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L \I;A 1 5Q (' A:S IOFFICIAL] II a 1:21 ') , Jl11 l \i;A 1 5q (' A:S IOFFICIAL] II A 1:21 ') , jl11 THE OWNERSHIP OF THE TAURANGA MOANA BY ROIMATA MINHINNICK A report commissioned by the Waitangi Tribunal (Wai 540) Any conclusions drawn or opinions expressed are those of the author PART I INTRODUCTION 1.1 The author My name is Roimata Minhinnick. I graduated in law from the University ofWaikato. My work in the area ofresearch started in 1987 as a recipient of the United Nations Educational, Scientific, and Cultural Organisation study grant. The research programme touched upon social, legal, business, educational and health services ofurban Native American organisations in California, U.S.A In 1989, I attended the Diplomacy Training Programme at the Univer~ity of New South Wales. This course covered aspects ofInternational Law and work of the United Nations. It was followed by various related research projects between 1990 and 1996 concerning the United Nations Working Group on the Rights of Indigenous Peoples. In 1990, I was employed on a part-time basis to do research on Maori land matters. The research project was co-ordinated by the School of Law and Maori Research Department of the University ofWaikato, and supervised by Robert Mahuta. This work led to further related research for David Abott of Shieff Angland Barristers and Solicitors and DrDavid Williams. My work for the Waitangi Tnbunal has included the completion of a report on Kaitimako B and C blocks, and the facilitation of claims in the Tauranga district. 1.2 TheOaim This claim was lodged by Kihi Ngatai on behalf ofNgai Te Rangi. It was received by the Waitangi Tnbunal on 24 August 1995 and registered as Wai 540.1 The claim concerns three areas: the alienation ofMauao or Mount Maunganui; the alienation of the Islands ofMoturiki, 1 See Appendix 1 for Statement of Claim and Commission. 1 Motuotau and Karewa, and the loss of ownership of the bed of the Tauranga harbour. The claimants say that they now suffer from the loss of tino rangatiratanga and kaitiakitanga over these particular features because the Crown breached the promises guaranteed and reaffirmed to them under the Treaty ofWaitangi.2 1.3 The Report This report represents one of a series ofthree reports which cover the three main issues within the statement of claim. This particular report will address issues relating to the ownership of Tauranga harbour. It should be noted that the original statement of claim was only in regard to the 'bed' of the Tauranga harbour, and the author's commission asks him to address the ownership of the bed of Tauranga harbour. But the use of the term 'harbour bed' is quite limited in the sense that discrete legal descriptions such as; the arm of the sea, harbour bed, foreshore, or area below high water mark, did and do not accurately convey Maori perceptions or use of the moana. Therefore, the view originally adopted in the scoping of this report was to take the more holistic approach to the harbour definition, covering a wider range of issues than merely the legal alienation of the harbour bed itself. This approach is reflected in the amended statement of claim which was received on 13 June 1997, just prior to the release of this report. It states that the 'claimants have been denied full exercise of customary and common law rights and title to land, waters, fisheries and other taonga of Tauranga Harbour' .3 The approach taken also reflects numerous other related claims lodged with the Waitangi Tribunal by persons of hapu and iwi of Tauranga. The Wai 47 claim lodged by Bill Ohia, (then, the chairman of the Tauranga Moana Maori Trust Board), requested the Tribunal to recommend proper 'legislative measures to ensure that the claimant iwi and hapu regain a say 2 ibid, and pees can, Brian Dickson, Chairperson ofTe Runanga 0 Ngai Te Rangi lwi, December 1995. 3 Facsimile transmittal fum Ngai Te Rangi lwi Incorporated providing amended statement of claim by Kihi Ngatai, Chairman ofNgai Te Rangi dated 13 June 1997. 2 in the use, control and management ofthe Tauranga Harbour and regain and maintain the use, control and management oftheir shell and other fisheries within the Tauranga harbour' :4 The area the Wai 47 claimants say that the Crown failed to protect extended 'along the shore line). from Maketu Bar to Whangamata to a distance of 100 miles offshore' .5 The Wai 342 claim lodged by Toahaere Faulkner on behalf of the Ngati He hapu ofNgai Te Rangi includes concerns over 'taonga and fishing rights within the harbour and offshore'. 6 Mr Faulkner also lodged several other claims on behalf of other claimants which included a similar provision as the above. These included: the Wai 370 claim submitted on behalf ofNgai TeAhi ofNgatiRanginui and the Wai489 claim on behalfofNgatiKuku ofNgai Te Rangi.' The Wai 489 claimant group referred to the 'immediate foreshore' of the Whareroa lands as well as the wahitapu area where their chief 'Taiaho Hori Ngatai was buried'. 1 And, the Wai 580 claim ofNgati Tapu, Ngaitamarawaho, Ngati Kuku and Ngaitukairangi submitted by Mr Faulkner included an alleged breach by the Crown of the articles of the Treaty ofWaitangi in its acquisition of the 'harbour and foreshores'. Additionally, Patrick Nicolas lodged the Wai 353 claim for the Whanau 0 Ruawahine ofNgati ......, Kuraroa, Ngai Tukairangi and Ngati Makamaka concerning 'taonga and fishing rights within the harbour'. 9 Mr Nicloas also lodged the Wai 356 claim on behalf ofPirirakau. He alleged that the Crown empowered 'Local Bodies and Harbour Boards with powers that were the rightful powers of the Maori people' and also that the Crown failed to recognise 'aboriginal 4 Statement of Claim, Wai 47, Waitangi Tribunal. Mr Dhia has since passed away. The nature of claim suggests it was lodged on behalf of 'claimant iwi and hapu' ofTauranga. Since then, iwi and hapu of Tau rang a have lodged claims on their own behalf. 5 ibid. 6 Statement of Claim, Wai 342, Waitangi Tribunal. , Statement of Claim, Wai 370, Waitangi Tribunal. 1 Statement of Claim, Wai 489, Waitangi Tribunal 9 Statement of Claim, Wai 353, Waitangi Tribunal. 3 title'.10 And TaiawaKuka from Matakana Island lodged the Wai 228 cl~ which raised the issue of the discharge of sewage into the moana.ll Part I introduces the report focusing on the claim, the nature of the report, and the location of the Tauranga harbour. Part n touches on the significance ofTauranga Moana to tangata whenua noting that a report commissioned by the Waitangi Tribunal is being prepared on the traditional usage of the harbour by iwi representatives ofNgai Te Rangi, Ngati Ranginui and Ngati Pukenga. It is important to note at this point that by 1886, most customary Maori land in Tauranga had passed through the Commissioners' Court. There is very little discussion, however, concerning harbour, foreshore and fisheries ownership during this period.from the sources consulted. This is not surprising since Commissioner Brabant, who had determined customary title to land, did not view his jurisdiction as extending to land below high water mark. But the records do show that Tauranga Maori had exercised kaitiakitanga, in its various forms, over the harbour and did claim rights of ownership to land 'under water', as well as to specific fishing grounds. Part n also looks at the era of successful economic development for Tauranga Maori during the 1840s and 1850s through their control of the trading industry, particularly shipping and agricultural goods. It is argued that during this period, Tauranga Maori's control of the trading industry enabled them to maintain a significant amount of control over harbour usage and management. There appears to have been very little Crown activity during this period concerning the acquisition of foreshore areas, at least in Tauranga (which is not surprising sinceTauranga Maori controlled the trading industry as well as the economic infrastructure). Before addressing the demise of those prosperous times for Tauranga Maori, the Crown's approach to harbour works throughout the country during the 1850s, 1860s and 1870s, and 10 Statement of Claim, Wai 356, Waitangi Tribunal. Now withdrawn. 11 Statement of Claim, Wai 228, Waitangi Tribunal. 4 its implications, will be discussed; During the period 1850s to 1870s, a pattern emerged which continued well into the twentieth) centwy. It shows that the Crown failed to consult Maori over harbour works even though such works prejudicially affected the livelihood of Maori from those areas. Thus another pattern appears, for as soon as Maori were made aware of the government's proposals, and in some instances, its unilateral process of decision making over harbours, foreshores and fisheries, Maori actively voiced their disquiet. However, objections and questions concerning fishing grounds and fisheries by Maori both within parliament and on the ground were either ignored or evaded. The Crown's response to claims by Maori to foreshores and fisheries was more of a gradual process of enforcing its control. At the time the Crown were proceeding with harbour works in other parts of the country, Tauranga Maori were faced with much more pressing concerns. The Crown invaded Tauranga and then confiscated and retained much of the choice land. The effects of the sudden influx ofPakeha settlers, their ideals, values, religion and 'all the force and fraud' that was brought to bear against Tauranga Maori, were also. highly contributory to their demise. 12 ....., By the 1880s, Pakeha political and socio-economic advancement was not being matched by Tauranga Maori. The prejudicial effects of 'colonisation, war, confiscation and English devices' was taking its toll. 13 This effectively changed their position from being once the lords of all their lands and waterways to a people who were struggling to survive.
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