Download the Māori Law Review June 1999 (1,780 KB PDF)
The Whanganui River Report 1999
Wai 167. 8 June 1999. ET Durie (Presiding), MB Boyd, JT Kneebone, GS Orr, KW Walker. 387pp
In 1993 the Royal Forest and Bird Protection Society applied under the Resource Management Act 1991 for a water conservation order for the Whanganui River and its tributaries. Hikaia Amohia and nine other members of the Whanganui River Mäori Trust Board brought a claim before the Waitangi Tribunal on behalf of Te Iwi o Whanganui seeking, among other matters, restoration of their tino rangatiratanga over the river and adjoining lands. The trust board was established under the Whanganui River Trust Board Act 1988 and was empowered to negotiate the settlement of outstanding claims of the iwi of Whanganui to the river.
The tribunal agreed to hear the claim urgently, and to confine its consideration to matters directly affecting the river. In an interim report issued in November 1993 the tribunal recommended that the Minister for the Environment take no further steps to process the application for a water conservation order until it had reported on the claim. The tribunal anticipated that it would complete its report by June 1994. Hearings were not in fact completed until late July 1994.
While different hapü had interests along the river, the support for a united approach through the trust board was overwhelming. One dissenting group (Tamahaki) claimed to be genealogically distinct and not represented by the board. The tribunal concluded that, among other matters, the genealogical distinctiveness seemed to be exaggerated and had not been expressed in previous decades, and it was satisfied that the trust board was statutorily and practically able to represent them for the river claim (See Mäori LR March 1999 p5 for tribunal consideration of a late claim lodged by Tamahaki). Matters might be different however when the land claims came to be heard.
Customary Tenure – Mäori and English law
The tribunal examined and contrasted English land tenure and Mäori customary tenure in relation to waterways before the turn of the century.
English common law presumed that non-tidal waterways were held by the owners of adjoining land to the centre line, with no general public right of use or access (the ad medium filum aquae rule). The Crown was presumed to own the tidal reaches of rivers, subject to a public right of navigation and fishing. These presumptions could be overturned however by evidence of a history of contrary uses and intentions. Cases in NZ and other colonies suggested that these presumptions were more open to being overturned because of the special circumstances in the colonies. For eg Mueller v Taupiri Coalmines Ltd (1900) 20 NZLR 89, where it was found that along the Waikato River the implicit intention of the Crown when it granted land was to retain that riverbed for public use (also Southern Centre of Theosophy v South Australia (1979) 21 SASR 399). The Mueller case incidentally noted that in places where Mäori retained riverbank lands no such Crown intention could be implied as that would interfere with private Mäori rights secured by the presumption of ad medium filum aquae. But while that was technically the position, practically the Crown provided for public use of rivers regardless of ownership of the banks via various statutes dealing with navigation, drainage, flood protection and town water supplies. Meanwhile, Mäori rights in lake beds were recognised by the Native Land Court and/or negotiated with the Crown at Rotorua (Tamihana Korokai v Solicitor-General (1912) 15 GLR 96), Wairarapa, Horowhenua, Waikaremoana and Omapere, Rotoaira and Taupo.
The common law did not allow for ownership of water in its natural flowing state, but there were various rules governing its use, with associated rights. The Crown gradually assumed control over many of those rights, and that has continued under the Resource Management Act 1991 (RMA 1991) in which the Crown assumed the right to control, manage and allocate water uses.
While the popular view was that rivers are ‘public property’, there is no legal basis for that view, apart from places where the Crown retained ownership of adjoining lands eg in national parks etc. Nor was there any common law basis for the concept of the ‘Queen’s chain’. This arose from an early administrative policy that areas beside rivers and the coast should be reserved from Crown grants for public purposes. The policy did not affect lands already in private ownership.
The claimants argued that the river was traditionally viewed as a single entity, not split into separate parts, and the ad medium filum aquae rule should not have been applied. The Crown argued that the rule was consistent with Mäori custom and that the view that the river was somehow separate from the banks was a recent conception, as was the claim to ownership of the water. These different approaches, one ‘inevitably’ holistic the other ‘inevitably’ compartmentalised could be resolved by considering Mäori custom on its own terms rather than those which had "grown up under English law" (following Amodu Tijani v Secretary, Southern Rhodesia  2 AC 399, 403). Accordingly, rather than undertake a point-by-point examination of the views of legal counsel, an overview of Mäori social dynamics was required. Isolated observations from the historical record and individual protests could thus be placed in context and the underlying beliefs and values ascertained:
• Use rights, personal identity and executive functions all arose from ancestral devolution and existed contemporaneously at the levels of the individual, hapü and the people of the common descent group as a whole.
• Use rights for individuals and to a large extent for hapü were in the form of a particular licence to access resources, not a general licence. Consequently, a complex web of uses resulted with the same resource accessible by different people or groups at different times or at the same time.
• Rights to access resources were rarely absolute. Personal use was related to social obligations to the group. The underlying interest in the resource therefore arguably rested with the group/hapü, but its interest was not total either.
• Whakapapa networks were complex. In the 19th century there were at least 52 Whanganui hapü.
• There was rivalry between hapü and this, along with threats to hapü from outside, were managed by rangatira (chiefs), who normally had links to several hapü. They were also responsible for managing the tribal combinations of hapü.
• There was accordingly some right resting in the wider descent group or iwi, but no absolute or ultimate right at any of these levels of individual, hapü and iwi.
Applied to this claim in particular:
• The people and hapü of the river region identified with a common ancestor, Haunui-a-Päpärangi.
• The most regular functioning unit was hapü in a settlement or settlements made up of several closely related whänau (families). The hapü formed regional groupings roughly corresponding to the upper, middle and lower reaches of the river.
• These regional groupings also identified as a people or iwi from time to time under the name of Te Atihaunui-a-Päpärangi.
The tribunal agreed with the Crown argument (drawing from work by the academic Dr Angela Ballara) that in traditional society the group exercising regular corporate functions was the hapü, not the iwi. But there was a wider interest "though the extent to which it had a regular effect or influence may have varied from place to place over the country, according to various circumstances such as geographic dispersal and overlaps or close relationships with other major descent groups." In Whanganui, the river added significantly to common descent as a unifying force together with the fact that people were confined to the river valley, which also limited communication with outsiders and provided a ready link between the sections of a relatively homogeneous descent group. The metaphor "tupuna awa" was a double one, since the river was an ancestor, and also, like an ancestor, it provided a common link among the people.
Similarly, in referring to the river as a whole, people referred to Hinengakau, Tama Upoko, Tupoho, three ancestors who were siblings and represented the upper, middle and lower river. Their sibling relationship emphasised unity. References were also made in carvings and sayings to a single rope made up of three strands.
It should not be taken from this that Atihaunui had an iwi estate with distinct boundaries. Genealogical links (whakapapa) shaped the relationships with other iwi. Nor did distinct hapü estates exist. All hapü might at times use the river mouth for example. Hapü operated from centres of interest with undefined edges. It was therefore consistent with custom that hapü appearing before the tribunal argued for a collective to represent them, although that collective would not necessarily have the primary right or authority over the river.
The situation was consistent with the finding in the Mohaka River Report 1992 that, while hapü had primary user rights, those were constrained or assisted by the larger concerns of the principal rangatira who controlled or protected the resources of the people as a whole.
While changes had occurred since the arrival of Europeans, the traditional ethic remained that authority moved from the bottom upwards. The recorded uses of the river by individuals and hapü provided only a partial picture, since individuals and hapü interests could range along the length of the river. Rangatiratanga ultimately vested in the people as a whole. Representation through a single trust board was appropriate today, provided there was sensitivity to hapü interests.
A specifically Mäori approach to such interests would stress mana tangata, the whakapapa links between people and with the gods which gave authority, and mana huaanga, which was authority derived from having a wealth of resources to gift to others to bind them into reciprocal obligations.
The tribunal considered the specific values Mäori associated with the Whanganui river:
• It was a roadway for the many communities along it. There were 143 marae along its 300 km length.
• It provided plentiful staple foods in terrain which was otherwise marginal for major food crops.
• It provided a source of emotional support, going beyond personification. For the Atihaunui people it was "a doctor, a priest, a larder, a highway, a moat to protect their cliff-top pa, and, with the cliffs, a shelter from winds and storms."
• There were specific rituals concerning fishing, which reflected beliefs in the gods associated with the river.
• The mauri or life force of the river was accorded respect, and this included all things connected with it ie river flats, tributaries etc. It followed from this that the river was seen as a whole, not divisible into constituent parts of water, bed, banks, tidal and non-tidal areas as in English law.
• The river was also regarded as tapu or sacred. Water rites were associated with it. Taniwha (water creatures with extraordinary powers) and ngärara (giant reptiles) were understood to inhabit the river. The waters were seen to have a mauri and to be sacred.
• The river was seen as a taonga, an ancestral treasure and a living entity whose relationship with the people had been sanctioned by antiquity and ancestral beings. It was not therefore a commodity which could be traded.
Mäori custom and English law
In the Mäori scheme the river was not ‘owned’ in the English sense. But outsiders required permission before using it. Mäori therefore saw themselves as permitted users of ancestral resources, but also as ‘possessing’ and ‘controlling’ the river in terms of outsiders. English law recognises ‘possession’ as including ‘ownership’. Article II of the Treaty of Waitangi protected what Mäori ‘possessed’. It was sensible that English ‘ownership’ should be equated with Mäori possession. While the English concept contemplates that one can own without having possession and vice versa, that distinction was not important in this context.
• Mäori use of the river gave them more than use rights in English law terms. Their use included the incidents of English law ownership, but free from any overriding interest of the state. They also included, in the hapü and descent group as a whole, the right to manage and control in accordance with tribal preference and to be left in quiet possession.
• The Treaty of Waitangi recognised this situation, but introduced the concept of alienation.
• Rangatiratanga is the sum total of use or ownership rights, plus an expression of the political autonomy in the management of the total of the people’s affairs.
• In terms of Treaty principles, it is not appropriate to value interests in different aspects of the river in component parts eg fishing interests as separate from spiritual interests. In the Mäori conception, there is a spiritual element to all parts of life.
• It would be difficult and risky to attempt detailed definition of the component parts of the spiritual elements involved. It was sufficient to say that as a spiritual power and force the river should be considered as a single entity, respected as a living being, and recognised for its authority in the lives of the Mäori river people. In addition, specific significance was attached to particular places on account of the presence of particular taniwha etc.
• Mäori did not ‘own’ water in the English sense. That which Mäori possessed had to be determined by reference to what was possessed in fact (whereas English law allows for legal possession of things not in actual physical possession). The river was regarded as a whole in terms of Mäori possessory concepts, the water was an integral part of what was possessed, and was possessed as well - "Though its molecules may pass by, as a water regime it remains." The river would be meaningless without it. The water was "their water, at least until it naturally escaped to the sea, at which point its mauri or character changed."
Whanganui Mäori did not apply for a tribal title to the river to the Native Land Court when it first began operating in the district because that court was opposed to tribal awards (even though technically it could make them) and survey and other matters would have made the cost and arrangement of such an application impossible. Mäori had resisted the imposition of the land court because they foresaw the loss of tribal control. The law could have provided that tribes be awarded titles, and that they would in turn provide for the constituent hapü. Such a scheme was attempted in the Urewera district. However the land court simply provided for private rights and excluded tribal interests, as if the two could not co-exist. Since the land court only dealt with limited rights, it followed that that process had not extinguished the tribal interest.
Perspectives on the river
The tribunal examined Mäori perspectives past and present:
• The river had been a major fishery in the past. Before 1890 there were along the river over 350 pa tuna (eel weirs set in the centre of the river) and 92 utu piharau (weirs set on the side of the river), which had all but disappeared by the turn of the century.
• The waters of the river were regarded as sacred and healing by many and were important to the spiritual well being of the people.
• There was a belief in kaitiaki or river guardians who required that they and the river be treated with respect.
• The river was an important practical and social link between the marae along its banks, including in the period when steamers regularly plied the river. The people along the river gave evidence of the practical social impact (at tangi, sporting events etc) of the ongoing link with one another.
• There was evidence that land alienation, planning laws and urbanisation had contributed to a dispersal of the people away from the river and to a generally lower socio-economic status for Atihaunui people.
• Pollution and the diversion of the headwaters of the river to the Tongariro Power Development were regarded as an affront to the values held with regard to the river
• There was also evidence of efforts to restore settlements along the river and the tribal interest in it, most notably through the occupation of land at Tï eke and through annual pilgrimages by canoe from the headwaters to the sea.
The tribunal also considered evidence of Päkehä perspectives, including that of Federated Mountain Clubs and Public Access NZ which considered that many Päkehä had a spiritual affinity with the conservation estate similar to that of Mäori, and sought the retention of conservation lands in public ownership and under public control, with access assured. Shared management and Mäori ownership were not seen as an option and it was argued that Mäori did not have a preservationist ethic in any event.
Efforts by local Päkehä living along the river to restore its condition were also noted. Only in some of their efforts (notably writings by David Young) and in submissions from a former chair of the local branch of the Royal Forest & Bird Protection Society (Keith Chapple) was there some effort to grapple with the dual Mäori/Päkehä streams of law affecting the river. Keith Chapple considered that the RMA 1991 with its emphasis on control as opposed to ownership held the potential to place Mäori views at the centre of management.
However, that there was still lacking some legal framework for rivers and water which adequately grappled with the Crown assumption of the radical or underlying state interest, when that was already spoken for.
Land transactions affecting the lower river to 1848
The Crown contended that the tidal reaches of the river were sold as part of the 1848 deed of purchase for Wanganui. This required an examination of events surrounding that agreement. While not reaching final conclusions on the validity of that deed, the tribunal found that:
• Under customary law, Mäori valued the connections created between people by transactions as much as the things traded. In early transactions with Europeans Mäori accordingly sought to connect Europeans into their hapü.
• The Crown was concerned with the amalgamation of Mäori under its political control more than the creation and maintenance of connections. Settlers considered ‘unused’ Mäori land to be ‘wasteland’ and sought through sales to sever Mäori connections from it entirely.
• Atihaunui people first encountered the influence of Europeans via the attacks of Te Rauparaha and his allies on their region in the musket wars of the 1820s and 1830s. The Atihaunui response was to act defensively as one group. They also saw the need to trade to obtain firearms. The trade with other Mäori which followed brought guns and Christianity to the region.
• In December 1839 the missionary Henry Williams convinced a council of Wanganui chiefs to sell all their lands to him to place in trust for them. This transaction "fell into obscurity" since neither the Church Missionary Society nor the Crown approved of or validated such trusts.
• In 1839 the NZ Company purported to commence the purchase a huge area of Wanganui and hinterland from two Whanganui chiefs when they visited the NZ Company ship at Kapiti.
• In May 1840 the company visited Wanganui and gained further signatures and distributed trade goods. Mäori provided trade goods in return however. Fourteen chiefs of Whanganui signed the Treaty of Waitangi at Wanganui in the same month.
• The Crown then established through proclamations and the Land Claims Ordinances 1840 and 1841 a procedure to investigate the validity and extent of the company purchase even as the site for a new township was being surveyed.
• William Spain, the commissioner appointed to investigate the transaction, acted completely outside his legal authority and assumed that a valid sale had occurred for about 40,000 acres and proceeded to determine how much compensation Mäori should receive. Spain had no Mäori consent verified in writing or given in open court as to any sale, which was the least that his commission required.
• The efforts of Spain and others to get Whanganui Mäori to accept the compensation he determined that they should accept were hampered by strong Mäori resistance, including the outbreak of fighting in Wellington in 1846 and fighting on the river in 1847.
• After peace was established at Wanganui in February 1848, Donald McLean was employed to finalise the compensation payments and a deed was signed in May 1848 which provided for the sale of over 80,000 acres and some limited reserves for Mäori in exchange for £1000.
• The purchase could be questioned, among other matters, as to the 40,000 acres included in excess of the Spain award, the uncertainty as to whether it was a fresh transaction or a completion of the 1839-40 ‘transactions’, the amount paid, whether Mäori were really free agents when they consented to the compensation, and whether Mäori understanding of the transaction was the same as that of the Crown.
• The deed referred generally to the sale of ‘rivers’ and ‘streams’ but it could not be concluded that any alienation of the river was intended because 1) the reference was very general, and a more substantial phrase such as "awa nui" might have been expected to be used; 2) the Crown had never prior to the tribunal inquiry relied on the deed for title to the tidal areas of the river; 3) McLean probably assumed that the tidal areas belonged to the Crown anyway by operation of common law presumptions. Alternatively, McLean may have thought that mentioning the river would have complicated his negotiations. Finally, markings on the map accompanying the deed suggested that the river was specifically excluded.
The NZ Wars & the Native Land Acts
The tribunal examined the question of authority and control over the period of the 1860s and 1870s, including the famous battle of Moutoa of 1864, when Mäori of the lower river prevented a raiding force from descending the river to attack Wanganui township. This prevention of a right of way, including suspending a rope across the river to signify that the up river group should not pass, was consistent with Mäori belief that they had authority over the river.
Atihaunui as a group declared peace in 1872. Their control of the river was in no way affected by the war. In subsequent years Whanganui people joined efforts to prevent the work of the land court in their district, and local runanga were established which attempted to undertake the enforcement of law and settling of land disputes along the river, outside the European system. In 1871 and 1872 attempts were made to place the entire tribal lands in trust to prevent uncontrolled alienation via the land court process. In 1880 carved posts were erected to show the boundaries of the tribal estate and the limits of European influence. Traditional sanctions controlling passage along the river continued to be employed and Europeans were at times turned away or had to negotiate for access.
However, attempts to limit the influence of the land court were unsuccessful and by 1903 all but two miles of land along the river (out of over 280 miles in total) had been investigated and title issued to individuals by the land court.
The taking of the river
Effective control of the river was lost by Atihaunui because the Crown assumed authority over the river and progressively passed legislation diminishing Mäori control.
This began with enabling legislation for the port at Wanganui, which assumed Crown ownership, management and control of the port area, including the right to build bridges and wharves on the river, and the right to grant foreshore of the river to private individuals as required. Statutes included the Wanganui Bridge and Wharf Act 1872, the Wanganui River Foreshore Grant Act 1873-4, the Wanganui harbour and River Conservators Board Act 1876 and the Harbours Act 1878, which assumed Crown authority over all tidal areas of the river, extending some 24 km inland. Mäori were not represented on any of the statutory boards or authorities dealing with the tidal areas of the river.
The Wanganui River Trust Act 1891 established a body, financed via a land endowment, with power to undertake works to improve navigation of the river, which had become important as a steam boat route to and from the central North Island. While no Mäori representatives sat on the river trust, the Act did provide that it should not affect any rights conferred on Mäori by the Treaty of Waitangi, or interests in customary land. An amendment in 1893 however, provided that the trust could remove materials from riverbank lands, overriding any Mäori veto, although compensation had to be paid. In 1920 the river trust was given the right to remove river gravel and sell it, with no compensation to Mäori. The powers of the river trust were further expanded in the 1920s, which were the heyday of the steamer services. Mäori representation was never provided for.
In addition, the Native Townships Act 1895 saw Mäori land at Pipiriki managed by the Crown and leased out to Päkehä to establish that settlement as a tourist destination.
Under the Scenery Preservation Act 1903 thousands of acres of Mäori land were compulsorily acquired along the river for scenery purposes. There was no Mäori representation on the commission established by the Act, although the Under-Secretary for the Native Department did sit on it from 1910.
Under the Coal-mines Amendment Act 1903, which was passed with little debate, the bed of the river, as a navigable river, was deemed to have always been vested in the Crown.
In 1871 Mäori owners of land along the river banks were disappointed when the land court would not confirm to them interests in land in the port area beyond the high water mark, despite their arguments that these rights remained to them under the Treaty of Waitangi. In 1876 the prominent Whanganui chief, Te Keepa Rangihiwinui, complained that river control works at the mouth were trifling with customary beliefs about the correct course for the river.
The use of steamers on the river became an issue from 1885 when the then Native Minister was informed by Atihaunui that steamers would be ‘allowed’, but committees along the river would deal with the specific arrangements. When the river trust began to destroy rapids and eel weirs after 1891, groups of Mäori physically obstructed the works on numerous occasions, built new eel weirs in protest, sought compensation for the damage (one chief sought £90,000), and hundreds petitioned Parliament vigorously. One petition, from 151 women, produced a limited compromise, with some paths for canoes being maintained as rapids were removed.
Thereafter, Mäori asserted their interest over the river by arguing that, as Mäori land, it was a no-licence district, and steamers could not serve liquor on board while moving through the area. The issue was considered by the courts in 1903 (In Re Wanganui River Packet Licence to Stuart (1903) 23 NZLR 510), but a ruling on the question of the ownership of the river bed was avoided, even though the point was raised in argument.
By 1912, some 4000 acres of Mäori riverbank land had been acquired for scenery preservation. Between 1913 and 1916, hundreds of Whanganui Mäori protested against proposals to take thousands of acres more. Before a commission in 1916 they protested against not only the loss of land, but the loss of interests in the river and opportunities to develop it.
In 1927 two petitions raised the issue of compensation for concessions given to steamer services operating on the river. One asked for £300,000 compensation for a variety of rights which had been lost including fishing, and rights in scenic lands.
The riverbed litigation
Lack of action on this petition prompted an application to the Native Land Court in 1938 to investigate title to the river bed for most of its length (from Taumarunui to its tidal limit). In September 1939 the land court ruled on an initial issue, that the riverbed was owned by Mäori according to their customs and usages at the time of the signing of the Treaty of Waitangi. Six judges of the Native Appellate Court upheld the ruling on appeal in 1944.
The Crown took the matter to the Supreme Court, which ruled in The King v Morison & Anor  NZLR 247 that the river bed was already vested in the Crown by virtue of s14 Coal-mines Amendment Act 1903 (then s206 Coal Mines Act 1925) which provided that the bed of navigable rivers were deemed to be vested in the Crown (the High Court reached a different view in Tait-Jamieson v GC Smith Metal Containers Ltd  2 NZLR 513 – but that case failed to consider the Morison decision). The court therefore found it unnecessary to rule on a Crown contention the ad medium filum aquae rule applied, so that when Mäori sold land along the river banks they also sold the river to the centre line.
The parties agreed that a royal commission would consider the consequences of the Morison decision, and in particular whether Atihaunui were owed compensation for what seemed to be the compulsory taking of the riverbed by the 1903 legislation. In 1950 the commission confirmed that Atihaunui owned the riverbed in 1840. It also considered the ad medium filum issue and concluded that, because of the way in which Mäori viewed the river, and in particular because they had built eel weirs in it, there had been no intention that the riverbed would be sold along with sales of adjoining lands. The commission refused to recommend compensation for eel weirs however, on the basis that they represented an uneconomic way of life which Mäori had relinquished largely voluntarily. It recommended however that a three person panel be appointed to assess compensation for gravel extraction since 1903.
The Crown rejected a proposal to settle for £19,000 in costs and £6500 per annum to a trust board representing the hapü of the Whanganui and, without reference to Atihaunui, passed legislation to enable the Court of Appeal to consider the issue further. Once again, it was found that Mäori owned the riverbed at the time of the Treaty of Waitangi (although one judge dissented – In re the Bed of the Wanganui River  NZLR 419). The court rejected Crown arguments that statutes such as the Wanganui River Trust Act 1891 demonstrated Crown ownership of the river, since the free consent of Mäori was required before any of their interests could be extinguished. However, the court deferred a final decision on the issue of whether the ad medium filum rule applied until it had received an opinion from the Mäori Appellate Court on Mäori custom and the approach to sales of riverbank lands.
In 1958 the appellate court found that Mäori had not set up a separate title to the riverbed in earlier times and had not seen it as separate, and accordingly the bed would have been assumed by them to be included when they sold adjoining lands. The Court of Appeal relied on those findings to determine that the ad medium filum rule applied and title to the riverbed had consequently been extinguished prior to 1903, as river bank blocks were progressively sold (In re the Bed of the Wanganui River  NZLR 600).
The tribunal noted that the rules of English law essentially forced Atihaunui to reshape their case as a claim to ownership of the riverbed, rather than recognition of Mäori authority and control over the river, a view recently supported by comments by the Court of Appeal in Te Runanganui o Te Ika Whenua Inc Society v AG  2 NZLR 26, 26-27.
Matters since the riverbed litigation
Atihaunui continued to pursue their claim despite the Court of Appeal ruling. Their efforts included continuing discussions with the Crown, a petition to the Queen in 1977 (which included the assertion that religious freedoms were being interfered with), and a petition to Parliament. These efforts resulted in the passing of the Whanganui River Mäori Trust Board Act 1988 and an interim payment of $140,500 towards compensation for gravel extraction. This was achieved however in the face of further Crown assertions of control over the river, namely:
• The development of the Tongariro power scheme which diverted most of the headwaters of the river from 1971. Atihaunui were not consulted about the project.
• The establishment of the Whanganui National Park in 1986. The trust board would not accept a proposal requiring merely consultation with them over management of the park. They also insisted that title to at least parts of the river should be vested in them. The trust board also viewed a system of user passes for the park implemented by the Department of Conservation as essentially a toll for use of the river.
• Litigation over the renewal of water rights for the Tongariro power scheme under the the Water and Soil Conservation Act 1967. The trust board sought an end to all diversions of the headwaters to the scheme. However, the Planning Tribunal and High Court found that the 1967 legislation allowed no more than a balancing of the Mäori interest along with interests of all other users of the river. The tribunal heard argument about whether this and the successor regime under the Resource Management Act 1991 were a breach in terms of the principles of the Treaty of Waitangi.
Findings on Treaty principles
Nature of the interest in Treaty terms
The Treaty found that, in terms of Article 2, the river and its tributaries were possessed by Atihaunui:
• The river was a taonga and their tupuna awa, and was conceived of as a whole and indivisible entity.
• Ownership of the river in English law terms was now required to express the nature of the Mäori interests. "Customary rights and interests are not enough in an English legal framework." English law could recognise that the river was a private tribal waterway to which access was controlled. It was also a private fishery.
• Water was included because it was essential to the nature of the river.
• Article 2 of the Treaty guaranteed continuing possession of things possessed including ‘taonga’. The river as a taonga was a property and it was the taonga which was owned. The term ‘taonga’ can include rivers.
• Mäori were guaranteed their possessions, not possessions at English law. The test of possession in this context was a question of fact not law, and the nature of possession was not to be judged by property rights in England, which allowed for ownership of rivers in parts or sections.
• The Treaty was authority for the proposition that the law of the country would be sourced to two streams. The English Laws Act 1858 allowed for this duality when it provided that English law should apply but only so far as was applicable to the circumstances of the colony (see Baldick v Jackson (1990)30 NZLR 343)
• Fisheries too were protected by the Treaty, and the river clearance work and pollution, including indirect pollution through abstraction of water, affected that guarantee.
Continuing Mäori control was also guaranteed. The Mäori interest was larger than a mere right of user which the Crown argued.
The relevant Treaty principles
The tribunal found these to be:
• The Mäori gift of governance in exchange for the Crown protection of rangatiratanga. "Thus governance is a qualified sovereignty. The same may be said of rangatiratanga in Treaty terms."
• The Crown duty of active protection, in this case to protect Atihaunui interests, their rangatiratanga or autonomous control. The degree of protection required in this case was large given the size of the asset.
• The Crown duty to ensure that any delegation of its protection responsibilities must be on terms that ensured that those responsibilities continued to be fulfilled.
• The Crown and Mäori to act towards each other in the utmost good faith – the partnership principle.
Whether the Mäori interest had been properly extinguished
The tribunal found that Atihaunui never knowingly or willingly relinquished their Treaty rights over the river. Among other matters:
• The tidal reaches were not part of the transaction of 1848.
• The effect of the 1962 decision of the Court of Appeal was to extinguish them by a side wind. The decision relied on an opinion from the Mäori Appellate Court which was itself based on much less evidence than was now available, and the decision concerned the riverbed only. Atihaunui were not thinking about the river when they dealt with the Native Land Court, and they only reluctantly submitted to the operation of the Native Land Court in their area anyway.
• Atihaunui continued to assert control over the river, particularly its upper reaches.
• Nor was the Mäori interest extinguished simply because they were willing to share the river.
• Nor did the Crown acquire the river as the Treaty required, since there was no meeting with assembled chiefs and hapü and no negotiation with anyone about the river.
• The presumptions of English law were rebutted by the circumstances on the ground and in any event were contrary to the Mäori interest which was of the kind that is recognised by the common law doctrine of aboriginal or native title.
• Any rights which might have been obtained by the sale of river bank lands were subject to the caveat that the tribal interest had not been extinguished
• Tribal interests may also have survived the application of the Coal-mines Act Amendment Act 1903, but this was a complex legal question. In any event, that Act and its successors was a breach of the Treaty because of the guarantee under Article 2 which gave the Crown governance, but coupled with a duty to protect Mäori properties unless they explicitly agreed to dispose of them. The only exception would be exceptional circumstances requiring compulsory acquisition as a last resort in the national interest (Turangi Township Report 1995).
The tribunal found the following legislation specifically to be in breach of the Treaty:
• Legislation permitting control over parts of the river. The tidal limits under the Wanganui Bridge and Wharf Act 1872, Wanganui Foreshore Grant Act 1873, Wanganui Harbour and River Conservator’s Board Act 1876, Highways and Watercourses Division Act 1858, Marine Acts 1866 and 1867, Harbours Act 1878, Wanganui Harbour Board Act 1893, Harbours Act 1950, Wanganui Harbour Act 1988. And control along the river under the Wanganui River Trust Act 1891 and amendments, Native Townships Act 1895, Scenic Preservation Act 1903.
• The Native Land Acts in so far as they effected a major change in river ownership without Mäori acquiescence or knowledge. Land claims were to be ruled upon later.
• Legislation assuming Crown control of the resources of the riverbed namely the Coal-mines Amendment Act 1903 and successors in as far as they affect ownership of river beds, including s354 RMA 1991.
• Statutory constraints on customary interests, including certain provisions of Te Ture Whenua Mäori Act 1993, which effectively deny the ability of Mäori to question a Crown assertion that customary interests have been extinguished.
• The Water-power Act 1903, Public Works Act 1905 and successors and the Water and Soil Conservation Act 1967 in as far as they authorised interference with the waters of the river without reference to Atihaunui.
Consideration of legal arguments
The tribunal addressed at length particular legal points which had been raised in the inquiry. There was an issue as to how far the decisions of the litigation between 1938-62 might limit any tribunal findings. In all of that litigation the Mäori ownership of the river at 1840 was upheld. The final decision of the Court of Appeal in 1962 turned on the determination of the Mäori Appellate Court in 1958 that there was no separate interest expressed in custom to the river. The tribunal found that that decision lacked a critical analysis of Mäori symbolism and custom – something which the Mäori land court judges of the day were not particularly equipped to handle. Also, Atihaunui had consistently attempted to keep their tribal interests out of the land court, so it could not be said that they had deliberately and with knowledge of the consequences chosen to have the river divided into parts by applying for land titles under the names of more recent ancestors. In addition, the courts had lacked much of the information now available. Nor were their decisions binding on the tribunal. The question before the tribunal was whether Atihaunui willingly agreed to relinquish their river interests.
The previous decisions upholding the Mäori interest to the riverbed in 1840 did not describe the full Mäori interest. Atihaunui owned more than a riverbed, or indeed the river. The owned a taonga, which includes the natural resource and cultural values associated with it – as has been seen in relation to fisheries (see Report on the Muriwhenua Fishing Claim 1988). Rangatiratanga in relation to the taonga includes notions of autonomy, self-management, self-regulation and self –government.
There was no evidence that Atihaunui had relinquished their river rights in practice. The resistance to land sales, the attempts to place areas under a tribal trust, the attempts to close the river to outsiders, and protests against river clearances in the 1890s showed that Atihaunui "went beyond exhaustion" to maintain their rights.
In terms of compensation for gravel taken from the river, the recommendation from the royal commission in 1950 that this be fully assessed was still outstanding. An assessment in 1989 put the compensation due at over $21,000,000.
The Crown had argued that it owned the river bed in its tidal parts through a presumption of the common law, and that only proof of a private fishery would rebut that presumption. The tribunal found this to be a breach of the Treaty since it would deprive Mäori, without their knowledge, of a property which they owned. The mauri of the river was considered to extend to the point beyond its mouth where it can be seen to mingle with the sea waters, which have a separate mauri.
The Crown argument that the Mäori interest in the river amounted to something less than full ownership should also be rejected. While the tribunal had stated in the Report on the Manukau Claim 1985 that the Mäori interest in that harbour was less than exclusive, it was then influenced by the national interest in that harbour, and it was acting under a more limited jurisdiction. That finding was also unsustainable in light of the facts in this claim.
As to the ownership of water, this was possessed by Mäori as well. Though its molecules might pass by, as a water regime it remained and could be owned. The Crown had cited the case of Calder v AG of British Columbia (1973) 34 DLR (3d) 145 in support of the view that common law aboriginal title recognised rights to use water but no more. A close examination of that case however showed that it supported the view that land and water could be owned without distinction.
The Crown had cited in evidence incidents where Atihaunui appeared to understand and accept that the ad medium filum aquae rule applied to the river, in particular in early recorded discussions about Crown control of the river mouth, the ownership of logs in the river and in several applications by Mäori to have the ownership of lands under the river near the Wanganui township ascertained by the Native Land Court. In none of those instances was an understanding let alone an acceptance of the common law rules suggested, nor was there any suggestion that the common law rules accorded with the Mäori customary view of river interests. Also, the evidence suggested that even the Crown had not thought about whether the ad medium filum aquae rule applied in NZ until about 1900.
The Crown suggested that the fact that an application to ascertain title to the riverbed was not made until 1938 indicated that it was a late invention. But the evidence about the approach of the Native Land Court to its task showed that it simply would not have entertained such an idea in the 19th century. The 1938 application was an innovation suggested by a Wellington lawyer to advance the tribal concerns about the river as a whole. In any event, from 1900 there were statutory constraints on Mäori asserting claims to customary interests against the Crown without the approval of the Crown. This statutory constraint was still maintained in ss360-361 Te Ture Whenua Mäori 1993.
The Crown had also argued that the Treaty did not guarantee Mäori religious beliefs regardless of their consequences for other subjects of the Crown and that the spiritual aspects of the claim should be separated from the question of property interests. However, in several cases, English law showed that it was capable of giving practical effect to spiritual matters Mullick v Mullick (1925) LR 52 and Bumper Development v Commissioner of Police  4 All ER 638. And Mäori spiritual concerns about water were given practical effect in Huakina v Waikato Valley Authority  2 NZLR 188 and in relation to lakes in Ripi Hongi & Ors (Lake Omapere) (1929) 2 Bay of Islands MB 253.
Finally, with regard to the effect of the Coal-mines Amendment Act 1903 and its latest manifestation as s354 RMA 1991, the Crown had submitted that significant amounts of riverbank land remained in Mäori hands in 1903 and the loss of title to the riverbed adjoining those lands might be in breach of the Treaty. But it also submitted that the 1903 legislation was within the Article 1 powers of governance of the Crown. The tribunal reiterated its finding that the taking without consultation or compensation must be in breach of the Treaty. No question of the national interest or public works was involved and in any event no compensation was paid. This Treaty breach continued under s354 RMA 1991.
Current environmental legislation
The tribunal examined the RMA 1991 and the provisions securing the continuing ownership of the riverbed to the Crown and permitting regional councils to make plans and issue resource consents for activities involving the river, including consents to continue taking the headwaters for use in the Tongariro power scheme. The Act also permitted Water Conservation Orders to be made, conceivably against Mäori wishes. The tribunal examined the interaction of the trust board with the regional council, and the concern of the board that while it was invited to consult and make submissions on matters, it retained no control over activities on the river.
The tribunal found that the Treaty did not contemplate that the rangatiratanga guaranteed to Mäori could be qualified by requiring it to be balanced against other interests, as the RMA 1991 appeared to do. Rangatiratanga was absolutely protected and was a qualification on the governance exercised by the Crown. Consequently, the RMA 1991 was inconsistent with the principles of the Treaty in as far as it did not require all persons exercising functions and powers under the Act to do so in a way consistent with, and which would give effect to, the Treaty of Waitangi.
The tribunal summarised its findings on the claim, and stressed, among other matters, that its finding that Atihaunui continued to own the river was not to confer any privilege based on race. "It is neither a privilege nor racist that a people should be able to retain what they have possessed. Property rights go to the heart of any just legal system. It is not a privilege that the claimants should be able to retain their property, even though the public may use parts of that property for recreational purposes. …. Far from being founded on race or privilege, the Mäori right to retain the properties that they possess is founded on universally accepted principles, from the doctrine of native title, as recognised in law, to the Treaty of Waitangi, which contains the promises of the Crown, to the emerging principles of international human rights." In addition, the finding recognised that order in society requires respect for the property rights of others, which should not be taken simply for reasons of convenience or public desire.
While the conclusion that a tribe retained private rights over a large waterway created potential conflict in view of public expectations of access and use of the water, this potential might not be as great as it seemed. First, this case was special, and not a prototype for river claims. The geography of the region made this river central to the lives of the people. On other rivers less geographically confined it would be "unduly pretentious" to assume that full possession of the river was retained after sales of adjoining lands. Also, Atihaunui went to greater lengths than any other tribal group to insist that control of the river remained with them, making their situation unique.
Secondly, Atihaunui shared the public concern about access and permitted access in so far as their authority was not challenged. Current concerns were about abuse of the waters, and respect for Mäori custom and protocols could be negotiated. There was room for a "river treaty" to be made.
In terms of proposals for a settlement of the claim, current legislation did not adequately recognise the role which Atihaunui should play in river management. The desirability for national uniformity in the management of river resources should not prevail over the need to do justice in the particular case. All mechanisms under the RMA 1991 left ultimate power and control in the hands of regional or territorial authorities. On the other hand, given the complexities of modern river management, a collaborative approach was required. Accordingly, the tribunal recommended:
• Negotations with the Crown for a settlement, with leave to return to the tribunal to seek specific recommendations if agreement could not be reached. The negotiations to have regard to proposals made by the tribunal (see below).
• Compensation for the taking of water for the Tongariro power scheme (even though it had not been specifically sought by the claimants), including both exemplary damages for the use of a private resource without consent and compensation for the deleterious impact of a large water abstraction. This compensation would provide the funding base for ongoing activities of the trust board.
• Compensation for gravel extraction. The government had already recognised that this was required. This money should not go towards the future operation of the trust board, but should be held for projects for Atihaunui as a whole, or for distribution to marae at the discretion of the trust board.
• Costs of the claimants be paid for past litigation, for taking this claim, and for any settlement negotiations.
In terms of proposals to consider in settlement negotiations, the tribunal mentioned:
• The current application for a water conservation order to be deferred until a settlement was reached.
• Recognition in legislation of the Atihaunui right of ownership of the river "as an entity and as a resource, without reference to the English legal conception of river ownership in terms of riverbeds."
• Existing use rights to be protected for their current terms and public access to continue within a permissive regime (as opposed to as of right), within broad parameters to be negotiated.
• Joint management of the river, involving Atihaunui people and appropriate funding for the trust board, which could come from local authority levies. This joint management might take either of two forms:
Owner approval: the river in its entirety be vested in an ancestor or ancestors representative of Atihaunui, with the trust board as trustee. Any resource consent application under the RMA 1991 in respect of the river would require the approval of the trust board as owner. The relevant part of the regional plan would require amendment accordingly.
Consent authority: the trust board to be made a ‘consent authority’ in terms of the RMA 1991, where the Whanganui River is involved, to act severally and jointly with the current consenting authority for any particular case, and that "both must consent to an application for a consent to be exercised." A plan specific to the river would need to be jointly drafted. This proposal would "fall short of effective recognition of the authority of Atihaunui" however since the final decision regarding an application would still rest with the courts. After five years, independent representatives appointed by Parliament and Atihaunui would review this arrangmeent with a view to making Atihaunui the sole consent authority. In addition, the RMA 1991 would be amended to provide that all persons exercising functions and powers under it shall act in a manner that is consistent with, and gives effect to, the principles of the Treaty of Waitangi.
Dissenting view on remedies
Tribunal member John Kneebone felt unable to support the recommendations of the majority that Atihaunui should own natural water or be designated as a consent authority for the river under the RMA 1991. It was not in his view a viable option for the river as a legal entity to be transferrred to a particular group. Such a solution would, he felt, inevitably lead to the interpretation that naturally occuring free-flowing water and access to it would become subject to private control and exploitation. In addition, management of the river system involved management of land uses well beyond its banks. It would be stretching public tolerance to expect citizens to accept interference in their land uses from private owners (especially without compensation) rather than through a transparent democractic process provided for currently in the RMA 1991.
Accordingly, he recommended that a joint body be created and vested with the legal ownership of the riverbed. The body would consist of three Crown and three Atihaunui appointees.
[Ed: this report has taken five years to complete. It is the fourth substantive report of the tribunal dealing specifically with a river claim (Kaituna River Report 1984, Mohaka River Report 1992, and Te Ika Whenua Rivers Report 1998).
In chapter 2 "Customary Tenures", the tribunal provides an extended analysis of the Maori world view and Maori customary law arising from that world view. The report goes on to discuss the interaction of Maori customary law with English law and how English law ought to recognise Maori law – briefly, as including notions of political control as well as ownership and full cultural interests in resources. The analysis sets out an approach by which Maori values can be considered by the courts, while avoiding the tendency to render native title "in terms which are appropriate only to systems which have grown up under English law."
The land claims of the Whanganui people have yet to be heard, but the tribunal has expressed concerns about the 1848 transaction affecting the Wanganui township, which suggests that it may be inclined to find Crown breaches in relation to that matter.
The tribunal noted that this claim should not be seen as a prototype for other river claims, in part because the Whanganui people had consistently protested about the loss of the river, where other iwi have not. However, the tribunal has held elsewhere that, in terms of Treaty principles, silence is not consent, so that if other iwi had not protested when control over a river was assumed by the Crown, presumably it could not be concluded that their silence was an acceptance of the situation.
In addition, a large part of the bed of the Waikato River, the longest river in the country, was taken by confiscation during the NZ Wars, a fact which the tribunal mentions in this report. Accordingly, this report, which argues that Maori viewed rivers as iwi possessions, would seem to strongly support the Tainui claim.
Interestingly, the Waikato-Tainui claimants recently announced that they had put the question of ownership of the river to one side, and are seeking the creation of a "Guardians of the Waikato River Trust", an organised funding system allowing the river trust to clean up the river and a co-management regime for the long term protection of the river (Te Hookioi. Newsletter if Waikato-Tainui. River Special 1999).
Ngati Pikiao in the Bay of Plenty are currently seeking to become a heritage protection authority for the Kaituna river under the RMA 1991 (to be reported in next month’s issue of the Maori Law Review).
The two options put forward by the majority of the tribunal both attempt to make use of the best features of the management regime of the RMA 1991. Because of that, the implications of each option have to be considered in terms of the regime which the Act sets up. The RMA 1991 does not intend that regional plans will be made for particular rivers, but rather plans concerning the use of water and waters in the regional generally. However, particular waters can be managed, for example, for specific cultural purposes (see for eg Third Schedule cl 11 and s69).
Under the first option, that the entire river, including waters and bed, be vested in the iwi, and that iwi approval will be required for any resource consent which is applied for, there may be argument around what uses of the river are permitted under any regional water plan and do not require consent, and what matters will be controlled, or limited discretionary activities in terms of the RMA 1991 and what matters in any regional plans actually affect the river.
Under the second option, that the river trust board itself become a consent authority, the board would still be subject to some overriding provisions, for example, the requirement for consistency with the regional plan and any national policy statements. Also, the iwi plan could be appealed to the Environment Court. However, this option would give the iwi considerably greater powers than it might have as a heritage protection authority for the river under the RMA 1991, or even as a body with delegated authority from the regional council (under s33).
In its rivers settlement policy announcements to date (see Maori LR Dec 1998/Jan 1999 p12 and February 1999 p6-7), the Crown has stated that it does not accept that Maori may own the water in rivers and it will not pay any compensation for hydro electric generation. However, the Crown has said that it is open to discussion on other ways to recognise Maori interests.]
The Radio Spectrum Management and Development Final Report 1999
28 June 1999. Judge Savage (presiding), J Anderson, Professor MPK Sorrenson. 99pp
On 26 March 1999, the Waitangi Tribunal released an interim report into a claim (Wai 776) relating to the Radiocommunications Act 1989 and that part of the electromagnetic spectrum known as the radio spectrum. The Crown had proposed to auction 35 management rights for 20 years to the 2 GHz range of the radio spectrum and, in its interim report released under urgency, the majority of the Tribunal found that the claimant had prima facie established that she would be prejudicially affected by breaches of the Treaty of Waitangi if the auction were to proceed. The Tribunal recommended, amongst other things, that "the Crown suspend the proposed auction of 2 GHz frequencies, due to begin on 29 March, and begin negotiations with Mäori with a view to reserving for them a fair and equitable proportion of the management rights before the auction is resumed". (See Mäori LR March 1999 p1) As a result of the Tribunal’s interim report, the Crown immediately postponed its auction for three months until the end of June 1999.
Meanwhile, the Tribunal reconvened to hear the substantive claim, which continued under two limbs, namely:
• Mäori have a right to a fair and equitable share in the radio spectrum resource; and
• Mäori have a right to a fair and equitable share in the spectrum especially where the Crown has an obligation to promote and protect Mäori language and culture.
Claimant counsel submitted that the claim was based on the principles of partnership and "taonga". The taonga concerned were the radio spectrum - of value to Mäori for economic, social and cultural development - and the Mäori language and culture. The term "taonga" was not restricted to physical or tangible objects and the term cannot be frozen at what it might have meant in 1840. There was also a right to develop, which comprised three levels:
• The right to develop resources to which Mäori had customary uses before the Treaty;
• The right, under the partnership principle, to the development of resources not known in 1840; and
• The right of Mäori to develop their culture, language and social and economic status using whatever means available.
On each level, Mäori have a right to participate in radio spectrum management. There was evidence to show that traditionally Mäori had knowledge of and used parts of the electromagnetic spectrum and therefore Mäori had a right to develop that resource. In respect of the radio spectrum, the Crown’s käwanatanga right to manage it was constrained by the guarantee of rangatiratanga, which required Mäori to be consulted over management decisions affecting it and a right to a fair and equitable share of it.
As to how to protect the share of the spectrum to which Mäori were entitled, counsel argued that it was illusory to assume that the Crown would be able to "recapture management rights" in the future. Experience in the United States suggested that if Mäori were not granted a share now, they would be unlikely to get any in 20 years’ time. The hierarchy of interests in resources (Report of the Waitangi Tribunal on Claims Concerning the Allocation of Radio Frequencies) meant that the Crown must satisfy Mäori Treaty rights before alienating any remaining resources to other interest groups. Any suggestion that the Crown provide substitute assets should be rejected.
Claimant witnesses told the Tribunal that Mäori needed to be involved in the "‘knowledge economy’, whereby the generation and exploitation of knowledge play a predominant part in the creation of wealth". Without some ownership or stake in the spectrum, Mäori would not be "‘in the game’". In the USA, there was some official acknowledgment that setting aside of a portion of the spectrum was part of a "‘federal trust responsibility". According to one witness, the radio spectrum was "‘viewed no differently than lands and other natural resources ceded by [Native American] tribes to the US government over the last 200 years in return for monetary and other compensation’", although the American courts had overruled the granting of preferential licences on racial grounds. The Tribunal was also given evidence of Canadian Indians who were "in the game" through having their own telecommunications company, Blood Hills Communication. As a result, their remote communities had been able to "share in the benefits of sophisticated telecommunications".
Crown counsel argued that neither the spectrum nor the management rights that were being auctioned was a taonga protected by the Treaty. Relying on various judicial and Tribunal dicta, she submitted that the partnership and development principles "apply only when attached to specific provisions, such as ‘their taonga’ known in 1840, and to extensions of rights based on those words" (Te Runanganui o Te Ika Whenua Inc v AG  2 NZLR 20, 24; Ngai Tahu Mäori Trust Board v DG of Conservation  3 NZLR 553, 559-560 and Waitangi Tribunal, Kiwifruit Marketing Report 1995). The claim, taken to its extremity, was that "Mäori own all resources in New Zealand and that the Crown might manage those resources for the benefit of all New Zealanders only with the agreement of Mäori".
Crown witnesses presented evidence that the Government had "‘considered at length and debated vigorously’" whether to offer Mäori management rights, that to reserve a portion of the spectrum for Mäori would deter potential bidders for the remainder, and that an alternative arrangement could therefore be to provide Mäori with cash for the fostering of economic development.
Reporting on the substantive inquiry, the majority of the Tribunal found the claim to be well-founded on both its limbs. Judge Savage, the presiding officer, again dissented from the majority’s findings and recommendations.
The majority decision – J Anderson, Professor MPK Sorrenson
The Tribunal saw no need to modify its interim findings. Indeed, these were strengthened by the presentation of additional evidence and legal argument in the substantive hearing. However, it noted that claimant counsel no longer relied on the proposition that the spectrum was part of the "kainga" as that word was used in Article 2 of the Treaty of Waitangi.
In dealing with the first limb of the claim, the Tribunal considered the argument as to whether or not the radio spectrum was a natural resource to be "largely irrelevant". The claim was really about the economic aspect of that resource, which the Crown was intending to privatise. Moreover, the Crown was distorting the claim in its contention that it really challenged the Crown’s right to manage resources unless the Crown had the agreement of Mäori. The claim was not challenging the Crown’s right to manage the spectrum rights but its proposal to privatise management monopolies. Nor was it the role of this Tribunal to investigate hypothetical claims that Mäori might make about other resources, such as income from drivers’ licence fees.
Addressing the development right issue, the Tribunal accepted that:
"radio waves existed in nature – as light and sound - and could be captured to a certain extent by humans through their eyes and ears. But in 1840 there were few technical devices that could be used to extend human sight and sound. Mäori were aware of the existence of various natural phenomena, made good use of some of them – for instance, the use of light emitted by stars for navigation – and incorporated them into their own philosophical world view. One example of this cited by Professor Mead was Tawhaki climbing the heavens to bring to earth knowledge, education, and sacred incantations for the spiritual well-being of the people. Mäori were therefore using radio waves for their own purposes, though they (along with all others) lacked the technology that we have today to enhance light and sound."
We therefore accept claimant counsel’s submission ... that ‘Mäori had traditional knowledge of and used parts of the electromagnetic spectrum’, that it was in these ways their taonga and that they have a Treaty right to the development of that taonga through technology that has subsequently become available."
The Tribunal also accepted that Mäori had rights under the second and third levels of development rights that claimant counsel postulated. Under the principle of partnership and the other principles referred to in the report, Mäori had a right to the development of resources that were not known about in 1840 or used in a traditional manner. And under the Treaty as a whole, Mäori had a right to develop as a people.
The Tribunal agreed with the finding of the earlier Waitangi Tribunal report on the allocation of radio frequencies (Report on Claims Concerning the Allocation of Radio Frequencies 1990) that the spectrum was a taonga, but that it could not be possessed by any one person or group and was a "‘taonga to be shared by the tribes and by all mankind’. Neither of the Treaty partners could have monopoly rights to it".
In dealing with the second limb of the claim, the Tribunal’s key consideration was whether the radio spectrum rights that were to be auctioned were likely to be of value to Mäori for the promotion of Mäori language and culture, which, it was not disputed, were taonga that came under the Treaty’s protection. The Tribunal noted evidence that new services using the 2 GHz frequencies, (including narrow-casting, through terminals in homes, schools and community centres, video conferencing, distance education and tele-working) could be used to foster language and culture. In the Tribunal’s view:
"It is not sufficient for the Crown to rely on existing methods and technologies in existing institutions. In view of the crisis of Mäori language, every means must be employed to ensure the survival of the language."
The Tribunal relied on the same Treaty principles that it had discussed in its interim report. It prefaced these with a general discussion on Treaty interpretation and Waitangi Tribunal’s mandate to consider the Treaty’s principles as opposed to its provisions. In doing so, it endorsed a passage from the Privy Council decision in New Zealand Mäori Council v Attorney-General  1 NZLR 513, 517, which included:
"the ‘principles’ are the underlying mutual obligations and responsibilities which the Treaty places on the parties. They reflect the intent of the Treaty as a whole and include, but are not confined to, the express terms of the Treaty. ..."
The relevant principles in this claim were applicable to both limbs of the claim and had some inter-relationship with each other. First was the principle of partnership, which obliged the Crown to protect the properties of its Treaty partner. Where the Crown attempted to convert a regulatory regime into a property right, it had a duty "to consult and negotiate with its partner a fair and equitable share of that property", the more so in the circumstances of this claim given the previous claims and litigation over radio frequencies.
Second was the principle of rangatiratanga, linked to the principle of käwanatanga. The Crown could not use its käwanatanga right to regulate the spectrum resource without regard to the Mäori rangatiratanga right to secure a fair and equitable proportion of the spectrum before the remainder was auctioned. The Tribunal accepted that there existed a hierarchy of interests in the allocation of resources.
Third, the principle of fiduciary duty, which stemmed from the Treaty’s preamble and Article 3, as well as the guarantee of Article 2. The Crown’s fiduciary duty was "to protect Mäori ‘just Rights and Property’, and, in the event of Mäori being adversely affected by the process of colonisation, to correct that imbalance by affirmative action". Where a doubt existed over what was included as taonga, "the Crown had a duty to ascertain Mäori views to see what they regarded as ‘their taonga’ and, under the fiduciary obligation, to ensure that they were protected".
The fourth principle was that of mutual benefit, whereby Mäori expected, and the Crown was obliged to ensure, that both Mäori and Päkehä "would gain mutually from colonisation and contact with the rest of the world, including the benefits of new technologies".
The final principle was the principle of development. The Treaty "needed to evolve to meet new and changing circumstances" and "Mäori expected and were entitled to develop their properties and themselves and to have a fair and equitable share in Crown-created properties". The Tribunal accepted that Mäori had development rights at each of the three levels that claimant counsel had described in her submissions.
The Tribunal again recommended that:
• The Crown suspend the auction of the 2 GHz range of frequencies until such time as it had negotiated with Mäori to reserve a fair and equitable portion of them for Mäori; and
• The claimant make arrangements with her iwi and a national Mäori body to negotiate with the Crown for the reservation of a portion of the spectrum.
• It made a further recommendation that the Crown and Mäori consider establishing a trust that could use the income received from the development or lease of frequencies "to develop infrastructure for remaining Mäori frequencies or to educate and train Mäori staff for employment in that infrastructure or elsewhere in the telecommunications industry". The Tribunal also recommended that the Crown pay the claimants’ costs for bringing the claim. While the Tribunal found that the Radiocommunications Act 1989 was in breach of the Treaty for not requiring the Crown to consult with Mäori and allow them a fair and equitable share of the radio spectrum, it made no specific recommendations about the Act itself.
The minority decision – Judge Savage
The final minority decision was to be read in conjunction with the minority finding in the interim report, which, except for the treatment of the second limb of the claim, formed part of this decision.
Judge Savage found that the first limb of the claim was not well-founded. In his view, although the claim focused on a particular part of the radio spectrum, "the principles that are claimed to exist would be equally applicable to the entire radio spectrum, the entire electromagnetic spectrum, and resources in general". However, in considering the meaning of "taonga" in Article 2 of the Treaty, he rejected the conclusion that it encompassed any of these. The Treaty did not reserve to Mäori "taonga katoa" but "rätou (their) taonga katoa", and he could not accept that these words related to the radio spectrum, electromagnetic spectrum or to resources generally.
The Tribunal was only concerned with reviewing whether or not actions constituted good governance if they constituted breaches of the Treaty’s principles. In discerning the relevant principles, there was a risk of converting motives into terms or principles. While it was helpful to refer to the general background to the signing of the Treaty, there was "a danger of wishful redrafting in straying too far from the words, phrases, and concepts in the Treaty itself".
Judge Savage rejected a right to develop as a general principle. He considered that the principle of development related only to a right to develop a right. He therefore dismissed claimant counsel’s submission that a right to develop resources not known about or used in a traditional manner at 1840 was inherent in the principle of partnership. In his Honour’s view, counsel’s submission presupposed that: "the partnership covers all aspects of life for both parties. In other words, it is claimed that it is more of a marriage than a partnership. It is not. … The Crown must not intrude into the proper realm of rangatiratanga and, likewise, Mäori must not intrude into the pure matters of käwanatanga, except pursuant to their article 3 rights as citizens". If there were such an important principle contained within the Treaty, it was "peculiar in the extreme" that it was left to be found as a principle within a principle. Further, the Canadian authorities (R v Sparrow, R v Gladstone and R v Van der Peet) that claimant counsel cited were unhelpful in that they focused on existing customary or Treaty rights and not resources in the general sense.
If Mäori had a right to a fair and equitable share the radio or electromagnetic spectrum, then they had such a right in respect of all resources, for there was nothing in the spectrum that required it "to be dealt with in a different way from other assets of mankind". That conclusion led to an absurdity.
Judge Savage considered that the focus of the claim’s second limb had moved in the course of the substantive inquiry away from a breach in relation to the resource. The question had become: "Does a breach exist in relation to te reo Mäori and Mäori culture and if so is the Crown bound in good faith to remedy it in the context of this claim". Citing results of the Te Puni Kökiri’s National Mäori Language Survey: Te Mahi Rangahau Reo Mäori, his Honour was of the clear view that the Mäori language remained in a particularly vulnerable state, that that state was partly attributable to past Treaty breaches by the Crown, and that the Crown’s failure to sufficiently remedy the breach, despite fair warnings, aggravated the breach. Additionally, the 1998 report, Progress towards Closing Social and Economic Gaps between Mäori and Non-Mäori, again published by Te Puni Kökiri, clearly revealed that Mäori disadvantage in areas of education, employment economic and health status remained and in some cases was growing. Judge Savage concluded that the Crown "is continuing an aggravated breach of the Treaty in relation to te reo Mäori and culture". Given that Crown officials had "solemnly" told the Tribunal that the acquisition of money was not the purpose of the auction of the 2 GHz management rights, he would have recommended, under this limb of the claim, that the auction proceed and that the Crown, in recognition of its continuing breach in relation to Mäori language and culture, devote all or a generous portion of the net proceeds of the auction to promote, develop and protect Mäori language and culture.
[Ed – The Tribunal commented on claimant counsel’s positing of a "taonga principle" by stating:
"We do not regard single terms used in the Treaty, such as ‘taonga’, as stand-alone principles. However, used in conjunction with other words in the Treaty, they can become part of a principle."
Nevertheless, this and other Tribunals have relied upon the principles of rangatiratanga and käwanatanga, which terms come directly from the text of the Treaty. Notwithstanding this, counsel’s use of the phrase "taonga principle" was novel.
In spite of the hope expressed in the interim report, the additional evidence and submissions heard in the substantive inquiry were unable to unite the members into reaching common findings and recommendations. The key points of divergence remained their findings as to whether or not the radio spectrum was a taonga within the ambit of the Treaty and their approach to discerning Treaty principles - particularly the principle of development.
The report of the majority seeks to make it clear that the members see themselves as following paths set by the allocation of radio frequencies Tribunal and the te reo Mäori Tribunals. This is in contrast to both Crown counsel and the presiding officer who raised what were essentially "floodgate" objections.]