TAURANGA MOANA

1886–2006

REPORT ON THE

POST-RAUPATU CLAIMS

VOLUME II

WAITANGI TRIBUNAL REPORT 2010

TAURANGA MOANA

1886–2006

TAURANGA MOANA

1886–2006

REPORT ON THE

POST-RAUPATU CLAIMS

VOLUME II

WAI 215

WAITANGI TRIBUNAL REPORT 2010

The cover design by Cliff Whiting invokes the signing of the Treaty of Waitangi and the consequent interwoven development of Maori and Pākehā history in New Zealand as it continuously unfolds in a pattern not yet completely known

National Library of New Zealand Cataloguing-in-Publication Data

New Zealand. Waitangi Tribunal.

Tauranga moana, 1886–2006: report on the post-raupatu claims.

Includes bibliographical references.

ISBN 978-1-86956-298-4

1. Treaty of Waitangi (1840) 2. Maori (New Zealand people)—

Land tenure—New Zealand—Tauranga District.

3. Maori (New Zealand people)—New Zealand—

Tauranga District—Claims. 4. Maori (New Zealand people)—

New Zealand—Tauranga District—Social conditions.

5. Maori (New Zealand people)—New Zealand—

Tauranga District—Economic conditions. 6. Urbanization—

New Zealand—Tauranga District. [1. Tiriti o Waitangi. reo

2. Mana whenua. reo 3. Kaitiakitanga. reo 4. Kāwanatanga. reo]

I. Title.

333.20993421—dc 22

www.waitangitribunal.govt.nz

Typeset by the Waitangi Tribunal

Published 2010 by Legislation Direct, Wellington, New Zealand

Printed by SecuraCopy, Wellington, New Zealand

14 13 12 11 10 5 4 3 2 1

Set in Adobe Minion Pro and Cronos Pro Opticals

SHORT CONTENTS

VOLUME I

VOLUME II

LONG CONTENTS VOLUME II

LIST OF MAPS

VOLUME I

VOLUME II

LIST OF TABLES

VOLUME I

LIST OF FIGURES

VOLUME I

VOLUME II

ABBREVIATIONS

‘Wai’ is a prefix used with Waitangi Tribunal claim numbers.

Unless otherwise stated, footnote references to claims, papers, and documents are to the Wai 215 record of inquiry, extracts of which are reproduced in appendix I.

CHAPTER 7
THE ANCESTRAL LANDSCAPE: THE NATURAL ENVIRONMENT, 1886–2006

The Rangataua estuary is the life blood of our people, ‘ngā wai koiora’, that courses through our veins: its tributaries the Waitao, Kaitimako, Omatata, Otamarua, Te Waiū and Te Awanui are the veins that supply it, and thus us with life giving nutrients – life itself … all living breathing features of our ancestral landscape …

Te Awanuiarangi Black, Ngāti Hē¹

7.1 INTRODUCTION

By 1840, Tauranga Moana had become one of the most continuously occupied and densely settled landscapes in New Zealand.² It is not hard to understand why. It is a place of great natural beauty, and diverse and productive ecosystems: open seas, offshore islands, coastal sandy beaches and rocky shores, the large harbour lagoon and its many estuaries, mudflats, tidal pools, and wetlands, together with many waterways draining densely forested hills. Over generations, many hapū have been drawn to Tauranga Moana by the plentiful resources offered by these different environments – the seemingly unending supplies of fish and shellfish in Tauranga Moana itself; the eels, freshwater fish, and kōura found in the waterways draining the hills encircling the harbour; the abundance of animal and plant resources in the forests.

As hapū became entwined with this environment and its resources, they became the tangata whenua of Tauranga Moana.³ The pēpeha ‘Ko Mauao te maunga, ko Tauranga te

1. Te Awanuiarangi Black, brief of evidence, 24 May 2006 (doc Q34), p 3

2. Anne Salmond, evidence in the Planning Tribunal, [undated] (doc D1), p 3; Robert McClean, ‘Tauranga Moana Fisheries, Reclamations, and Foreshores’ (commissioned research report, Wellington: Waitangi Tribunal, 1999) (doc D7), pp 20–22

3. Document D1, p 7

moana’ expresses their ongoing relationship with the natural world of Tauranga Moana, and the seamless unity of culture and nature within their ancestral landscapes.⁴

Previous chapters have detailed how Tauranga Māori have lost the great majority of their ancestral lands. Even so, claimants said, they have not lost their association with those many places and environments, which remain the source of their cultural identity. Indeed, very many of the claims before us related to the ways the natural environment of Tauranga Moana has been treated since its possession and control passed from the tangata whenua.

Despite having lost possession of most of these places, claimants stressed the continued significance to them of the harbour, waterways, forests, and fisheries, as well as sites such as tīpuna maunga and awa, the sacred mountains and rivers of their ancestors that mark their identity. They described these aspects of the natural environment as taonga, and the source of their economic, cultural, and spiritual well-being.

The claimants argued that they never willingly alienated their taonga, and that they therefore ought to have retained rangatiratanga over them. Antoine Coffin, of Ngāti Kāhu, evoked a more general understanding among the claimants when he stated that, for the Wairoa hapū, their collective rangatiratanga comprises ‘the rights of possession, use and management’ of their ancestral natural resources.⁵ The claimants also said that, in claiming whakapapa to the original inhabitants of Tauranga Moana, they inherit ongoing responsibilities as the kaitiaki, responsible for guarding and protecting these taonga for the benefit of present and future generations. Tauranga Māori affirmed to us that the authority and capacity to act as kaitiaki in the management of resources is a vitally important and practical expression of their rangatiratanga over their ancestral taonga.⁶

The tangata whenua of Tauranga Moana told us, however, that over the decades in which the town of Tauranga has burgeoned into a city, they have been excluded from the decisions that shaped its development, and have been unable to act as kaitiaki, and to guard and protect their taonga. It is important to stress that, in the main, the claimants before us wholeheartedly welcomed the development of Tauranga. Their concerns, rather, related to what they perceived as the unnecessary damage to their taonga that development has caused. A particular complaint was that the decision makers - the Crown and its delegates, especially local government - had failed to prevent, and had often been complicit in, the careless and even casual pollution of waterways. Desmond Tata, of Ngāi Tamarāwaho, summed up this consistently expressed sentiment when he told us:

4. Waitangi Tribunal, Te Raupatu o Tauranga Moana: Report on the Tauranga Confiscation Claims (Wellington: Legislation Direct, 2004), p 28; counsel for Wai 540 claimants, closing submissions, undated (doc U31), p 24

5. Antoine Coffin, ‘Ngati Kahu, Ngati Rangi, Ngati Pango’ (commissioned research report, Wellington: Waitangi Tribunal, 1996) (doc A37(b)), p 72

6. See, for example, counsel for Wai 664 claimants, closing submissions, 12 December 2006 (doc U5)(a), p 18; counsel for Wai 100 and Wai 650 claimants, closing submissions, 29 November 2006 (doc U15), p 4; doc U31, pp 36–37; counsel for Wai 210, Wai 637, and Wai 751 claimants, closing submissions, 10 December 2006 (doc U34), p 56.

Some impact on the natural environment is inevitable when development occurs, but what I really object to is the thoughtless and irresponsible development that has taken place. Local bodies have a habit of putting rubbish dumps and oxidation ponds and sewerage plants by waterways.⁷

In essence, the claimants assert that the Crown has breached the Treaty by:

► failing to allow Māori to exercise rangatiratanga and kaitiakitanga over their taonga,⁸ and;

► inadequately protecting their taonga when exercising its powers of governance. This has allowed their natural environment, resources, and iconic landmarks to be polluted, depleted, degraded, and destroyed.⁹

Claimants argue that these Treaty breaches continue today, because the legislation that structures the management of the natural environment and its resources still denies Tauranga Māori authority and control over their taonga. Nor does it always adequately protect their taonga.

The Crown does not accept any of these claims, and has made no concessions regarding them. The Crown maintains that it has behaved appropriately, according to the standards of the time and the options and resources available to it. It argues that the current legislation governing environmental management gives significant protection to Māori interests, and is consistent with the principles of the Treaty of Waitangi.

7.2 THE ISSUES

When the stage 2 inquiry began, an initial set of issues was drawn up to guide the hearing process. In light of the evidence and submissions we heard, we have now refined those issues as follows:

► What customary rights did the Treaty protect over the natural resources and the taonga of Tauranga Moana?

► Has the Crown provided for the rangatiratanga and kaitiakitanga of Tauranga Māori over their natural resources and taonga?

► Does the Crown bear any responsibility for the degradation and pollution of the natural resources and taonga of Tauranga Māori?

► Can Māori now exercise rangatiratanga and kaitiakitanga over their natural resources and taonga?

These issues provide the organising framework for this chapter.

7. Desmond Matakokiri Tata, brief of evidence, undated (doc F20), p 19

8. Document U31, p 28

9. Ibid, pp 20–21

7.3 NGĀ TAONGA: WHAT RIGHTS DID THE TREATY PROTECT?

In its English version, the Treaty explicitly protected Māori 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’. The Māori version protected their tino rangatiratanga over their lands, villages, and 'o ratou taonga katoa’ - all their treasures. To understand how these Treaty protections applied in this inquiry district, we must first examine which aspects of the natural environment Tauranga Māori regarded as their ‘other properties’, or taonga.

There is no easy definition of ‘taonga’. The Tribunal observed in its Te Whanau o Waipareira Report that the term rests on the concept of a spiritual link between a taonga and the people, who have an obligation to protect it for the future.¹⁰ In the Ngawha Geothermal Resource Report, the Tribunal described taonga as ‘objects of guardianship, management and control under the mana or rangatiratanga of the claimant group, hapu or iwi’, which were invested with the aura of spirituality.¹¹ The Report on the Muriwhenua Fishing Claim found that:

All resources were ‘taonga’, or something of value, derived from gods. In a very special way Maori were aware that their possession was on behalf of someone else in the future. Their myths and legends support a holistic view not only of creation but of time and of peoples.¹²

Two points to highlight from these observations are, first, the definition of taonga as something of value that also carries a spiritual dimension, and, secondly, that rangatiratanga over taonga carries the accompanying responsibility of guardianship or kaitiakitanga.

The Tribunal has also previously determined that whether specific taonga are subject to Treaty protection is context-specific. As the Tribunal for the central North Island claims observed:

Whether a resource falls into the definition of taonga protected by the Treaty turns on the evidence of a particular case. That evidence is sourced to and depends on Maori law and tenure, cultural values, and customary use.¹³

How and why did Māori view, use, and possess elements of Tauranga’s natural environment as taonga?

10. Waitangi Tribunal, Te Whanau o Waipareira Report (Wellington: GP Publications, 1998), p 23

11. Waitangi Tribunal, Ngawha Geothermal Resource Report (Wellington: Brooker and Friend Ltd, 1993), p 20

12. Waitangi Tribunal, Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim, 2nd ed (Wellington: Government Printing Office, 1989), p 179

13. Waitangi Tribunal, He Maunga Rongo: Report on Central North Island Claims, revised ed, 4 vols (Wellington: Legislation Direct, 2008), V0l 4, p 1251

7.3.1 The ancestral landscapes of Tauranga Moana

As we have said, Tauranga was one of the first areas of Aotearoa New Zealand to be settled by Māori. They were greatly attracted by its mild climate, the range and concentration of available resources, and the sheltered anchorage for which Tauranga was named.¹⁴ Both archaeological and traditional evidence suggest a relatively large and densely settled population of Māori persisted in the area.¹⁵

The basic structures of Māori settlement and subsistence in Tauranga Moana are likely to have remained fairly constant, although some elements of the Māori diet changed significantly over time (as happened elsewhere in New Zealand). At all times, Tauranga Māori relied on harvesting resources from the seas (particularly from the rich inshore waters and shores of Tauranga Moana) and the ngāhere (or forests). With access to a varied and reliable range of foods from a diverse range of habitats, Māori flourished. The density of occupation around Rangataua, for example, is suggested by the pēpeha 'ngā pāpaka o Rangataua’ (‘the crabs of Rangataua’), which likens their numbers to the multitudes of crabs on the mudflats.¹⁶ Similarly, Anne Salmond has described Ngāti Kāhu when Pākehā first arrived as among the most affluent people in this country’, having access to a wide range of resources - offshore and harbour fishing grounds, eeling pools in the river, fertile horticultural lands, and forests farther up the river.¹⁷

The dual focus on land and sea shaped traditional patterns of seasonal use and occupation that remained evident until very recently.¹⁸ All hapū were careful to maintain use rights to both domains, as suggested by the whakataukī, ‘He kāinga tahi ka mate, he kāinga rua ka ora’ (loosely meaning, ‘people who have only one dwelling place may not do very well, but with more than one place to live, the people will flourish’).¹⁹ The predominantly coastal hapü maintained rights to areas of forest inland on the flanks of the Kaimai Range. At various times from late summer through to autumn and early winter, they would travel there to harvest essential resources: kererū, for example, were best taken in May and June when they

14. Evelyn Stokes, A History of Tauranga County (Palmerston North: Dunmore Press, 1980), p 21

15. For traditional and historical evidence see Evelyn Stokes, A History of Tauranga County, pp 21–22, 45. Archaeology is only recently confirming what has long been known from traditional sources about the antiquity and density of Māori settlement in the region. See Warren Gumbley and Ken Phillips, ‘Papamoa Lowlands Archaeological Survey and Heritage Assessment’, report prepared for Tauranga City Council, 2000 (doc T27), pp 4–5; Richard McGovern-Wilson, brief of evidence, 26 October 2006 (doc T24), pp 8–9.

16. Colin Reeder, brief of evidence, 26 June 2006 (doc R30), pp 7–8

17. Anne Salmond, evidence to the Planning Tribunal, 1993 (doc A37(b), p 40); Antoine Coffin, ‘Changes in a Maori Community: Wairoa River Hapu of Tauranga: Report on social, economic and political conditions of Ngati Kahu, Ngati Rangi, Ngati Pango (Wairoa Hapu) 1830–1997’ (commissioned research report, Wellington: Waitangi Tribunal, 1997) (doc A76), p 19

18. See for example English translation of doc D13, undated (doc D13(a), p 9; Morehu Ngatoko Rahipere, brief of evidence, undated (doc F17), pp 2–3; Tai Taikato, brief of evidence, undated (doc J28), pp 3–4; Lance Hori Waaka, brief of evidence, 22 May 2006 (doc Q5), p 5; doc S16, p 4; Hine Thompson-Rauwhero, brief of evidence, 27 September 2006 (doc S39), p 5.

19. Evelyn Stokes, Ngamanawa: A Study of Conflicts in the Use of Forest Land (Hamilton: University of Waikato, 1983) (doc A11), p 3

were fat and sweet after eating miro berries.²⁰ Hapū such as Ngāti Hinerangi (whose territory extended to Tauranga Moana from the forests west of the ranges) would make early summer expeditions to the seashore to harvest and preserve kaimoana for winter consumption. Arapera Nuku of Ngāti Hangarau was told by her tūpuna that:

from there (pointing to the sea) to Kaimai is where the people of Ngati Hangarau used to travel backwards and forwards. That is where our mana whenua lay. In the new summer they came to the sea, to catch fish which they hung in the sun to dry, gather pipi and other food for drying. At night they lit a big fire and sat around talking about things relating to the sea …²¹

The resulting range of interests held by Tauranga Moana hapū is expressed in the Ngāti Ranginui whakataukī, ‘He kiekie ki uta, he tāmure ki te tai’ (‘Kiekie is found in the bush, and snapper at the coast’).²² Tureiti Stockman illustrated how this principle shaped the rohe of his hapū:

The rohe of Ngati Tapu extended from Pukehinahina all the way up to Maenene bounded by the Waiorohi Stream on the east and the Kopurereroa Stream on the west. Maenene was an important source of timber and birds for Ngati Tapu. Going back many generations all of the coastal hapu needed access to the bush for these purposes as there were no trees on the Te Papa peninsula and it was necessary to have access to these resources further inland. Those areas on the edge of the bush were also used for extensive gardens.²³

Different ecosystems such as forest, rivers, and sea were thereby connected in a seamless web, into which the lives of the people were woven. In the words of another witness, ‘[t]he maunga, the forests, the rivers, and the people are all interconnected and interdependent on each other’.²⁴ Taiawa Kuka of Matakana Island put it in these terms:

the association of land and sea is our reality; the very essence of our being as it prevails in the day to day activities of our lives. The mix is in the air that we breathe, the sounds that

20. Document J28, pp 3–4; doc D13(a), p 9; doc J31, p 8

21. Document D13(a), p 9

22. Anthony Fisher, Keni Piahana, Te Awanuiarangi Black, and Rahere Ohia, ‘The Issues Concerning the Use, Control and Management of Tauranga Harbour and its Estuaries’ (commissioned research report, Wellington: Waitangi Tribunal, 1996) (doc A50), p 110

23. Tureiti Ihaka Stockman, brief of evidence, undated (doc H6), p 4. With reference to the Kōpūrereroa Stream (or river), we note that ‘Kōpūrererua’ is the official LINZ designation. However, claimants in this inquiry have generally used the name ‘Kōpūrereroa’, and evidence from Ngāi Tamarawaho suggests that ‘Kōpūrererua’ applies only to that section of the river where it divides round an island: thereafter, as far as the river mouth, the correct name is ‘Kōpūrereroa’: Peter McBurney, ‘The Kingitanga and Other Rangatiratanga/Autonomy Movements in Tauranga, 1860–1960’ (commissioned research report, Wellington: Crown Forestry Rental Trust, 2002) (doc P15), p 172.

24. Morehu McDonald, ‘Ngati Hinerangi Mana Whenua Report for the Tauranga Moana District’ (commissioned research report, Wellington: Crown Forestry Rental Trust, 2006) (doc T2), p 140; doc A50, p 113

we hear, the sights that we see, the emotions that we feel and the life-blood passed down through our tupuna to us today.²⁵

Tangata whenua closely controlled access to and use of the ancestral taonga within their rohe. However, although they had possession and control, they never regarded themselves as the owners of ancestral taonga such as Tauranga Moana, their rivers and the mountains. Rather they were users and trustees - kaitiaki - of something ultimately possessed by their gods and ancestors, which they had a duty to pass on to their descendants. As Hugh Kawharu has put it, ‘it was land that possessed the people’.²⁶

The tangata whenua of Tauranga Moana belong to the landscapes in which their whaka- papa (ancestry) embeds them. Their ancestral landscapes are those places made sacred by the lives and deaths of their ancestors. These landscapes include natural features such as forests and rivers; physical formations such as mountains, valleys, harbours, and estuaries; and cultural features such as pā, kāinga, mahinga kai, and wāhi tapu.²⁷

The ancestral landscape defines the relationship between tangata whenua and the natural environment; it is, quite literally, the embodiment of their cultural heritage.²⁸ The state of their ancestral landscapes is therefore ‘inextricably linked to Maori spiritual, emotional, physical and social well-being and is expressed through the ethic and practise of kaitiakitanga’.²⁹

All key resources have their kaitiaki, their guardians. Acting as kaitiaki - exercising kaitiakitanga - ensured that the landscape’s resources were safeguarded. This responsibility was the corollary of the authority and control exercised by rangatira, or chiefs, over the environment and its resources in the name of their people. Besides kaitiakitanga, other key

25. Taiawa Kuka, brief of evidence on behalf of the Matakana Island claimants, undated (doc J21), p 3

26. Hugh Kawharu, ‘Land and Identity in Tamaki: A Ngati Whatua Perspective’, Hillary Lecture 2001, Auckland War Memorial Museum, Māori Court

27. Desmond Tatana Kahotea, ‘Tauranga Urban Growth Strategy: Cultural Resource Inventory - Features of Significance to the Maori Community (Tangata Whenua): A Report for the Tauranga District Council’, 1992 (doc A17), p 23

28. Several hapū adopted the concept of the ancestral landscape for this inquiry. See for example: doc U1, pp 124– 125; counsel for Wai 947 claimants, closing submissions, 27 November 2006 (doc U14), pp 109, 111–112, 114–115; doc u31, p 28; Counsel for Wai 370 claimants, closing submissions, undated (doc U33), pp 20, 34–35; counsel for Wai 42(a) claimants, closing submissions, undated (doc U37), pp 2, 28. The concept is also consistent with the key legislation considered in this chapter. The Historic Places Act 1993 requires judging a place's significance through assessing the 'extent to which the place forms part of a wider historical and cultural complex or historical and cultural landscape’ (Historic Places Act 1993, S23(2)(k)). The term ‘Ancestral Landscape’ was also part of the definition of historic heritage in the original Resource Management Act Amendment Bill No 23 2003, which made historic heritage a matter of national importance, but was deleted from the final version which became law. The wider landscape context must still be considered in assessing the significance of a site however, under s 2(1)(b)(iv). The concept is also incorporated as a key aspect of the Combined Tangata Whenua Forum’s report on cultural heritage for the SmartGrowth strategy. The Tauranga district plan treats the term as a synonym for ‘ancestral lands’. See Tauranga City Council, ‘Tauranga District Plan: Chapter 5: Heritage’, Tauranga City Council, http://content.tauranga.govt. nz/districtplan/CD/files/Chapter5.pdf (accessed 24 March 2009).

29. SmartGrowth 2003, p 11 (Desmond Tatana Kahotea, ‘A Study of Heritage in Tauranga Moana Since 1991’ (commissioned research report, Wellington: Crown Forestry Rental Trust, 2006) (doc T18), p 9)

cultural values such as whanaungatanga (family links) and manaakitanga (hospitality) also shaped the exercise of rangatiratanga or authority. Cumulatively, these concepts have established the tikanga, or principles, that define appropriate behaviour within the environment, and determine how the environment's resources should be used and managed.

Antoine Coffin of Ngāti Kāhu told us that ‘being kaitiaki is a complex, dynamic and evolving philosophy and process centred around the relationships we have with the physical and metaphysical environment. It is practical and locally defined.’³⁰ Acting as kaitiaki required tangata whenua to guard and protect the mauri (life essence) of natural and physical resources for the benefit of present and future people.³¹ Te Awanuiarangi Black, giving evidence for Ngāti Pūkenga, told us of the importance to Māori of the land and its mauri:

Māori tribes are products not only of genealogy but also environment, and more specifically locality. Nothing to a tribe is more important than its own locality, as it is the locality and the genealogy that makes an iwi an iwi. The land and its mauri give us life as tribal people. We are interconnected and interdependent. When mauri is affected things degenerate. This is where we find ourselves now. Our mauri has been affected; the mauri of our natural environment has been affected. We have been affected.³²

The abundance of natural resources in Tauranga Moana reflected not only the health of the land's mauri, but the mana of its people. Mana was displayed by maintaining strong whanaungatanga connections, and by demonstrating manaakitanga to manuhiri. As part of the duties of kaitiaki, and to maintain their whanaungatanga links, tangata whenua permitted inland groups from Te Arawa and Waikato to access the resources of shoreline and sea along specified corridors, allowing them to stay at pre-determined campsites. As Hati Kuruangi of Ngāi Te Ahi explained:

they came and collected, they had their right of way, if they wandered out of their area they were told to go back smartly. So our people happily shared the kai, so long as it didn’t disturb the relationships, and interfere with the rules of the sea.³³

According to Anthony Fisher, Keni Piahana, Te Awanuiarangi Black, and Rahere Ohia, this willingness to share in the harvest from the moana ‘demonstrates the underlying attitude towards the resource as a gift from Tangaroa’.³⁴ Hosting manuhiri in style and plenty also sustained the mana of the tangata whenua. The Ngāi Te Rangi chief Taiaho Hori Ngatai, for example, referred to Tauranga Moana when telling his guests ‘Kaore koe e mate kai ana, anei taku mara kai’ - ‘You shall not go hungry, for here is my garden’.³⁵

30. Antoine Coffin, brief of evidence, 26 June 2006 (doc R23), p 4

31. Document A50, p 114

32. Te Awanuiarangi Black, brief of evidence, 28 June 2006 (doc R45), p 9

33. Hati Kuruangi (doc A50, pp 107–108)

34. Document A50, p 108; doc R3, p 4

35. Document A50, p 35

7.3.2 The coastal environment - a special taonga

This entire framework of values and principles is most clearly demonstrated in the relationship between tangata whenua and the coastal environment - especially Tauranga Moana, the harbour on which so many Tauranga Māori depended. Many witnesses attested to the significance of this relationship, including Angela Marie Merewhiua Bennett of Ngāti Hangarau:

Wherever you are in Tauranga Moana, or whoever you are, living in this area had the same significance. It was to everyone within these bounds ‘Nga Kuri a Wharei ki Wairakei’ our bountiful Moana of seafood. Our ancestors chose their landing place well.³⁶

All the hapū whose heartland lies within the inquiry district maintained principal residences on the shores of Tauranga Moana. Tauranga Moana provided both immeasurably significant economic resources, and potent cultural symbols of the wealth and mana of the people. Anthony Fisher told us that ‘the essence of being Ngai Te Rangi, our customs, diets and values were all heavily influenced by the Harbour, estuary and coastal environment. This was a resource on which Ngai Te Rangi were almost totally dependent’.³⁷

People who lived on islands - such as Matakana Island, where people could ‘take a step outside and in all directions, reap the once rich harvests of Tangaroa’³⁸ - were perhaps the most reliant on these resources. But the harbour and coastal environment provided all Tauranga hapū with an enormous range and quantity of kaimoana and mātaitai, including tītiko, pūpū, kukuroroa, tio, kokoto, kuharu, pipi, tuangi, kuku, kanae, wheke, kahawai, pioke, tāmure, aua, arāra, haku, inanga, kōeaea, tuna, tarakihi, and pātiki.³⁹ Many witnesses told us of the former abundance of kai in the harbour.⁴⁰ Kihi Ngatai, for example, recalled as a young man ‘the pipi beds being so thick in the Harbour you could hear the snapper feeding on them at night time’.⁴¹ Other witnesses recalled flounder being trapped with the feet, herrings scooped up by hand, and nets so overflowing with fish that they could not be hauled in; the nets had to be cut to set the excess free.⁴²

36. Brief of evidence of Angela Marie Merewhiua Bennett, undated (doc D17), p 3

37. Document R3, p 5

38. Document J21, p 3

39. Document A50, p 28

40. For example, Ngahuia Dixon, brief of evidence, undated (doc E4), pp 28–30; Haare Williams, brief of evidence, undated (doc E5), pp 7–8; English translation of document E6, undated (doc E6(a)), pp 2–4; Colin Reeder, brief of evidence, undated (doc E25), p 7; Peata McLeod, brief of evidence, undated (doc E26), pp 3–4; Morro River Peters, brief of evidence, undated (doc E27); doc Q5, pp 7–8; Kingi Kino Ranui, brief of evidence, 22 May 2006 (doc Q6), pp 3–4; Kihi Ngatai, brief of evidence, undated (doc Q13), pp 11–13; Hinerongo Taikato Walker, brief of evidence, undated (doc Q32), pp 4–5; Eddie Tiepa Bluegum, brief of evidence, 26 June 2006 (doc R8), p 6; Te Karehana Wicks, brief of evidence, 26 June 2006 (doc R25), p 3; Brian Dickson, brief of evidence, 26 June 2006 (doc R26), p 3; Iria Friconnet Stokes, brief of evidence, undated (doc R62), p 4

41. Document Q13, p 12

42. For example, Keni Piahana, brief of evidence, undated (doc G26), p 7; doc R3, p 9; doc A50, p 136

Tauranga Māori emphasised the depth and intimacy of people’s association with the harbour. They also emphasised the wide-ranging nature of that association: not only was it an important source of food but it offered transport routes and places to play.⁴³ And then there was the spiritual dimension, as Te Awanuiarangi Black, on behalf of Ngāti Hē, described in the passage already quoted at the head of this chapter:

The Rangataua estuary is the life blood of our people, 'ngā wai koiora', that courses through our veins: its tributaries the Waitao, Kaitimako, Omatata, Otamarua, Te Waiū and Te Awanui are the veins that supply it, and thus us with life giving nutrients - life itself... all living breathing features of our ancestral landscape⁴⁴

At a personal level, many witnesses described how such places had played integral parts in their lives. Te Aroha Luttenberger, of Ngāi Te Ahi, for example, recalled:

the Waimapu Estuary was also very much part of our universe. We knew every bit of it. We knew where the deep mud patches were, where the channel was in full tide, the safe places to swim, where to get the titiko, pipi, tuangi, tio and baby koura for bait.⁴⁵

Similarly, Iria Friconnet Stokes of Ngāti Kuku told us: ‘Kaimoana was our lunch every day. The sea fed us and we swam in it all day. As my great great grandfather said - the sea was just an extension of our garden.’⁴⁶

Stokes refers to the famous speech made by Taiaho Hori Ngatai to John Ballance, the Minister of Native Affairs, in 1885. That speech deserves to be quoted at length here, because it precisely captures the character and significance of Māori traditional rights to the foreshore and its fisheries, and the nature of the rangatiratanga protected by the Treaty:

Now, with regard to the land below high-water mark immediately in front of where I live, I consider that that is part and parcel of my own land … part of my own garden. From time immemorial I have had this land, and had authority over all the food in the sea.... I am now speaking of 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 word of the Europeans that all the land below high-water mark belongs to the Queen, people have trampled upon our ancient Maori customs and are constantly coming here whenever they like to fish. I ask that 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 a proper owner, and the whole of the rights within the Tauranga

43. Document R30, p 8; doc Q13, p 5

44. Document Q34, p 3

45. Te Aroha Luttenberger, brief of evidence, undated (doc G27), p 4

46. Document R62, p 3

Harbour have been apportioned among our own different people; and so with regard to 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 to go and fish on those places without obtaining 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 Queens 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.⁴⁷

As we have seen, Māori regarded the world as primarily the domain of atua, who controlled and constrained how people could use the environment. These powers were the source of all human authority. However, as Hori Ngatai’s speech makes clear, people who possessed rangatiratanga over a resource had full authority to exclude other people from using it. As Ngatai explained, over and above their general status as users and kaitiaki of the moana, each hapū exclusively controlled parts of the harbour that everyone acknowledged were reserved for them. And Ngatai asserts that the entire harbour, as well as especially prized fishing grounds outside it, had been ‘subdivided’ and rights to them ‘handed down to us by our ancestors’. Hapū sometimes referred to these grounds as their kāpata or pātaka - their food cupboards or storehouses - where resources were especially prodigious.

Hapū held the rights of rangatiratanga collectively. Through these collective rights over an area, individual members of the hapū obtained rights to use resources within it. Hori Paki Ross recalled that Waipu Bay was such a place for Ngāi Tūkairangi; there, they caught enormous quantities of snapper, pātiki, parore, kingfish, trevally and hāpuka.⁴⁸ Ngāi Te Ahi and Ngāti Ruahine had a similar relationship with Te Tāhuna o Waimapu.⁴⁹ According to Keni Piahana, the Waimapu Estuary is still:

the basis of identity, confidence and security of Ngai Te Ahi. The shape and form of the land, the river and streams, the wetlands and other aspects of the landscape or vista considered by them as heritage maintain other social and cultural associations.⁵⁰

The division of the harbour into portions reserved for specific groups minimised conflict for resources and depletion of food stocks, since the possessors then had vested interests

47. Hori Ngatai to John Ballance, 21 February 1885, AJHR, 1885, G-1, p 61 (Roimata Minhinnick, ‘The Ownership of Tauranga Moana’ (commissioned research report, Wellington: Waitangi Tribunal, [undated]) (doc A77), p 29)

48. Hori Paki Ross, brief of evidence, undated (doc Q14), p 8

49. Document R30, p 6; doc G26, p 6

50. Document G26, p 6

in maintaining their resources.⁵¹ Thus, as Wendy Pond points out, within Māori society ‘[p]roperty rights were resource management rights'.⁵²

Offshore islands such as Moturiki, Motuotau, Kārewa, Mōtītī, and Tūhua were also important sources of kaimoana and seabirds. Kārewa, for example, is a small offshore island several kilometres from Tauranga Moana; it was uninhabitable because of a lack of freshwater, but its resources were nevertheless very carefully allocated. Five Ngāi Te Rangi hapū had rights to harvest the island's tītī (muttonbirds) and taonui (black petrels), and abundant kaimoana such as hāpuka, snapper, kahawai, crayfish, and cod. Kihi Ngatai records that a series of hui resolved that each hapū was allocated different times at which to visit the island, and that no other people could visit the island without the consent of all hapū.⁵³

Kaitiaki maintained healthy stocks of their resources by adopting resource management strategies and practices that were laid down according to tikanga and kawa, and designed to maintain order and balance between people and the natural world.⁵⁴ These included practices such as gifting the first catch to Tangaroa, never processing seafood on the shore, never taking more than was needed, rotating the shellfish beds to be harvested, and imposing rāhui - restrictions on when or where a resource could be harvested - that protected at- risk resources. Resources were typically harvested when and where they were in best condition and most abundant. Kina, for example, were taken in summer when the flowering of the pōhutukawa signalled they were plentiful and fat.⁵⁵ The overarching ethic of Tauranga Māori, as throughout Māoridom, was to never waste the gift of the resource and to husband it for the future.⁵⁶ As Heeni Murray of Matakana put it:

Kaimoana was never wasted. It was shared out, hung on the fences for pawhara or merely returned to the moana. There was always a plentiful supply of seafood to serve to manuhiri who were provided with all forms of fish, fresh, raw, smoked and varieties of shellfish, all served in large quantities. These are cultural traditions that have been part of our very essence as Maori since before the Treaty.⁵⁷

Even today, the ability to provide kaimoana directly reflects the mana of Tauranga Māori. Evelyn Stokes stressed this point to us:

51. Document A50, p 21

52. Wendy Pond, The Land With All Woods and Waters, Rangahaua Whānui Series (Wellington: Waitangi Tribunal, 1997), p 14

53. Statement by Kihi Ngatai, 11 December 1995 (doc A77, app 2)

54. Document R45, pp 7–9

55. Document A50, pp 129–130; doc R26, p 5

56. See for example Evelyn Stokes, ‘Contesting Resources: Māori, Pākehā, and a Tenurial Revolution, in Environmental Histories of New Zealand, edited by Eric Pawson and Tom Brooking (Melbourne: Oxford University Press, 2002), p 36.

57. Heeni Murray, brief of evidence, undated (doc J22), p 10

The mana of the tribes of Tauranga Moana has traditionally been associated with their control of kaimoana … The mana of the tribes today is still measured by their ability to provide a wide variety of seafoods at marae gatherings …⁵⁸

Some foods have particular value as the mana kai, or kai wairua, the particular food symbolising the mana of the people and place. For the hapū of Ngāti Pūkenga, Ngā Pōtiki a Tamapāhore, and Ngāti Hē of Ngāi Te Rangi, this special delicacy is the tītiko, the periwinkle or mud snail. For Ngāti Tapu (also Ngāi Te Rangi), it is the pūpū, the catseye; for Ngāti Kuku, it is the kuku, the green-lipped mussel.⁵⁹ The ability to amply provide manuhiri with these traditional foods is critical to demonstrating manaakitanga and whanaungatanga, and to fulfilling the role of kaitiaki. As Ngahuia Mereana Dixon told us:

when people have travelled to Maungatapu or other Rangataua marae, titiko on the table would be their way of gauging manaakitanga or looking after people... The measure of the iwi is the food served out to manuwhiri...⁶⁰

7.3.3 Forests and freshwater

Though kaimoana was vitally important to the diets of all Tauranga Moana hapū, some also relied greatly on the varied resources of the forests of the inland ranges, and the freshwater rivers and streams. For Ngāti Hinerangi, for example, the forests were and are ‘the provider and sustainer of all things’, as Morehu McDonald explained:

It is the provider of food in the form of bird life such as the tui, kakariki, kereru and many more different species of flora and fauna that were known to Ngati Hinerangi as their traditional food sources. These included among others pikopiko, mushrooms, kiore, huhu grubs, fresh water koura, tuna, and many more … It was the provider of shelter in the form of trees such as rimu and kahikatea, totara and also kauri to be used as material for buildings and other forms of construction. It is the provider of clothing in the form of kiekie and harakeke from the sheltering swamps. It is the provider of art and other visual art forms such as wood for carvings for wharenui and pataka and also for providing dyes and colourings for carvings, and clothing. It is the provider of transport with the provision of totara and other trees for the building of waka. It is the provider of the means of war by the provision of hard woods such as kanuka and manuka for the making of weapons. It is also the means of sustaining life by the provision of firewood for heat and for cooking food. It is the provider of traditional and customary beliefs and practices by tribal elders who

58. Evelyn Stokes, ‘Te Raupatu o Tauranga Moana: Documents Relating to Tribal History, Confiscation and Reallocation of Tauranga Lands’, 2 vols (commissioned research report, Wellington: Waitangi Tribunal, 1993) (doc A18), V0l 2, p 39

59. Document A50, p 28

60. Document E4, p 29

were entrusted with the transmission of esoteric knowledge for the maintenance of traditional Ngati Hinerangi society from one generation to another. It is the provider of rongoa Maori or medicines and herbal remedies for ailments and to protect life. It is the provider of sanctuary and security...⁶¹

Waiora Nuku, of Ngāi Tamarāwaho, who lived at Taumata, gave us a vivid description of the range of resources she and her family harvested from the ngāhere. Besides their bush gardens, they hunted wild pigs and kererū, climbed for kareo and miro berries, and the hearts of whanake and kiekie, collected pikopiko as well as harore (bush mushrooms), and used their own rongoā (medicine) such as mamaku.⁶²

Rivers and streams provided ecologically and culturally critical connections between the ecosystems of forest and sea. The majority of New Zealand’s freshwater fish spend part of their lifecycle in salt water. Inanga (whitebait) and tuna (eels), the most significant traditional foods for Tauranga Māori, rely on healthy and relatively stable ecosystems in and alongside rivers, at sea, and on the shore, to where many such species travel to spawn.

For Tauranga Māori, rivers were also vital transport routes as well as sources of food and other resources.⁶³ Some Tauranga hapū are very closely associated with key waterways. Ngāti Kāhu, Ngāti Pango, and Ngāti Rangi are kaitiaki of the Wairoa River, and are sometimes known collectively as ‘the Wairoa hapū, while Ngāi Te Ahi and Ngāti Ruahine are closely associated with the Waimapu River.⁶⁴ Ngāti Motai and Ngāti Mahana gathered eels, freshwater crayfish, trout, and watercress from the waterways of the Kaimai, often travelling along the rivers and streams through to Tauranga Moana.⁶⁵ For all these hapū, their rivers are ‘the passage way, carriage way, food and spiritual source of our people past, present and future’.⁶⁶ Particularly important rivers, such as the Wairoa, were awa tupuna, and recited as a key element that identified a person as belonging to that river when addressing others. The taniwha (spirits) that lived in these rivers were also their kaitiaki, and watched over the people who belonged there - for example, preventing them from drowning.⁶⁷

7.3.4 Conclusions

Many claimant witnesses testified that their ancestral lands, kāinga, forests, waterways, and fisheries were, and remain, taonga. These elements combined to form their ancestral landscape - their tūrangawaewae, or place to stand - which defined and embodied their cultural

61. Document S43, pp 3–4

62. Waiora Nuku, brief of evidence, undated (doc F21), pp 3–5

63. See for example Rachael Willan, ‘Wairoa River Report’ (commissioned research report, Wellington: Waitangi Tribunal, 1996) (doc A33), pp 7–10.

64. Document U37, p 3; doc R23; doc A28, p 10; doc A76, pp 5, 16–17; doc G26, p 6; doc U1, p 8; doc U33, p 34

65. James Timothy Clair, brief of evidence, 25 September 2006 (doc S8), p 10

66. Unidentified Ngāti Kāhu (doc D1, p 19)

67. Document A37(b), pp 67–68

Map 7.1: The waterways of Tauranga Moana

Figure 7.1: The Wairoa River, near Tauranga, circa 1918 Photograph by Frederick George Radcl¡ffe. Reproduced courtesy of the FG Radcliffe Collection, Alexander Turnbull Library (G-6933-½).

identity. This ancestral landscape was therefore a trust that Tauranga Māori were bound to pass on to their descendents.

Many individual components of the ancestral landscape are undoubtedly taonga, including urupā, wāhi tapu, kāinga, mahinga kai sites, and certain maunga (mountains) and awa (rivers) of particular significance. However, they cannot simply be considered as discrete components. As Desmond Kahotea points out:

The use of the concept ‘ancestral landscape’ has emerged where there has been a history of the artificial separation of cultural landscape into discrete and ‘manageable’ entities (sites and places) created for cultural resource management purposes … This approach isolates cultural sites from the cultural context for which they have been created and the meanings that remain for tangata whenua.⁶⁸

The significance of any one taonga, considered as a component of the ancestral landscape, can only be understood within the context of the whole which gives it its meaning. The rights of rangatiratanga, and the responsibilities of kaitiakitanga, were directed towards

68. Document T18, pp 11–12

maintaining the integrity of the ancestral landscape, and with it the tribal identity of the people.

A strong spiritual link undoubtedly existed between each hapū and the lands and seas over which they held the rights of rangatiratanga and the responsibilities of kaitiakitanga. The exercise of their kaitiakitanga, and communal participation in gathering resources from these taonga, was key to maintaining the tribal identity of the people. It reinforced the bonds between the people, and between them and their tūpuna. As Taiawa Kuku explained: ‘To take away any part of our land or sea is to nibble away at the very fabric of our being. Take away enough of our taonga and we simply cannot exist.’⁶⁹

The underlying reasons for this were indicated to us by Mark Anthony Nicholas of Pirirākau:

Without our whenua tupuna, we cannot reach fulfilment, we maintain a state of stagnant waiting for generation after generation after generation. It is a numbness, a void, a return to the darkness where living was as nebulous as space and where thought was unable to be carried.⁷⁰

It is self evident that Tauranga Māori no longer have authority and control over most of their ancestral landscape. Much of this loss is comparatively recent. Te Aroha Luttenberger remembered her kuia and koroua:

were very much in control of all things pertaining to the papakainga. Not so today. Strangers today dump their rubbish and old car wrecks over the cliff desecrating our urupa. They don’t know there is an urupa there and they probably don’t care...⁷¹

The gradual result is a loss of the ancestral landscape, and with it, tribal identity. As Huikakahu Kawe of Ngāi Te Ahi lamented,

Slowly we are losing our culturally identifiable footprints and our connections to significant sites. The land is being bulldozed and changed to such an extent that the relationship that we have with it is irrevocably changed. The contours of the land which we were connected with are now no longer there. We say to each other... ‘Where has that hill gone that we used to play on? Ha, that’s right, there it is.’ It’s now down in what used to be our swamp where houses now stand.⁷²

In sum, the evidence of the many tangata whenua witnesses who appeared before us impressed on us the manifest depth and consistency of feeling for their remnant ancestral

69. Document J21, p 3

70. Document B6, p 8

71. Document G27, p 4

72. Huikakahu Kawe, brief of evidence, 26 June 2006 (doc R21), p 6

landscapes, and the taonga within them. We now begin to examine how the Crown's actions and omissions affected those taonga and Tauranga Māori’s relationship with them.

7.4 HAS THE CROWN PROVIDED FOR THE RANGATIRATANGA AND KAITIAKITANGA OF TAURANGA MĀORI OVER THEIR TAONGA?

Article 2 of the Treaty guaranteed to Māori ‘te tino rangatiratanga o ratou whenua o ratou kainga me o ratou taonga katoa’. In the English text, that article guaranteed to Māori ‘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. Article 3, in both languages, guaranteed to Māori the full rights of citizenship.

There is an inevitable tension between the two versions of article 2, since each expresses concepts deeply embedded in different cultures. In particular, the implications of the term ‘te tino rangatiratanga’ have been much debated. On the basis of the claimants’ evidence, and building on previous Tribunal findings, we consider that the term means that Māori were guaranteed full authority and control over their property and taonga.⁷³ In particular, we follow the Muriwhenua Fishing Report and the Ngai Tahu Sea Fisheries Report, each of which referred to three main elements of the Treaty guarantee of tino rangatiratanga over taonga: authority or control that is exercised in recognition of the spiritual source of the taonga, and extends over both property, and over the people within the kinship group.⁷⁴

Tino rangatiratanga must not be confused with modern ownership. Thus, individual Māori may now own (in the modern sense) lands over which their hapū retains rangatiratanga.⁷⁵ However, as Tribunal historian Ben White has noted, one of the key issues of the colonial encounter in New Zealand is ‘[the] way Maori were forced to reconceptualise their rights and customary law in order that they be cognisable under English common law’.⁷⁶ As we found in chapter 2 (see sec 2.11.4), the English word ‘ownership’, unlike ‘rangatiratanga’, does not convey the interlinked responsibilities of chiefs and their communities in regard to allocating use rights over land and resources.

We note that since the 1840s the Crown has accepted that, before the arrival of Europeans, Māori owned all the land and resources in New Zealand.⁷⁷ And, as several Tribunals have found, ownership is the closest expression known to English law for the nature and extent of the tino rangatiratanga, and full, exclusive, and undisturbed possession, that is

73. Waitangi Tribunal, Te Ika Whenua Rivers Report (Wellington: GP Publications, 1998), p 89; Waitangi Tribunal, The Whanganui River Report (Wellington: GP Publications, 1999), pp 282–283

74. Waitangi Tribunal, Ngai Tahu Sea Fisheries Report 1992 (Wellington: Brooker and Friend Ltd, 1992), p 111

75. Waitangi Tribunal, Te Ika Whenua Rivers Report, p 121

76. Ben White, Inland Waterways: Lakes, Rangahaua Whānui Series (Wellington: Waitangi Tribunal, 1998), p 1

77. R v Symonds (1847) NZPCC 387 at 390; Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) at 684

guaranteed in the Treaty.⁷⁸ The exercise of tino rangatiratanga over taonga within modern New Zealand’s legal framework now requires either ownership or, where this is not possible, significant management rights recognised and provided for in statute. Such management rights provide another means by which to recognise tino rangatiratanga, and allow the expression of kaitiakitanga.

One consequence of the Tauranga raupatu was an increased reliance on the resources of rivers and seas.⁷⁹ However, by the early twentieth century Tauranga Māori had also lost possession of these environments. In the following section we outline how this occurred, and assess the Crown’s role in light of its responsibilities under the Treaty.

7.4.1 Tauranga Moana: ownership and Māori customary law

Several claims before us concern the loss of ownership of the foreshore and seabed, especially of Tauranga Harbour.⁸⁰ The Crown, however, has historically assumed both ownership of these taonga and the right to delegate powers to manage them. It reasserted ownership of the key marine environments in the Foreshore and Seabed Act 2004.

To determine whether the Crown breached the Treaty by appropriating ownership of Tauranga Harbour, its foreshore, and its seabed, we must address two key questions. First, did Tauranga Māori possess the harbour as their property under customary law at 1840? If so, by what ways and means did they lose possession of the harbour to the Crown ?

Dispute between the Crown and Māori over ownership of the foreshore and seabed stems from two very different cultural and legal traditions about property. The Crown has acknowledged since 1847 that Māori owned all the land in New Zealand. But, under English law, the foreshore and seabed are strictly different categories of land, which are assumed to be the property of the Crown. Māori customs relating to 'ownership’ of the sea, of the foreshore, and of their resources, did not share this peculiar compartmentalisation. As Chief Judge Jones of the Native Land Court recognised in relation to the Napier Harbour in 1920:

78. Waitangi Tribunal, The Whanganui River Report, pp 48–50; Waitangi Tribunal, Rekohu: A Report on Moriori and Ngati Mutunga Claims in the Chatham Islands (Wellington: Legislation Direct, 2001), p 278; Waitangi Tribunal, Te Ika Whenua Rivers Report, pp 121–124; Waitangi Tribunal, He Maunga Rongo, V0l 4, pp 1257–1258

79. The Tribunal in the stage 1 Tauranga raupatu inquiry did not discuss the ownership of the harbour, foreshore or waterways, or breaches of the Treaty in regard to these resources; all these issues were deferred to stage 2. Waitangi Tribunal, Te Raupatu 0 Tauranga Moana, p 309

80. The foreshore is 'the intertidal zone, the land between the high-and low-water mark that is daily wet by the sea when the tide comes in'. The seabed is ‘the land that extends from the low-water mark, and out to sea’. Waitangi Tribunal, Report on the Crown's Foreshore and Seabed Policy (Wellington: Legislation Direct, 2004), pxi. Claims regarding the ownership of the foreshore and seabed include Wai 42(a) Wairoa hapū; Wai 211 Ngāi Tūkairangi; Wai 227 Pirirākau; Wai 228 Matakana Island hapū Wai 342 Ngāti Hē; Wai 362 Ngāti Ruahine; Wai 454 Marutūahu; Wai 489 Ngāti Kuku; Wai 540 Te Rūnanga o Ngāi Te Rangi; Wai 546 Ngāti Tapu; Wai 611 Ngāti Ranginui; Wai 637 Ngāti Pūkenga; Wai 650 Hauraki Māori Trust Board; Wai 664 Waitaha; Wai 672 Ngāti Hangarau; Wai 708 Leef whānau; Wai 715 Te Uretureture Charitable Trust; Wai 717 Ngā Pōtiki; Wai 751 Ngāti Pūkenga; Wai 778 Ngāti Tamatera; Wai 938 Ngāi Tauwhao ki Ōtāwhiwhi; Wai 1178 Ngāti Te Puku o Hakoma; and Wai 1226 Ngāti Tokotoko and Ngāti Hinerangi.

Maori rights were not confined to the mainland, but extended as well to the sea. These rights were exercised principally for the procuration of food, and would have special significance in an inland sea of this nature; but they were no less applicable to the ocean.⁸¹

As suggested by Hori Ngatai's speech quoted earlier, traditional rights to the foreshore and sea were typically asserted by those who possessed authority over adjacent lands. The Tribunal's Report on the Crown's Foreshore and Seabed Policy summarises the general position: ‘Māori law, use, authority, and rights extended seamlessly from land fronting the beach, out into the ocean’.⁸² However, as Alan Ward has noted:

possession of, and access to, foreshores was a jealously guarded right. Where there were many claimants, these rights would be, as they were with respect to desirable areas of land, complex, overlapping, and contestable …⁸³

In many instances, if not most, it is a more accurate description of Māori customary tenures, therefore, to say that different groups possessed rights in an area, rather than to try and decide that a particular group wholly possessed or owned an area.

This was certainly the case with Tauranga Moana. Hamuera Paki, for example, giving evidence for Ngāti Kuku in hearings over disputed interests in the Te Maire block in 1883, said that:

Te Puru’s people own Te Pataitai - whose kai are pipis. When the tide comes in Te Pataitai’s claim is under water - but Te Puru can’t claim all the land on this claim of Te Pataitai … There is also a Toka [fishing rock], Marutuahu, near Moturiki where they, Ngaitukairangi, used to fish before they fished at Te Maire. The tohus [leading marks] of that toka are on the land under hearing, I allow that... [but]... I say that Te Maire is in the sea not on shore. Ngatikuku own the shore. I don’t dispute that Hohepa owned Te Maire … but he never fished the eels on the block.⁸⁴

Hamuera here acknowledges that Ngāi Tūkairangi ‘owned’ Te Maire, which is a ‘toka tamure’ (a fishery for snapper), and Te Puru, of Ngāi Tūwhiwhia, 'owned’ the pipi beds named Te Pataitai. But, he emphasises, Ngāti Kuku - his people - ‘owned’ the adjacent shores. He supports his claim to the land by reference to his people’s cultivations and their taking of eels and mānuka. His claim to ‘the sea board’ stemmed from ‘a “rahui karoro” from the Tupunas’. He explains that:

81. Cited in Richard Boast, The Foreshore, Rangahaua Whānui Series (Wellington: Waitangi Tribunal, 1996), p 17

82. Waitangi Tribunal, Report on the Crown’s Foreshore and Seabed Policy, p 18

83. Alan Ward, National Overview, 3 vols (Wellington: GP Publications, 1997), V0l 2, p 337; Boast, The Foreshore, p 21

84. The “Lands Returned”: Records of Commissioner Brabant’s Court, 1881–1886, Brabant’s Notes, 10 February 1883 (doc A18, pp 332–333); see also doc A77, pp 11–12

Our people used to feed the adult karoro's [black backed gulls] and only take the young ones. Each had his own birds and no one was allowed to touch another’s birds. When I grew up Europeans were in the land and we left off feeding karoro's and the old customs’.⁸⁵

Hamuera’s evidence illustrates the nature of Māori customary tenure, a complex system of overlapping and interlocking rights of use and occupation, with very limited rights of alienation.⁸⁶

Ngatai’s speech to the Native Minister, Ballance, (quoted earlier) is a clear demonstration that such customary tenures in Tauranga Moana extended to the waters and fisheries of the sea. He considered that ‘the land below high-water mark’ immediately in front of where he lived, was simply ‘part and parcel of [his] own land’. Moreover, he said:

The whole of this inland sea has been subdivided by our ancestors, and each portion belongs to a proper owner, and the whole of the rights within the Tauranga Harbour have been apportioned among our own different people …

On the basis of such evidence, we have no difficulty in accepting that Tauranga Māori possessed areas of the foreshore and seabed of their moana at 1840 in precisely the same sense in which they possessed the surrounding land - that is, as a complex system of overlapping and interlocking rights and obligations.

7.4.2 Crown displacement of customary title to Tauranga Moana

It was clear to Hori Ngatai in 1885 that the authority and mana of Tauranga Māori over their moana was threatened. European settlers had shown an early interest in the development of Tauranga Harbour. Edward Shortland, Protector of Aborigines in the Bay of Plenty area, wrote in August 1843 that, ‘During the early intercourse of Europeans with New Zealand[,] Tauranga became of much consequence as a port’ - because Tauranga Harbour provided the only safe, all-weather, deep-water berth between Auckland and Wellington.⁸⁷

In the years immediately before Ngatai's speech, local authorities had renewed their efforts to gain ownership and control over the harbour and foreshore. These began in 1874, the year after the Government established the port of Tauranga.⁸⁸ The Auckland Provincial Council requested a Crown grant of the Tauranga foreshore (under the Public Reserves Act 1854) in order to develop the harbour. The request was rejected on the ground that the

85. The “Lands Returned”: Records of Commissioner Brabant’s Court, 1881–1886, Brabant’s Notes, 10 February 1883 (doc A18, pp 331–332)

86. See Stokes, ‘Contesting Resources: Māori, Pākehā, and a Tenurial Revolution, in Environmental Histories of New Zealand, edited by Brooking and Pawson, p 36

87. Edward Shortland (quoted in Evelyn Stokes, Wiremu Tamihana: Rangatira (Wellington: Huia, 2002), p 117); Giselle Byrnes, ‘A Preliminary Report on the Use, Control and Management of the Tauranga Harbour’ (commissioned research report, Wellington: Waitangi Tribunal, undated) (doc A36), p 5

88. Document A36, p 14; doc D7, p 45

Figure 7.2: Early reclamation: the Strand and Victoria and Town wharves, late nineteenth century Photographer unknown. Reproduced courtesy of the Press Collection, Alexander Turnbull Library (G-017643-1/2).

‘importance to the Colony of the conservation of harbours, and rivers is so great that it is held that grants of foreshores ought not to be made except with the special authority of Parliament’.⁸⁹

Two years later, Tauranga County Council was established, with authority to control ferries and to construct bridges, quays, wharves, and docks.⁹⁰ The council immediately began to reshape the harbour to suit shipping. In 1878, it planned to stake out the Katikati and Te Puna Channels so that a steam launch service could commence; it is unclear whether this work proceeded, as the pilot and harbour master maintained he lacked sufficient authority from the Government.⁹¹ But, by the early 1880s, the Town and Victoria wharves had been built, and the first of several major reclamations along The Strand had been made. Within the harbour itself, a channel was now marked with beacons, and rocks had been destroyed to ease ship movements.⁹²

89. Document D7, p 45

90. Ibid, p 44

91. Barbara Oram, ‘The Port of Tauranga’, in AC Bellamy (ed), Tauranga 1882 – 1982 (Tauranga: Tauranga City Council, 1982), p 234

92. Document D7, pp 45–46

The Tauranga Borough Council, established in 1882, was given jurisdiction over the town area down as far as the high water mark.⁹³ This granted Tauranga settlers a significant degree of power and autonomy, and they immediately sought to extend their authority over the harbour as well. In 1884 and again in 1886, the council tried, unsuccessfully, to set up a harbour board. Disagreements over financing the prospective boards operations, however, meant that the council failed to get the necessary Bills through Parliament.⁹⁴

It was within this context that Hori Ngatai contested the assumptions of power and authority by local bodies and the Crown. He protested against the ‘work of the Europeans that all the land below high water mark belongs to the Queen' and the encroachment on Māori authority and property rights by Europeans who ‘trampled over our ancient Maori customs’. He asked not only that Ngāi Te Rangi have their customs and authority upheld, but also that ‘the Queen's sovereignty shall not extend to those fishing grounds of ours, but remain out in the deep water away beyond Tuhua’.⁹⁵

On the critical question of the Queen's authority below high-water mark, Ballance replied:

This is a question of law, and depends on 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. If those rights were ceded by the Treaty, they are in the Queen; if they 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 the Government to restrict or to curtail Maori customs, unless the Natives wish it themselves; and therefore I shall make careful enquiry into the subject.’⁹⁶

There are no indications, however, that Ballance - who, as we have seen, was the only prominent settler politician of the time to meet with Tauranga Māori - ever made the careful inquiry he promised.⁹⁷ Tauranga Māori were left in an invidious position. The commissioners deciding titles in Tauranga (after it was decided to return confiscated land) regarded their jurisdiction as ending at the high water mark. They declined repeated requests from Tauranga Māori to decide title to ‘Salt water marshes (where birds and eggs are obtained)’, and ‘Sand flats & Islands covered at high water (where shellfish are obtained), & fisheries within the harbour’.⁹⁸ This was a carefully considered refusal for, as Commissioner Herbert Brabant took pains to point out to his superiors, Māori complaints were ‘intended to open

93. Ibid, p 44

94. Ibid, p 51, fn74

95. Ngatai to Ballance, 21 February 1885, AJHR, 1885, G-1, p 61 (doc A77, p 29)

96. ‘Notes of a Meeting between the Hon. Mr Ballance and Tauranga Natives, at Whareroa, Tauranga, on the 21st February 1885’, 21 February 1885, AJHR, 1885. G-1, p 62

97. Document D7, p 42

98. Brabant to Lewis, 2 February 1888, DOSLI Hamilton confiscation file 5/18, ‘Papers on Awards in Katikati Te Puna Purchase’ (Waitangi Tribunal, Raupatu Document Bank, 139 vols (Wellington: Waitangi Tribunal, 1990), vol 127, pp 48, 881, 48, 883 (doc A77, pp 31–32)

Map 7.2: Reclamation along the Strand

a very large question. Any recognition of these fishery claims might, he feared, result in Māori ‘preventing all fishing by Europeans in the harbour’.⁹⁹ Thus, in Tauranga, Crown officials simply refused to address this ‘very large question' - which, of course, had much broader implications than control of fisheries alone.¹⁰⁰ Elsewhere, however, the Crown and courts were greatly exercised by the very points that Ngatai had raised.

That the Crown is the presumptive owner of the foreshore and seabed by prerogative right is a central precept of English common law. The common law allows that other parties can claim title to portions of foreshore or seabed, though the burden of proof rests with them to prove the rightful displacement of Crown ownership. This can be done by a Crown grant, or by 'continuous occupation of sufficient duration for a grant to be presumed or a title by limitation acquired’.¹⁰¹

However, it is also a precept of common law that a transfer of sovereignty cannot, of itself, extinguish aboriginal or native property rights. This is the doctrine of aboriginal title. A critical aspect of this doctrine is that the nature of native or customary title is decided by reference to native - Māori - custom and law, and not according to English conceptions. And, as we have seen, Māori hapū universally and unequivocally asserted rights to the foreshore and seabed.

The question remained whether these rights amounted to ownership in the English sense - and a particularly significant issue there was whether Māori customary rights could be the source of freehold title to the foreshore. In the early decades of Crown control, officials were well aware that to establish Crown title to the foreshore, they had to clearly extinguish native title. They believed that their purchases successfully did so.¹⁰² Initially, the Native Land Court also awarded Crown freehold grants to Māori that included the foreshore. After 1870, however, the court generally accepted only that Māori could establish an exclusive right of fishery, and held that customary rights were not sufficient to establish freehold ownership over the foreshore (though at least one judge of the Native Land Court subsequently issued titles to the foreshore based on ancestral occupation).¹⁰³ As the actions of the Crown officials in Tauranga clearly show, the Crown was reluctant to allow Māori to establish even these exclusive fishery rights.

By ruling that Māori customary rights did not amount to full property rights over the foreshore, the courts opened the way for the Crown to assume a general claim under the common law to ownership of the foreshore. Under the common law, unless contravened by a Crown grant, or by proof of use rights entitling citizens to such a grant, the Crown was the

99. Ibid

100. Ibid

101. Kent McNeil, Common Law Aboriginal Title (Clarendon Press: Oxford, 1989), p 105

102. Boast, The Foreshore, pp 30–31

103. Ibid, pp 32, 34–35

presumptive owner of the foreshore. Further, under the common law the Crown owned the seabed as far out as territorial sovereignty was asserted.¹⁰⁴

Beginning with the Harbours Act 1878, the Crown passed a series of statutes that presumed its general claim to the foreshore was securely founded in common law. The Act provided that only the Crown could make grants to the foreshore, and then only by Acts of Parliament.¹⁰⁵ This provision, as incorporated in subsequent legislation, was regarded as the principal statutory foundation for Crown ownership of the foreshore until the passing of the Foreshore and Seabed Act 2004.¹⁰⁶ As the Muriwhenua Fishing Report found, in practice it ‘put paid to any contention that the Crown's common law right to the foreshore was subject to customary usage’.¹⁰⁷

Subsequent governments increasingly acted on the assumption that the Crown simply 'owned’ the foreshore.¹⁰⁸ In Tauranga, the question of ownership was effectively decided by the the vesting of ‘[a]ll the foreshore of the Tauranga Harbour’ in the Tauranga Harbour Board, via the Tauranga Foreshore Vesting and Endowment Act 1915.¹⁰⁹

The harbour board had been set up by statute in 1912. In introducing the Bill to the Legislative Council for its second reading, the Honourable Thomas Thompson (member for Auckland) stated that there was ‘no objection whatever’ to setting up the board, and the proposal had ‘the approval of all concerned’.¹¹⁰ The board’s first meeting was held on 5 March 1913, with a membership that appears to have been entirely Pākehā. The Harbours Act 1908, the Tauranga Harbour Act 1912 that established the board, and then the Tauranga Harbour Amendment and Foreshore Vesting Act 1917 - all concerned with composition of harbour boards generally or Tauranga in particular - contained no provision for representation of local iwi or hapū.¹¹¹ There is no indication that Māori were consulted over the Crown's subsequent transfer of ownership and power to the Tauranga Harbour Board.¹¹² Later Acts passed in 1948 and 1950, and a Government inquiry in 1944 continued this pattern.¹¹³

In establishing the harbour board, the 1912 Act defined the Tauranga Harbour District as comprising the districts of both the county and the borough. The board took over from those bodies the ownership of any existing harbour structures such as wharfs and sheds. The harbour area itself was defined in the Act as ‘the Port and Harbour of Tauranga, the

104. Waitangi Tribunal, Report on the Crown’s Foreshore and Seabed Policy, p 29

105. Document A77, pp 26–28; Boast, The Foreshore, p 34

106. Richard Boast, ‘Te Whanganui-a-Orotu (Napier Inner Harbour) 1851–1991: A Legal History’ (commissioned research report, Wellington: Waitangi Tribunal, 1991) (doc A14), p 51

107. Waitangi Tribunal, Report on the Muriwhenua Fishing Claim, p 85

108. Boast, The Foreshore, p 38

109. Document A77, p 51; doc A36, pp 16–18

110. Document A36, p 16; Thomas Thompson, 18 October 1912, NZPD, 1912, vol 261, p 399

111. Document A36, pp 17–19

112. Ibid, p 58

113. Ibid, pp 9–12

Port and Harbour of Katikati, the Kaituna River so far as it is navigable, the Estuary of Waihi South, and the respective entrances thereto’.¹¹⁴

Within a few months of its inception, the harbour board sought the advice of the Minister of Marine as to how it could have the foreshore vested in it. In 1915, Parliament passed the Tauranga Foreshore Vesting and Endowment Act, under which the board acquired:

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 harbour¹¹⁵

Also included were various parcels of land bordering the harbour.¹¹⁶

In 1917, Parliament extended the Tauranga Harbour District to take in ‘the Te Puke Town District, the Matata Riding of the Country of Whakatane, the County of Rotorua, and the Town of Rotorua’. It also extended the board’s control to include the harbour foreshore of Matakana Island.¹¹⁷ Tauranga County and Borough Councils and the Railways Department were consulted before the initial foreshore vesting; Tauranga Māori were not. These Acts, like those that preceded and would follow them, contained no reference to Māori or their interests in the harbour and foreshore.¹¹⁸

In passing these Acts, and assuming the authority to vest title to Tauranga and other harbours in various boards, the Crown ignored unease in the Crown Law Office over whether the Crown’s own claim to title under common law was secure.¹¹⁹ In fact, in a landmark case in 1963, the courts found that the Crown had no valid claim to the foreshore under common law, but that Māori aboriginal or customary title had nevertheless been validly extinguished by the issuing of Crown grants by the Native Land Court.¹²⁰ This finding, however, was overturned in the 2003 Court of Appeal judgment in the Marlborough Sounds case. There, Elias CJ stressed that:

The common law as received in New Zealand was modified by recognised Maori customary property interests. If any such custom is shown to give interests in foreshore and seabed, there is no room for a contrary presumption derived from English common law. The common law of New Zealand is different.¹²¹

In short, the court reiterated the central precept of the doctrine of aboriginal title; that Māori customary title to the foreshores and seabed remained intact until properly

114. Ibid, p 16; Tauranga Harbour Act 1912, SS 3, 4, and 7

115. Document A36, p 23; doc D7, p 51; Tauranga Foreshore Vesting and Endowment Act 1915, SS 3, 5, sch 1

116. Tauranga Foreshore Vesting and Endowment Act 1915, sch 2

117. Tauranga Harbour Amendment and Foreshore Vesting Act 1917, s 4, sch

118. Document A36, p 23

119. Waitangi Tribunal, Report on the Crown’s Foreshore and Seabed Policy, p 30; Boast, The Foreshore, pp 41–42

120. In re the Ninety-Mile Beach [1963] NZLR 461, at 462; see Richard Boast, Foreshore and Seabed (Wellington: Lexis Nexis, 2005), pp 70–71

121. Attorney-General v Ngati Apa [2003] 3 NZLR 643 (CA) at 668

extinguished. The court held, further, that neither the sequence of general statutes beginning with the Harbours Act 1878, nor the processing of customary land through the Native Land Court, were sufficiently clear and explicit to extinguish Māori customary rights to land in the adjacent foreshore and seabeds.¹²² This decision therefore reopened the way for Māori to claim title to portions of the foreshore and seabed, either by seeking customary title through the Māori Land Court, or common law aboriginal title through the High Court.

The Court of Appeal did not discuss the factual question of the extent or nature of any customary property in foreshore and seabed. No applications were ever brought before the courts as a result of the Court of Appeal's decision, because the Foreshore and Seabed Act 2004 removed the courts’ jurisdiction over those lands, foreclosing the possibility that Māori might successfully assert property rights in them. The nature and extent of the property rights that either court might have granted is therefore untested and remains unclear.¹²³

In sum, by the 1880s, Māori and the Crown had assumed distinctly contrary positions as to who rightfully possessed and controlled the foreshore and seabed - positions that remain today. In Tauranga, these differences emerged over the question of who possessed and controlled Tauranga Moana. In practice, the Crown settled this question by passing a series of Acts that vested authority in bodies entirely composed of Pākehā settlers. With these Acts, possession and authority over Tauranga Moana passed from Tauranga Māori, without consultation - and, given the views expressed by Hori Ngatai in 1885, presumably against their will. Their harbour was under the direct jurisdiction of the Tauranga Harbour Board, and its control was backed by the full authority of the Crown. Henceforth, Tauranga Māori would struggle to assert their Treaty rights to participate in the management of the harbour before the Crown; the question of ownership was foreclosed.

7.4.3 Rivers and waterways: Māori customary law and ownership

The Tribunal has previously considered the issues surrounding property and Treaty rights in rivers and other waterways at length.¹²⁴ We do not repeat their detailed analyses. Once again, the fundamental issue is the imposition of British common law over customary uses and tenure. Three particular issues require our attention here: did Tauranga Māori possess

122. Waitangi Tribunal, Report on the Crown’s Foreshore and Seabed Policy, pp 42–43

123. Ibid, p 44

124. Waitangi Tribunal, Report of the Waitangi Tribunal on the Motunui-Waitara Claim, 2nd ed (Wellington: Government Printing Office, 1989); Waitangi Tribunal, Report of the Waitangi Tribunal on the Kaituna River Claim, 2nd ed (Wellington: Government Printing Office, 1989); Waitangi Tribunal, The Mohaka River Report 1992 (Wellington, Brooker and Friend Ltd, 1992); Waitangi Tribunal, Te Ika Whenua - Energy Assets Report 1993 (Wellington, Brooker and Friend Ltd, 1993); Waitangi Tribunal, Te Ika Whenua Rivers Report; Waitangi Tribunal, The Whanganui River Report-, and Waitangi Tribunal, He Maunga Rongo.

customary or aboriginal title to rivers by law? If so, how did the Crown displace customary title? Were these ways and means consistent with the principles of the Treaty?

Waterways functioned as key cultural and spiritual markers of identity. For Ngāti Kāhu, Ngāti Rangi, and Ngāti Pango, for example, the Wairoa River is their awa tupuna, the river by which they mark their identity.¹²⁵ These Wairoa hapū maintain they never consented to their rights over the Wairoa River - which they claim as a taonga - being extinguished, and that those rights are still extant ‘in Treaty terms at least’.¹²⁶ They seek remedies such as the vesting of the bed, or the river, or both, in the hapū; exclusive or joint authority over the river; and compensation for the hydroelectricity schemes constructed in the river catchment.¹²⁷ Similarly, Ngāti Motai and Ngāti Māhana stressed the significance of waterways in the Kaimai Range, claiming them as taonga over which they ought to have significant management rights.¹²⁸ Generic closing submissions, adopted by several claimants, claim that both the Crowns legislative assumption of title to the beds of navigable waterways, and the application of the common law to non-navigable waterways, expropriated Māori property rights without compensation, in breach of the principles of the Treaty.¹²⁹

Because many rivers are taonga that are especially significant to Māori for economic, cultural, and spiritual reasons, the Tribunal has discussed the nature of Māori relationships to waterways many times. Waterways were regarded as ‘a whole and indivisible entity’ with a distinct personality.¹³⁰ Each river has its own life force, or mauri. Significant rivers are guarded by taniwha who protect the river and its people, provided that they respect the river. Several witnesses before us revealed something of the various taniwha who protected their particular rivers, and spoke of the behaviour required to avoid incurring the taniwha’s anger.

The rangatiratanga over rivers lay with the hapū, just as it did with land. It was hapū who exercised collective authority over their river, who as kaitiaki guarded the river’s mauri, husbanded its resources, and were in turn nurtured by the river. Different whānau and individuals had use rights to resources, such as a particular fishery, only by virtue of their membership of the hapū.¹³¹ The essence of past findings, then, is that Māori hapū collectively held customary title over waterways just as they did over land. Crucially, waterways were ‘not something to be analysed by the constituent parts of water, bed, and banks, or of tidal and non-tidal, navigable and non-navigable portions’ as in English law. They were, rather, single beings, ultimately the domain of atua and ancestors, though possessed and controlled by

125. Document A37(b), p 12

126. Waitangi Tribunal, Te Raupatu 0 Tauranga Moana, p 309

127. Document U37, pp 26–27, 30

128. Counsel for Wai 255 and Wai 1340 claimants, closing submissions, 24 November 2006 (doc U11), pp 81, 84–85

129. Claimant counsel, submissions relating to rivers, harbours and foreshore and seabed issues at Tauranga (doc U18), p 23

130. Te Rūnanganui o Te Ika Whenua Inc Society v Attorney-General [1994], 2 NZLR 20 (CA) at 21; see also Waitangi Tribunal, The Whanganui River Report, p 39

131. Waitangi Tribunal, Te Ika Whenua Rivers Report, pp 123–124

hapū.¹³² Therefore, as the Whanganui River Report found, ‘Included in that possessed was the water. The river would be meaningless without it’.¹³³

Māori customary or aboriginal title to rivers and waterways in Tauranga has been displaced through a combination of the raupatu and the application of the introduced law of New Zealand. Title of any sort was lost to the rivers and streams within the confiscated block. The only river of any size wholly within the confiscated block was the Kōpūrereroa River. However, the block was bounded to the west by the Wairoa River and to the east by the Waimapu River. Accordingly, title to the eastern side of the Wairoa River and to the western side of the Waimapu River was also lost.

Perhaps more importantly, the raupatu extinguished customary title to all the rivers in the Tauranga inquiry district. It is true that the confiscating Order in Council of 18 May 1865 does not specifically mention rivers.¹³⁴ However, the courts addressed this specific point in 1900 with respect to the Waikato River, where it was found that title to the river had been extinguished by the raupatu confiscation.¹³⁵

The lands partly returned to Tauranga Māori by the Crown commissioners were Crown grants in fee simple, so that property rights to the river were shaped by English law, not customary law. Under the common law of England, rivers comprise riverbeds and banks (which can be owned) and natural water (which cannot be owned). At common law, the Crown owns the beds of tidal reaches. In 1903, the Crown in New Zealand extended its ownership to the beds of all navigable rivers, under section 14 of the Coal-mines Amendment Act 1903. It did so to protect the ‘national interest’ in economic use and development of major rivers, and to prevent private control of hunting and fishing.¹³⁶ The provisions of that statute have been retained by subsequent legislation, most recently in section 354 of the Resource Management Act 1991.

The only river in our inquiry district which might plausibly be partly navigable today is the Wairoa. The statutory definition of navigability is quite unclear, and the Crown neglected to advise us whether it claims ownership of the Wairoa on this basis. There is historical evidence of the river being used by commercial operators to raft logs downstream in the nineteenth century, but the McLaren Falls (19 kilometres up-river from Tauranga Harbour) clearly made the river as a whole non-navigable. In allowing dams to be built on the river by local authorities, the Crown clearly assumed ownership, yet their construction also affected navigability.¹³⁷

Most, if not all, of the rivers and waterways in Tauranga Moana are non-navigable, and as such, their beds are owned by the adjoining (riparian) landowners to the midpoint of the

132. Waitangi Tribunal, The Whanganui River Report, pp 39, 46

133. Ibid, p 262

134. Document A33, pp 19–20

135. Waitangi Tribunal, The Whanganui River Report, pp 17–18

136. Ibid, pp 17–19

137. Document A33, p 4

waterway, according to the ad medium filum aquae rule of English common law. At common law, ownership of a riverbed carries with it other rights, including those of fishing and navigation. Because the Crowns ownership is regarded as being for the public benefit, the common law recognises public rights of fishing and navigation in rivers whose beds are owned by the Crown. But these rights do not obtain where riverbeds are privately owned.¹³⁸

In sum, when the Crown confiscated the lands of Tauranga Māori, it also took waterways. Even when portions of these lands were returned to Tauranga Māori, they were no longer held under customary title but under Crown grant. Thus, the nature and extent of Māori property rights were now very different. Instead of collectively possessing a river, wholly and indivisibly, as a taonga of the people, individual riparian owners now possessed the river's banks and bed to the water's midline, and controlled the right to fish. And, if and where they no longer owned the adjacent banks, Māori lost legal ownership of even their riverbeds, and with them, their rights of fishing and navigation.

In asserting ownership over key environments such as foreshores, harbour and inshore seabeds, and navigable waterways, the Crown did not consult with Māori. Nor did it do so when it imposed English common law over other waterways, thus asserting the power to shape how ownership was to be determined. The consequent loss of ownership over these environments and their resources forced Tauranga Māori to struggle - unsuccessfully - for more than one hundred years, to assert their rights to participate in the control and management of their taonga.

7.4.4 Rangatiratanga through management?

The Crown has played a very active and direct part in the development of Tauranga, particularly in the decades immediately following the Second World War. The claimants argue that the Crowns active management of Tauranga’s development ignored Māori rangatiratanga and kaitiakitanga, and subsumed Māori cultural and spiritual values, which placed great importance on protecting a healthy environment. Māori had to accept the Crown's vision of development or they were sidelined, ignored, and forgotten.¹³⁹ The Crown agrees that, earlier in the twentieth century, Māori could influence decision-making mainly through provisions that applied to the public in general.¹⁴⁰ They argue such provisions did recognise Māori cultural associations, at times, but acknowledge that there has subsequently been 'an incremental recognition of the need to provide for Māori values in planning’ and to provide mechanisms through which Maori can have input into decision making.¹⁴¹

138. Graeme Austin, ‘Legal Submissions on the Beds of Navigable Rivers, Section 261 of the Coal Mines Act 1979', app 15, Waitangi Tribunal, The Pouakani Report 1993, 2nd ed (Wellington: GP Publications, 1996), pp 459–469

139. Document U31, p 16

140. Crown counsel, closing submissions: issue 5, 8 December 2006 (doc U29), p 5

141. Ibid, pp 5–6

This acknowledgement, though limited, is helpful. The Crown has conceded, albeit obliquely, that Māori interests were not explicitly provided for in general planning legislation until recently, and that Māori had no input into decisions regarding the taonga of the natural environment other than as ordinary members of the public. This is not the partnership envisaged by the Treaty, and it in no way provided for Māori rangatiratanga or kaitiakitanga in environmental management. We therefore do not conduct a full review of the legislative regime that provided the framework for environmental management before 1991. Instead, we look at how and where provision (or, more often, lack of provision) for Māori rangatiratanga and kaitiakitanga in general legislation had specific impacts in Tauranga - one such example being in the development of the harbour and port infrastructure. In doing so, we acknowledge that aspects of the Crowns legislative regime did explicitly attempt to protect the environment (and thus came close to mirroring Māori cultural values). And the Crown did at times intervene to restrain development in Tauranga Moana, in the interests of conserving indigenous ecosystems (albeit only in locations where agricultural production was not seen as economically viable). To Tauranga Māori, however, these interventions have only highlighted the Crowns general unwillingness to provide for them to exercise rangatiratanga and kaitiakitanga and to continue accessing traditional resources.

The Crown has acquired large areas of Māori land in Tauranga for the purposes of water catchment protection, scenery preservation, and environmental conservation. In chapter 4 we discussed the acquisition of the Ōtawa scenic reserve (see sec 4.2.2); in chapter 8 we will instance cases of the many reserves around the harbour formed from Māori ancestral land. Here, we discuss the Crown's attempts to acquire offshore islands such as Kārewa and Tūhua in the name of environmental conservation.

(1) Kārewa

In 1917, the Crown compulsorily acquired those portions of Kārewa Island which the Māori proprietors had refused to sell, using the provisions of the Public Works Act 1908 and the Animal Protection Act 1914. It did so primarily to protect a tuatara population threatened by Europeans, who collected the animals as natural curiosities for their gardens. Though the Crown paid the owners £10 15s 8d in compensation for the loss of land, it acted without consultation, thus ignoring ongoing Māori interests in maintaining their harvests of tītī (muttonbirds), taonui (black petrels), and kaimoana.¹⁴² Despite the island being declared a sanctuary from which ‘no imported or native game was to be taken or killed’, however, Māori continued to harvest these resources until the island was set aside as a wildlife sanctuary in 1972.¹⁴³ Māori can no longer visit the island and, on at least one occasion, people

142. Document A18, pp 404–405

143. Kihi Ngatai, amended statement of claim, 11 December 1995 (doc A77, app 2, p 108); Te Hau Tutua, brief of evidence, undated (doc R67), para 27

have been prosecuted for attempting to exercise their traditional harvesting rights (as has also occurred over the taking of kererū).¹⁴⁴

(2) Tūhua

The Crown also sought to gain control over Tūhua (Mayor Island) to conserve its flora and fauna, although the outcome was somewhat different. The Crown made many attempts to buy the island from Te Whānau a Tauwhao between the late nineteenth and mid-twentieth centuries.¹⁴⁵ It was encouraged in this aim by various conservation and recreational groups (notably the Tauranga Deep Seafìshing Club). But consistent opposition from the majority of owners prevented the Crown from acquiring more than a few shares in the island in the late nineteenth century.¹⁴⁶ As a petition from Te Whānau a Tauwhao in 1895 makes clear, the owners had very particular reasons for insisting Tūhua remained in their hands:

this Island should be left alone for us and our descendents it being a very sacred burying place, over 10,000 dead are buried there, some are resting in caves in the rocks and others are scattered all over the island, a very little vacant space is unused.¹⁴⁷

Although the Crown had the power to take the island under the Public Works Act, to its credit, it refused to do so and continued to seek a negotiated purchase.

The Crown nevertheless operated under the paternalistic assumption that it was solely the job of the Crown to protect the islands plants and birdlife, as well as the historical association of Māori with the island - a view clearly expressed by the acting Minister of Native Affairs, Frank Langston, in 1937, when he said: ‘The Natives themselves cannot take care of the island’.¹⁴⁸ The assumption that the Māori owners could not, on their own, protect their property and care for the island’s rare flora and fauna may well have been correct, given the intense interest in the island from a range of different lobby groups. However, instead of working to assist its owners, the Crown proceeded to use legislation to restrict use of the island, without consultation.

In 1913, Tūhua was declared a sanctuary for imported and native game under the Animals Protection Act 1908.¹⁴⁹ The Māori owners of Tūhua remained completely unaware of this development until 1946,¹⁵⁰ when members of the Katikati Tribal Executive made clear the owners’ position regarding attempts to usurp control over their island, whether in the name of conservation or commercial development:

144. Document Q5, pp 6–7

145. Suzanne Woodley, Tuhua (Mayor Island), Waitangi Tribunal Research Series, 1993, no 8 (doc A7), pp 8–27

146. Ibid, pp 8–9, 13–19, 23–24

147. Cited in Richard Boast, ‘Confiscation and Regrant: Matakana, Rangiwaea, Motiti and Tuhua: Raupatu and Related Issues’ (commissioned research report, Wellington: Waitangi Tribunal, 2000) (doc J1), p 58

148. Department of Internal Affairs to Native Department, 16 November 1937, AAMK 869/2033, 7/6/30, ArchivesNZ, Wellington (doc A7, pp 19–20)

149. Document A7, pp 8–11

150. Ibid, pp 11–12

Whilst we are only too pleased to cooperate with the acclimatization society, sword fishers, holiday makers etc, at the same time we wish to make it clear that we are the owners of the island which is entirely under the control of the Maori owners and we must be consulted and our permission given before anything is done by any person or body which may effect [sic] the island.¹⁵¹

Despite the Crowns disquiet, the Māori owners have successfully maintained overall authority and control over Tūhua by vesting the island in a trust, formally established in 1951. The Crown is represented on the trust's board by three Government departments (Māori Affairs, Internal Affairs, and Lands and Survey).¹⁵² The trust is charged with managing most of the island as though it were a national park, although smaller portions may be developed for commercial ventures, or managed for protection of historic and tribal sites.¹⁵³

In 2002, Tūhua assumed a unique status as the first island to become a Māori conservation area, under a Ngā Whenua Rāhui kawenata (covenant).¹⁵⁴ The ocean surrounding the northern end of Tūhua is also a Department of Conservation marine reserve. Tūhua is thus a rare example of Māori retaining ownership and control over their land while satisfying the Crown that conservation values are being protected.¹⁵⁵ It bridges the divide often perceived between Māori and Pākehā over the purpose of conservation, as expressed to us by Whareoteriri Rahiri of Waitaha:

DOC has an overriding statement that talks about conserving the flora and fauna for future generations. They never discuss future use. However, from a tangata whenua perspective you conserve these resources until they get to abundance and then you use the overabundance until it is consumed to a sustainable level... DOC places it in a glass bowl. You look at it but don’t have a relationship with it.¹⁵⁶

Most importantly, Tūhua provides a rare historical example of successful resistance to Crown attempts to purchase Māori land, and an equally rare example, even in recent times, of politically and ecologically sustainable co-management of resources by Tauranga Māori and the Crown. Despite the Crown’s doubts and persistent attempts to wrest ownership and control from Tūhua’s owners, the latter have determinedly retained control over their taonga, and they have not over-exploited resources, though they may not have been able to wholly prevent the depredations of others. The history of Tūhua Island, still home

151. Rawiri Faulkner and T Roretana for Katikati Tribal Executive to Constable Hodge of Tauranga, 17 August 1946, AAMK 869/2033, 7/6/30, ArchivesNZ, Wellington (doc A7, p 25)

152. Ibid, pp 28–29

153. Ibid, pp 29

154. Chris Carter, ‘Tuhua (Mayor) Island Protected As Maori Reserve’, Beehive.govt.nz, http ://www.beehive.govt. nz/release/tuhua+mayor+island+protected+maori+reserve (accessed 1 September 2009)

155. We note that on 4 May 2007, the 16 shares in Tūhua that had been acquired decades earlier by the Crown were finally re-vested in the Māori owners (Tauranga minute book 89, fol 224).

156. Whareoteriri Rahiri, brief of evidence, 27 September 2006 (doc S35), p 11

to a diverse (and growing) range of wildlife, shows what might have occurred elsewhere in Tauranga Moana, if Māori had been assisted to exercise their authority to protect their cultural values and spiritual associations with their environment. In the next sections, we examine what has occurred instead.

7.5 ENVIRONMENTAL MANAGEMENT AND MODIFICATION, 1886–1991

Since 1886, the natural landscape of the Tauranga area has undergone enormous change. In the early 1900s, Tauranga itself was a small village. Even in 1945, its urban population numbered less than 10,000 and the entire region had only some 18,000 inhabitants.¹⁵⁷ Now a city of 100,000 people, Tauranga is one of the fastest growing urban areas in Aotearoa. In the process of this rapid development of the city and its region, forests have been felled, pastures sown, rivers dammed, land reclaimed, and a port created. The rate of expansion increased dramatically after the Second World War, particularly once the decision was made in 1950 to construct overseas port facilities at Mount Maunganui.

The development of the city and the region has profoundly affected Tauranga Māori. As Evelyn Stokes observes, ‘in few areas have the pressures on land been so intense and involved such complete transformation of the lifestyle of Maori communities in a single generation.'¹⁵⁸ In the face of these tumultuous developments, Tauranga Māori have struggled to control the fate of their ancestral landscapes. They also perceive their inability to act as kaitiaki in their rohe as affecting their mana. As Heeni Murray put it to us:

The bounty of the ocean was one of our main baskets of food. Over the years, for many reasons, these baskets cannot now be filled. Again it all comes back to our mana over ourselves and our resources. This was guaranteed to us by the Treaty. We can remember when we could walk down to the sea to spear flounder for breakfast. However, today this is not the case.¹⁵⁹

This acute sense of dispossession and loss is why Desmond Heke Kaiawha titled his summary of the impacts of development in Tauranga 'environmental raupatu’.¹⁶⁰ Very many tangata whenua witnesses echoed this theme, and asked that we find the Crown guilty of failing to prevent the loss, pollution, and degradation of resources. Te Awanuiarangi Black told us, ‘We are the kaitiaki of this place, of its mauri and had this been recognised properly

157. Stokes, A History of Tauranga County, pp 288, 328

158. Evelyn Stokes, Tauranga Moana: The Impact of Urban Growth (Hamilton: Centre for Māori Studies and Research, University of Waikato, 1980) (doc A15), p 2

159. Document J22, p 10

160. Document R34, p 5

we could have stopped this depletion.¹⁶¹ However, as Heeni Murray noted, problems such as over-fishing, as with environmental damage generally, have occurred ‘for many reasons’.¹⁶²

In this section we discuss the roles played by Crown and Māori in managing and modifying the environment. We do so to assess the Crown’s environmental management performance against the principles of the Treaty. Our discussion focuses on the twin issues consistently raised by the claimants: their inability to exercise any authority over their ancestral landscape, and the blame they attach to the Crown for allowing the destruction, pollution, and depletion of their ancestral landscape to occur.

This section surveys the years from 1886 until 1991, when the enactment of the Resource Management Act 1991 established the modern management regime. We are mindful that this is a very long period over which to assess the Crown's behaviour. Knowledge about the causes of environmental change, and people’s perceptions of environmental issues, have altered greatly over this time. The Mohaka ki Ahuriri Report acknowledged that while the Crown, for economic reasons, long encouraged practices that were undoubtedly environmentally destructive, ‘it would be wrong to judge Crown actions or omissions by the standards expected in environmental management in the twenty-first century’.¹⁶³ However, some concerns over environmental degradation in Tauranga Moana were expressed even in the early twentieth century and, very often, Māori were the source of such concerns. In particular, Māori repugnance towards the pollution of waterways, and to over-fishing, does not seem to have changed greatly over time. When assessing historical environmental management practices, the critical questions therefore become: given the general state of knowledge, and the known attitudes of Māori, how did Crown actions (or omissions) help or hinder the ability of Tauranga Māori to exercise rangatiratanga and kaitiakitanga in the management of their remaining natural environment and ancestral landscape?

7.5.1 Losing the resources of the land

Tauranga's first Pākehā settlers were determined to make farms from the forests and wetlands that had sustained the traditional Māori culture and economy. As elsewhere in New Zealand, it was thought that the indigenous forest and wetland species would provide (at best) a single standing crop, before being laid down in crops or grass. Māori, by contrast, had long regarded these ecosystems as providing a sustainable and ongoing pātaka, or storehouse, of foods, though they too now sought to convert more of their lands to agricultural production. Crown policy, however, was that the natural resources of New Zealand 'existed to be developed and the land made fit for occupation’.¹⁶⁴

161. Document R45, p 13

162. Document J22, p 10

163. Waitangi Tribunal, The Mohaka ki Ahuriri Report, 2 vols (Wellington: Legislation Direct, 2004), V0l 2, p 636

164. M M Roche, Forest Policy in New Zealand: An Historical Geography 1840–1919 (Palmerston North: Dunmore Press, 1987), p 23

(1) Forests

The milling of the forests of Tauranga Moana began in 1884.¹⁶⁵ The initial focus was the kauri forests behind Katikati which, as a result, were effectively cut out by the 1920s.¹⁶⁶ As throughout New Zealand, much valuable timber was simply burnt in the haste to bring land into production. In September 1898, the Bay of Plenty Times complained of:

The extraordinary neglect of the timber industry in this portion of the Bay of Plenty where such splendid timbers as rimu, mangeao, tanekahi etc, are plentiful... People will still burn bush, the timber of which should yield a profit of £20 or £30 per acre, to form a cattle run which will not return as much in 20 years’¹⁶⁷

Native forest was felled in the Kaimai Range throughout the early and mid-twentieth century and, in the 1940s, 10 mills were still operating. Clear-felling was halted in the 1970s, however, partly in reaction to growing concern over loss of indigenous forest, but primarily because of public and official alarm at increasing evidence of erosion (in which growing numbers of feral goats were also a factor).¹⁶⁸ Neil Hansen, county engineer, reported in 1968 that while there had been no slips in the area 20 years previously, they were now a serious and spreading problem. The New Zealand Herald reported his warnings:

If nothing is done – and done urgently – these slips will continue to get worse and additional slips will occur’ he said. ‘Our river beds will aggregate and cause flooding in the lower country. Runoff will increase and, in the ultimate, we will lose a considerable amount of our water resources in this catchment.¹⁶⁹

Such concerns spurred the Forest Service to develop a management plan for the Kaimai Range. It sought to balance the retention of native forest for catchment protection with amenity and scientific values, while still allowing for increasing pine plantations. Growing public pressure for the establishment of a national park in the Kaimai Range forced a greater focus on environmental protection of amenity and ecological values. This resulted in the Government creating the 37,000 hectare Kaimai-Mamaku State Forest Park in 1975.¹⁷⁰ Even within this area, around a third of the native forest had already been destroyed by the time the park was created.¹⁷¹

Many tangata whenua witnesses mourned the destruction of native forests in the Kaimai Range. Some also disapproved of their replacement with pine. Gloria Koia, for example,

165. Stokes, A History of Tauranga County, p 269

166. Document D7, p 47; Stokes, A History of Tauranga County, pp 270–275

167. Stokes, A History of Tauranga County, p 270

168. Document A11, pp 29, 33

169. Stokes, A History of Tauranga County, p 426

170. Document A11, pp 35–36

171. Department of Conservation, ‘Kaimai-Mamaku Forest – A Haven of History’ (Christchurch: Department of Conservation, 2006)

Figure 7.3: Early logging in the Kaimai Range (undated)
Photographer unknown. Reproduced courtesy of Tauranga Heritage Collection (dr 7, fld 2, no 74).

Figure 7.4: Logging truck at Poripori (Lower Kaimai), circa 1962
Photographer unknown. Reproduced courtesy of Tauranga City Libraries (03–032).

blamed pine plantations for a loss of biodiversity: ‘we have lost bird life in the Kaimai. Even the insects have disappeared and the frogs have gone. For these creatures their natural food chain has been disrupted.’¹⁷² That said, some Tauranga Māori have themselves engaged in exotic forestry – through the Ngā Manawa Incorporation, for example. Such land uses have been inevitable if rates are to be paid and ownership retained on otherwise unproductive land, and the industry has also provided job opportunities that might not otherwise have been available.¹⁷³

(2) Lowlands

While the rugged topography of the Kaimai Range and a growing appreciation of its scenic qualities among Europeans protected some of their indigenous ecosystems, the indigenous forest and wetland ecosystems of the coastal lowlands have been almost completely transformed.

Historically, European settlers largely ignored the potential of the indigenous resources of the swampy lowlands of New Zealand. They persistently saw ‘swamps’ and ‘mudflats’ as

172. Wendy Hart, ‘A Comparative Study of Public Works Takings in the Tauranga Moana Inquiry District’ (commissioned research report, Wellington: Waitangi Tribunal, 2006) (doc S2), p 46; Gordon Te Reo Hau Ranui, brief of evidence, 22 May 2006 (doc Q7), p 7

173. Document A11, pp 121–123, 129

simply impediments to agricultural production. Only flax was seen as potentially useful, and although attempts to develop flax-milling enterprises on the Tauranga lowlands began in the late 1880s, they were sporadic and generally short-lived. Evelyn Stokes notes that ‘there was no attempt to control cutting or maintain the swamps’.¹⁷⁴ A 1924 article in the Bay of Plenty Times complained that flax was ‘not being conserved or protected’, and commented that ‘the flax bearing lands are gradually being brought in for farming purposes’.¹⁷⁵

The Marine Department did seek to avoid reclaiming wetlands around Tauranga Moana, in order to maintain tidal flows and thereby prevent silting up the harbour entrance. At times, Māori interests were also taken into account by the Marine Department: one of its reasons for declining permission to reclaim the Te Rereatukahia Estuary in the 1930s, for example, was its use as an important flounder fishery for Māori.¹⁷⁶ Nevertheless, the trend for draining and reclaiming wetlands continued around Tauranga throughout the early and mid-twentieth century.¹⁷⁷

The estuary margins of Waimapu and Waikareao were particularly affected by reclamation for the railway line. Between 1912 and 1933, almost 1200 acres of the Judea wetland at the mouth of the Kōpūrereroa River at Waikareao were drained by the Judea Drainage Board, constituted under its own legislation.¹⁷⁸ The Judea wetland, or ‘Judea swamp’ as it was to European settlers, contained an urupā, several puna (springs) and a hōpua (tidal pool) used for baptisms; it was also a source of food, harakeke, and raupō for Ngāi Tamarāwaho of Ngāti Ranginui. Fisher et al argue that ‘there was no genuine consideration given to their very real interest in the preservation of a significant spiritual, cultural and sacred resource’.¹⁷⁹ The extent of such an interest is suggested by the fact that when, in 1934, the Government compulsorily acquired the only substantial wetlands of Ngāi Tūkairangi and Ngāti Kāhu to build the airport at Whareroa, the tangata whenua took their case as far as the Privy Council. They were unsuccessful. These wetlands were a major source of food and the principal source of fuel for these hapū, who lacked electricity and so relied heavily on open fires.¹⁸⁰

It is clear that even at this early stage in Tauranga’s development, Tauranga hapū valued some of their most productive wetlands highly, desired to retain them, and struggled against their ongoing destruction. Wetland drainage and reclamation continued through the 1950s and 1960s, much of it conducted by the Department of Lands and Survey.¹⁸¹ Whareoteriri Rahiri of Waitaha, told us of trips to the Wairākei Stream and its outfall into the estuary to

174. Stokes, A History of Tauranga County, p 269

175. Quoted in Stokes, A History of Tauranga County, pp 249–250, 269

176. Document D7, p 90

177. Ibid, pp 54–56

178. Ibid, p 54

179. Document A50, p 40

180. Ibid, pp 43–44

181. Stokes, A History of Tauranga County, pp 394–395

Figure 7.5: Judea (Hūria) circa 1925. Waikareao Estuary and the Te Papa Peninsula in the background.
Photographer unknown. Reproduced courtesy of Tauranga City Libraries (04–645).

gather watercress and pipi. He remarked on the clarity and cleanliness of that stream. As Boffa Miskell has reported:

As late as the 1950s this raupo-fringed lagoon was still an isolated place little known to local Pakeha, a place where local whanau could still gather to gather tuatua and pipi, or catch kahawai at the mouth of the lagoon. Upstream from the lagoon, fishing parties would gather watercress on their homeward journey. Since then, drainage works and residential development have obliterated the lagoon, the stream, and most signs of the former Maori occupation and use of the area.¹⁸²

Similarly, Te Inaiti Tamihana of Waitaha recalled gathering food and flax in streams and rivers such as the Waiari, Raparapaahoe, Kopuaroa, and Kirikiri, which he recalled:

were still in their original condition when I left here in 1954. They were beautiful and had those lazy curves and currents flowing down to the sea. That has all changed now and most of the rivers around here have been decimated...¹⁸³

As Geoff Park has stressed, New Zealand’s development is remarkable for the fact that 85 per cent of its wetlands have been drained in little more than a century.¹⁸⁴ In the Bay

182. Boffa Miskell, ‘Cultural and Archaeological Assessment: Papamoa Hills Cultural Heritage Regional Park (Te Rae a Papamoa)’, p 20 (doc S35, pp 9–10)

183. Te Inaiti Tamihana, brief of evidence, undated (doc L11), pp 6–7

184. Geoff Park,” ’Swamps which might doubtless easily be drained”: Swamp Drainage and Its Impact on the Indigenous’, in Environmental Histories of New Zealand, edited by Brooking and Pawson, p 151

of Plenty, indeed, less than one per cent of the natural wetland area remains.¹⁸⁵ In total, Environment Bay of Plenty estimates that some 1000 hectares of wetland have been drained and reclaimed in the Tauranga Harbour area alone.¹⁸⁶ Neither the Crown nor European settlers took account of Māori views of these ecosystems until they had almost entirely disappeared.¹⁸⁷

The destruction of these ecosystems has left Tauranga Māori with very few sites from which to harvest their traditional cultural resources. Access to these few sites is often problematic. Te Karehana Wicks, spokesperson on environmental issues for Ngāi Tauwhao ki Otāwhiwhi, noted that development had destroyed or closed access to all bar one raupō spring from which her hapū formerly collected dyes and raupō. Now, they have insufficient resources to maintain customary practices, and are forced to use nylon in their tuku-tuku panels. Access to their traditional sites for harakeke and watercress was barred by the Western Bay of Plenty District Council, because of proximity to the airport.¹⁸⁸

In sum, during the period under review, Tauranga's experience mirrored that of New Zealand as a whole. As landscapes were converted to European-style economic activity, forests and wetlands were cleared to make way for a much smaller range of animals and plants.¹⁸⁹

(3) Conclusions

As the Crown erected a legislative and policy framework to enable Tauranga's development, Tauranga Māori lost authority and control over their former lands and resources. Tauranga's development involved the extensive clearance of native forest (both for timber and for farming) which 'created a landscape of wasteful timber cutting, fire, flooding and deforestation.'¹⁹⁰ That and the draining of wetlands had a dramatic environmental impact: indigenous biodiversity was lost, the supply of traditional resources such as flax and raupō diminished, and (as we will see in the next sections) waterways and the harbour silted up or became polluted.¹⁹¹

7.5.2 Losing Tauranga Moana

Claimants raised several issues relating to the Crown assuming control of the harbour, the transfer of that control to the Harbour Board, and the subsequent development and

185. Geoff Park, Effective Exclusion ?: An Exploratory Overview of Crown Actions and Maori Responses Concerning the Indigenous Flora and Fauna, 1912–1983 (Wellington: Waitangi Tribunal, 2001), p 82

186. Paul Malcolm Dell, brief of evidence, 27 September 2006 (doc T3), p 23

187. Park, ‘“Swamps which might doubtless easily be drained’”, p 164

188. Document R25, pp 4–5

189. Pond, The Land with All Woods and Waters, p 12

190. Ibid, p 42

191. Ibid; Document D7, p 47

management of the harbour as a port. They allege that, as a result of their loss of rangatiratanga, and exclusion from harbour management, the Crown was able to ignore their cultural and spiritual relationship with the harbour in the drive to develop an international deep-water port. The Crown then failed to protect Māori resources and their sites of significance from the effects of port development, which also restricted access to those places. To assess these claims, we review the development of the port since the early twentieth century, and its impact on both Tauranga Moana and tangata whenua.

(1) Port development, 1915–50

From its establishment in 1912, the Tauranga Harbour Board was animated by a 'spirit of progressive development’, with economic expansion’ the prevailing philosophy. The expansionist vision found its fullest expression in the 1950s and 1960s, but it was already evident much earlier.¹⁹² In a 1939 speech, the chairman of the Tauranga Harbour Board described his hopes for the Waikareao Estuary, for example, and what the landscape might become:

[L]et us picture this place [Waikareao] deepened by digging, dredging or pumping out the sand from portions of it, to maintain the tidal flow or to improve it, and with the spoil reclaim the outer portions to form parks, playgrounds, drives, etc., round salt water bathing pools, Childrens [sic] pools, sailing and rowing lakes, which would be cleaned out twice daily by natures tides; surrounded by high grounds, covered with beautiful residences and gardens, we would have a domain unsurpassed anywhere … we should have an elaborate and comprehensive scheme for Waikareao drawn up …¹⁹³

This official vision of an area that had otherwise been known as the Judea wetlands – a significant ‘spiritual, cultural, and sacred resource’ of Ngāi Tamarāwaho – took no account of the views of local Māori.¹⁹⁴

From 1915, there was a burst of activity around the harbour. Dredging was carried out, and ‘training walls’ and deflectors (to modify water flow) were built, based on the advice of a private engineer and approved by the Marine Department and its Minister.¹⁹⁵ At first, the Government was actively involved, but withdrew when it became clear that dredging was a ‘waste of time’ – the channel filled with silt as fast as it was cleared.¹⁹⁶ The harbour board took over, and in 1923, the Stellar Channel was dredged and the Cutter Channel deepened.¹⁹⁷

After this initial phase of activity, harbour developments slowed and became less coordinated. In 1925, the harbour board received government approval for a new concrete wharf

192. Document A36. p 27

193. Bay of Plenty Times, 18 October 1939 (doc D7, p 68)

194. Document A50, pp 40–41

195. Document D7, pp 55–56

196. Ibid, p 55

197. Document R3, p 12

to replace the Mount Maunganui railway wharf that had fallen into disrepair.¹⁹⁸ In 1927, a commission of inquiry into the Mount Maunganui to Te Maunga railway line was established. It recommended that a deep-water port be established at Mount Maunganui, but the idea was not taken any further at the time.¹⁹⁹ Although all the Bay of Plenty local authorities gave evidence to the inquiry, Māori were not represented.

Over this period, there were several small reclamations at Sulphur Point. From 1928, with verbal approval from the harbour board, mill waste was dumped on the foreshore, then bulldozed out and levelled. From the 1940s, local factories used the mudflats as a dumping ground, allowing sawdust and trade waste to float out into the harbour itself. This situation continued until the 1970s.

(2) Port development in the mid-twentieth century

The drive to develop a deep-water international port within Tauranga Harbour gathered momentum in the mid-twentieth century as the region's economy boomed, especially the forestry industry. The Crown had first expressed interest in a deep-water port in 1925, to support a potential pulp and paper industry.²⁰⁰ In the 1940s, as exotic forests matured, this interest became pressing.²⁰¹ The Forest Service assessed milling in the region, while the Ministry of Works investigated the rail, airport, and housing developments needed to support a major export port.²⁰² The Ministry of Works favoured Mount Maunganui as the location. A late bid from the Whakatāne Harbour Board in 1949 prompted an inquiry in 1950, but Tauranga Harbour's physical advantages and the likelihood of considerable construction and maintenance savings were overwhelming. Indeed, the 1950 inquiry committee considered that the ‘development of the port by reasonable stages should be within the financial resources of the Tauranga Harbour Board’.²⁰³

The actual development of the port was extraordinarily rapid. In April 1951, the Tauranga Harbour Board met with the Ministers of Works, Railways, Lands, State Forests, Māori Affairs, and Internal Affairs, and in June that year, Cabinet approved the development of a deep-water port at Mount Maunganui.²⁰⁴ It was agreed that the Government would design and construct the port, and hand it over to the Tauranga Harbour Board after initial development was completed. An officials’ committee called for the work to be declared in the national interest so construction could be accelerated.²⁰⁵

198. Document D7, p 62

199. Ibid, p 63

200. Michael Roche, History of New Zealand Forestry (Wellington: GP Publications, 1990), pp 290–291

201. Document D7, p 63

202. Document A36, p 42

203. Ibid, pp 42–45; Stokes, A History of Tauranga County, pp 353–357

204. Leanne Boulton, ‘Town and Country Planning and Its Impact on Tauranga Maori Communities, c 1953– 1990: A Summary and Analysis of the Existing Research’ (commissioned research report, Wellington: Waitangi Tribunal, 2006) (doc S6), pp 87–88

205. Document D7, p 64

Map 7.3: Port of Tauranga, 1950

According to Giselle Byrnes, there is no evidence of Māori involvement in the decision to develop the port, nor of any consideration being given to Māori needs or values. Interest was, however, shown in the land owned by Māori in the proposed port area. When the Department of Māori Affairs was invited to give evidence to the 1950 inquiry committee about ‘Maori interests’ in the area, the invitation was passed on to the Waiariki District Māori Land Board which owned land near the aerodrome – suggesting that the department was aware the inquiry’s prime interest was in land acquisition. In the event, neither the department nor the land board attended, and the inquiry’s report made no mention of Māori interests or the environmental effects of the development. The department did give advice to the officials’ committee, but made no mention of Māori interests in the harbour or foreshore.²⁰⁶ Its advice was confined to Māori landholdings in the port area (where, as discussed in the public works chapter, the Crown took substantial Māori land for ‘better utilisation'). Likewise, when local authorities met to discuss the development of a deep-water

206. Ibid, pp 63–64

port, there was no representation of Māori and no evidence of Māori values and interests being considered.²⁰⁷

Tauranga Harbour Board was able to finance the port's development thanks to a series of loan and empowering Acts. Eight were passed between 1956 and 1968,²⁰⁸ through which the Crown approved not just the loans themselves but also significant details of the development: lease agreements, specific reclamation areas, and the like.²⁰⁹ Byrnes describes Māori values and aspirations as 'completely absent’ from parliamentary debate when these Acts were passed, and says Māori interests or concerns were ‘[n]owhere’ in the resulting legislation.²¹⁰

The development of the port had several components: the construction of the Mount Maunganui deep-water wharf, the construction of the Sulphur Point container terminal, the dredging of shipping channels, and the harbour bridge. We look briefly at each of these in turn.

(3) The Mount Maunganui deep-water wharf

The construction of 1225 feet of berthage (around 373 metres) at Mount Maunganui began in 1953.²¹¹ In addition to building wharves, it involved extensive channel deepening, the reclamation of 4.8 hectares of harbour bed behind rock retaining walls, and the construction of storage and rail facilities. A further 300 acres of land (121.4 hectares) were to be held for the development of port services and for the regional industries whose growth was expected to be stimulated by the new port.²¹² Construction of the first stage was undertaken by the Ministry of Works.

Once the first stage opened in December 1955,²¹³ the harbour board set about raising money for improvements through the loan and empowering Acts noted above. Between 1956 and 1968, the deep-water and railway wharves were extended, more dredging was undertaken, berthage for fishing vessels and tankers was constructed, and port infrastructure developed (cool stores, cranes, a weighbridge, and more). Harbour channels were realigned, or deepened, or both – including, claimant witness Anthony Fisher told us, the blasting of Pane Pane Reef (an important source of kaimoana for Tauranga Māori) to widen the harbour mouth between Mauao and Matakana.²¹⁴ The Acts also authorised the reclamation of some 245 acres (almost 100 hectares) of land at points around the harbour for

207. Ibid, p 63; doc A36, pp 43, 45

208. These acts were all entitled ‘Tauranga Harbour Board Loan and Empowering Act’, differentiated by the year in which they were passed, namely in 1956, 1959, 1962, 1964, 1965, 1966, 1967, and 1968.

209. Document A36, pp 30–31, 33

210. Ibid, pp 28, 31

211. Stokes, A History of Tauranga County, p 359; doc S6, p 88

212. Document R3, p 13; doc S6, p 88

213. Document S6, p 88; doc R3, p 13

214. Document R3, p 14

various purposes; by 1971, 71 acres (around 29 hectares) had been reclaimed for the Mount Maunganui port alone.²¹⁵

In 1965, the Crown relinquished control of the port to the Tauranga Harbour Board.²¹⁶ By then, as the member for Tauranga proudly proclaimed to the House on several occasions, Mount Maunganui was one of the busiest ports in New Zealand.²¹⁷

(4) Sulphur Point development

The next round of major harbour works, starting in 1968, focused on Sulphur Point. The decision to reclaim land here was crucial; it created the twin port structure (Sulphur Point and Mount Maunganui) and dictated transport networks. For example, the construction of both the harbour bridge and the alternative access to Sulphur Point (‘Route P’) in the 1980s were justified by the need to connect the region to the port at Sulphur Point.²¹⁸ Both developments were bitterly opposed by Māori, but they arose out of decisions taken in the 1960s when Māori interests and concerns were given little consideration by the Crown and local authorities.²¹⁹

The development of Sulphur Point involved, first, the construction of a 1524 metre ‘training wall’ which would increase tidal scour in the shipping channels and prevent them silting up.²²⁰ Next, material dredged up during other harbour works was deposited at Sulphur Point, gradually filling in behind the wall (by 1982, this reclaimed area amounted to an 89-hectare extension to the Point).²²¹ But the harbour board’s plan for the area went much further and included industrial, recreational, and port zones. According to the Sulphur Point Technical Committee, set up by the four local authorities involved, the area’s development was ‘both feasible and necessary in the interests of the local, regional, and national economy’.²²² Moreover, the harbour board was advised that ‘this major man-made development can be accepted into the existing environment with a relatively minor degree of disruption.’²²³ Yet a biological survey undertaken when a marina was built at Sulphur Point in 1981 showed the area had a high ecological value for shellfish and was an important roosting habitat for marine birds. This prompted the director of the Wildlife Service to

215. Document D7, p 65; Tauranga Harbour Board Loan and Empowering Act 1964, S 5; Tauranga Harbour Board Loan and Empowering Act 1967, S 4; Tauranga Harbour Board Loan and Empowering Act 1968, S 9 and sch 2; schedules to the various Tauranga Harbour Board Loan and Empowering Acts in the period from 1956 to 1968.

216. Document S6, p 88

217. Document A36, pp 34–35

218. Document D7, p 168

219. Ibid, pp 167–168

220. Document A36, p 47; Stokes, A History of Tauranga County, p 368

221. Document A50, pp 49–51; doc R3, p 15; Stokes, A History of Tauranga County, p 368; Ian W Hamlin, ‘The Port of Tauranga: 1953–1981’, in Bellamy (ed), Tauranga 1882 – 1982, p 241

222. These were the Tauranga County Council, Mount Maunganui Borough Council, Tauranga City Council, and the Regional Water Board (doc D7, p 60).

223. This advice was given in an environmental impact report prepared for the technical committee: Gabites, Alington, and Edmondson, Environmental Aspects of the Proposed Development at Sulphur Point, August 1979 (doc D7, p 60)

Figure 7.6: Sulphur Point, as it was in 1968
Photographer unknown. Reproduced courtesy of Tauranga City Libraries and Bay of Plenty Times (04–632).

Figure 7.7: Sulphur Point, as it had become by 1976
Photograph by Whites Aviation. Reproduced courtesy of the Whites Aviation Collection, Alexander Turnbull Library (WA-73177).

Map 7.4: Port of Tauranga, 1975

object to the marina proposal, arguing that pipi beds extensively used for shellfish gathering would be destroyed (albeit not mentioning Māori). The objection was rejected on the grounds that the pipi beds were probably already polluted.²²⁴

By 1989, after another round of work, Sulphur Point was New Zealand’s largest container terminal; it had 600 metres of wharf, about 35 hectares of cargo handling and storage space (including two hectares under cover), with an additional 20 hectares for future development. The port complex itself comprised approximately 35 hectares of open and 4.5 hectares of covered storage, with additional cargo storage facilities available beyond the port gates.²²⁵

There is no evidence of consultation with Māori when decisions were made about the development of Sulphur Point. Nor – apart from the Wildlife Service’s fears for shellfish gathering – is there any recorded concern for Māori needs or values. This changed in the late 1980s when further reclamation was proposed: the Department of Conservation (which administered the Harbour Act from 1987) required the port company to consult, for the first time, with Tauranga tangata whenua. Ngāi Tamarāwaho firmly opposed any further

224. Document D7, p 60

225. Document A36, p 5

harbour works at Sulphur Point, while the Tauranga Moana Māori Trust Board gave what McClean describes as 'guarded support’. The Minister of Conservation approved the reclamation, saying that ‘adequate’ consultation had taken place.²²⁶

Tauranga Māori believe that the reclamation at Sulphur Point has had significant environmental impacts. Hauata Palmer of Matakana Island attributed changes in the upper reaches of the harbour to:

the developments at this end (the Sulphur Point area) of the Harbour. They (the developments) only started getting prominent like when Sulphur Point started to develop. The whole community thinks the same. Sulphur Point is the main thing. The reclamation at Sulphur Point. Then there’s the Harbour Bridge, the Wharf development, because that meant dredging the channels. Everything that happens down here affects the upper reaches of the Harbour, the other end.²²⁷

Claimant evidence indicates that the reclamation also destroyed fishing grounds and mātaitai sites where ‘scallops, tuangi, and kukuroroa were collected, used by Ngai Tuwhiwhia, Ngati Tauaiti, Ngati Tapu, Ngai Tukairangi (all hapu of Ngai Te Rangi), and by Ngai Tamarawaho (a hapu of Ngati Ranginui)’. Other resources affected by the dredging and reclamation work include kina, several varieties of pipi, and snapper, which claimants say have either disappeared or are much diminished in quantity.²²⁸

(5) Dredging and the harbour bridge

Of the many other port developments undertaken, the dredging of the harbour throughout the 1960s and 1970s, and the building of the harbour bridge were of particular concern to claimants.

Dredging enabled larger ships to access the harbour channels. Between 1961 and 1978, port draughts were able to increase from 7.31 metres to 10.67 metres. Large amounts of harbour material were involved: when the Cutter Channel in the inner harbour was realigned in 1967–68, 1.75 million cubic yards (1.34 million cubic metres) of harbour material were removed.²²⁹ The harbour board’s freedom to dredge the harbour became more constrained during the 1970s. Before 1974, it required only the approval of the Minister of Marine.²³⁰ But with the passing of the Marine Pollution Act 1974, the board now had to monitor the marine environment and take into account the possible effects of dredging on amenities, marine life, and other uses of the sea.²³¹ The Act also empowered the Ministry of Agriculture

226. Document D7, pp 60–61; Tauranga Moana Maori Trust Board Act 1981

227. Document A50, p 48

228. Ibid, pp 49–50

229. Document A50, pp 50–51; doc R3, p 15; Hamlin, ‘The Port of Tauranga’, p 241

230. Document D7, p 66

231. Ibid

and Food to monitor dredging.²³² However, the Act did not require the board to consult with Māori, or to consider their use of the harbour and fisheries, and the evidence does not suggest this ever occurred. Unsurprisingly, the process of harbour dredging has destroyed many mātaitai beds.²³³

The push for a harbour bridge – first proposed in 1938, and revived during the 1950s when the deep-water port was being planned – also gained momentum during the 1970s. It was not without its opponents: in the 1950s, the Marine and Public Works Departments had expressed doubts about the effect on the harbour and shipping, although the possible impacts on the local Māori community were not mentioned.²³⁴ By 1972, the Tauranga and Mount Maunganui borough councils, and the harbour board, were all in favour of a bridge. The National Road Board and Ministry of Works were conditionally supportive. Others still had doubts: the Marine Department opposed a low-level bridge, while a high-level bridge was unacceptable to the Ministry of Transport. Nevertheless, in September 1972 the Government passed the Tauranga City Council and Mount Maunganui Borough Council (Tauranga Harbour Bridge) Empowering Act.²³⁵

Lack of money and wrangling over the bridge's exact location and the approach routes meant construction did not commence until the 1980s. During the approval process, the assistant commissioner for the environment raised the issue of the bridge's potential effect on Māori. He noted that their interests had not been fully taken into account in the environmental impact report, which had been undertaken after almost all the design decisions had been made.²³⁶ Despite these concerns, construction went ahead and the bridge was opened in 1988.

Māori, meanwhile, were vocal in their opposition to the bridge. The Whareroa Marae Committee opposed the passing of the Empowering Act, citing the loss of road access to their marae. Over time, Māori opposition to the bridge grew, focusing on the effects on fisheries and swimming. There were also cultural concerns: tangata whenua pointed to the loss of Te Ruruanga (an important canoe landing for Ngāi Te Rangi and Ngāi Tūkairangi across the harbour from Tauranga) and also the effects on views to Otamataha, resting place of Taiaho Hori Ngatai and Rawiri Puhirake.²³⁷ Believing that the bridge would be built regardless of their opposition, they also objected to the positioning of the eastern accessway to the bridge and a proposed 9904 square metre reclamation for car parking.²³⁸ After discussions between the marae committee and the councils involved, the accessway was relocated, but the reclamation went ahead.

232. Ibid, pp 66–67

233. Document A50, pp 50–51

234. Document D7, pp 77–79; Stokes, A History of Tauranga County, pp 389–391

235. Document D7, p 80; Stokes, A History of Tauranga County, p 391

236. Document D7, pp 80–81

237. Counsel for Wai 211 and Wai 668 claimants, closing submissions, undated (doc U12), p 67; doc Q13, pp 13–14

238. Document A50, p 45; doc D7, p 81

Figure 7.8: The approaches to the Tauranga harbour bridge from the Mount Maunganui side, showing the fertiliser works and Whareroa Marae, 1987
Photographer unknown. Reproduced courtesy of Tauranga City Libraries and Bay of Plenty Times (01–488).

Ngāi Tūkairangi and Ngāti Kuku claimants told us that the bridge has affected them in many ways. Tidal flows have changed, contributing to the ongoing loss of kaimoana. Accessing the area has become difficult, while marae activities and ceremonies have been disrupted.²³⁹ The predicted loss of Te Ruruanga and sight lines to Otamataha has occurred. Also affected are hapū living around the Rangataua, Waimapu, and Waipu estuaries, who do not appear to have been consulted at all. They believe that the bridge has increased changes to tidal and channel characteristics, accelerating the depletion and disappearance of mātaitai.²⁴⁰

(6) Other effects of harbour works

Reclamation has affected more than the harbour itself. Estuaries, rivers, streams, and wetlands at the harbour edge – all areas providing rich and easily accessible food supplies for Tauranga Māori – have been impacted. Some wetlands, waterways, and estuaries have been

239. Document U12, p 67

240. Document A5o, p 46

significantly altered and some completely lost, while adjacent food-gathering areas have been damaged.²⁴¹

We have already noted the draining of the Judea wetland.²⁴² Other estuaries – Oreanui, Wairoa, Te Puna, Mangawhau, Waipapa, Wainui and Tuapiro, and in particular Waimapu, and Waikareao – were all affected by construction projects such as the Matapihi Railway Bridge, the railway embankment along the foreshore in front of the city, the railway wharf, Tauranga railway station (built on reclaimed land in the Waikareao Estuary), and the Waikareao Estuary bridge.²⁴³ We also heard of the loss of several streams that were both culturally significant and valuable sources of food. Te Awa-o-Tukorako (subject of claim Wai 947 by the Ngāti Kuku hapū of Ngāi Te Rangi) was lost as a result of reclamation for the deep-water wharf. Wairākei Stream (subject of claim Wai 664, by Waitaha) no longer exists, because of reclamation and urban development. In its place is a stormwater drain.²⁴⁴

7.5.3 Pollution of Tauranga Moana

Pollution, and the associated degradation and depletion of resources, are critical issues for the claimants.²⁴⁵ We heard universal anger and disgust at the extent of pollution of Tauranga Moana. Angela Marie Merewhiua Bennett of Ngāti Hangarau spoke for all hapū around the harbour when she said:

Pollution has had a devastating effect for us at Hangarau as well as all of the area surrounding the Moana. Rubbish tips created next to tidal flats, sewage outlets around the inner harbour, new subdivisions, development runoff. Runoff from farms into upper streams, then down the rivers to our harbour. The damage done by the collapse of the Ruahihi earth dam into and down the Wairoa River which affected Hangarau because of our closeness to the river, its mouth, and then the harbour surrounding us below.

Here in this time and age then is to me another Raupatu of great magnitude. Our seafood source is being destroyed. Our kinaki (accompaniment) for the meat and vegetables of the ngahere (bush), as of old, has been taken away, as had the land because of Raupatu.²⁴⁶

241. Claims relating to estuaries, rivers, streams and wetlands have been made by Ngāti Ruahine (Wai 362); Ngā Pōtiki (Wai 717); Waitaha (Wai 664); Ngai Tamarawhariua ki Katikati (Wai 42(c)); Ngāti Motai and Ngāti Mahana (Wai 1340/255); Ngāti Kuku (Wai 947/489); Matakana Hapū (Wai 228/266); Ngāi Te Rangi (Wai 540); Te Whānau a Tauwhao ki Ōtāwhiwhi (Wai 938); Ngāti Pūkenga (Wai 751); Marutūahu (Wai 454/812); and Ngāti Hangarau (Wai 503).

242. Document D7, p 54; claim 1.35(a), p 17

243. Document D7, p 53

244. Counsel for Wai 664 claimants, final closing submissions, 12 December 2006 (doc U5(a)), p 56

245. Claims concerning pollution include Wai 362 Ngāti Ruahine; Wai 717 Ngā Pōtiki; Wai 664 Waitaha; Wai 42(c)/522 Ngai Tamarawhariua ki Katikati; Wai 715/854 Ngai Tamawhariua; Wai 211/668 Ngāi Tūkairangi; Wai 947/489 Ngāti Kuku; Wai 227 Ngati Pirirākau; Wai 228/266 Matakana Hapū; Wai 540 Ngāi Te Rangi; Wai 938 Te Whānau a Tauwhao ki Ōtāwhiwhi; and Wai 751 Ngāti Pūkenga

246. Document D17, p 4

Figure 7.91 Bay of Plenty Co-operative Fertiliser Company, Mount Maunganui, 1966
Photographer unknown. Reproduced courtesy of Tauranga City Libraries (99–669).

From some claimants, we also heard concerns about air pollution from industrial and horticultural development. Formerly rural Māori marae and associated communities have become engulfed by development and exposed to a range of pollutants from industry, horticulture, and forestry development. Whareroa Marae, surrounded by heavy industries – including the airport, port, and extensive fertiliser works – is perhaps the worst affected. At our hearings we experienced for ourselves the oppressive noise pollution at Whareroa Marae, directly under the flight path of aircraft using the adjacent airport. We also endured what witnesses rightly described as an at times … unbearable’ smell from the Bay of Plenty Fertiliser works.²⁴⁷ We were told that residue from the fertiliser works continuously accumulates on the windows of the kaumātua flats on Whareroa Marae, which require regular special cleaning by staff from the fertiliser works.²⁴⁸ The view to Mauao from the marae has also been blocked by industrial development.²⁴⁹

247. Document Q14, p 5; doc Q13, p 5; transcript of stage 2, fourth hearing, 30–31 October to 1–3 November 2006 (transcript 4.5), p 13

248. Transcript 4.5, p 13

249. Document Q14, p 5

Elsewhere, horticultural expansion and the widespread use of spraying have been linked to health issues, such as rashes and respiratory diseases.²⁵⁰ Gloria Koia expressed a viewpoint typical of claimants about the effects of pollution on the mauri of the landscape and the resulting loss of resources:

the essence and value of the rongoa has changed due to fertilising and toxins in the area from the exotic forestry. You can smell it. The environment is polluted and poisoned, dry and dying. The wairua of our bush has been damaged.²⁵¹

However, water pollution was by far the most pressing concern for claimants. Water pollution problems have been evident since the early twentieth century, when rubbish from the tip at Sulphur Point often floated out into the harbour. Agricultural discharges and runoff (from dairying, abattoirs, piggeries, horticulture, and more); industrial activities; urban development in general – all have been ongoing causes of pollution. Raw sewage has been routinely discharged into the harbour. Its margins have been used as illegal dumping grounds for unwanted cars, fridges, washing machines, and more.²⁵²

In this section we first provide a brief overview of Crown legislation meant to control water pollution prior to 1991, before discussing the extent and the effects of pollution on the waterways and the harbour.

(1) Pollution of rivers and streams

Problems with water pollution were clearly evident in Tauranga Moana throughout much of the twentieth century, affecting both freshwaters and the harbour, and were a cause of great anxiety to tangata whenua. ‘Polluting the river pollutes me because I am the river. We have lost enough’, said Lance Waaka, describing to us the pollution of the Waimapu River, once used as a significant food source, for recreation, and for Ringatū baptisms.²⁵³ However, it was not till the middle of the century that the Government began taking steps to address water pollution around the country.²⁵⁴ Michael Roche attributes this lack of concern to ‘the colonial belief in inexhaustible resources and a utilitarian attitude which emphasised the efficient use of water over water quality’.²⁵⁵ No centralised authority oversaw pollution until the Water Pollution Act 1953 established the Pollution Advisory Council. Initially however the council was restricted to inquiring into, reporting on, and recommending ways of reducing pollution. It gained more teeth with the passing of the 1963 Water Pollution

250. Beverley Anne Perori Flavell, brief of evidence, 18 June 2006 (doc R9), pp 14–15; doc R11, p6

251. Gloria Koia, brief of evidence, 25 September 2006 (doc S21), p 45

252. Transcript 4.5, p 15; counsel for Wai 227 claimants, closing submissions, undated (doc U16), pp 13–14

253. Document Q5, p 9

254. Michael Roche, Land and Water: Water and Soil Conservation and Central Government in New Zealand 1941–1988 (Wellington: Historical Branch, Department of Internal Affairs, 1994), PP28–29, 119–120; doc D7, pp 185–187

255. Roche, Land and Water, p 28

Regulations. Now it could classify water and control its use through a zoning scheme similar to that used in district schemes for land use. Waters were graded from SA (suitable for gathering shellfish), through SB (bathing waters), SC (harbour waters), to SD (basic water quality).

The classification scheme was incorporated into the Water and Soil Conservation Act 1967. This was the first truly comprehensive statute controlling water management, and aimed to ‘make better provision for the conservation, allocation, use, and quality of natural water.’²⁵⁶ It remained the key statute for controlling water pollution until the Resource Management Act 1991.

Through the Water and Soil Conservation Act, the Crown took the significant step of vesting in itself sole rights to the development of water resources, including any dams, diversions, or discharges.²⁵⁷ The Crown thereby assumed sole rights to allocate the use of water, effectively nationalising its management. After the 1967 Act was passed, the Crown immediately delegated some of its powers to regional water boards that were established to administer a system of permits for taking and discharging water. Initially, permits for discharges to classified waters remained under the overall control of the Pollution Advisory Council but, from 1971, regional water boards were granted the power to discharge into classified waters, providing the minimum water quality established by the classification was not breached. This system remained in place, largely unmodified, until the 1990s.²⁵⁸

The Act made no mention of Māori interests in the ownership or management of water, though the needs of industry, local authorities, fisheries, wildlife habitats, and recreational users were to be taken into account.²⁵⁹ Because the Act treated Māori simply as part of the general public, it has been described as ‘monocultural legislation’.²⁶⁰ Māori cultural and spiritual values in respect of water were not recognised under the legislation until the courts ruled in 1987 that they were to be considered as part of the ‘interests of the public generally’.²⁶¹

The legislation also had limited success in controlling pollution. The key problem was identified by the 1981 OECD review of environmental policy in New Zealand: water classifications tended to operate as minimum standards often set below existing water quality, to which degraded state bodies of water could then deteriorate.²⁶² In addition, the system was unable to cope with diffuse (as opposed to point source) pollution.²⁶³

256. Water and Soil Conservation Act 1967, long title

257. Ibid, S 21(1)

258. Roche, Land and Water, pp 121–122; doc D7, pp 186–189

259. Water and Soil Conservation Act 1967, long title

260. Waitangi Tribunal, Report of the Waitangi Tribunal on the Manukau Claim 2nd ed (Wellington: Government Printer, 1989), p86

261. Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 at 189

262. Cited in Roche, Land and Water, p 131

263. Ibid

Bacterial contamination of rivers and streams was a ‘serious problem’ in Tauranga by the mid-1990s. It was largely the result of continued agricultural development, combined with scant regard to riparian protection.²⁶⁴ Particularly affected were the Wairoa, Waitao, Waipapa, and Waimapu Rivers, and the Kōpūrereroa and Te Puna Streams. In some of these waterways, industrial and urban development compounded the agricultural runoff problem.²⁶⁵ The Kōpūrereroa Stream, for example, was found in 1994 to carry excessive loads of suspended solids and nutrients – the result of agricultural, industrial and urban development, and associated sources such as the Cambridge Road rubbish tip.²⁶⁶

Hydroelectricity schemes and quarrying have also detrimentally affected waterways. The Mangapapa hydro scheme affords a good example. Constructed by the Tauranga Joint Generation Committee in the late 1960s, this scheme diverted the courses of the Mangapapa, Opuiaki, and Mangakarengorengo Rivers, as well as several tributary streams. Their waters were channelled into a system of reservoirs, canals, and tunnels that feed water to three power stations.²⁶⁷ Once the scheme became operational in 1972, Māori began to express concern over loss of flow in waterways such as the Mangapapa. When their concerns were ignored, they filed for damages.²⁶⁸ In 1976, the Tauranga Joint Generation Committee belatedly applied to the Regional Water Board for the right to take water for power generation. Māori and other groups remained alarmed about the effects on river ecology, but the water right was granted.²⁶⁹ As a result of this scheme, Ngāti Hangarau have lost fisheries and other resources from five of their major streams.²⁷⁰

The commissioning of the Ruahihi station – the final stage of the Mangapapa hydro scheme – provides an even starker example of the environmental effects of such developments. On 20 September 1981, the day after the Ruahihi station was officially opened by the Prime Minister, Robert Muldoon, over 500 metres of the canal carrying water to it collapsed. Some 1.25 million cubic metres of ‘liquid mud and rubble’ swept into the valley below, ending up in the Wairoa River.²⁷¹ The silt from the Ruahihi canal stayed in the upper tidal zone. The wildlife associated with the river almost completely disappeared for several years, and the physical character of the river altered dramatically, becoming wider and

264. Environment Bay of Plenty, Tauranga Harbour Regional Plan: Environmental Investigations, Water and Sediment Quality of Tauranga Harbour (Whakatāne: Environment Bay of Plenty, 1994), p 114

265. Ibid, p 130

266. Ibid, pp 130–131, 139

267. Document All, pp 37–40

268. Ibid, pp 74–75; Rachel Willan, 'Hydro-Electricity in the Wairoa River Catchment: Land Acquisition' (commissioned research report, Wellington: Waitangi Tribunal, 1996) (doc A35), pp 38–39

269. Document AH, pp 90–92

270. Gerard Gardiner, brief of evidence, 27 June 2006 (doc R50), pp 3–4; Henare (Henry) Hohepa Te Mete (Smith), brief of evidence, 25 September 2006 (doc S9), p 8

271. Document A33, p 28; Wendy Hart, 'A Comparative Study of Public Works Takings in the Tauranga Moana Inquiry District’ (commissioned research report, Wellington: Waitangi Tribunal, 2006) (doc S2), p 1o2

Figure 7.10: The Ruahihi Canal immediately after its collapse, 21 September 1981
Photographer unknown. Reproduced courtesy of Bay of Plenty Times (F0108).

shallower.²⁷² Claimants note major changes to channel depths and the quality of sands, and a permanent decline in shellfish and fish owing to silt smothering essential habitat, such as eelgrass beds.²⁷³

Typical ecological effects of sedimentation include discolouration of water, loss of sunlight, damage to fish habitat, increased phosphorous supply, river diversion and bank erosion, and loss of aesthetic value.²⁷⁴ We heard from claimants that such effects are commonplace in Tauranga waterways. The Atuaroa River and Kopuaroa Stream, for example, have been dirtied to such an extent by silt from silt from Fulton Hogan's Poplar Lane quarry that eels and kōura are no longer found in them.²⁷⁵ The Waitao River has been seriously affected by the sediment load deposited by runoff from the Tauranga Quarries Ltd quarry in its headwaters (the Kaitimako quarry), as Kiakino Paraire described:

The Waitao Stream used to be the cupboard of the rivers for Nga Potiki. You know for the food. Eels, herrings, thousands of herrings used to come up out of that stream. You could almost walk over their backs, walk over the backs of the fish. But that’s when kai was plentiful, and that stream was actually flowing. It changed after the quarry started up at Waitao. They put all the slag and slush in it... The water was actually clear and now its brown. That all comes from the quarry at the top there.²⁷⁶

This river was an important customary food source and of great cultural significance to Ngāti Pūkenga and Ngā Pōtiki in particular.²⁷⁷ Its water, renowned for its purity, was used for rituals such as washing the implements used to sever the pito of newborn children.²⁷⁸ As a result of the quarrying, the claimants believe the mauri of the river has been harmed, and sacred sites along it damaged or destroyed.²⁷⁹ They say the damage extends as far as the stream mouth and into the Rangataua Estuary, where silt is reported to have built up to around one metre deep. The multitudes of pāpaka (crabs) – for which Rangataua is traditionally famous, and with which Ngā Pōtiki, Ngāti Pükenga, and Ngāti Hē are collectively identified, as Ngā Pāpaka o Rangataua – have become 'a rare sight indeed’.²⁸⁰ This is a bitter blow to tangata whenua, who have always believed, ‘Ngaro noa ke te tangata, waiho ma nga papaka o Rangataua e mihi’ (‘Though people may disappear, the crabs of Rangataua will always be there’).²⁸¹

272. Marinus La Rooij, ‘Wairoa Hapu and the Realignment of State Highway 2: Wairoa-Tauranga’ (commissioned research report, Wellington: Waitangi Tribunal, 1999) (doc F2(b)), p 90

273. Document A50, p 57; Stephen Gates, brief of evidence, 13 November 1998 (doc C17), pp 2–3; doc R23, p 6

274. Document D7, p 48

275. Document U5(a), p 56

276. Kiakino Paraire, brief of evidence, undated (doc E3), p 8

277. Document U34, p 59

278. Document R45, pp 13–14

279. Rehua Smallman, brief of evidence, 26 June 2006 (doc R43), p7; doc R45, p 13

280. Document R28, pp 15–16; doc R30, p 8

281. Stokes, A History of Tauranga County, p 349

(2) Pollution of the harbour

Almost all these rivers and streams flow into the harbour, bringing pollution with them. A range of other sources have also contaminated Tauranga Moana, most notably sewage. For Māori, human waste is a particularly abhorrent form of pollution. Fisher, Piahana, Black, and Ohia describe the discharge of such effluent into the ‘Marae of Tangaroa’ as a violation of tapu that:

constitutes a fundamental transgression which evokes an instinctive and culturally embedded abhorrence … the potential exists for kai moana … to be contaminated with human excrement, therefore, threatening to make that which is noa, tapu, and that which is tapu, noa.²⁸²

Yet, for decades, local councils regarded Tauranga Harbour as the obvious repository for sewage. The McLean Street septic tank was approved in 1914, subject to the condition that ‘should at any time a nuisance be created from it, the Council will forthwith abate such nuisance on being required by the Marine Department’.²⁸³ In fact, this tank – described by Byrnes as ‘a crude sewerage reservoir, [that] often overflowed into the harbour’²⁸⁴ – was the subject of complaint for decades to come. The Tauranga Borough Council did propose alternatives on several occasions, but nothing eventuated as they all involved discharging sewage into the harbour at other locations, and were opposed by local residents – including many Māori.

In 1928, Māori from five coastal settlements around the harbour jointly petitioned the Minister of Health to reject Tauranga Borough Council’s proposal to discharge excess effluent onto the foreshore at Waikareao Estuary. They were concerned about the pollution of pipi beds and loss of livelihood. And with Tauranga Māori frequently affected by outbreaks of typhoid,²⁸⁵ the petitioners were also concerned about illness: ‘fever’ the petitioners said, ‘will be rampant’.²⁸⁶ A medical officer of health reported that the pollution was sufficiently severe that the harbour board had demanded a remedy for the problem. He acknowledged that while sewage continued to be discharged into the harbour, contamination was inevitable, but said that the proposed outfall would at least pollute fewer shellfish beds.²⁸⁷ The Tauranga Borough Council agreed to amend the scheme, but the Health Department declined the necessary funds and nothing was done.²⁸⁸ Tony Nightingale comments that,

282. Document A50, pp 59–60

283. Order in Council, Tauranga Septic Tank, 4 May 1914, MD 4197, ArchivesNZ, Wellington (doc D7, p 140)

284. Document A36, p 27

285. Document A77, pp 61–62

286. Ibid, p 61

287. Tony Nightingale, ‘Tauranga Moana: A Social and Economic Impact Report, 1865–1960’ (commissioned research report, Wellington: Crown Forestry Rental Trust, 1996) (doc A39), pp 75–77

288. Document D7, pp 142–143

given the comments of the medical officer and the prevalence of typhoid amongst Tauranga Māori, this inaction ‘seems inexplicable’.²⁸⁹

Harbour pollution became even more prevalent as Tauranga expanded after the Second World War. By the late 1940s, even local authorities and Government officials acknowledged the extent of a problem that was ‘materially affecting the grounds on which we rely for supplies of commercial food fish’.²⁹⁰ But sewage disposal remained primitive. In 1956 the Tauranga Council built a new outfall at Sulphur Point, which discharged 8000 gallons (over 36,000 litres) of raw sewage an hour, twice a day on the ebb tide.²⁹¹ This outfall, opposed by local residents, does not seem to have had the approval of the Marine Department.²⁹² It was not until the late 1960s that Tauranga Council began to treat sewage before discharging it into the harbour.²⁹³

A good overview of the situation was provided by the Pollution Advisory Council in 1956. Asked by the harbour board to classify the waters to prevent sewage discharge, the advisory council found many pollution sources.²⁹⁴ They included septic tanks (notably the municipal tank at McLean Street, the hospital tank, and household tanks), ships, and the Sulphur Point outfall. The head of the Waikareao Estuary was polluted by seepage from the Tauranga Borough Council tip, a commercial laundry, and a timber treatment plant. Other industrial discharges into the harbour came from fish-processing plants, the city abattoir, a butter factory, and a fertiliser factory. Unauthorised dumping of rubbish at the harbour margins was also a problem.²⁹⁵

CA Cowie, from the Health Department, identified similar sources in 1957. Noting that the harbour contained Māori fishing reserves and mussel beds, he said that rapid population growth and an inadequate sewerage and reticulation system were jeopardising activities such as fishing and swimming.²⁹⁶ His views were borne out by a Health Department inspection of sewerage reticulation plans in 1959, which identified particular problems with the hospital septic tank. The inspection team also recommended stopping the sawdust-based reclamation at Sulphur Point, as sawdust pollution was affecting fish and shellfish in the area.²⁹⁷

In 1961, the pollution of Tauranga Harbour was again flagged as an urgent problem, this time by the Pollution Advisory Council, which called for all local authorities in the area to

289. Nightingale, Document A39, p 77

290. Chief inspector of Fisheries to Secretary Marine, 25 March 1948, M I 3/13/634, ArchivesNZ, Wellington (doc D7, p 129)

291. Document D7, p 144

292. Ibid

293. Ibid, pp 145–146

294. Ibid, p 147

295. Ibid, pp 129–130

296. Ibid, p 130

297. Ibid, pp 130–131

tackle it cooperatively.²⁹⁸ The Tauranga Harbour Board requested that the harbour water be classified, so that no wastes could be discharged without a permit from the Pollution Advisory Council. Over the following 15 years, four different classifications were made. Tauranga Māori fought vigorously to have the harbour waters granted the highest possible classification (SA), in order to protect shellfish beds.²⁹⁹ Their messages to local and central government were consistent. As Jack Wharekawa of the Katikati Māori Tribal Committee said in 1973:

The Maori people are anxious that the waters of the harbour should become cleaner than they are at present, especially close to our Marae, where many Maoris live. We are very concerned that the Te Rereatukahia River be made cleaner, so that our children may once again swim in the pools, which used to be clear and deep, but now are filthy with mud and slime. We want to continue to be able to collect shellfish and other foods from the harbour.³⁰⁰

Māori were successful to some degree, but they faced local bodies who regarded lower water classifications (SB and SC) as ‘more rational and more reasonable’.³⁰¹ Areas in and around Tauranga Moana were reclassified with such regularity that Māori victories were never more than temporary. Nor is it clear that classification succeeded in improving the behaviour of those disposing of waste, as is revealed in the context of specific sewerage schemes in Tauranga, Mount Maunganui, and Katikati.

(3) Tauranga sewerage: the Sulphur Point outfall and the Chapel Street treatment plant

In 1964 the Tauranga City Council decided to commission an upgraded treatment plant at Chapel Street, and to continue discharging the sewage at Sulphur Point into the Ōtūmoetai channel of the harbour. This plan required the Pollution Advisory Council to downgrade the SA classification of water in the vicinity.³⁰² At a special meeting of the Tauranga City Council to decide on the plan, it was mentioned that the Pollution Advisory Council would meet to hear Māori objectors ‘with a view to getting such objections withdrawn’.³⁰³

The Chapel Street treatment plant was commissioned in 1969.³⁰⁴ It was expanded in 1979, despite considerable community opposition and findings that water quality was contaminated below SA and SB standards up to four kilometres from the outfall. According to McClean, by the 1980s ‘there was general agreement that the city discharge was unacceptable and was causing pollution of the surrounding water, especially Otumoetai

298. Document D7, p 131

299. Roche, Land and Water, p 127; doc D7, pp 131–133

300. 'Top-grade water area in harbour reduced’, Katikati Advertiser, July 1973 (doc D7, pp 135–136)

301. Document D7, p 135

302. Ibid, p 145

303. Ibid, pp 145–146

304. Ibid, p 146

Beach’.³⁰⁵ Nevertheless, effluent volumes from the plant increased into the early 1990s, with associated high bacterial levels.³⁰⁶

(4) Mount Maunganui sewerage: the Rangataua oxidation ponds and ocean outfall

Sewerage systems were even more primitive in Mount Maunganui. Until at least the early 1950s, effluent ended up in an open drain at Commons Avenue’. Residents relied on septic tanks until the 1970s, with the consequent possibility of leakage to the harbour and waterways.³⁰⁷ In 1972 the Mount Maunganui Borough Council proposed a new scheme which involved substantial reclamation within Rangataua Estuary, and the construction of oxidation ponds (already discussed in chapter 4) from which effluent would be temporarily discharged into Rangataua Estuary. In time, it was proposed that an ocean outfall would be built at Omanu.³⁰⁸

Tauranga Māori staunchly opposed this scheme. Rangataua was important for cultural identity and for kaimoana, particularly for Ngā Pōtiki, Ngāti Hē, and Ngāti Pūkenga. As a result of Māori pressure, the Pollution Advisory Council agreed to re-classify the waters of the harbour in 1972. Rangataua Estuary, and indeed most of the harbour, was reclassified as SA, in an explicit attempt to stop the proposed discharge and to protect shellfish beds. This classification challenged the power of the local authorities to grant discharge rights.³⁰⁹ However, the authorities succeeded in having the harbour waters reclassified back to sc again in 1973, by the newly formed Water Resources Council which had replaced the Pollution Advisory Council.³¹⁰

Many Tauranga Māori actively opposed the 1973 reclassification, with the Tauranga District Māori Executive Committee emphasising ‘the possible harmful effect on shellfish and other marine life which form part of the staple diet of Maori’. Its chairman, William Ohia, told the press: ‘Our generation took over this asset to the district in good condition and we want to make sure that it is still good when we hand it on to the next generation’.³¹¹ The Maungatapu-Hairini Residents Association argued that, because Rangataua was a traditional fishery, the classification was contrary to the spirit of the Treaty of Waitangi’.³¹²

Before any appeal could be heard, the reclassification was dropped. However, water classifications were generally abandoned as a nationwide policy instrument in 1975 after the courts warned against the practice of adopting lower standards than the existing water quality. The result was ad hoc and localised responses.³¹³ In Tauranga, the Regional Water

305. Ibid

306. Document A25, pp 79, 81, 217

307. Document D7, pp 147–153

308. Ibid, p 148

309. Ibid, pp 133–134

310. Document D7, app C, p 189; Roche, Land and Water, p 128

311. Document D7, p 135

312. Ibid, p 136

313. Roche, Land and Water, p 131; doc D7, app C, p 189

Board set an sc classification over the entire harbour. The chief engineer stated that it was ‘a pointless exercise to set unrealistic water quality standards’, and argued that urban and agricultural development made the adoption of SA or SB classes ‘impractical’.³¹⁴ Nevertheless, an SA classification was clearly not unreasonable for some parts of the harbour: research conducted for the Regional Water Board over 1974 had shown that Welcome Bay, at least, was still in excellent ecological condition.³¹⁵

Once again, Māori protested the reclassification vigorously. So did the Bay of Plenty Harbour Board, which disputed the Regional Water Boards right to set the standard.³¹⁶ The Tauranga Māori Executive wrote to the Regional Water Board that:

[T]he harbour has always represented a traditional food supply source for the Maori people, and any attempt to lower the water classification standards of the Harbour, will lead to a wider use of the harbour waters as an outlet for more sewage, and the eventual desecration of the shell-fish beds, and breeding grounds of the many varieties of fish that inhabit the harbour.³¹⁷

Gaining no satisfaction from the Regional Water Board, the Tauranga Māori Executive wrote to the Minister for the Environment regarding the effort to lower water standards in the harbour:

We maintain that the effects of harbour pollution is not only a health hazard to people using the harbour as a food source and a recreational area, but it is also detrimental not only to the large number of Maraes along its shore lines, but also to those sites of early Maori settlement. This Executive has always tried to prevent the polluting of the waters of Tauranga Harbour, and whenever efforts, regardless of whether these efforts have been initiated in the name of progress, this Executive has always continued to voice its opposition. And we shall continue to do so...³¹⁸

This letter was forwarded to the Commissioner for the Environment who, however, was satisfied that the Regional Water Board intended to improve harbour water quality: the board had apparently begun to require polluters to apply for a right to discharge waste into water, and to impose minimum standards for discharges into the harbour.³¹⁹

314. Document D7, p 136

315. Ibid, app E, pp 203–204

316. Ibid, p 139

317. Ibid, p 138

318. Ibid, p 139

319. Ibid, p 139, fn 324; ED Revington, chief engineer, to town clerk, Tauranga City Council, 6 September 1976, pp 1–2 (McClean, ‘Tauranga Moana: Fisheries, Reclamations, and Foreshores Report: Volume Three: Document Bank: Part Three: Water Pollution and Water Classification (doc D7(a), pt 3, pp 166–167); ED Revington, commission engineer, letter entitled: ‘Discharge of Treated Waste into Tauranga Harbour’, 11 April 1973, pp 1–2 (doc D7(a), pt 3, pp 171–172)

In the event, the Maunganui Borough Council abandoned the plan to temporarily discharge to the estuary after becoming embroiled in a succession of appeals – including a very early claim to the Waitangi Tribunal (Wai 3). Instead, it sought to immediately build the ocean outfall and oxidation ponds.³²⁰ A 1974 environmental impact report acknowledged that ‘a flourishing ecosystem on the tidal flats would be lost’ through reclamation, but concluded that the ponds themselves would have only minor ongoing effects.³²¹ But the Commissioner for the Environment maintained that the reclamation was not justified, because of the impact on the area and the possibility of other sites being used.³²² Despite this opposition – and more from Paraone Rewiti (member for Eastern Māori), the Ministry for Agriculture and Fisheries, and the Ministry for Transport – the plan became effective through the Mount Maunganui Borough Reclamation and Empowering Act 1975.³²³

Witness Desmond Kahotea told us that no cultural or archaeological assessment was undertaken before work started. However, he monitored the impact on sites of significance within the harbour as the ponds were constructed:

I watched the excavation to see if cultural items were uncovered and one of the contractors told me that the Council was considering taking borrow from a hill/pa called Ohotumaihi. I contacted and met the head of engineering and showed him that the site has been recorded as an archaeological site and was identified in a 1976 archaeological report.³²⁴

Several tangata whenua witnesses spoke about the environmental and spiritual impact of the ponds on the harbour. They especially stressed the now sparse tītiko (periwinkle, or mudsnail) population.³²⁵ Haare Williams, for example, stated

Today titiko are simply empty shells floating with the flotsam which laps along the foreshore at high tide. The substance of the wairua of Rangataua has been butchered by the lust of commercial enterprise and development around the harbour. The people of Nga Potiki are now unable to provide kai a te rangatira, the Titiko, to their manuhiri.³²⁶

Pine McLeod stated that 'our birds are still dying from avian botulism in the pond’.³²⁷

When the Mount Maunganui Borough Council and Tauranga City Council amalgamated in 1989, their two sewerage treatment systems became jointly managed. The Tauranga City Council ceased discharging the sewage treated at Chapel Street into the harbour, and all sewage was piped to the oxidation ponds at Te Maunga. After consultation with Māori in

320. Document D7, pp 151–153

321. Heather Basset and Richard Kay, ‘Crown Acquisition and Desecration of Ngā Potiki Land’ (commissioned research report, Wellington: Waitangi Tribunal, 1999) (doc E1), pp 73–74; doc D7, p 152

322. Document E1, p 83

323. Document D7, pp 152–153

324. Document E18, pp 18–19

325. See document E14; doc E5, pp 4–5; doc E26, pp 3–4

326. Document E5, p 8

327. Pine McLeod, brief of evidence, 26 June 2006 (doc R27), p 6

late 1990, it was agreed that wetlands would be added to the complex as filters before wastewater was discharged to the ocean.³²⁸ Both the manner of the installation, and the ongoing operation of the complex, remain highly controversial among local Māori.

(5) Katikati: dairy factory waste and Matakana Island sewerage outfall

Discharges into the western reaches of the harbour have also been problematic. In the mid-1960s, the Katikati Dairy Co-operative was discharging about 200,000 gallons (over 900,000 litres) of water, and 6000 gallons (over 27,000 litres) of casein whey, into the harbour daily. The Pollution Advisory Council permitted the factory to continue with this discharge on condition that it was ‘Substantially free from suspended solids, grease and oil. In the classified waters [of the harbour], the waste discharge shall not cause any conspicuous discolouration nor give rise to offensive smells’.³²⁹ This permission would allow the dairy company and its successor, the Bay of Plenty Co-operative Dairy Association Ltd, to continue discharging waste into Tauranga Harbour until 1979, despite increasing production.

Considerable public disquiet prompted the dairy company to commission biological surveys in 1974 and 1975. They showed the discharge was causing 'considerable adverse ecological changes’ (including discolouration, surface scum, disappearance of microfauna, sediment deposition, and algae growth) and contributing towards ‘serious pollution' of the harbour.³³⁰ A subsequent inspection by the Regional Water Board concluded that the factory was releasing approximately 310,000 gallons of waste daily (around 1.4 million litres), and placing the same biochemical oxygen loading on the harbour as a city of half a million people.³³¹

Faced with losing its discharge permit, the dairy company switched to another option: a pipeline issuing at an ocean outfall off Matakana Island.³³² This pipeline (the subject of claims Wai 228 by the Matakana hapū and Wai 854 from Ngāti Tamawhariua) runs from Katikati, across the harbour and Matakana Island, and terminates 650 metres off the beach on the ocean side of the island.

It was originally installed to dispose of just the Katikati dairy factory’s waste, but from the outset, the dairy company contemplated the pipeline carrying domestic sewage from Katikati and possibly Ōmokoroa as well.³³³ The company did not, however, mention this possibility in its formal application for an ocean outfall, nor when the application was publicly

328. Antoine Coffin, ‘A Study of Environmental Planning in Tauranga Moana since 1991’ (commissioned research report, Wellington: Waitangi Tribunal, 2006) (doc S7), pp 55–56

329. Pollution Advisory Council, Permit to Discharge, 1 July 1965 (Robert A McClean, ‘Matakana Island Sewerage Outfall Report: Volume One and Two: Main Report and Appendix’ (commissioned research report, Wellington: Waitangi Tribunal, 1998) (doc B4), p 49

330. Bioresearchers, A Preliminary Assessment of Some Aspects of the Ecology of Tauranga Harbour, April 1974 (doc B4, p 5o)

331. Document B4, pp 51–52

332. Ibid, p 55

333. Ibid, p 52

Figure 7.11: Katikati Co-operative Dairy Company factory, 1948
Photograph by W Walker. Reproduced courtesy of Archives New Zealand: National Publicity Studios Collection,

notified. While the company met with affected property owners and a range of other authorities and organisations, Matakana Island Māori were not directly notified of the proposal, nor invited to meetings.³³⁴ Their use of the ocean-side beach and kaimoana was first ignored, then said to be unaffected by the proposed outfall. The company relied on a waste management report prepared by private consultants, which limited its discussion of environmental effects to generalisations,³³⁵ and an environmental impact report prepared by Bioresearchers Ltd (which was responsible for the earlier biological surveys). The latter report noted that Matakana Island residents gathered shellfish of 'excellent eating quality’ from the outfall area, but stated that the proposed disposal presented no ‘major threats’ to the water quality or ecology of the outfall area or adjacent shore.³³⁶

334. Ibid, pp 55–57

335. Murray-North and Partners, ‘Feasibility Report on Disposal of Effluent from Katikati Factory to Sea Outfalls’, November 1976, p 3 (doc B4, p 52)

336. Bioresearchers Ltd, Disposal of Effluent from Katikati Factory to Coastal Waters, April 1977 (doc B4, pp 58, 140–141). From the information provided to us in evidence, it would seem that the effluent consisted of milk waste and did not include sewage.

On 7 July 1977, the water right application was granted without objections or appeals. That same month, the dairy company formally invited the Tauranga County Council to participate in the ocean outfall scheme and the council applied to the Regional Water Board for a discharge right using the company’s pipeline.³³⁷ The application was twice advertised in the Bay of Plenty Times in September 1977, and copies of the advertisement sent to a wide range of interested parties, but not to any representatives of affected Māori communities. The permit was granted, despite evidence that there would be some bacterial contamination of the waters near the outfall. One local resident lodged an objection on the grounds that the sewage was untreated, saying that most people were probably unaware of the fact: the application had described the discharge as 'comminuted domestic sewage’.³³⁸ Sure enough, there was an outcry after the permit was granted, particularly from the residents and borough council of Waihi Beach. A letter to the local newspaper queried how many people knew that ‘comminuted’ meant simply ‘pulverised raw sewage’. Other letters referred to shellfish gathering in the area, especially by local Māori. A neighbouring landowner lodged a late objection to the scheme, saying that she had only just become aware of the matter.³³⁹

The Regional Water Board responded to the outcry by saying that the discharge was considered acceptable because the seaward side of Matakana Island was of little public use. The Minister of Health lent his support to the scheme, citing departmental policy to ‘encourage the disposal of effluent into the ocean at points which are inaccessible to the general public and where no significant contamination can occur’.³⁴⁰

Throughout this debate, the fact that Bioresearchers Ltd had provided amended evidence the day after the water right was granted went without mention; instead, an earlier, more favourable, version was cited.³⁴¹ In fact, Bioresearchers’ revised evidence stated that occasional contamination by faecal coliform bacteria could occur up to 1100 metres from the outfall, and 600 metres towards the shore, as compared with the original assessment that all water would be ‘reasonably pure 200 metres from the outfall’.³⁴² After the Katikati Dairy Factory closed in 1982, the Tauranga County Council decided to purchase the pipeline, using a loan from the Local Authorities Loans Board. This, and the earlier loan extended to the council when it first bought into the pipeline, were considered by the Department of Health and the Ministry of Works, and signed off by the Ministers of Finance and Health.³⁴³ From this point onwards the pipeline’s sole purpose was to discharge sewage.

We have no satisfactory evidence that Matakana Island residents were ever informed about or consulted over the decision to use the pipeline to discharge sewage. One council

337. Document B4, p 66

338. Ibid, pp 66–68, 70

339. Ibid, pp 71–74, 77

340. Ibid, pp 75, 78

341. Ibid, pp 79, 83

342. Ibid, p 83

343. Ibid, pp 84–85, 88

lor of the time claimed in the press that the council ‘would have sought and been given permission for the pipeline through a leader of the iwi’.³⁴⁴ Glen Snelgrove, chief executive of Western Bay of Plenty District Council, was unable to confirm to us whether any such consultation had, in fact, taken place.³⁴⁵

Meanwhile, Matakana Island Māori remained unaware that sewage was being discharged untreated, until it was stated in a 1991 newspaper article.³⁴⁶ This was despite one resident, Hauata Palmer, having asked the Tauranga County Council in the late 1980s whether the discharge was treated. The council replied that the discharge was ‘subject to milliscreening’ (fine filtering), but did not explain the term. Once residents were alerted to the raw state of the sewage, there was anger and a sense of betrayal. At a meeting in 1992, the Matakana Island Trust agreed that: ‘[t]he discharge of raw sewerage [sic] is absolutely not acceptable and the community at large demand some remedial measures take place to address this issue’.³⁴⁷ The Tauranga Moana District Māori Council also contacted the Tauranga County Council, asking (as Mr Palmer had done) about the risk of shellfish contamination. The County Council assured them there was none.

It would seem, however, that testing at the time was highly unreliable.³⁴⁸ When the pipeline was constructed, a condition of its use was regular testing. Neither the dairy company nor the Tauranga County Council initially complied with this condition. Once regular monitoring began, the amended Bioresearchers report was found accurate: depending on weather conditions and time of day, shellfish up to 1000 metres from the outfall could be heavily contaminated. Shellfish near the outfall were unfit for human consumption at all times.³⁴⁹ In particular, a comprehensive study by consultants Beca Steven found that ‘there is a significant impact by effluent of a fairly young age’ that would exceed bathing water standards 8 per cent of the time, and shellfish water standards 12 per cent of the time.³⁵⁰ This report finally prompted movement towards an upgrade of the treatment and disposal of Katikati sewage. Matakana Island Māori and others now actively opposed the piping of sewage into the ocean, but their concerns continued to be marginalised. A 1990 district council report, for example, called for the harbour to be cleaned up to arrest falling environmental standards, but it took for granted the continued use of the Matakana Island outfall and the addition of three other ocean outfalls. The report did not mention Māori objections.³⁵¹

344. ‘Former Councillor says Consultation Happened’, Katikati Advertiser, 9 April 1996 (doc T4, attachment 12, p 145)

345. Glenn Snelgrove, brief of evidence, 29 September 2006 (doc T4), p 9; doc 4.7, pp 90–91

346. Document J22, p 12; doc B4, pp 91–92, 105

347. M J Reed, services engineer Tauranga County Council to Howard Palmer, 1 December 1988 (doc B4, p 92); CT McGlynn for the Matakana Island Trust to secretary Tauranga County Council, 14 June 1992 (doc B4, p 106)

348. Document B4, pp 92–93

349. Ibid, p 98

350. Beca Steven, ‘Western Bay of Plenty Sewerage: Water Right Study of Bay of Plenty Ocean Foreshore Waters’, study report prepared for Bruce Henderson Consultants Ltd, June 1991 (doc A20), pp 100, 109

351. Document B4, pp 99–101

Map 7.5: The Matakana Island pipeline and impact of effluent

(6) Conclusions

During the period from 1886 to 1991, Tauranga Harbour and other waterways were polluted by numerous discharges, including sewage and stormwater outfalls, septic tank seepage, urban runoff, rubbish tip seepage, agricultural runoff, and industrial wastes. Since at least 1928, Māori have vigorously opposed such pollution, taking their concerns to local bodies and the Crown. Their position has been clear and consistent throughout: any harmful discharge into the harbour, or into key waterways such as the Wairoa, is culturally unacceptable.³⁵²

This is especially true of sewage. Māori regard the discharge of sewage into waterways as culturally abhorrent, and a threat to the health of key habitats such as estuaries. Their concerns have focused particularly on the McLean Street septic tank, the Sulphur Point outfall, the Mount Maunganui discharge at Rangataua Estuary, and the Matakana Island outfall. The effect of pollution on other resources, especially fisheries, has been an enduring issue to which we now turn.

7.5.4 Losing customary fisheries

Many of the claims we heard focused on customary fisheries – including freshwater, inshore, shell, and fin fisheries – reflecting the enormous economic and cultural significance of kaimoana to Tauranga Māori. Concerns were expressed about both the physical state of the fishery and the legal regime governing access to customary non-commercial fishing. Claimants told us of fisheries that were diminishing or had been lost altogether, describing this as one of the Crowns most serious Treaty breaches.³⁵³ The Crown, meanwhile, acknowledged that Māori non-commercial fishing rights continue to be subject to the principles of the Treaty of Waitangi and give rise to Treaty obligations on the Crown's part.³⁵⁴ In other words, Māori retain the right to exercise tino rangatiratanga over their customary fisheries.

(1) Crown control of fisheries

The English version of the Treaty explicitly protected Māori in the ‘full exclusive and undisturbed possession of their fisheries. These were the rights which Hori Ngatai first reasserted before the Crown's representatives in 1885, and which Tauranga Māori sought to have upheld in years to come.

352. Document D7, p 154

353. Claims particularly mentioning customary fisheries include, but are not restricted to, Wai 211 (Ngāi Tūkairangi), Wai 356 (Ngāti Ranginui), Wai 362 (Ngāti Ruahine), Wai 489 and Wai 947 (Ngāti Kuku of Ngāi Te Rangi), Wai 540 (Ngāi Te Rangi), Wai 637, Wai 751 and Wai 1178 (Ngāti Pūkenga), Wai 659 (Ngai Tamarāwaho of Ngāti Ranginui), Wai 664 (Waitaha), Wai 715 and Wai 854 (Ngāti Tamawhariua ki Matakana), Wai 717 and Wai 821 (Ngā Pōtiki), Wai 1226 (Ngāti Hinerangi and hapū)

354. Document U29, p 45

However, believing that English common law automatically extended to New Zealand, Europeans settling here have long believed that all people have a common right to all sea fisheries.³⁵⁵ Freshwater fisheries have also been subject to common law presumptions in that fishing rights in waterways have typically flowed from the presumption of ownership to the middle line of the river.³⁵⁶ The Crown has legislated, and the courts have ruled, on the basis of these common law assumptions.

The Ngai Tahu Sea Fisheries Report contains a full discussion of historic fisheries legislation. We do not intend to repeat that here, save to very briefly note where and how the Crown has provided for Māori interests in customary fisheries.³⁵⁷ The key point is that, between the Crown and the courts, the common right of all to fish in the sea and tidal waters has been 'elevated virtually to a constitutional principle’.³⁵⁸ In particular, the 1914 decision of the Court of Appeal in Waipapakura v Hempton found that the common law precluded any sort of exclusive Māori rights to fish under the Treaty. Such rights could therefore only be conferred by the Crown via statute.³⁵⁹

The scant legal protection that the Crown has afforded to Māori fishing rights in statute has taken two forms: broad and general protections, and specific provisions.³⁶⁰ General protections were nominally strongest between 1877 and 1894, when Māori Treaty rights in their fisheries were recognised by section 8 of the Fish Protection Act of 1877. The Act ended with a clause stating that:

Nothing in this Act contained shall be deemed to repeal, alter, or affect any of the provisions of the Treaty of Waitangi, or to take away, annul, or abridge any of the rights of the aboriginal natives to any fishery secured to them thereunder.³⁶¹

This clause was inserted into the Act on the express intervention of the Governor, Lord Normanby, after Parliament declined to pass a much weaker provision.³⁶² Precisely what rights were thereby protected remained untested, however, and as the Muriwhenua Fishing Report found, this provision was most likely ‘window dressing’.³⁶³ It was repealed in 1894. No further general provision for Māori fisheries was made until the Fisheries Act 1908 provided that ‘Nothing in this Part of this Act shall affect any existing Maori fishing rights’.³⁶⁴ This provision, as re-enacted in subsequent legislation, remained in force until 1989 (though

355. Waitangi Tribunal, Ngai Tahu Sea Fisheries Report, pp 154, 174

356. Law Commission, The Treaty of Waitangi and Maori Fisheries: A Background Paper, NZLC pp 9 (Wellington: Law Commission Report, 1989), p 75

357. Waitangi Tribunal, Ngai Tahu Sea Fisheries Report, pp 134–288

358. Law Commission, The Treaty of Waitangi and Māori Fisheries, p 128

359. Ibid, p 56

360. Waitangi Tribunal, Report on the Muriwhenua Fishing Claim, p 96

361. Fish Protection Act 1877, S 8

362. Waitangi Tribunal, Ngai Tahu Sea Fisheries Report, p 137

363. Waitangi Tribunal, Report on the Muriwhenua Fishing Claim, p 85

364. Waitangi Tribunal, Ngai Tahu Sea Fisheries Report, p 153

slightly amended once the Fisheries Act 1983 deleted the word 'existing’ as redundant).³⁶⁵ However, the source or extent of 'existing Maori fishing rights’ remained undefined.

Specific provisions for Māori interests in fisheries began with early legislation regarding oysters, and were later extended to other shellfish.³⁶⁶ Various Acts provided for the creation of closed areas and Māori oyster reserves. From 1900 to 1962, there was legal provision (originally under the Māori Councils Act 1900, and later under the Māori Social and Economic Advancement Act 1945) for Māori to have exclusive management and control over shellfish beds and fishing grounds.³⁶⁷ Māori requested reserves many times over the 62 years these provisions remained on the statute books. However, it seems no such reserves were ever made.³⁶⁸

The Crown was willing to limit fishing in certain contexts, closing areas for specific species or methods of fishing.³⁶⁹ From time to time, this occurred in and around Tauranga. Between 1890 and 1901 the Minister of Marine closed Tauranga Harbour to oyster fishing to protect the fishery; nevertheless in 1923, the chief inspector of fisheries described oyster beds as ‘practically wiped out over twenty years ago’ in Katikati Harbour and the Bay of Plenty generally.³⁷⁰ Similarly, in 1929, commercial fishers were stripping the mussel beds opposite Katikati. The clerk of the Katikati Domain Board wrote to the harbour board on behalf of Māori living near Bowentown, asking that commercial fishing be limited. If not, ‘the Natives as well as the visitors to the Domain … [would lose] the use of these shellfish’.³⁷¹ In April 1930, after a marine biologist confirmed that the shellfishery was endangered, the Governor issued an order in council banning the commercial taking of mussels from the location.³⁷² This restriction was lifted in 1941 after the harbour board reported that mussels were now so numerous as to be a menace.³⁷³

In 1924, Māori successfully opposed an attempt by the local chamber of commerce to entirely prohibit netting within the Harbour. They told the Minister of Marine that this ‘would be an infringement of their rights under the Treaty of Waitangi’.³⁷⁴ At the same time, Māori sought to restrict commercial trawling or seine netting in or around Tauranga Moana, to combat stock depletion. They consistently argued that these methods had diminished fish

365. Law Commission, The Treaty of Waitangi and Maori Fisheries, p 57; Waitangi Tribunal, Ngai Tahu Sea Fisheries Report, p 196

366. Oyster Fisheries Act 1892, S14; Sea Fisheries Act 1894, S17: Sea-Fisheries Act Amendment Act 1896, S3

367. Maori Councils Act 1900, SS16(9), 16(10)

368. Waitangi Tribunal, Muriwhenua Fishing Report, pp 100-103; Waitangi Tribunal, Ngai Tahu Sea Fisheries Report, pp 208, 210

369. Document D7, pp 104–113

370. Document A77, pp 59–60

371. Ibid, p 62

372. Ibid, pp 62–63; Regulations Prohibiting Taking of Mussels for Sale from Portion of the Tauranga Harbour, 7 April 1930, New Zealand Gazette, 1930, no 27, p 1134

373. Document D7, p 103

374. Ibid, p 108

stocks, and forced their smaller boats out of operation.³⁷⁵ A 1920 inquiry by senior Fisheries staff, for example, heard evidence that the trawlers were destroying whole schools of snapper, gurnard, and terakihi. The inquiry’s report made no specific mention of Māori interests, despite hearing evidence from Māori fishing communities.³⁷⁶

On the issue of trawling and seine netting, there have been periods when most of Tauranga Moana was in fact better protected than the area farther along the Bay of Plenty coast. Trawling, for example, was prohibited within Tauranga Harbour and all along the coast from 1907, but then, between 1921 and 1938, restrictions were lifted over the area east of the Waihi Estuary. Similarly, Danish seine netting, which began in the Bay of Plenty in the early 1920s, was prohibited inside Tauranga Harbour from 1928, but the prohibition was not extended to the wider Bay of Plenty until 1938.³⁷⁷ In 1937 the Crown created a comprehensive framework for the conservation of fisheries. The number of licences, range of methods, and areas open were all controlled, and vessels were required to operate from and return to the sole port specified in their licence.³⁷⁸

The Crown did not, however, respond positively when Tauranga Māori sought exclusive control over various fisheries. In 1947, Katikati Māori convened a hui attended by representatives of all Tauranga iwi to discuss the conservation of fish and the reservation of pipi beds. A petition to the Prime Minister resulted, asking that ‘the harbour from Tauranga to Katikati be reserved for Maori fishing’ owing to depletion by trawlers.³⁷⁹ The Government appointed two honorary fishery officers, but they were unable to stop the beds being damaged by people using tools and automobiles when taking shellfish. This prompted the Athenree Bowentown Tribal Committee to ask that pipi beds be brought under their control in 1950. The Crown denied this request, but did regulate against the methods Māori complained of.³⁸°

Māori around New Zealand were stimulated by the Māori Social and Economic Advancement Act 1945, which renewed the provision to allow for exclusive Māori control over fisheries. In 1948 the Matakana Tribal Executive asked that they be granted control over waters off part of the island. They stated the area would be controlled by their people, fished for hui only, and not using commercial methods.³⁸¹ But the Marine Department was vehemently opposed to the establishment of exclusive fisheries for Māori. It considered that prohibiting commercial exploitation of shellfish near Māori villages catered for Māori interests. The department sought to have the law altered to remove the possibility of exclusive

375. Document D7, pp 104–114

376. Ibid, p 106

377. Ibid, pp 104–115

378. Waitangi Tribunal, Muriwhenua Fishing Report, pp 110–111

379. Document A77, pp 65–66

380. Ibid, p 66

381. Ibid, pp 63–64

fisheries and meanwhile opposed all applications, including that from Matakana.³⁸² The Secretary of Marine's statement of official policy in 1948 expressed the prevailing view that ‘unsavoury repercussions … would most certainly arise’ if areas were ‘reserved for the sole use of one section of the community only’.³⁸³

During the 1960s and 1970s, the Crown moved to expand the fishing industry by removing the restricted licensing system.³⁸⁴ At the same time, Tauranga's urban and industrial footprint was growing rapidly, placing unprecedented pressure on Tauranga Moana’s customary fisheries. Despite the diminution of fishing stocks, the Crown extended no protection to Māori traditional fisheries until the Fisheries Act 1983. This provided for the Director-General of Fisheries to:

confer on specified communities special rights or privileges or apply special conditions relating to boundaries, species, gear or methods, periods of time, quantities, or any other measure for the management or conservation of finfish, shellfish, or aquatic life in the area in which the specified community resides.³⁸⁵

The regulation did not, however, mention Māori fishing per se.

In 1986, another set of regulations was issued under the 1983 Act. The new regulation 27 now provided for ‘fish, aquatic life, or seaweed’ to be taken for hui and tangi. Three years later, the Māori Fisheries Act 1989 was passed ‘to make better provision for the recognition of Māori fishing rights secured by the Treaty of Waitangi’. Except for the untested provisions of the Fish Protection Act 1877, this was the first Crown legislation to make significant acknowledgement of Māori fishing rights since the Treaty itself.³⁸⁶ This Act initiated the modern management regime, which is discussed in section 7.6.

(2) The depletion of customary fisheries: causes and consequences

Concerns about the decline of fisheries in Tauranga Moana were first raised by critics of commercial trawling and netting, including Māori fishermen, as far back as the early twentieth century. But the tangata whenua witnesses before us generally believed that sufficient stocks to sustain their needs existed until the 1960s, and only then began a severe and continuing decline.³⁸⁷ This is consistent with the nationwide trend identified by the Muriwhenua Tribunal.³⁸⁸ Anthony Fisher, of Ngāi Tūkairangi, summed up the problem from a Ngāi Te Rangi perspective when he told us:

382. Ibid, p 64

383. Law Commission, The Treaty of Waitangi and Maori Fisheries, pp 176–177; Waitangi Tribunal, Ngai Tahu Sea Fisheries Report, p 197; doc D7, pp 119–120; doc A77, pp 64–65

384. Waitangi Tribunal, Muriwhenua Fishing Report, pp 111–112

385. Fisheries (Amateur Fishing) Regulations 1983, regulation 7

386. Waitangi Tribunal, Ngai Tahu Sea Fisheries Report, pp 238, 283; Fisheries (Amateur Fishing) Regulations 1986, regulation 27

387. Document A50, pp 135–136

388. Waitangi Tribunal, Muriwhenua Fishing Report, pp 111, 223

Ngai Tukairangi were dependent for our very survival upon the resources of Tauranga Harbour. In addition the Harbour and its resources were also part of the cultural identity of Ngai Tukairangi. Although Tauranga Harbour is very beautiful, today it bears little resemblance to the Tauranga Harbour of 160 years ago, little resemblance to the Tauranga Harbour of 65 years ago when my mother was a teenager and has even changed significantly from the Tauranga Harbour of 35 years ago when I was a teenager … these changes have not been caused by nature, they are changes that have been made by people and institutions. They continue to occur, almost relentlessly decade after decade as a consequence of the growth and development of the Tauranga district, with little thought of the consequences for Ngai Te Rangi … Thus the ability of successive generations of Ngai Te Rangi to maintain their cultural practices and connections continues to diminish. Access to resources, in particular fish and kaimoana from Tauranga Moana has dramatically decreased. My son does not have the opportunity to do the things that I did when I was a child in the Harbour. I didn’t have the opportunity to do all of the things, learn all of the place names and the significance of events that are attached to them that my mother did... Thus the Ngai Te Rangi relationship with the Harbour diminishes with each generation.³⁸⁹

Tangata whenua say various factors have caused the decline of customary fisheries, and their access to and control over them. The biggest single factor is increased commercial and recreational fishing. They attribute the destruction of the local snapper fishery to commercial trawling in and around the harbour.³⁹⁰ The flounder fishery has also been affected by commercial operations, some of which Keni Piahana, of Ngāi Te Ahi, believed were unregistered.³⁹¹ Dudley Walker, of Ngāti Ruahine, argued that commercial operators using aqualungs are a continued threat to mussel and kina resources.³⁹² Hauata Palmer, of Ngāi Tūwhiwhia (Matakana Island), argued that such losses affect not just single species; they have unbalanced the harbour’s ecology as there are too few fish to restrict shellfish numbers and maintain healthy beds.³⁹³

Meanwhile, recreational fishing has had a growing impact, particularly during summer.³⁹⁴ Te Awanuiarangi Black, on behalf of Ngāti Pūkenga, mourned the depletion of especially prized mussel beds known as Marutuahu (the ‘Wedding Cake’ or Sunken Reef) during the 1990s. Although he reported his concerns to the Ministry of Agriculture and Fisheries at the time, and suggested a rāhui, no action was taken and the beds, he says, have still not recovered.³⁹⁵ We also heard of the tangata whenua’s intense frustration at being unable to control the irresponsible behaviour of others. For example, infuriated tangata whenua have

389. Document R3, pp 10–11

390. Document A50, p 138; doc J22, p 11

391. Document G26, p 7

392. Dudley Walker (doc A50, pp 132–133)

393. Hauata Palmer, brief of evidence, undated (doc J20), p 6

394. Document A50, p 133

395. Document R45, p 14

observed people filling buckets with just the ‘butter’ (flesh) of shellfish, or using spades, destructive forms of over-fishing which they have been powerless to prevent.³⁹⁶

Witnesses from the hapū whose ancestral lands surround the estuaries of Tauranga Harbour described how the development of the port and harbour works had affected their fisheries and access to them. Lance Waaka, of Ngāti Ruahine, described the effect of the construction of the Sulphur Point marina:

Before the land was dredged and reclaimed we’d get our cockles and pipis from down by where the Sulphur Point marina is now. You can’t get them now, and we're brassed off. If you take more than 250 you’d get fined, but the Council allowed the land there to be dredged and a channel dug right through to put in the marina which destroyed them all. They put the marina in to make money, the council gets rentals from the million dollar boats parked over our kai [whereas] we were going there for a feed.³⁹⁷

Dredging of the harbour to deepen channels has destroyed or disturbed numerous and extensive areas once rich in shellfish beds.³⁹⁸ As one witness said:

A lot of those areas of the seabed, out at Oikemeoke, are a desert, there’s nothing there. There are no pupu, there’s nothing, nothing, its just gone to wasteland …³⁹⁹

Siltation caused by port construction, transport infrastructure, and agricultural development has also detrimentally affected the ecology of the harbour and its fisheries. Keni Piahana notes that the Hairini causeway across the Waimapu Estuary has contributed to the build-up of some 1.5 metres of silt in the estuary. Tidal pools and channels have silted up, removing much of the habitat for fish and damaging what habitat remains by raising water temperatures. Nursery stock are less likely to survive in such conditions.⁴⁰⁰

Many witnesses told us that pollution has greatly reduced fish and shellfish numbers and, in the case of human waste, created the risk of contamination. Many said that they no longer felt it was safe to eat seafood or swim in the waters of much of the harbour. Mawete Gardiner, of Tauwhao Te Ngare, also identified other forms of environmental modification that had negatively affected kaimoana – including erosion around Rangiwaea (caused by the wash from the many passing boats) and increased amounts of silt.⁴⁰¹ Brian Dickson, for Ngāi Te Rangi, pointed to other contaminants in the harbour, such as agricultural chemicals and animal effluent.⁴⁰² He also referred to the inadvertent introduction of foreign species

396. Document A50, p 140

397. Document Q5, p 8; doc Q7, pp 4–5

398. Document A50, p 49

399. Peter Rolleston (doc A50, p 143)

400. Document G26, p 9

401. Mawete Molly Gardiner, brief of evidence, undated (doc R19), p 7

402. Document R26, p 5

Figure 7.12: Hairini Bridge circa 1910
Photographer unknown. Reproduced courtesy of Tauranga City Libraries (99–1196).

by international shipping, such as a new starfish that is damaging mussel beds.⁴⁰³ Mawete Gardiner, too, mentioned the ‘foreign sea slugs which … now seem to be everywhere’.⁴⁰⁴ Many witnesses singled out the spread of mangroves as a sign of an unbalanced ecology. They believed mangroves destroyed habitat for fisheries as well as cutting off access to them.⁴⁰⁵ Environment Bay of Plenty data confirms that the extent of land covered in mangroves in Tauranga Harbour has doubled in the last 50 years.⁴⁰⁶

Witnesses said that Māori concerns, which were based on their own observations and local knowledge, were typically ignored, while precedence was given to scientific evidence. Hauata Palmer argued that

Everything that happens down here affects the upper reaches of the Harbour, the other end. The Port development, the Sulphur Point reclamation and channel deepening. Those are the main things. You know, the annoying thing is that they keep saying there’s no scientific proof of this. But we know. We can see it.⁴°⁷

403. Document R26, p 14

404. Document R19, p 7

405. Waraki Paki, brief of evidence, undated (doc J11), p 3

406. Document T3, p 25

407. Hauata Palmer (doc A50, p 48)

Kihi Ngatai recalled that, in debate over the effects of the proposed harbour bridge, he was ‘told by a Professor that even though the pipi bed would be temporarily disrupted, it would return'. But, he said, there is one old kaumatua living at Mount Maunganui who goes to check on the pipi bed every day: ‘it has never returned’.⁴⁰⁸ Keni Piahana told us that councils regard customary knowledge as ‘a curiosity’; this, he claimed, ‘truncates the continued expression of Rangatiratanga, because the customary knowledge base will lose currency and disappear.’⁴⁰⁹ Anthony Fisher, of Ngāi Tūkairangi summarised the claimants’ position:

My hapu is of the very strong view that the railway bridges, harbour bridges, road bridges, causeways, port development, and channel widening, have altered the tidal flow characteristics of the harbour and have been the reason for the disappearance of titiko from te tahuna o Waipu, the disappearance of tuangi and ureroa beds, the proliferation of mangrove growth in estuaries within the harbour, and the appearance of mangroves in te tahuna o Waipu. Our past objections to port and harbour developments on the grounds that they contribute to this have been countered by volumes of data from scientific and academic experts that is always accepted. But the titiko, tuangi, ureroa, the channels and drains used by whanau of Ngai Tukairangi in which to store their kaimoana after it had been harvested from mataitai areas, have gone.⁴¹⁰

Tangata whenua witnesses also described damage to the customary fishery in freshwater streams and rivers. We have already recorded the comments of Kiakino Paraire, of Ngā Pōtiki, about how the discharge of ‘slag and slush’ from the Kaitimako quarry had affected fish stocks in the Waitao Stream.⁴¹¹ Hinenui Cooper noted that while the stream could once cater for steamboats, it was now possible to wade across it.⁴¹² That evidence was supported by the observations of Pikowai Ohia and Hone Newman, of Ngāti Pūkenga, who noted discolouration of the water and a build-up of silt, particularly around the Waitao bridge and at the mouth of the stream. Silting at the mouth, said Newman, had affected the depth of the stream, causing the water to fan out into about six shallow strands instead of a single, deeper, flow. Like several other witnesses, he said there were now nowhere near as many fish in the stream.⁴¹³ Nevertheless, Hinenui Cooper noted that the river still retains a greater diversity of native fish species than any other that NIWA monitors.⁴¹⁴

Whareoteriri Rahiri, of Waitaha, pointed to similar effects on the Kopuaroa Stream from Fulton Hogan's Poplar Lane quarry and on the Wairākei River from drainage works and

408. Document Q13, p 13

409. Document G26, p 14

410. Anthony Fisher, brief of evidence, undated (doc J14), p 10

411. Document E3, p 8

412. Robyn Hinenui Cooper, brief of evidence, 26 June 2006 (doc R28), p 17

413. Pikowai Ohia, brief of evidence, 22 May 2006 (doc Q25), p 3; Hone William Newman, brief of evidence, 26 June 2006 (doc R42), pp 6–7

414. Document R28, p 17

residential development. Customary fishing in both those waterways, as well the Atuaroa Stream, is now significantly diminished, and his relatives from Ngāi Tamarāwaho no longer come to gather eels for Kīngitanga celebrations.⁴¹⁵ Eddie Tiepa Bluegum remembered playing as a child in the Rereatukahia River – learning to swim, drinking the water without fear, and catching many kinds of fish. Recently, though, the water has become polluted with 'green sludge’, strange weeds, agricultural runoff, and spray drift. The fishery has dramatically declined, and the area is known to all as ‘Stink Bridge’.⁴¹⁶

Witnesses described their sadness that the children of Tauranga Moana no longer experience the plenty of their ancestors. People’s association with the ancestral landscape has been lost, while traditional activities such as fishing and making nets, once undertaken as a community, have declined. As Heeni Murray of Matakana Island recalled:

the process of gathering kai moana had a strong whanau element to it … We all went out on fishing expeditions as a whanau and as a community. It was great fun for the younger ones, helping to set and haul in the nets. There were the horse riders, driving the fish up the channel into the waiting nets, and there were others tramping and spearing flounders. These episodes are just a memory for us now.⁴¹⁷

With the loss of traditional foods, and traditional activities, it becomes harder to maintain ahi kā, and to hold the links between previous and future generations. Gordon Te Reo Hau Ranui expressed sentiments echoed by other witnesses:

It’s really sad because that’s what I grew up with, but I can’t give that to my grandchildren. I can’t pass the right to get kaimoana from Tauranga Moana to them, they can only read about it. Our generation is the last one to witness all the dramatic changes from then to now.⁴¹⁸

This perhaps lends another meaning to the whakataukī ‘E kore te patiki e hoki ki tona puehu’ (The flounder will not return to its waters once disturbed).⁴¹⁹ While kaimoana is perhaps not so necessary today as a source of sustenance, it is clear that Tauranga Māori desire to retain their customary fisheries as a key component of cultural identity, binding their communities within their ancestral landscapes. Keni Piahana told us that:

The taiapure provided more than physical sustenance. It is a benchmark of the mana and pride for ahi kaa whanau. Knowledge that you are blessed with a natural resource that can sustain te hau kainga and manuhiri tuarangi alike, has entrenched a close personal and

415. Document S35, pp 9–11

416. Document R8, pp 4, 6

417. Document J22, p 11

418. Document Q7, p 5

419. Document G26, p 8

cultural association with the estuary and the responsibility of kaitiakitanga. Care must be taken not to equate these associations as amenity or aesthetic features. They are central to the life and custom of tangata kaitiaki.⁴²⁰

In summary, the claimants’ view is that the Government’s past mismanagement is responsible for their depleted fisheries. Port development was often singled out as a principal cause of environmental loss and degradation. Moreover, there was a strong perception that in developing the port, the Government and local authorities had little regard for Māori concerns over the effects on fisheries. The claimants argue that if they had retained the authority to control their fisheries, they could and would have ensured they were managed in a sustainable way.

(3) Modern management of customary fisheries

Whatever the case historically, however, the modern management regime for New Zealand fisheries seeks to maintain a sustainable fishery. Since the late 1980s, a quota management system has been in place. To ensure sustainability there is also provision for the Government to set a total allowable catch for each species, made up of 'all the catch from any source that can be taken, including customary, recreational, commercial, illegal fishing and fish that might be killed by fishing but not landed’ (emphasis added).⁴²¹ This provision implicitly acknowledges the Crown’s responsibility for protecting the customary fishery, as a contributing factor to ensuring a sustainable national fishery.

The foundation for Māori involvement in the modern management regime was laid by the Māori Fisheries Act 1989, which aimed to ‘make better provision for the recognition of Maori fishing rights secured by the Treaty of Waitangi’.⁴²² This Act provided for taiāpure (local fisheries) to be declared. These allow a management committee, nominated by the local Māori community, to regulate all fishing activities within the taiāpure. Establishing a taiāpure is complex and time-consuming, involving ministerial decisions and consideration by a tribunal of the Māori Land Court. Historically, taiāpure have proven very difficult to establish.⁴²³ For example, Matakana Māori applied to establish a taiāpure covering the waters within one kilometre of the island soon after the 1989 legislation, but they were unsuccessful.⁴²⁴

The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which finally settled all Māori claims to commercial fishing, acknowledged the need for improved provisions for

420. Ibid, p 7

421. Terence William Lynch, brief of evidence on behalf of the Ministry of Fisheries, 2 October 2006 (doc T13), pp 4–5

422. Maori Fisheries Act 1989, long title

423. Document T13, pp 7–9

424. Document A20, p 29

customary fishing. The result, in the North Island, was the Fisheries (Kaimoana Customary Fishing) Regulations 1998. It is the adequacy of these regulations to give effect to the Treaty interests of Tauranga Māori with which we are now concerned.

These regulations provide for tangata whenua to manage customary fishing within their iwi boundaries by appointing kaitiaki (either individuals or groups). In 2000, Tauranga iwi established the Tauranga Moana Customary Fisheries Committee to give effect to these regulations. The committee consists of two representatives from each of Ngāi Te Rangi, Ngāti Ranginui, and Ngāti Pūkenga. Each committee member is a kaitiaki, with the power to issue authorisations to tangata whenua to gather kaimoana for customary purposes such as hui and tangi. Committee chairman Brian Dickson acknowledged that these regulations have removed problems with the previous regulations established in the 1980s that allowed kaumātua to issue authorisations for areas beyond their rohe.⁴²⁵

Tangata whenua can also apply to establish mātaitai reserves within their rohe. In these reserves, tangata whenua have the authority to manage not just customary fishing, but all non-commercial fishing, through the regulations or by-laws they choose to enact. Commercial fishing is generally banned within mātaitai.⁴²⁶ To establish a mātaitai reserve, application must be made to the Ministry of Fisheries, the application must be publicly notified, and the Ministry and tangata whenua must together meet with the local community.⁴²⁷ Kaitiaki have comprehensive powers to regulate which species can be fished for, where they can be taken from, the bag and size limits, the methods allowed, and any other matters considered necessary for the sustainable utilisation of fisheries resources’.⁴²⁸

Tauranga Māori have established one mātaitai reserve. This covers Mauao, the waters around Moturiki and Motuhoa islands, and part of the harbour entrance at Mount Maunganui. They have also imposed a rāhui on the taking of green-lipped mussels within part of the reserve, and the Ministry have closed this area to mussel harvesting.⁴²⁹

We heard no evidence that these legislative provisions were in principle inadequate to give effect to the rangatiratanga of Tauranga Māori over customary fishing. Customary fishing is, rightly, subject to the overriding principle of sustainability, but the Crown cannot restrict the quantity of fish being taken for customary purposes ‘provided the level of harvest is sustainable and all fishing is non-commercial in nature’.⁴³⁰ In particular, iwi have the ability to exercise their rangatiratanga over mātaitai as they see fit.

425. Document R26, p 6

426. Document T13, pp 6–7

427. Ibid, pp 8–9, 15

428. Ibid, pp 17–18

429. Document R26, p 3. Brian Dickson, speaking for Ngāi Te Rangi, referred to a ‘mahinga mataitai’ having been established, but this does not appear to have become an official mātaitai reserve until 2008: Ministry of Fisheries, ‘Mt Maunganui and Tauranga Harbour Mataitai’, Ministry of Fisheries, http://www.fish.govt.nz/en-nz/Press/Press+Releases+2oo8/Augusto8/Mt+Maunganui+and+Tauranga+Harbour+mataitai.htm (accessed 1 July 2010).

430. Document T13, p 4

Map 7.6: Mātaitai reserve, and temporary closure for mussels

Nevertheless, Brian Dickson did express concerns with the operation of the regulatory regime, chiefly in terms of administrative and resourcing issues. Mr Dickson argued that establishing mātaitai was ‘laborious, time consuming and difficult’. He believed that asking for submissions on the application for the mātaitai before undertaking any public relations exercise was a process that ‘set us up to fail’. He also identified a lack of funding to inform and educate the public, and thereby reduce opposition to the establishment of mātaitai reserves.⁴³¹ There was inadequate funding for the committee’s activities, which include meetings, training, the development of management plans, consultation with tangata whenua, and research into traditional fishing. ‘People do all the work for free’, he said. In particular, the committee had been unable, in any of the last four quarters, to give the Ministry the

431. Document R26, pp 9–11

data on the extent of customary fishing it needs to accurately determine the sustainable catch for fisheries.⁴³²

Terrence Lynch, of the Ministry of Fisheries, told us that the Ministry has made efforts to respond to such concerns. Developments planned or already underway at the time of hearing included:

▶ the setting up of regional fisheries forums, to provide an opportunity for iwi and hapū to meet with one another and with the Ministry, share ideas and information, and develop joint policies and plans;

▶ the appointment of a pou hononga (relationship facilitator) to work with each regional forum;

▶ the recruitment of a pou takawaenga (extension officer) for each forum – or possibly some other arrangement proposed by the tangata whenua – to assist iwi and hapū in carrying out their role;

▶ the development of an NZQA-accredited training programme for kaitiaki, covering matters relating to the compliance side of the role;⁴³³ and

▶ steps to streamline the data collection process.⁴³⁴

We note, too, Mr Lynch's comments that the Ministry of Fisheries lacks the capacity to do everything it might wish to assist tangata whenua.⁴³⁵ We are heartened, however, that the Ministry has been reviewing the situation and is aware that ‘improvements could and should be made to better reflect the legal obligations on the Ministry arising from the Fisheries Deed of Settlement and the principles of the Treaty of Waitangi’.⁴³⁶ We encourage the Crown and claimants to continue to work together to resolve outstanding issues, particularly in relation to strengthening iwi and hapū capacity and resourcing.

(4) Conclusions

Until the modern regime, there were very few legislative provisions that recognised a distinctive Māori interest in fishing. While from 1900 to 1962 provisions existed whereby Māori could apply to establish customary reserves, these were never actually created – despite requests from many iwi, including Tauranga Māori. In petitioning the Crown about fishing and shellfishing in the 1920s, 1940s, and 1950s, Tauranga Māori made it abundantly clear that they then used kaimoana for regular sustenance rather than merely as a recreational source of food. Official policy was, however, to refuse all requests for exclusive control over fisheries.

The Crown did introduce measures to limit trawling and seining from time to time, yet it gave no particular consideration to Māori needs or rights with respect to their customary

432. Document R26, pp 8–9, 12

433. Document T13, pp 20–23

434. Ibid, pp 27–28

435. Ibid, p 22

436. Ibid, p 19

fishery. Rather, it positioned Māori as one interest group among many.⁴³⁷ Overall, very little recognition seems to have been given to the fact that many Tauranga Māori historically relied on their customary fisheries for sustenance. Though Māori do not now depend on kaimoana for survival, gathering kaimoana remains a key aspect of their traditional culture, which is entitled to the Crown's active protection. It was clear from the evidence that Tauranga Māori have a strong desire to sustain and nurture this aspect of their culture as a taonga tuku iho.

In assessing the adequacy of the fishing regulations we note, first and foremost, the difficulty experienced in establishing taiāpure and mātaitai. The record is: no taiāpure, and one mātaitai, in 20 years.⁴³⁸ Further, despite the improvements in providing for their participation in fisheries management, tangata whenua believe that fisheries continue to decline. Keni Piahana, of Ngāi Te Ahi, eloquently conveyed to us, for example, his people's fears for Waimapu Estuary:

[U]nder current management approaches, there is an incremental movement towards an empty shell of an estuary. A healthy and vibrant fishery is a pivotal element of cultural integrity. [To be] [u]nable to meet manuhiri and marae requirements is to be a pauper in one’s own land. This is hardly consistent with the status and position of tangata whenua, to be kaitiaki of a barren resource … There is an associated sense of whakama, not being able to express manaakitanga at an appropriate level and in an appropriate way.⁴³⁹

For of course there are many other human activities that contribute to the state of fisheries besides the taking of fish. Jason Murray, of Matakana Island, said his concerns about the future of marine life included not only overfishing, but also waste and sewage disposal, and nutrient runoff. He predicted:

it will only be a matter of time before these precious resources [marine life] will be too toxic for human consumption and thus the mana of the people and the mauri of these resources will be severely degraded...⁴⁴⁰

Most of the activities he describes take place on land, and are regulated by planning legislation. Until comparatively recently, such legislation paid little attention to the distinctive relationships between Māori and their environment, and their rangatiratanga over it – a failure of which we were frequently reminded by claimants.

437. Document D7, pp 104–113

438. We note that the mātaitai may now be under threat. At the time of finalising this report, plans to undertake dredging to deepen and widen the port’s shipping channels appear likely to affect part of the mātaitai reserve, on the western side of Mauao: Graham Skellern, ‘Port has green light for $5om dredging’, Bay of Plenty Times, http://www.bay0fplentytimes.co.nz/l0cal/news/port-has-green-light-for-50m-dredging/3915275/ (accessed 6 July 2010).

439. Document G26, pp 12—13

440. Jason Conan Murray, brief of evidence, 17 June 2006 (doc R47), p 9

7.6 THE CURRENT RESOURCE MANAGEMENT REGIME: CAN MĀORI NOW EXERCISE RANGATIRATANGA AND KAITIAKITANGA?

We have seen how Tauranga Māori have been dispossessed of their harbour, waterways, foreshores, and much of their lands. As this has happened, their ability to exercise tino rangatiratanga and kaitiakitanga in their ancestral landscapes has been limited to inclusion in the development of planning and resource management regimes. We have discussed, in chapters 5 and 6 as well as here, the very limited provisions made for Māori interests and participation in planning legislation before the passing of the Resource Management Act 1991. We saw there that the Crown was in clear breach of the Treaty with its town and country planning legislation before 1991, which did not provide for Māōri to exercise rangatiratanga or kaitiakitanga.

Māori held high hopes that, under the modern resource management regime introduced with the Resource Management Act, they might once more exercise rangatiratanga and kaitiakitanga. However, the claimants allege that this has not occurred. Some are also disappointed that the Crown, through the Act, has failed to prevent ongoing pollution and degradation of the environment. The Crown, for its part, argues that the Act is consistent with Treaty principles, and that the quality of the environment is now improving.⁴⁴¹

In weighing up these differing positions, we must consider the following:

▶ Do the Crowns legislative regimes, especially the Resource Management Act, recognise Māori as Treaty partners, and provide mechanisms through which Tauranga Māori can exercise rangatiratanga and kaitiakitanga in the management of their taonga?

▶ When delegating authority for planning the future of Tauranga, is the Crown ensuring that local authorities fulfil the Crowns Treaty obligations ?

▶ Is the Crown monitoring the performance of local authorities in this respect, and moving to address any issues that arise?

▶ Is the quality of the natural environment improving or continuing to worsen under current management regimes?

7.6.1 The Resource Management Act

The Resource Management Act, though amended several times, has remained the core of environmental law in New Zealand since its enactment in 1991. Part 11 of the Act defines the Act’s purpose as ‘to promote the sustainable management of natural and physical resources’. A number of the Act’s core part 11 provisions are concerned with protecting Māori interests' in the natural environment and in cultural heritage. The Act therefore recognises and protects the entwined natural and cultural environments that together comprise the ancestral landscape and taonga of Tauranga tangata whenua. The distinction between the natural and

441. Document U29, p 13

cultural environment is an artificial separation for Māori. In our view, one of the strengths of the Act is that it incorporates management of both within an overarching framework of sustainability.

In terms of the management of the natural environment, the Act contains various provisions that address Māori interests. In exercising the powers and functions delegated to them under the Act, local authorities are required to provide for the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga as a matter of national importance (section 6(e)). Since 2004 they have similarly been required to provide for the protection of recognised customary activities (section 6(g)).

Māori philosophies of resource management are also incorporated into the Act. Local authorities must ‘have particular regard to’ kaitiakitanga, defined (since 1997) as ‘the exercise of guardianship’ and including ‘the ethic of stewardship’ (section 7(a)). Finally, local authorities must ‘take into account the principles of the Treaty of Waitangi’ when managing the use, development and protection of natural and physical resources (section 8).

Other sections of the Act set out aspects of the statutory relationship between Māori and local bodies in managing the natural and cultural environment. Local bodies must always consult Māori when preparing or changing any planning documents, although consultation is not compulsory when considering applications for resource consent.⁴⁴² In the original Act, they were also required when preparing or changing policy statements or plans to ‘have regard to any relevant planning document recognised by an iwi authority, and lodged with the council’ and retain records of these plans. A 2003 amendment strengthened this requirement, so that regional and district councils must, now, ‘take into account’ these documents.⁴⁴³

The importance of consultation between local authorities and Māori was reiterated in the Local Government Act 2002. This Act requires a local authority to ‘provide opportunities for Maori to contribute to its decision-making processes’ and ‘consider ways in which it may foster the development of Maori capacity to contribute to the decision-making processes’, and to ‘ensure that it has in place processes for consulting with Maori’.⁴⁴⁴

In addition to the provisions in the Resource Management Act, the Minister may choose to give further direction to local authorities, by issuing national policy statements on ‘anything which is significant in terms of section 8 (Treaty of Waitangi)’. All regional and district planning documents must give effect to such statements.⁴⁴⁵ A New Zealand coastal policy statement, which must be issued, may also provide policies for ‘the protection of the characteristics of the coastal environment of special value to the tangata whenua including waahi tapu, tauranga waka, mahinga maataitai, and taonga raranga’.⁴⁴⁶

442. Resource Management Act 1991, sch 1, s 3 (1)(d); Resource Management Act, s36A

443. Ibid, ss 61 (2A)(a), 66(2A)(a), 74(2A)(a)

444. Local Government Act 2002, ss 14(1)(d), 81(b), 82(2)

445. Resource Management Act, s45(2)(h)

446. Ibid, s 58(b)

Finally, section 33 of the Resource Management Act provides that local authorities may transfer any of their ‘functions, powers, or duties’ under the Act to another public authority, including an iwi authority. This may occur where the iwi authority represents ‘the appropriate community of interest’ for that function, has special expertise, and where it would be efficient to do so. The Minister must be notified before any transfer takes place, and the public consulted. The local authority retains the power to revoke the transfer at any time.⁴⁴⁷ Alternatively, under a 2005 amendment, local authorities can choose to institute, through section 36, a management agreement with iwi or hapū so that powers and duties are exercised jointly.⁴⁴⁸

What impact has the Resource Management Act made in Tauranga? Claimants acknowledged that the Act has improved the quality of environmental management. There was no dispute that Environment Bay of Plenty, with whom much of the responsibility in this area now lies, has made significant progress under the Act. The council’s responsibilities include controlling the pollution of air and water; pest animals and plants; coastal management; and environmental monitoring. It issues policy statements and plans that give effect to these responsibilities, and the plans of district councils must not be inconsistent with these regional plans. The council is also responsible for issuing resource consents for many activities involving the uses or discharges into air, land and water. They monitor compliance with resource consents, and provide overall monitoring of the state of the environment.

We heard substantial evidence from Paul Dell (group manager, Regulation Resource Management) about the wide-ranging measures Environment Bay of Plenty has taken to improve environmental quality in Tauranga Moana – for example, its comprehensive campaign to clean up Tauranga Harbour, so long the focus of Māori concern. Under sustained pressure from Environment Bay of Plenty, all the local council sewerage schemes have been upgraded, and now treat effluent to a very high quality. All schemes use secondary treatment (and in the case of Katikati, tertiary treatment), disinfection (except for wastewater from Mount Maunganui), and wetland filtration systems, before discharging through pipelines to offshore seas.⁴⁴⁹ This level of treatment is very high compared with most treatment schemes in New Zealand.⁴⁵⁰

Agricultural discharges into streams flowing into the harbour have also been substantially reduced. All discharges from piggeries have been eliminated, and over 80 per cent of dairy farms in the harbour catchment now discharge onto land.⁴⁵¹ A regional coastal environmental plan has set water-quality standards, and all non-complying discharges require resource consent. Environment Bay of Plenty has prosecuted several companies for dis-

447. Resource Management Act, s 33

448. Ibid, s36B-E

449. Document T3, pp 19-20

450. SmartGrowth, ‘Wastewater Investigations – Overview Report on Issue of Land Application versus Ocean Discharge’, May 2003, p 4

451. Document T3, pp 16-17

charging contaminants to both water and air in breach of resource consent.⁴⁵² In addition, Environment Bay of Plenty assists a growing number of community groups who care for estuaries, streams, and parts of the coast, helping them to remove rubbish, noxious weeds, and mangroves, and to revegetate native plants.⁴⁵³

Environment Bay of Plenty has monitored water quality at sites in both the harbour and surrounding streams since 1990.⁴⁵⁴ Tauranga Harbour now consistently complies with the water standards required for bathing.⁴⁵⁵ Shellfish have improved in quality with respect to bacterial contamination since monitoring began.⁴⁵⁶ Some concerns remain, however, with the water quality of rivers and streams, largely because of agricultural runoff. Significant areas of stream margins still need to be protected from stock, and as Mr Dell pointed out, runoff from pastoral farming will always contaminate waterways at times of high rainfall.⁴⁵⁷

Environment Bay of Plenty also provides the overall regional policy and planning that is meant to shape district planning. Regional and district plans must give effect to the regional policy statement.⁴⁵⁸ Further, since a 2005 amendment, district plans cannot be inconsistent with regional plans.⁴⁵⁹ According to Antoine Coffin, Environment Bay of Plenty consulted widely with Māori in preparing its first policies and plans.⁴⁶⁰ Our inspection of the Environment Bay of Plenty regional policy statement and plans (including the regional water and land plan, regional coastal environment plan, and air plan) has satisfied us that they are making considerable and commendable provision for the concerns and values of Tauranga Māori.

However, it is important to note that there was a considerable delay in producing the first regional plan, which did not become operative until December 1999. There has been a comparatively short space of time for this planning to have any effect on district planning, and in turn to be of benefit to Tauranga Māori.

7.6.2 Claimant concerns

Counsel for Ngāi Tūkairangi acknowledged that, ‘[i]t would be churlish not to acknowledge the good work carried out by EBOP [Environment Bay of Plenty] in improving water quality since 1990’.⁴⁶¹ Claimants also acknowledged that Tauranga City Council and Environment

452. Ibid, pp 10-11, 18-19

453. Ibid, p 13

454. Ibid, pp 18, 22

455. Environment Bay of Plenty, Tauranga Harbour Integrated Management Strategy (Whakatāne: Environment BOP, 2006) (doc T39), p 16

456. Document T3, p 23; transcript 4.5, p 16

457. Document T39, pp 16-17; transcript 4.5, p 23

458. Resource Management Act 1991, s 75(3)(c)

459. Ibid, s75(4)(b)

460. Document s7, p 18

461. Document U12, p 73

Bay of Plenty have been exemplars of ‘best practice’ in providing for Māori representation and engagement, at least when compared to other councils around the country.⁴⁶² This is demonstrated, for example, by Tauranga City Council’s extensive consultation and engagement with tangata whenua over proposed upgrades to Tauranga’s wastewater system (the southern pipeline) before resource consent applications were lodged.⁴⁶³

Nevertheless, some claimant concerns remained about the overall quality of the resource management regime’s operation in Tauranga and about the Crown’s provisions for their participation in that regime. Some claimants continue to be alarmed by ongoing and recent pollution at specific sites. Pirirākau, for example, were concerned about primitive sewerage systems at Ōmokoroa Beach and Te Puna.⁴⁶⁴ On the basis of the evidence provided however, we are satisfied that Environment Bay of Plenty is aware of these problems and has processes in hand to solve them.⁴⁶⁵

(1) Wastewater disposal

A more general concern relates to the fact that local authorities have continued to dispose of wastewater into the ocean, over and against the wishes of Tauranga Māori. Residents of Matakana Island, for example, were deeply involved in the prolonged debate in the 1990s over how to upgrade the Katikati sewerage scheme; they continually reiterated their view that it was culturally unacceptable to discharge human effluent or sewage wastewater into the ocean, regardless of the quality of treatment provided.⁴⁶⁶ These concerns were mirrored elsewhere – for example, in the Ngāi Te Rangi iwi resource management plan 1995 and the combined tangata whenua report to SmartGrowth, both of which sought to have land-based treatment of sewage adopted throughout Tauranga Moana.⁴⁶⁷

The local authorities have gone some way towards meeting these concerns by installing wetland filtration systems.⁴⁶⁸ They have also upgraded their treatment systems to a high standard, and have thoroughly investigated whether adopting land-based alternatives is technically feasible and environmentally sustainable.⁴⁶⁹ But they have not adopted the fully land-based treatment and disposal desired by Tauranga Māori.

We accept that it is difficult for local authorities to contemplate adopting land-based sewerage treatment on a large scale, since it is extremely costly, and can present significant

462. Document U31, p 43

463. Barry Somers, brief of evidence, 27 September 2006 (doc T6); Neil Te Kani, brief of evidence, undated (doc R1), pp 21-26

464. Document U16, pp 11-12

465. Transcript 4.5, pp 22-23

466. Document B4, pp 105-112

467. Document s7, pp 55-58, 62-63

468. Buddy Mikaere, brief of evidence, 25 September 2006 (doc T9), p 3

469. Document T4, pp 10-11; doc 4.7, pp 120-21. We note that the councils have commissioned an independent report on the feasibility of land-based wastewater disposal. SmartGrowth, ‘Wastewater Investigations: Overview Report on Issue of Land Application Versus Ocean Discharge’, May 2003. This study concluded that land disposal systems in the Tauranga area carry increased environmental risks, and much higher financial costs.

environmental problems of its own.⁴⁷⁰ For example, a proposal to dispose sewage to land in Katikati was estimated in 1996 to cost each ratepayer $800 per year, $200 more than continued use of the Matakana outfall.⁴⁷¹

Equally, however, it is clearly very far from ideal that the consistently stated position of Tauranga Māori about a matter of profound cultural significance cannot be accommodated.

(2) Engagement in decision-making and planning

The claimants’ primary concerns were the perceived failings of authorities, under the Resource Management Act, to engage with Māori as decision-makers and active participants in environmental planning and management. Claimants repeatedly told us that their engagement in the planning process has been largely reactive, aimed at protecting their interests in the face of development pressure. They said their involvement was exhausting and expensive, but had little or no effect on outcomes.

Such disappointments partly stem from the fact that Māori expectations for the Act were very high. Antoine Coffin described the initial response to it as:

a huge sigh of relief amongst tangata whenua … [there were] great hopes and aspirations in terms of involvement and participation in resource management processes. Particularly with as a matter of national importance relationship of Maori with ancestral lands etc, in sections 7A and kaitiakitanga, seeing those Maori provisions there … I think there was certainly a high expectation that things would suddenly change.⁴⁷²

Such high expectations of immediate change were perhaps inevitably going to be disappointed. In the event, newly reconstituted councils in Tauranga struggled to come to terms with the complex requirements of the Act. The first district plan for the (then) Tauranga District Council prepared under the Act was an amalgam of transitional plans prepared by the Mount Maunganui Borough, Tauranga City Council and parts of Tauranga County Council; it was not notified until 1997, and did not become operative, following submissions and appeals, until 2003. Similarly, the Western Bay of Plenty district plan did not become operative until 2002.⁴⁷³ It is also clear to us that iwi and hapū, too, initially struggled to come to terms with their potential roles under the new legislation. We find these difficulties unsurprising, given the distinct lack of policy direction given to councils regarding how better to accommodate Māori aspirations and values under the new legislation, and the lack of funding from the Crown for iwi and hapū participation.

Tauranga Māori had limited involvement in the development of these initial district plans prepared under the Resource Management Act.⁴⁷⁴ According to Andrew Ralph, the

470. Document 4.7, pp 120-121; doc S7, pp 55-56

471. Document B4, p 118

472. Quoted in doc U5(a), p 29

473. Andrew John Ralph, brief of evidence, 28 September 2006 (doc T7), p 4

474. Ibid, pp 4-5

first plan for Tauranga ‘reflects the era in which it was prepared (mid 1990’s) … [and] can be described as fairly “laissez faire” – that is to say enabling development within a broad environmental management framework’.⁴⁷⁵ We do note that more recent plan changes, such as that for Wairākei, have involved Māori to a greater extent, and Māori values have shaped planning so that, for example, sightlines to Mauao and the Pāpāmoa hills are preserved.⁴⁷⁶

Nevertheless, in some especially key areas, councils have not succeeded in meeting Māori expectations, even in recent times. The claimants say councils still ignore the key provisions in the law for safeguarding their rangatiratanga. According to Keni Piahana, for example, Ngāi Te Ahi see section 33 of the Resource Management Act, allowing the transfer of powers to iwi, as ‘a direct way to model customary practice and balance the mutual benefits envisaged under shared citizenship’.⁴⁷⁷ However we were told that councils have never used this provision. We were also told that councils have been reluctant to operate any joint management regimes with iwi (since 2005 provided for under section 36 of the Act).

When, for example, management of Mauao was reviewed in 1995, Ngāi Te Rangi outlined to the Tauranga City Council the significance of the mountain to Tauranga Māori, and highlighted the importance of extending the Treaty principle of partnership to decisionmaking over this ancestral site. They proposed that representatives of Ngāi Te Rangi, Ngāti Ranginui, and Ngāti Pūkenga form a joint management board with Tauranga City Council and the Department of Conservation for the management of Mauao. In the draft revised Mauao management plan, council planners recommended to the council that this proposal be accepted. Yet the Tauranga City Council found this proposal unacceptable. According to Anthony Fisher, the council argued that other community groups could equally claim a right to representation.⁴⁷⁸

In 2008, after our hearings, Mauao was returned to Tauranga Māori by special legislation.⁴⁷⁹ All Tauranga iwi are now represented on the council’s Mauao project steering group that will have management oversight. However, Tauranga City Council retains overall management of Mauao; Tauranga Māori are yet to realise their aspirations for management of Mauao.

Elsewhere there are some small signs of movement towards Māori being included in management. For example, as discussed in chapter 6, we heard considerable evidence about the involvement of tangata whenua, at both governance and management levels, in the SmartGrowth strategy – the principal guide for long-term forward planning in the Tauranga area. The local authorities are to be commended for recognising the right of tangata whenua to play this role in shaping policy directions in their rohe over the next 50 years. We note

475. Document T7, p 5

476. Ibid, pp 6-7

477. Document G26, p 20

478. Anthony Fisher, brief of evidence, undated (doc R3), pp 18-20

479. Freehold title was vested in the Mauao Trust, which contains representatives of Ngāi Te Rangi, Ngāti Ranginui, and Ngāti Pūkenga, by the Mauao Historic Reserve Vesting Act 2008.

also that the recently established Pāpāmoa Hills Cultural Heritage Park (discussed in the next chapter) is owned by Environment Bay of Plenty, but managed jointly with Te Uepū, a caucus of tangata whenua, who share responsibility for the park’s governance.⁴⁸⁰

Aside from assuming a management function, close engagement with planning processes is potentially the most powerful means that the Crown has provided for Māori to exercise rangatiratanga in environmental management. Like all members of the public, Māori can participate in the development of district plans and policies by making submissions to the proposed district plan which governs all land-based development. But according to Antoine Coffin, tangata whenua input into plans has to date been ‘sporadic and reactionary’.⁴⁸¹ Though data is scarce, it seems clear that Tauranga Māori have had little input to plans as ordinary members of the community. Keni Piahana, of Ngāi Te Ahi, told us that in one case, individual Māori had contributed perhaps as few as four of over 300 annual plan submissions to Tauranga District Council.⁴⁸²

Iwi and hapū can also participate in environmental planning by developing their own planning documents, commonly known as iwi management plans. As noted, since 2003, local authorities have had a statutory obligation to ‘take into account’ these plans (previously they had only to ‘have regard to’ these plans).⁴⁸³ The courts have determined that the requirement to ‘take into account’ necessarily involves weighing the relevant factors being considered; effecting a balance between them appropriate to the circumstances; and being able to show that this has been done. In sum, council decisions must be demonstrably affected by the requirement to take account of iwi management plans.⁴⁸⁴

Tauranga iwi and hapū have produced a range of iwi management plans, largely in the late 1990s.⁴⁸⁵ At the time of our hearings, some groups, such as Ngā Pōtiki and Ngāti Ranginui, had not yet completed proposed iwi management plans. A measure of funding was provided to them for this purpose by, respectively, the Ministry for the Environment and the (then) Tauranga District Council.⁴⁸⁶ We did not hear how much this funding amounted to, but significant questions remained over whether iwi were sufficiently resourced to produce management plans, and whether these plans were being adequately taken into account by councils.

Te Pio Kawe, the tū pakari advisor to the Combined Tangata Whenua Forum on SmartGrowth, stressed the importance of iwi management plans and the need for councils to help fund them:

480. Environment Bay of Plenty, Papamoa Hills Regional Park Management Plan, Environmental Report 2006/18, July 2007, pp 1, 43

481. Document T23, para 12

482. Document G26, pp 15-16

483. Resource Management Act 1991, ss 61, 66, 74

484. Bleakley v Environmental Risk Management Authority [2001] 3 NZLR 213 at 235-236; Haddon v Auckland Regional Council [1994] NZRMA 49 at 61

485. Document S7, p 45

486. Ibid

In order to participate in these [planning] processes, the iwi themselves have to have their own plan in place. Having a plan comes down to funding. Therefore, the Council needs to commit some funding...^4β7

In 2004, the SmartGrowth strategy deemed the development of iwi and hapū management plans a high priority. It costed their development at $100,000 annually. It listed the tū pakari advisor as lead agency for their development, with all the local authorities and the Ministry for the Environment to be support agencies.⁴⁸⁸ Crucially, the SmartGrowth strategy also suggested that ‘[f]ollowing the formulation of hapu management plans, there may be opportunities to provide for direct involvement of tangata whenua in decision making … under section 33’.⁴⁸⁹ If, as this implies, councils consider iwi management plans to be prerequisites for tangata whenua to assume direct involvement in decision-making, then their significance to the exercise of rangatiratanga in environmental management cannot be overstated.

We are therefore encouraged by the recent release of Te Awanui Tauranga Harbour iwi management plan, jointly funded by Environment Bay of Plenty, the Western Bay of Plenty District Council, and the Ministry of Fisheries.⁴⁹⁰ This is an excellent example of what can be achieved when tangata whenua are properly resourced by central and local government to participate in environmental planning and management. This plan provides clear guidance on the values the harbour has for the iwi and hapū of Tauranga Māori, and their aspirations for its management.

This level of commitment to iwi and hapū management plans has not been consistently carried through in Tauranga Moana. Ken Tremaine, who coordinated the establishment of SmartGrowth for the councils, singled out the lack of iwi and hapū management plans as ‘a disappointing aspect of implementation’ on which ‘limited progress’ had been made in the strategy’s (then) two and a half year lifetime.⁴⁹¹

Funding for these plans remains an unresolved issue. Ken Tremaine indicated that the aim was always that tangata whenua actions would be funded from a number of sources. However, both the 2004 and the updated 2007 SmartGrowth strategies list only Environment Bay of Plenty as a funder for iwi management plans.⁴⁹² At the time of our hearings in 2006, Environment Bay of Plenty provided $30,000 annual funding for iwi to develop management plans.⁴⁹³ According to Paul Dell, this was generally split between

487. Ronald Te Pio Kawe, brief of evidence, 3 July 2006 (doc R65), p 24

488. SmartGrowth, 50-year Strategy and Implementation Plan, May 2004, p 86

489. Ibid

490. Te Awanui Tauranga Harbour iwi management plan 2008 (Mount Maunganui: Te Rūnanga o Ngāi Te Rangi, 2008)

491. Kenneth John Tremaine, brief of evidence, 29 September 2006 (doc T32), p 15

492. The Draft SmartGrowth Tangata Whenua Actions were appended to document T32, p 15. They were later adopted to become part of the Smart Growth, 50-year Strategy and Implementation Plan, May 2007. For iwi management plans see, in particular, p 98.

493. Document T3, p 8; transcript 4.5, p 37

three groups annually, each receiving $10,000.⁴⁹⁴ Tremaine indicated that Te Puni Kōkiri funding, which lapsed in 2005, had not been sufficient to fund iwi management plans.⁴⁹⁵ While Andrew Ralph said that Tauranga City Council definitely recognised the need for these plans, we heard no details on any intention to provide funds from this council or from the Western Bay of Plenty District Council.⁴⁹⁶ We are also concerned that the 2007 SmartGrowth strategy gives no estimated budget for developing iwi management plans, and indicates that the future approach for implementing tangata whenua actions will be to seek Government assistance.⁴⁹⁷ It is noted that ‘securing funding will be an ongoing challenge’.⁴⁹⁸ This funding must be found if SmartGrowth is to succeed as a partnership between central government, local authorities, and tangata whenua, as intended.

At the time of our hearings, only Ngāi Te Rangi and Ngāti Kāhu have seen their iwi management plans influence operative district plans (Ngāti Pūkenga and Pirirākau have also prepared plans, but subsequent to the district plan).⁴⁹⁹ Anthony Fisher played a significant part in preparing the Ngāi Te Rangi plan. He spoke of his iwi’s hopes that it would influence the review of Tauranga District Council’s first district plan in 1997. In their submission to the review, Ngāi Te Rangi pointed out that, while the district plan recorded the general obligation to protect the Māori relationship with their ancestral lands, there was very little information that ‘spelt out how to give practical effect to those obligations’.⁵⁰⁰ Anthony Fisher argued that the aspirations and practical suggestions that the iwi plan contained were not incorporated into the district plan, nor did the council subsequently engage more actively with Ngāi Te Rangi over resource management issues.⁵⁰¹ Paul Dell, giving evidence for Environment Bay of Plenty, told us that ‘processes are being put in place to formalise the use of those documents’.⁵⁰²

The potential power of iwi and hapū management plans to shape planning in Tauranga around tangata whenua needs is better shown by Ngāti Kāhu’s 1988 evaluation of their cultural heritage landscape. This document had a significant impact on planning in Tauranga. It helped Ngāti Kāhu to redirect the city’s expansion away from their ancestral lands at Wairoa, establish a papakāinga zone around their marae, and gain recognition for land-based sites of significance in the district plan.⁵⁰³ All sites significant to Ngāti Kāhu were linked by way of an ancestral origin with Ngā Mārama, the original inhabitants of Tauranga Moana. In this way sites were treated as part of ‘a heritage area and landscape where the

494. Transcript 4.5, p 37

495. Document T32, p 15

496. Document T7, p 11

497. Smart Growth, 50-year Strategy and Implementation Plan, May 2007, p 98

498. Ibid p 99

499. Document S7, pp 45-46

500. Document R3, pp 25-26

501. Ibid, pp 23-24

502. Document T3, p 12

503. Document T7, pp 5-6

relationship was ancestral, rather than as individual sites scattered in a landscape’. In the opinion of Desmond Kahotea, this helped avoid ‘the process of attrition that occurs with residential development, with [a] single site approach’.⁵⁰⁴ It is notable however that Tauranga City Council only commissioned this evaluation after Ngāti Kāhu successfully appealed proposals to urbanise their ancestral lands.⁵⁰⁵

However, Ngāti Kāhu have lingering concerns about their limited role in managing the Wairoa River where sites of significance still lack formal recognition.⁵⁰⁶ As previously noted, Ngāti Kāhu’s ancestral relationship with the Wairoa River is long-standing. In lieu of ownership over the river, it is important to Ngāti Kāhu that they at least play a significant part in its management. The midline of the river is the shared boundary of the Western Bay of Plenty District Council and Tauranga City Council. The two councils have produced a non-statutory strategic plan to guide management of the river. This plan recognises that, to Ngāti Kāhu, the ‘Wairoa River is a dominant part of [their] ancestral landscape’, and seeks to restore their kaitiaki role. It also acknowledges that Ngāti Kāhu believe they need to be involved at a ‘governance level’ in implementing the strategy. But, in reality, Ngāti Kāhu involvement is essentially limited to the development of a management plan and the documentation of significant sites. They remain only an ‘interested party’ to be consulted ‘at least yearly’ by the councils, who remain entirely responsible for managing the river.⁵⁰⁷ There is a significant gap between the current planning provisions for Ngāti Kāhu involvement and their desire for meaningful joint management arrangements over the river.⁵⁰⁸ Antoine Coffin summarised the hapū’s fear if the present planning situation persists:

We foresee a future of conflict between our aspirations to protect our special relationship with the river and environs and the activities of others … [causing] degradation of the environmental and cultural quality of the river. We foresee a future as the agitated outsider.⁵⁰⁹

Perhaps more than any other hapü in Tauranga Moana, Ngāti Kāhu have actively engaged with local authority processes, and succeeded in shaping the planning that will largely determine the fate of their ancestral landscapes; yet if even they foresee a future as ‘agitated outsider[s]’, then the likelihood that the other hapū of Tauranga Moana will be able to exercise their rightful role as kaitiaki of their ancestral taonga must be doubtful. This remains a matter of great concern to us.

504. Document T18, p 13

505. Document S7, pp 49-50

506. Document R23(a), pp 6-7

507. Wairoa River Valley strategy, pp 13, 33, 39

508. Document R23(a), p 8

509. Ibid

(3) Resource consent challenges

As these comments suggest, Tauranga Māori have already spent considerable time and energy attempting to prevent ill-considered development of their ancestral landscapes. Primarily this has been by opposing resource consent decisions.⁵¹⁰ Hinenui Cooper, Ngā Pōtiki kaitiaki kaiwhakahaere, described the work of her hapū’s resource management unit:

The main work of the RMU [resource management unit] is to respond to the never ending stream of resource consent applications … [we get] between 200 and 230 consent applications each year … In addition to making determinations on each of the resource consents that come through, we also have to find the time and resources to make submissions to the constant barrage of district, regional and national policy changes and plans and subsequent hearings, if any....

The consent applications we receive vary from creating one new lot for residential housing through to creating full scale subdivision, large commercial and industrial developments and Wastewater Consents. In the past seven years we have made determinations on everything that has been built in and around our ‘Rohe’ outside the scope of a ‘permitted activity’, which we are not informed about....

Depending on the size and nature of the application, it might be possible to make a determination on an application after just one meeting, but a consent application with far reaching effects could go on for many years.⁵¹¹

Mrs Cooper stated that the resource management unit opposed all applications for resource consent, on the basis that each had the potential to detrimentally affect the Ngā Pōtiki environment. Of ‘at least 600’ consents they had opposed, she could think of only two that were subsequently declined because of the hapū’s objections. Disheartened by its lack of influence, she told us, the unit no longer provides detailed submissions, and it declines invitations to speak to its submissions as it regards that activity as ‘a waste of our time, effort, and energy’.⁵¹² Similarly, Frank Harawira, of Ngāti Hangarau, described being ‘inundated’ with resource consents, plan, and policy issues and said his hapū ‘just can’t deal with every issue’.⁵¹³ Maru Tapsell, too, told the Tribunal that:

to be involved in local government processes we need to be attending council meetings, consulting with developers over resource consent applications, opposing inappropriate development, monitoring development sites and so on. It is really difficult for people who work to spare the time for these things so it falls on two or three of us who do not have paid

510. Document S7, pp 66-67

511. Document R28, pp 5-7

512. Ibid, pp 9-10

513. Frank Te Werahiko Harawira, brief of evidence, 5 July 2006 (doc R66), p 6

employment to do the running. The time involved can be up to 70 to 80 hours a week and is essentially a labour of love.⁵¹⁴

At the time he gave evidence, Mr Tapsell was on the Western Bay of Plenty District Councils Māori Forum representing Ngāti Whakaue and on Tauranga City Councils Tangata Whenua Collective representing Waitaha. He was also a member of the SmartGrowth Implementation Committee and involved in SmartGrowth projects including wastewater, water, regional parks, stormwater, the sewerage pipeline, Harbourlink, and the Pāpāmoa East Development Parts 1 and 2.

Tauranga Māori have made 32 appeals over resource management issues to the Planning Tribunal and Environment Court. Almost all have been filed in opposition to the granting of resource consents, rather than to plans.⁵'⁵ Eddie Bluegum, reflecting on his experience of working on a resource consent challenge that went to the High Court, told us that:

the actual Resource Management processes in practice mean a regional council decisionmaker under the RMA is virtually beyond Maori challenge … Actual costs, and weak litigation ability, in my submission limit Maori ability to apply for recognition of [RMA sections 6, 7 and 8], especially when the opposition is well funded. I am aware that the cost of litigation may be covered by legal aid; however the costs which fall in civil hearings are subject to repayment by the recipient party; with the burden often falling on one tribal member. I feel this will be an unfair burden on Maori and could restrict Maori participation in the process, and ultimately could result in further land alienation.⁵¹⁶

Costs involved in challenging planning decisions include legal representation, and often archaeological or scientific reports. Unable to raise the necessary funds, some hapū have taken cases without legal assistance, or have filed appeals that are late or unsupported by evidence. Unsurprisingly, the results have generally been unsatisfactory from the point of view of Tauranga Māori.⁵¹⁷ Te Awanuiarangi Blacks diagnosis is that:

Many of our people here in Tauranga are ‘punch drunk’ … from the sheer number of times that we get knocked down when we engage in official processes concerning resource management issues …⁵¹⁸

Several claimants with considerable experience in the resource management field stressed the need for iwi resource management units to be provided with access to funding and expertise.⁵¹⁹

514. Maru Tapsell, evidence, 27 September 2006 (doc S33), p 7

515. Document S7, pp 47, 67

516. Document R8, p 10

517. Document U31, p 45; doc U5(a), p 28; doc S7, p 49

518. Document R45, p 16

519. Document S7, p 67; doc R65, pp 23-24; doc R45, p 17

7.6.3 Some encouraging signs: Ngā Pāpaka o Rangataua

Before making our conclusions on the current regime, we think it useful to record evidence presented to us which revealed a few more encouraging signs of some hapū building the capacity to act as kaitiaki and express their rangatiratanga. We see this as an initiative worthy of being widely emulated, and one which ought to be fostered by the Crown, and by councils seeking not only ways to fulfil their Treaty and statutory obligations, but also much needed help in their task of caring for the environment of Tauranga Moana.

The group Ngā Pāpaka o Rangataua comprises a number of hapū, including Ngāti Hē, Ngā Pōtiki, Ngāti Pūkenga, Ngāi Tūkairangi, Ngāti Ruahine, and Ngāi Te Ahi, who got together in 1999 after a hui at Maungatapu Marae, called to deal with the issues that had arisen out of the local councils’ approach to consultation with tangata whenua under the Resource Management Act.⁵²⁰ According to Desmond Heke Kaiawha, of Ngāti Hē, the group ‘is a current model where Hapu exercise our Rangatiratanga to address holistic environmental issues’.⁵²¹ The group’s vision is to restore Te Tāhuna o Rangataua, using the kaupapa of kaitiakitanga. It has formed a partnership with NIWA and the New Zealand Landcare Trust to gain data on water quality, aquatic life, land use, and the state of riparian margins in and around Rangataua and the rivers and streams issuing into it. Tangata whenua thereby gain training in collating and analysing data, and a sophisticated scientific understanding of the environment and what impacts on it.⁵²² Thomas Cooper has been appointed kaitiaki of the Waitao, the largest river entering Rangataua, and whānau from the various hapū are working with the wider community to restore the river. Among the group’s successes is to use their data to force improvement of consent conditions regarding the release of storm-water from the Kaitimako quarry.⁵²³ They propose expanding monitoring further throughout Tauranga Moana.

Desmond Heke Kaiawha suggested to us that this was an example of an approach that allowed Māori to exercise collective rangatiratanga over their lands, while still allowing individual land owners to maintain their use rights.⁵²⁴ In particular, he argued, if such a group could gain legal standing, it might be mandated to negotiate with local government on matters affecting the environment. We see this as a valuable suggestion. Indeed, we note that according to Hinenui Cooper, of Ngā Pōtiki, their ultimate intent is to gain, under the Resource Management Act section 33, a transfer of regulatory powers.⁵²⁵

520. Document R34, para 8

521. Ibid, para 7

522. Document R28, pp 15-16

523. Ibid, pp 17-18

524. Document R34(a), p 4

525. Ibid, pp 7-8

7.6.4 Conclusions

Even though the Resource Management Act is universally acknowledged as a significant improvement on previous laws, the claimants’ evidence point to several areas of ongoing concern. For several reasons, the Act’s provisions that enable Māori to exercise rangatiratanga and act as kaitiaki in environmental management have not yet been properly realised in practice. Councils have been slow to come to terms with the Act’s requirements to engage with Māori in their planning processes. At present, the most potentially potent provisions in the Act for the exercise of Māori rangatiratanga are those relating to the transfer, delegation, or sharing of powers; however, councils in the region have made only very small and tentative steps towards sharing powers. Iwi management plans can also now be a powerful tool, but neither central nor local government has properly resourced such plans, and (at least initially), they had very little statutory weight.

Instead of being involved in decision making and engaging in the preparation of plans, Tauranga Māori have expended considerable effort on fighting resource consents. This is a costly and ineffective way to try and shape planning processes, and as a result many Tauranga Māori have become extremely frustrated. The capacity of Tauranga Māori to participate in environmental management as kaitiaki is badly compromised by a lack of resources. Further, their largely unsuccessful battles show that the values of Tauranga Māori, particularly those of a spiritual nature, are not well understood by the general public or local authorities, and are often given little weight in their planning processes.

There is tremendous and largely untapped potential for Tauranga Māori to play a much greater role as kaitiaki over the environments of Tauranga Moana, and to help restore their ancestral landscapes and the taonga of their waterways. Realising their desire to be kaitiaki will require much more constructive working relationships to be forged between tangata whenua, councils, and the wider community. There is considerable scope for such relationships under current legislation; what is required is a greater willingness to realise the enormous potential benefits from Māori involvement.

7.7 THE SUBMISSIONS OF THE PARTIES

This section summarises the arguments made in legal submissions by the claimants and the Crown. We also summarise the arguments of the combined submission of the three affected local bodies.

7.7.1 Claimant submissions

Generic opening submissions were made on land-based environmental issues and customary fishing, and on environmental issues relating to water and cultural heritage. In closing, the claimants made additional generic submissions on matters relating to rivers, harbours, and the foreshore and seabed.⁵²⁶ Counsel for Ngāi Te Rangi presented generic closing submissions on environmental issues, and argued that ‘environmental planning and management is probably the most important of the stage 2 issues and the other issues flow from this’.⁵²⁷ Counsel emphasised that all but two claims pleaded environmental issues as part of their claim, and argued that for many claimants these were their ‘most significant and current grievances’.⁵²⁸

Taken overall, the closing submissions of claimant counsel were that:

► The raupatu by the Crown left Tauranga Māori vulnerable and needing protection for their rangatiratanga.⁵²⁹ The Privy Council has found that in these circumstances, the Crown has an increased responsibility.⁵³⁰ The Crown’s fiduciary duty to recognise and protect the rangatiratanga of Tauranga Māori over their natural environment and its resources was therefore heightened in the wake of the raupatu.

► In judging the Crown’s conduct, the Tribunal is not being asked to apply present-day perspectives to another historical period. It is rather asked to ‘review the Crowns conduct based on the Treaty exchange recorded in 1840’.⁵³¹ The standard against which the Crown’s conduct must be considered is the common intention of the Treaty, namely to provide for two peoples living in this country with mutual respect and to mutual advantage, which required a balancing of interests and compromise on both sides.⁵³²

► The Crown has breached the Treaty principles of reciprocity and active protection, by failing to make any provision or protection for Tauranga Māori to exercise rangatiratanga and kaitiakitanga over their lands, waters, resources, and taonga.⁵³³ Instead the Crown has ‘assumed control of all resources and failed to provide Maori with any adequate role in relation to those resources.’⁵³⁴ Particular failures include not acknowledging the kaitiaki role that Tauranga Māori might play in management of reserves,

526. Claimant counsel, opening submissions: environmental issues relating to water and cultural heritage, 4 July 2006 (doc R61); doc R64; doc U18

527. Document U31, p 22

528. Ibid

529. Ibid, pp 9-10