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As old Father Thames is to the Londoner
As the Ganges is sacred to the Indian
As the Jordan is spiritual to the Palestines
So is the Mohaka all these things to Ngati Pahauwera
—Ramon Joe

The Mohaka River Report 1992 was the first report concerning Ngati Kahungunu and the East Coast. It was also one of the first of the Waitangi Tribunal’s ‘rivers reports’. The claim concerned the tino rangatiratanga of Ngāti Pahauwera over the Mohaka River and was brought by the late Ariel Aranui, for himself and on behalf of Ngāti Pahauwera, in January 1990. The claimants said that their tino rangatiratanga over the river, as confirmed and guaranteed in article 2 of the Treaty of Waitangi, had never been relinquished.

The word rangatiratanga is one which Ngati Pahauwera favours. That is the mana, the essential force, that they speak of in respect of their river. That is the spirit of them all and the power, essential force and awe. Their rangatiratanga is the Mohaka River.
—Charlie King

Rangatiratanga of a river as a ‘spiritual, subsistence’ and economic base can be a tremendous heritage and resource. This would have continued for Ngati Pahauwera if the Treaty and its promises had been honoured. However … Government neglect of Maori Sovereignty in terms of Article 2 occurred.

If our rangatiratanga over the river is recognised … we will be able to sustain our life and begin to rebuild a corporate resource base and offer real hope for the development of Ngati Pahauwera people today and for future generations.
—Tureti Moxon

The river claim formed part of a wider claim relating to tribal lands in Hawke’s Bay and Wairarapa. In November 1991, it was severed from that wider claim and accorded urgency by the Tribunal at the request of the claimants because the Planning Tribunal had recommended to the Minister for the Environment that a national water conservation order be placed over the river. The claimants alleged that the making of such an order without their consent would usurp their rangatiratanga and be a breach of the principles of the Treaty.

We always talk about our river, the control of it, and its spirituality. These are the waters of sustenance.

Even though administration of the river and the land has passed into pakeha hands, we retain the control. It is in these treasures (ie the land and the river) that rests the mana. This is what we are fighting for. We know that this is where our salvation is. The control of the river has been our mana from way back. It came from our ancestors and down through the generations.
—Canon Huata

Ngāti Pahauwera’s claim related to the lower reaches of the Mohaka, and they claimed that the river, including its waters, bed, and fisheries, was a taonga of theirs. In particular, they placed great emphasis on the role that the river played in their tribal identity.

The river is a taonga that we as kaitiaki know we have to preserve. Our ancestors taught us to respect the river and if we respected the river, the river looked after us. If the river is desecrated, it will affect the very deep beliefs we have about the river. That is our Taniwha, the life force of the river, our respect for the river.
—Derek Huata

Ngati Pahauwera is at the beginning of the river, at the river mouth here and out to sea. To us, those who stand on the marae, that is the spirit which is upon us. Our sacred mountain, the river of Mohaka, Ngati Pahauwera are the people.

The spirituality of the river, the mana, the sacredness and the authority relates to Ngati Pahauwera solely. The life of the river we do not want interfered with, lest it be lost. It must be left to flow onward, in the way that it did in the days of the elders. If they were here they would be at the river as it flows onward.
—Charlie King

The Mohaka River Tribunal comprised Bill Wilson (presiding), Bishop Manuhuia Bennett, Mary Boyd, Dr Ngapare Hopa, and Georgina Te Heuheu, and hearings were held in Wellington, Mohaka, and Napier between April and June of 1992. There, the claimants argued that the Crown, through legislation (in particular, the Water and Soil Conservation Act 1967), had failed to recognise and give effect to their rangatiratanga over the Mohaka River. They claimed that this legislation was inconsistent with the principles of the Treaty because it failed to recognise tribal authority and to provide appropriate mechanisms for its exercise. The claimants sought a finding that the relevant statutes failed to provide for rangatiratanga, in breach of the Crown’s Treaty obligations, and that new forms of authority for regulating the use of waters and other natural resources should be devised.

The Tribunal released its report in November 1992. In it, the Tribunal found that the Crown’s obligation to protect Māori property to the fullest extent reasonably practicable was crucial to the claim and that, far from doing this, the Crown had actively undermined that interest by promoting legislation and adopting practices which had given little or no recognition to the position of Ngāti Pahauwera. The Tribunal reached the conclusion that the Mohaka River was a taonga of Ngāti Pahauwera when the Treaty was signed and still remained so. Ngāti Pahauwera did not relinquish te tino rangatiratanga over the river, or transfer ownership of its bed or waters. All statutory provisions which assumed that the Crown owned the riverbed and waters, or which conferred exclusive control over the waters on central or local government, were in breach of the Treaty.

We urge Ngati Pahauwera and the Crown, as treaty partners, to enter negotiations as soon as possible as to our recommendations. We are confident that the outcome of such discussions will be an agreement which recognises the legitimate interests in the river of both Ngati Pahauwera and the other citizens of this country and which demonstrates the Treaty of Waitangi can be made to work in a sensible and realistic way in its application to a beautiful river which is both an undoubted taonga of Ngati Pahauwera and a great asset to the country as a whole.
—The Waitangi Tribunal

In reaching its findings, the Tribunal had traversed the issue of the ad medium filum aquae rule, a common-law presumption that would also be argued in other river claims. Ad medium filum aquae holds that the ownership of land adjoining a non-tidal river also includes the ownership of the bed of the river to its mid point. Thus, if the bank of the river is sold, that portion of the riverbed is also sold. The Tribunal distinguished the present claim from the 1962 Court of Appeal decision in Re the Bed of the Whanganui River, and found that the presumption did not apply in this case because the parties to the sale deed would not have intended that the purchase of the land would carry with it the ownership of the adjacent half of the Mohaka riverbed:

In any event the Crown was not entitled to rely on the ad medium filum aquae rule, an English common law presumption which would have been known to few if any settlers in this country in 1851. To rely on such an esoteric rule to acquire a taonga of Ngati Pahauwera without their knowledge would we think have been clearly unjust and in breach of article 2 of the Treaty.

 

The quantification of property loss, personal injury, social impairment, and forfeited development opportunities may assist the consideration of comparative equities between claimant groups, but it is not necessarily determinative of the measures appropriate for relief in any one case today. As we consider further at the end of this report, in resolving historical claims a pay-off for the past, even if that were possible, may not be as important as the strategies required to ensure a better future.
—The Waitangi Tribunal

When The Taranaki Report: Kaupapa Tuatahi was released in 1996, it was hailed by many as one of the Tribunal's most important reports. Indeed, the Minister in Charge of Treaty of Waitangi Negotiations at the time, the Honourable Doug Graham, urged all New Zealanders to read it. The report dealt with 21 claims concerning the Taranaki district and canvassed the land wars and confiscations in the area, as well as the story of Parihaka.

The Tribunal constituted to hear the claims was made up of Chief Judge Eddie Durie (presiding), Bishop Manuhuia Bennett, Emarina Manuel, Professor Gordon Orr, and Professor Keith Sorrenson. Twelve hearings were held between September 1990 and June 1995, and the report was presented to the Minister of Maori Affairs and the claimants on 11 June 1996.

The Taranaki claims could be the largest in the country. There may be no others where as many Treaty breaches had equivalent force and effect over a comparable time. 'For the Taranaki hapu, conflict and struggle have been present since the first European settlement in 1841. There has been continuing expropriation by various means from purchase assertions to confiscation after war. In this context, the war itself is not the main grievance. The pain of war can soften over time. Nor is land the sole concern. The real issue is the relationship between Maori and the Government. It is today, as it has been for 155 years, the central problem.
—The Waitangi Tribunal

The complaints stemmed from land confiscations that took place during the 1860s wars, which began in Taranaki before extending elsewhere. In fact, armed initiatives did not cease in the region for an unparalleled nine years, and the Tribunal commented on the effect that this had on local Maori:

If war is the absence of peace, the war has never ended in Taranaki, because that essential prerequisite for peace among peoples, that each should be able to live with dignity on their own lands, is still absent and the protest over land rights continues to be made.

The confiscations came with an undertaking that the lands necessary for hapu survival would be returned without delay, but the Tribunal found that this promise was not maintained. Instead, many hapu were left with nothing of their own to live on and became squatters on Crown land:

Taranaki Maori were dispossessed of their land, leadership, means of livelihood, personal freedom, and social structure and values. As Maori, they were denied their rights of autonomy, and as British subjects, their civil rights were removed. For decades, they were subjected to sustained attacks on their property and persons.

The Tribunal thus saw disempowerment as the main foundation of the claims:

By ‘disempowerment’, we mean the denigration and destruction of Maori autonomy or self-government. Extensive land loss and debilitating land reform would likely have been contained had Maori autonomy and authority been respected, as the Treaty required. Maori autonomy is pivotal to the Treaty and to the partnership concept it entails.

As Sir William Martin, our first Chief Justice, said, when opposing land confiscation in 1864:

The example of Ireland may satisfy us how little is to be effected towards the quieting of a country by the confiscation of private land … how the claim of the dispossessed owner is remembered from generation to generation and how the brooding sense of wrong breaks out from time to time in fresh disturbance and crime.

The Tribunal considered that an endowment that provided adequately for tribal autonomy in the future was what was important, not payments for individual benefit. While the Tribunal thought that, based on legal principles, some billions of dollars were probably owed for the land, leaving aside exemplary damages or compensation for loss of rents and the devaluation of annuities, it accepted that such a quantum of damages would not be possible and recommended only that generous reparation be made:

the settlement of historical claims is not to pay off for the past, even were that possible, but to take those steps necessary to remove outstanding prejudice and prevent similar prejudice from arising; for the only practical settlement between peoples is one that achieves a reconciliation in fact.

Released in 2003, Te Whanganui a Tara me ona Takiwa: Report on the Wellington District is a report on 13 claims relating to the area covered by the New Zealand Company’s 1839 Port Nicholson deed of purchase, as extended in 1844 to the southwest coast. The inquiry area consists of the takiwa (district, or environs) of Te Whanganui a Tara (Wellington Harbour or Port Nicholson), including Wellington city and the Hutt Valley. The report deals with the complex process by which this land was acquired from Māori, and with issues relating to the administration and alienation of Māori reserves in the inquiry area.

The Tribunal originally constituted to hear the claims consisted of Bill Wilson (presiding), Professor Gordon Orr, and Georgina Te Heuheu, with Bishop Manuhuia Bennett joining the Tribunal shortly after the inquiry began, but Mr Wilson and Mrs Te Heuheu subsequently resigned from the Tribunal. As a result of these resignations, Professor Keith Sorrenson and John Clarke were added to the Tribunal, and Professor Orr took over as presiding officer. The claims were heard between 1991 and 1999. Sadly, Bishop Bennett died at the end of 2001, before the report was ready for release.

The Tribunal found that the 1839 deed by which the New Zealand Company purported to have purchased the Port Nicholson block was invalid, conferring no rights on the company or its settlers. However, from 1840, company settlers began arriving at Port Nicholson, and quickly came into conflict with local Māori, who discovered that land which they occupied and cultivated had been sold to settlers. Despite an investigation by a Crown-appointed land claims commissioner, which revealed many of the deficiencies in the company’s supposed purchase, the Crown agreed to a process whereby Māori would release their interests in 67,000 acres of land to the company in exchange for £1500 ‘compensation’. The Tribunal found that this process was deeply flawed, and was carried out without the informed consent of Maori .

Furthermore, in 1848 a Crown grant was issued to the company covering not just the 67,000 acres but the whole of the Port Nicholson block, said to contain around 209,000 acres. Māori retained only some 20,000 acres of reserves. This Crown grant deprived Māori of roughly 120,000 acres which they had never sold or consented to give up, and the Tribunal found this to be in breach of their Treaty rights.

Another issue covered in the report is the conflict over Heretaunga (the Hutt Valley). In the early 1840s, parts of Heretaunga were occupied by Ngāti Rangatahi and Ngāti Tama, who had close ties with Ngāti Toa of the Porirua area. Crown officials did not recognise the rights of Ngāti Rangatahi and Ngāti Tama in Heretaunga, where they were living on land claimed by the New Zealand Company and its settlers. Both groups were pressured into leaving the valley by Governor Grey in 1846, Ngāti Rangatahi leaving only under threat of attack by Crown forces. The Tribunal found that the Crown failed to recognise or protect the interests of Ngāti Rangatahi and Ngāti Tama, who were required to surrender their land without their free consent, and who received either inadequate compensation or, in Ngāti Rangatahi’s case, no compensation. In addition, the Tribunal found that the Crown failed adequately to recognise Ngāti Toa’s interests in the Port Nicholson block.

The report also deals with Māori reserves in Wellington. Part of the New Zealand Company’s original plan for the settlement of Port Nicholson was that a tenth of the land acquired by the company would be set aside as native reserves, which came to be known as ‘tenths’. The Crown subsequently assumed responsibility for these tenths reserves. Another category of reserves (known as ‘McCleverty reserves’ after the Crown official who set them aside for Māori) was placed under the direct control of Māori owners, and the bulk of the McCleverty reserves were later either sold or taken for public works. The tenths reserves, however, were administered by Government officials on behalf of the Wellington Māori who were the beneficial owners of these reserves. In 1851 and 1853, the Crown appropriated 23 acres of valuable urban tenths land as endowments for hospital, educational, and religious purposes. The Māori beneficial owners did not consent to these appropriations, received little benefit from the endowments, were not compensated until 1877, and even then received only inadequate compensation. The Tribunal found that these appropriations were in breach of Treaty principles.

For most of the twentieth century, the tenths reserves were placed under perpetually-renewable leases for 21-year terms, a system which effectively alienated this land from its Māori beneficial owners in perpetuity. Furthermore, the beneficial owners received below-market rents due to the setting of rents at a fixed percentage of the value of the land at the start of the 21-year term. This meant that rent could rise to reflect increased land values only once every 21 years. The legislation which imposed the perpetual leasing regime, without the consent of the Māori beneficial owners of the reserves, was found by the Tribunal to be in breach of the Treaty.

Other matters discussed in the report include the taking by the Crown of land for the town belt and other public reserves without the consent of, or payment to, Māori; the creation of reserves in Palmerston North for some Wellington Māori, to replace tenths reserves in Wellington which had been sold by the Crown; the taking of Māori reserved land for public works purposes; and issues relating to the management of Wellington harbour, including the reclamation of much of the harbour foreshore.

The Tribunal concluded that serious breaches of the Treaty by the Crown occurred in the Port Nicholson block, and that these Treaty breaches affected Te Atiawa, Ngāti Toa, Ngāti Tama, Ngāti Rangatahi, Taranaki, and Ngāti Ruanui. It recommended that representatives of these groups enter negotiations with the Crown to settle these Treaty grievances.

Rarely has a Māori river claim been so persistently maintained as that of the Whanganui people. Uniquely in the annals of Māori settlement, the country’s longest navigable river is home to just one iwi, the Atihau-a-Paparangi. It has been described as the aortic artery, the central bloodline of that one heart.

The Atihau-a-Paparangi claim to the authority of the river has continued unabated from when it was first put into question. The tribal concern is evidenced by numerous petitions to Parliament from 1887. In addition, legal proceedings were commenced as early as 1938, in the Māori Land Court, on an application for the investigation of the title to the riverbed. From there the action passed to the Māori Appellate Court in 1944, the Māori Land Court again in 1945, the Supreme Court in 1949, to a further petition and the appointment of a Royal Commission in 1950, to a reference to the Court of Appeal in 1953, to a reference to the Māori Appellate Court in 1958 and to a decision of the Court of Appeal in 1962. This may represent one of the longest set of legal proceedings in Māori claims history, yet in all those proceedings, it is claimed, the principles of the Treaty of Waitangi had no direct bearing. Nor did the matter rest there for the court hearings were followed by further petitions and investigations, and in more recent times, Atihau-a-Paparangi were again involved in the Catchment Board inquiry on minimum river flows in 1988 and in the Planning Tribunal and High Court hearings on the same matter in 1989, 1990 and 1992.

Claim Wai 176 was lodged with the Tribunal in early 1991 by Huirangi Waikerepuru and Graham Latimer. The claimants alleged Treaty breaches by the Crown in its broadcasting policies, and they sought, inter alia, that the Broadcasting Act 1989 and the Radiocommunications Act 1989 be amended to ensure that Maori, their language, and their culture had a secure place in broadcasting in New Zealand.

In its report of 22 July 1994, signed by Chief Judge Eddie Durie, the Tribunal noted that many of the issues raised had been canvassed in earlier reports (the Report on the Te Reo Maori Claim and the Report on Claims Concerning the Allocation of Radio Frequencies) and in the general courts, and accordingly it was to make no further inquiry into the claim.

The Tribunal's Mohaka ki Ahuriri Report was released on Saturday 5 June 2004. It covers 20 Hawke's Bay claims spanning a district bounded by the Tutaekuri River to the south, Hawke Bay to the east, the Waiau River to the north, and the inland ranges and the old Hawke's Bay provincial boundary to the west. The claimants were predominantly Ngati Kahungunu, although some identified more or equally with Ngati Tuwharetoa.

In summary, the claims concerned Māori land in two broad ways. First, they related to the loss of land through pre-1865 Crown purchases, the operation from 1865 of the Native Land Court, the 1867 Mohaka–Waikare confiscation, and later Crown purchasing (mainly conducted from 1910 to 1930). Secondly, they related to the barriers to the use and enjoyment of lands retained in Māori ownership, including title disruption, the lack of development opportunities, the fragmentation and multiple ownership of tiny parcels, and the lack of access.

In particular, the Tribunal investigated:

The status of the first land transactions with the Crown in the district in 1851, which the claimants asserted to be akin to ‘treaties’. Whether a supposed ‘rebellion’ justified the military engagements in 1866 and the confiscation in 1867. The propriety of the Crown’s handling of both the ‘return’ of certain lands after the confiscation and the title disputes which followed for over 80 years. The point at which the Crown should have stopped purchasing Māori land and put its effort into helping develop the remaining Māori land base; and whether there is a link between poverty and landlessness.

The Tribunal found a number of serious breaches relating to land loss and remaining Māori land base:

Overall, we have identified serious breaches of the principles of the Treaty of Waitangi by the Crown in the loss of Māori land in our inquiry district. We have also found that the Crown acted in clear breach of the Treaty in its treatment of the remaining Māori land base. We have also made the point that by far the bulk of that surviving base (some 125,000 acres out of a total of roughly 800,000) remains in Māori ownership principally because it was viewed by the Crown as too rugged and unproductive to bother purchasing.

Of particular note was the Crown's use of section 363 of the Native Land Act in 1910, alienating Māori land ownership:

from 1911 the Crown persisted over two decades in buying up individual interests in land, more than halving the amount of land left in Māori ownership at Mohaka in 1910. It adopted the usual tactics of employing alienation restrictions under section 363 of the Native Land Act 1909, as well as making payments on the basis of out-of-date valuations. This purchasing not only conflicted with the Stout–Ngata recommendations but seemed to serve no clear purpose. And, because the Crown had acquired so many partial interests, scattered throughout the various blocks, it decided upon a scheme to consolidate its interests. Even after this decision was made, however, purchasing continued unabated – in fact, the impetus for it increased, as the Crown tried to gain as much land as it could in the northern part of the Mohaka block, where the blackberry infestation was less, before the exchanges took place.

The Tribunal recommended that the Crown and the claimants negotiate over the settlements of the claims, and it made some suggestions as to the appropriate groups for the Crown to deal with. It also noted that Crown counsel had made a number of concessions of failings by the Crown to live up to the standards envisaged in the Treaty.

In 1990, the Tamaki Maori Development Authority lodged a claim with the Tribunal alleging that the Crown’s actions in delaying the authority’s review proceedings against the former Department of Māori Affairs were a denial of the rights of due process secured to Māori under the Treaty of Waitangi.

The Tribunal decided not to inquire further into the claim because there was an adequate remedy for the matters complained of within the general courts.

The water from the puna wai [water of the spring] of a whanau is considered a taonga to that whanau as it carries the Mauri [life force] of that particular whanau. Of course all the waters of the puna wai find their way into the river and thereby join with the Mauri of the river. In essence then the very spiritual being of every whanau is party of the river … In this sense the river is more than a taonga; it is the people themselves.

Wiremu McAuley

Claim Wai 212 concerned the mana and tino rangatiratanga of the hapu of Te Ika Whenua over the Rangitaiki, Wheao, and Whirinaki Rivers and their tributaries. It built on the Te Ika Whenua energy assets claim and, like that claim, was severed from Te Ika Whenua’s original claim and accorded urgency by the Tribunal.

The claim was brought in the name of Hohepa Waiti and Kini Porima, as the chairman and secretary of Te Runanganui o Te Ika Whenua Incorporated Society, on behalf of themselves and the hapu represented by Te Ika Whenua.

The Tribunal constituted to hear the Te Ika Whenua rivers claim comprised Judge Glendyn Carter, Bishop Manuhuia Bennett, Mary Boyd, and Georgina Te Heuheu, though Ms Te Heuheu resigned from the Tribunal following her appointment as a list candidate for the National Party in September 1996. The first hearing was held at Tipapa Marae in Murupara in early November 1993, the second hearing at the Maori Land Court in Rotorua in late August 1994, and the third and final hearing at Painoaiho Marae in Murupara in mid-October 1994.

The Tribunal heard how the rivers served as a vitally important food source and means of transport and communication, and how they were essential for Te Ika Whenua’s spiritual and cultural well-being. Claimant evidence ‘clearly established’ that the middle reaches of the Rangitaiki and the Whirinaki and Wheao Rivers were a taonga over which the hapu of Te Ika Whenua had mana and rangatiratanga.

The Tribunal also heard of the effect that hydro schemes had had on the resident eel population and the flow of the rivers.

Maori anger is mounting over development on the Rangitaiki River that has seriously depleted eel populations in the Murupara District … Below the Te Mahoe dam, eel populations are building up. But in the quiet Ikawhenua Range country, the river’s birth place, Maoris are concerned that one of their traditional foods is disappearing.

Moves to press the Internal Affairs Department into building a run-off or race for eels so they might ‘climb’ over the dam have been turned-down because of high costs.

The Rotorua Daily Post

one of the greatest tragedies of the diversion of the Rangitaiki and the Wheao ‘blowout’ was that all the beautiful little pools of clear water that made the Wheao one of the greatest trout fishing rivers in the world, as well as a great place for tuna, were wiped out. The Wheao they had known, the lands on which they had lived for weeks and what used to be a great place for mahinga kai were all gone.

The Waitangi Tribunal

Like the Mohaka River Tribunal before it, the Ika Whenua rivers Tribunal considered the application of the common law rule ad medium filum aquae, which assumes that the owner of land bordering a non-navigable river owns the adjacent riverbed to the middle line. According to the Tribunal, this rule conflicted with the Maori view of ownership, and in the Tribunal’s view, it was ‘inescapable’ that the application of this rule was a major factor in Te Ika Whenua’s loss of title and tino rangatiratanga over their rivers.

Clearly, the customary and Treaty rights of rangatira and hapu and tangata katoa (all the people) of Te Ika Whenua are part of their tino rangatiratanga and are in conflict with Crown assertions on the ownership of rivers by virtue of statute or common law. Claimant evidence shows that rivers were and still are a taonga that provides material and spiritual sustenance and a strong continuing bond. The people belong to the river and the river belongs to the people.

The Waitangi Tribunal

In its report, released in September 1998, The Tribunal found that Te Ika Whenua held a proprietary interest akin to ownership of the rivers as at 1840 in that they had full and unrestricted use and control of the waters thereof while they were in their rohe. That right or interest was property guaranteed protection under article 2 of the Treaty and Te Ika Whenua were entitled to have had conferred on them in 1840 a proprietary interest in the rivers that could be practically encapsulated within the legal notion of the ownership of the waters.

The Tribunal also made a number of recommendations to the Crown relating to the recognition of Te Ika Whenua’s residual rights in the rivers, the management and control of the rivers, the vesting of certain parts of the riverbeds in the claimants, and the compensation owed to them for the loss of title resulting from the application of the ad medium filum aquae rule.

Claim Wai 212 concerned the mana and tino rangatiratanga of the hapu of Te Ika Whenua over the Rangitaiki, Wheao, and Whirinaki Rivers and their tributaries under article 2 of the Treaty by permitting the Bay of Plenty Electric Power Board and the Rotorua Area Electricity Authority to erect the Aniwhenua and Wheao Dams on the Rangitaiki and Wheao Rivers.