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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. The statement by Hori Ngatai in 1885 to the Native Minister, Ballance, will be discussed in full here as it reveals numerous issues that underpin the concerns and beliefs of many, ifnot all, Tauranga Maori from that point to the present day. In particular, Ngatai claimed on behalf of the people . who attended the hui, to have exercised mana, authority, ownership and ancient custom over the Tauranga Moana (including the foreshore which he referred to as being merely part and

12 Stokes, A History ofTauranga County 1980, 112. 13 Stokes, A History ofTauranga County 1980, 113.

5 parcel of 'his' own garden) since time immemorial and rejected the notion of the Queen's sovereignty residing over their fishing grounds.

Part m examines the meaning of various key terms, specifically: the harbour bed, foreshore, sea and arm ofthe sea. It also looks at the English common law in relation to the foreshore, and to the area below high water mark. This section examines some of the notions that are derived from English common law, in particular aboriginal title, and the approach that the Courts have undertaken in regard to this right. Consequently, the Crown's attitude toward the Courts' rulings over aboriginal title will also be discussed.

Part IV comprises a brief overview of the Tauranga Harbour Board and its establishment. It should be noted that Dr Giselle Byrnes was commissioned by the Waitangi Tribunal to prepare a report on the 'Use, Management and Control of Tauranga Harbour'. Her report addresses more specifically issues relating to the Tauranga Harbour Board and the effect that some ofits dealings has had on Maori. Part IV will show the ongoing attempts by Tauranga Maori to protect, conserve, and manage the harbour and fisheries.

Part V will conclude the report by analysing current judicial discourse regarding aboriginal title and the scope of such rights in relation to the future control of the Tauranga Moana.

PART II

2.0 KO TAURANGA TE MOANA

6 Tauranga Moana is a taonga and the Treaty ofWaitangi guaranteed and reaffirmed the tino rangatiratanga of taonga to Maori. The Tauranga Moana added dignity and an intangible mana to the tangata whenua ofTauranga. It possessed a mauri which bound it to the fortunes ') and destiny of its people and added to this was its value as a rich and permanent source of food. It is one ofthe most striking features in the district, "a whole and indivisible entity, not separated into bed, banks and waters". Tangata whenua have always acknowledged the cultural, spiritual and traditional significance of the Moana in the saying: Ko Mauao Te Maunga, Ko Tauranga Te Moana. For hapu of Tauranga Moana, this saying is an expression oftheir mana over these most significant features. The Treaty ofWaitangi reaffirmed this. In particular, by article 2 ofthe Maori version, hapu of Tauranga were guaranteed the continual exercise of tino rangatiratanga over the Tauranga Moana. Article 2 of the Pakeha version reaffinned to Maori: 'the full exclusive and undisturbed possession of their lands and Estates Forests Fisheries and other properties which they may collectively or individually possess so

long as it is their wish and desire to retain the same in their possession' .14

The exercise oftino rangatiratanga by the iwi and hapu of Tauranga Moana over the district of Tauranga is reflected in the occupation and use of the area 'probably going back over a ...... ,

thousand years' .15 The basis of this occupation was the abundant food resources of the area. The Tauranga Moana catered for the many hapu that governed its shores. On and around the off-shore islands there were mutton birds, hapuka weighing upwards of one hundred pounds, hauls of crayfish, snapper, kina, codfish, gurnet, kahawai and the thousand and one shellfish of the Bay of Plenty. The many streams which flow into the harbour provided tuna and freshwater koura and from the adjacent bush there were birds, berries, fern root and a variety of medicinal plants. The rich soil and climate enabled kumara cultivations to grow well. The natural landscape of the area could be easily fortified, and the forest provided the necessary timber for building pa, palisades, whare and waka. In the swamps, there was harakeke and

14 C Orange, The Treaty ofWaitangi, 1987, 258. 15 E Stokes, Te Raupatu 0 Tauranga Moana, The Confiscation of Tauranga Lands, Vol 2, 1992, 35.

7 raupo for thatching houses, and clothing. 16

In 1844, E C Goldsmith reported that the fishing off Tuhua Island was 'very good, there being an abundance ofHaupuka, Kokire, Kohikohi, Maumau, Snapper, Kahawai, also plenty of shellfish viz Koura, crabs, Pawa ect. The Moko [Mako] is caught off the island, but the natives informed me that they are getting very scarce, we were not able to catch any, nor did

we see any during our stay'. 17 Clearly the fish and shell fish mentioned above were also accesSJ.ble from Matakana Island (in fact, from just about anywhere around the harbour) even though there is little mention of fishing activity at the Commissioners' hearings over Matakana. lI

Tauranga, then, was very much sought after because of its natural attributes and, indeed, tangata whenua defended the exercise of their mana over the harbour from all others as well as the Crown's military invasion of the area in 1864.19 - 1.1 Kaitiakitanga at Tauranga This section will illustrate the exercise of kaitiakitanga of the moana by certain Tauranga Maori by way of historical example, noting that a report on customary use and ownership of the harbour has been commissioned by the Waitangi Tribunal. That report provides

16 ibid at 35, 349 and 353. 17 Stokes, Te Raupatu 0 Tauranga Moana, Vol 2, 1990, 418. 18 Stokes, Te Raupatu 0 Tauranga Moana, Vol 2, 1990,383. One of the areas, however, on Matakana referred to at the hearing was 'Whakapiripaua' suggesting that paua was gathered from the island. 19 E Stokes, Te Raupatu 0 Tauranga Moana, 1990,4 and 16-17. Stokes notes 'th~ region has been continuously occupied by Maori tribes, and periodically fought over for more than seven centuries. And, on the 29 April 1864, British forces attacked Gate Pa. They numbered 1689 men. The Gate Pa garrison of Maori 'never exceeded 230 men'. Maori won this battle but on 21 June 1864 were overcome at the battle ofTe Ranga.

8 information not available to this author, particularly concerning the era ofNgati Ranginui prior to and following the 'Hekenga mai 0 Ngai Te Rangi'. This section will look prinuirily

"" at evidence provided at the Tauranga Commissioners' hearings although it is important to ) note that many of the blocks consulted made no mention either of foreshore or fisheries matters.

As stated earlier, Commissioner Brabant opined that his jurisdiction did not extend to issues of ownership to land below high water mark so there is little to gain from his minutes in this respect. The evidence does show, however, that the moana, islands and other significant sites in the harbour were used for fishing, gathering shellfish and the exercise of kaitiakitanga in its various forms.

At the hearing over Moturiki in August 1883, Te Hatiwira stated that because his father and

'Ruka' worked on Moturiki, they had 'always been the kai rahui 0 nga kupu [guardians] for the island,.20He also said that his 'elders ... used to grow Kumaras on the island' and that the

'island was also a place where they got shell fish. ,21 Ruka's evidence includes the shell-fish beach as an important aspect of occupation. He stated: ~

Pakira was a man "piri nomai ki a Tauaiti" [a close associate ofTauaiti]. The tohus [signs of occupation] of Tauaiti in the island are the whare [house] and the waka [canoe]. The canoe lay at Te Tata - "he one pupu" [a shell-fish beach]. The island

belonged to Tauaiti, it was his pa. 22

At the hearing over Motuotau in 1883, Te Patu claimed the island on behalf of the Wharetapu

20 DOSLI, Hamilton, Tauranga Confiscation files, Brabant's notes. Also, see Stokes, Te Raupatu 0 Tauranga Moana, Volume 2, 1990, 346-347. It is not clear who Hatiwira was representing at this hearing though he did lodge a claim to Karewa Island on behalf ofNgaitukairangi and Ngatiahi. 21 ibid. 22 ibid.

9 hapu and was supported by Akuhata Tupaea. The only opposition claimant was Te Aria for Ngati Hinepua. He claimed to·be a descendent ofTe Wharetapu, and mentioned a waka landing place there called Parakiri. According to Te Patu, Motuotau belonged to Te Wharetapu who gathered birds and 'Koura' [crayfish] from the island. Akuhata Tupaea stated that Motutau was a 'wahl taruke', an island noted for setting crayfish traps and that 'Te Nmihi's Tarukes are still to be seen there'. Te Aria conceded that 'Te Nmihi owned the fish at the side ofthe island' but argued that the 'island belongs to the children or descendants of Wharetapu' and as descendents, the group he represented were entitled to a share of the island.23

According to the claimants, on Karewa 'island there was an abundance of fish such as hapuka, snapper, crayfish, cod and kahawai.,24 This abundance of fish was also noted in the published works of Spencer's IDustrated Guide 1885: 'Splendid fishing is to be obtained in the vicinity, and it is a favourite place for hapuka, a large species of cod, weighing upwards of one hundred pounds. Besides hapuka grand hauls of codfish, snappers, gurnet, crayfish, kahawai

and the thousand and one of the fish of the Bay of Plenty can be depended on' .25 Evidence at the hearing ofKarewa in 1883 also noted the deep sea fish that could be caught off Karewa .Island. Hohepa Hikutaia who appeared at the hearing for Ngaitukairangi stated:

E kai ana Te Ngare a Ngatukairangi e nga hapuku 0 te moana. E kai ana a

Ngatukairangi. E kai ana a Te Ngare nga manu 0 ua. Me mutu ta koutou tohe ki nga manu kei mate koutou I te ngarara me waiho te moana kia koutou. [The hapuku fishery is acknowledged by Te Ngare as belonging to Ngaitukairangi. The birds on the land belong to Te Ngare. The theft of the birds from Te Ngare should cease, lest you die with the tuatara, and leave the sea for Ngaitukairangi.] I rongo a Hohaia tana kupu

23 DOSLI, Hamilton, Tauranga Confiscation files, Brabant's notes. Also, see Stokes, Te Raupatu 0 Tauranga Moana, Volume 2, 1990, 346-347. 24 Letter dated 11 December 1995 from Brian Dickson to Waitangi Tribunal. 25 Spencer, Dlustrated Guide, 1885, 52-53.

10 [Hohaia heard these words], but he did not comply he [Te Ngare] commenced to fish

for hapuku. 26 )

The hearings over Hopukiore in 1881 show evidence of the exercise ofture Maori over fisheries. According to Hori Ngatai, there is a 'rahui near Tuparehuia - a rahui kahawai. When [the] west wind blows the fish go ashore. That was never disputed as belonging to

Ngatikuku'. 27 And from the hearings over the Te Maire block in 1883, some interesting points appear. There is a clear view that the pipi and area 'under water' was owned by a specific group and fished by many people. Also in the vicinity were two traditional fishing sites, namely Toka Tamure and Marutuahu. Here, Hamuera Paki who appeared for Ngatikuku, and Hohepa Hikutaia for Ngaitukairangi, both referred to the "Toka Tamure"

[snapper rock/fishing place] on the shore ofTe Maire. Thus according to Hamuera: 28

Te Puru's people own Te Patatai - whose kai are pipis. When the tide comes in Te Patatai's claim is under water ... Panepane is a place where all Ngaiterangi dry their nets but when the land went thro' the Court I got a title to it. There is also a ToO,

Marutuahu, near Moturiki where they, Ngaitukairangi, used to fish before they fished ~ at Te Maire. The Tohus of that toka (the leading marks) are on the land under hearing, I allow that - but the people who fished would be perhaps 100 and two as Hohepa says. Also when they fished at Te Maire there would be many men. I say that Te Maire is in the sea not on the shore. Ngati Kuku own the shore. I don't dispute that Hohepa owned Te Maire (named peg on beach which old boundary) but he never

26 DOSLI, Hamilton, Tauranga Confiscation Files, Brabant's notes. Stokes, Te Raupatu 0 TaurangaMoana, Vol 2, 1990,366. Also, Brabant's Minute Book No 8, 87-88. Brabant's Minute Book No 11, 90. 27 DOSLI, Hamilton, Tauranga Confiscation Files, Brabant's notes. Stokes, Te Raupatu 0 Tauranga Moana, Vol 2, 1990, 308-324. Also, Brabant's Minute Book No 8, 87-88. Brabant's Minute Book No 11, 90. 28 DOSLI, Hamilton, Tauranga Confiscation Files, Brabant's notes. Stokes, Te Raupatu 0 Tauranga Moana, Vol 2, 1990, 325-342. Also, Brabant's Minute Book No 8, 87-88. Brabant's Minute Book No 11, 90.

11 fished the eels on the block.

Examples such as these suggest that Tauranga Maori saw their property rights as including the foreshore, sea and the bounty they contained. Boundaries could be fixed upon the bed or shore, whether covered by water or not, and Hamuera's evidence suggests that different hapu could own a shore and an adjacent fishery. Foreshore and coastal resources were managed and protected according to Maori custom, such as the application of rahui.

1.1 The economic development of Tauranga Maori 18405-18505

As stated earlier, a report has been commissioned by the Waitangi Tribunal concerning the traditional relationship of tangata whenua with the Tauranga Moana. The report suggests extensive governance by Tauranga Maori over the moana.29 This must have clearly seemed , the case to J A Wilson who was on board the 'Herald' in 1828, when it was apparently the first European vessel to enter Tauranga harbour. He noted 'the great number of canoes, over 1,000 large and small, on the beach between Otumoetai anc:J Te Papa'.3O Tauranga Maori were to use their control ofthe harbour to their economic advantage with the onset of new trading opportunities that accompanied the arrival of Europeans in Aotearoa.

During the 1840s, Auckland's European settlers were reliant on Maori produce. Since Tauranga Maori were used to trading among themselves before the arrival of Europeans, the transfer to cross-cultural trade and communication was an easy one. Once contacts were made, the European middle man who had flourished during the 1830s was no longer necessary. Tauranga Maori were also able to produce mass supplies of food more quickly and

29 A Fisher, K Piahana, T Black, R Ohia, 'Issues concerning the control and management of Tau rang a Harbour and estuaries', 1997. The source material for this report was in the main, oral evidience; collated, transcribed and recorded by iwi members appointed by their respective iwi. The iwi are: Ngai Te Rangi, Ngati Ranginui and Ngati Pukenga. 30 Stokes, A History ofTauranga County. 1980,45.

12 cheaply than their European counterpartS.31 This they had successfully achieved by way of their. traditional structures and the philosophies which underpinned them. The 1840s and 1850s were prosperous times for Tauranga Maori, times when they were in control of the ') trading industry in Tauranga. According to Kathryn Roses's report on the socio-economic conditions ofTauranga Maori:

Tauranga Maori owned at least eight trading ships and dominated Tauranga's trade during its expansion in the 1840s and 1850s - producing pigs, potatoes, kumara, wheat, maize, vegetables and fruits for the growing market of Auckland ... This economic activity was organised through traditional tribal structures.32

In 1857 Cooper's Settlers' Guide stated that Tauranga Maori owned 'numerous coasting vessels' and supplied Auckland with 'more wheat, potatoes, India com, onions etc. than any other part of New Zealand'." This new production continued alongside the traditional harvesting ofthe harbour. In 1852 lohn lollife, of the HMS 'Pandora', noted a Maori fishing expedition at Tauranga who had with them a 'seine net 400 yards long, two yards wide'34.

The successful adjustment by Tauranga Maori to economic development was noted by Grey prior to the invasion of Tauranga.35 He reported in 1864 that Tauranga Maori had sold 100,000 bushells of wheat and that a similar quantity was stored at settlements.36J1owever, by entering into the trade industry, Tauranga Maori were merely continuing a process which

31 Stokes, A HiStOlY ofTauranga County 1980, 59. 32 Kathryn Rose, The Impact of Confiscation: Socio-Economic Conditions of Tauranga Maori, 1865-1965, An Overview Report Commissioned by the Crown Forestry Rental Trust, January 1997. Also, see Stokes, A History of Tauranga County, 1980,59. 33 ibid at 9. 34 lournal, 4-30 November, 1852. 35 W Gifford &. H Wdliams, A Centennial History ofTauranga. Dunedin: Reed. 1940,224. ibid.

13 had long been in place before the arrival of Europeans. An integral part of that process was the continued kaitiakitanga and exercise of rangatiratanga over the Tauranga Moana.

At the time, there was probably little, if any, reason to be concerned about the possibility of losing control ofthe moana and fisheries. While Tauranga Maori dominated trade, no doubt they were also in control ofthe harbour. Under Article ill of the Declaration of Independence which provided for the 'regulation oftrade' and the framing of laws for this purpose, coupled with the Treaty guarantee of tino rangatiratanga (Maori version) or full, exclusive and undisturbed possession over their fisheries (European version), Tauranga Maori might well have expected to stay in control.

2.3 Tauranga moana during the 18605 and 18705

During the 1860s, Tauranga Maori were faced with much more immediate concerns than foreshore and fisheries claims, although they had not been forgotten. In 1864, the Crown invaded Tauranga with devastating impact. It then confiscated the entire district, returning three quarters, but retaining one quarter, some 50,000 acres. Most of the confiscated land retained by the Crown or later purchased by the Crown, abutted the Tauranga Moana foreshore and this, coupled with the abandonment of Otumoetai pa in the 1860s, meant that Tauranga Maori were less capable of enforcing traditional rights over the foreshore.37

In 1867, the Crown carried out a scorched earth campaign tearing at the very fabric ofNgati Ranginui's political, socio-economic and cultural infrastructure, particularly that of pirirakau. 31 The undermining of tino rangatiratanga by the use of force, and the dismantling

37 Rachael Wtllan, Otamataha- a report commissiond by the Waitangi Tribunal for Wai 580, May 1997, P 64 31 Stokes, Te Raupatu 0 Tauranga Moana, 1990, 121. She states that 'the military expected a fierce contest and embarked on a campaign of destruction to cripple Pirirakau and their allies'. Also, see Minhinnick report on 'The islands ofMoturiki, Motuotau and Karewa', Wai 540, 1997, for information concerning the Runanga Maori of Tauranga Moana.

14 of the various Maori Runanga in Tauranga, effectively undermined the ability of Tauranga Maori to maintain control over their land, moan&, and the once prosperous trading industry.39 )

Much of the returned land, comprising the Katikati-Te Puna blocks of 93,188 acres, was compulsorily acquired 'under the colour of a voluntary sale'. 40 At this point, it is important to note that the five deeds which make up the Te Puna and Katikati purchases do not mention the Tauranga Moana, although the boundaries of the purchase are adjacent to much of the harbour foreshore. In delineating the boundaries concerned, each deed states that 'These are the boundaries ofthe land commencing at Ngakuriawharei' [emphasis added]. Thus, it is the 'land' not the moana which is being referred to. Additionally, in concluding the boundary lines from the last point within each schedule (which is Te Puna); the line drawn from Te Puna back to Ngakuriawharei or the starting point, is 'along the sea shore to Ngakuriawharei' within Deeds 1,3,4 and 5 and 'by the sea coast to Ngakuriawharei' under Deed No 2. Deed No 5 concludes by stating that 'These are the boundaries of the land sold' [emphasis added]. It would, therefore, be difficult to argue that the Tauranga Moana was itself expressly included in these purchases, or that Tauranga Maori had any reason to think that they parted with an interest in the foreshore or harbour. Given the context of the Katikati-Te Puna purchases, it could not be said that Tauranga Maori freely consented to these sales ofland in the first instance, let alone disposal of any of the adjacent moana. 41

39 AJHR 1862, E No.9 sec IV,S. By 1861 Tauranga Maori had established several Maori initiated Runanga for the purpose of framing laws for their benefit, including 'Te Runanga Tapu' which comprised both King's and Queen's men. Commissioner Brabant's Report 1886, "Lands Returned To Ngai Te Rangi Tribe Under Tauranga District Lands At', AJHR 1886, 0-10. According to William Fox, the Colonial Secretary, the Katikati- Te Puna block which contained 93,188 acres was a 'forced acquisition of Native Lands under colour of a voluntary sale' . 41 LElII865/138, Letter 24 September 1864 from William Fox, Colonial Secretary and de facto Native Minister, to the Governor referring to the Te Puna-Katikati block as a 'forced acquisition ofNative Lands under colour of a voluntary sale'.

15 By 1870 many changes had been wrought on traditional life through contact with Europeans. Of course, the introduction of the musket was highly contributory to the decrease in population early on. Additionally, there was the grave impact of introduced disease; Brown recorded epidemics of influenza in 1837 and 1839, and in May 1840, he noted that many children had died from this complaint. 42 During 1838 Brown remarked that erysipelas was a prevailing disease in the district and other diseases including measles, typhoid, and various respiratory complaints proved fatal to Maori.43 In 1862, Goldsmith commented on the decline in Maori population on Mayor Island reporting that 60 people had 'died in a few days from some epidemic'.44

Despite attempts to re-establish the Maori trade which had flourished before the wars, the savagery of contact soon took its toll on Tauranga Maori.45 There was an initial lull in the military settlement ofTauranga between 1870-1872, but overall European settlement was on the increase and it became evident that the impact ofthat settlement would prejudicially affect Maori. In 1870, there were 257 European settlers in the Tauranga district, this rose to 579 according to the 1874 Census, and numbers reached 793 by 1878.46 Reverend Thomas Grace noted in 1873 that:

As regards the Maoris, the war has revolutionized their former mode of life. They cannot, and will not, remain as they are. Great changes are taking place and others are near at hand. The influx of Europeans into their borders, the leasing and selling of their lands, and their own improvident mode of spending the proceeds, must soon

42 Stokes, A Histoty ofTauranga County 1980. 43 Stokes, A Histoty of Tauranga County 1980. 44 Stokes, A Histoty ofTauranga County 1980, 71. 45 Stokes, A HistOIY ofTauranga County 1980. The people of'Karikari' were reported to almost completed the making of two yachts. They were also in the process of making gigs and whale boats. 46 Stokes, A Histoty ofTauranga County 1980.

16 change them from being lords of the soil into a poor, needy, down trodden remnant

of a once formidable race. Will they survive? 47

Grace, after serving as a CMS missionary in Taupo, observed in Tauranga:

Speaking of the Natives, a gentleman Said to me the other day They cannot survive' The feeling of the Europeans is so intense against them. There is much truth in this statement; at the same time God has, in a wonderful way, preserved and protected them in spite of all the force and fraud that has been brought to bear against them. 48

Confiscation and subsequent colonisation, then, was the turning point in the socio-economic ,and political position ofTauranga Maori. There were many immediate pressures to bear and it should also be noted that there were numerous land transactions between 1864 and 1888, and many Tauranga Maori were preoccupied with these dealings. When the Tauranga Commissioners investigated title to confiscated lands to .be returned to Maori, a process which began in 1876, they did not directly address the issue of ownership of the foreshore or

sea bed and the question was left in abeyance. However, it will be seen that the Crown had ~ already assumed certain prerogative rights to the foreshore and seabed by the 1870s, and certainly by the mid-1880s, the issue of rights to the harbour, foreshore and fisheries were at the forefront of the concerns ofTauranga Maori.

2.4 Crown Assertions of Ownenhip and Control: Harbour 'development' throughout the country: 1850s-1860s

Before proceeding to examine the issue of both Maori and Crown presumption of ownership ofTauranga Moana, this section will briefly describe how the issue of foreshore and coastal ownership was brought to the fore of Maori consciousness in other parts of the country.

47 Stokes, A History ofTauranga County 1980, 111. 41 ibid at 112.

17 Often, this seems to have occurred through harbour developments being pursued by the Crown in the 1850s and 1860s, thus provoking Maori to seek affirmation of their interests and custom title from the Crown and CourtS.49

On 26 April 1858, the Office of Inspector of Public Works reported on 'Harbour improvements at Port Napier' (or Te Whanganui-a-Orotu), and in 1859, civil engineer Edward C Wright produced a scheme for substantial harbour works in the area. so At about the same time, T H Fitzgerald, Superintendent ofthe Hawkes Bay Provincial Council, sought legal opinion from C D Ward, a Wellington barrister about possible objections to land reclamations. Ward replied, 'The soil below high water mark is prima facie the Crown's

property' .51 According to Professor A Ward, however, the Crown itself' did not consider that it owned the foreshore until Maori title to the adjacent land above the high-tide line had been extinguished', 'up to perhaps as late as the mid-1870s'.52 The first recorded Maori claim to the bed ofTe Whanganui-a-Orotu appears to have been prompted by the reclamation work. On 20 June 1861, G S Cooper, the district commissioner, reported to McLean that a leading

chief named Tareha, asserted that 'he had only sold land as far as the high-water mark' .53

/ \ - In'the Manukau district, draft grants for Manukau Harbour endowments were prepared in 1860 by a person called 'Williamson'. It was proposed that various channels be buoyed and beaconed, rocks cleared, jetties and boat ways constructed, the Onehunga wharf 'widened and extended' and that other 'improvements at Whau' be undertaken. In addition to the 'land below high water mark', over 1500 acres ofland situated on the shores of the Manukau were

to be included as reserves and granted to the provincial government. 54

49 IA 1858/713, 1860/2181, 18611166, 186211570, 186411468, also G 36/3. 50 IA 1858/713. And, Waitangi Tribunal, Te Whanganui-a-Orotu Report, 1995, 89. 51 Waitangi Tribunal, Te Whanganui-a-Orotu Report, 1995,89. 52 Professor A Ward, National Overview: Foreshores, 1997,339. 53 Waitangi Tribunal, Te Whanganui-a-Orotu Report, 1996, 92. 54 IA, 1860/2181. The areas proposed to be reserved were: Waitemata parish lots 22 and 23 containing 140 acres and 195 acres respectively, Karangahape

18 And in 1864, the Government proposed "local improvements including the construction of a Road across Hobsons Bay" in the harbour of Waitemata. The proposal contemplated reclaiming land from the sea in Hobson's Bay. The land was taken under the Public Reserves I Act 1854 as 'all that parcel of land, in the Province of Auckland ... , situated in the Harbour ofthe Waitemata below high water mark'. Again, this foreshore land was to be granted to the provincial government.Although there was no official record of any immediate r~sponse by tangata whenua ofthe Manukau and Waitemata, they actively voiced their objections as soon as they became aware of such developments. The Waitangi Tribunal noted in the Manukau claim that many chiefs ofthe Manukau and Waitemata harbours had expressed their concerns over the so-called harbour developments in their backyard. 55

In 1869, Perahama Te Reiroa and 11 others ofNgati Maru petitioned the Government 'not to interfere with the sea beach' at Thames. They stated that 'when they gave up the mountain to his Excellency for the purpose of allowing gold to be extracted therefrom, they never gave up the sea beach at the Thames to the Governor'. This was followed by a petition from Tauamaha Te Moananui and 26 others of 'Hauraki' making a similar claim.

Growing tensions led to three separate investigatory reports in 1869.56 These resulted in the Shortland Beach Act 1869 which enabled the Crown to purchase below high water mark and prohibited any persons other than the Crown from entering into any 'contract lease or conveyance' with any 'aboriginal native' for the Thames foreshore." According to Orange, 'payment was presented as compensation; it was not to be construed as a precedent for any further Maori claims to tidal land' . It also 'related to specific pieces ofland and did not assert

parish lot 32 containing 58 acres, Manukau Pilot Station containing 1000 acres and Awhitu South lot 9 containing 208 acres. 55 Waitangi Tribunal, Manukau Report, 1985, 65-68. 56 Report by Mackay, Thames Gold Fields. 1869, AlliR A-17 re:Political tensions, Report of Select Committee, Evidence Adduced before the Native Lands Bill Committee, 1869 AJHRF-6A; Report of Select Committee, Thames Sea Beach Bill 1869 F-7. 57 Shortland Beach Act 1869.

19 Crown prerogative to foreshore rights throughout New Zealand. ,S8

2.4.1 The Kauwaeranga decision of 1870 and implications for Tauranga Maori

The Kauwaeranga decision emerged from the conflict of interest between those companies seeking gold-mining rights to the Thames foreshore and adjacent lands where certain Ngati Maru, and other "Hauraki" Maori, had rights to fish upon their traditional fishing grounds.

Queries made by the provincial Superintendent of Auckland, John Williamson, in 1869 regarding the foreshore in front ofPaora Tuhaere's land at Orakei unveiled the Crown's position and was one of the earliest recorded examples of an assertion of the argument that Treaty rights prevailed over Crown prerogative claims. Williamson informed a parliamentary committee that the general government had not granted the foreshore to the Auckland province. The provincial solicitor, Rochfort, argued that the Treaty ofWaitangi reserved the foreshore to Maori and that it could not be granted without the Crown having first extinguished the Maori title. The Attorney General, William Swainson, disagreed with Rochfort, reasserting the Crown's prerogative and argued that the non-transfer of the Orakei foreshore was regarded as 'more a matter of expediency' than of right. 59 However, Chief Judge Fenton refused to grant title to the foreshore, even though the Court had previously granted freehold titles to foreshore in Hauraki. The Kauwaerenga decision became a catalyst for the erosion of Maori rights to foreshores and limited them to a right offishery. Fenton opined that he could not:

contemplate without uneasiness the evil consequences which might ensue from . judicially declaring that the soil of the foreshore of the colony will be vested absolutely in the natives, if they can prove certain acts of ownership, especially when

51 C. Orange, TreatyofWaitangL 1987, 188. Also Ward, Show of Justice, 342. 59 Evidence presented to the Waitangi Tribunal Ngai Tahu Fisheries Report 1992 by Professor Alan Ward, 14. Also, (Wai 27, doc Z49, 21).

20 I consider how readily they may prove such, and how impossible it is to contradict them ifthey only agree amongst themselves. 6O

He went on:

it appears to me that there can be no failure ofjustice ifthe natives have secured to them full, exclusive, and undisturbed possession of all the rights and privileges over the locus in quo which they or their ancestors have ever exercised; and the Court so determines, declining to make an order for the absolute property of the soil, at least below the surface.61

According to Ward, thereafter the, 'court seems generally not to have granted titles of this kind, although the question of whether it had the right or the power to do so still remained, as did the question of whether the foreshore was Maori customary land'.62 In the Ngai Tahu Sea Fisheries Report 1992, the Tribunal stated.that although the Court in the Kauwaeranga decision held that the Maori claimants were entitled to the mudflats, they were to receive no more than a title to exclusive fishing rights over the area in question for reasons of 'public ...... , policy'. The issues ofpublic policy were not explained in the judgement but reality 'lay in the fact that beneath the mudflats lay gold, as the Court well knew ... The convenience of the

Kauwaeranga Judgement was that it protected the Crown's interest in gold' .63 The irony here is that one year later, the New Zealand Court of Appeal of five Judges recognised 'Native proprietary right' in re Lundon & Whitakers Claims Act (1871), irrespective of the Treaty or sup sequent legislation. It held:

The Crown is bound, both by the common law of England and by its own solemn

60 Hauraki. (1870) 4, MB 236; reprinted in (1984) 14 VUWLR 227.

61 ibid. Also, (Wai 27, doc Z49 (a), 175-6). 62 Professor A Ward, National Overview: Foreshores 1997, 63 N gai Tabu Sea Fisheries Report 1992, 156-7.

21 engagements, to a full recognition of Native proprietary right. Whatever the extent of that right by established Native custom appears to be, the Crown is bound to

respect it. 64

At about the same time as the Lundon & Whitakers decision, the Government sought the opinion of Attorney General Prendergast:

Whether a Crown Grant by the Governor, or by Governor in Council, conveys an actual title to land below low watermark, or whether such title can only be conferred by statute.

Also whether the Governor in Council, unless authorised in that behalfby statute, can

by Crown grant give an indefeasible title to lands between high and low watermark. 65

Prendergast replied that the Governor in Council could grant 'an actual title' below high watermark by virtue of Section 2 ofthe Public Reserves Act 1854, and that the Governor 'can make grants only by virtue oflegislative provision; and this, whether of ordinary Waste lands or lands below high watermark' .66 There is no reference here to the prerogative rights of the Crown. According to Ward, Prendergast was 'only addressing the disposition of lands considered to be under Crown control, not how the Crown came by that right in the first

Re Lundon & Whitakers Claims Act (1871) 2 NZCA 41,49. It should be noted that Chapman J who had ruled on R V Symonds also sat on the above case, repeating the classic formulation of aboriginal title given there and which had also been decided upon in the United States Supreme Court as handed down whilst Chief Justice Marshall was in office. Despite the legal status of Maori rights decided upon in Re Lundon & Whitakers Claims Act 1871, this decision was turned on its head just five years later by CJ Prendergast in the Wi Parata v Bishop of Wellington 1877 decision. An analysis of the courts approach to Maori rights will be discussed at Part ill of this report. 65 Evidence presented to the Waitangi Tribunal Ngai Tahu Fisheries Report 1992 by Professor Alan Ward, 18. Also (Wai 27, doc Z49a, 177-8). 66 ibid.

22 place'. Therefore Ward argues, the nature of Maori rights under the Treaty to the foreshore was one of continuing uncertainty. 67 )

In 1872, the government then issued a proclamation under section 4 of the Native Lands Act 1867, halting the Native Land Court from issuing foreshore titles anywhere 'within the

Auckland Province, being all that portion of same province situated below high water mark' .68 This blocked the legal channel which the Kauwaeranga judgement had opened to Maori to secure an award of fisheries in that particular province, which at the time included Tauranga. 69

The Crown's response to the numerous claims made by Maori to foreshores following the Kauwaeranga decision was more of a gradual process of enforcing its control over foreshores and other fishery rights. One ofthe first exercises of control, for example, was the enactment of the Protection of Animals Act 1867 which empowered certain bodies to import foreign fish and other game species to be released into the environment. In 1882, the Tauranga

Acclimatisation Society was formed to carry out the purposes of the Act. 70

2.4.2 Initial Maori Response to Crown Assertions -r" \

In 1874, 11K Taiaroa, member for Southern Maori, questioned whether or not the reclamation of land below high water mark in the North Island was in contravention of the Treaty of

67 ibid. 68 Native Lands Act 1867, s 4. See New Zealand Gazette, 1872, 347. The Courts jurisdiction was suspended 'within the province of Auckland, being all that portion of the same province situated below high water mark' . Evidence presented to the Waitangi Tribunal Ngai Tahu Fisheries Report 1992 by Professor Alan Ward, 18. Ward also notes evidence shown by Mr Walzl (doc Z49, 35), that the Government took care to include in its future deeds of purchase of Maori land which had passed through the court, all 'fishing, fisheries, fowlings, surface rights of shore and foreshore (if any)'. 70 Protection of Animals Act 1867. See, Tony Nightingale, White Collar and Gumboots 1992, 18. In 1882, an Acclimatisation Society was formed in Tauranga, see, Peter Scott, Tauranga Acclimatisation Society 1882-1992.

23 Waitangi. The answer provided by Donald McLean was that land below high water mark was granted to provincial superintendents under the Public Reserves Act 1854 and that when Maori 'ceded' land to the Crown, all rights connected with them, such as those to rivers and streams, were also ceded. The reply, however, did not refer to the foreshore at all, which was the point of the question. According to the Ngai Tahu Report 1992, parliamentary debates are replete with evasive or unresponsive answers to questions by Maori concerning foreshore and fishing rights.7! For instance, while a member for Western Maori between 1886 and 1911, Henare Kaihau, repeatedly drew parliament's attention to fisheries issues reaffirming that '[U]nder the Treaty ofWaitangi] the right to their fisheries was secured to Maoris'.72 He opposed legislation restricting access to 'shellfish along the foreshores', referring to oysters in particular as part of the staple diet ofMaori.73 Moreover,Kaihau had expressed concern about the laws 'affecting the fish in the seas and rivers' and wanted to know 'by what right' did the European members 'legislate in such a way as to usurp to [themselves] those rights' because he argued, the 'Treaty ofWaitangi specifically provided that all rights and privileges of ownership should be insured to the Maoris' .7. The question was simply ignored.

During proceedings of the Maori parliament at Orakei in 1879, where Treaty rights to foreshores and fisheries were extensively discussed, Apihai Te Kawau, a chief of Ngati Whatua, emphasised that '[I]t was only the land that I gave to the pakehas. The sea I never gave, and therefore the sea belongs to me'." Paora Tuhaere ofOrakei stated:

'do you suppose that we still possess those fisheries that were to remain with us by the words of that Treaty? I think not. They have been taken away, in spite of the words of this Treaty. I do not know how they went. They are not like lands and forests (a reference to the confiscation of lands). You have to make an agreement

71 Waitangi Tribunal, Ngai Tahu Report, 1992, 156. 72 NZPD 99 (1897) 711. H Kaihau, paramount chief of Ngati Te Ata. 73 ibid. And, NZPD 102 (1889) 501. 7. NZPD 129 (1904) 268. 15 AJHR 1879, sess IT, 08

24 before they can be handed over or taken'. 76

/) And a chiefofNgati Te Ata, Hori Tauroa, of the Manukau Harbour, stated 'I was not aware of the Government taking all my large pipi-banks and shoals in the Manukau. Those large banks and shoals have all gone to the Government. I was not told why these were taken. ' Tauroa concluded that Maori 'ought to have the authority over all [their] lands as well as the foreshore and over all the fisheries'. Clearly these people had been recently made aware that their waters and fisheries had been legally tampered with even ifthey did not know exactly how their rights had been 'taken away'. But it is clear, however, that they did not approve of those distant laws of England which proclaimed to have magical powers by extinguishing Maori rights without Maori consent. As Tuhaere opined, if the 'pakehas' or Government wanted to use or take their waters and fisheries, such an arrangement would require their 'agreement' .

We can see, then, that by the 1870s there was a deep divergence between the position of the Crown and that ofmany Maori with regard to issues of property and use rights to waterways and what they contained. A recurring theme in the above examples is that, as soon as Maori '-i became aware of claims by European settlers and the Crown to the foreshore and fisheries, they objected, attempting to reassert their authority over such places. This was also to be the case in Tauranga. l.5 Tauranga Moana in the 1880.

The Tauranga Harbour was swveyed in 1835 by Thomas Wmg (Fanny), in 1848 by John Lort Stokes (HMS Acheron), and in 1852 by Byron Drury. Although the harbour had been chartered and swveys done before the port was officially established in 1873, initial proposals

ibid

25 to 'improve' the harbour were rejected by Government. 77

The Maunganui entrance to Tauranga Harbour was not an easy one to negotiate. In 1879, possible 'improvements' to the harbour were reported on by John Coode. He proposed a stone 'training bank' to prevent the build up of sand but this appears to have been rejected by Government on the basis of expense. 71 Further suggestions were made in the 1880s that a new wharf be built at the deep water anchorage at the eastern end of Pilot Bay but this proposal was also rejected by Government in 1885.79

In the 1880s, there was also a lot of discussion about the formation of a Tauranga Harbour Board. In 1884, the Tauranga County Council resolved to ask the Tauranga Borough Council and Whakatane County Council to join them, noting:

No money has been spent by Government in rendering this port available for shipping. The request now made will be the means of largely increasing the revenue of the Government by settling lands that are now lying idle, and by giving increased facilities for the import and export of the requirements and produce of this district. IO

.. A bill was presented to Government on behalf of a special committee of local authorities but all to no avail. The bill was eventually thrown out on a technicality by the Legislative Council in 1885. On the defeat of this bill, the Tauranga Borough Council sought to form itself into a harbour board which they were entitled to do under the Harbours Act 1878. The

77 Stokes, A histOlY of Tauranga County 1980, 208. Also, Dr G Byrnes, A Preliminary Report on the Use, Control and Management of the Tauranga Harbour, 1996, 15. Tauranga was declared a port under the Customs Regulation Act 1858. 71 Stokes, A HiStOlY ofTauranga County 1980,211. The estimated cost was £27, 300. See also, Dr G Byrnes, A Preliminary Report on the Use, Control and Management of the Tauranga Harbour, 1996, 15. 79 ibid. 10 ibid. 26 Goveinment was not opposed to the establishment of a board but emphasised that there were other responsibilities such as 'staffing' that the board would have to provide. As a result no board was legally constituted. 11 Then in 1887, the Government terminated the local ) harbourmaster's services stating that 'the· shipping trade to Tauranga does not appear to justify the maintenance of a Harbour establishment at that port' .82 Clearly, this highlights the tension between the two authorities since this statement stands in sharp contrast to the fact that the port was still used by a number of vessels, and to earlier calls for 'improvement' of the harbour. In August 1885, the Pay of Plenty Times reported that just in one week, eight vessels had come and gone which it believed 'must indicate an advancement in the Katikati settlement' .13

While Pakeha settlers appear to have been 'advancing', such development was not being matched by Tauranga Maori. By 1885, though more realistically probably earlier, it seems that Tauranga Maori had lost all control over the trading industry and no doubt, their influence over matters concerning the harbour and fisheries. It is suggested, however, that the political debates surrounding the establishment of a Tauranga harbour board in the early 1880s had the effect of provoking Maori to reassert what they considered to be their property rights in ~ relation to Tauranga harbour. Thus in 1885, the issue of 'mana', 'authority' and 'ownership' of fishing grounds and in particular the area below high water mark was at the forefront of their concerns. In 1885, a speech was delivered to Ballance, the Native Minister, by Hori Ngatai on behalf of 'Ngaiterangi'. They challenged the 'Queen's sovereignty' over their fishing grounds and also expressed their concern about the 'work of Europeans' who had 'trampled' over their 'ancient customs' in relation to the Moana.14 From 1885 onward, it will be shown that there were numerous petitions by Tauranga Maori concerning the protection, conservation, management and use of the Tauranga harbour and fisheries. Crown opposition

11 ibid. 82 ibid at 212. 13 ibid at 208. 14 Appendices to the Journals of the House of Representatives Gl, 1885.

27 to Maori fishery claims under the assumption that, through the application of English common law, it owned the foreshores ofthe entire country, and its subsequent vesting of the Tauranga n harbour in the Tauranga Harbour Board in 1915, completed the acquisition of the control and management of the harbour from Tauranga Maori. The Commissioners' purported lack of jurisdiction to hear Maori fishery and foreshore claims prior to the transfer ofjurisdiction to the Native land Court in 1885, coupled with the fact that for over 100 years, Maori proprietaIy rights were rejected by the Courts after the judgement of CJ Prendergast in 1877, left Tauranga Maori with virtually no recourse to justice at the time. 8S And even today, according to Ward, 'no easy avenue of redress is available'.86

2.5.1 Te Mana 0 te Moana: Hori Ngatai's Speech 1885

At a meeting in 1885, Hori Ngatai addressed the Native Minister, Ballance on behalf of the Maori people ofTauranga gathered there. He spoke ofmatters at the heart of Maori concerns and'the current issues of debate. Ngatai specifically refers to the 'mana', 'authority', " 'ownership' and 'ancient custom' over certain fishing grounds and in particular, the area ( ; below high water mark. Additionally, he specifically states that the 'Queen's sovereignty' should not extent to the fishing grounds of his people but should 'remain out in the deep

water away beyond Tuhua' :17

Now with regard to the land below high water mark immediately in front of where I live, I consider that is part and parcel of my land ... part of my own garden. From time immemorial I have had this land, and the authority over all the food in the sea. Te Maere was a fishing ground of mine. Onake, that is a place from which I have from time immemorial obtained pipis. The Rona is another pipi bed. Te Karaka is another

IS The issue of the Tauranga Commissioners jurisdiction to hear claims to the foreshore area will be discussed more fully at point 5.3. 16 Professor A Ward, National Overview Foreshores: 1997, 344. 17 Awendices to the Journals ofthe House ofRe.presentatives, G 1, 1885. Tuhua or Mayor Island is approximately 37 kilometres from the Tauranga harbour.

28 · place. I am now speaking about the fishing grounds inside the Tauranga Harbour. My mana over these places has never been taken away. I have always held authority over these fishing places and preserved them; and no tribe is allowed to come here and fish ) without my consent being given. But now, in consequence of the work of the Europeans that all the land below high water mark belongs to the Queen, people have trampled over our ancient Maori customs and are constantly coming here whenever they like to fish. I ask that our Maori custom shall not be set aside in this manner, and that our authority over these fishing grounds may be upheld. The whole of this inland sea has been subdivided by our ancestors, and each portion belongs to proper owners, and the whole of the rights within the Tauranga Harbour have been apportioned among our own different people; and so with the fishing grounds outside the heads: those are only small spots. I am speaking of the fishing grounds where hapuku and tarakihi are caught. Those grounds have been handed down to us by our ancestors. This Maori custom of ours is well established, and none of the inland tribes would dare go and fish on places without the consent of the owners. I am not making this complaint out of any selfish desire to keep all the fishing grounds for myself; I am only striving to regain the authority which I inherited from my ancestors. I ask that the ..y Queen's sovereignty shall not extend to those fishing grounds of ours, but remain out in the deep water away beyond Tuhua. These are all the subjects upon which we wish to hear your opinion ...In our opinion they affect the Natives very deeply. I dare say some Natives have private matters to bring before you, but these matters which have

been spoken about affect the whole of the people ... the whole of the Maori people. II

Hori Ngatai's submission speaks for itself: the 'mana' and 'authority' over the harbour had been 'handed down' to them, from 'time immemorial' and had 'never been taken away'.

II Appendices to the Journals of the House ofRe.presentatives, GI, 1885. It should be noted that the last four sentences concerning the issue of the Queen's sovereignty and that the issues raised were of concern to all Maori, are omitted from the quotation used by Dr Stokes in her report on 'Te Raupatu 0 TaurangaMoana', Vol 2, 1992,37.

29 According to Ngatai 'the whole ofthe rights within the Tauranga Harbour', were apportioned among the various hapu and particular shellfish beds and fishing grounds were 'owned' or in () other words, the rights to them controlled by particular chiefs of the hapu. This mana over the harbour was not exercised in any 'selfish' desire to keep all the fishing grounds for themselves but to 'preserve' these places from the actions of Pakeha who were 'trampling over their ancient customs' and 'constantly fished their whenever they liked'. It appears that the Crown was influential in the actions ofthese Pakeha by claiming to own everything below high water mark. Ngatai's command ofthis issue is clear, he stated that everything below high water mark was merely 'part and parcel of his own land', part of his 'own garden', and no tribes 'would dare go and fish on those places without obtaining the consent of the owners'.

At the same meeting, the issue of the Queen's authority extending below high-water mark was also raised as an issue of deep concern to Ngai Te Rangi.19 Concerning 'the Queen's authority between high and low-water mark', Ballance replied:

This is a question of law, and depends upon the construction that is placed on the Treaty of Waitangi. It is an important question, and I shall submit it to the Law Officers of the Crown upon my return to Wellington. Ifthose rights were ceded by the Treaty, they are in the Crown; ifthey were not distinctly withheld they are also in the Queen, for the Queen in all her dominions owns the land between high and low­ water mark. It is not the wish of Government to restrict or to curtail Maori customs, unless the Natives wish it themselves; and therefore I shall make careful enquiry into the subject.90

19 ibid. The other issues mentioned in the submission to Ballance were the: Rating Act, restrictions on land, Crown grants that had passed the court, issuing of fire arms and ammunition, that Ngai Te Rangi wished to have a District Committee of their own- to have a separate district, issues regarding the Thennal Springs Act, Road Boards and lastly, that a member ofNgai Te Rangi should be appointed to the Upper House, Legislative Council. &lpendices to the Journals of the House of Representatives, Gl, 1885.

30 The 'construction' that the Waitangi Tribunal has placed on the Treaty ofWaitangi should be noted here. They have stated that any reliance on the common law to deprive Maori of theirtaonga would constitute a breach ofthe Treaty ofWaitangi.91 According to the Tribunal, ) 'common law rights cannot overide Treaty rights... [because] the exercise of British sovereignty is qualified by the article 2 guarantee oftino rangatiratanga. 92 Obviously then, the correct answer from the Crown's Law Officers should have been that 'Maori customs' should have prevailed over an assumed cession of rights under the Treaty. There is no record in the files consulted of any response from the Crown.

2.!.2 The Tauranga Commissioners and the Foreshore: Brabant's Question in 1888

For the time being, the issue ofjurisdiction over the foreshore remained unclear in Tauranga, where the Native Land Court did not decide the initial titles, and the Commissioners who did so had very few guidelines regarding their jurisdiction.93 A complaint by Ngaitamawhariua in 1888, over the loss of their right to fish for shark in the harbour, moved Commissioner Brabant to address several issues including jurisdiction and 'native title'. He stated:

The letter of the Katikati natives is intended to open a very large question. Ever since I have acted as Commissioner to decide titles within the confiscated block I have from time to time [been] asked by various natives to decide the native title to

1. Salt water marshes (where birds and eggs are obtained), 2. Sand flats & Islands covered at high water (where shellfish are obtained), & fisheries within the harbour.94 [Emphasis added]

91 Waitangi Tribunal, Te Wbanganui A Orotu Report 1995,206 and 209. 92 Waitangi Tribunal, TeWbanganui A Orotu Report 1995,206. 93 Brabant to Lewis, 16 May 1881, 'Miscellaneous Papers, 1879-85', DOSLI Hamilton Tauranga Confiscation file 4/26, RDB, Vol 127, 48670-48671. Brabant to Lewis, 2 February 1888, DOSLI Hamilton Confiscation file 5/18, 'Papers on Awards in Katikati Te Puna Purchase', Raupatu Document Bank,

31 Brabant decided that his jurisdiction ended at the high water mark, not because he necessarily n disagreed with the claim made by Ngaitamawhariua and 'various' others, but because he envisaged political difficulties in determining these issues. As he stated:

I have always replied to such applications that I did not understand my commission to extend to any thing below high water mark ... In order that the importance may be understood I may point out that any recognition of these fishery claims would result 1. In their preventing all fishing by Europeans in the harbour &. 2. In the various hapus quarrelling amongst themselves as to the right to fish at particular spots."

The matter was referred on to Mr Clarke who had sanctioned the fishing for sharks for one season but this was subject to the approval of the Native Minister. 'The Minister's approval was not given and there is no specific reason provided on file for this decision. However, on 9 February 1888, WI Morpette wrote to the Native Minister saying that he did 'not think it is 'necessary to go into the question of the fishing rights which is a rather vexed one, but merely reply in subject to Mr Tawaha's old letter', that is, the Ngaitamawhariua claim." Ngaitamawhariua and the'Katikati natives' right to fish for shark was thus dismissed, the issue ofjurisdiction in Tauranga was only partly settled and the issue of ownership over the 'Sand flats &. Islands covered at high water' remained unsettled.

PARTm TE KUWARETANGA 0 TE TURE PAKEHA

Vol. 127, 48881, 48883. Emphasis is added here to draw attention to the fact that there Were numerous complainants by Tauranga Maori concerning foreshore and fisheries issues before 1888. 95 ibid. " RDB, Tauranga Confiscation files, 88/9, pg 4880, minute from Brabant to Kia Tawaha Te RirilTiwi Te Rua dated IS/2/88.

32 3.0 Introduction

We have left the narrative of this report at a point where, in Tauranga, Maori were asking for the recognition oftheir proprietary rights with regard to the foreshore and fisheries and where the Crown was attempting to avoid addressing questions of the same nature. It is clear, however, that by this time, the Crown and government had already assumed certain rights with regard to the foreshore, seabed and the fisheries they contained. It is important then, that we tum to examine the common law and aboriginal title with regard to foreshores and the seabed, as well as surveying statutory developments with regard to ownership of these things.

3.1 Definitions 3.1.1 Meaning of harbour bed

The statement of claim refers to the loss of the Tauranga 'harbour bed'.97 There is no single statutory definition of harbour bed. Section 8 of the Harbours Act 1878 defines a harbour as 'any harbour or port properly so called wether natural or·artificial, and any haven, estuary, navigable lake or river, dock, pier, jetty and work in or at which ships do or can obtain shelter ...... or ship or unship goods or passengers, and any port defined under the Marine Act 1867 and any harbour defined under this Act, and the same terms, or either of them, when used in any provision relating to the jurisdiction or powers of a harbour board extend to include the limits, in which such jurisdiction power may be exercised,9I. While there is no specific reference to the bed ofa harbour, section 7 of the Territorial Sea and Exclusive Economic Zone Act 1977 refers to the 'Bed of territorial sea and internal waters vested in the Crown' .

The sea ofNew Zealand comprises an inner and outer limit area. The inner limit is described as the baseline or the territorial sea measured at low-water mark along the coast of New Zealand including the coast of all islands. The outer limit is the line measured seaward from

97 See Appendix 1 for Statement of Claim. 91 Harbours Act 1878, s 8.

33 the baseline, 'every point of which is distant 12 nautical miles [or 1852 metres] from the

nearest point of the baseline'. 99 ()

In the case of a sea next to a bay where because of the presence of an island, (as in Matakana Island), the bay has more than one mouth and the distances between the low-water marks of the natural entrance points of each mouth added together do not exceed 24 nautical miles, (as in the Tauranga harbour), the baseline from which the breadth of the territorial sea is measured, is the series of 'straight lines across each of the mouths so as to join those low­ water marks,.I00

3.1.2 Meaning of foreshore

The foreshore is defined in the Conservation Act 1987, the Foreshore and Seabed Endowment Revesting Act 1991, and the Resource Management Act. Section 2 of the Conservation Act 1987 defines the foreshore as 'such parts of the bed, shore or banks of a tidal'water as are covered and uncovered by the flow and ebb of the tide at mean spring

tides' .101 This foreshore definition differs from the 'coastal marine area', defined in s 2 of the Resource Management Act 1991 as all land, water, and air space above the water, extending from high water mark to the outer limits of the territorial sea. Richard Boast in his report to the Waitangi Tribunal entitled 'The Foreshore' appears to go one step further by suggesting that in English and New Zealand law, the foreshore includes 'a piece of land, the intertidal

zone, the area between high water and low water mark' .102

3.1.3 Arm of the sea

99 Territorial Sea and Exclusive Economic Zone Act 1977. 100 ibid at s 6 (b). 101 Conservation Act 1987, s 2. The same definition appears in the Foreshore and Seabed Endowment Revesting Act 1991. 102 Richard Boast, 'The Foreshore', Waitangi Tribunal Rangahaua Whanui Series, November 1996.

34 Regarding the Tauranga harbour bed, under English Common Law, a harbour is an 'arm of the sea' .if it is salt water or 'substantially' salt water. The full thrust of common law would then apply and by prerogative right the Crown would own the bed. This law would not apply, ) however, .ifthe harbour was 'substantially' fresh water. The actual ratio of fresh and salt water in the Tauranga harbour is not known here but even if it were substantially salt water (which is highly probable despite the fast running rivers which flow into it), this Tribunal stated in the Whanganui A Orotu Report 1995 that:

we do not see why the presence of substantial quantities of salt water within Te Whanaanui-a-Orotu and the influence of the tide should alter the position in Treaty terms'!03

Regarding the Treaty position, the Tribunal stated:

we think that for the Crown to rely on a principle of English common law to deprive Maori of their taonga, Te Whanganui-a-Orotu, would be a breach of the Treaty

principle to actively protect the property of Maori ... common law rights cannot .-..1\ override Treaty rights ... the exercise of British sovereignty is qualified by the article 2 guarantee of tino rangatiratanga.104

3.2 English Common Law: Assertion of Crown Prerogative Right to the Foreshore

Many people commonly refer to the term 'customary laws' of Maori, as if such law derived from a lessor authority because it was spoken as opposed to written, or to aboriginal title as if Maori society required Pakeha laws to give their own laws legitimacy. In effect, the tendency has been to actually ignore, limit or reinterpret Maori laws or try to fit such laws within the English model without having to truly recognise their correct meaning and the

103 Waitangi Tribunal, Te Whanganui A Orotu, Report, 1995,206 and 209. 104 Waitangi Tribunal, Te Whanganui A Orotu Report 1995,206.

35 processes, structures and authority from which they derive. This in tum has conveniently placed Maori law and the authority from which such laws derive under, below or subject to () existing laws and its sovereign. This qualification is important to bear in mind when reading this report.

Under English common law, the Crown is assumed to own the foreshore by prerogative right. This position is discussed in HatsbuO"s Laws ofEnaJand:

By prerogative right the Crown is prima facie the owner of all the land covered by the narrow seas adjoining the coast, or by arms of the sea or public navigable rivers, and also of the foreshore, or land between high and low water mark ... There is a presumption of ownership in favour of the Crown, and the burden of proof to the

. contrary is on the claimant. 105

According to McNeil's analysis of this rule (1989):

In the case of the foreshore and seabed the Crown is presumed to have been in possession all along. Accordingly, no record of the Crown's title is necessary. Subjects who occupy these lands are prinia facie intruders. Furthermore, in the absence of a Crown grant, any predecessors through whom they claim would have been intruders as well, without an estate or interest that can be passed on. It has therefore never been necessary for the Crown to initiate an inquest of office to establish its original title to the foreshore· or sea bed. It could simply lay an information of intrusion thereby casting the burden on the defendant to prove either a Crown grant, or continuous occupation of sufficient duration for a grant to be

105 Halsbury, 4 ed., vol 8, 1418. Arid, Mc Neil, Common Law Aboriginal Title, 1989,104. And, Attorney-General v Emerson [1891] AC 646. See, RBoast, 'Foreshores' 1997.

36 presumed or a title by limitation required. 106

The Crown assumed that this mental baggage entitled them to vest the foreshore and seabed ') area of the entire country to themselves without the need to recognise the rights guaranteed and reaffirmed to Maori under the Treaty ofWaitangi.l07 The Crown also assumed that they brought these common law principles with them to Aotearoa. 101 If this were the case, then by proving 'continuous occupation of sufficient duration', which it appears that Tauranga Maori could easily do, Tauranga Maori could theoretically defeat the Crown's presumptive title. According to Ward's analysis of Fenton's Kauwaeranga decision 'a tribe had to prove exclusive possession before he would award title' thus adding, perhaps, a more stringent test.

When sovereignty was declared, the Crown became by constitutional fiction the ultimate owner of all land in the colony.l09 This feudal imposition of imperium (the right of government) and dominium (the Crown's paramount ownership of territory) had to be reconciled with the 'natural law' rights afforded to indigenous peoples. Thus, it is not surprising that the Crown accepted that Maori· owned all land in New Zealand and accordingly treated with them for its acquisition. But the question was what was meant by 'land'. The Crown eventually adopted the view that land for that purpose stopped at high­ water-mark. 110

Ifcommon law rules had been applied to questions offoreshore ownership, we have seen that Maori could theoretically defeat the Crown's presumptive title. Additionally, Boast has observed that not even the early settler government seemed to wholly believe in the Crown's

106 Me Neil, Common Law Aboriginal Title, 1989, 104. See, R Boast, 'The Foreshore' 1997. 107 ibid. 101 Waitangi Tribunal, Ngai Tahu Sea Fisheries Report. 1992,154. And, Law Commission, Preliminary Paper No 9 "The Treaty ofWaitangi and Maori Fisheries", 68. 109 ibid at 98. 110 Waitangi Tribunal, Ngai Tahu Sea Fisheries Report, 1992, 154.

37 prerogative right to the foreshore. Gresson 1 in the Re the Ninety-Mile Beach [1963] decision said that if the Court accepted Maori custom title to the foreshore was extinguished by the mere application of common law, then this ''would involve a serious infringement of the spirit of the Treaty of Waitangi and would in effect amount to depriving the Maoris of their customary rights over the foreshore by a side wind rather than by express enactment".111

That tino rangatiratanga reaffinned to Maori the right to continue to govern themselves, land and fisheries irrespective of English law, appears to have been ignored. As stated though, there was a saving qualification for Maori under the common law itself; that is, the Crown's dominion was subject to certain rights afforded to indigenous peoples or what is known today as aboriginal title. 112

3.3 Aboriginal title

The Courts and other non-indigenous authorities have generally struggled to understand the unique character of indigenous peoples' relationship to the land, the scope of their laws, their institutions and, indeed, ofthe authority from which these things derive.113 Instead they have reinterpreted the meaning of such laws and placed them within their own legal framework. Aboriginal title is one ofthose laws and should properly be viewed in that· context. According to McHugh, no prerogative act, such as the English common law prerogative that the Crown owned the foreshore, could extinguish aboriginal rights. This was a point initially recognised in the 1847 case ofR v Symonds. discarded by Prendergast in the Wi Parata decision of 1877 and maintained by the courts for over 100 years,until recently.1l4

111 Re the Ninety Mile Beach [1963] NZLR. 461, 477 quoted in Boast, p 27 112 McHugh, Aboriginal Title In New Zealand Courts, 1983,6 113 In particular, the rejection of Maori rights from 1877 to 1986 following the decision of Prendergast C1 in Wi Parata v Bishop of Wellington which characterised the. Treat as a simple nullity. 114 McHugh, Aboriginal Title In New Zealand Courts, 1983,8.

38 Richard Boast also notes that it is arguable that the Maori customary title to the foreshore has never been lawfully extinguished, because no statute has been passed (such as the Public Reserves Act 1854, the Crown Grants Act 1908, nor the Harbours Act 1878 and so on) ) which was 'unambiguously directed towards that end' .115

3.3.1 The Courts' Approach: the 'Humanitarian' phase (1847)

The New Zealand Supreme Court upheld aboriginal, customary or 'Native title', in the case of R V Symonds. 1847. Chapman J stated:

Whatever may be the opinion ofjurists as to the strengths or weaknesses of the Native title .. .it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers. But for their protection, and for the sake of humanity, the Government is bound to maintain, and the Courtsto assert, the Queen's exclusive

right to extinguis~ it. It follows ... that in solemnly guaranteeing the Native title, and in securing what is called the Queen's pre-emptive right, the Treaty ofWaitangi... does ...., t not assert either in doctrine or in practice anything new and unsett1ed. 116 [emphasis added]

Thus, the free consent ofMaori was required to extinguish their rights. The above quote also suggests that Maori rights were justiciable in New Zealand law. Chapman then explained that the 'Queen's right to extinguish the native title' did not affect the original inhabitants' law of tenure.l17 This effectively recognised two systems ofland tenure within one country. One was governed by feudal principle, the other by Maori law. The New Zealand Constitution Act

115 Blanchard. J Faulkner v Tauranga District Council (1995) [1996] 1 NZLR 357. 363 116 R v Symonds (1847), [1840-1932] NZPCC 387 at 390 (NZSC). Nb, Chapman J considered aboriginal title to be vulnerable to legislative extinguishment. 117 ibid at 391.

39 1852 is important at this stage in that it ~oUllted to the first recognition by the Crown that Maori did in fact have their own laws and were capable of the 'Government of themselves' f) '~ . under such laws. Section 71 of this Act states:

whereas it may be expedient that the laws, Customs, and usages of the aboriginal or native Inhabitants of New Zealand, so far as they are not repugnant to the general principles of Humanity, should for the present be maintained for the Government of themselves, in all their Dealings with each other, and that particular Districts should be set apart within which such Laws, Customs, or Usages should be observed; It shall be lawful for her majesty, by any Letters Patent to be issued under the Great Seal of the United Kingdom, and Repugnancy of any such native laws, Customs or Usages to the law of England, or in any part thereof: in anywise notwithstanding. llB

In 1885, while the above section was still in force, Hori Ngatai attempted to persuade Ballance to give Ngaiterangi, 'a District Committee oftheir own - to have a separate district', in'order that they might have some control over those issues that most concerned them,

..~ including, of course, control of the moana. 119 "' r

3.3.2 The "Simple Nullity' Phase and Rejection of Aboriginal Title (1877)

In the infamous case of Wi Parata v Bishop of Wellington (1877), the Court rejected the

concept oflegally enforceable Maori 'proprietary rights' .120 In this case, Prendergast CJ ruled that the Courts had no jurisdiction to entertain any claims based upon a supposed aboriginal title. 121 The basis for Prendergast's denial of aboriginal title followed a two pronged approach.

111 Constitution Act 1852, s 71. 119 AJHR" 1885, Gl, 59. 120 Ngai Tabu Sea Fisheries Report 1992, 157. 121 McHugh, The Maori Magna Carta. 1991, 113.

40 The first characterised the Treaty as a 'simple nullity', because according to Prendergast no

'body politic existed capable of making cession of sovereignty' .122 Prendergast considered that Maori customary law was uncivilised and therefore any rights created by it were unenforceable in the courts. He stated:

in the case of primitive barbarians, the supreme executive Government must acquit itself as best it may, of its obligation to respect native proprietary rights, and of necessity must be the sole arbiter ofits ownjustice. Its acts in this particular [*missing text] cannot be extinguished or called in question by any tribunal, because there exists no principle whereon a regular adjudication can be based. l23

The second ground of denial of aboriginal title was tied to the following statement that:

Transactions with the natives for the cession of their title to the Crown are thus to be regarded as acts of state and therefore not examinable by any court. 124

Prendergast denied Maori had 'any settled system of law' and therefore the Courts could not ...... " enforce Maori law as there was no law to enforce. 125 Whatever rights Maori did have to their lands was held by Crown sufferance, by moral rather than legal necessity. In short, the State not the Courts was to be the sole arbiter ofwhether it had properly discharged its obligations to respect Maori proprietary rights. 126 The simple nullity approach taken by Prendergast was

122 Wi Parata v Bishop of Wellington (1878) 3 NZ Jur 72 at 76. 123 ibid at 78. 124 ibid at 79. 125 ibid at 72, 74. It is clear that Prendergast is wrong. Maori have constantly argued for the recognition of their laws and such laws have been taken on board to an extent by the Waitangi Tribunal, Law Commission, Maori Land Court decisions and past legislation such as section 71 of the1852 Constitution Act. 126 ibid at 77. See also, McHugh, The Maori Magna Carta 1991, 114.

41 regularly reasserted by the colonial bench in the following years. 127 It was not until 107 years later that the Prendergast reasoning was undone by Williamson J in Te Wehi v Regional Fisheries Officer (1986).128 This decision established that Maori did have a property right, aboriginal title, to coastal fisheries. It therefore cast doubt on earlier judicial interpretations. As a result there are immediate implications and wide ranging consequences which will later be discussed. l29

3.4 The Ownership of the Foreshore and Jurisdiction to hear Maori claims 1878- 1963

In 1878, with the passing ofthe Harbours Act 1878, foreshores throughout the whole country could only be granted by the special sanction of an Act of the. General Assembly.13O The most recent manifestation of this is found in section 150 of the Harbours Act 1950.131 This provision is regarded as the principal statutory foundation for Crown ownership of the foreshore in New Zealand.132 According to Boast, 'The provision is in fact a fetter or restriction on the prerogative rights of the Crown. The Crown is prevented from making a Crown Grant over the foreshore without the Authority of an Act of Parliament. It thus has the effect of preventing the Crown from granting a Crown grant to the foreshore following an investigation of title by the Native Land Court unless, that is the Native Lands Acts themselves can be said to amount to an "authorisation" to do so within the language of

127 This case law is too extensive to discuss on a case by case basis. See, McHugh, Aboriginal Rights, 271-8 and 'Aboriginal Title in New Zealand Courts' (1984) 2 Canterbury Law Review 235 at 247-8. 121 Te Wehi v Regional Fisheries Officer [1986] 1 NZLR 682 at 687. 129 See point 8.1 of this report for more discussion on the Te Wehi case and subsequent judicial discourse concerning aboriginal title. 130 Harbours Act 1878, s 147. 131 Harbours Act 1950, s 150. 132 R. Boast, Te Whanganui-A-Orotu (Napier Inner Harbour) 1851-1991: A Legal History, 1995, 51. See, Record ofOocuments, Wai 201, Wairoa Ki Wairarapa, 01-05.

42 section 150.133

In the end, the issue became one of competing statutory provisions between the Native Lands Acts (and later Maori Affairs Acts) and the restrictions imposed by section 150 of the Harbour Act. Doubt over the relationship between the two authorities remained unresolved until the decision of the Court of Appeal, Re NinetY Mile Beach 1963.134

By the late 1930s and early 1940s, the Crown was clearly in doubt about the legality ofits title to the foreshore. u5 The Crown's solicitor wrote a memorandum at the time arguing that since the Crown's title was so ''weak'', the issue would be better resolved by passing ,legislation to strike down the Native Land Court's jurisdiction to hear Maori claims over the ,;foreshore. He also argued two alternatives (referring to the then pending Ngakororo· case in Northland).136 The first was:

To allow the hearing to proceed unopposed but to oppose from the outset any applications of a similar nature in respect of other mudflats. This course seems

undesirable as it would have the effect of encouraging further applications from ~ optimistic natives.

The second was to vigorously oppose the application and aim to have the case moved from the Native Land Court into the ordinary courts:

To oppose the application vigorously from this stage onwards, asking in particular for

133 ibid. 134 Re Ninety Mile Beach [1963] NZLR 461. 135 In the interim period between 1880s and 1930s, there was much discussion about the establishment of the Tauranga Harbour Board. This is discussed at point 5. 136 Memorandum of Solicitor-Gene tal, 30 August 1935, 30 August 1935 (copy in Lands & Survey Department Special File on 90 Mile-Beach). (Cited in R Boast, The Foreshore, November 1996, 59.).

43 a rehearing of the evidence taken in the absence of the crown, and on the judge finding for the natives, to lodge an appeal on general grounds and in addition to ask for a re-hearing (Section 64, Native Land Act 1931) on the ground that evidence was taken in the absence ofthe Crown - this application for a rehearing constituting a last endeavour to obtain an opportunity to cross-examine the witnesses put forward by the claimants. In addition, to give consideration to the question of hearing a special case stated for the Supreme Court (Section 61, Native Land Act 1931) to determine whether ''tidal lands" may be customary lands within the meaning of legislation relating to native customary lands .

. The Native Land Court's Ngakororo decision dated 30 ·September 1941 was decided in favour of the Maori claimants on the grounds that it was papatupu or native customary land

and also under the law of accretion. 137 The Crown appealed, and the Native Appellate Court appeared to concur with the Native Land Court but then decided that the question of whether or not land was customary was a question of fact and also decided that there was not enough 'evidence to support the claimants' assertion of customary ownership.

Then in 1957, the Maori Land Court accepted arguments by Maori that Ninety Mile Beach was customary land. In this case, counsel for the claimants unwittingly agreed to the matter being referred to the Supreme Court rather than being appealed in the Maori Appellate Court. The Supreme Court had to determine whether the Maori Land Court had the power to conduct title investigation with respect to the foreshore. The Supreme Court concluded that the Maori Land Court did not have jurisdiction to enquire into ownership of the foreshore, not necessarily because of the Crown argument that the foreshore had been Crown property since 1840, but on the basis of the Harbours Act 1950 and the Crown Grants Act 1908. The case was taken to the Court of Appeal. Once again, the Crown argued that English common law applied in New Zealand since 1840 and under common law therefore, the foreshore was

137 ibid.

44 vested in them. Maori submitted that the Maori Land Court existed to investigate customary title and that they held· the customary title to the foreshore.· While this Court decided in favour ofthe Crown, it stated, however, that ifMaori were to be deprived of their rights, there had ) to be an 'express enactment'. Such rights could not be taken away by a 'side wind' .138

In the intervening years between the passage of the Harbours Act in 1878 and the Court's decision in re Nmety Mile Beach [1963]. NZLR a number offoreshore claims were made by Maori throughout the country. The claims were heard by the Native Land Court although none appear to have been made by Tauranga Maori.139 It is not necessary here to detail the numerous foreshore claims made by Maori to obtain recognition of their rights to the foreshore, but it is important to note that these claims were 'vigorously opposed' by the

Crown. 140

3.5 A comparative analysis: The Lake Omapere decision, 1929

At this point, parallels with the Lake Omapere decision of 1929 provide a useful guideline to understanding the inter-relationship between tangata whenua of Tauranga, the Tauranga Moana, the Treaty ofWaitangi and English common law. This Tribunal in the Te Whanganui A Orotu Report 1996, placed significant weight on the decision of Judge FOV Acheson in the Lake Omapere decision. The Tribunal viewed his judgement as 'one of the most perceptive judgements in the legal history of our country' and thought that his words could be applied to Te Whanganui A Orotu with only minor modifications. Equally, these words

138 In Re Nmety-mile Beach, 477 (cited in Boast, The Foreshore, 1996, 68). 139 Some ofthe main foreshore claim to the Native Land Court were Parumoana (1883), Awapuni Lagoon, Gisbome (1928), Lake Omapere (1929), Ngakaroro Mudflats, Whakarapa River, Hokianga (1941), Herekino (1941), Orakei (1956), Te Whanganui A Orotu (1924)-application, (1934)-inquiry. (Cited in Boast, Te Whangnui-A-Orotu (Napier Inner Harbour) 1851-1991: A Legal History, 1995). 140 R. Boast, Te Whanganui-A-Orotu (Napier Inner Harbour) 1851-1991: A Legal History, 1995,53-7.

4S could also be applied to Tauranga Moana. For this reason the passages referred to by the Tribunal are quoted here almost in their entirety:

Did the ancient custom and usage of the Maori recognise ownership ofthe beds of lakes?

Yes! And this answer necessarily follows from the more important fact that Maori custom and usage recognised full ownership of lakes themselves. The bed of any lake is merely a part of that lake, and no juggling with words or ideas will ever make it other that part of that lake. The Maori was and still is a direct thinker, and he would see no more reason from separating a lake from its bed (as to the ownership thereof) than he would see for separating the rocks and the soil that comprise a mountain. In fact, in the olden days he would have regarded it as a rather grim joke had any strangers asserted that he did not possess the beds of his own lakes.

To the spiritually minded and mentally gifted Maori of every rangatira tribe, a lake was something that stirred the hidden forces in him. It was (and, it is hoped, always will be) something much more grand and noble than a mere sheet of water covering a muddy water bed. To him, it was a striking landscape feature possessed of a 'mauri' or 'indwelling life force' which bound it closely to the fortunes and the destiny of his tribe. Gazed upon from childhood days, it grew into his affections and into his whole life until he felt it to be a vital part of himself and his people. .. To the Maori, also, a lake was something that added rank, and dignity, and an intangible mana or prestige to his tribe and to himself. On that account alone it would be highly prized, and defended.

Finally, to all these things there was added the value of a lake as a permanent source offood supply ... Lake Omapere ... has been to the Ngapuhis for hundreds of years a well-filled and constantly-available reservoir of food in the form of the shellfish and

46 the eels that live in the bed of the lake. With their wonderful engineering skill and unlimited supply of man-power, the Maoris could themselves have drained Omapere at any time without great difficulty. But Omapere was of much more value to them ) as a lake than as dry land.

Was lake Omapere, at the time o/the Treaty o/Waitangi (1840), effectively occupied and owned by the Ngapuhi Tribe in accordance with the requirements 0/ ancient Maori custom and usage?

Yes I The occupation of Omapere was as effective, continuous, unrestricted, and ":"; exclusive as it was for any lake-occupation to be. It is not contested that for many hundreds ofyears the Ngapuhis have been in undisputed possession of this lake, and have lived around or close to its shores ... Great numbers of the Ngapuhi must have grown up within sight of Omapere's water, and have regarded the ·lake as one of the treasured tribal possessions. By no [process] of reasoning known to the Native Land Court would it be possible to the convince the Ngapuhis that they and their

forefathers owned merely the fishing rights and not the whole lake itself...... i )

According to ancient Maori custom and usage, the supreme test of ownership was possession, occupation, the right to perform such acts as ownership as were usual and necessary in respect of each particular portion of the territory possessed. In the case of lake the usual signs of ownership would be the unrestricted exercise of fishing rights over it, the setting up of eel-weirs at its outlets, the gathering of raupo or flax along its borders, and the occupation of villages or fighting-pas on or close to its shores.

In short, the Ngapuhis used and occupied the Lake Omapere for all purposes for which a lake could reasonably be used and occupied by them, and the Native Land Court says that much less use and occupation would be ample, according to ancient

47 custom and usage, to prove actual and effective ownership of the lake, bed and all. It was contended (but not seriously pressed) on behalf of the Crown that sales by .. () Natives to the Crown, of area adjoining Lake Omapere, gave to the Crown rights in those portions ofthe bed ofthe lake fronting on to the portions sold. This contention has no merit whatever. The sales to the Crown were of particular areas ofland well defined as to area and boundaries, and could not possible have intended to include portions of the lake bed adjoining. See also judgement of court of Appeal in Re Muller v Taupiri Coal Mines Co (1900) 3 GLR 154. Also the mere fact Lake Omapere was 'customary land' was an absolute bar to sales of any portions of it to the Crown. Section 89 of 'The Native Land Act, 1909' forbids sales of 'customary land' to the Crown, and earlier statutory provisions were to the same effect.

Moreover, Lake Omapere was tribal tenitory, and therefore, according to established Maori custom and usage, no individual or group of individuals had the right to alienate any portion of its bed. To hold otherwise would be to give support to that lamentable doctrine which led, in the celebrated Waitara case, to tragic and unnecessary wars between Pakeha and Maori. There canthus be no presumption either in law or in fact that the sales of some lands to the Crown adjoining Lake Omapere carried with them rights to portions of the lake or of its bed.

Are the words 'Lands and Estates, Forests and other properties which they may collectively or individually possess', contained in Article Two of the Treaty of Waitangi, ample in their scope to include Lake Omapere?

Yes! According to English Common Law and ancient Maori Custom, the term 'lands and Estates' would be ample to include by description a lake or a lake bed. But even if that were not so, the further term 'other properties collectively possessed' would be more than ample to include a lake occupied and possessed as was Omapere.

48 Did the parties to the Treaty ofWaitangi contemplate, at the time ofthe signing, that the natives would be entitled to the bed ofLake Omapere? ) The parties to the treaty certainly intended it to protect the rights of the Ngapuhis to their whole tribal territory. The Court has already shown that such territory necessarily included Lake Omapere, and that ownership of the lake necessarily included ownership of the lake bed.

In these later days, 1929, it is not sufficiently realised how dependent the early settlers were on the Treaty ofWaitangi, and that what great benefits the white people derived from it for several decades ... In view of the consideration set out above, the Native· Land Court holds that it is unreasonable to suppose that the natives at the time of the Treaty intended to give up Lake Omapere or its bed to the Crown.141

PART IV

4.0 VESTING OF TAURANGA MOANA FORESHORES IN THE TAURANGA ,...... 1 ! BARBOUR BOARD

4.1 Introduction

As we have seen, by the mid 1880s, Maori in Tauranga were beginning to question the Crown's assumption of prerogative rights over the foreshore and moana. The Crown for its part, assumed ownership ofthe foreshore and seabed by virtue of English common law, while the Government took steps to prevent the Native Land Court investigating or granting title to foreshores. At the same time, government officials evaded engaging Maori in an open debate about questions of foreshore ownership .

•4. FO V AclIesoo,LakeOmaperejudgement. 1 August 1929, Bay of Islands minute book 11, pp 253-278 quoted in Waitangi Tribunal, Te Whanganul a Orom Report 1995, pp 207-209

49 In his report to the Crown Forestry Rental Trust, Tony Nightingale suggests that unlike Te Arawa, Tauranga Maori were generally reluctant to engage local or central government in debate over their coastline and foreshore. Nightingale refers to protest by Maketu Maori against the vesting of the Maketu coastline to the Tauranga Harbour Board in 1924. Dr Byrnes' report on 'The Use, Control and Management of the Tauranga Harbour' touches on this issue. She states that Nightingale's remarks rest on the premise that legislation controlled by a local government is more strictly enforced on the local people than legislative measures that are the direct responsibility of the more distant mechanisms of central government. Dr Byrnes points out, however, that some Tauranga Maori did state their concerns to central

government. 142 Between 1873 and 1889 close to forty petitions were presented to Parliament concerning Crown activities over their lands.10

Furthermore, evidence shows that there were numerous petitions made by Tauranga Maori about the foreshore and fisheries before the passing of the Tauranga harbour legislation in 1912 and 1915. There were Hori Ngatai and Ngaiterangi's submissions to the Native Minister in 1885, and prior to that, Hamuera Paki's claim that Te Puru's people owned 'Te Patatai', - an area of foreshore. Other claims were made concerning the off shore islands and those to Maunganui lands also referred to various fishing practices and the ownership of specific fishing sites including: the shore near 'Tuparehuia' which was a rahui Kahawai, and the Toka Tamure and Marutuahu sites. It should be noted that Ngatai and Raukawa's concerns appear

to have been tabled on behalf of the whole of'Ngai Te Rangi' .144

There was also Ngaitamawhariua's claim to .shark fishing in 1888 and Commissioner Brabant's memorandum stating that he had 'from time to time' been 'asked by various natives

142 Refec to G Byrnes, A Preliminary Rqxxt 00 the Use, Control and Management of the Tauranga Harbour, 1997 143 Almost one quarter of these petitions referred to the Katikati-Te Puna purchase. Vmcent O'Malley, 'The Aftermath of the Tauranga Raupatu, 1864- 1981: An overview Report Commissioned by the Crown Forestry Rental Trust', June 1995, A22, Wai 215, 97. 144 Refer to previous sections of this report at 2.1 and 2.5.1

50 to decide native title' to land below high water mark and to fisheries. Additionally, the Native Affairs Committee reported in 1887 on a petition byReneti Te Whauwhau, Te Amo 0 Te Rangiand 6 others ofTauranga concerning 'certain foreshores and sandbanks' to be 'vested ) in them for the purpose of obtaining food therefrom' .145 The basis of this claim was the Treaty ofWaitangi. The Committee directed that 'this question of foreshore rights be again referred to the Government for consideration'. No specific response appears to have been made.

4.2 The Tauranga Harbour Board Act 1912

The politics ofthe Tauranga Harbour Board are the subject ofDr Brynes report on 'The Use, Management and Control of the Tauranga Harbour' but for the purposes of this report the following issues should be noted.

The Tauranga Harbour Board Act 1912 constituted the Tauranga Harbour Board upon which the Board could acquire 'all wharves, jetties, buoys, beacons, sheds, and appurtenances thereofwithinthe harbour' .146 In May 1913, the Board requested that the harbour land and

147 foreshore of the Tauranga Harbour vest in the Board. ,...... I f

There is no record of Tauranga Maori petitioning the Crown over the enactment of the Tauranga Harbour Board Act 1912. When the Bill received its second reading in the House it was recorded that: 'It was simply a Bill to constitute the Tauranga Harbour Board, to which there was no objection whatever. It had the approval of all concerned' .141 While the Crown consulted the Tauranga County and Borough Councils, and the Railways Department before the actual vesting (constituting whom the Crown believed to be the only parties 'concerned'

145 AJHR.1887, Vol 2, 1-2. 146 Tauranga Harbour Act 1912, S 7. 147 Marine Series 1, File 4/1532, George Allport, Secretary of the Tauranga Harbour Board to the Minister of Marine, 18 October 1913. 141 NZPD 1912, 399.

51 at the time) they did not consult tangata whenua. 149 Additionally, Maori were not elected to

local councils 'until well after the World War II' .150 According to Dr Byrnes there 'was no n recorded consultation with Tauranga Maori concerning the succession of developments

undertaken by the Tauranga Harbour Board' .151

4.3 The Tauranga Foreshore Vesting and Endowment Act, 1915

On 12 October 1915, the Tauranga Foreshore Vesting and Endowment Act 1915, was enacted.152 The main purpose of the Act was to enable the Tauranga Harbour Board to acquire the wharves at Tauranga. 153 The wharves were to be vested in the Board as from 1 April 1913 following the payment of £6,509 to the Council in three installments with leave of25 years to conclude the last payment of £2500.154 Section 3 vested the 'whole of the foreshore of the Tauranga Harbour as described in the schedule in the Tauranga Harbour

Board' .155 The area in question consisted of:

All the foreshore of the Tauranga Harbour commencing at the north head, Katikati entrance, and thence following the mainland to the headland at Mount Maunganui opposite the Beacon rock at the Tauranga entrance to the harbour; as shown on the plan deposited in the office of the Chief Surveyor at Auckland, as No 18315 (blue).

The effect of current case law on the Tauranga Harbour Act 1912 and the Tauranga

149 T. Nightingale, Social Impact Report, 1996, 63.Also,··Marine Series 1, File 4/1532, George Allport, Secretary of the Tauranga Harbour Board to the Minister of Marine, 18 October 1913. 150 T. Nightingale, Social Impact Report, 1996, 63. 151 G Byrnes, A Preliminary report on the Use, Control and Management of the Tauranga Harbour, 1997, 58. 152 Tauranga Foreshore Vesting and Endowment Act, 1915. 153 Tauranga Borough Council and Tauranga Harbour Board Empowering Act 1915, s 2. 154 ibid, re: Schedule 1 & 2. 155 ibid at s 3.

S2 Foreshore Vesting and Endowment Act 1915, suggests that these vesting legislative enactments are insufficient in themselves to have extinguished aboriginal title over the foreshore ofTauranga harbour. l56 )

4.4 Marginalisation of Tauranga Maori in the control of the foreshore

Tauranga Maori had very little input into the vesting of the Tauranga harbour in the Harbour Board. Two debates merit full attention surrounding the Board's undertakings, in that they illustrate the marginalisation of Maori in the control of the harbour or the foreshore and fisheries. 157

Fhstly, the Harbour Board was keen that all land on the foreshore at Taurangabe granted to it. Immediately after the Crown divestment, the Board returned to the Government to gain control of Crown lands, 'including the boat landing reserves for Maori. ,151 The Crown was not moved by the Board's arguments that such land would 'maximise its potential income and

simplifY administration' so the land remained in the Crown. 15!) The circumstances surrounding the history ofthese reserves, and the amount ofland left in Maori hands next to the foreshore ~ area, require further research. 16O

According to Dr Brynes, the issue of the vesting of Tauranga' s foreshore areas in the Board received a great deal of attention at Board meetings. 161 She concluded that: Tauranga Maori

156 This case law will be discussed in more detail at point 5.0-5.8 of this report. 157 T. Nightingale, Social Impact Report, 1996,66-73. 151 ibid at 67. 159 ibid at 66. 160 It should be noted that a report on reserves in Tauranga has been prepared by Dr Evelyn Stokes; additionally, these matters will be canvassed by Robert McClean, Waitangi Tribunal staff researcher, in an upcoming report on the moana (to be filed on the Wai 215 record of inquiry). 161 G Byrnes, A Preliminary report on the Use, Control and Management of the Tauranga Harbour, 1997, 24.

53 do not appear to have been consulted about the establishment ofthe Tauranga Harbour Board and the development ofthe port, despite their previous assertions of mana over the harbour; n Tauranga Maori were prejudiced by the lack of consultation and the limits these developments placed on traditional access to the harbour and its resources; they were precluded from participating in the legislative and planning process by which the Tauranga Harbour Board came to acquire and control the foreshore reclamations; and they were prevented from voicing their concerns about their rights within the harbour. Moreover, she stated that 'Harbour Board developments took precedent over any acknowledgement of Maori

traditional rights and Treaty responsibilities' .162

One contested area was the Monmouth Street Redoubt. In the early 1920s, the Board sought control over the site. It was previously used by the TaurangaDistrict Council as the site of the town's inadequate septic tank. The tank was considered unsatisfactory by many as it frequently overflowed into the harbour near the town centre. The Council resisted the transfer because they would have been at the 'mercy' ofthe Board who may have insisted they fix the problem, no doubt a costly exercise. On 27 September 1920, in a letterto the Minister of Marine, Sir William Berries, the Town clerk requested that the site be added to Borough land: H, !

Re. Harbour Board application for the foreshore, consider this land should be vested in the Borough as understand septic tank on part of it. Writing.

Ifyou will kindly look at the map of Tau rang a you will see at once that the piece of land asked for is part or included in Strand and Monmouth Street '& Redoubt and also septic tank is part of it. If handed over to Harbour Board the Borough would be at the tender mercy of the former as regards septic tank. l63

162 ibid at 54-55. 163 Marine Department, series 1, file 4/1532, Town clerk Tauranga Borough to Hemes, 27 September 1920.

S4 The Board made another attempt to gain the site in 1925. Tensions between the two authorities left little room for consultation with tangata whenua on an issue that had considerable impact on them. Some impact studies have been done. l64 According to Dr ) Brynes, 'the discharge of sewerage had a detrimental impact on Maori uses of, and relationship with, the Tauranga Harbour. This was an issue that affected the Maori community more than others in the region, due to the location of marae settlements close to the harbour foreshores and waters and their reliance on the plentiful supply of kaimoana as a constant food source. ,165 It is clear here that the Crown had delegated its authority without ensuring that its Treaty obligations to Maori were carried out by the local bodies.

Asecond debate arose over the vesting of the coastline between Maketu and Waihi in the Tauranga Harbour Board. In 1924, local Maori at Maketu protested against the vesting and asserted their rights to foreshore under the Treaty .166 In contrast to Tauranga Maori who did not appear to have been included in local government, members of the Arawa Maori Council joined with local bodies in a move to oppose the vesting. These bodies proposed that they should control the foreshore. 167 The report of the Assistant Secretary of the Marine Department stated that a mistake had been made when the foreshore was put within the .- jurisdiction of the Tauranga Harbour Board in 1912,,68 There is no indication from the files

164 These reports are: 'Western Bay of Plenty Sewerage Water Right Study of Bay of Plenty Ocean Foreshore Waters, Study Report, Prepared for Bruce Henderson Consultants Ltd, ' 1991, A20, Wai 215, P 55. Bioresearchers, 'Western Bay of Plenty Sewerage Water Right Study of Bay of Plenty Nearshore Ocean Waters Biological Resources', A21, Wai 215. T. Nightingale, Social Impact Report, 1996, 66-73. G Byrnes, A Preliminary report on the Use, Control and Management of the Tauranga Harbour, 1997, 49. 165 G Byrnes, A Preliminary report on the Use, Control and Management of the Tauranga Harbour, 1997, 55. 166 This protest is followed in Wai 27, evidence of David Armstrong in N gati Makino and the Crown 1880-1960, 1995. 167 Marine Department Series 1,4/1532, Te Puke Times 16 June 1924. 168 Marine Department Series 1, file 4/1532, Memo, Assistant Secretary Marine to Mr Godfrey, 19 June 1924.

55 ofwhy or how the mistake was made. Tohi Piti then wrote to Apirana Ngata on behalf of the Maketu committee setting out their objections to the vesting of the coastline: () 1. The said seashore is land of great historical importance to the Te Arawas for here the canoe Te Arawa landed.

2. .The seashore from Maketu to Waihi is sacred to us because located there are our

(a) Ancestral Burial grounds. These have been in use from their times even to the present generation

(b) Pipi, K.uku, Paua, and Kina beds. Our fishing grounds are located along this foreshore

(c) Scenic Reserves which have been developed into Summer resorts for the use of the public

(d) Gravel pits and sand reserves. Our European friends have been given the use ofthese pits and sand reserves when requiring metal. We have not had any occasion to interfere with our European friends in the use of gravel or sand because we have been living together on intimate terms from the time of our parents up to the present.

(e) Ifthe motion which aims at the transference of the said sea shore to the Tauranga Harbour Board is given effect to we fear that serious trouble will raise between us and the said Harbour Board.

Wherefore we the undersigned urge you and your honourable friends to oppose this

S6 intention of our friends from Tauranga.169

The letter was signed by Tohi Piti and others. Ngata responded by suggesting to J G Coates, ) the Native Minister, that some accommodation ought to be made for Arawa Maori and specifically raised two questions:

(1) Whether, assuming that all foreshores are by law vested in the Crown, it is desirable that this particular foreshore should in tum be vested in the Tauranga Harbour Board?

That is a matter of policy for the Marine Department, which might be reviewed in connection with the Bill to be presented next session. But it might be contended that Native rights of user dating back several centuries are if not acknowledged by the Crown certainly not interfered with in practice. The Natives have been allowed to gather shellfish, to set up rahuis, and to exercise some of the acts of proprietorship, until they are confirmed in the belief that such rights subsist in law as well as in fact. Numerous cases will occur to you mind in the North at Whangarei and other places, _

and not so long ago it was found advisable to intervene in the case of Te Ane 0 Muriwai. It may be possible to make reservations at Maketu as to preserve the sentiment connected with the historical landing place ofTe Arawa Canoe as well as to acknowledge the claims to gather shell-fish etc, without interference.

(2) Whether native rights to fishing grounds, pipi beds, ect. expressly reserved in the Treaty ofWaitangi do exist and can prevail to day as against the Crown? Like many another issue raised by that Treaty, this Native fishing right has been avoided in the

past. 170

169 Marine Department Series 1, file 411532. 170 Marine Department Series 1, file 411532.

57 In a letter to the Board, the Marine Minister explained why he decided not to vest the harbour

between Waihi and Matata in the Board, stating that public (and hence in p~ Maori) opposition was influential .

... it is evident, from the report of the meeting which was held at Te Puke, that there is considerable objection in the district to these foreshores being vested in the Board, and in the second place, unless there is some essential reason why the' foreshores should be vested in the Board it is considered unwise, as a matter of policy, for the Department to divest itself of assets ... [.]171

That Tauranga Maori did not specifically protest the legislation vesting the Tauranga Moana foreshore in the Harbour Board does not mean they did not care about who owned the fishing grounds, pipi beds, etc. Rachael Willan puts forward another view in her report on Otamataha that one question 'which can also be asked is how many Maori knew of the Act and its consequences. No protest equally might mean Maori assumed they retained ownership of the

harbour' .172 The earlier proposition seems highly probable since Hori Ngatai's submissions to the Native Minister in 1885 concerning the foreshore appeared to be have been made on behalf of the whole ofNgai Te Rangi. As stated, evidence shows that there were 'various' other protests and claims over the foreshore and harbour fishing rights by Tauranga Maori during the 1880s. One might reasonably assume therefore, that ifthese people were aware of the vesting legislation, then there would have been objections. Alternatively, perhaps they and others were disillusioned by the confusion caused by Commissioner Brabant's view that he lacked jurisdiction to hear such matters and that the Native Land Court did not sit in Tauranga until jurisdiction had passed over in 1886. Whatever the case, it would have made no difference by Ngata's analysis. He was clearly of the opinion that customary and Treaty rights 'prevailed against Crown title'.

171 ibid. 172 Rachael Willan, "Otarnataha" a report commissioned by the Waitangi Tribunal for Wai 580, May 1992, 39.

S8 4.5 The ODaoina Struaale: Pakeha traDsaressioD v Maori reassertioD ) The Native Minister does not appear to have responded to the concerns expressed by Tauranga Maori in the 1880s. It was not until the early 1920s that officials of the Crown took notice of changes that were happening to the moana. The following examples or case studies are provided in order to illustrate, in part at least, the lack ofMaori input in the management of the Tauranga Moana and the injurious consequences suffered by Maori communities through local body, and ultimately Crown, neglect of Maori rights in relation to the moana.

4;:5~1 The Oyster Fishery at Katikati In a report to the Secretary of Marine dated 6 September 1923, the Chief Inspector of Fisheries, LF Ayson, mentioned the virtual extinction of the oyster beds in the region.

Subject; Oysters: Planning in the Bay of Plenty - Also planting of Mud Oysters in the Katikati Harbour

Secretary Marine

In the early days of settlement oyster beds existed in a good many places in the Bay ofPlenty, but they were practically wiped out over twenty years ago. I do not think it is advisable to spend money on planting beds there at present, as it would be impossible to protect them. Ifthe Govt. Will give effect to my recommendation to lease the beds, and portions of the foreshore suitable for oyster cultivation, the Acel. Society and private persons could then take up acres and cultivate oysters for the market. I consider that the oyster cultivation work should be confined to foreshore where the best quality oysters can be grown and where they can be properly protected, such as the

59 Hauraki Gulf and Bay of Islands. 173 n The report establishes several points. Firstly, the Government was unable to 'protect' or cOnserve the oyster beds in the Bay of Plenty district. It therefore seems unlikely that the Government would have been able to police the pipi, mussel, cockle and other kaimoana in the region. Secondly, there is no record of any consultation with tangata whenua, nor is there any mention by Ayson regarding their interests in the oysters.

Thirdly, it is clear that the Government had difficulty meeting its obligations under its own laws let alone its Treaty responsibilities. This included section 8 of The Fish Protection Act 1878 which stated that nothing in the Actwas to affect any ofthe provisions of the Treaty ofWaitangi, or to take away Maori rights to any fishery secured by it. It also included section 14 of the Oyster Fisheries Act 1892 which stated that174

The Governor may, by Order in Council, from time to time declare any bay, or portion of a bay, estuary, or tidal waters in the colony in the vicinity of any Native pa or village to be an oyster-fishery where Natives exclusively may take oysters for their own food at all times ... and may prescribe regulations for preventing the sale by Natives of any oysters from such beds, and for protecting any such bay, estuary, or tidal waters from trespassers, and the oysters therein from destruction.

Before the Act was repealed in 1894, an Order in Council dated 7 September 1892, invoked the Act over the North Island. 175Given section 8 of the Fish Protection Act 1878, and the treaty principle that the Crown actively protect fisheries, one might argue that the Crown had

173 Marine Series 1,2171134, Chief Inspector Fisheries to Secretary Marine 14 August 1923. 174 The Fish Protection 1878, s 8., and Oyster Fisheries Act 1892, s 14. Nb, Section 16 (10) ofthe Maori Council Amendment Act 1903 also provided for the reserve offishing grounds 'exclusively' for the use of Maori. 175 New Zealand Gazette, 7 September 1892.

60 a duty to continue to enforce the Oyster Fisheries Act 1892.

There were attempts to have oysters returned to the Tauranga region in 1940. While on a visit to Tauranga in that year, the :Minister of Marine and Scientific Research, Dr DG McMillian, was asked about the poSSIbility ofintroducing oysters into the harbour. A local explained that 'in the early days when there was no restriction, rock oysters yielding as much as an egg, each, were atWnable from the shores of Tutaetaha, the Maori burial ground in the estuary of

Reretukahia; smaller oysters being obtainable all over the harbour. ,176

The minister 'Ya8 not moved by the request. The example cited of taking oysters from the burial ground ofTutaetaha seems to confirm Hori Ngatai's claim that Pakeha were taking shellfish from wherever they pleased and in doing so trampling over ancient Maori customs.

4.5.1 Petition by five coastal Marae over Councll's sewerage discharge proposal in 1918

In 1928, 148 persons representing tangata whenua of Tauranga from 5 coastal 'villages' - petitioned the :Minister of Health to review a Council proposal to discharge excess eftluent from the town's septic tank on the foreshore into the Waikareao Estuary. The estuary provided various food sources to the above villages. The petition stated that the discharge would be 'depriving them the use of certain pipi beds over which they [had] exercised rights from time immemorlal ... and that should the said pipi beds be polluted it will mean that certain means of livelihood ... will be lost and fever will be rampant'. The petitioners also suggested that 'in the interest ofthe health of all citizens ofTauranga and the villages bordering on the Tauranga Harbour', that the septic tank be inspected and reported on by a 'disinterested engineer'.

176 Marine Department Series 1, 21121454, Bay of Plenty Times, 17 December 1940.

61 The Health Department sought a report from a medical officer based in Auckland. He found that the septic tank area was a problem to such an extent that the Harbour Board had required f~) '\ , the Borough Council to do something about it. l77 In the end, the impact 9f the petition was minimal, no pipe was constructed and sewerage leakage from the septic tank continued to ,be a major problem in Tauranga until the mid 1960s. In this regard, Nightingale states, '[W]hat seems inexplicable given the comments of the medical officer of Health and the prevalence oftyphoid amongst Maori at Tauranga, was that nothing was done, either by the

local authority or by central government' ,171 This inaction left Tauranga Maori with a polluted foreshore and concerns about the quality of the kaimoana which was used for regular sustenance rather than as a recreational source of food.

4.5.3 Maori at BowentoWD Express Concerns over Commercial and megal Taking of Mussels in 1929

In 1929, the clerk ofthe Katikati Domain Board wrote to the Harbour Board on behalf of the Maori living at the settlement near Bowentown requesting that some restraint be placed on thecommercia1 taking of mussels. The Clerk's letter was forwarded on to the Marine department. It stated that large quantities of mussels had been taken from the beds situated opposite Katikati and sold both legally and illegally. If not stopped, this would eventually

'deprive the Natives as well as the visitors to the Domain, of the use of these shellfish' .179

A marine biologist endorsed the view that there was excessive depletion and recommended that it was necessary to close the beds to all commercial fishing. 110 This was followed up with

177 Health, Series 1, 321141, 30/37. 178 T. Nightingale, Social Impact Report, 1996, 72. 179 Marine department Series 1, 21121454, included in letter from Secretary, Harbour Board to Secretary, Marine Department, 19 April 1929. 110 Marine department Series 1,21121454, Marine Biologist to Chief Inspector Fisheries, 19 December 1929.

62 a ban on the taking of mussels. III

In one particular case, though isolated, there appears to have been a change in official ) thinking. The Athenree Maori Committee at Katikati were contacted in May of 1948 over an

application for a license to take mussels. III Although there is no direct evidence, this change was probably due to the passing of the Maori Economic and Social Advancement Act 1945 which provided for the exclusive use by Maori of their fishing groundS. 113 The interesting point is that the application appears to have been rejected based upon the Athenree opinion.

4.5.4 Mataana Tribal Executive Petition, 1948

'Fhe Maori Councils Amendment Act 1903 provided for the gazetting of Maori fishing grounds 'exclusively for the use ofthe Maori of the locality or of such hapus or tribes as may

be recommended' .114 The provision was re-enacted under section 33 of the Maori Social and Economic Advancement Act 1945.185 This section brought high expectations and once again, TaurangaMaori sought to re-establish their control over their fishing grounds by way of this

provision. Thus, on 24 March 1948, a petition was submitted by the Matakana Tribal --..i Executive and signed by 77 persons on behalf of the 'Maori People ofMatakana Island' to have the area known as Hunters Creek set aside under section 33 of the Act. The petition also stated that the area would be controlled by persons appointed by their own people, that fishing was to be for hui only, and that a ban should be placed on the method offishing used by,commercial fishermen. l86 Section 33 of the 1945 Act states:

111 New Zealand Gazette No. 27, 10 April 1930. III Marine Department, Series 1, 21121454, Secretary Athenree Tribal Committee to Chief Inspector Fisheries 6.5.48 113 Maori Economic and Social Advancement Act 1945, s 33. 114 Maori Councils Amendment Act 1903, s 16 (10). 115 Supra at 350. 186 Maori Affairs Department, Series 13, W2490, Petition received by Prime Ministers Office, 23 March 1948, and Maori Affairs Department, 24 March 1948.

63 subject to the recommendation of the Minister of Marine any pipi ground, mussel bed, or other shellfish area, or any edible seaweed area or fishing ground, may be reserved for the exclusive use ofMaoris. lB7

Under clause 2, the control of such area or fishing ground may be placed under a Tribal Committee or Executive which under clauses 3 and 4, may take such steps as appear necessary and make such by-laws as it thinks fit to protect, control and regulate the area or fishing ground. lBB In fact, the Marine Department declared that it had no intention of implementing a regime which would enable Maori to exercise 'exclusive use' and control of particular fishing grounds. The Government had actually planned to alter section 33 of the Act, but because the Bill was already very late, they decided to bide their time. On 19 April 1948, the Secretary ofthe Marine Department wrote to the Under-Secretary of Maori Affairs stating:

The contlict that is about to arise ifthe petitions under Section 33 of the Maori Social and Economic Act as instanced are acceded to, are perceived at the time the Bill was being enacted. At the time the attention of the Hon. Minister of Marine was drawn to the provisions and the desirability of limiting these provisions to some extent. The Hon. Minister for Marine replied that the matter was discussed with the Native Minister and it was decided that owing to the lateness of the Bill no action be taken at present. If, in the light offurther consideration Clause 34 (Section 33 in the Act) could be repealed and embodied in a Fisheries Amendment Bill, consideration could also be given to the alteration of subclause 1, dated 7-12-45 ... To date then no areas of the coast have been separately reserved as fishing grounds for Maoris only, hence it would seem that time is opportune to agree on a policy for handling these petitions ... the principle this Department has adopted namely that the taking of fish or shellfish for one's own domestic consumption be permitted in areas in the vicinity of

117 Maori Economic and Social Advancement Act 1945, s 33. IBB ibid, Clause 2 and 3.

64 Maori villages. This protects the fishery or shell fishery from commercial exploitation and at the same time precludes the possibility of unsavoury repercussions that would most certainly arise if the area were reserved for the sole use of one section of the ) community only.119

Section 33 requests were rigorously opposed until such time as the legislation was altered. In respect of the Matakana petition, the response by the District Inspector ofFisheries was to recommend a ban on commercial fishing for Maori and Pakeha, though recreational fishing remained open. l90

4~!~5 Katikati Tribal Executive Petition, 1947

On 19 January 1947, a petition was signed by 28 Maori at a meeting of 'all tribes and subtribes in and around Kati Kati'. The petition included some of the points discussed at the meeting and·was received by the Prime Minister's office in 1947. The purpose of the meeting was to discuss ways and means of conserving fish in and around Bowentown harbour, and the reservation of pipis. The meeting was attended by the Inspector of Fisheries, Mr Gulliver, ...... as well as representatives from various public bodies and other interested parties. The petition stated that there was 'extensive use of netting and illegal fishing in the harbour', 'fish had almost disappeared' and pipis were 'speedily deteriorating' because of:

a. The use of metallic instruments and tools for their collection b. The extensive use of netting being dragged over pipi and mussel grounds has the result of rolling and tearing away from the bottom the said pipis c. The running of cars, tractors, and trucks onto the beds. 191

119 Maori Affairs Department, Series 13, W2490, Secretary Marine Department to Under-Secretary of Maori Affairs, 19 Apri11948. 190 T. Nightingale, Social Impact Report, 1996, 75. 191 Maori Affairs Department, Series 13, W2490, Petition signed by T. Roretana on behalf of Katikati Tribal Executive, Athenree, plus 27 other

6S On 28 March 1947, Mr Hori Karehana.asked that the 'harbour from Tauranga to Katikati be reserved for Maori Fishing' due to the depletion of supplies by trawlers. He was supported by Mr Dick Rolleston. l92 The government's response was the appointment of two locals, W Pio and P Purukamu, as Honorary Fishery Officers. This was noted in a memorandum dated 10 June 1947 from the Minister of Marine to the Prime Minister, P. Fraser.193

4.5.6 Athenree Bowentown Tribal Committee Petition, 1950

In 1950, another a request was made, this time by the Athenree Bowentown Tribal Committee, to have pipi beds brought under their control as the Honorary Fishery Officers appeared unable to stop the pipis and beds from being damaged. l94 The reply from the Marine Department was that the Fisheries Officers ought to be able to control the problem practices.19s This appears to be in conflict with the Minister of Marine's comments in the above memorandum dated 10 June 1947, in that if the two appointments did not have the necessary effect (in terms of establishing some control over the problem practices) he was prepared to go further in the matter and have fresh regulations prepared.l96 Again, the issue of control and management over the harbour and fisheries was either ignored, denied or limited.

PART V JUDICIAL DISCOURSE; AN OVERVIEW BETWEEN 1914 AND 1994

signatures, 19 January 1947. 192 Maori Affairs Department, Series 13, W2490, notes of representations made at Matakana Island, 28 March 1947, to Minister of Marine, 24/5/47. 193 Maori Affairs Department, Series 13, W2490, Memorandum dated 10 June 1947 from the Minister of Marine to the Right Honourable, P. Fraser. 194 Marine Department, Series 1, 2112/543, T. Roretana (Secretary AthenreeIBowentown Tribal Committee) to Inspector of Fisheries Tauranga 10.3.50. 19S Marine Department, Series 1, 2/121543, Secretary Marine to T. Roretana, Secretary ofKatikati Tribal Committee. 196 Supra at 360.

66 5.0 1beIncorporation of the Treaty into Municipal Law phase and Loss of Maori Fishing Rights

Section 8 ofthe Fisheries Act 1877 specifically referred to the Treaty ofWaitangi and Maori fishing rights thereunder:

Nothing in this Act contained shall be deemed to repeal, alter, or effect any of the provisions ofthe Treaty ofWaitangi, or take away, annul, or abridge any of the rights of the aboriginal natives to any fishery secured to them thereunder. l97

However, later fisheries legislation, such as the Fish Protection Act 1878 cited earlier, omitted allereference to the Treaty. In practice, this meant that claimants could not rely on the Treaty to protect their rights unless the Treaty was itself incorporated into municipal law. The Sea Fisheries Act 1894 1ft omitted Section 8 of the 1877 Act completely but this was partially remedied in 1903 by the Sea Fisheries Amendment Act which provided that nothing dealing with fisheries 'shall affect any existing Maori fishingrights'.I99 This provision was carried

through to Section 77 (2) of the Fisheries Act 1908. 200 In Waipapakura v Hempton (1914), the meaning of Section 77 (2) was considered.201 This case decided that Maori fishing rights were extinguished save for specific grants. Section 77 (2) was merely a saving clause to protect existing grants. It did not in itself confer any rights. The Court accepted the argument . ofthe Solicitor General that 'apart from legislation, the Treaty ofWaitangi is merely a bargain

b~ding upon the conscience ofthe Crown and it is not a source of legal rights'. As stated by Stout CJ, Maori fishing rights needed to be recognised in statute before they could be enforced:

197 Fisheries Act 1877, s 8. 1ft The Sea Fisheries Act 1894. 199 The Sea Fisheries Amendment Act 1903. 200 The Fisheries Act 1908, s 77 (2). 201 Waipapakura v Hempton (1914) 33 NZLR 10605.

67 It may be, to put the case the strongest way possible for the Maoris, that the Treaty ofWaitangi meant to give an exclusive right to the Maoris, but ifit meant to do so no legislation has been passed conferring this right, and in the absence of such both Wi Parata v The Bishop ofWellington 3 NZ Jur NS SC 72 and Nireaha Tamaki v Baker [1901] AC 561 are authorities for saying that until given by statute no such right can

be enforced. 202

The Privy Council in Hoani Te Heu Heu v Aotea District Maori Land Board [1941] AC 308 at 324, reinforced the principle in Waipapalrura v Hempton and until recently was regarded as the leading case on the Treaty ofWaitangi. The Privy Council stated that Treaties:

cannot be enforced in the courts, except insofar as they have been incorporated into municipallaw.203

lit, effect,the Treaty of Waitangi was of no real use to Maori seeking recognition of their " fishing rights unless some special enactment or provision was made.204 Section 77 (2) of the

, ~, Fisheries Act 1908, carried through to Section 88 (2) of the Fisheries Act 1983. Section 88 (2) provided that nothing in the Act 'shall affect any Maori fishing rights'. The 1986 Te Wehi case extended the scope of section 88 (2) by holding that it exempts the common law aboriginal title of fishery from the statute.

S.1 De Renaissance of Aboriginal TIde: Te Wehi v Regional Fisheries Officer 1986

202 ibid. 203 The New Zealand Court of Appeal adopted the principle in the case just cited, in Re the Bed of the Wanganui River [1962] NZLR 600, at 623.

204 Section 77 (2) was alsO considered in Kee.pa and Woo v Inspector of Fisheries [1965] NZLR 322. It was added that traditional Maori fishing rights may endure where Maori customary land adjoins the seashore. It is not known here whether their exists any customary land in Tauranga adjoining the foreshore, most customary land having being processed through the Native Land Court.

68 In 1984, Tom Te Wehi was collecting paua at Motunau Beach in North Canterbury. As a member ofNgati Porou and outside his iwi rohe, he sought and obtained the consent of local kaumatua. He was convicted of taking undersized paua and other kaimoana. His counsel relied on Section 88 (2) of the Fisheries Act 1983 as saving the common law aboriginal title right offishery. Williamson] agreed, and held that customary Maori fishing rights exercised in a customary way are exempt from regulations under the Fisheries Act 1983 and that customary fishing rights continued until they are expressly taken away. Section 88 (2) states that nothing shall affect 'Maori fishing rights'. The Te Wehi decision established that Maori have a property right, aboriginal title to coastal fisheries. The Court considered that Te Wehi was exercising a customary right. He was not claiming an exclusive right and was taking only

fore personal needs. 205

There are two categories of aboriginal title in New Zealand law, territorial and non-territorial. Territorial aboriginal title or 'customary title', as used in the Maori land legislation of 1909, represents an iwiIhapu claim to ownership. It amounts to exclusive rights of occupation and use oftraditional land to the exclusion of others. Non-territorial aboriginal title are rights in land that are less than absolute ownership. They are also known as aboriginal servitudes -- which include the right to cross land, to fish, and to collect flora and fauna. The aboriginal right claimed in Te Wehi would fall under the category of non-territorial title in that the customary right was not based upon ownership of land or upon the exclusive right to a foreshore, or river bed.206 No general fishery right was recognised at law until Te Wehi. While the case recognised aboriginal title, it was of non-territorial character and possibly limited in scope in that the customary right referred to related to gathering for personal needs in a customary way. Nonetheless, the simple nullity phase was undone and the notion of aboriginal title affording Maori certain rights was revived.

Te Wehi V Regional Fisheries Officer [1986] 1 NZLR 682.

McHugh, Maori Magna Carta 1991, 138-40.

69 5.2 The FidueiaryDuty Phase

() In the New Zealand ,Maori Council v AG [1987] 1 NZLR 641, decision it was held unanimously by a Court of five judges that the Treaty created an enduring relationship of a fiduciary nature akin to a partnership, each party accepting a positive duty to act in good faith, fairly, reasonably and honourably towards the other.207 The duty included the active protection of the Maori people in the use of their land and waters to the fullest extent practicable20l and an obligation to remedy past breaches of the Treatf,9 The Treaty was viewed as 'an embryo rather than a fully developed and integrated set of ideas' which 'must be capable of adaptation to new and changing circumstances as they arise'210. The fiduciary duty arose from the express words of section 9 of the State Owned Enterprises Act 1986 which included the 'principles of the Treaty ofWaitangi' in the legislations regime. 211 It appears that the scope ofthe fudiciary doctrine has yet to be tested though it is clearly closely related to aboriginal title and treaty rights. The question would appear to be whether or not , such rights were justiciable.

I'; 5.3 Justiciability Phase: The Fiduciary Duty, Aboriginal Tide and Treaty Rights

In Te Runan&a 0 Wharekauri Rekohu v A.G [1993] 2 NZLR 102, the Court of Appeal observed that fiduciary duties are a relationship akin to partnership which had been further strengthened by judgements in the Supreme Court of Canada and the High Court of Australia.212

207 New Zealand Maori Council vAG [1987] 1 NZLR 641. See affirmation of principles in the Court of Appeal decision Te Runan&a 0 Wharekauri v A.G [1993] 2 NZLR 305. 201 ibid at 644 (Cooke P) 209 ibid at 663 (Richardson J) and 693 (Somers J). 210 ibid at 663 and 673. 211 State Owned Enterprises Act 1986, s 9. 212 Te Runanga 0 Wharekauri Rekohu v AG [1993] 2 NZLR 102.

70 In particular, the Canadian Supreme Court in R v SParrow included the statement 'The sui generis nature of Indian title, and the historic powers and responsibility assumed by the

Crown constituted the source of a fiduciary obligation. ,213

In the New Zealand decision of Ie Runanga 0 Ie Ika Whenua, 1994, the judgement under appeal was founded on the Crown's view that there is no justiciable issue.214 The Court of Appeal did not agree with this view. Instead, it confirmed the justiciability of indigenous claims:

An extinguishment of native title by less than fair conduct or on less than fair terms would be likely to be a breach ofthe fiduciary duty widely and increasingly recognised as faDing on the colonising power ... in recent years the Courts in various jurisdictions have increasingly recognised the justiciability ofthe claims of indigenous people either by developing the principle offiduciary duty linked with aboriginal title as in Canadian or Australian cases; or in New Zealand decisions in which it has been seen, not only that the Treaty ofWaitangi has been acquiring some permeating influence in New Zealand law, but also that treaty rights and Maori customary rights tend to be partly

the same in content. 215

It would appear that the New Zealand Courts have returned to the principles ofR v Symonds and further developed the approach adopted in the Ie Wehi case.2Ui The importance here, ho~ever, rests in the recognition of indigenous peoples claims or moreover, their rights under the Treaty and indeed, the Treaty itself as the founding document ofNew Zealand.

213 Rv Sparrow (1990) 70 DLR (4th) 385, (Dickson CIC 406-409 and La Forest J). Also, ibid at 306. 214 Ie Runanga 0 Ie Ika Whenua Inc Soc v A.G [1994] 2 NZLR, 27. 215 ibid at 21-22. 216 R v Symonds (1847) NZPCC 387, 390 and Ie Wehi V Regional Fisheries Officer [1986] 1 NZLR 682.

71 5.6 The Founding Document Phase: The Move beyond Aboriginal Title to Tribal Autonomy and Self-government

In Huakina DevelOJ)ment Trust v Waikato Yalley Authority (1987) Justice Chilwell appears to have concluded that although the Treaty ofWaitangi was not incorporated into the Water and Soil Conservation Act 1967 or the Town·and Country Planning Act 1977, (or municipal law) 'a growing nwnber ofauthorities recognise the treaty as the founding document ofNew Zealand' and that it is 'part of the fabric of society'. It followed therefore that all legislation which impinged upon the fabric of society should be read in light of the Treaty whether the Treaty is specifically mentioned in it or not. In support of this view, Justice Chilwell found that Maori did have cultural and spirirtual ties to the Waikato river which needed to be recognised despite the fact that neither the Treaty nor waters were mention~d in the above legislation. According to McHugh, however, Chilwell'sjudgement is less than clear on this issue in that there are 'cannons of statutory interpretation which might potentially have been used in that case' .217 Chilwell had at least viewed the status of the Treaty as more important than had previously been the case, in particular, its limited status under the incorporation phase that was established in Hoani Te Heuheu Tukino v Aotea District Maori Land Board 1941.211 In a review of this decision by Cooke J in the New Zealand Maori Council v A.G case [1987], he stated, 'That judgement represented wholly orthodox legal thinking at any rate from a May 1941 stand point' .219

In the Court of Appeal case ofTe Runanga 0 Wharekauri Rekohu v A.G 2 NZLR 1993 Cooke J stated that:

the subject of the foundations of the New Zealand constitutional system remains

217 P. McHugh, Maori Magna Carta 1991,271. 211 Hoani Te Heuheu Tukino v Aotea District Maori Land Board 1941. Under the Incorporation phase, the Treaty ofWaitangi could not be enforced in the courts unless it had been incorporated into municipal law. 219 New Zealand Maori Council v A.G [1987] 1 NZLR 691.

72 unargued, except that occasionally (as -in the present case) it has been lightly touched on, and there is no need for advantage in trying to embark on that profound subject in this judgement220

He then stated that 'a nation cannot cast adrift from its own foundations. The Treaty stands. ,221 The Wharekauri Rekohu decision suggests a move beyond the issue ofjusticiability to exploring the scope of the Treaty as the founding document of New Zealand. The dissenting opinion ofLambert JA in the Canadian Court of Appeal decision Delgamuukw v British Columbia [B.C] 1993 suggests that aboriginal rights or moreover, the scope of these rights extend past the notion of aboriginal title and 'ownership' to rights of self-government and self-regulation. As stated by Lambert, the Trial Judge treated the claim to 'ownership' 88"a claim to proprietary interest of the sort regarded as ownership by the common law. By doing so, he immediately excluded the claim from consideration. The authorities all say that the interest ofthe aboriginal peoples in their land is not proprietary in the common law sense but is, instead, in a category o/its own' 222 (emphasis added). He concluded that:

The Trial judge should have found that the plaintiffs have aboriginal rights 0/ self­ government and self-regulation which they may employ to control the exercise of their aboriginal title to the possession, occupation, use and enjoyment of land within the territory and to the resources of the land.223 (emphasis added)

It is noted here that all five judges held that aboriginal title in the above case had not been extinguished; as opined by Lambert JA, there was no clear and plain extinguishment of aboriginal rights, rather, s 35 ofthe Constitution Act 1982 recognised and reaffirmed them.224

220 Te Runanga 0 Wharekauri Rekohu v A.G 2 NZLR [1993] 305. 221 ibid at 308-9. 222 Delgamuukw v British Columbia [1993] B.C 100. 223 ibid. 224 ibid.

73 The above approach appears to be more in line with the guarantee of tino rangatiratanga to Maori under the Treaty ofWaitangi, the notion of tribal autonomy recently recommended by the Waitangi Tribunal as residing within the iwi of Taranaki and, the issues of mana, and authority mentioned by Hori Ngatai in his speech in 1885.

5.7 The etTect of this judicial discourse on legislation which has vested foreshores and harbours in local authorities

The Public Reserves Act 1854 was an early statute reflecting the Crown's view that it had the

right to vest land below high water mark ina provincial agent. 225 Section 2 states:

It shall be lawful for the Govemorofthe said colony, with the advice of his Executive Council, to grant and dispose of any land reclaimed from the sea, and any land below high-water mark in any harbour, arm, or creek of the sea or in any navigable river or as the sea coast within the said Colony, either to the Superintendent of the Province - and his successors ... 226 'The highly quoted Australian High Court case ofMabo v Oueensland (1992) held that the Crown must show 'a clear and plain intention to' extinguish native title. As stated earlier, Blanchard J in Faulkner v Tauranga District Council [1996] went one step further by adding that customary title can only be extinguished by the Crown by means of a 'deliberate Act authorised by law and unambiguously directed towards that end ... [and] the Executive cannot, for example, extinguish customary title by granting the land to· someone other than the customary owners,.227 Thus section 2 of the above Act would be insufficient on its own to extinguish Maori proprietary rights regarding the foreshore. Similarly, the Tauranga Harbour

225 See point 2.4 of report. Attorney General, Prendergast, believed that the Crown had the right to vest foreshores in local bodies under section 2 of the Act. There is however no mention of the Crown's prerogative. 226 Public Reserves Act 1862, S 2 227 Faulkner v Tauranga District Council [1996] 375, 363.

74 Board Act 1912 and the TaurangaForeshore Vesting and Endowment Act, 1915 would have to be evaluated by using the above standards.

!.8 Recent Attitudes toward Aboriginal Tide

The Crown's definition ofland is that it stopped at high water mark. It therefore assumed by

virtue of its prerogative, that it owned everything below high water mark. 221 The Law Commission has argued that the Crown's radical title to land could be qualified below high water mark as above it, by the rightful and necessary occupation and use of indigenous ~itants existing before 1840. The Commission has also pointed out that the Crown must take indigenous property rights as they find them, that it has in fact made grants below high water mark in both England and New Zealand and the presumption about the foreshore vesting exclusively in the Crown is now of less weight than formerly.229 In the Court of Appeal decision Te Runanga 0 Te Ika Whenua. 1994, it was held that the radical title of the Crown is subject to native rights and cannot be extinguished otherwise than by their free consent:

On acquisition of the territory, whether by settlement, cession or annexation, the colonizing power acquires a radical or underlying title which goes with sovereignty... In the absence of special circumstances displacing the principle, the radical title is subject to the existing native rights. These native rights cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers, and then only to the Crown and in strict compliance with the provisions of any relevant statutes. The nature and incidence of aboriginal title are mattersoff8ct dependent on the evidence in any particular case and on the approach

221 This was position taken by Crown counsel in the Ngai Tahu Fisheries Report 1992. Law Commission, Preliminary Paper No 9 ; 'The Treaty ofWaitangi and Maori Fisheries' (Mataitai: nga tikanga Maori me te Tiriti 0 Waitangi) 69- 70-72. 7S of the Court considering the issue. The Treaty ofWaitangi 1840 guaranteed to Maori, subject to British kawanatanga or government, their tino rangatiratanga and their taonga. In doing so the treaty must have intended effectively to preserve for Maori their customary title.23O

The Court also found that the vesting of navigable rivers in the Crown provided by legislation:

might not be sufficiently explicit to override or dispose of the concept of a river as a taonga, meaning a whole and indivisible entity, not separated into bed, banks and waters. It may not be appropriate to render native title conceptually in terms which are appropriate only to systems which have grownup under English law.231

And as stated, the case of Faulkner v Tauranga District Council [1996] makes the point that in order to have extinguished aboriginal title there must be 'a deliberate Act authorised by law and .unambiguously directed towards that end' .232

The above principles could be applied to the Tauranga harbour bed, foreshore and land below high water mark. This should be noted in that the Tauranga Harbour was not part of the Katikati Te Puna 'purchases' or any other agreement, nor is there mention of the harbour in the confiscating legislation of the New Zealand Settlements Act 1863 and the Tauranga District Lands Acts of 1877 and 1878. Also, the Tauranga Foreshore Vesting and Endowment Act 1915, or the vesting foreshore legislation, does not in itself expressly extinguish the customary title over the foreshore. Indeed, the Crown assumed it owned the foreshore, and could hardly argue now that the intention of the vesting legislation was to extinguish something that it did not admit existed at the time. It is therefore argued here that because the above legislation did not state that it was extinguishing aboriginal title, it could

230 Te Runanga 0 Te Ika WhenuA, [1994] 2 NZLR 20. 231 ibid. 232 ' Faulkner v Tauranga District Council [1996] 1 NZLR 357,363.

76 not have the effect of doing so. Since Tauranga Maori could, arguably, prove continuous occupation over the Tauranga Moana it would appear that they may still own it under the common law.

The current position according to Ward, is that 'while the Crown's title to the foreshore is uncertain, no easy avenue oflega! redress is available,m [emphasis added]. Ifit was accepted, however, that the jurisdiction of the Maori Land Court extended to below the high-water mark, then according to Boast, 'it can be plausibly argued that the entire foreshore at the present time is still Maori customary land', except 'those areas of the foreshore which it [the Crown] clearly and unambiguously purchased by pre-emption era deed of cession'.234 Atlditionally, the Tribunal has stated in a similar case that 'for the Crown to rely on a principle ofEnglish common law to deprive Maori of their taonga ... [Te Whanganui a Orotu, that] would be a breach of the Treaty principle to actively protect the property of Maori ... common law rights cannot override Treaty rights ... the exercise ofBritish sovereignty is qualified by the article 2 guarantee of tino rangatiratanga.235 Thus it appears that the Crown's title to the foreshore is even less certain than Ward suggests. For it is in fact, very

certain, that the Crown's title to the foreshore (of at least Tauranga) is very weak, ifindeed, ,-.., it exists at all. The point ofuncertainty arises only in terms of what the Crown now propose to do about the issue of the ownership of foreshores.

6.0 CONCLUSION

• Tauranga Moana is a taonga and the Treaty of Waitangi guaranteed the tino

233 Professor A Ward, National Overview, 1997,334. 234 R Boast, Foreshore, 1996, 27 and 31. None of the statutory provisions relating to the foreshore expressly extinguish customary title, (cited in Boast at 48). 235 Waitangi Tribunal, Te Whanganui A Orotu Report 1995, 206.

77 rangatiratanga of taonga to hapu. The Tauranga Moana added rank, dignity and an intangible mana to the many hapu that governed its shores. It possessed a mauri which bound it to the fortunes and destiny of its people and added to this was its richness as a permanent source offood. The ancient saying: Ko Mauao te Maunga Ko Tauranga te Moana is an expression often used to signify the strong sense of identity, belonging and respect tangata whenua attach to these features.

• Tauranga Maori had successfully participated in the economic development of the country through their control of the trading industry in Tauranga in the 1840s and 1850s. The Crown's invasion ofTauranga in 1864, and confiscation of some 50,000 acres of land, prejudicially affected the· ability of Tauranga Maori to continue the exercise of kaitiakitanga over the Tauranga Moana. The influx of Pakeha settlers throughout the 1870s and their advancement had the opposite effect on Tauranga Maori. 'Colonisation, war, confiscation ... English devices' and 'all the force and fraud that has been brought to bear against them' changed the position of Tauranga Maori from once a politically and economically independent people to a people struggling to survive.

• The ChiefHori Ngatai's statement in 1885 to the Native Minister, Ballance, underpins the issues of concern about the foreshore and fisheries. Ngatai specifically refers to the 'mana', 'authority', 'ownership' and 'ancient custom' that the various hapu of Tauranga had exercised over the moana including certain fishing grounds and in particular, the area below high water mark, since 'time immemorial'. He also claimed that the 'Queen's sovereignty' did not extent to the fishing grounds of 'his' people but remained out past Tuhua Island. The 'trampling over ancient custom' and unrestricted fishing practices of some Pakeha in Tauranga adversely affected Tauranga Maori and added to the concerns expressed by Ngatai.

• By the 1870s, the Crown adopted the view that its prerogative assured to it the

78 foreshore and no rights, whether under Maori customary law or the Treaty of Waitangi, could be held by any person without a specific Crown grant or by legislative provision.

• Under English common law, the Crown's ownership of territory by the feudal rule of dominion was also burdened under that law by the rules of natural law. In the case of indigenous peoples, this meant that the Crown's ownership of territory was subject to the pre-existing laws of usage and occupation, otherwise known as aboriginal, customary or native title. According to judicial discourse:

'An extinguishment ofnative title by less than fair conduct or on less than fair .l'!" terms would be likely to be a breach of the fiduciary duty widely and increasingly recognised as tilling on the colonising power'. Te Runanga 0 Te Ika Whenua Inc Soc v A.G [1994] 2 NZLR, 21, 22.

'These native rights cannot be extinguished (at least in times of peace) otherwise than by the free consent of the native occupiers, and then only ... in ...... strict compliance with the provisions of any relevant statutes'. Te Runanga 0 Te Ika Whenua. [1994] 2 NZLR 20.

The Crown must show 'a clear and plain intention to' extinguish aboriginal title. In this sense, there must be 'a deliberate Act authorised by law and unambiguously directed towards that end'. Mabo v Oueensland (1992) 172, CLR 1, 64. And, Faulkner v Tauranga District Council [1996] 1 NZLR 357, 363.

vesting legislation 'might not be sufficiently explicit to override or dispose of the concept ofa river [or moana] as a taonga, meaning a whole and indivisible entity, not separated into bed, banks and waters'.Te Runanga 0 Te Ika

79 Whenul. [1994] 2 NZLR 20.

'the Executive cannot, for example, extinguish customary title by granting the land to someone other than the customary owners'. Faulkner v Tauranga District Council [1996] 1 NZLR 357, 363.

'It may not be appropriate to render native title conceptually in terms which are appropriate only to systems which have grown up under English law'. Te Runanga 0 Te Ika Whenul. [1994] 2 NZLR 20.

'The Crown is bound; both by the common law of England and by its own solemn engagements, to a full recognition of Native proprietary right. Whatever the extent ofthat right by established Native custom appears to be, the Crown is bound to respect it'.Re Lundon'& Whitakers Claims Act (1871) 2 NZCA 41,49.

.....,/ , • The above principles could be applied to the Tauranga harbour bed, foreshore and land below high water mark. As stated, the Tauranga Harbour was not part of the Katikati Te Puna 'purchases' or any other agreement. It cannot therefore be argued that TaurangaMaori freely consented to the alienation of the TaurangaMoana. Nor is there mention of the moana in the confiscating legislation of the New Zealand Settlements Act 1863 nor the Tauranga District Lands Acts of 1877 and 1878. Also, the Public Reserves Act 1854 and the Tauranga Foreshore Vesting and Endowment Act 1915, do not expressly extinguish aboriginal title over the foreshore. Indeed, the Crown assumed it owned the foreshore, and could hardly argue now that the intention of the vesting legislation was to extinguish something that it did not admit existed at the time. It is therefore argued here that because the above legislation did not clearly, plainly or deliberately state that it intended to extinguish aboriginal title over the Tauranga Moana, it could not have the effect of doing so. By proving continuous

80 occupation at the exclusion of others over the Tauranga Moana, it would appear that Tauranga Maori would still own the Tauranga Moana under the common law.

• According to the Waitangi Tribunal, 'for the Crown to rely on a principle ofEnglish common law to deprive Maori of their taonga ... would be a breach of the Treaty principle to actively protect the property of Maori ... common law rights cannot override Treaty rights ... the exercise of British sovereignty is qualified by the article 2 guarantee of tino rangatiratanga'. In addition, to having a good case under the common law to the ownership of the harbour, it would appear that despite the

.,!.,.:. common law, the Treaty right ofTauranga Maori to exercise tino rangatiratanga over the Tauranga Moana would prevail.

• In 1870, although Maori were awarded the mudflats in Fenton's Kauwaeranga decision, Maori control was limited to a right of fishery. However, just one year later, Chapman J decided that the Crown was bound by the common law and its own engagements (which would include the Treaty ofWaitangi) to the full recognition of 'Native rights whatever the extent of those rights' .

• In 1872, the Crown issued a proclamation preventing the Land Court from exercising its jurisdiction over foreshore areas within the whole ofthe Auckland Province (which included Tauranga at the time).

." Furthennore, the Tauranga Commissioners, investigating title to lands returned after the confiscation, were instructed to ignore questions oftitle to foreshore, fisheries and seabed despite applications for such awards by Maori claimants.

• Ngai Te Rangi's submission in 1885 regarding the 'Queen's authority extending below high water mark' prompted the response by the Native Minister, Ballance that he would make 'careful enquiry into the matter' but no further response appears to

81 have been made. Raukawa and Ngatai's appeal to have a separate district set apart for Ngai Te Rangi also brought no action from the Crown although it had the mechanism to do so under section 71 of the Constitution Act 1852.

• In 1888, the Native Minister rejected the claim by Ngaitamawhariua to fish for shark although the petition was sanctioned by 'Mr Clark' (one of the Tauranga Commissioners) for a period of one season.

• For over 100 years, Maori proprietary rights were rejected by the Courts following the judgement of Cl Prendergast in Wi Parata V Bishop of Wellington 1877. During this period there were numerous Maori claims to the foreshore. These claims were vigorously opposed by the Crown. Although there were no claims heard by the Native Land Court concerning the Tauranga Harbour, there would have been much confusion regarding jurisdiction to hear such claims since Commissioner Brabant did not understand his authority to extend to the area below high water mark. Despite this, numerous petitions by Tauranga Maori were made concerning the foreshore and fisheries during the 1880s and between the late 1920s to the early 1950s. The fact that Tauranga Maori did not protest the vesting of the moana in the Tauranga Harbour Board suggests that they were unlikely to have been aware that the vesting legislation was enacted, as they had not been consulted about the Act and they had shown in the past a clear interest in the ownership of the moana.

• In 1914, the Supreme Court accepted the Solicitor Generals argument that apart from legislation the Treaty of Waitangi was 'merely a bargain binding on the conscience of the Crown and is not the source of legal rights'. Only legislation confirming Treaty Rights would be recognised by the Courts and there was no such legislation at the time.

• By 1928, the discharge of sewerage into the Tauranga harbour had become a major

82 problem. It had a detrimental impact on Maori uses of, and relationship with, the Tauranga Harbour. This was anissue that affected the Maori community more than others in the region, due to the location of marae settlements close to the harbour foreshores and waters and their reliance on kaimoana as a constant food source as opposed to recreational usage. It is clear here that the Crown had delegated its authority without ensuring that its Treaty obligations to Maori were carried out by local bodies. A petition by 5 coastal marae concerning the above problem had minimal impact and the Crown was aware of and did nothing to halt the sewerage pollution of harbour fisheries and shellfish beds from the turn of the century until some 30 years later .

• ,.. The Crown delegated its rights in the Tauranga Harbour Board without ensuring Treaty Rights were taken into consideration. In this sense, the Crown appears to have transferred something (the Tauranga harbour) which did not belong to it and thus carried out an uncompensated expropriation of property.

• No effort was made to consult with Tauranga Maori before exercising legislative control over fisheries and Tauranga Maori were rarely consulted over foreshore management.

• The Crown failed in its obligation to lIWlIge the Tauranga oyster fishery despite being made aware ofthe virtual extinction ofthis food source to Tauranga Maori. Between 1929 and 1950 another four petitions were made by Katikati Maori, the Matakana Tribal Executive, Katikati Tribal Executive and Athenree Bowentown Tribal Committee concerning various issues including: the conservation of fish and reservation ofpipi beds, excess commercial taking of mussels, setting aside of fishing grounds for Maori under section 33 of the Maori Economic and Social Advancement Act 1945, and a ban to be placed on the method of fishing used by commercial fishennan. The Crown placed a ban on the taking of mussels and appointed two local

83 honorary fisheries officers. However, the Crown failed to follow through with regulations that it promised Tauranga Maori since the Officers were unable to control certain fishing practices. Moreover, Tauranga Maori were misled in the powers they would have to control their fishing grounds and fisheries under section 33 of the Maori Economic and Social Advancement Act 1945, and the government failed to carry out its promise in the legislation of declaring 'exclusive', Maori owned fisheries.

• The Crown refused to give any effect to the legislative provisions in force between 1900 and 1962 providing for the reservation of exclusive Maori fishing grounds despite applications by Maori, including Tauranga people.

• By 1935, the Crown recognised that its claim to the foreshore was especially weak.

• Judicial discourse in various jurisdictions has shown a clear extension of the scope of aboriginal rights. The interests of Tauranga Maori in the Tauranga Moana is not proprietary in the common law sense but is, instead, 'in a category of its own'. In j/' ' Canada there is the suggestion that indigenous peoples should be given 'aboriginal rights ofself-government and self-regulation which they may employ to' control the exercise of their aboriginal title to the possession, occupation, use and enjoyment of

land [or moana] within the territory and to the resources of the land or [moana]'. 236

The Waitangi Tnbunal has used the expression Tribal Autonomy. In Intemationallaw, the catch phrase is self-determination. Maori speak of tino rangatiratanga as reaffirmed to them under the Treaty-ofWaitangi.

Given that Maori could well prove customary title to the entire coastline, the need for some method of future usage, control and management of the coastline is now

ibid.

84 apparent. Richard Boast suggests a number of options including the vesting of the foreshore in a separate trust which the Crown and Maori would have beneficial interests in. Evidence suggests that Tauranga Maori own the Tauranga harbour under both the common law and Treaty ofWaitangi, thus, one might feel that the future management of the Tauranga harbour should be an issue for Tauranga Maori to decide.

Additionally, that Maori might be able to provide good management for the benefit of all must have been overlooked by Boast. The problem in the past and there are signs of this in the present, has been the myth that Maori are unable to look after themselves, their lands and waterways. Thus the essence of colonisation continues in the sense that government, its agencies and many Pakeha continue to assume to know what is best for Maori.

• .As Ngatai stated, the desire of Tauranga Maori to maintain their inherent mana,

authority and ownership over the harbour was not ~ercised in any 'selfish' desire to keep all the fishing grounds for themselves but to 'preserve' these places from the actions of Pakeha who were 'trampling over their ancient customs'. Evidence shows that Tauranga Maori have always been concerned about the use and management of the harbour, not only for the benefit ofthemse1ves but also for the benefit of others including the 'citizens ofTauranga' and 'visitors'. These concerns included petitioning against the discharge of sewage into the harbour, for the conservation of fish, the reservation of pi pi beds, and for restrictions to be placed on the destructive methods of fishing used by commercial fisherman. On one occasion, a petition by Katikati Maori sought to have some form of restraint placed on the commercial taking of mussels claiming that some mussels had been sold illegally and if not stopped, would eventually 'deprive the Natives as well as the visitors to the Domain, of the use of these shellfish' [emphasis added]. And 'in the interests of all citizens of Tauranga' 5 coastal marae petitioned against the discharge of sewage into the harbour and

8S requested that the septic tank be inspected and reported on by an independent expert.

Finally, in concluding his report on the 'Foreshore', Richard Boast actually suggests that 'to do nothing' might not be an unwise move. To do so, however, would be to continue to ignore a long standing grievance in which Tauranga Maori have the right to redress under the Treaty ofWaitangi.

86 BIBLIOGRAPHY

GGvemment AJHR 1869, A-17, Report by Mackay, Thames Gold Fields.

AJHR 1869, F-6A, Report of Select Committee, Evidence Adduced before the Native Lands Bill Committee.

AJHR 1869 F-7, Report of Select Committee, Thames Sea Beach Bill.

AJHR 1885, G1.

AJHR 1885, Gl, 60-1.

Brabant to Lewis, 16 May 1881, 'Miscellaneous Papers, 1879-85', DOSU . Brabant to Lewis, 2 February 1888, DOSLI Hamilton Confiscation file 5118, 'Papers on Awards in Katikati TePunaPurchase', RaupatuDocumentBank, Vol. 127,48881,48883. ,__ Brabant to Kia Tawaha Te RirifI'iwi Te Rua dated 1512/88, RDB, Tauranga Confiscation files, 88/9, pg 4880. Hamilton Tauranga Confiscation file 4/26, RDB, Vol 127, 48670-48671. Hauraki. (1870) 4, MB 236; reprinted in (1984) 14 VUWLR 227. Health, Series 1, 321141, 30137.

IA 1858n13, 186012181, 18611166, 186211570, 186411468, also G 36/3, National Archives.

Maori Affairs Department, Series 13, W2490, Petition received by Prime Ministers Office, 23 March 1948, and Maori Affairs Department, 24 March 1948.

Maori Affairs Department, Series 13, W2490, Secretary Marine Department to Under-

87 Secretary of Maori Affairs, 19 April 1948.

Maori Affairs Department, Series 13, W2490, Petition signed by T. Roretana on behalf of Katikati Tribal Executive, Athenree, plus 27 other signatures, 19 January 1947.

Maori Affairs Department, Series 13, W2490, notes of representations made at Matakana Island, 28 March 1947, to Minister of Marine, 24/5/47.

Maori Affairs Department, Series 13, W2490, Memorandum dated 10 June 1947 from the New Zealand Gazette No. 27, 10 April 1930 and New Zealand Gazette, 1872,347.

Marine Series 1, File 4/1532, George Allport, Secretary of the Tauranga Harbour Board to the Minister of Marine, 18 October 1913.

Marine Department, series 1, file 4/1532, Town clerk Tauranga Borough to Herries, 27 September 1920.

Marine Department Series 1, 4/1532, Te Puke Times 16 June 1924.

Marine Department Series 1, file 4/1532, Memo, Assistant Secretary Marine to Mr Godfrey, 19 June 1924.

Marine Department Series 1, file 4/1532.

Marine Series 1,2/7/134, Chief Inspector Fisheries to Secretary Marine 14 August 1923.

New Zealand Gazette, 7 September 1892.

Marine Department Series 1,2112/454, Bay of Plenty Times, 17 December 1940.

88 Marine department Series 1, 2112/454, included in letter from Secretary, Harbour Board to Secretary, Marine Department, 19 Apri11929.

Marine department Series 1, 21121454, Marine Biologist to Chief Inspector Fisheries, 19 December 1929.

Marine Department, Series 1, 21121454, Secretary Athenree Tribal Committee to Chief Inspector Fisheries 6.5.48.

Marine Department, Series 1, 21121543, T. Roretana (Secretary AthenreeIBowentown Tribal Committee) to Inspector of Fisheries Tauranga 10.3.50.

Marine Department, Series 1, 21121543, Secretary Marine to T. Roretana, Secretary of Katikati Tribal Committee.

Marine Series 1, File 411532, George Allport, Secretary of the Tauranga Harbour Board to the Minister of Marine, 18 October 1913. ,-

, Statute

Conservation Act 1987, s 2.

Constitution Act 1852, S 71. Fisheries Act 1877, s 8. Fish Protection 1878, s 8. Fisheries Act 1908, s 77 (2). Foreshore and Seabed Endowment Revesting Act 1991. Harbours Act 1878, s 8. Harbours Act 1878, s 147. Harbours Act 1950, s 150.

89 Maori Council Amendment Act 1903 s 16 (10). Maori Economic and Social Advancement Act 1945, s 33. C) Maori Councils Amendment Act 1903, s 16 (10). Native Lands Act 1867, s 4. Oyster Fisheries Act 1892, s 14. Public Reserves Act 1862, s 2. Protection of Animals Act 1867. Sea Fisheries Act 1894. Sea Fisheries Amendment Act 1903. Shortland Beach Act 1869. State Owned Enterprises Act 1986, s 9. TaurangaHarbour Amendment and Foreshore Vesting Act (Local), 1917, s 4 (1). Tauranga Harbour Board Loan and Empowering Act (Local) 1956, s 4. Tauranga Harbour Board Act 1912. Tauranga Foreshore Vesting and Endowment Act 1915. Territorial Sea and Exclusive Economic Zone Act 1977.

~ Town and County Planning Act 1977. Water and Soil Conservation Act 1967.

Case Law

Attorney-General v Emerson [1891] AC 646. Delgamuukw v British Columbia [B.C] 1993, 100. Faulkner v Tauranga District Council [1996] 375, 363. Huakina Development Trust v Waikato Valley Authority (1987). Hoani Te Heu Heu v Aotea District Maori Land Board [1941] A.C 308 at 324. Keepa and Woo v Inspector of Fisheries [1965] NZLR 322. New Zealand Maori Council v A.G [1987] 1 NZLR 641,691. Nrreaha Tamaki v Baker [1901] AC 561.

90 Re Lundon & Whitakers Claims Act (1871) 2 NZCA 41, 49. Re Ninety Mile Beach [1963] NZLR 461. Re the Bed of the Wanganui River [1962] NZLR 600, at 623. R v Sparrow (1990) 70 DLR (4th) 385, (Dickson CJC 406-409 and La Forest 1). R v Symonds (1847), [1840-1932] NZPCC 387 at 390 (NZSC).

Te Runanga 0 Te Ika Whenua Inc Soc v ACL 2 NZLR, 1994, 21. Te Runanga 0 Wharekauri v A G [1993] 2 NZLR 305.

Te Wehi V Reidonal Fisheries Officer [1986] 1 NZLR 682 . .. Waipapakura v Hempton (1914) 33 NZLR 10605. WiParata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72.

Reports

Bioresearchers, 'Western Bay of Plenty Sewerage Water Right Study of Bay of Plenty Nearshore Ocean Waters Biological Resources', A21, Wai 215.

E Stokes, Te Raupatu 0 Tauranga Moana, Vol 2, 1992,35.

E Stokes, Te Raupatu 0 Tauranga Moana, Vol 1, 1990,4 and 16-17.

GBymes, A Preliminary report on the Use, Control and Management of the Tauranga Harbour, 1997, 58.

Kathryn Rose, The Impact of Confiscation: Socio-Economic Conditions of Tauranga Maori, 1865-1965, An Overview Report Commissioned by the Crown Forestry Rental Trust, January 1997.

Mangonui Sewerage Report 1988, Waitangi Tribunal, Wellington, 1988,47.

91 R Boast, Te Whanganui-A-Orotu (Napier Inner Harbour) 1851-1991: A Legal History, 1995, 51. See, Record of Documents, Wai 201, Wairoa Ki Wairarapa, DI-D5.

R Boast, 'The Foreshore', Waitangi Tribunal Rangahaua Whanui Series, November 1996.

RMinhinnick, Preliminary Report on the alienation ofMauao, June 1997.

R Minhinnick, Preliminary Report on the alienation of the Islands ofMoturiki, Moturiki and Motuotau, June 1997.

Sewerage Water Right Study of Bay of Plenty Ocean Foreshore Waters, Study Report, Prepared for Bruce Henderson Consultants Ltd, , 1991, A20, Wai 215, 55.

T. Nightingale, Social Impact Report, 1996,63.

Waitangi ,Tribunal, Ngai Tahu Sea Fisheries Report, 1992, 154.

Waitangi Tribunal, Te Whanganui A Orotu. Report, 1995,206 and 209.

Books

Bryan A. Garner, A Dictionary of Modem Legal Usage, 1990,441. C. Orange, Treaty ofWaitangi, 1987, 188, 258. Halsbury, 4 ed., vol 8, 1418. Megary and Wade, The Law of Real Property, 12-37. McHugh, Aboriginal Title In New Zealand Courts, 1983, 5, 6. McHugh, Maori Magna Carta, 1991, 97. McHugh, Aboriginal Title In New Zealand Courts, 1983,6 McHugh, Aboriginal Rights, 271-278, 'Aboriginal Title in New Zealand Courts' (1984) 2,

92 McNeil, Common Law Aboriginal Title, 1989, 104. Peter Scott, Tauranga Acclimatisation Society 1882- 1992. Tony Nightingale, White Collar and Gumboots 1992, 18. Ward, Show of Justice, 342. W Gifford & H Williams, A Centennial History of Tauranga. Dunedin: Reed. 1940, 224.

Other

Canterbury Law Review 235 at 247-8.

Law Commission, Preliminary Paper No 9 ; 'The Treaty ofWaitangi and Maori Fisheries'

(Mataitai: nga tikanga Maori me te Tiriti 0 Waitangi) 69-70-72.

Pers com, Brian Dickson, Chairperson ofTe Runanga 0 Ngai Te Rangi lwi, December 1995.

Submission to the Waitangi Tribunal, Ngai Tahu Fisheries Report 1992 by Professor Alan Ward, 14. Also, (Wai 27, doc mZ49, 21). -

Wai 27, evidence of David Annstrong in Ngati Makino and the Crown 1880-1960, 1995.

See Appendix attached for Statement of Claim, amended statements of claim and Commission.

93 APPENDICES

Statement of claim, dated 24/8/95 ...... '" ., ...... , ...... 105-106

Amended statement of claim, dated 11112/95 (concerning Mauao and Islands) .... 107-122

Amended statement of claim, dated 18/6/97 (including harbour issues) ...... 123-128

Commission, dated 14112/95 ...... 129-131

Amended commission, dated 7/5/97 ...... 132-133

94 Appendix 1: Statement of claim dated 24/8/95

-

105 -"''-; .~~-."' •• # .. , ••••• '{~'TGAITERANGI IWI ~...."Q.TED SOCIETY

PO Box 4369 Mount Maunganui Aotearoa/New Zealand Eastern Suite, 11 Hull Rd Mount Maunganui Phone/Fax (07) 5753-765

24 July 1995 ... ·~-.·.,4

The Registrar Waitangi Tribunal Division - Justice Department J. POBox 5022 WERT .lNGTON .... r...-~ : ..' Tena koe

In the matter of the Treaty of Waitangi Act 1975 and amendment ther~to, I Kihi Ngatai of Matapihi Road, Tauranga, Chairman of TeRunanga 0 Ngaiterangi do hereby make claim that our people were wrongfully dispossessed of their traditional lands and in pa.rticular those specified as - follows: Mauao Moturiki Island :t-..1otuota u Island Karewa Isalnd Tauranga Harbour Bed .... Alienation of these lands represented a direct breach of the principles of The Treaty of WClitangi by the Crown through the occurence of events, practises and legislation over the last 150 years and which~ will be supported. and proven upon completion of our research.

In the meantim.e we request that a full WAI number beallocatea to this claim.

E Nol)o Ora Mai, na ,

.. ~~ '~CJ Appendix 2: Amended statement of claim dated 11/12/95

-

107 1

KAREWA ISLAND

This island was not inhabited through lack of water although there were disputes from most Hapu's of Ngai te Rangi on who had rights over the Island for the taking of Birds (Mutton'Birds) and Toanui (Black back Petrel).

After a number pfhuis and w~anga is twas decided that 5 hapus ofNgai Te Rangi would , gather birds at different times ensuring that one did not go without the consent of. the others, and also any other, hapu must get the consent of these five hapu.

These hapus were TeNgare Ngati Kuku Ngati Ahi Ngai TukaiRangi Ngati Taka awa awa

J~lthough there were at certain times inter loping was taking place mainlJ from Tauwhao -, ki Tuhua (Te Urunga Wera) these conditions were maintained up untill the Island was . made a wild life reserve. On these the basis of the claim is made.

.. /)' , - KAREWA ISLAND ..... -. 1.0 Te Karewa is a small offshore island of 3.5713 hectares. It was not inhabited through lack ~f fresh water but was a traditional source of food on and around the island.

2.0 Titi (Mutton Birds) and Toanui (Black back Petrel) were gathered on the island up to 1960. Around the island there was an abundance of fish such as hapuka, snapper, crayfish, cod and Kahawai.

There were 5 hapu of the Ngaiterangi lwi that claimed rights to the Island for food gathering. They were

Ngai Tukairangi Te Ngare Ngati Kuku Ngati Ahi Ngati Taka awa awa

On food gathering expedetions each hapu had to have the consent of the others and any outside hapu needed the consent of the whole 5 hapu. (See Kaumatua Statement Appendix 1)

3.0 Karewa was included in the confiscation of 214,000 acres under "The New Zealand Settlements Act 1863". Although it is not specifically mentioned and is technically outside the boundary (Sea Coastline) the island was owned by Ngaiterangi hapu and therefore formed part of the "Confiscated Ngaiterangi Lands". This is further substantiated by the Island being listed in ''The Lands Returned: Brabants Report 1886 (AJHR GIO 1886) - Appendix 2) • 4.0 Certificate of Title 186 dated 11/07/1884 vested ownership of. Karewa Island in 19 owners. List is attached. (Appendix 3) The list also shows that some of these owners sold their interest at various times.

5.0 Therefore up until 1913 the Crown acquired interests in Karewa Island by purchase from some of the oWners.

6.0 On 21/6/1913 the Island was partitioned into 2 Blocks - Karewa East (3a 3r 9p) and Karewa West (Sa Or 3p). The Crown was awarded the East Block by order of Native Land Court (Appendix 4) in lieu of interests-purchased (Deed No. 3904). The West Block was vested in 24 owners. (See Appendix 5)

7.0 The Background to the Crown purchases is well documented in ''Te Raupatu 0 Tauranga Moana" Volume 2 page 404 by Evelyn -~ Stokes. (Appendix 6) There are clear breaches of the Treaty of -~ Waitangi highlighted in this passage. Page 405 also outlines events leading up to the compulsory acquisition of the Karewa West Block, again in clear breach of Articles 2 of The Treaty of Waitangi. 8.0 On 28/6/1917 a proclamation was issued (New Zealand Gazette 1917 p. 2519) taking the Karewa West Block by the Crown under Sections 18 and 19 of the Public Works Act 1908 and the Animals Protection Act 1914 (New Zealand Gazette 1917 p. 1138 and 2519). A compensation Order for 'PDS 18-15-0 was granted by the Native Land Courts on 23/9/1922. (Appendix 7)

9.0 Both Blocks were declared Crown Land East (New Zealand Gazette 1960 p.12) and West (New Zealand Gazette 1972 p. 1077) subject to the Land Act 1948.

10.0 Karewa Island was made a reserve for a wildlife sanctuary under the Land Act. 1948 (New Zealand Gazette 1972 p. 2023)

11.0 The Battles at Pukehinahina and Te Ranga are well known and have been well documented as· too have the subsequent Confiscation of Tauranga Lands under the New Zealand Settlements Act 1863 and Amendments 1864-1867 and Tauranga District Lands Act 1867 and 1868. The confiscation of Karewa Island, the return and the subsequent, ownership by the Crown relate directly to these Chapters of History.

'~.

'.~. \ \ \ \ NGAITERANGI IWI INC SOC 075753721

In summary we submit that the following breaches of The Treaty of Waitangi occured.

1. The Battle of Gate Pa-was a defensive action by NgaHerangi and Ngati Ranginui following the build up of arms and military personnel in Tauranga. The threat and menace of attack is dearly a breach of Article 3. (Paragraph 11.0 refers)

2. The Confiscation was a breach of Article 2.

3. The Return of Lands to individual owners was denial of ownership by the total ~wi/hapu and therefore a breach of Article 2.

4. The purchase of shares by the Crown from various owners was a deliberate attempt to acquire the Island (Evelyn Stokes. ''Te Raupatu 0 Tauranga Moana Vol. 1 page 404 refers) This ' , contravenes Article 2. (Refer pa~agra~hs 4.0 ,and 5.0) ,

5. The Crown failed to recognise the value of.th~.Islal',das a. traditional place for the gathering of Mutton Birds, Toanui, Fish and shellfood. It therefore failed to perfonn its obligations under 'Article 2.

6. The partition of the Island into East and West Blocks and granting of the East Block to the Crown was unjust in that it arbitrarily - denied other land owners their rights to the land i.e. Those who sold their interest were doing just that and not selling specific parcels of land. (Refer Paragraph 7~O) ,

7. The -compulsory acquisition,ofthe 'West Block by the Crown under • the Public Works Act 1908 and the Animals Protection Act 1914 was used unfairly to alienate Maori Land.

1. That the o\\l'n.ership of Karewa Island be vested in Te Runanga 0 Ngatterangilwi through its legal entity Ngaiterangi lwi Incorporated Society. ' ..

2. That Department of Cons~rvation negotiate with Ngaiterangi I wi the continued use of Kar.ewa Island as, a Wildlife Sanctuary

3. That Ngaiterangi lwi have the sole power to approve landings on the island.

4. 'That Ngaiterangi lwihav:~the powerroapprovecontrolled taJdng , of mutton birds from the Island,',',,' " ' ',,' , ' , 1·

MOTU o TAU

This Island was unoccupied and was used mainly for the taking of Birds (Mutton birds) an.d was well known for the qua1i~y of the fern root· which grew on these in great abundance at a place there called "Para Kirl", wlttclI was also the only landing place because of the Sand beach. Although never settled this Island was laid claim to by the Whare Tapu Hapu. Whare Tapu being grandson ofTe "Rangi Hou hiri.", and claimed the Island fot: himself. Wharetapu is a).so a descendant ofNgai Tau \Vbao. He is also related to Tukairangi by maniage to his second wife and by her had three children.

Whakamomoka, Tangatanwt Totoia.

On this basis the claim is being made.

• •

' ... <.... ::., i ..~~ ..:::.< .~ ~ .. :::: .. ::.... ~.;~:... -<":.'~ .. ,'~ :'~.'- - .

. ',,", .. _ ','-::._ ,'i· 'jt~~?[#TI"t~\,~,.

" ; :.:.~:-~ ,'. ~ ': ". MOTUOTAU ISLAND

1.0 This is an island comprising 6a Or 30p. located just off the Mt. Maunganui Penninsula to the East of Moturiki Is. (The Blowhole). The Island was claimed by Whare Tapu, grandson of Te Rangihouhiri, the founding chief of Ngaiterangi Iwi. Whare Tapu's hapu is Whanau a Tauwhao Ngaitukairangi hapu also have interests through marriage to his second wife and their 3 children. (See Kaumatua Statement Appendix 1).

2.0 . The island was used mainly for the gathering of Titi (Mutton Bird) ·and Fern Roots. The surrounding sea was harvested of Finfish, Crayfish, and Shellfish.

3.0 The island was part of the 214,000 acre confiscated lands and later returned. Commissioned Brabant issued a Certificate dated 20 March 1884 to 10 owners - 6 from Whanau a Tauwhao and 4 from Ngatihinepua. (Evelyn Stokes" Te Raupatu 0 Tauranga Moana" Volume 2 Page 402 - Appendix 2A~ .,; l

4.0 On 20 July 1883, the Commissioner of Tauranga Lands H.W. Brabant wrote to R.J. Gill; Land Purchase Department, Wellington indicating that he was dealing with Karewa, Motu~il9. and Motuotau and asking whether Government wanted them for lighthouse sites or other marine purposes. On 5 March 1884 Gill instructed Brabant to proceed "should you be able to purchase the two islands near the Mount, lvloturiki and Motuotau for fifteen pounds and the island of Karewa for twenty five pounds please do so" (Nationai Archives MA/NLP 1900/22).

5.0 Gilbert Mair, Crown Agent had purchased all the interests, with the exception of 2 owners, Te Rua Tahapari and Te Morehu, by early 1888. (Refer National Archives file MA/NLP 1900/22 Deed 1678 dated 8 March 1884 (Appendix 2) shows the purchase from 8 owners of their interests fo PDS 12-5-10 for the whole area of 6 acres and 30 perches. (Te Raupatu 0 Tauranga Moana Vol. 2 p. 402 by Evelyn Stokes)

6.0 On 12 March 1888 the Native Land Court partitioned out an area for the 2 non­ sellers in the northwest of the Island. Te Morehu sold on 1 December 1888 and over 10 years later Te Rua Tahari sold on 20 October 1899 (Deed 3255 Appendix 3) Motuotau was declared Crown land under the Land Act 1892 (NZ Gazette 1900, p.l05 Appendix)

7.0 The subsequent classification of the Island took place as follows.

1. Public Recreation Ground (NZ~azette 1894 p.1729) 2. Added to Mount Maunganui 'Domain (NZ Gazette 1895 p. 176) 3. "Motuotau Island Scenic Reserve" (NZ Gazette 1974 p. 983) 4. "Reserve for Scenic Purposes" under Section 19 (1) (a) of the Reserves Act 1977 (NZ Gazette 1979 p. 1975)

8.0 Today the Island is under the care and administration of Department of Conser va tion. .~-

.~. 9.0 The Battles of Pukehinahina in 1864 and Te Ranga are well known and have been well documented as too have subsequent Confis~ti.on of Tauranga Lands under the New Zealand Settlements Act 1863 and Amendments 1864 - 1867 and Tauranga District Lands Act 1867 and 1868. The confiscation of Motuotc!u Island, its return to individual Maori Owners then subsequent Crown purchase and ownership relate directly to these chapters of History and Acts of Legislation. (The Tribunal Landscape of Tauranga Moana by Rawiri Te Maire Tau examines the Maori and Pakeha perspectives of events leading up to the Battles).

• In summary we submit the following breaches of the Treaty of Waitangi occured.

1. The ~att~e o~ Gate P.a in 1864 ~as a defensive actio~ .by Ngaiterangi and Ngati Rangmul IWI followmg the bulld up of arms and mlhtary personnel in Tauranga. The threat and menace of attack is clearly a breach of Article 3 (Para 9.0 refers) The Tauranga tribes were not in rebellion.

2. The Confiscation was a breach of Article 2 and illegal because of 1. above

3. The return of Lands to individual owners was denial of ownership by the total iwi/hapu. Some rightful owners were omitted while others were wrongfully granted shares. (Refer Evelyn Stokes Te Raupatu 0 Tauranga Moana Vo1.2)

. 4. The Government embarked on a deliberate plan to purchase the land without justifiable reason, thereby alienating Maori Land - a contravention of Article 2. (Para 4.0 refers)

5. The Validity of Deed 1678 dated 8 March 1888 is questionable because:

i) It is the purchast! by Crown of the total area (6 acres 30 perches) yet it is signed by only 80f the 10 owners.

ii) The partition order for non-sellers was made on 12 March 1888, after Deed 1678 was signed. - 6. Inducement of non-sellers to relinquish their interest is contrary to Article 2. (It was not until 1899 that Tahari finally agreed to s'eU) (See para 5.0)

7. The Crown failed to recognise the island as a traditional source of food (Titi, fernroot and kai-moana) and should therefore not have induced Maori to sell their interest. (Refer Paras 1.0 and 2.0).

8. Since 1974 Legislation which prohibits access to Maori People to .gather from a traditional food source is a breach of Article 2. (See para 7.0)

REMEDY

1. That the ownership of Motuotau Island be vested in Te Runanga 0 Ngaiter"angi Iwi through its legal entity Ngaiterangi Iwi Inc. Society.

2. Ngaiterangi Iwi have sole power of control, care and use of the Island.

3. The submerged part of the island at the high tide watermark be recognised as part of the whole island and customary 'Mahinga Kaimoana and Tauranga lka' of Ngaiterangi.

4. The classification of "reserve for scenic purposes" under Section 19 (1) (a) of the Reserve Act 1977 be repealed and consequently Department of .~ Conservation forfeit all their rignts and responsibilities to Ngaiterangi Iwi -~ Incorporated Society. MOTU·RIKI

All claims made by Ngai te Rangl for these off shore Islands stems from that of conquerors and not from a common Tupuna so their claims are made from the era of "Kotororua" and the taking of Mauao".

Hori Ngatai claim for "Mtou Riki" although not descended from an Ancestor that owned the land but his Hapu "Ngati KuKu" was descended from the Tupuna "Pakira" who came with Ngai Te Rangi and conquered Mt Maunganui Pakira had his pah on the EAST side of Motu Riki and was known as liTe AhiKahore" . . .

Also situated on, the island on the Western half was the hapu Tauaiti with his pah his whare Tupuna being called liTe Wai Rere" and the pataka he used was called "Maru Tuahu" also situated close to this Island was a rock called the "Toka 0 Maru Tuahu" which was noted fot its fishing and which they laid claim to when the Rewha Rewha epidemic came most of Tauaiti people died RS well as Ngati Kuku and what was left of Tauaiti shifted to Te Papa.

/!le Ngai Te Rangi claim is based on this as both these Hapus were Ngai te Rangi In summary we submit that the following breaches of The Treaty of Waitangi occured. .

1. The Battles of Pukehinahina and Te Ranga was a defensive action by Ngaiterangi and Ngati RanginuJ following the build up of arms and military personnel in Tauranga. These developments were seen as a threat to the land and lives of the Maori people and therefore a breach by Government of Article 2 and 3.

2. The Confiscation of Tauranga Lands was a breach of Article 2 because: - (a) The Maori were not in rebellion but on the defensive and therefore not themselves in Breach of Article 2 and therefore did not forfeit their rights under the Treaty. -

(b) The Maori not being in rebellion it was therefore illegal for the Government to confiscate lands under New Zealand Settlements Act 1863.

(c) The -Act in itself is a betrayal of Arti.cle 2 which in essence says If The Crown -guarantees and confirms full exclusive and undisturbed possession of - Land.s, estates, forests,-fisheries and other properties to the Maori people".

(d) Customary and traditional rights and title were extinguished.

3. The return of land was determined by Commissioners appointed under the Tauranga District Lands Act. Consequently some of the effects were: - (a) Land was vested or granted to individuals or hapu who had no traditional or ancestral rights. -

(b) Some individual/hapu who had traditional and ancestral rights were omitted from ownership.

(c) The vesting of lands in individuals provided the opportunity for the Crown and others to purchase their interests and ultimately alienate traditional lind ancestral Maori Land.

4. The Crown set out deliberately to acquire the Island for the sum. of 15 pounds (Stokes Vol. 2 p. 404). In settling, the owners would have been induced, coerced, and so the Crown was directly responsible for the alienation of this Maori Owned Island. Clearly this is a major breach of Article 2.

5. The partition of the Island into 2 Blocks was unjust in that the parcel orland" designated for non-sellers was.arbitrarily decided.

6. The compulsory acquisition by legislation (Refer Para 4.0) represented the alienation of Maori Land although it was for the purposes of Quarrying. When the quarrying ended the Crown should have returned the land still owned by Maori Owners.

-::a;..- ""~- MOTURIKI ISLAND

1.0 This island of 2.3674 hectares is also known today as 'The Blowhole'. Two hapu occupied this island, Ngati Kuku on East side and Tauaiti on the West side, both hapu belonging to)he Ngaiterangi Iwi. (Apper-d.(X' 1)

2.0 The island was part of the confiscated block of 214,000 acres and later returned and vested in 27 owners by Commissioner Brabant on 1 September 1883. (Note 1) (Se..e.. ,",ISo A ppeV\Cti)( ..2 )

3.0 By 12 March 1883 the Crown had obtained the signatures of 25 owners (Deed 1677) and was assigned Moturiki Block 1 by the native Land Court. Moturiki Block 2, a small area on the eastern side of the Island was partitioned for non­ sellers. No.1 Block was declared Crown land under the Land Act 1885 (New Zealand Gazette 1889 p. 787) (Note 1.)

4.0 In 1911 Moturiki No.2 Block which was still in Maori ownership was taken under Section 16 of the Reserves and Other Lands Disposal and Public Bodies Empowering Act 1911 and the Public Works Act 1908 - "whereas it has been found desirable for the use, convenience and enjoyment of the Tauranga - Te Puke section of the East Coast Main Trunk Line to take the land described in the schedule hereto for the purposes of a ballast pit." (New Zealand Gazette 1911 p. 3691) The effects of quarrying can be seen today. (Note 1)

5.0 Both blocks became Crown land under the Land Ad 1908 (NZ Gazette 1922 p. ~. 2617)

6.0 Around 1912 the Island was described as Section 12, Block VII Tauranga Survey District. -

7.0 In 1924 Tauranga Harbour Board was granted a licence to quarry for 3 years under Section 307 of the Land Act 1908.

8.0 In 1926 Moturiki was temporarily reserved for recreational purpeses and made permanent in 1927 (NZ Gazette 1927 p. 678)

9.0 In 1937 Moturiki was proclaimed recreation reserve and added to Mt Maunganui Domain (NZ Gazette 1937 p. 1607 and 1846)

10.0 The island was classified for recreation purposes under the Reserves Act 1977 . and vested in Mt Maunganui Borough Council under Section 11 Reserves Amendment Act 1979 (NZ Gazette. 1981. p. 2190) t 11.0 The Battles at Pukehinahina and Te Ranga are known and have been well documented, as too have the consequent Confiscation of Tauranga Lands under the New Zealand Settlements Act 1863 and Amendments 1864 - 1867 and Tauranga District Lands Act 1867 - 1868. The confiscation of Moturiki Island, the return and subsequent purchase and compulsory acquisition by the Crown are directly related to these chapters of .~

history. . -~

Note 1. Te Raupatu 0 Tauranga Moana, Vol. 2 p. 401 by Evelyn Stokes . REMEDY

1. The ownership of Moturiki Island be vested in Te Runanga 0 Ngaiterangi through its legal entity Ngaiter~ngi Iwi Inc. Society. - 2. Ngaiterangi ~eeks compensation of $1 million dollars for the damage to the landscape and appearance of Moturiki because of:

a) The devious underhand method of applying the Public Works Act with dubious reason (ballast of rail construction) to acquire remaining Maori Interests which is the real reason.

b) Justifying the reason by proceeding to quarry.

" 3. Ngaiterangi have the sole power of control care ami use of the island (We do not seek to repeal the designated Reserve Recreational Status under the Reserves Act 1977)

4. . Ngaiterangi is prepared to negotiate with Tauranga District Council for some "Caretaker arrangement on behalf of the public at large.

5. The ownership of Te Toka 0 Maru Tuahu (The Wedding Cake Rock) lying just east of the Northern tip of the island be vested in Ngaiterangi iwi.

6. The fishing rights over Te Toka o'Maru Tuahu be exclusively granted to N gaiterangi Iwi. -

.~ .'

MAUAO

1.0 Maua.o has long been of great spiritual ancestral mythological and cultural value to the iwi of Tauranga - Moana,Legend has it that Tamatea the commander Qfthe Takitimu waka is buried on top of Mauao.

His grandson, Ranginui built a pa on the slopes of Mauao which they occupied for some 120 yeats.

Ngaiterangi came to Tauranga seeking utu against Ki~onui whose taua ope were responsible for the Slaying of Tuwhiwhia, son of Te . Rangihouhiri, and his own son Tauaiti.

Kotorerua, Taapulti and Tamapahore led Ngaiterangi into the Battle of Kokowai where they were victorious. Kinonui and many of his tribe were killed and the pa. razed to the ground. .. .

. . '...... :. . Ngaiteiangi consolidated their conquest of Tauranga by overcoming the Villages around the harbour. Mauao ~asrtever settled again after the arrival of Ngaiterangi. (Note 1)·' .

To this day it is always referred to in whaikorero, walata, and tauparapara. . .

2.0 Mauao was part of the Confiscated lands which was subsequently returned to Ngaiterangi iwi.

3.0 In the late 1870's ownership in several blocks of land in Mount Maunganui were heard by J.A.Wilson. However no records were ever located.

Note 1. Evedyn Stoke's book "A History of Tauranga County"

4.0 On December 2, 1880 the Surveyor General James -Mckerrow instructed the Chief Surveyor S.Percy Smith to detain proposed Certificates of title for a time as Government felt that Mauao should be preserved for the public under all circumstances and not acquired by any private person. Note 2.

5.0 Brabant during his investigations into ownership inquired· as to the where . abouts of certificates of Title from the Chief Surveyor .. S.Percy Smith. During. conespondence, Brabant wrote "I am acting as commissioner of lands anq 'also. have the direction for the Government of the purchase and it l~ for the pUrpose of Goverrunent completing this title that these certificates are reqwroed ...... "N ote. 2 . . .

Note 1. Evelyn Stoke's "A History of Tauranga County"

Note 2. Evelyn Stoke's Wfe Raupatu 0 TaurangaMoana:Volume2 P.397" .~. . .:;. f -."

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6.0 Table shows Crown P1U'ch~es of Mauao. (Appendix 1)

7.0 It appears that many own~r5 were reluctant to sell their interests but eventually they were persuaded to do so. (Appendix 2)

8.0 The statutory authority for the blocks declared simply Crown Land i.e. Huka Tawatawa and Waikorire, was 5247 of the Land Act 1885. .

9.0 Between 1881 and 1926 all blocks were proclaimed either wastelands of the Crown or Crown Land by NZ Gazette notices. (Appendix 3)

10.0 The following text,from Stokes Vol. 2 - (Appendix 4)

Following purchase the old Maori block bounda~es on Maua.o disappeared. An area of. 195 acres became known as Section 1, Block VI, Tauranga Survey District, and was reserved under Section 227 of the Land Act 1885 for recreation ,purposes (New ZealanCl Gazette 1888, p. 1401 and 1889, p.116). Section 2 was the· pll,ot Resetve. ~dion· 3, an area of 1 acre, was reserved under Section 235 of the Land Ad: ,1892 ~ a quarry ( (New Zealand Gazette 1a94, pp. 958 and 1422) and vested in Tauranga County CouncU (New Zealand Gazette. p. 1309) and the same land declared part of the Mount Maunganui Domain (New Zealand Gazette 1945 p. 1369).

The Mount Maunganui.Domain (including Moturiki) and Mount ~!UXY . _Domain (the former Signal Reserve) were merged as "one public domain, to -. be ·known as the Mount Maunganui Domain" (New Zealand Gazette 1941 pp. 2620~2621). In the 1960s the Pilot Reserve, which had been yested in the Tauranga Harbour Board, was added to Mount Maunganui Domain (New Zealand Gazette 1962, p. 1921, and 1969, p. 1129).

In 1981 parts of the Mount were classified as "reserve for historic purposes" and the rest as "reserve for recreation purposes", under .the Reserves Act 1977 (New Zealand Gazette 1981, p. 3065). Art operative management plan for Mount Maunganui Domain has ,been prepared. .•

11.0. More Detailed outline is given in Stokes Vol. 2 Pages 395 - 401 (Appendix 5)

". '~~ ". " . ... HGAITERAHGI I~I IHC SOC 07~753721

In the summary we submit that there were serious breaches of the Treaty.

1. The Confiscation. of Lands·was directly related to the Battles of Gate Pa and Te Ranga. Yet these were defensive actions rather than any offensive rebellion. The buildup of arms posed a threat and the menace of attack is deemed a breach of Article 3.

2. The deliberate and persistent action of Crown Agents to purchase Maori Land is not in accordance with intent of Article 2.

3. A statement by a Surveyor General to deny private ownership of Mauao is an unjust breach" of rights and an open intent by the Crown to alienate Maori Larid. (Refer Para 4.0)

4. The purchase funds were" authorised under The Immigration and Public Acts, 1870. This .appears a misuse of legislation as Mauao· was not purchased for legitimate reasons there under.

. REMEDY

~ 1. That the ownership of Mauao be vested in "nga lwi 0 Tauranga Moana" namely Ngaiterangi, Ngati Ranginui and Ngati Pukenga. These Iwi will form a joint partnership legal entity to manage all matters relating the control and ·care of Mauao. -

2. No development will take place on MAUAO without the express approval of the joint entity ..

3. Mauao shall remain a reserve for recreational Purp9~es. . • 4. The Tauranga District Council shall pay a lease to the joint body for the camping ground swimming complex and any other enterprise that generates income.

5. The Tauranga District Coundl and the joint Iwi body shall negotiate term~ and:· conditions for the daily care and management of Mauao. Appendix 3: Amended statement of claim dated 18/6/97

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123 NGAITERANGI IWI INC SOC 07575~721 P.02 N G A ITER AN GI I WI J N C () R P () R /\. TED SOC 1 E T Y I I'() Hox 4.%9 lvl. (H ill / lvT flllll g (W II ; I Aot"earoaINc!1(1 Zealalld i Easter/{ SlCite, 11 iliff( Rd M (I J( 11 t M Ollllgmlll i I PIWllt! (()7) 57H765 l--flX (fJ7) .'7-'3721 I

J I:i .June I ()Q7 II

The Regisler \\' Hitangi Tribunal PO Bo;-.; :'i022 I \\ dlingl< II' , i I I \\.. \) Claim S40 I I Pkasc find enclosed our amended Statements of Claim.

I\ I\.;a Ora. na

Brian ()ick50n ('hief F·.xt:cutive NGAITERANGI IWI INC SOC 07575~721 P.0~ -_ ....,

NGAITERANGI [ 'Avy r I INC 0 I:J, l' () l.t ATE I.) SOC I. E T y, \1':

) .VI C) U /I ( ,"'lllllll ~If II /( i A(lft'tlrod/N(''l~~ Zetl/MIII \ lirrst<'1'11 SHift', 1"1 [/ull R"l I i'vT Otill t h·1 tlIl1tgmw i I I'lwm: (0 i) ... 7.B 76,; 1-'(1)\' (()7) 571'3 721 IX une 1t)<)

NGAI TE RANGI CLAIMS

IN THE MATTER of the Treaty ofWaitangi Act 1975 \ AND I J~ THE MATTER ofa claim byMr Kihi Ngatai, Chairman or Ngaiterangi lwi Incorporated on behalf ofNgaiterangi Iwi I;

'it.·reby (tJlege that the Crown as signatory to the Treaty ofWaitangi has breached the principle", nfthe Treaty as pleaded in this statement of claim. I

I II J:-.JTRODUCTION ! . I This claim is in amendment to the claim wai 540 m·ade on 24 July 1995 in respect to I he following land:s:

~1allao !\·Ioturiki Island l\101uotau Island ,",ul'ewa Island lalJranga.... Harbour Bed 1

I 2 The claimant alleges that the breaches of the prinCiples ofthe Treaty ofWaitangi i nccurrcd within the traditional rohe ofNgaiterangi lwi which is defined as follows.

/1 t'rJI11I11('I1CIt.'i of II at Kurei--a·Wharei {the mouth the Waiororo Stream, then along i j CI (lirec/ line In/alld to Mt Te AroM, then the s()tl.th-east along Ihe crest of the I I J.;aimai Range.'i to NgaLamahinerua then to Waianuanu. Weraiti. Puwhe1lua alld ( '/lIlIewuinuku peaklO, then along Otawa Hills to Wairakei on the coast. The :~ea~ I Ii arc! houndary includes the Islands ofMotuhoa, Matakana, Rangtwaea. Karewa, ~ 11/111(1, MOlllriki, MotuQlau and Motiti. I ~ II ISSUES I .~ i The claimant alleges breaches of the principles of the Treaty ofWaitaogi by the I ('!'Own ill acquiring the following lands, blocks oflands, Islands and Harbours. I

I1 ! L-______-J NGAITERANGI IWI INC SOC 07575~?21 p.e1

Muuao~ Waikorere Block Rangiwhakaoma Block Awaiti Block Oruahine Block Motukauri Block Hukitawataw8 Block

!\1oturiki Island Motuotau lsland Karewa Island The Tauransa Harbour and its Estuaries

The claimant alleges that Ngaiterangi Iwi has been prejudicially affected by the ft)Uowing legislation .

. l\ew Zealand Settlements Act 1863 and Amendments Tallranga District Lands Acts 1867 and 1868 Immigration and Public Works Act 1870 Tauranga Harbour Board Act 1912 NaTive I.ands Act 1877 Re~ource Management Act 1991 Native Land Act 1909 Wa:\telands Act t 876 Native Land Act 1894 Reserves and Demains Act 1953 Public Works Act t 908 Reserves and other Lands Disposal and Public Bodies Empowering Act 19 J 1 The land Act '1892 RCl;crves Act 1977 Public Works Act 1908 and 1928 Animals Protection Act 1914 The Land Act 1948 S{)E Act 1986

and such other relevant Acts or regulations enacted by the Crown that impact UPO/l this claim.

2 '; In respect of claims to Tauranga Harbour the claimants allege breaches of the Treaty ofWaitangi by the Crown in acquiring and/or utilising in the following l.ands or Land Blocks.

Whareroa Block Te Awa 0 Tukorako Block. NGAITERANGI IWI INC SOC 075753721 P.02

;:; -+ The claill1ants allege that they have been, or will be prejudicially affected by Crown ~lctjons breaching the Treaty ofWaitangi principles in the following circumstances:

~ .J I . SAI.l:: 0 ... CROWN AND SOE LANDS * rhe pa5t and continuing sales and leases of Crown Land formerly known as the Whareroa Block.

::: 4.2 Ef\iVIROMENT AL lSSUES

... The Wharf Development has altered the natural foreshore of the harbour, impeded access to the harbour, and contributed to the pollution of the harbour and kaimoana.

'" T'hc building of structures has altered natural channels and currents in the harbour.

lit ('he erection of Wharves has destroyed birdlife feeding grounds and natural nesting places.

:;< Sewage wastes disposal into the harbour are in breach of Treaty principles

2 4.3 RESOliRCES The claimants have been denied full exercise of customary and common law rights and title to land waters, fisheries and othel;' taonga ofTauranga Harboul;'.

.. The Crown has failed to recognise the Kaitiakitanga over the Tauranga Harbour and Coastal Islands.

:.;! 4 RANGATIRATANGA

o!< That the Crown has failed to give effects to Treaty principles in the development of it conservation management strategy for Karewa Island and Motuotau Island.

:; /,1 NOTIFICATION OF CLAIM

The claimant ask that th;s statement of cJaim should be served on the following parties: Minister of State Owned Enterprises \:Iinister of Charge of Treaty Negotiations Minister of Conservation ~·1inister of Lands r-,;1inister of Maori Affairs Rcgi~trar, Maori land Court, Hamilton Tauranga District Council f: Ilvironment B.O.P Regional Council NGAITERANGI IWI INC SOC a7575~721 p.a:a: .., .,.,

Tauraoga Port CO. Ngati Ranginui lwi N8ati Pukenga ki Tiiunmg.a Iwi

altd such other parties as the Tribunal deems it appropriate to be notified.

4.0 HEARlNGS

The claimants request that the hearing for this claim be held at Whareroa Marae. ).0 LEAVE TO AMEND

The claimant reserves the right to seek leave to amend this statement of claim as research proceeds and further issues are identified.

Signed

tbr and on behalfofNgaiterangi lwi Incorporated Society and Te Runanga 0 Ngaiterangi IWf. Appendix 4: Commission dated 14/12/95 .

129 WAl 540

W AITANGI TRIBUNAL

CONCERNING the Treaty of Waitangi Act 1975

AND CONCERNING the Tauranga claims

DIRECTION COMMISSIONING RESEARCH

Pursuant to clause 5A(l) of the second schedule of the Treaty ofWaitangi Act 1975, the Tribunal commissions Roimata Minbinnick-of Wellington, a member of staff, to complete a research report covering the main historical issues with regard to:

(a) the ownership of the bed of Tauranga Harbour

(b) the status of Mauao (Mount Maunganui) as a Wahl Tapu, its alienation from Maori ownership, and its current ownership

( c) the relationship between Maori and Moturiki Island, Motuotau Island and Karewa Island, the alienation of those islandS, their current ownership and use

2 This commission commenced on 14 December 1995.

3 The commission ends on 2S February 1996 at which time one copy of the report will be filed in unbound fonn together with an indexed document bank and a copy of the report on disk.

4 The report may be received as evidence and the comrnissionee may be cross examined on it.

.'"

.~

Page 2. The Registrar ...... 5 The Registrar-is to send copies of this direction to:

Roimata Minhinnick Claimants Counsel for Claimants Solicitor General, Crown Law Office Director, Office of Treaty Settlements Secretary, Crown Forestry Rental Trust

Dated at Wellington this /~ day of December 1995.

-" . 'I : - /i~. :----- Chief Judge T J Dillie Chairperson WAITANGI TRIBUNAL

::;;:;;. . ~ Appendix 5: Admended commission dated 7/5/97

132 "

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