the leased area.
It would appear from evidence and orders of the court that many of the owners of the AS block also have shares in other blocks in the basin. 10
Some time prior to 1970, Tasman had been dumping solid waste material between the original Rotoiti paku and the AS block. (See Map 4).
In 1976, in response to complaints by Mr Fox that sludge from the ~ludge pond was encroaching on the AS block, Tasman built a solid embankment on the A9 block between the sludge pond and the AS block. This was apparently built on the solid waste dump.
The embankment was to cause a build up of water on the AS block, which Tasman said it would pump to the Tarawera river. Mr Fox however gave Tasman the authority to allow the water to build up as a lake for duck shooting.
There is a culvert pipe through the embankment that controls the level of the pond on the A8 block.
In response to a complaint that leachate was leaking into the A8 pond from the embankment, a toe drain was constructed at the base of the embankment in 1983.
A petition of grievances was presented to Tasman in 1983 by the advisory trustees of the Kawerau A9 block. 11 One complaint was that an embankment had been built between the sludge lagoon and the hill where the urupa is. This was to stop sludge encroaching on the urupa. The embankment however was said to have been built
8 Whakatane minute book vol 70, 14 April 1980, pp 198-199; db pp 10-11
9 Whakatane minute book vol 63, 25 March 1976, p196; db p12
10 Written evidence of Peter Cumming before the Maori Land Court sitting on 16 January 1985; Application no 2889/84; db p210
11 The petition says that this is on behalf of the beneficial owners of the lands subject to the lease to Tasman, and Tuwharetoa Te Atua Reretahi whanau "(local Tuwharetoa people)"; db p25
4 Kawerau A8 and other blocks
partly on tapu land so a new proposal for protecting the urupa was put to Tasman. This involved moving back the embankment, and creating a water course to run along the bank starting at the A8 pond with the flow and finishing at a small pond to the north of the urupa. This newly created pond was named the urupa lagoon.
The water course from the A8 pond to the urupa lagoon is in addition to another channel flowing from the A8 pond to the urupa lagoon. The toe drain carries leachate to this channel which runs a course to the urupa lagoon. This has the effect of completely surrounding the urupa site with water for protection and aesthetics.
Water from the urupa lagoon containing leachate, until 1991, was then pumped back to the sludge lagoon for treatment. Since 1991 water from the urupa lagoon is pumped directly to a pipe leading to the aeration ponds.
The claim and claimants
This claim was received by the Registrar of the Waitangi Tribunal on 26 April 1985. The claim was filed by John Fox, as chairperson for Tuwharetoa Te Atua Reretahi Trustees. The statement of claim complained that since Tasman's lease of the Rotoiti paku area for the sludge disposal system, the contour of the land had risen, as had the level of the A8 pond. It was alleged that this has put the spring Te Wai U 0 Tuwharetoa in jeopardy. Further, the old Waitahanui pa was in the area leased by Tasman. Mr Fox informed the tribunal that he had lodged an injunction in the Maori Land Court to prevent Tasman from carrying out actions on the leased land which affected the spring and the A8 pond. The injunction was not granted so Mr Fox filed an appeal to the Maori Appellate Court. 12 This appeal has been adjourned sine die.
The Waitangi Tribunal issued a direction on 31 July 1985 for the claim to be registered as Wai 21 and stating that the tribunal was reluctant to consider the claim while it was before the Maori Appellate Court. The claimant was directed to file a more precise statement of claim after the proceedings in the appellate court had been heard. 13
Nothing further was done however until an amended statement of claim was received by the tribunal on 23 October 1992. It claims that legislation passed by the Crown enabled Tasman to erect a dump site, waste ponds and lagoons in the vicinity of Te Wai U 0 Tuwharetoa and the urupa. Those actions, permitted by legislation, were said to prejudice the claimants by altering the natural course of water from the spring, submerging the level of the spring in relation to the surrounding catchment
12 see appendix 1 for the statements of claim
13 see appendix 2 for memorandum-directions of the Waitangi Tribunal
5 o
o \-
1km 1/2mi
Kawerau Township
MAP 2: CLAIM AREA
6 \ \ 200mtrs \ 200yds \ \ \ \ Onepu \ Trig \ \ \ \ \ \ ABO \ (prev. ABB) \ \ \
Urupa Resvn. PtA80
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MAP 3: MARAE AND URUPA
7 o <. 4 aeration ponds (secondary effluent treatment area)
-.--.-. -'-. -._'-. _----1 \ \ original Rotoiti paku \ (now wet \ sludge lagoon) \ \ A9 \ newly-created \ urupa lagoon
--- 'Fox' pond for duck shooting All
AS pond
solid spring X embankment Te Wai U 0 Tuwharetoa
AS
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~
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MAP 4: TASMAN8 DEVELOPM ENT Kawerau A8 and other blocks
area, and contaminating the urupa. 14
The significance of Te Wai U 0 Tuwharetoa and the surrounding catchment area to Tuwharetoa
When the chief Tuwharetoa was still a baby, his parents (Hawaketaupo and Haahuru) resettled on the land that surrounded the Rotoiti paku. On the hill that now forms the urupa and where Tasman has its effluent system, a pa was erected. This pa was named Waitahanui after the river Tuwharetoa was born near. The lake in front of the pa had hot springs flowing into it and an island called Moturoa. Rotoiti paku, and the island, are now located under the sludge pond. The island Moturoa provided food from its trees while the lake had eels and other mahinga kai. 15
Tuwharetoa was still a baby when his parents went away and left him in the care of his grandparents. Tuwharetoa was breast fed at this age and with his mother away, he cried in hunger. His grandmother sent his grandfather away to find something to comfort Tuwharetoa. Tuwharetoa's grandfather went searching and angrily hit the ground with his taiaha and also prayed. From this a spring erupted from the ground. Water from this spring was collected in the grandfather's calabash and taken back to Tuwharetoa. This appeased the baby, with the water's warm temperature being likened to warm breast milk. The new spring was thus named Te Wai U 0 Tuwharetoa (the breast milk of Tuwharetoa).16
Later in life, with three wives and sixteen children, Tuwharetoa continued to live at Waitahanui pa. The lake, Moturoa and the surrounding valley provided an abundance of food. 17
From this time, unti11970, Rotoiti paku was
the source of our existence and our living. This lake was full of eel, big carp and the shell fish kakahi or fresh water pipi that grew big. There were inanga and in the river there were trout as well as an abundance of water cress. The area was rich in food, birds and eggs. We used to get big runs of white bait and of little eels. Everything did well because the water was just that little bit warmer than other places. There were paiwai too (giant eel). They came up the lakes and river looking for springs to settle near. They just stay there and
14 see appendix 1 for the amended statement of claim
15 Albert Te Rire Tuwharetoa tribal history and history of early experiences with Tasman, May 1983; db pSI
16 ibid at db pS2
17 ibid at db pS4
9 Kawerau A8 and other blocks
grow and grow. They used to be about seven feet long and seven inches thick and we had to spear them .....
There were twenty seven houses, all with about ten people each, not counting visitors when I was young. That is about 300 people all the time, and more when we had visitors. We always had plenty of food from that lake. We made traps for the fish and cut the outlet so as to guide the eels and carp into the traps. That was there all the time. Then twice a year there were runs of kaiherehere eels or small silverbelly eels that were caught and preserved ...
We used to walk to Te Teko store to buy our salt, flour, sugar, and tea. That is all we ever bought. The rest came out of the lake and river and our growing. is
There were once warm ground and hot springs on a side of the lake near the now existing steam bores. Kumara were immersed in the springs to hasten sprouting. "Just a small area would sprout a thousand shoots in a fortnight. ,,19 These shoots would then be buried in mud from the lake and would not need watering and grew well. Approximately eight acres of land was used for the early sprouting and early growing. More land was used for the planting. Now, according to Tuwharetoa ki Kawerau members, the kumara can not be immersed in the spring for the early sprouting and they need watering and manure. 20
The Crown's involvement in Tasman
Tasman was registered as an incorporated company in July 1952. At this time the Crown was the major shareholder of TasmanY In 1955 the Crown's shareholding increased by one hundred per cent22 and by 1957, the Crown had three self appointed representatives on the board of directors. 23 It was under these circumstances that an Act was passed permitting the discharge of untreated waste,
18 ibid
19 ibid at db p97
20 ibid at db p55
21 Letter from Tasman to the tribunal, 11 March 1993, para 3; db pp 16-18
22 ibid
23 Letter from AR Entrican, Minister of Forestry, to the Solicitor General, 18 February 1957; db p13
10 Kawerau A8 and other blocks
from the Tasman mills, into the Tarawera river.24
The Tasman Pulp and Paper Company Enabling Act 1954 allowed Tasman to take water from and discharge waste into the Tarawera river. The Minister of Works had to approve the points from which the taking and discharging occurred. The conditions of discharging were not set by legislation but by the Pollution Advisory Council. The company was however permitted by this Act to enter and re-enter upon "any" land. The company could then erect, use and maintain on, over, through, or under that land anything necessary to carry out the powers conferred by the Act on the company (s7). The company was required to give notice to private land holders and the occupiers of that land, but it would appear that this was only where land was occupied (s9). Compensation for land injuriously affected was provided for (sl1), as was indemnity for persons and property damaged by the company (slO(d)).
The effluent treatment system to be installed by Tasman was a two stage treatment process. The proposal was that a clarifier be installed whereby sludge (solid mill waste) from the clarifier was pumped and taken by pipeline to a sludge basin. This comprised primary treatment of the waste, while the secondary treatment provided for aeration ponds to be created which the sludge would flow through prior to its ultimate discharge into the Tarawera river. 25
The system outlined above was in response to new conditions set in 1964 by the Pollution Advisory Council, effective 1 December 1966. The new conditions were set after an investigation of the Tarawera river by the Ministry of Works in the early 1960s.
Lake Rotoiti paku and the surrounding area was the chosen site for the sludge disposal. Negotiations began in 1967 with the owners of the Kawerau A9 and All blocks, and the Matata 39A4 and 990 (formerly 160) blocks. Tasman had intended to lease the A8 block as well, but the A8 owners did not wish for this.26 Meetings continued with the owners of the other four blocks through to 1970. At this stage Fox objected to the proposal where this area would be used for Tasman's sludge. 27 During negotiations Tasman was aware that one and a half acres had been reserved
24 The Crown continued to increase its shareholding in the company to remain the major shareholder. In 1979 however, the Crown sold all of its shares and presumably relinquished its representative membership on the board of directors
25 Written evidence of Barry Ashwin before the Maori Land Court at the 16 January 1985 sitting; db p167
26 Written evidence of Adriaan Slabber before the Maori Land Court sitting (see above); db p180
27 Written evidence of Ashwin (see above); db p167
11 Kawerau A8 and other blocks
by the Maori land court for an urupa. 28
An agreement had been reached between the owners of the A9 block and Tasman by March 1970. The agreement provided that Tasman would lease approximately 190 acres from "the A9 block owners" in return for "various considerations", one being an annual renta1. 29 A deed of lease was entered into on 15 November 1971 by Tasman and NZI. The lease was in respect of the four blocks, with NZI the trustee of all four blocks by the s438 order of the Maori Land Court issued on 15 June 1970. 30
On 11 June 1971, Tasman applied to the Whakatane County Council for consent to a specified departure from the council's proposed district scheme. The specified departure specifically involved Tasman creating the sludge basin on an area within the four blocks, viz: 22 acres of Kawerau A9; 32 acres of Kawerau All; 94 acres of Matata 39A4; 41 acres of Matata 160 (all areas approximate).
The specified departure was also sought in respect of Tasman's proposal to construct an aeration pond. This pond complements the sludge basin. It was proposed that the pond be on an area covering 143 acres of part allotment 332 Parish of Matata, 12 acres of Lake Rotoroa and adjoining Crown land, and 12 acres of part allotments 38 and 238 Parish of MatataY
By this time Tasman already leased those areas proposed for the sludge basin. The areas required for the aeration pond were owned by Tasman, or subject to sale and purchase agreements. 32
The application for specified departure was granted by the council pursuant to s35 of the Town and Country Planning Act 1953 on 26 August 1971. The only condition of the consent was that Tasman pay the costs of ensuring that the property of R E Booker be protected from any nuisance or damage, and that drains carrying water from the property, to the lands where the system would be created, were not impeded. To this end, the company were required to construct an embankment and install a pumping facility to carry the water running in the drains. 33
28 Written evidence of Slabber (see above); db p180
29 Written evidence of Ashwin (see above); db p168
30 Deed of Lease between NZI and Tasman, 15 November 1971; db p66
31 Application by Tasman for consent to specified departure, 11 June 1971; db pp 95-96
32 ibid
33 Letter from the Whakatane District Council to Tasman, 26 August 1971; db pp 97-98
12 Kawerau A8 and other blocks
Tasman began to form the sludge basin on the leased land in 1971. This involved the infilling of Rotoiti paku.
In 1976 Tasman constructed an embankment between the A8 block and the sludge pond on the A9 block to prevent sludge encroaching onto the former. Sludge had spilled three chains over the boundary. This was measured by a Department of Lands and Survey surveyor at the insistence of Matiu Rata, the Minister of Maori Affairs at that time. Mr Fox had complained to his Member of Parliament, who in turn referred the matter to the Minister of Maori Affairs. 34 The Department of Maori Affairs informed Tasman35 of this complaint, resulting in Tasman responding with the proposal to construct an embankment. 36
The embankment had the approval of Fox and the department. 37 Tasman was aware the embankment would interrupt the natural flow of water from the spring, to the A8 block, then onto the Tarawera river. This would result in a build up of water on the A8 block. To prevent this; Tasman proposed to drain the water from the A8 block by installing a pump system which would take the water past the embankment down to the river. According to Tasman, Mr Fox was informed of the consequences of the embankment. 38
On August 19 1976, Mr Fox met with Mr Slabber from Tasman to discuss the installation of the pump. According to Tasman, Mr Fox told Mr Slabber he would prefer the water that would build up on the A8 block to accumulate to create a duck pond. It was agreed that when the desired level was reached, Mr Fox would inform Tasman who would install the pump to maintain that level. 39 Mr Slabber confirmed this agreement in a letter to Mr Fox.40
In 1980 a pump was installed by Tasman to maintain the level the pond had reached. According to Tasman, the level was at 24 metres in June 1980, the level desired by
34 Written evidence of John Fox before the Maori Land Court sitting on 16 January 1985; db p162
35 Letter from the Department of Maori Affairs to Tasman, 10 April 1975; db p99
36 Letter from Tasman to Department of Maori Affairs, 30 April 1975; db p100
37 see footnote 35
38 Written evidence of Slabber before the Maori Land Court (see above); db p180
39 Written evidence of Slabber before the Maori Land Court (see above); db p181
40 Letter from Tasman to Fox, 20 August 1976; db pp 105 and 107
13 Kawerau A8 and other blocks
Mr FOX.41 Later in 1985, Fox could not recall informing Tasman of any preferred level. He particularly relied on the fact that he could not comprehend, in real terms, a measurement of the level. 42
In 1982, a plan was put to the A9 owners for the protection of the urupa. This was in response to sludge rising up against the Waitahanui hillside - considered tapu by the A9 owners. An embankment was proposed, allowing sludge to reach the 100 foot contour mark (30.48m) but preventing encroachment onto the tapu area. This plan was approved by the A9 advisory trustees. 43
On July 4 1983, the A8 trustees wrote to the A9 trustees with complaints of Tasman's sludge pond on the adjacent block. This letter was constructed by Peter Cumming, a retired mathematical physicist working voluntary and part-time for Kaupapa Trust. Kaupapa Trust was a group of professionals working in the field of engineering, tenure and failure analysis. A lot of Mr Cumming's work was in respect of Maori land. 44 The A9 trustees were asked to call Tasman to account for nuisances to the A8 block.
The complaints and remedial action were:
• that Tasman maintain the level of the lake at no less than four feet below its then existing level (24.6 metres),
• that dead vegetation on the shore line and banks of the pond be removed, as well as draining and clearing the land going up to the spring,
• that the sludge area and stopbank (embankment) was hazardous to cattle. Tasman was requested to fence the common boundaries,
• that sodium hydro sulphate had been buried in the embankment, in drums. These drums were decaying so it was requested that the chemical be removed from the area.
• that Tasman construct a drain at the bottom of the embankment to collect any seepage from the embankment or the sludge pond. A pump was then to be installed to take this leachate and return it to the sludge pond or wherever
41 Written evidence of Slabber before the Maori Land Court (see above); db p182
42 Whakatane minute book, vol 77, 16 January 1985, p31; db p229
43 Letter from the trustees of the A9 block to Tasman, 19 March 1982; db pH8
44 Written evidence Peter Cumming before the Maori Land Court (see above); db p208
14 Kawerau A8 and other blocks
suitable. 45
Although John Fox and Kanui Hunia signed the letter, Mr Fox expressed to the Maori Land Court in 1985 that he was not agreeable to the level set in the letter, mainly because he could not identify what the measure meant in real terms. Mr Fox did concede to the court however that he agreed to the level being maintained at no less than four feet below the level it was then. 46
On 27 July 1983, a Petition of Grievances was presented to Tasman from the A9 advisory trustees. Peter Cumming and Beverly Adlam (an advisory trustee of the A9 block) were the negotiating committee appointed for the settlement of the complaints. There were ten specific grievances,47 but from the outset the trustees expressed the following:
• the owners now regretted leasing the 191 acres of the four blocks to Tasman,
• the sludge system was presented to the owners as a way that Tasman could comply with the Pollution Advisory Council's conditions for Tasman to discharge waste into the Tarawera river. Tasman represented to the owners that the sludge system would therefore reduce the pollution of the Tarawera river and that fish life in the river would improve,48
• the owners had leased their land and decided that their food supply from the Rotoiti paku would be traded off for the resurgence of the food supply from the Tarawera river,
• Tasman represented that the Pollution Advisory Council would "probably assist us if we could not get the land ourselves" and "we have to put the solids on your land or put them into the river and the 'powers that be' have decided that they should not be put in the river. ,,49
In the result the owners say they leased the land on the basis of the representations made by Tasman, viz:
45 Letter from the A8 trustees to the A9 trustees (NZI), 4 July 1983; db p101
46 see footnote 42; db p232
47 In the petition of grievances, ten grievances are made out, however in the written evidence of Beverly Adlam before the court in 1985 to hear the application for the injunction, there are said to be nine grievances
48 Petition of grievances, 27 July 1983; db p31
49 ibid at db p30
15 Kawerau A8 and other blocks
• that the sludge disposal would prevent further pollution of the Tarawera river, and that the river would improve;
• that there was no alternative site for the sludge disposal, and that the Pollution Advisory Council supported this site and would help to obtain it in any event. 50
The majority of owners were said in the petition to be very reluctant to enter into the lease but did so for the above reasons.
The owners came to the opinion that representations made by Tasman proved to be untrue. This was owing to what they thought to be the unceasing degradation of the Tarawera river where the food source did not replenish, and there being alternative sites for sludge disposal where there was no clear support from the Pollution Advisory Council for anyone site. A summary of costs of alternative sites given in the petition shows that the A9 site was by far the cheapest option for the company. 51
It was alleged by the A9 trustees that Tasman were responsible for the following ten grievances:
• The formation of a crust on the sludge pond.
• The abdication of the owner's shooting rights on the pond due to the formation of the crust on the pond.
• The dumping of solid waste on the leased land.
• The invasion of the Waitahanui urupa. Sludge and seepage had encroached upon the urupa whereby the owners protested to Tasman. The result of this was the formation of a "rubbish dump/wall" by Tasman between the sludge and the higher parts of the urupa. This wall however covered the road and markers which indicated the boundary of the tapu ground and caused another invasion of a tapu site. A new road, higher up the level of the hill, was excavated and the owners informed Tasman that this in some places encroached up to fifty feet. It was estimated by the owners that this would disturb buried bodies. Work on the road ceased for a short while but was completed by Tasman without the knowledge of the owners. According to the owners, the appearance of the site had deteriorated too. clause 6 of the lease provided that Tasman will protect "any graves of the Maori people and all
50 ibid at db p31
51 ibid at db p32
16 Kawerau A8 and other blocks
historic or sacred places. "52 In negotiations for the lease, it was also made clear by the owners that the site had to be absolutely safe.
To remedy this the owners proposed a plan that was low maintenance so that when the lease terminated, the owners could manage the system of protection. This involved Tasman creating a slow moving river draining the lake on A8. The outfall from the A8 pond was to be controlled by a permanent weir. This waterway would run around the urupa and would be aesthetically pleasing, provide for sludge and other seepage not to end up on the hill site, and the water would come originally from the spring which meets with the tikanga of Tuwharetoa. It was also requested that the height of the sludge lagoon be maintained at a level so that the hill is visible from the surrounding area.
• The removal of earth, clay and pumice from "borrow pits" on the leased land for building earth works.
• Tasman failed to plant trees around the entire parameter of the sludge lagoon, and removed the few trees that were planted at one point on the parameter.
• Tasman failed to supply water to Maori land owners to the west and to the east of the Tarawera river. In March 1979 Maori land owners to the west of the river agreed to Tasman running an overhead power line over their properties in exchange for Tasman increasing the pressure of fresh water supplied to those land owners. According to the petitioners, this undertaking by Tasman was recorded in a letter of 14 March 1979. It was alleged that Tasman did not honour this undertaking with the supply of the water being at a low pressure and erratic. A similar arrangement was entered into for those land owners to the east of the river, where Tasman was granted an easement through their properties. Prior to this arrangement, the local people used the Tarawera river as a water supply but this stopped with the discharge of waste into the river by Tasman. The local people had appealed to Tasman for a satisfactory water supply, but Tasman did not respond until the easement was sought. Since then, it was further alleged that the water supply provided by Tasman to Maori east of the river has been unsatisfactory in pressure and quantity. This included water supply to the marae.
• The subsiding condition of the embankment and the sludge levels. Tasman was said to be negligent in its preparation of the site for the embankment which caused the bank to crack, and leak sludge in 1983. It was claimed that other seepages occurred beside that in 1983.
• Nuisance and damage caused to the A8 land, as specified in the letter to the
52 ibid at db p39
17 Kawerau A8 and other blocks
A9 trustees of 4 July 1983 (see above).
• The formation of an impervious pan on the bottom of the sludge lagoon. This would affect the drainage ability of the land after termination of the lease. The affect of this would depend on the use made of the land, but could lead to a breach of clause 15 of the lease.
Clause 15 provides that Tasman, in the last two years of the lease, will consolidate the sludge into firm ground and either plant the land in pine trees or prepare the land for any agricultural purposes. The impervious pan will make it difficult to both firm up the sludge and may make it impossible to use the land for the two purposes outlined in clause 15.
All of these grievances were claimed to be either direct breaches of the lease, or actions not permitted by the lease.
The complaints of the A8 block owners in the letter of 4 July 1983 was attached to the petition.
A report of 6 October 1983 investigated possible contamination of plants, animals, and fish by the zinc hydro sulphate buried in the embankment next to the sludge lagoon. The report on the tests concluded that the zinc could not pollute the surrounding environment and that it would revert to its natural inert state, if it had not done so already. 53
In November 1983 the Whakatane District Council wrote to the Bay of Plenty Catchment Commission that Fox had complained of a seepage of leachate into the pond on A8 from the bulk waste dump. Council took a sample of leachate. 54 To remedy this, Tasman made provisions for a toe drain from the embankment, in the plans for protecting the urupa. This provision was the same as that suggested by Peter Cummings in the letter of complaints from the A8 trustees to the A9 trustees in 1981. 55 Also in December of 1983, a water sample was taken from the spring which showed there to be no pollution of that water. 56
The request by the A8 owners that the level of the lake be lowered was found by
53 Martin Piper Technical report Zinc, 6 October 1983; db pp 86-94
54 Letter from the Whakatane District Council to Bay of Plenty Catchment Commission, 3 November 1983; db p82
55 Letter from Tasman to the BoP Catchment Commission, 13 December 1983; db p84
56 Water analysis from the pond on the A8 block commissioned by the BoP Catchment Commission, 1 December 1983; db p81
18 Kawerau A8 and other blocks
Tasman to be incompatible with the scheme designed to protect the urupa. 57 It would appear that prior to settling the grievances of the A9 owners, Tasman was aware that the urupa scheme would conflict with the level of the A8 pond demanded by Fox. It was assumed by Tasman however, that the urupa scheme had the support of both the A8 and A9 owners prior to its presentation to Tasman in the petition of grievances. 58 According to Peter Cumming, Mr Fox particularly had been extensively consulted on the proposal to protect the urupa. 59
Between August and December 1983, negotiations were held between the negotiating committee and Tasman to reach a settlement of the complaints in the A9 petition of grievances. Mr Fox was not present at those negotiations. 60
Heads of agreement between Tasman and the A9 trustees
An agreement was entered into between the "Trustees of the Kawerau A9, etc trusts" and Tasman on December 17 1983. It was to be a fInal settlement of the grievances presented by the trustees. A deed of settlement and a deed of variation of the lease were later entered into however, replacing this agreement (clause 17 of the deed of settlement) .
Between the time that the heads of agreement and the final deed of settlement were entered into, Tasman received a number of letters of complaint from counsel acting for Fox. These letters concern claims by Fox that the spring was in danger of being polluted and that the A8 pond was polluted. 61
Tasman replied to these allegations with the opinion that the complaints had been resolved by the heads of agreement reached on the 17 December 1983. Tasman denied that the AS pond was polluted and its water level was rising. Tasman admitted seepage had occurred but said it was only minor and after heavy rain, which was to be remedied by the toe drain. It also gave an assurance that the blocked stream from the spring would be cleared within two months. 62
57 Written evidence of Slabber before the Maori Land Court (see above); db p185
58 Written evidence of Slabber before the Maori Land Court (see above); db p186
59 Written evidence of Cumming before the Maori Land Court (see above); db p217
60 see footnote 42 at p65; db p255
61 see letter from counsel for Fox to Tasman, 23 January 1984; db pp 133-134 is an example of the letters sent to Tasman with Fox's complaints
62 Letter from Tasman to counsel for Fox, 9 February 1984; db pp 135-136
19 Kawerau A8 and other blocks
Meetings and more correspondence was exchanged between Tasman and counsel for Mr Fox. During this time Mr Fox made it clear to Tasman that he wanted the land restored to its natural state. A meeting was set down for the 16 April 1984 at the instigation of the A9 trustees, for both block trustees and Tasman. 63 At the meeting full discussions were held but no resolutions were reached. 64
The complaints finally ended with Fox making an application to the court for an injunction against Tasman, on 2 October 1984.
Deed of settlement
On 31 October 1984, a deed of settlement was entered into between New Zealand Guardian Trust Company Limited (responsible trustees for all four leased blocks to Tasman) and Tasman. 65
The terms of the settlement required Tasman to remedy all those complaints made in the petition of grievances, mostly in the form demanded by the negotiating committee. Of particular relevance are the clauses pertaining to the urupa and the A8 block:
• Tasman were to implement the plan to protect the urupa, outlined in the petition of grievances. This was to be in close consultation with the trustees of the A9 block ("parties" as in clause 8 and see clause 10). This obligation extends 10 years past the termination of the lease, or as long as Tasman holds its right of way (see paragraph below), the longer option of the two applying.
• Tasman were granted the right, at the termination of the lease, to use roads existing on the leased lands. This right only applies in connection with Tasman's use of its oxidation pond area (see clause 9 and proviso).
• Tasman agreed to clear the dead vegetation around the pond on the A8 block and that around the pond extending up to the spring (see clause 12).
• During the term of the lease, Tasman were to keep the level of the pond on the A8 block at a level to be agreed, but not higher than two feet below its present level (see clause 12).
• Tasman was to install a toe drain at the base of the "A8 embankment" (see
63 Letter to counsel for Fox from Tasman, 6 April 1984; db p140
64 Written evidence of Slabber (see above); db p189
65 Deed of settlement, 31 October 1984; db pp 153-158
20 Kawerau A8 and other blocks
clause 12).
The deed of variation of the lease
This was between Tasman, the trustees (New Zealand Guardian Trust Company Limited) and the "advisory trustees of the Maori freehold land known as Kawerau A9*" . 66 This deed amended the lease so that the remedies and other provisions in the deed of settlement did not conflict with the original lease agreement.
The application for the injunction
In the application to the Maori Land Court for the injunction against Tasman for actions on or affecting the A8C and A8D blocks, it was alleged that Tasman was responsible for:
• the blocking of the natural flow of the "springs",
• the creation of a lagoon (the A8 pond),
• the destruction of the natural state of the land,
• the nuisance and pollution to the land caused by the adjacent waste dump,
• the creation of an embankment and bulk waste dump on the boundary of the blocks.
The injunction was applied for on the grounds that consent had not been given by the Maori Land Court, the trustees of the blocks, or the owners, for Tasman's actions on or affecting the A8 block. 67
Tasman denied the allegations made in Fox's application on the grounds that in or about August 1976 and times after this, the trustees of the A8C and A8D blocks, acting through Fox, expressly or impliedly consented to the creation of the A8 pond and other alterations to the land. Tasman also alleged that it had always been willing to consider complaints by Fox in respect of its activities on the blocks. In support of this contention the statement said that Tasman and the trustees of the A8 block had held a meeting in April 1984 to discuss complaints. After this meeting the trustees filed a claim for damages against Tasman, but discussions did not proceed
66 The he asterisk refers to the other three blocks which Tasman leases for its sludge pond according to the deed of variation of the lease
67 Application to the Maori Land Court, Waiariki District, 2 October 1984, by John Fox; db p147
21 Kawerau A8 and other blocks
because Fox failed to provide the full particulars of the compliant. 68
On 16 January 1985, the Maori Land Court sat at Whakatane to hear the application.
The major issues before the court can be found in appendix 2 to this report.
The court found that the embankment on the A9 land was erected to prevent sludge from the A9 sludge pond encroaching onto the A8 block. At this stage the water collecting on the A8 block was increased to form the now larger pond. This was found to be at the request of Mr Fox. Mr Fox admitted to the court that the pond would be desirable for duck shooting. The judge made the comment "[b Jut his main concern has obviously been the spring. "69 It was held however that Mr Fox's representations to Tasman to maintain the level of the pond induced Tasman to make changes to the land (pumps being installed), enter into a new agreement with the owners of the A9 block, and attempt to remedy grievances held by Tuwharetoa people as a whole. Such actions by Fox in the first place were found to prevent Fox from further proceedings against Tasman. 70
As to the allegation that the embankment was encroaching onto the A8 block, the court found that the surveyor's evidence showed the embankment to be entirely within the A9 block.71
The court finally held that Mr Fox had not shown the blocking of the natural and free flow of the springs to have not been "at least with his tacit consent, I go further than that and say that it was originally and has continued with his explicit consent. ,,72
The same finding applied to the second ground relied upon for the injunction, with the destruction of the natural state of the land being a consequence of the build up of water. The build up of water was a result of the erection of the stopbank, which was also found to have been with the consent of Fox.73
The nuisance and pollution allegations were found to be not made out from the
68 Statement of defence filed by Tasman in the matter of the application by John Fox for an injunction against Tasman, 18 November 1984; db pp328-329
69 see footnote 42 at p98; db p288
70 ibid at pp 99-101; db pp 289-291
71 ibid at p99; db p289
72 ibid at p100; db p290
73 ibid
22 Kawerau A8 and other blocks
evidence given by Mr Cumming. 74
The evidence to support the application being unavailable to the court, the judge dismissed the application.
Application for permits to divert and discharge water
On 19 December 1991 the Bay of Plenty (BoP) Regional Council heard an application by Tasman for a permit to divert water from the urupa lagoon and a permit to discharge water to the Tarawera river.
From the time that the proposal for the protection of the urupa was implemented, water from the AS pond flowed down a human made channel, lying between the urupa and the sludge lagoon, into the urupa lagoon. This water was in tum pumped back to the sludge lagoon.
Commencing March 1991, (in anticipation of being granted the water permits) water was diverted (by pump) from the urupa lagoon to the drain leading to the aeration ponds. The benefit of this was an increase in hydraulic retention time in the aeration ponds. This was achieved by the urupa lagoon water no longer passing through the sludge pond and collecting solids. In effect, less solid waste and water flowed into the ponds by diverting water from the lagoon to the pipe leading to the aeration pond.
The diverted water from the urupa lagoon was then to be discharged into the Tarawera river, according to the application.
Water levels and quality
At the time of the application, the minimum level of the culvert (which controls the level of the AS pond) was 23.43m. To ensure that the water from the AS pond does not flow back upstream to the spring, the culvert was said to allow at least a one metre fall between the spring and the pond. In the unlikely event that the culvert could not handle the flow of the AS pond, the water would overflow at the lowest point of the pond - 36cm below the spring outlet.
The culvert for the Urupa lagoon maintains the minimum level at 22.Sm. According to the regional council report this keeps the level below that of the AS pond, which is necessary to maintain the AS level. For this reason, a condition of the permit to divert was that the maximum level of the urupa lagoon be 23. 36m, and the minimum level be 22.5m.
74 ibid
23 Kawerau A8 and other blocks
Water from five sites in the sludge basin was analyzed for the application:
• the spring water was relatively free from contamination,
• water at the outlet of the A8 pond was almost the same as the spring water,
• water at the toe drain indicated that the decayed material from the dump site and the sludge lagoon were excreting dissolved substances,
• water at the Urupa lagoon and its pump station was found have higher presence of the tested chemicals than the water from the A8 pond. It was concluded that this was from the leachate from the toe drain and any leachate seeping from the sludge lagoon. The increase in the chemicals was thought to be minor therefore the water was suitable for discharge to the Tarawera river.
Water from the Tarawera river was also tested and it was found that the water was not too different in quality to that from the Urupa lagoon.
Objections to the granting of the permits
Four objections to the application were received by the regional council. Mr and Mrs Fox were one party that objected on behalf of "the owners and trustees of Ngati Tuwharetoa as a whole. ,,75 No other members of Tuwharetoa objected to council regarding the application.
Mr and Mrs Fox objected to Tasman "dumping their sludge wastes into the Tarawera River opposite Te Kopua Cemetery at Onepu. Not from the oxidation ponds. ,,76
Mr and Mrs Fox particularly objected to Tasman allegedly failing to consult or notify the owners of Kawerau A8C and A8D (the "A8" block) of changes to the sludge system effected by the application. Specifically the owners were not consulted or notified regarding the pipeline that was already discharging water into the Tarawera river "from their sludge pond. "77 Mr and Mrs Fox further objected to Tasman "using the spring water as a cover up on their sludge. "78 In their objection
75 Bay of Plenty Regional Council report on the application by Tasman for permits to discharge and divert water, 19 December 1991, file reference 1370 022764; db p321 para 7.2
76 ibid
77 ibid at para 7.2.1
78 ibid at para 7.2.2
24 Kawerau A8 and other blocks
they stated that "Maori issues are undermined and disregarded" and that such a use of the spring water is a "slur on Maori tanga. ,,79
The council made the following findings on the claimants' objections:
• it was not within council's jurisdiction to prevent Tasman from constructing the pipeline from the Urupa lagoon to the river until the application for the permit to discharge has been made. The regional council had ordered Tasman to stop discharging from this pipe, into the river, which Tasman complied with. 80
• at no point had the discharge from the pipe contained sludge from the sludge lagoon. 81
• the claimants and other objectors were concerned for the spring water and the Urupa lagoon water going to the Tarawera river. Objectors were concerned that the water from the Urupa lagoon would be increasingly contaminated by sludge seeping from the sludge lagoon, and leachate from the toe drain.
• as to the above concern for the spring, it was found that the spring water flowing to the Tarawera river, as under the permit, would remove it from the sludge system. This would also improve the effluent treatment system with less water flowing around the treatment ponds. 82
• Tasman were to pump the leachate to the waste treatment system. Seepage collecting in the Urupa channel from the sludge lagoon, was however not considered to be of a quality which would contaminate the river. Rather it "appears to be a localised visual impact in the Urupa Channel itself. "83 As this was a problem which would not affect the river under the permit, Tasman would be required to address this outside the conditions of the permits. 84
• the seepage from the sludge lagoon into the Urupa channel was however,
79 ibid
80 ibid at db p323 para 8.2
81 ibid at db p324 para 8.3
82 Hearing committee report on the hearing of the application for pennits by Tasman, 20 February 1992. file reference 12TO 02 2T64; db p303 para 9.2
83 see footnote 75 at db p324 para 8.3.2
84 see footnote 75 at db p325 8.10
25 Kawerau A8 and other blocks
considered to be insensitive to Maori cultural values, as well as the localised contamination. To curb this problem, Tasman agreed to create a "cut off channel to intercept leachate and form a buffer zone between the sludge lagoon and the Urupa Channel where no sludge will be dumped. "85
• Mr and Mrs Fox informed the regional council that they were content with Tasman's plans when they realised the water entering the river was originating from the spring, and not waste from the mill. 86
Council granted the permits with a number of conditions. The conditions of the permit to discharge, relevant to the objections made to council are:
• that Tasman is to monitor water quality each January and July of every year for the term of the permit to discharge water (the water was to be checked for 12 parameters stipulated by council).
• that Tasman is to divert all leachate from the toe drain and surrounding land (at the base of the embankment between the A8 pond and the sludge lagoon).
• that Tasman extend this toe drain to collect leachate from the entire embankment between the A8 pond and the sludge lagoon.
• that the level of the leachate in this toe drain remains below the level of the A8 pond.
• that the term of the permit expires on 30 November 2002.
The relevant conditions of the permit to divert are:
• that the maximum and minimum water level of the urupa lagoon be the same as it had been in the past (measurements as above)
• that the permit shall expire on 30 November 2002.
Issues
This report does not review any recent findings made by the Maori Land Court. The tribunal found in the Orakei Report that its jurisdiction did not extend to review decisions of other judicial bodies. Rather, issues are discussed in the context of the Treaty of Waitangi.
85 see footnote 75 at db p326 para 9.3
86 see footnote 82 at db p301 para 8.1
26 Kawerau A8 and other blocks
1. The claimants have made complaints in respect of an entire catchment area, including blocks not in their legal ownership. This suggests that they are claiming mana whenua over the entire area, as descendants of Tuwharetoa. The claimants are asserting rangatiratanga over the entire catchment area in this way. It appears from the facts however that there may be some contest within Tuwharetoa ki Kawerau over who can represent the iwi in their dealings with Tasman. 87 To what extent then does the Treaty provide for recognition of rangatiratanga, based on whakapapa and mana whenua, in contrast to the individualisation of title to the land in the basin?
1.1 It may be relevant to the above issue what provisions were made for the Native Land Court to recognise the mana whenua and rangatiratanga claimed by the claimants over the tribal lands, and other taonga, in the catchment basin?
Evidence has been put before the Maori Land Court by various members of Ngati Tuwharetoa of the significance of the catchment area to the tribe as a whole. Arguably the land in the catchment basin is so significant that it should not have been partitioned into blocks, with titles allocated to individuals from the tribe as owners of those blocks.
The practice of individualising title to tribal land was of course at the instigation of the Crown, through legislation constituting a Native Land Court, in the late 19th century. In the Pouakani Report, the Waitangi Tribunal referred to the Commission on Native Land Laws 1891. The commission found that tribal title to lands was capable under the Native Land Acts 1865, but the practice of the court was to instead put ten owners on the title. According to the commission, the effects of this practice was that the "old public and tribal method of purchase was finally discarded for private and individual dealings .. All the power of the natural leaders of the Maori people was undermined .. ,,88
In the present case, after the partitioning and allocation of the blocks to a number of owners, most of the blocks have been vested in trustees pursuant to s438 of the Maori Affairs Act 1953. It may need to be determined whether:
• the s438 trust created for the A9 and other blocks ensure to the claimants their rangatiratanga over the land held in trust?
87 This issue of representivity may need to be dealt with in the Maori Land Court which can now hear such issues pursuant to the recently passed Te Ture Whenua Maori Act 1993
88 Pouakani Report 1993 (Wellington, 1993) pp 227-228
27 Kawerau A8 and other blocks
• the order declaring the trusts acknowledges the existence of the waahi tapu on the land in the trust?
Addressing the first sub-issue above, it sometimes occurs that trusts established to administer Maori land, reflect the tribal structure. In the present case, Tasman was the applicant to the court to substitute the Maori Trustee as trustee, and vest the four blocks in NZI. The reason for Tasman's close involvement may have been their desire to lease the four blocks, which occurred the following year. Provision was made for tribal rangatiratanga by way of appointing advisory trustees. These were nominated from owners listed on the title. Isobel Fox, a claimant, was one of these. The trust order of the court, provided NZI with the discretion to lease the block to Tasman. 89 The power to alienate to Tasman had to be confirmed by a Queen's counsel, and not by any resolution from either the owners or the tribe. Other wide powers existed for the trustee, with no provision for either the owners or the advisory trustees to fetter those powers.
When considering the second sub-issue, the trusts created did provide that burial sites, "and all historic or sacred places in or upon the land" were to be protected. 9O This provision appears at odds with the plans that Tasman held in respect of the Rotoiti paku. This is based on the evidence presented in court sittings as to the historical importance of the lake and surrounding areas, as well as a food source for the tribe since Tuwharetoa's settlement there.
1.2 Consultation with iwi is often an indication of the extent to which an iwi's rangatiratanga is being recognised. Meetings and correspondence between Tasman and the claimants concerning the A8 and A9 blocks in particular, has been continual. Tasman had a legal obligation to consult with the A8 owners concerning its actions on A8, otherwise their actions would amount to trespass. Below is a synopsis of Tasman's consultations with the claimants and other members of the iwi concerning the catchment basin.
• the pond on the A8 block may have been created with the approval of Mr Fox, but he was only required to consider this option when Tasman built the embankment to prevent sludge encroaching on the A8 block.
• Tasman was repeatedly asked to lower the level of the A8 pond. This request became particularly frustrating for Mr Fox for it appears that he was asked to agree to various levels, set by Tasman or Cumming, which he could not
89 Deed of lease, 15 November 1971, db p66 and see order declaring trusts, Rotorua minute book vol 175, 22 April 1974, p16, db p331
90 ibid
28 Kawerau A8 and other blocks
comprehend. Mr Fox told the court at the 1985 sitting he could not have agreed to the level set by Cumming in the 1983 letter of complaints, because he could not understand the measurements in real terms.
• Mr Fox was said to have been consulted when plans were made for the scheme to protect the urupa. He was also said to have been consulted prior to the execution of the heads of agreement and was present for the signing of this agreement. The final settlement however, was in the deed of settlement, executed almost one year later.
• Fox was not involved in the negotiations for the deed of settlement which was supposed to be the final settlement of all the complaints of the Tuwharetoa ki Kawerau. It may be that the failure to include Mr Fox resulted in Fox later disagreeing with some provisions in the deed of settlement, and the provisions for the urupa and the A8 pond level being incompatible. It would appear that the disagreement was foreseeable considering that between the time of the presentation of the petition of grievances, and the deed of settlement, there was much correspondence (see pp 11-14) between Tasman and Fox alerting Tasman to Fox's concerns. Despite this, Tasman and the A9 trustees told the court in 1985 that they assumed Mr Fox agreed with the negotiating committee settling the grievances of the whole iwi. It is difficult to see how both the A9 trustees and Tasman could have assumed this when Fox was writing to Tasman with complaints culminating in his application for the injunction only 29 days before the deed of settlement was executed.
• The fact that the urupa scheme and the level of the A8 pond desired by Fox were incompatible, particularly stands out since Mr Fox had represented to all interested parties that the level of the A8 pond was a major concern to the claimants, and it remains so. The provision for the level in the deed of settlement stipulates a level "to be agreed", but it appears that since no agreement was reached, the level remained at the one in existence. Attention was given to this issue in the 1985 court sitting, but counsel for Tasman concentrated on Fox agreeing to the level set in the 1983 letter of compliant from the A8 trustees (see above at pI8). The deed of settlement was of course executed in 1984, so an agreement to the level should have been reached subsequent to this.
2. How is the Crown implicated in this claim?
It is claimed that the claimants have been prejudiced by legislation of the Crown which permitted Tasman to carry out its sludge disposal system on important Tuwharetoa land.
2.1 As said above, Maori land legislation and policy may have contributed to a failing to acknowledge the important cultural and historical significance of the
29 Kawerau A8 and other blocks
catchment basin. The issue that arises from an examination of the legislation is:
• what provision was there in legislation for preserving sites that were central to a tribe, such as this, from being partitioned and individualised?
In 1987 the Maori Appellate Court discussed Crown policy and legislation regarding Maori reservations since their inception in the 1860s. There the court said
Then the Native Land Acts of 1862 and 1865, which established the Maori Land Court, introduced that which for Maoridom was as novel as it was, at the time, unwanted, namely the individualisation of tribal estates by the award of certificates of title. It was nonetheless provided that the Court might declare some titles inalienable. 91
The Native Land Act 1909 was said to have enforced the settler policy of the time, which was the individualisation of all titles and removal of the restrictions on alienating Maori lands. This Act did however recognise
that some areas had special significance and ought to be protected - sacred ares ranging from burial grounds to mountains, and areas offering a communal facility ranging from water springs to marae. 1192
Such areas were provided for in the legislation and were to known as Maori reservations. These ares were inalienable and allowed for the tribal holding of the land affected. 93
In the present case, various parts of the basin have been set aside as reservations for the purposes of marae and urupa. The question that remains is whether the entire area should have been designated reserve land and, therefore inalienable, in light of its significance to Ngati Tuwharetoa ki Kawerau.
2.2 The Tasman Pulp and Paper Enabling Act 1954 was the initial legislation which permitted Tasman to discharge its waste into the river. Tasman has appeared to have enjoyed wide powers under this Act and was not restricted by any regime except conditions imposed by the Pollution Advisory Council.
91 Gisborne Appellate Court minute book vol 32, 19 June 1986, pp 217-249; db p349
92 ibid at db p350
93 ibid
30 Kawerau A8 and other blocks
In the petition of grievances, members of Ngati Tuwharetoa considered that leasing their land to Tasman would improve the condition of the Tarawera river which was considered to be polluted from Tasman's discharge. In light of this claim, these questions may need to be considered:
• was the Crown negligent under its Treaty duties, for passing legislation that desecrated the river according to the local Maori?
• was the Pollution Advisory Council, as a regulatory body acting for the Crown, aware that the Tarawera River was central to local Maori land owners?
• if it was, has it implicated the Crown in a breach of the treaty by failing to impose conditions on the discharging, to protect the river from Tasman's waste?
When considering these issues, the Pollution Advisory Council's actions can only implicate the Crown if it can be shown that it was an agent of the Crown. This is because of the tribunal's jurisdiction being confined to Crown actions. Peter Hogg is a New Zealand professor oflaw at York University in Toronto, and has published on the subject of the liability of the Crown. 94 Hogg refers to a common law test to decide whether a public corporation is an agent of the Crown. This is known as the "control test" which says whether a public body is an agent of the Crown depends on "the nature and degree of control which the Crown exercises over it. "95 Where a minister of the Crown controls the body in a similar way to a government department, then the body is considered an agent of the Crown. Precedent cases show that there are no decisive rules when applying this test. Rather, the courts prefer to rely on the more vague "nature and degree of control" test. Hogg does however say that the test makes the distinction between de jure and de facto control where the former is the rule. It is necessary then to look to the public body's empowering statute to see if it is statutorily controlled by a minister of the Crown. It is apparent however that "the tendency of the decisions is to require a high degree of control; in other words, the tendency of the decisions is against the finding of the Crown -agent status. "96 Hogg however says that the reason for this is the courts' reluctance to extend the ambit of protection which the Crown enjoys, to other bodies. Indeed, the decisions discussed by Hogg feature various bodies seeking to rely on Crown immunity.lt would appear then that the courts have been making
94 PW Hogg Liability of the Crown (2nd edition, Toronto, 1989)
95 this is has become standard formulae in the Canadian courts, see for example Westeel Rosco v Board of Governors of South Sask. [sic] Hospital Centre [1977] 2SCR 238, at p249-250, as quoted by Hogg ibid
96 Hogg at p251
31 Kawerau A8 and other blocks
policy decisions which are a feature of public or administrative law.
Applying the test to the Pollution Advisory Council, the empowering statute for the council provided that it have eleven members with its own chair and deputy chairperson. The chair and deputy chair were appointed by the governor general on the recommendation of the Minister for Marine. It is however difficult to discern from the Act in whom the de jure control of the council was vested. The council appears to have been vested with some "independent discretion" despite its main function being to report to the minister on ways of preventing and reducing pollution to waters. 97 While Hogg concludes that such a measure of independent control will negate the body being the Crown's agent, there are facts which may mean that the control test need not be applied so stringently.
Firstly, there is the context in which this claim arises, which appears distinguishable from the facts of the precedent cases where the test was strictly applied. In the present case the assertion that the Pollution Advisory Council is a Crown agent is not being made so that the council can seek Crown immunity. Rather, if it is found to be a Crown agent, then the council will also have incurred the Crown's duty to establish and maintain environmental standards. This distinction may mean that the policy reasons behind the control test, become less relevant. Secondly, the present situation is against the background of the Treaty of Waitangi where Maori gave to the Crown, the power to govern over New Zealand. The power to govern obviously extended to the Crown acting as a regulator of discharges into the environment, which the Crown assumed, as evidenced by Acts such as the Waters Pollution Act 1953. If the Crown can absolve itself from this duty, by relying on the control test, it may at worst be a breach of the treaty. It would appear to be the Crown using a rather obscure legal test to avoid its duties to protect the environment.
Sharyn Green May 1993
97 Waters Pollution Act 1953, s14
32 Kawerau A8 and other blocks
Appendices to the report
1. Statement of claims from the John Fox and others on behalf of Tuwharetoa Te Atua Reretahi Trust Board, 23 April 1985 and 23 October 1992 (date received by tribunal)
2. Memorandum - directions of the Waitangi Tribunal, 31 July 1985 and 6 October 1992
3. Synopsis of major issues before the Maori Land Court at the hearing for the application for an injunction against Tasman, Whakatane minute book, 16 January 1985, vol 77 p31
4. Terms of Commission
33 l (, IUI"' I WAI ~I ,-j TU:iHLRETOA TE ATUA RERErl'AHI TRUSTEES. P.O.Box 158, Spencer Avenue, Kawerau. MR R • Bl-iRBER ,HON SECRSTARY, 23 April 1985. \;','AIT,ANGI TRIBUNAL, PRIV1>-TE BAG, CE~TRAL POST OFFICE, '.NELLINGTON.
hlR BARBER. E hoa tena ra koe, ara kuutou katoa o te 'Nai tangi Tribunal e noho mai na iroto i nga manaakitanga a to tatou Kaihanga. I am writing you this letter with the sincere hope that you of the Tribunal may find your way clear to help me against the Giant ~asman CompanYI established here in Kawerau. I am an elder of the Tuwharetoa tribe here in Kawerau. I am 64 years of age and one of the major land holders here. 'T.'he naming of the town here I fought through the editorial columns. "'he Tasman Company le8sed an are8 of approximately 120 acres for their tr8de wastes. This area was once a huge lake called.Rotoiti Paku, Fed from an ancestral spiing on my property. The name of the spring is UTe Vfai U C Tuwharetoa" and has an output of one million gallons a day.24 hI'S. Since the taking over of this lake area 22 years ago the contour of their area is now well above the surrounding area, including of course my property. They have created a lagoon down from the ancestral sprlng on my land. To dispose or to keep the present level, which is about 22 feet from its original, the Tasman company has pumps, lifting the water up to their present fill. I lodged an Injunction through the Maorl Land Court restraining them from raising the level of the waters on my property. Tasman had raised the level and the Court ruled in their favour. Te ~ai U is in jeopardy as the level maintained by the pumps is a bare 1 Metre below. From the Rotoiti Paleu lake the water used to flow into the Tarawera River, In the midst of the area taken by the Company is the"';! ai tahnnui Pau vvhere Tuwharete.a, known as Manai' a as a babe was brought i':p. My solicitor has loged and Appeal to the Maori Land Court and is awaiting confirm- ation. Trusting to hear from you, Kia Ora
\, \ \. CIQlm WAI21(0) rEMENT OF CLAIM FILED BY MR J.H. FOX ON BEHALf OF TUWHAREToA TE ~TUA _~J
RERETAHI TRUST ROARD~
w~ CLAIM to be prejudicially affected by the actions and legislation of
the Crown in r~~pect of our ancestral
Tuwharetoa~ a~ our Urupa.
THAT legislation passed by the Crown namely:
CONSERVATION ACT 1967:
allowed the Tasman Pulp and Paper Mill to do the following:
(i) : Create a dumpi ng si te for Tasman ~ s wa,ste in the local i ty of t,...•• ;:;".
U 0 Tuwharetoa and an Urupa.
) Cr~ate Lagoons and Ponds in the locality of Te Wai U 0 Tuwharetoa
and alter the intended levels of those Lagoons and Ponds. i1) Alter the natural course of Te Wai U 0 Tuwharetoa with the spring
no longer ~lowing into the Tarawera River.
:rI-lAT The above actions of Tasman Pulp and Paper Mill as permitted by
the legislation 'of' the Crown did prejudicially affect Te Wai U D
Tuwharetoa by:~
(i ) : Submerging the level by approximately four feet of the site of Te
Wai U 0 Tuwharetoa, compared with the surrounding Ponds, Lagoons,
and Dump site.
Causing the natural course of Te Waui U 0 Tuwhareota to be altered
where the water from the Ancertral Spring was diverted to Tasman~s
0:-: i dati on Ponds.
w~ FURTHER CLAIM: that legislation oassed by the Crown namely "THE
RESOURCE MANAGEMENT ACT, 1991, did continue to allow the Tasman Pulp
and Paper Mill Co. to do the following:
(1) : for Tasman's waste in the locality of Te Wai
U 0 TU\E-Jharetoa Urupa.
Create Lagoons in the "oc""l; tv of Te Wai U 0 Tuwharetoa an~'nnds~ .~ -35 -, ~ .7 J , . ',;-
~~\A'u.w~ te-v~~ oy-IW- Uv"'11~ La.!P'VI t:o~" cd n· %0"", (o'I{Ax.~\wU) ~ ~al~~.IS~ (~~I~~ ~J; cJ~tit~:.f&rptJ~;Ff.O'~Uvt waid ~~ . i i): Al ter the ~uraI course of Te Wai U 0 Tuwharetoa ~"i th the spring .~
no longer ~~ing into the Tarawera River.
WE C,=-AIt1 That the above acti ons pel~mi tted by liTHE RESOURCE r'1ANAGEI'-1ENT
ACT~ 1991", are causing the degradation of Te Wai U 0 Tuwharetoa and the
Urupa~ namely:
(i): Submerging the level of Te Wai U 0 Tuwharetoa by approximately
four (4) feet from what it was originally;
(i i) : The immediate and prospective contamination of Te Wai U O·
Tuwharetoa.; !
:1;1 ;, 1 ): The contamination of the Urupa by dumping waste near this sacred
i 9 n ed ••• III II II 1::1 • .a a ••• III •• III III • III III • III III III III III III III III .. " • N
~.'1 flu2. 6dJ ~\~ ~W ~~Vlo. A76'4-\~
\;) ~\lcw ~. Ia~~ f~.w f~ fvkU L~ ~ MJJu~A LZ Ou t' iL~. (,..'\ ~ p(OXrM~'z1 to -tt-...a. Uvufct .b~ Ol- ---1- ~~ ~ (} v-""~e h""
~ ..
36 DEPARTMENT OF JUSTICE TRIBUNALS DIVISION Private Bag. Postal Centre. Wellington DAT ABAN K HOUSE Telephone 721 709 175 The Terrace
In reply. please quote
WAI 21
31 July 1985
Chairman Tuwharetoa Te Atua Reretahi Trustees Box 158 Spencer-Avenue KAWERAU
Attention: Mr J H Fox
Dear Mr Fox
W.AITANGI TRIBUNAL - CLAIM: GIANT TASMAN COMPANY WAI 21
Further to Miss Murrays letter of 6'May 1085.
Your claim was put before the Chairman of the Tribunal and his direction is as follows:
~That he is reluctant to consider the claim while it is before the Maori Appellate Court, but if there is a matter of urg~ncy, your solicitor should file a submis sion setting out why it might, be dealt with npw and even although it is before a Court.
If, ,after the Appellate Court decision, you still wish to pursue your claim to the Tribunal your solicitor should file a more precise statement of claim (there is no set form) if, in his opinion, the matter might be one within section 6 of the Treaty of Waitangi Act 1975."
The Tasman Company and the New Zealand Forest Service will be sent a copy of your claim together with a copy of this letter.
Yours faithfully
N ·t~O(C:O r'-",",-~. Norma OIConnor (Mrs) for Registrar Waitangi Tribunal 37 :2, I
WAITANGI TRIBUNAL
Wai 21
CONCERNING the Treaty of Waitangi Act 1975
a claim by J H Fox for Tuwharetoa Te Atua Reretahi Trust Board relating to Te Wai U 0 Tuwharetoa
MEMORANDUM-DIRECTIONS OF TRIBUNAL
The Tribunal has received a further statement of claim Mr Fox ' setting out the particulars of his complaint. The Registrar will please note this amendment in the Register of claims and note that it was received on 23 October 1992.
The Director will please arrange for a Tribunal researcher to be commissioned to prepare an exploratory report on this matter . . . . When thai'report is completed it is to be distributed to those affected and further directions will then be considered. Copies of the claim and this direction are to be sent to: Crown Law Office Treaty of Waitangi Policy Unit Tasman Pulp and Paper Mill Bay of Plenty Regional Council Wai 62 claimants DATED at Wellington this day of October 1992
Chi Chairperson WAITANGI TRIBUNAL
38 Kawerau A8 and other blocks
Appendix 3
• Did Mr Fox consent to the establishment of the embankment on the A9 land to stop sludge flowing from that block onto the A8 block, in 1975-76?
Mr Fox consulted with Department of Maori Affairs and confirmed to the court that he consented to the erection of the embankment.
• Did Mr Fox comprehend at the time that the embankment would alter the natural flow and course of the spring water to the extent that Tasman proposed to install pumps to take the water, past the embankment, down to the river?
Mr Fox told the court he recalled this proposal.
• When it came to install the pumps in August 1976, did Mr Fox express to two representatives of Tasman that he would like the water to build up to form a pond on the A8 block?
Mr Fox agreed to this, but disagreed with counsel over the conditions for the establishment of the pond. Mr Fox was particularly insistent that he had only agreed to the level of the pond where it was above that of the sludge pond as this level would allow the flow to be maintained to the Tarawera river. When counsel tried to extract a measure of the level which Mr Fox had agreed to, Fox replied that he had difficulty comprehending the measurement in real terms. Counsel also asked Mr Fox if Tasman installed the pump in 1980 to maintain the level at that desired by Fox. Fox replied that he could not recall agreeing to the level in the first place.
• Did Mr Fox agree to the level set in the letter from the A8 trustees to the A9 trustees sent in July 1983 (and later attached to the petition of grievances).
Mr Fox told the court that he agreed to the everything in the letter with the exception of the levels of the pond. Mr Fox did concede though that he had agreed to the level not being less than four feet below the existing level.
• Did Mr Fox agree to the proposal to protect the urupa, as outlined in the petition of grievances presented to Tasman by the A9 trustees?
Prior to the presentation of the urupa scheme to Tasman (in the petition of grievance), according to Peter Cumming the owners of the A8, the A9 and other leased blocks were consulted for the scheme. Mr Fox particularly was said to have given assistance to Cumming in devising the scheme. According to Cumming, the scheme's provision for the level of the A8 pond was agreed
39 Kawerau A8 and other blocks
to by Fox. 98 After the presentation of the petition of grievances at the rounds of negotiations for their settlement, the urupa protection scheme was discussed. Fox however was not involved in these discussions. 99 Neither was he present for the discussions leading to the variation of the lease and the deed of settlement. 100 Mr Fox did read the agreement before it was signed by the Maori party as he advised his wife (a trustee for the A9 block) to sign. 101
The agreement reached between Tasman and the A9 and other block trustees also meant that the pond would remain on A8 but Mr Fox told the court that he did not understand this to be so. Mr Fox said he had wanted the pond drained and the land restored to its natural state as from 1976. Fox agreed with counsel that the first time Tasman were aware of this would have been at the meetings with Tasman at the beginning of 1984.102
According to Beverly Adlam (negotiating committee member and an advisory trustee for the A9 block) the petition of grievances represented the grievances of the A9 owners and also the Tuwharetoa people. The wider group was consulted since there were also actions by Tasman on the blocks adjacent to the A9 block, and it was intended that all the grievances would be settled once and for all. 103
• Why were the A8 owners not invited to be party to the agreement, which aimed to settle all the grievances of land owners affected by Tasman's actions on the leased land?
According to a witness for Tasman, the A8 owners were not party to the agreement due to their belief that the negotiating committee for the A9 owners had the full support of the A8 trustees. 104
Smith J asked Mr Fox questions concerning the provisions in the agreement to protect the springs and the urupa. Fox told the court that the provision to
98 Written evidence of Cumming before the Maori Land Court (see above); db pp 215-217
99 ibid at db p215
100 see footnote 42 at p79; db p269
101 see footnote 42 at p47; db p237
102 see footnote 42 at p48; db p238
103 see footnote 42 at p80; db p270
104 see footnote 42 at p59; db p250
40 Kawerau A8 and other blocks
protect the springs had been discussed with another trustee of the A8 block, but the provision for the protection of the urupa had not. 105
Beverly Adlam told the court there were lengthy discussions between the trustees for the AS block (Fox, Savage and Hunia) and the negotiating committee, prior to the execution of the agreement. These discussions were mostly with Mr Fox since he was the main complainant. All the actions of the A9 trustees were relayed to Fox and Savage, but not to Kanui Hunia since she did not complain. 106
The agreement between Tasman and the A9 trustees was signed at the Beverly Adlam's house. Adlam told the court a solicitor was present to advise the trustees and the agreement was thoroughly explained before Mrs Fox signed the agreement. 107
The agreement is "between the trustees of the Kawerau A9 etc. Trust", the "etc. Trust" referring to the AS trustees, their being the only other trust involved, according to Adlam.108
There was no letter of instruction from the AS trustees to the A9 trustees to act on the former's behalf. Beverly Adlam told the court it would not have been preferable for the trustees of the AS block to sign the agreement because Adlam's duties were to the A9 trust, and Mrs Fox was directly involved as a trustee and Mr Fox had knowledge of the proceedings. 109
• When were all parties concerned aware that Mr Fox did not agree with some provisions in the proposals to protect the urupa and spring?
Beverly Adlam, as well as Tasman, were aware that Fox has consistently refused to have part of his land included in the lease Tasman holds for the sludge area. 110
After the agreement was signed, Mr Fox represented complaints and a claim to be made for damages to Tasman (letter 24 January 1984). A meeting was
105 see footnote 42 at p56; db p246
106 see footnote 42 and p79; db269
107 see footnote 42 at pSO; db p270
108 ibid
109 see footnote 42 at pS2; db p272
110 ibid
41 Kawerau A8 and other blocks
held with the trustees of both the A8 and A9 blocks, with Tasman present to attempt to resolve the complaints. Adlam told the court that at the meeting the A8 trustees (Mr Fox included) said they, rather than the A9 trustees, would represent their grievances to Tasman. The A9 trustees had been keen to represent the A8 trustees because both belong to the same tribe. It was the A9 trustees' concern that the benefits should occur for all the tribe rather than the one particular family or owner. 111
According to Adlam there is concern for the spring, felt by all the people of Tuwharetoa. The spring however is adequately protected in Adlam's opinion and there has not been more emphasis on protecting the urupa than the spring. An instance of this is Tasman's attempts to clear the vegetation around the spring which Fox has not permitted. ll2 Mr Savage, (advisory trustee of the A8 block and witness for Tasman) told the court he was not consulted before the injunction proceedings were commenced and there had been no consultation between himself and Mr Fox regarding the draining of the pond. 113
The level of the pond had risen each year and while Mr Savage expressed concern for the spring, he favoured the rise in level because the area covered in water extended, thus making more room for duck shooters. 114
At a meeting with the three trustees of A8 and counsel for Mr Fox present, Tasman's actions and the A8 pond were discussed. It was decided that Mr Fox would act as the chair and spokesperson for the trustees. According to Savage this did not mean however that Fox had the right to act without the resolution of all the trustees. Mr Savage has 22 shares in the A8 block. 115
• When the lease over the four blocks is terminated, what obligation exists for Tasman to continue pumping water from the A8 pond to protect the spring?
Tasman amended the lease to the A9 block so that it could be terminated when the 100 foot contour is reached. Amendments were made as a result of the Petition of Grievances, not in response to Tasman failing to comply with
111 ibid
112 see footnote 42 at p83; db p272
113 see footnote 42 at p84; db p274
114 ibid
115 see footnote 42 at p85; db p275
42 Kawerau A8 and other blocks
the conditions of the lease (as contended by counsel)Y6 There is no provision in the lease however obligating Tasman to pump water gathering in the basin which is necessary to prevent flooding area surrounding the basin which includes A8.117
Tasman gave an undertaking, in court, that so long as it is in existence it will "pump in perpetuity" to protect the springs. An assurance was given that should anybody take over Tasman, they would be bound by this undertaking. 118
According to Tasman, there would be no difficulty however in securing a provision in the lease that Tasman would pump in perpetuity, as there is implied agreement by Tasman to do this.119
If the pump broke down and was unattended for three days it would not be until after the. third day that the level of the A8 pond would rise. After a week the level of the A8 pond would have increased by about 8-12 inches. There is a spare pump which can be installed within two hours. The pump is monitored every day. 120
• To what extent had nuisance, pollution and seepage caused by the adjacent solid waste dump occurred on the A8 block?
In June 1981, the trustees for the A9 and other blocks (NAZI) informed Tasman of a complaint by Fox that sludge had seeped from the lagoon into the pond on the A8 block. Mr Fox was particularly distressed at the black colour of the pond. 121 Tasman responded to the complaint by carrying out tests on the water from two points of the pond, in June 1981. The colour of the pond was said to be "natural" and it was implied that decaying vegetation and run-off were responsible for the darker colour. 122
According to Tasman, the presence of soda was a good indicator of pollution
116 see footnote 42 at p62; db p252
117 see footnote 42 at p63; db p253
118 see footnote 42 at p61; db p251
119 see footnote 42 at p64; db p254
120 see footnote 42 at p72; db p262
121 Letter from trustees of A9 (NZI) to Tasman, 23 June 1981; db p115
122 Tasman's analysis of water from the pond on the A8 block, 29 June 1981; db p116
43 Kawerau A8 and other blocks
from seepage. The level of soda in the A8 pond was found to be the same as that in the Tarawera river, above the mill site ("unpolluted" 123). Seepage into the pond had occurred, but this came from two heaps of pulp mill rejects near the edge of the pond. This was contaminating the pond for a "few feet" but the quantity was said to be too small to be measured. Tasman undertook to remove the waste. 124
Reference was made by witnesses for Tasman to the tests carried out in July 1983 (see above at p ), showing the water to be clear and unpolluted.
Two witnesses were called by Tasman to present evidence of a scientific nature.
John Granger (a senior chemist in charge of water analysis for Analytical and Technical Consultants Ltd) was hired by Tasman in November 1981. Mr Granger was required to carry out comparative tests on the water from the A8 pond and that from the spring. One sample was taken from the over-flow outlet of the A8 pond, and another from the spring. It was concluded that the water from both sites was sufficiently similar. There were higher concentrations of some chemicals in the sample from the A8 pond, but this was attributed to biological decay of vegetation in the pond. The analysis did not show there to be any seepage from the sludge disposal lagoon. 125
123 Letter from Tasman to NZI, 2 July 1981; db pU7
124 ibid
125 Written evidence of John Granger before the Maori Land Court (see above); db pp 192- 196
44 WAI 21
W AITANGI TRIBUNAL
CONCERNING the Treaty ofWaitangi Act 1975
AND CONCERNING a claim by J H Fox for Tuwharetoa Te Atua Reretahi Trust Board relating to Te Wai U 0 Tuwharetoa
DIRECTION COMMISSIONING RESEARCH AND RELEASING REPORT
1 Pursuant to clause 5A(l) of the second schedule of the Treaty ofWaitangi Act 1975, in 1993 the Tribunal commissioned Sharyn Green of Wellington to investigate and complete an exploratory research report on this claim. It is now noted that a formal commission was not in fact executed at that time but the work has been substantially completed.
2 The report waS to be exploratory in nature. Its purpose was to brief the Tribunal and assist the parties to further identify issues, to outline the complaints of the claimants and briefly to set out the historical background to those complaints and any other relevant matters.
3 The commission ended on 31 May 1993 at which time two copies of the report were to be filed (one unbound) together with an indexed document bank and copy of report on disk.
4 It is now directed that the report be released. It may be received as evidence and the commissionee may be cross examined on it. Counsel should advise the Registrar if they wish the commissionee to be called.
cant. page 2: 5. The Registrar is etc.
45 Page 2
5 The Registrar is to send copies of this direction to:
Sharyn Green Counsel for Claimants and Tuwharetoa ki Kawerau Counsel for Ngati Awa Counsel for Tasman Pulp and Paper Company Ltd Crown Law Office Director, Office of Treaty Settlements
Dated at Wellington this ).01-day of March 1995.
Chi Judge E T Chairperson WAITANGI TRIBUNAL
46