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WHANGANUI RIVER REPORT
Research Report for Urgent Hearing Wai 167
Tom Bennion
9 March 1994
WHANGANUI RIVER REPORT Tom Bennion March 1994
CROSS REFERENCE TO FOOTNOTES IN THE REPORT
The footnote number is !:,Tiven on the left, its document bank reference is on the right.
1 The tribunal authorisation for the research is document 3.4 in the Record of Proceedings
3 DB vol 1 p6, 17
6 Not in DB
21 DB vol 4, p21
28 Not in DB
30 Not in DB
31 Not in DB
33 Not in DB
34 In R Young report WT A45
45 DB vol 2 p430
61 DB vol 1 p25
65 DB vol 1 p38
66 DB vol 1 p40
67 DB vol 1 p32
68 DB vol 1 p33
69 This footnote should be GBPP v5 p83, DB vol 1 p34
71 DB vol 1 p36, 35,37
72 DB vol 1 p35-7
73 DB vol 1 p35
74 DB vol 1 p37
75 DB vol 1 p38
78 DB vol 1 p27
82 DB vol I p27
85 DB vol I p40
86 DB vol I p40
87 This footnote should be GBPP v5 p90, DB vol I p41
93 This footnote should be GBPP v5 p87, DB vol I p38
95 DB vol I p62
96 This footnote should be Ibid p248, DB vol I p62
97 DB vol I p62
98 DB vol 1 p63
99 DB vol 1 p63
100 DB vol 1 p63
101 DB vol I p64
102 DB vol 1 p64
103 DB vol I p64
104 DB vol I p66
105 DB vol 1 p66
107 DB vol I p70-76
108 DB vol I p70 & 74
Ito DB vol 4 pI8
112 DB vol 1 p8I and a typescript of the original diary is at DB vol 1 p83
114 See AJHR 18630-7 p44 in R Young report WT A45
116 Not in DB
118 DB vol 4 p3
119 DB vol 4 p3
120 DB vol 4 p5
121 DB vol 4 p6
122 DBvo14p14&17
123 Not in DB
132 DB vol 1 p103
133 DB vol 1 pI05
134 DB vol 1 pl03ff
135 DB vol 1 p126
136 DB vol 1 p99
137 Ditto
138 Ditto
139 DBvollp115
165 DB vol 1 p132
197 DB vol 1 p85
212 This should be, AJHR 1872 F-3 p14tT, DB vol 1 p150ff, also AJHR 1872 F-3A DB vol 1 p152ff, AJHR 1873 G-2 p16ff, DB vol 1 p160ff
213 DBvollp171ff
215 DB vol 1 p146
216 DB vol 1 p173
217 This should be 1873 G-2 p15-16, DB vol 1 p160
220 DB vol 1 p189
221 This should be Woon to Native Dept 20 October 1880, and DB refs are DB vol 3 p472, the other ref is DB vol 3 p469
222 DB vol 3 p464
225 DB vol 3 p495-97
226 DB vol 3 p477-481
227 This should be Keepa to Booth, 2 February 1881, MA 13/14, DB vol 3 p464
228 DB vol 1 p194
229 DB vol 3 p500
230 DB vol 3 p509
231 DB vol 1 p195
232 DB vol 3 p511-12
233 DB vol 1 p152-53
234 DB vol 2 p226
237 DB vol 3 p517-8
238 DB vol 2 p299
239 DB vol 2 p225
241 DB vol 2 p238
245 DB vol 2 p236
246 DB vol 2 p247
248 DB vol 2 p237
251 This should be 1887 AJHR 1-2 p8
252 DB vol 2 p256
253 DBvol 2 p258
255 DB vol 2 p256
. 256 DB vol 3 p515
257 ~ot in DB
259 DB vol 2 p259
275 Not in DB
276 Not in DB
277 Not in DB
281 Not in DB
282 DB vol 2 p305
288 Not in DB
291 Not in DB
295 Not in DB
299 Not in DB
300 Not in DB
301 Not in DB
302 Not in DB
303 Not in DB
305 DB vol 2 p306-7
311 DB vol 3 p521
313 DB vol 3 p533
314 DB vol 2 p270
315 Not in DB
316 DB vol 2 p269
317 DB vol 2 p270, DB vol 2 p275
318 This should be AJHR 1895 G-l~p8 DB vol 4 p26
322 DB vol 2 p311
324 DB vol 2 p296
325 DB vol 2 p296fT
327 DB vol 2 p296
328 DB vol 2 p293
330 DB vol 2 p312
331 DB vol 2 p290
332 DB vol 2 p288
333 DB vol 2 p278-287
334 DB vol 2 p312
335 Ditto
338 Not in DB
343 Not in DB
352 Not in DB
357 DB vol 2 p351
359 DB vol 2 p351
360 DB vol 2 p343
370 DB vol 2 p414
373 DB vol 2 p225
375 DB vol 2 p353-4
376 DB vol 2 p360
377 DB vol 2 p354
378 DB vol 2 p352
382 DB vol 2 p364 "
383 DB vol 2 p355
385 DB vol 2 p356
390 DB vol 2 p369
396 DB vol 2 p396
399 DB vol 4 p43
400 DB vol 4 p57
405 Not in DB
406 DB vol 2 p410ff
'1
407 DB vol 3 p522
411 DB vol 4 p214
413 DB vol 4 p211
417 DB vol 3 p524
419 DB vol 3 p552
442 DB vol 3 p543
447 DB vol 3 p529-30
458 DB vol 4 p193
459 DB vol 4 p204-5
460 DB vol 3 p526
461 DB vol 3 p525
462 DB vol 4 p193-4
465 DB vol 4 p204
466 Not in DB
474 DB vol 4 p222
475 Ditto
484 DB vol 4 p218 .. 486 DB vol 3 p582
-------- --
487 DB vol 3 p579
488 DB vol 3 p578
489 E>B vol 3 p576
509 Not in DB
510 ~B vol 3 p572
• • • • • • I I I I I I I I I I I I I I
CHAPTER 6
THE CROWN ASSERTION OF CONTROL
THE WANGANUI RIVER TRUST 1891-1900·
Initial Pressures
With the growth of the Wanganui township pressure came to bear on use of the river and
Maori on the river began to realise that assertions of authority contrary to their own were
being made. These assertions were never clearcut, as no-one on the European side ever
appears to have clearly articulated to Maori what the implications of English law about
tidal areas and riparian rights might be. In addition, Maori were in a situation where they
welcomed European uses of the river from which they could draw benefit, such as the
building of bridges, reclamations and steamers.
The Whanganui people, or at least those on the lower reaches of the river, appear at first
to have been enthusiastic about the proposal to run a private steamer service. Their
attempts to engage in gold prospecting have already been noted, now they hoped to
convert their canoe transport business to the new technology. The "Upriver Committee",
a group of Wanganui business notables spearheading the private steamer venture, were
delighted to note in January 1885 that:
~
The Maoris had discussed the question of getting a steamer ... and when Mr
Ballance was there they eagerly asked when the steamer was to be placed on the
river, offering to take shares if a company was formed. . .. The natives said that
when the boat was on the river they would bum their canoes. They said it did not
pay to bring small quantities of goods to town in their canoes. 237
Obviously more was said at the meeting than the printed government record revealed. A;::..
237 Wanganui Chronicle 24 Jan 1885, DB
68
/
ABBREVIATIONS USED IN THIS REPORT
References to the Document Bank
Many footnotes contain the reference "DB". This shows that the document concerned is
contained in the document bank supplied with the report. A separate list cross-referencing
each footnote to the relevant document bank page number will be provided.
Other Abbreviations
AJHR Appendices to the Journals of the House of Representatives
ATL Alexander Turnbull Library
DNZB Dictionary of NZ Biography
GBPP Great Britain Parliamentary Papers
MB Minute Book
NA National Archives
Wh Whanganui
Chapter 1 Introduction
Chapter 2 Preliminary Points
- The Area covered by this Report
- Physical Characteristics of the River
Chapter 3 Maori Use of the River Since 1840
- The People on the River at 1840
- Uses made of the River Transport Food Spiritual
Chapter 4 From the Treaty to the Land Court
- First Contact
- The Treaty of Waitangi
- The NZ Company at Whanganui
- Events after the Deed
Chapter 5 The Land Court 1866 to 1890 and the Maori Response
- Land Legislation, Title Investigation and Land Sales
CONTENTS
3
5
5
5
8
8
11 11 14 16
18
18
19
20
31
41
41
- Effect of Sales
- Maori Views of the River in the Period The Background
Fishing Rights Control Over River Use
Chapter 6 The Crown Assertion of Control The Wanganui River Trust 1891-1900
- Initial Pressures
- 1891 Wanganui River Trust Act
- Protest at River Clearances
- The Native Township at Pipiriki
Chapter 7 The Crown Assertion of Control
44
45 45
48 56
68
68
73
82
89
Scenery Preservation and the Coal Mines Act 92
- Maori Councils Act 92
- Coal Mines Amendment Act 1903 93
- The Prohibition Case 1903 94
- Scenery Preservation Act 1903 98
- The 1916 Inquiry 104
- The 1927 Petition 108
Chapter 8 The Riverbed Litigation 1938-62 111
- Introduction 111
- The Native Land Court Application of 1938 113
- The Maori Land Court - Ownership at 1840 121
- The Maori Appellate Court - Ownership at 1840 123
- The Supreme Court 124
- The Royal Commission 129
- The Royal Commission Report 130
- The Court of Appeal - First Case 132
- The Maori Appellate Court - "Take Tupuna" 139
- The Court of Appeal - the Final Decision 141
CHAPTER 1
INTRODUCTION
Research Credentials
My name is Thomas Hugh Bennion. In 1987 I graduated from the Victoria University of
Wellington with a Bachelor of Laws with honours and a Bachelor of Arts, majoring in
history. From 1986 to 1988 I worked part-time as a researcher for the Law Commission
on the production of the Commission report The Treaty of Waitangi and Maori Fisheries.
Mataitai: Nga Tikanga Maori Me Te Tiriti 0 Waitangi. In 1988 I also worked briefly for
the Waitangi Tribunal assisting with research for the Muriwhenua Fishing report. Later in
that year I began work as the legal officer of the tribunal, a position which I held until
November 1994. From February 1993 I was also acting research manager for the
tribunal. I have also acted as legal adviser to the head office of the Maori Land Court. In
1993 I was awarded an ANZAC Fellowship and spent 3 months in Australia studying
Aboriginal land claim settlements. I now work privately as a consultant on Treaty
matters, and edit a monthly legal newsheet, the Maori Law Review.
This report focuses on actions of the Crown in relation to the river and their effect on
Maori living along it since the time of the signing of the Treaty of Waitangi until 1962.
Scope of the Research
This report was completed over the course of 6 weeks for this urgent hearing. 1 It
therefore concentrates on events directly affecting the river. Where broader issues such as
land sales and scenery preservation schemes had an impact, prima facie research only has
been possible.
In most matters, and most especially concerning the ongoing protests from Maori about
1 The tribunal authorisation is at the back of this report
3
loss of control over the river, I have been greatly assisted by collections of materials
made by the claimants, and by an unpublished paper by David Young dealing with the
history of Maori/Pakeha relations on the river.
In preparing the report I have also been assisted in the collection of materials by Chris
Shenton, a claimant researcher.
4
CHAPTER 2
PRELIMINARY POINTS
The Area covered by this Report
This report is not limited to the parts of the river described as tidal, non-tidal, navigable
or non-navigable, although these kinds of definitions have defined the focus of past
inquiries. The distinction between tidal and non-tidal parts of the river is a distinction
from the common law and was not one made by Maori. As will be shown later in this
report, for Maori, most of the river was always accessible. European ideas of navigation
and legal rules surrounding that term were more confining. The river was "navigable" for
steamers and other large craft only through constant clearance work. 2
This has important implications for the historical evidence to be considered. For example,
litigation about the ownership of the river bed has been concerned, since 1938, with
ownership in the non-tidal reaches. This report looks at issues of ownership and control
of the river to its mouth.
Physical Characteristics of the River
The geomorphology and hydrology of the river need to be briefly discussed, because they
are important elements underlying the pattern of Maori settlement and Crown actions on
the river. These two fields were extensively discussed in the river flows hearing before
the Planning Tribunal in 1993.3
For the purposes of this report the following points are noted:
2
3
See under 'Transport' below
Two papers are in the DB, also an extract from Wanganui River Reserves The Wanganui River 1982, and see the report of the Planning Tribunal WT A6 p5-6
5
4
5
6
The Whanganui river basin was an area of sedimentary materials thrust upward
from the sea several million years ago. The erosion of these relatively soft
materials gives the pattern of steep-sided ridges and valleys of the region, through
which the river flows for much of its length.
The headwaters of the river are high on the Volcanic Plateau. On its western side
it has 3 major tributaries, the Ohura, Tangarakau and Whangamomona. These
carry water from areas of inland Taranaki. On its eastern side it has the major
tributary Manganui-a-te-Ao, which carries water from the western Ruapehu
region.
In its rate of flow, the Whanganui river is medium/large in New Zealand terms.
The mean flow is 316 cubic metres per second (cumecs), which compares with the
Waikato at 327.4
The river gradient varies over its approximately 300km length, but for most of
that length it is relatively mild. The river drops some 680 metres before it reaches
the sea, but most of this drop is in the stretches above Taumarunui (which is 160
metres above sea level). South of Taumarunui the river is well entrenched and
there are many rapids. Erosion has produced some meandering patterns. But the
river falls only 131 metres between Taumarunui and Pipiriki. In the area below
Pipiriki the river widens, it becomes sluggish, and rapids decrease. 56
With its very large catchment area of 7,382 square kilometres, the river has a mild
normal flow, but periodic floods can vary this enormously, up to 133 times the
normal flow. Accordingly the height of the river can change dramatically (up to 18
metres has been recorded) in the course of 48 hours, or even less than 24 hours in
places where the flow is confined. 6
D Young Faces of the River 1986 p211
Planning Tribunal report p5-
NZPD vol 78 p294, DB
6
With such flow characteristics, the river and its bed are changing at a faster rate
than change might occur in more sluggish rivers or rivers of a less erratic flow.
The bed of the river is very shallow in parts, particularly where there are rapids,
of which there are over 230. The depth is affected by seasonal flows.
There are a number of islands in the bed built up by accretion.
Since 1840 much about the river has changed because of changing land use
patterns, but also because of natural changes in the river itself.
This background explains why Maori and others have used the river in the way they have.
The flow level and water quality affected where people lived, the food that might be
found and the shape and positioning of pa tuna and other fish catching devices. The
gradient of the river and the underlying geology, which means there are no waterfalls or
overly steep rapids, made it accessible by certain craft from the sea to the very upper
reaches.
7
CHAPTER 3
MAORI USE OF THE RIVER SINCE 1840
The People on the River at 1840
A spliced rope, entire from source to mouth. Even if this people tum upon
themselves - the seaward against the inland - should a stronger attack Whanga-nui,
they gather together as one people. They cannot be overcome by other tribes, but
the strong tribes will suffer at the hands of Whanga-nui. Hence the saying, "A
spliced rope, if broken, is made whole again. ,,7
This famous saying gives important clues about who Whanganui people were and how
they saw themselves, both as separate groups and as a collective whole, centred on the
river. The historian Ian Wards, dealing with events in the early part of the nineteenth
century, argues that:
Tribal fragmentation in the Wanganui area was much more complex than at
Wellington, for Wanganui was the centre of a very early Maori settlement, and as
the Wanganui river formed the natural line of communication with the interior, as
well as a natural barrier for movement north and south, tribal alliances were also
more important. 8
Certainly many old traditions relate to the region. The Whanganui river itself is said to
have been formed as a result of a battle in the central North Island between the Taranaki
and Tongariro over the woman Pihanga, the wife of Tongariro. The defeated Taranaki in
his flight to the coast split open the land and water flooded in, creating the river. Kupe
7
8
T W Downes 1915 Old Whanganui p41
Ian Wards The Shadow of the Land. A Study of British policy and Racial Conflict in New Zealand 1832-18521968 pp301-2
8
visited the area, but did not settle there. The first settlers are said to have been
descendants of Pae-rangi-o-te-Maunga-roa, a very early visitor from Hawaiki. 9 One
tradition has the river being given its name by Haupipi, a descendant of Haunui a
Paparangi. According to this tradition, Haupipi was impressed by the width of the river at
its mouth, and named it accordingly. 10
Many iwi lived on the margins of the Wanganui region, Ngarauru and Ngati Ruanui to
the west, Ngati Apa to the southeast, and at the head of the river, Tuwharetoa,
Kahungunu and Ngati Maniapoto were present. l1 Central to the region were a group of
hapu and iwi living along the river and calling themselves Te Ati Haunui-a-Paparangi.
These hapu and iwi had the names Nga Paerangi, Nga Poutama, Ngati Tumango and
Ngati Pamoana, Ngati Haua, to mention just a few.
The existence of this core Whanganui grouping in the decades~1840 is demonstrated by
several notable occasions in the late 18th and early 19th century when Whanganui
gathered on the river to resist a common enemy. Downes in his book Old Whanganui
records these events. As a source, he should be used with some caution. The stress laid
on warfare probably underemphasises the role that alliances played in the Whanganui
assertion of their identity.
At a battle known as Wai-puna; Nga Paerangi, Nga Poutama, Ngati Tumango and Ngati
Pamoana combined to defend Ngati Rongomaitawhiri from attack at "Kau-ara-pawa"
(presumably Kauarapaoa). A taua from the top end of the river had descended to carry
out raids in the south and had desecrated graves of people at Kau-ara-pawa. The
combined Whanganui groups came across the war party at Putiki and pursued them as far
as Whangaehu. The remainder of the taua, on seeking permission, were permitted to pass
9 T W Downes 1915 p3
10 M J G Smart & A P Bates The Whanganui Story 1972 pp22-23. There is a similar account in Downes 1915 p4
11 These relationships are discussed in AWard & others CCTWP Historical Report on Whanganui Land (draft) 1993 p2-7
9
back up the river to their homes. 12 Shortly after the defeated taua launched another
attack, but were again overcome by the combined lower Whanganui tribes at Ope-riki. 13
On another occasion when "the Tuhua people" came down the river seeking utu for a past
affair, they were defeated by a combined force of the lower river groups at the Paparoa
rapid, who pursued them up to the Au-tapu rapid, where they were also trapped by
groups coming down the river under Te Peehi Turoa.14
In 1819-20, a combined force including Patu-one of Nga Puhi,15 Tu-whare, Te Puoho of
Ngati Tama16 and the Ngati Toa chiefs Te Rauparaha and Rangi-haeata passed along the
coast on their way south and defeated a pa of the Whanganui river people at Pu-rua
(Durie Vale) near the river mouth. On their return north, Tu-whare took a "Nga Puhi"
force 17 up the river, but was steadily attacked and finally defeated at Kaiwhakauka near
Tawata by combined forces of Ati Hau, Patutokotoko, Nga Poutama, Ngati Pamoana,
Nga Paerangi under Te Peehi Turoa, and allies Ngati Tuwharetoa as well as people from
the Tuhua area. 18
An early missionary in the region, Richard Taylor,19 records a Whanganui proverb "Te
Koura puta roa", which describes the crayfish, whose legs may be pulled off, but can still
escape among the rocks, referring to the ability of the Whanganui people to retreat up the
river to make their defence against enemies.
12 Downes 1915, p90-91
13 Downes 1915 p92
14 Downes 1915 pl05-6
15 Eruera Maihi Patuone, see DNZB vi p338
16 Te Puoho-o-te-rangi, see DNZB vi p483
17 See DNZB vi p339, Tuwhare was a Te Roroa leader
18 Downes 1915 p1l9-124, and see DNZB vi p559
19 R Taylor Te Ika A Maui 1855 p146
10
Census figures prepared by Taylor in 1843 and 184620 show that the hapu mentioned in
the above accounts, were living along the river at those dates. Census records from the
1870s and 1880s also record the same hapu groups living on the river. 21
Uses made of the River
Many uses were made of the river. Not just for transport and food gathering, cleaning (of
the body and items such as clothing), recreation, socialising and for spiritual sustenance.
The concentration in past inquiries has however been on transport and food, so these will
be briefly dealt with, as well as the spiritual aspect.
Transport
For both Maori and Pakeha prior to the Treaty and until well into the late nineteenth
century, rivers which could be navigated by canoes were very much the routes of access
to the country. The Whanganui river, because of its length, relatively easy gradient, mild
rapids and lack of waterfalls, and its geographic location, running from the central plateau
to the fertile Whanganui region, was extensively used by Maori. Going upriver, travellers
would branch off at the important tributary, Manganui-o-te-Ao, and continue a little way
up that, before continuing on foot up the tributary valley, which opened out onto the
Murimotu plains and the route north around the base of Ruapehu, Ngauruhoe and
Tongariro to Tokaanu. The return journey consisted usually of a canoe from Taumarunui,
or entering a tributary higher up which eventually connected to the main river.
Maori canoes were well adapted to the river. The use that was made of the river and its
tributaries and associated rivers, was extensive, and far greater than any steamer service
ever achieved. Canoes could work in extremely shallow parts of the bed - the steamers of
very shallow draft later built for the river are described as resembling 'gigantic
canoes' .22
20 ATL qMS papers vol 3 p254
21 AJHR 1870 All p8, 1874 G7 p16, DB
22 R D Campbell Rapids and Riverboats on the Wanganui River 1990 p46
11
Canoes had amphibious qualities. They could be dragged around obstacles such as rapids,
or even waterfalls. This gave considerable flexibility to water travel. For example, at the
point where the Ohura river meets the Whanganui near Tawata, there are two waterfalls.
Maori were able to drag their waka over a low spur at that point and continue many miles
up that river. 23 Rapids, which were to cause so much trouble to larger European boats,
could be negotiated by the smaller canoes, it is said sometimes through the use akatea
vines at points where eel weirs had increased water flows. 24 The steamers which were
later to use the river, although more powerful, required a channel to be constantly
maintained and even then, often scraped the bottom when the river was low. On some
rapids the steamers also required a steel rope run through a winch to make progress25
As R D Campbell put it in Rapids and Riverboats on the Wanganui River:
One traveller referred to the riverboat service as 'steamboating on a trout brook',
while another compared it to 'sliding down a mountain on the dew', and constant
work was required to keep the rapid-strewn, snag infested stream clear for steamer
traffic. 26
Canoes had limitations, lacking in power when moving upriver, especially against rapids,
and being unstable. These problems were to some degree overcome by expertise. This
can most readily been seen in the practice of poling up rapids:
On reaching the foot of a rapid, the crew abandon the paddles, stand up in the
canoe, and handle long poles made of manuka, toa toa, or other hard wood, and
charred at the lower end. They now push against the bed of the river in perfect
unison, the poles plunging and lifting, while the canoe foams ahead, as though by
clock-work. The helmsman also steers with a pole, balancing himself in the high
peaked stern, and guiding the canoe by poling under or away from it. The silence
23 AJHR 1899 C-1 p132
24 Campbell 1990 p64 and Wanganui Herald, 16 September 1927
25 Campbell 1990 pp64-5, 88, 137-8, 229-30
26 1990 Introduction
12
is interrupted only by the grating of the pole against the sides of the canoe, and
the foaming of the water, or by the occasional brief word of direction from the
man in the bow, - ki uta! "towards shore!" or ki waho! "outwards!" The canoes
follow each other in single file, with scarcely two feet between the stern of one
and bow of the next; and though a collision would in most cases render the
capsizing of both inevitable, such is the skill of the natives, that an accident rarely
occurs in going up the rapids. The natives of the Whanganui have a known
reputation for this particular exercise; and the men of other tribes poling on this
river are much laughed at for their awkwardness and the numerous duckings they
get in consequence. A crew of experienced Whanganui natives poling up a strong
rapid is a very pretty sight. ... 27
This tradition and pride is apparent in the following report of 1870 which makes a point
of naming the polemen:
Immediately on receiving Mr. Booth's report of the meeting at Ohinemutu, the
Hon. Mr Fox determined to go to speak with Topia, face to face. He went to
Wanganui, to the town. There were two canoes ready for him; one of them, called
the "tupara" was for himself; it was manned by these men: Hoani Tewata,
Paratene Haehaeora, Ratana Te Punipuni, Horopapera Pukeke, Angikiha. These
were all good polers, and strong to force the canoe against the rushing waters of
the Wanganui. The other canoe carried the guns and powder, which he took for
Topia ..... The men who poled that canoe were Horima Katene, Paora Taukana,
Hotereni Kawe, Hamiora Te Karoro, Matenga, Hare Te Hoko, Tikiku
Ruakotuku. 28
Canoes were still used on the river well after steamers and other powered craft became
commonplace. The surveyor Archie Bogle records the use made of them by survey crews
in the early years of this century, and refers once again to the skill exhibited by the Maori
27 E J Wakefield, Adventure in NZ 1845 p327
28 AJHR 1870 A-13 p7, DB
13
polemen.29
This skill was recognised in the steamer service also. Alexander Hatrick, who ran a
private steamer empire on the river for many years, used Maori extensively as crew
members. An official of Wanganui River Services Ltd, the successor to his company,
writing as late as 1947 stated that n[W]e find that white Masters do not seem to be able to
master the Wanganui River Channel the Maoris seem to have the natural instinct for
navigating the river. n30 Maori were skippers of many of the powered vessels, either
officially or unofficially. A Marine Department official noted in 1929 that he had "on
more than one occasion ... seen a certificated man on those boats hand over the control at
night to the Maoris. n31
Food
Early notes of European travellers, Maori Land Court minutes, articles and notes of
evidence for the 1950 commission of inquiry and other inquiries testify to the use Maori
made of the river as a food source.
Many species of fish were taken for food. Hekenui Whakarake, a key witness before the
1950 royal commission, listed inanga, ngaore, paneroro, papanuku, kakahi, piharau,
tunariki and tunarere32. The river supports 18 species of native freshwater fish as well
as koura, freshwater shrimp and freshwater mussels (or kakahi, mentioned above).33
Elsdon Best in an article on eel fishing, referred to 22 Maori names for different types of
29 A H Bogle Links in the Chain 1975 p46-47, DB
30 Letter 20 October 1947 to Secretary of Marine, NA Ml, 14/4/518, DB
31
32
Letter to Minister of Marine 5 October 1929, NA Ml, 14/4/518, DB. Despite these skills being very much in demand, Maori boatmen had difficulty getting master's certificates because of the written exam requirement
Report of Proceedings of Royal Commission 1950 pT3-4
33 Dr G Habib, "Evidence Before the Planning Tribunal" p14, DB
14
eels.34 Much fishing was carried out by the use of semi-permanent structures built in the
river bed commonly called "pa". The closest English equivalent is "weirs". Several points
can be made:
34
35
36
37
38
pa tuna (eel weirs) were of varied size. Large pa tuna built in the main river were
generally placed in the middle of the river, in rapids, and pointing in the same
direction as the flow, rather than running across the current. In smaller streams,
they might consist of two fences placed in a vee shape. 35
pa piharau or lamprey weirs were smaller than pa tuna, and built close to the river
bank, and at right angles to the current36
pa tuna were more than just functional - they were sometimes embellished with
carvings. Downes37 records an incident where a piece of a weir washed down by
a flood was shipped back upstream on a steamer, a sign of some value attaching to
it. They were often given proper names.38
the construction and operation of pa tuna of almost any size required a large
collective effort and a great deal of skill and an investment of time. Downes39
noted "They are exceedingly well built and very strong considering they are
erected in the middle of swift waters from canoes that have to be held in position
by poles, and also where the river bed is composed of boulders and large stones"
E Best "Fishing Methods and Devices of the Maori". Bulletin of the Dominion Museum 1929 p95, DB
TW Downes TNZI vol 50 p307-8
Downes TNZI p313ff
Downes TNZI p308
Downes 307 and Best p 117 quoted 1950 2L-4 and MLC minutes below
39 P 310
15
in the catching of fish, rules to control the taking applied. 40
There were many pa tuna throughout the length of the river. The commission
heard evidence there were 350 of them in the stretch from Raorikia to Whakapapa
before 1890 and 92 pas for piharau.41
the catching of ngaore (a small fish bigger than a whitebait) was achieved by
creating a small wall in the bed close to the river banle 42
ducks were also caught on the river, by means of a stake driven into the bed with
a snare attaching to another in the bank and hanging just off the water. 43
Spiritual
The Maori association with the river contained an intensely spiritual element. The
documentary historic evidence of this has focused on the exploits of many taniwha living
in the river. Tutaeporoporo is perhaps the most famous, but also Tutangatakino, Te
Maru, Mimi and others whose names are not given in the accounts.44 This was a
continuing spiritual link with implications in everyday life. The surveyor Bogle gives an
insight into this when writing of his experiences working with Maori on the river at the
beginning of this century:
Many a time I have seen Maori lads drop a small branch on certain pools or rocks
40 Downes 309 and Taylor Te Ika a Maui?
41 Report of Proceedings 1950. Counsel for the applicants, Spratt, arrived at this figure by counting 230 rapids and speculating on average a couple on most rapids. He referred to maps handed in in evidence. By 1950 it was alleged there were only 6 left (P2) but Hekenui commented there were around 200 (T5) Tarry at X5 says there were the remains of 200 when he was on the river about 1907-30 ie all these figures need to be treated with some caution (and see VI) -
42 Report of Proceedings 1950 pU5
43 Report of Proceedings 1950, pU6
44 1W Downes History of and Guide to the Whanganui River 1921 pI6-17, 48, 61, 64. Dr M Ashby The Whanganui River claim plO WT A35
16
as our canoe slid past. Sometimes, this was done as part of a game carried out
with jokes and laughter, but there is no doubt at all that the older people, and
many of the young ones too, still believe in the factual existence of taniwha and
that these taniwha can bedevil their daily lives. 45
That such beliefs should exist is not at all unusual. Rivers have special meaning in other
cultures eg the Ganges.
45 Bogle 1975 p31, DB
17
CHAPTER 4
FROM THE TREATY TO THE LAND COURT
First Contact
In 1814 the mission ship the Active sailed down the coast but did not land, consequently
naming the mouth of river "Knowsley Bay". The river itself was known as Knowsley
river for some time after. 46 January 1831 was the first recorded European landing at the
river mouth. The whalers and traders Rowe and Powers had heard it was a good spot for
the supply of dried Maori heads. Rowe was killed there by some Taupo Maori and had
his own head dried. Powers was held captive and later traded for some tobacco. 47 At
this time according to Downes, there were no Maori residing permanently at the river
mouth, Te Rauparaha having visited two years earlier, destroyed Putiki and left the lower
river pa sites deserted. 48
In 1834 another whaler and trader, John Nicol, whose wife was born on the river at
Kahura above Pipiriki (and consequently may have given him a better introduction to the
area), traded on the river for some twelve months and was offered land to establish a
store, but declined. 49 This incident illustrates the keeness of Maori to engage in trade.
Maori missionaries were in the area from 1836. The first two parties were summarily
killed, but in 1838 Wiremu Te Tauri from the Taupo area managed to successfully preach
to the Whanganui people.5o
46
47
48
49
Smart 1972 p45
Downes 1915 p167-69 suggests Rowe was lured to Whanganui by some Taupo Maori to whom Rowe had refused to give up dried heads of Taupo chiefs in his possession see also Smart 1972 p45-46 and Campbell 1990 pl1. There is also an account in Taylor 1855 p370-71
Downes 1915 p168
Smart 1972 p46. He retired with his wife to Paekakariki, Campbell 1990 pl1
50 Smart 1972 p47, see also Downes 1915 p170
18
The Treaty of Waitan~i
The CMS missi6nary Henry Williams secured the signatures of 10 Whanganui rangatira
to the Treaty of Waitangi on the 23 May 1840 and 4 signatures on the 31 May.51
Williams was an influential European on the coast,52 and had, earlier in the month,
secured what for government was the vital signature of Te Rauparaha,53 which it was
thought would make negotiations easier with other west coast rangatira. So it seems to
have proved. 54 Octavius Hadfield, who had the year before established his mission on
the Kapiti coast, acted reluctantly as witness. 55
Williams had visited the coast in December the previous year and, in an effort to forestall
New Zealand Company purchases, at Putiki-Wharanui pa near the river mouth secured
signatures to an instrument purporting to purchase "Ngati Awa" land from "Rangitikei to
Patea", to be held in trust by Williams for the affected Maori. As will be seen, this
document was ignored by Wakefield in 1840. Maori understanding of it was probably
imperfect. Williams noted that there were numerous settlements on the river but men
were absent among their populations. 56
Downes in Old Whan~anui gives an account of the Treaty signing. Signators were Hori te
A-naua, Taka, Tawito, Kura-watu-ia, Rere, Te Rangi-waka-ru-rua, Te Tauri, Uripo, Te
Mawae, Te Hiko, Rore, Taka-te-rangi, Pehi-turoa, Pakoro.57 Rere was Rere 0 Maki,
one of the few women to sign the Treaty, and the mother of Keepa Te Rangihiwinui.58
51 C Orange 1989 The Treaty of Waitangi p62-63 & 72-73
52 DNZB v1 p593
53 14 May on Kapiti Island, Orange 1989 p62-63 & p72
54 Orange 1989 p72
55 Orange 1989 p73 note 43
56 Smart 1972 p48-50
57 Downes 1915 p182-83. I have used his spelling
58 DNZB v1 p359
19
Another signatory was Te Peehi Turoa, a prominent Ati Haunui-a-Paparangi leader at the
time. He had been involved at the battle of Kaiwhakauka, where Whanganui tribes had
halted a Nga Puhi taua acting with reinforcements from Taupo.59
The NZ Company at Whanganui
In November 1839 the 19 year old Edward Jerningham Wakefield60 was visited aboard
the "Tory", by 3 chiefs "belonging to the Whanganui tribes"; Te Kiri Karamu, Te Rangi
Wakarurua and Kuru Kanga, Te Rangi's son. The ship was not at Whanganui but was
anchored off theWaikanae coast. A deed was signed purporting to sell to Wakefield's
uncle, William Wakefield, rights over an enormous area; "all those Lands Islands,
Tenements, Woods, Bays, Harbours, Rivers Streams and Creeks ... from Manewatu to
Patea and inland ... to the Volcano or Mountain of Tonga Ridi". 61 Wakefield, in his
own words, was relying on descriptions given by the chiefs of "the boundaries within
which their claims lay. ,,62 Within the area "ceded", the New Zealand Company would
reserve a portion of the land, "suitable and sufficient for the residence and proper
maintenance of the said chiefs and their families". The deed, which was in English, was
given an oral translation only.
Wakefield made two visits to the Whanganui river mouth to "complete" this extraordinary
transaction. In March 1840, he met there Peehi Turoa, Rangi Tauwira and Te Anaua. He
was shown the document that had been signed with Henry William's, but discounted it.
He believed his own, equally imprecise claim to be superior. Two months later Wakefield
returned with a ship loaded with goods. About 700 Maori had gathered at Wahipuna pa
near the river mouth. The English deed was translated to the assembly. Twenty seven
59 DNZB vI p559
60 DNZB vI p575
61 Turton Deeds no 421, DB
62 Wakefield 1845 p142. Perhaps the chiefs were relating the areas to which they had access rights or whakapapa links. L Head 1994 suggests that when Maori thought about land they "undertook a mental journey around it." This idea from Chris Shenton, claimant researcher
20
chiefs signed it,63 and Wakefield placed goods to the value of £700 on the shore and
retreated as a mad scramble ensued. 64
The whole affair was examined by William Spain, the commissioner appointed to
investigate the COmpany purchases, in 1843. In his final report, Spain was scathing about
the purported purchase, referring to Wakefield's "youth and inexperience,,65 and finding
that Maori had received an "imperfect explanation" of the deed and an inequitable
distribution of the consideration amongst them, with several "chiefs of the pah
Putikiwaranui" being entirely unaware of the transaction.66 Spain quoted Wakefield's
own view of the Maori understanding of reserves made in the deed:
I do not think ... that they (the natives) understood that these reserves were in
exchange for lands then occupied by them; but in the course of the discussion
several chiefs stated that as they had sold all the lands within the boundaries
described, they should retire higher up the river and leave the seaboard to the
white men67
Even this shows a misunderstanding of the transaction, since according to the boundaries
described in the deed, apart from reserves, the whole of the Whanganui river was taken.
Wakefield seemed to be reflecting on statements made by Peehi Turoa, who was the key
figure in the transaction.
An interpreter in 1839, Barrett, recollected what he had told the 3 chiefs who first signed.
According to his evidence he spoke in generalities, saying there would be a part of the
63 This according to Wakefield, but the deed shows 32 plus 2 earlier signatures
64 Wakefield 1845 p289
65 GBPP v5 pS7, and subsequent GBPP references are in the document bank
66 GBPP v5 p89
67 GBPP v5 p81
21
area being sold reserved to Maori, but not specifying the matter further. 68 Brook, the
other interpreter used by Wakefield, gave the commission a line by line translation of the
English deed, as he had provided it in 184069 • The relevant parts read:
ye men of this land of Wanganui, on this coast - this north coast; on this day, you
give (us) your lands, islands, rivers, trees, large streams, little streams, trees, the
lands which I mention to you, to the European, to Edward Wakefield.
do not be jealous (do not suppose) that we, the Europeans, shall take all the land;
one side will be saved for you and your children in all the rivers, trees as far as
inside Tongariro; all the lands, islands, all the trees, the large streams, the
anchoring places, the little streams, Manawatu, Rangitikei, Wanganui, Patea, till it
reaches the interior at Tongariro.
The variation from the written deed is obvious. 7o Spain found further weaknesses:
68
69
70
71
Peehi Turoa, probably the most important chief in the transaction, stated that he
alone consented to the deed, that it was not translated to him and that he pointed
out the places where Pakeha were to settle. His understanding was clearly
diametrically opposed to Wakefield's. Wakefield's statement above about the
Maori understanding of the reserves concept seems to confirm this71
Other chiefs said either they had not received payment or had not understood the
GBPP vS p82
GBPP v5 p75
Presumably Maori were not confused by the fact that the transaction was in fact with Edward Wakefield's uncle, William Wakefield.
GBPP v5 p85 and supported by evidence of Te Karamu p84 and Te Anaua p86
22
deed. 72
Kurukanga, Wakefield's confidant, and the chief mainly responsible for gathering
people for the transaction, on whom Wakefield from his own account was totally
reliant,13 did not come forward and in Spain's view deliberately avoided
examination. 74
There was confusion about a "gift" of pigs and potatoes from Maori to Wakefield
immediately after the deed was signed in 1840.75
Not surprisingly, historians have reached the common conclusion that the transaction was
extremely dubious 76.
Spain did not however recommend that it be cancelled and completely re-negotiated.
Governor Hobson had already allowed the Company to commence surveys for 50,000
acres of land near the river mouth for the company settlement.77 Spain found that "a
partial sale of land had taken place,,78 and recommended that 40,000 acres be given to
the company, subject to reserves for Maori, with "compensation" of £1000 be paid to the
chiefs based near the river mouth who had missed out in the original scramble.
There can be no doubt that Spain was responding very much to the fait accompli
presented by the company settlement which had already been partly surveyed. He never
"seriously considered rejecting the Company claim, his primary aim was to make the
72 GBPP v5 p84-86, this included the key chiefs Te Mawae and Te Anaua
73 One chief stated that Wakefield was known as "Kurukanga's white man" GBPP v5 p84
74 GBPP v5 p86
75 GBPP v5 p87
76 I Wards 1968 p304, R Tonk "The First NZ Land Commissions, 1840-1845" MA thesis, 1986 p324, CCJWP 1993 p7-8, S Cross "Whanganui 1840-1907" 1994 p20
77 CCJWP 1994 p8
78 GBPP v5 96
23
"purchase" acceptable to Maori.79 He was also operating under a misconception. As the
CCJWP report puts it:
Tribal right was very complex at the mouth of the Wanganui. This was largely
because the area was used seasonally rather than being permanently occupied. . ...
The majority of the population lived up-river owing to the soil being more fertile
and settlements more easily defended. However, movement down the river to
utilise seasonal resources was an important aspect of entitlement, complicating
rights of ownership at the coast. 80
Spain interpreted this seasonal use and the rights stemming from it quite differently. He
believed that Maori were present in numbers at the river mouth as a consequence of the
European presence. Otherwise these areas were largely useless to Maori and infrequently
visited.81 Addressing Maori at Putiki Waranui pa in May 1844, he told them that the
Governor had asked him to "settle the disputed question of the land purchase" reserving
pa, cultivations, "sacred places" and fisheries to Maori, but making "a payment for those
other waste lands which were sold by certain natives of Wanganui and which have since
been surveyed by the Europeans. ,,82
This approach disregarded the fact that Maori rights at the river mouth and in the river
itself were some of the most valuable rights in that area. In 1847, Richard Taylor made
the following note in his diary:
... I had a long conversation with Mamaku; ... He gave the natives a long account ... '\ -
of what he thought was European policy, saying that we had taken the harbour of
79 CCTWP 1993 plO
80 CCTWP 1994 p7
81 ItI am clearly of opinion that the Hutt, Wanganui, Taranaki, and other places, the natives attracted by European settlements, ... have come and cultivated in the immediate neighbourhood of those places, which they would not otherwise had thought of taking possession of. It GBPP v6 p157 quoted in CCTWP 1994 plO and see quote from Spain on p9
82 GBPP v5 p96, emphasis added
24
Wellington so that no native could go in or out without permission, that we were
doing the same at Waikanae, Porirua, Otaki, Ohau, Manawatu and Wanganui.
Taylor replied that at Wanganui "one side of the river at least" belonged to the natives
and they possessed the entrance "as much as the Europeans. ,,83 Taylor records another
incident in 1847 where Maori objected strongly to having their canoes searched every
time the visited the European settlement. The practice was discontinued.84
Apart from various land reserves, Spain noted:
I have also found it necessary to expressly except the "Lake St. Mary," and all the
native eel-cuts, and the right of fishing upon the lakes "St. Mary," "Medina,"
"Dutch Lagoon," and "Widgeon Lake," as the natives would not consent to part
with them, having been in the habit of fishing there from time immemoria1.85
Spain had told Maori at Putiki in 1844 that "fisheries" were to be reserved.
Spain also at this time "intimated" to William Wakefield that one section in every ten
throughout the 40,000 acre block awarded to the Company should be reserved for Maori.
Wakefield agreed to this.86 Spain did not mention the river in his report.
Although Spain talked about the £1000 as "compensation", the payment was really for a
whole new transaction. His award was not put into effect for another 5 years. He visited
the Whanganui chiefs in 1844, but was unsuccessful in getting them to accept the £1000
"compensation". The objectors were told that it was too late to question the matterP It
83 Taylor qMS diary March 12 1847 to 31 Dec 1848 p39-40,
84 Ibid p552-3
85 GBPP v5 p89
86 GBPP v5 p89
87 GBPP v5 p91
25
was only after a visit in 1846 by Governor Grey that Whanganui Maori agreed to sell the
land (something the government assumed they had already done) and accept the money.
J Symonds, with Donald McLean acting as interpreter, arrived to finish the task in the
same year. But this effort was also delayed, in part by disputes over reserves, but also by
fighting which erupted in the district from 1846.88 Symonds address to Maori once _ _ N .....
again assured them that "eel-cuts and fishing grounds II as well as lands for their own use
would be reserved to them.89 Maori insisted on having marked out a substantial area of
river frontage at Putiki.90 Once again, if rights in the river were to be affected, there
was no suggestion from the Maori or European side that this was so.
In M~~6 Topine~aku lead ~~taua against J~ou1cott's farm. He returned to
Wanganui and warned government not to send soldiers to protect settlers there. As
tension mounted, in December 1846 two government ship were sent to Wanganui with
troops and gunboat in tow. Stockades were established, one using timber floated down
and sold by Maori from 10 miles up river.91 In April 1847, a young man, Hapurona
Ngarangi, was injured on board a gunboat. An outlying farm belonging to the Gilfillan
family was attacked and some of the family killed. The murderers were captured, with
the assistance of 'lower' river Maori and hung. In retaliation, in July 1847 there was an
attack on the township.92 Spain had noted in his 1845 report that there appeared to be a
division among the Maori groups on the river between 'Patutokotoko' and those of
'Putikiwaranui'.93 These events heightened that division, with chiefs like Hipango and
Metekingi and Keepa now directly benefiting from the Whanganui settlement, supporting
the European settlers and the government against the "upriver" people such as T~pine T~
88 GBPP v5 p597 ff, and Smart 1972 p66-67
89 GBPP v5 p600
90 GBPP v5 p600, to the dismay of the company surveyor Willis, who registered his protest, letter to Symonds 18 May 1846
91 Smart 1972 p68
92 The battle of St John's Wood
93 GBPP v5 p97
26
~Peehi Turoa, Mawae and others who attacked the township.94 Essentially, the
Spain "award' had become a separate transaction with this former group.
It was against this background that Donald McLean returned to complete the allocation of
reserves and payment of "compensation" in May 1848.
He spent a month in the Whanganui region collecting claimant groups together, deciding
boundaries and inquiring into respective rights. Late in the month 600 Maori assembled
and over 3 days the final deed was explained and signed. 95
McLean had considerable trouble in settling the deed. In the middle of the month it
became apparent that Ngatiruanui interests from the Kai Iwi region were concerned about
the northern boundary of the proposed purchase. McLean in his official report stated that
he induced these people to join in the transaction as a means "extinguishing their long
pending animosities". 96 While dealing with that issue on the north western boundary of
the block, "Natives were arriving from different parts of the coast, some of whom
travelled day and night to oppose the boundary. ,,97 He managed to convince these
objectors also to join in the transaction. Peehi Turoa and allied chiefs, whom he visited
up river, were reticent about associating with the "Putiki tribes" because of the recent
hostilities. 98 McLean had also to threaten a delay in payment through the detailed
examination of the contending claims to force the pace of the transaction. 99
At a meeting on the 26 May, the terms of the deed were explained to 600 Maori:
94 J Cowan The NZ Wars (reprint) 1983 p136-140
95 AJHR 1861 C-1 p248, DB. Meetings were held on 26,27 & 29 May 1848
96 p248
97 Idem
98 Ibid p249
99 Idem
27
The deed of sale, which I drew up in the most simple and perspicuous, yet
binding, terms that the Native language would admit of, was then read over, the
Natives fully assenting to the external boundaries, the boundaries of their reserves
(all of which were pointed out to them on the map annexed to the deed), and to
every other condition embraced in that document, '" 100
The reserves McLean noted that had been made for Maori were about 10% less than
those Spain had recommended 101 The area that he estimated had been purchased was
86,200 acres, well above Spain's award. 102 Yet no more than the £1000 awarded by
Spain was paid. This discrepancy alone must throw into serious doubt the fairness of the
transaction. McLean pointed out however that Maori had retained valuable land at
Putiki.103
McLean's unofficial report of these events made at the time was less cheerful. The Kai
Iwi group had:
been most troublesome and in surveying the northern boundary they gave a great
deal of trouble and endeavoured to reduce the block by several thousand acres, the
Wanganui natives fearing that I should have a minute investigation of the claims of
every tribe fully admitted the rights of those of Kai Iwi who to the number of 140
collected from different parts of the coast are assembled here to receive a share of
the compensation ... 104
This and the fact that the Symonds arrangements of 1846 had been "so imperfectly
understood by the Natives" had led to "most perplexing difficulties". He had had to
100 Ibid p249
101 Ibid p250 and see CCJWP 1994 p14
102 Idem and see CCJWP 1994 p15
103 Idem
104 letter 27 May 1848 to the Governor, McLean Official Letter Book 5 April 1848 - 21 Aug 1848, ATL qMS 1208, DB
28
revisit major aspects of the Spain award:
Mr Spain in his award to compensate the natives by paying the £1000 considered
no other claims than those of the people of Wanganui leaving a powerful body of
other claimants who had a title to a large portion of the district awarded by him
without the altogether unnoticed natives knowing what boundaries of the land
awarded by him were.
The Wanganui people considered that they were alone entitled to receive the
amt[sic - amount?] publicly and expressly[?] awarded to them and they consider no
doubt that injustice is done to them by not adhering to the Commissioners award.
The other natives not recognised by Mr Spain fully determined not to part with
any portion of their land at any .... [?] unless it was fairly and openly purchased
from them and I had an instance the other day of how this determination would be
... [?] by upwards of 100 natives having come to Kai Iwi to resist any part of their
land being disposed of and they even refused to accept a share of the compensation
intended for the people of Wanganui,,105
To top it all off, McLean was suffering from rheumatism, a cold, and bruising he had
received in an accident while surveying the northern boundary. He had barely made it
through the meeting on the 29th where the money was distributed.106
The final deed itself was detailed, both in the Maori and English, as to the boundaries of
the block and the boundaries of the land areas reserved. Many boundary points were
marked by posts. Inserted into the Maori version of the deed (suggesting that it may have
been a late addition to, or even after, the discussions), after the words "i a matou te tangi
te mihi te poroporo ake te tuku tonu atu rna te pakeha", were the further words:
105 Idem
106 Ibid, letter of 30 May 1848 to Governor
29
me nga awa me nga wai me nga rakau me nga aha noa iho 0 taua wenua
The English translation, produced several days later, and in which the insert was not
apparent, renders the first words as, "we have wept and sighed over, bidden farewell to,
and delivered up for ever to the Europeans [the land]" and the latter as, "together with
the rivers, streams, trees and all and everything connected with the said land. ,,107
Other references to water in the deed include several references to the Whanganui river as
a boundary point. For example, the boundaries of the large reserved block of land "in the
neighbourhood of Putiki Waranui", are marked by stakes and lines running "straight to
the Wanganui river", or "tika tonu atu ki te awa 0 Wanganui". The other reference is in
the first reservation mentioned, the fishing rights mentioned by Spain in his 1845 report.
The deed stated:
Ko te wahi tuatahi e wakatapua nei mo matou koia tenei ko nga awa wakaheke i te
tuna i te inanga ano hoki ki Wiritoa ki Pauri ki Kaitoke ki Okui ki Oakura ki etahi
atu awa mahinga tuna mo matou i roto i nga rohe kua riro nei rna te Pakeha.
This is the first reservation for us. All our Eel and Inanga cuts at Wiritoa at Paure
at Kaitoke at Okui at Oakura and other streams for fishing Eels within the
boundaries which have been given up to the Europeans. 108
The map McLean used during the proceedings gave no indication that "nga awa me nga
wai" included the river. On the map the northern boundary of the block, ten miles
upriver, did not cut across the river, but stopped at the river banks. The only other
feature of significance is the word "Wanganui" near the mouth of the river.109
107 DOSLI deed no 286. The English translation was made several days later by McLean
108 Emphasis added
109 DOSLI HO 221, DB. It is entitled "Map made for the Natives in explanation of the boundaries of the Block and of the native Reserves (Coloured yellow) as described in the final Deed of Sale". It is signed by McLean as Inspector of Police
30
Events after the Deed
In 1849 McLean was again at Wanganui. While there he "settled" several disputes
brought to his attention. In a letter to the Governor he described one of these:
The next case was a claim by some natives on a log of timber having their mark
which was sunk in the river and was taken from there by the Gunboats crew. In
this case the natives were given to understand that all logs in the river excepting
those immediately fronting their reserves were European property, therefore they
could not claim them, this decision was quite satisfactory and they were further
informed that although their right was extinct[,] in as much as some of those logs
imbedded in the river and obstructing the channel were injurious to the navigation
there was no apparent objection to them removing them so long as no objection
was made by the Europeans to their so doing. 110
It is difficult to know what to make of this. McLean was saying to Maori that there was
now a European interest in matters related to the river. He did not refer to the deed of
1848. The decision provided was a very practical one, giving the log to the finders, but
suggesting a flexible rule for later situations. In his book A Show of Justice, Alan Ward
discusses the operation of the resident magistrates court in Wanganui at the time. Maori
were quite happy to bring their disputes before a Pakeha adjudicator and the magistrates
reported they were quite satisfied even when decisions went against them. 111 In this
case, as McLean's letter makes clear, he was settling matters which would have come
before the then magistrate, Major Wyatt. In a later account of this incident, by a third
party recalling a discussion with McLean, it is stated that Maori had asked whether when
they sold the river they also sold the logs in it. 112
110 McLean qMS 1210, official letter book 12 Dec 1848-7 Aug 1849, letter to Governor 16 July 1849, DB. Ref from David Young
111 1974 p75-78
112 Whanganui River Stories and Major Brassey's Diary, handwritten notes from the diary, "An account of an Overland and River Journey taken by Donald McLean and Major Brassey in 1850" entry in May 1850: "Mr McLean says that a log was sometime since found in this river and raised. When taken out the Natives remarked a brand of theirs upon it and claimed it enquiring whether
31
In June 1862 the resident magistrate at Whanganui sent a letter to the Native Minister
concerning "eel and inanga weirs in the District of Okui, on the Mataraua Stream and its
tributaries". This was the area where some specific fishing rights had been reserved in the
1848 deed. There was European pressure to have them removed and a sale of the rights
appeared possible. John White, the then resident magistrate for Whanganui, reported back
to the Native Minister in November 1863 that he had identified the fisheries affected in
the company of the chiefs Tamati Pehira and Hoani Hipango. One of the principal weirs
had been set fire to by someone "supposed to be a European", which had nearly ended
negotiations. Each of the 56 affected weirs had a name, and White listed these.1l3 The
owners wanted £200 for their sale.
White was asked in a minute from W Mantell if "the sum named is understood as an
equivalent for the cancellation of the whole eel-pa clause and rights under it in the
Whanganui deed." White replied it was not. Only the 56 named fisheries were affected.
The Native Minister minuted Featherston, the Wellington Superintendent, whether the
price was acceptable, adding his fear that at the price "the extinction of eel-weirs at
Whanganui would involve the extinction of the balance of the Land Purchase Fund of
Wellington." Featherston's reply was brief. The price demanded was "monstrous". No
more than £25 should be agreed. After further discussion, £35 was paid. The deed
recording the sale provided:
... kai whakarite hoko whenua 0 matou tikanga katoa, me 0 matou take, me 0
matou paanga katoatanga ki nga pa-tuna me nga mahi i nga Inanga katoa i roto i
when they sold the river they also sold the logs in it? Major Wyatt, to who they applied went to Mr McLean and they decided that a log if found in front of Native land should be Native property, but if European land, European property", ATL TW Downes qMS 0630 Item 31, plO, DB. A letter on this file indicates the diarist may in fact be William King. The original diary is in Wanganui Museum.
113 the weirs were Wharetahi, Otapiri, Oti, Waihirereiti, Waihirerenui, Te Houhi, Aratawa, Ngawarua, Okurangatai, Puhikanui, Mangapaiari, Ta Kahakaha, Te Paikiaka, Te Piri-o-Hema, Tatai-o-teMatau, Te Rere I, Te Rere II, Pirinoa, Putataua, Maraeroa, Tutumapou, Whangairiro, Okahukura, Rotokopu, Kairepa, Kahukatia, Whareatua, Kaitara, Maeanui, Tanga-a-te-Kahoroiwi, Waikamate, Te Poroporo, Tuhi-a-te-Rerewha, Te Awahurie, Moturautawhiri, Makakahi, Te Uri-a-teWharemoa, Korakonui, Otarawairua. Matakanohi I, Matakanohi II, Puharawhara, Te Kupenga, Mangamutu, Arapakiaka, Te kpoua, Te Parapara, Kohikohitawa, Te Ngarukaiwaka, Mata Hereputu, Kohukohu, Maraua, Takanga-o-Ngatai, Te Mata, Te Kaiwhata.
32
nga awa i Okui otira i Matarawa i Kaukatia i Puwharawhara iMatakarohe i
Mangamouku i Mangamutu i Mataongaonga me 0 ratou awa ririki katoa .
... all our rights title and interest in the Eel Weirs and Manga Fisheries situated in
the streams in the Okui district, i.e. in the Matarawa, Kaukatia, Puwharawhara,
Matakarohe, Mangamouku, Mangamutu, Mataongaonga streams and their
tributaries ... 114
The Maori used in this case (The eel rights and streams are explicitly referred to and the
term "i roto i nga awa" used), and the naming by White of each eel and lamprey pa,
compares with the extremely broad words of the 1848 deed with regard to water
rights. 11s
In December 1871 the resident magistrate for Whanganui, Woon, made the following
report:
I have the honour to report that in accordance with the direction contained in your
letter .... I attended the present sitting of the Native Land Court at Wanganui
accompanied by my legal adviser Mr Duncan, to oppose the legal claims put in by
the Putiki Natives to the foreshore of the Wanganui River abutting upon said
reserves. 116
In two of the claims, large areas of foreshore had been included in maps produced, and in
another the bed of the river was included in the survey map. Woon went on to note that
the court had excluded these areas on the ground that since the written applications
mentioned only the "Whanganui River" as a boundary, this meant only the river to the
high water mark.
114 Turton Deeds
115 In the time available, it has not been possible to discover the Maori reaction to their initial offer, or why they apparently accepted the much lower government offer
116 NA MA-WG 2/1 p297-8, DB
33
The applicants were obviously infuriated by this legal sleight of hand. Woon warned his
for the superiors that at the next sitting a further special claim would be made ------~~----~-
foreshore and riverbed. Some idea of Maori feeling can be gauged from Woon's request ?It C == ti
"-
at this point, to withdraw from the matter and leave it to the legal adviser:
it is not advisable that I should be placed in a position antagonistic to the Natives,
and whereby I may lose their confidence and friendship.117
The land court minutes show that Takarangi Mete Kingi appeared before Judge Smith
with a claim to Te Operourou No 2 block, including, in Mete Kingi's own words, "ko te
rohe ki te H[?] ko te awa 0 Whanganui - me tango ki waenganui 0 te awa,,118 The
surveyor, HC Field, said that he had been instructed to survey "down to low water mark"
and had done so.
Presumably using the reasoning referred to by Woon, Smith ordered that a title to the
land be issued "less portion below high water mark" .119
The Crown then -applied for all cases concerning the river foreshore to be heard there and
then. For the block Ngongohau no 1, part of the Putiki reserve, Field noted "the
boundary extends to the centre of the river - pegs are put in at high and low water
marks,,120 Despite the applicant, Hori Kerei Paipai, in this case tracing the boundaries
on the map, the £Qurt ruled tha~e m~ended beyond the ~ording of ~he
application and must therefore exclude river bed below the water mark.121
Several other cases followed, with the same result - exclusion of any area below high
117 Ibid p248. Emphasis in original
118 Whanganui MB ID p491, DB
119 Ibid p491
120 Ibid p493
121 Ibid p494
34
water mark. 122
In its 15 December issue the local newspaper, the Evening Herald, crowed about the
Crown success. Maori claims to the foreshore had been expected:
At one time no less than from the shore to the centre of the river would satisfy our
friends, but their demands somewhat abated, and they would have been satisfied
before the Court opened with the frontage to low water mark. The Government of
course were prepared to resist the demand ...
The natives relied on the Treaty of Waitanga,[sic] which secured to them the land,
forests and fisheries of New Zealand ... if the Natives had been advised as to the
law of nations, they would have seen that "Sovereign rights" debarred them from
claiming below high water mark123
The paper continued (a little optimistically) that Maori had acknowledged the "Queen's
rights" and waived their claims. It went on to note that another complaint had arisen over
a roadway at Putiki. The Maori argument was that they understood they were to have one
side of the river, and Europeans the other. They also raised a complaint that European
diversion of the river had eroded the 'Maori side'.
Several observations can be made:
the Whanganui deed was not mentioned in any of these proceedings
the Crown had been grappling with the issue of Maori claims to ownership of the
foreshore for several years prior to these events. In 1869 Maori had claimed areas
of foreshore in the Coromandel, and cast doubts on goldmining rights in that
region. In December 1870, Judge Fenton ruled in the Kauwaeranga case that
122 Ibid p502, 505
123 15 Dec 1871, DB
35
Maori had fishing rights only in the foreshore. His main reason appears to have
been a policy one:
I cannot contemplate without uneasiness the evil consequences which might
ensue from judicially declaring that the soil of the foreshore of the colony
will be vested in the Natives, if they can prove certain acts of ownership,
••. 124p69
He rejected by implication a Crown contention that Maori could not have owned
the foreshore according to their customs and usages, and that any such ownership
would derogate from prerogative rights of the Crown.125
these court sittings occurred several days after the opening of the first bridge over
the river at Wanganui. This event and the actual and symbolic change it
represented to river use, may have suggested to Maori that their rights in the river
were being questioned. The historian Smart, records that at the bridge opening,
Mete Kingi complained about tolls being levied for its use and asserted that Maori
had never sold the river. 126
It is interesting to note that in 1863, Waikato Maori asserted a similar claim to that river.
Gorst records that:
On hearing of the Governor's steamer, the natives determined to assert their claim
to the ownership of the river, and to make it clear that the purchases of the Crown
did not extend beyond the dry land. For this purpose, Neri took upon himself to
survey the boundary of Mangatawhiri, and erect a post on our side of the river,
bearing the notice, 'This is the Pakeha's boundary; the water belongs to the
124 Quoted by Adams J in [1955] NZLR 419 at 448, in support of his view that Maori should not be awarded ownership of the Wanganui river bed. The case is reproduced at AJHR 1948 G-6A
125 The case is discussed in Law Commission report The Treaty of Waitangi and Maori Fisheries 1989 p116
126 Smart 1972 p .. I have been unable to fiud the original source of this quote.
36
Maories.' In accordance with the wishes of the Government, I had this post pulled
up, and wrote to tell Neri that it would not be allowed to stand on Pakeha land.
Pulling up this post, which Wiremu Kumete re-planted, was considered an ample
ground for expelling me. 127
The European presence on the river had certainly been increasing. In September 1857 the
steamer Wonga Wonga became the first to enter the Wanganui river. In April 1858 it hit
a snag on the river. The 4 Wanganui representatives on the Wellington Provincial Council
asked for funds to clear snags and place buoys in the river mouth area. 128
With the construction of the town bridge completed in 1871, the councillors of Wanganui
sought powers to reclaim lands on the western river bank. The Wanganui Bridge and
Wharf Act 1872 provided for the Crown to grant 3 acres of foreshore near the bridge to a
local corporation of the mayor and councillors. 129
The Wanganui River Foreshore Grant Act 1873 provided for the grant of 29 acres of the
river bed in the foreshore area to the Superintendant of Wellington for reclamation works,
using the Public Reserves Act 1854.130 Any grant was not to "prejudice the rights of
any persons claiming and entitled to water frontage" .131
In December 1873 the Wellington Superintendent secured the services of the assistant
engineer in chief for the colony to carry out a survey of the river to determine "the best
method of improving its channel". 132 The engineer's report concerned the lower river
(20-30 miles from the bar) and recommended the construction of groins on the lower
127 Gorst The Maori King p216
128 Smart 1972 p97-98, Campbell 1990 pl1. It is not clear what authority was available to do this, presumably a general power given to such councils.
129 ss 26 & 31
130 s2 and schedule
131 s2
132 AJHR 1874 E-4 pI, DB
37
river to channel the flow and avoid erosion on the eastern bank opposite the town. He
observed that the supply of stone for this work could be procured at a spot 12 to 15 miles
upriver. 133
His report coincided with efforts by the Wanganui borough to secure further foreshore
grants for rec1amation.134 These were successful, and the 1873 Act was replaced a year
later by another foreshore grant act which provided for 7 separate parcels totalling over
50 acres to be granted to the Borough of Wanganui by the Governor. Section 4 provided:
There shall be excepted out of Lot E of the said lands hereby authorised to be
granted, such part of Lot E, not exceeding one acre in extent, as the Governor
shall think fit, and the same shall be deemed to be vested in Her Majesty as a
reserve for the use of the Maori inhabitants of the Town of Wanganui and the
neigbourhood, as a market-place and place for landing and embarking goods and
persons, and for such other purposes as the Governor may from time to time
determine.
The more comprehensive Wanganui Harbour and River Conservators Board Act 1876,
which established a separate board to carry out river works, repeated the provision. 135
The reserve was briefly discussed at the passing of the 1874 Act. Sir Donald McLean
sought an assurance from the member for Wanganui that "a reservation should be made
for the Natives, who came down the river in large numbers with their produce, and who
would have no place to lay their canoes alongside of, unless such a reservation were
made". He thought that one acre would be sufficient. 136 It was agreed that a reservation
would be necessary "because the trade with the Natives was very important to the
133 Ibid p3
134 See generally AJHR 1874 E-4, DB
135 s53, DB
136 NZPD 1874 vol 16 p853, DB
38
town. ,,137 Another member thought this should not be left to the goodwill of the
borough however, and suggested the land be vested in the Crown to ensure "that proper
accommodation was provided for the Natives" .138 McLean agreed with this approach.
One of the first actions of the new board was to propose channelling the river at the
mouth to prevent it periodically breaking through a narrow spit to the sea.139 When
Keepa heard of the plans he voiced his concerns in a . letter to the Board:
My ancestors downwards, have been in the habit of frequenting these waters from
the ancient Pa of Putiki Wharanui. The right passage for the waters of the
Wanganui to take is that through Te Patapu, which is now being closed by the
Europeans. If you persist in closing up the passage naturally sought after by the
contending waters of the Wanganui, the money the Government spent thereon will
float to sea and be lost sight of. In ancient days, before the memory of living man,
this was the course taken by the Wanganui. Therefore, I advise you, let the waters
seek their ancient outlet by the direct channel of my ancestor, Rere 0 Maki, to
nature's outlet. 140
Keepa was not just expressing concern about these activities, but also naming a part of
the river.
Crown policy over tidal areas was set out in a comprehensive Harbours Act enacted in
1878. Section 7 provided that "Nothing in this Act shall be construed or allowed to affect
any right or prerogative of Her Majesty, her heirs or successors." These prerogative
137 Idem
138 Idem
139 At the introduction of the bill in 1876 it had been argued that the port would become of great significance, and "[o]bstructions to the navigation of the river would therefore prove a great drawback. The headland at the entrance to the river was crumbling away, ... if steps for the protection of the river were not promptly taken, the channel would be destroyed in two years", NZPD 1876 vol 23 p428, DB
140 Smart 1972 p98-99
39
rights were not spelt out. Section 147 provided that "No part of the shore of the sea, or
of any creek, bay, arm of the sea, or navi~able river communicating therewith, where and
so far up as the tide flows and re-flows, nor any land under the sea or under any
navi~able river" was to be granted to any person without special act of the general
assembly. The reference to the beds of navigable rivers presumably did not refer to the
Wanganui river beyond its tidal limit. The term "navigable" in early common law
referred only to tidal areas. 141 This limit was a little way beyond the northern boundary
of the McLean purchase of 1848. The effect of the Act is discussed in the Law
Commission report, The Treaty of Waitan~i and Maori Fisheries. 142 As a measure to
limit executive power, arguably it did not affect Maori rights.
141 See Halsbury's Laws of England 3rd ed v39 para 664 & note. Although the Crown solicitor in 1945 suggested the Harbours Act 1923 which repeated this section might apply beyond the tidal limit. See under "Supreme Court" below
142 1989 p160-61
40
CHAPTER 5
THE LAND COURT 1866 TO 1890 AND THE MAORI RESPONSE
Land Legislation. Title Investigation. and Land Sales
The war of the 1860s, which saw several actions along the Whanganui coast, and also
upriver, including the famous battle of Moutoa, meant that European settlement in the
district did not immediately move much beyond the boundaries of the 1848 deed. Cross
notes that, apart from the 1848 transaction, land purchasing in Whanganui area was
"largely negligible until the 1870s." 143
Peace in the region brought European settlement. The first blocks of Maori land passed
through the Native Land Court in 1866. 144 At that time the Native Lands Act 1865
provided that anyone Maori could in writing apply for investigation of title to land. Upon
investigation by the court, it would be awarded to no more than ten persons. These
named owners had full powers of alienation. A block of over 5000 acres could be granted
to a tribe. 145 This provision appears to have been seldom used and there is no evidence
it was used along the river. Also, while a certificate of title could be made out in the
name of a tribe, the Crown grant had to be to "persons" .146
Few blocks fronting on the river passed through the court in the early years of its
operation. The court investigated the small Ranana block near Pipiriki and Upokongaro
block near Raorikia in 1867. These remained in Maori hands.
The 1867 Native Lands Act provided that apart from the ten owners that might be named
143 Cross 1994 p37
144 Whanganui MB 1A
145 s23. Although the provision appears to state that in any event there must be no more than ten "persons" named on the title
146 s46
41
in the body of a certificate of title, all others with an interest were also to be listed.
Alienations, other than a lease up to 21 years, were not permitted without the interests of
all persons listed being first considered by the court. 147 This provided some protection
against sales without the consent of all those affected.
The Court issued titles for a further two small riverbank blocks, Te Pungarehu and
Omaru, in 1871.
The Native Land Act 1873 was a major revision of the law. The Governor was to divide
the colony into districts. 148 For each district an officer was to be appointed:
(1) To prepare for record a general skeleton map of the district assigned to him,
distinguishing the different tracts of country in possession of the various tribes or
hapus of the Natives at the date of the singing of the Treaty of Waitangi, and the
nature of the tenure thereof.
(2) To compile with the assistance of the Assessors, and of the most reliable .chiefs
of the district, ... accurate and authentic information relative to the district ...
defining intertribal boundaries by their Native names, giving the estimated acreage
of such tribal land, with a description of the course and direction of the principal
rivers running through such land, and the names and positions of the various
mountains lakes and other salient points ... 149
The officer was then to identify reserves, making provision for no less than 50 acres for
every man woman and child in the distriCt.150 Title to these reserves was then to be
ascertained, and then they were to be gazetted as inalienable except by consent of the
147 s17
148 s5
149 s21
150 s24
42
Governor in Council. 151 This scheme was based on the premise that Maori had
"surplus" lands to sell, and would gladly part with these, knowing that inalienable
reserves remained. 152 This appears to have been the only mention of rivers in native
land legislation of the period.
The scheme never operated in this manner however. The system of largely ad hoc
investigation of title to discrete blocks and sales by individuals of their interests
predominated, encouraged by the fact that memorials of ownership rather than certificates
of title now issued, listing the names of all those entitled and noting their respective
shares. 153 It was under this and similar legislation that major blocks along the river
were investigated and some later alienated.
1875 and 1876 saw several riverbank blocks on the lower river, Parikino,
Ngarakawhakaraka, and also the two large Retaruke and Kirikau blocks near Taumarunui
pass through the court. These latter 2 were immediately purchased by the Crown. By
1886, blocks on most of the upper river area between Whakapapa and Pipiriki had been
subject to title determinations, including Waimarino, Taumatamahoe, Maraekowhai,
Opatu, Kioro, Whakaihuwaka, Popotea, Ngaporo. Major parts of these were sold to the
Crown in the 1890s. The exception being Waimarino, which was sold within a year of
title being ascertained. Mter this date, numerous smaller blocks were investigated, but
few were sold to the Crown. 154
In none of these land transactions, either in title investigations or sales, was the bed of the
river explicitly referred to, although fishing and other rights affecting the river were.
Only one block, Ohotu, crossed the river, and even there no statement about the river or
151 s30
152 see "Synopsis of Legislation" AJHR 1891 G-1A, in Waitangi Tribunal Pouakani Report 1993 p378
153 s47ff
154 See table 1, next page
43
BLOCKS
RIVER BLOCKS Title Crown purchases to 1903
Block Name Area Investigated Date Area
Ranana 3,100 Jan 1867 2 Upokongaro 1355 Jan 1867 3 Te Pungarehu 76 Sept 1871 40maru 625 Dec 1871 5 Whakahuruwaka 137 Jul1873 6 Pari kino 226 Mar 1876 7 Ngarakauwhakarara 4995 Mar 1876 8 Retaruke 20585 Mar 1876 1877 17320 9 Kirikau 17933 Mar 1876 1876 17629
10 Te Rimu 369 Jan 1879 11 Patupa 495 Jan 1879 12 Pukekowhai 280 Feb 1879 13 Pukenui 1040 Feb 1879 14 Marumarutotara 1203 Feb 1879 15 Raoraomouku 8697 Jul1881 1881 8697 16 Mangapukatea 2495 Aug 1880 1881 2495 17 Ramahiku 360 Aug 1881 18 Puketarata 2020 Mar 1882 190patu 6537 Jan 1886 1887 6342 20 Koiro 7636 Feb 1886 21 Ngaporo 2900 Feb 1886 22 Whakaihuwaka 67210 Mar 1886 23 Maraekowhai 54000 Mar 1886 24 Taumatamahoe 155300 Mar 1886 1897-1899 12161 25 Waimarino 454189 Mar 1886 1886-1887 411196 26 Popotea 635 Mar 1886 1886 202 27 Ahuahu 11640 Apr 1886 28 Te Kahakaha 2015 Mar 1887 1895-1897 908 29 Whangaipeke 16793 June 1887
30 Ohura South 116152 Nov 1892 1895-1897 25131 31 Tauakira 49540 Sept 1893 1894-1896 26650
32 Whitianga 26400 Aug 1894
33 Kaitangata 2700 June 1895
34 Te Tuhi 20112 Sept 1895 1896-1898 14996
35 Ohotu 88700 Mar 1897
36 Pipiriki Township 356 Feb 1898 37 Morikau 27726 April 1899 38 Waharangi 15795 Mar-OO 39 Waipapa 288 Jan-01 40 Kauaeroa 567 Feb-01 41 Tawhitinui 3378 Mar-01 42 Paetawa 3370 Aug-01 43 Ranana Reserve 197 Oct-07 44 Pukehika 2405 Oct-07 45 Mangapukatea No 2 322 Sep-14
the bed was made. Maps of original titles and alienations are also silent on the bed.155
Effect of sales
In the period 1876 to 1900 the Crown purchased some 560,000 acres of land in blocks
with frontages on the river. The sale deeds indicate that purchases were sometimes spread
over 2-3 years. This reflects the practice of the time. A standard form deed, making
reference to an attached map, was taken among the owners. Each was given payment, and
signed a voucher acknowledging receipt. These payment vouchers were presented in court
as evidence of the sale when the Crown's interest in the block came to be partitioned out,
in accordance with the pre-arranged deed. 156 In the Whanganui region "advances" were
often paid. 157 These payments to individuals, described as "laying ground-bait", were
designed to secure their adherence to a sale. The Tribunal in its Te Roroa report
commented adversely on this practice. 158
The purchase of the Waimarino block is an illustration of the worst of land purchase
practices. The purchase was prompted by government policies to expand public works.
Investigation of the title to its 450,000 odd acres commenced on the basis of a sketch plan
and complaints from Whanganui Maori unable to attend early court hearings. The chief
applicant for a determination of title to the block was Te Rangihuatau. The Land Court
seems to have satisfied itself as to the correct ownership of the Waimarino block largely
on his word. He was an assessor for the Court at the time. Te Kere, an important
Whanganui chief based at Tawata, boycotted the court proceedings. He and his people
were left out of the final award, and did not to receive a legal interest in the block until
155 Title papers and Crown deeds and plans, affidavit of Roy Stone 4 August 1960 and affidavit of N A Stevens 5 December 1955, WT~
--.
156 This process is described in Waitangi Tribunal Te Roroa 1992 and Ngawha Geothermal Resource 1993 reports
157 Cross 1994 p65
158 1992 p56-60
44
the passage of the Maori Land Claims Adjustment Act 1904.159
When the Court sat to divide out interests said to have been purchased by the Crown,
Topia Turoa, a Whanganui chief, requested an adjournment so that the land the sellers
wished to sell could be properly identified. This request was also refused. The sale was
confirmed, and dissenting Maori faced a loss of all their land interests, or submitting to
the allocation of land in reserves of some 50,000 acres in the block. Government officers
appear to have appreciated that Maori needed to retain a link with the river. It was
suggested that some of the reserves would be along the river banks. In fact, out of the
whole block, very little on the river was retained, although one reserve included the lower
part of the vital tributary of Manganui-a-te-Ao. In total only 34,634 acres were finally left
to Maori. The whole affair has been described as a "one-sided, incomplete and hasty
process" by the historian Alan Ward, and the Stout-Ngata Commission noted that "In the
whole history of the colony there has never been any purchase so extensive in any
district, or one completed with such expedition. ,,160
Maori views of the river in the period
The Background
What evidence is there of Maori views of the river through this period? It is first
necessary to consider the general background against which rights were exercised. The
archaeologist A Walton in his study of "Settlement Patterns in the Whanganui River
Valley 1839-64" says of the period of early contact with Europeans: 161
the intensive exploitation of seasonally abundant resources and the preservation of
the surplus for winter consumption produced a pattern of expansion and
159 A Ward Wbanganui ki Maniapoto. Preliminary Historical Report 1992, WT A20, and DNZB v2 p51S
160 Ward 1992 p71, p71 and AJHR 1907 G-IA p5
161 pp22-3
45
contraction of the population across the landscape in the course of a year.
Butterworth (1991:1) refers to this sort of mobility as transience, the regular
movement from place to place usually for subsistence-related purposes or
trade. 162
The chief source of material here is the land court minute books. In her thesis on Ngati
Kahungunu, which makes an extensive examination of minute books, Dr Ballara makes
this summary, which could easily apply to Whanganui:
In hilly, forested or swampy country where major transport was by waterways
connected by tracks, social groups tended to organise their lives on river valleys,
or where these were too limited for economic viability, on river systems. All the
different types of terrain traversed by the river were made use of, from inland and
upland forests near the source to the coast. Communities, made up of clusters of
hapu owing allegiance to a major chief, were found to be the ordinary unit of their
society in times of peace. The territories of communities were discontinuous and
the populations mobile. 163p330
She goes on to say:
the people "shifted about to different places; nobody lived constantly at one place
in those days." The evidence is that all over the region the economic cycle, though
tremendously varied as to location and resource, was followed in repetitive
patterns. Fern-digging and eeling sessions were carried out at the same times each
year, as was birding and fishing, all at the period when the resource in question
was in its optimum state for exploitation. . .. fishing villages were occupied in
specific months by the whole community, coming together because of the known
availability of different foods at different times164
162 p25
163 H A Ballara, "The Origins of Ngati Kahungunu", 1991
164 Ibid p342
46
Evidence from the Whanganui area supports these conclusions. In 1882 Te Aropeta
Haeretuterangi appeared before the land court in connection with the Murimotu block. He
was born on the Whanganui river, and had often gone up to Murimotu with groups to
hunt. Te Whatanui of Ngati Raukawa had attacked people there in 1834 and the block
was abandoned for a time:
About a year and a half after our return to Murimotu, Europeans began to come
into the neighbourhood of Whanganui, and we heard that one named Cooper had
come there and had brought guns with him. At that time we were living at Kotipo .
.... We bought guns from him that would go off by themselves, in exchange for
pigs. We returned again to Murimotu and the next year a man called 'Jack' came
up there and reported that cases of guns and casks of powder had arrived, so we
again came down to Putiki to collect flax as barter for guns and powder. We built
a pa there. It was attacked by Te Whatanui and Te Rauparaha .... All the
Whanganui tribes were assembled at Putiki. Murimotu was vacated. Putiki fell in
March and the following winter we went back to Kotipo and to Tutaenui to catch
birds. In August we returned with the "huahua". The following summer we went
up again and caught birds and eels and took them to Mairehau on the
Whanganui. 165
Also in this early period, Jerningham Wakefield provides evidence that upriver Maori
made use of the river mouth in this often quoted passage:
At daybreak next morning a whole fleet of canoes went out to sea to fish.
Together with Wide-awake's party, there were at least fifty sail. At the flood,
which was in the afternoon, they all entered the river and proceeded to fish for the
kahawai, large shoals of which had come in with the tide ..... I passed through the
centre of this fishing fleet, on my way to a village on the opposite side, about a
half mile above Putikiwaranui. I found here about two hundred men, women, and
children. Kuru told me that they were from the Wahi-pari, or "place of Cliffs", a
165 M George Ohakune. Opening to a New World 1990 p15, DB
47
name given to the upper part of this river, where it runs between very high steep
banks. He explained to me, that none of the natives lived permanently near the
sea-side; but that their pas and cultivations were far up river, among the
mountainous country, which they consider more fertile as well as more secure
from hostile attacks. These villages near the sea were only used during this
season, when the fish abound and the constant fine weather allows the almost daily
exijt of canoes. At the end of the summer they return up the river with large
stores of dried fish. 166
Fishing Rights
One category of rights exercised over the river were fishing rights. The land court minute
books provide references to these, in particular, in relation to the creation and use of pa
tuna and pa piharau and other fish catching devices. Despite the large areas of river bank
involved in many block determinations, and, as later evidence shows,many rapids
containing fishing pa, the relative silence in the court minutes about fishing rights seems
odd. The Waimarino block, stretching tens of miles along the upper eastern river, must
be seen as notorious in this regard.
When discussing land areas, Maori witnesses often referred to particular pa tuna and
other fishing devices in much the same way as they referred to cultivations ("mara") to
provide evidence of their claims. An early reference is in the determination of the Patupa
block. The chief Hakaraia Korako noting:
There is an eel weir of Pirata's in the stream below Matahiwi near the mouth of
Maiwhero stream there is a pa tuna belonging to the same people ... built there
they belonged to Pirata and his brothers. 167
Another witness, Poari Kuramati noted:
166 Wakefield 1845 (1908 reprint) p178
167 (1879) 2 Whanganui MB p182
48
Ratana has an eel weir at Waitahi in the Whanganui River a recent one.168
This block was relatively small, 495 acres, and located 22 miles from Wanganui at a
major bend in the river.
Title to the Pukekowhai block was determined in the same year, and was even smaller at
approximately 280 acres, and bordered Patupa. The court minutes record that in several
places, past canoe making on the block was advanced as proof of title.169 The witness
Ratana Te U rumingi stated:
[name - illegible] is an eel weir at Matahiwi the stream is named Whakatohomo
fences are there also Peach trees. We planted them, Matiaha and myself. We made
the eel weir there were other eel weirs made by myoId people and
forefathers. 170
Evidence given for the Pukenui block (1040 acres), which passed through the Court at the
same time, gives a good example of the context in which fishing rights generally were
described. A witness Reneti Tapa stated:
The cultivations of my ancestors on this land are ... Te Rere (a kiekie bush),
lringa (bird snaring place), Otutata (cultn) Puraho (a settlement) Taumata Karoro
(a resting place) Onehunga (Settlement) Waipaepae (a drinking place) Omomia /a
cultivation, Te Whare Haki (mara/ Waitahore "mara" Rahuitiu "mara" ...
Kaipatitohea "Ara tawhiti" Te Kaingi "Kianga" Te Aka (Tawa bush) Te Kohai
"settlement" Ruataniwha a Fishing stream and other places. 171
This evidence was contradicted, Hakaraia Korako asserting:
168 (1879) 2 Whanganui MB p183
169 (1879) Whanganui MB 151, 157, 171
170 Ibid pl71 _
171 (1879) 2 Wh MB p219
49
The right of fishing in the stream was everyone's. I never heard that any ancestor
claimed the exclusive right of fishing. The descendants of Hinepango and
Tumango used to fish together in thisstreaml72
Mter these initial references, the minute books appear to make few or no references to
fishing rights in the original investigation of blocks until about 1893. In this period of
silence, titles were determined for the Raoraomouku (8697 acres), Mangapukeatea (2495
acres), Puketarata (2020 acres), Opatu (6537 acres), Koiro (7,636 acres), Ngaporo (2900
acres), and the very substantial Whakaihuwaka (67,210 acres) block, also Maraekowhai
(54,000 acres), Taumatamahoe (155,300 acres), and Waimarino (454,189 acres).
The silence was broken by the investigation of the Tauakira block in 1893, which is
situated about halfway up the river. The Court minutes for the investigation cover several
minute books. Topia Turoa was the main claimant. He made his claim through gift, the
dead buried on the land by his people, occupation and "the right of mana" .173 As to the
gift, Topia stated that Peehi Turoa had come down the river to the Europeans, had been
'detained' by lower river people, and then given an "absolute gift" of an area near
Atene. 174 Topia went on to make the interesting statement:
Kemp came to us on this land after the defeat at Moutoa & told us to leave the
lands of Ngati Pamoana. We returned up the river. We were returning to our up
river lands when the words of Kemp came to us.
I made the remark in reply all right I will stir up the waters and make it so muddy
that you will not be able to drink it ... 175
Then evidence was given of fishing rights and the making of canoes as proof of rights to
172 Ibid 221
173 (1893) 18 Judge Ward MB p68
174 Ibid p68-69
175 p81
50
Also:
He was not the only man who worked these? pas he was the chief who worked
them. They dont use these? pas now as they have to keep the river open to let the
steamer to pass up & down. 179
Te Umutapi, a rapid ... there was an eel weir called Towhenua in this rapid but it
has lately been removed by the Europeans to make a way for the steamer. Another
eel weir was there it was called Ngawaierua? This has been removed too. There is
a lamprey weir nearer the lands in shallow water on the south side of Wanganui
(this block).18o
Discussing fishing uses in 1939 the Maori Land Court found that:
The bed of the Wanganui River belonged to the Natives through whose territory it
ran just as much as the land forming its banks did. The test is the fact that if one
of the outside tribes had claimed to make use of the bed for the purposes of
erectingpatunas, on the ground as asserted by the Crown that it was public
property, the claim would without doubt have been strenuously resisted by the
local people and would probably have resulted in bloodshed181
This and the references above suggest that pa tuna and other similar devices were seen as
property. The minute books suggest how these property rights were viewed. In the title
investigation of the Tawhitinui block in 1901, claims and counter claims about food
gathering rights in the area. This is a good situation in which to analyse how rights were
advanced. In the court minutes a distinction was made between lamprey weirs, which
were associated with a river bank, and pa tuna, usually placed midstream. Thus Metera
Urumutu:
179 19 Judge Ward MB p94
180 19 Judge Ward MB p278
181 20 Sept 1939 p2
52
There is only one lamprey weir called "Ngahuinga"; that weir (Ngahuinga) is not
on the other side of the Wanganui River. Now I say Ngahuinga is on both sides of
the River. I suppose I mean there are two weirs. The one on the side of the land I
claim is called Ngahuinga and the one on the Ranana side is called Te Whenua;
the Ranana people used the Ngahuinga also. 182
For the larger pa tuna, there was not such a close association with one river bank. Metera
te Urumutu in the same hearing stated:
We have eel weirs in the Wanganui River at a place called "Kai Wakamataku"
between Moutoa and this Block. 183
Werahiko Atarea made a more explicit statement:
Punga was a Kainga of N'Tepua-o-Terangi. I don't know who lived there. I have
heard it was a Kainga used by people when working eel weirs. . .. The people who
used the weirs were not necessarily the people who owned the land. 18'below
And this was horne out by other statements. Pene te Rangihauku in the hearing for the
same block:
Rakaua lived at Te Punga while making an eel weir, that was my land, not his. I
mean that at the proper season he used to go there and get eels from the weir. I
own the land. He went from Tawhitinui. The people who used these weirs after I
left were Rimitiriu and Te Harawira and Poma used to work Rakaua's weir. 185
and later he commented:
182 44 Wh MB 246-7
183 44 Wh MB 241
184 45 Wh MB 100, he was involved in a petition about interference with eel weirs in 1887, see
185 44 Wh MB 328-9
53
The eel weir in the Haumoana Rapid belonged to me, that is Nuku te Aio.
N'Hinekorako worked them too. 186
In the Whakaihuwaka block hearing, evidence was given of a dispute about a weir:
Ikatohu came to annex this Rapid with eel weirs and Rehe Rehe was with the
Kurawhatiia party and killed Ikatohu.
It was however alleged that Rehe Rehe did not claim ownership rights in the weir, but
was merely visiting the area at the time and acted for the owners of the weir who
"worked on the land with the Kurawhatini people to keep the eel weir from being taken. "
Ikatohu, the man killed, did not want to get the land but to take the eel weirs.187
There was a dispute about the Ngawaierua weir between myself, Rautau and
others of Matini's descendant. The dispute was as to who should use it. Karaitiana
te Mutu objected to Kanihi (Potatau's father) using it. There was an investigation
among us about it when the decision was given against Te Kanihi and party. Te
Kanihi claimed it as a descendant of Matini who obtained his right through
Raupatu of Rehe Rehe and others. These Pa Tunas were in the middle of the
Wanganui River. Matini did not work on any land of this Block near this weir.
Potatau may have worked on this land when visiting our people. 188
Much later evidence before the 1950 royal commission again suggests that rights were
complex. Hekenui Whakarake, a key witness, was asked whether the arrangement
between Ngatipoutama and Ngatipamoana over the Ohotu block, which gave
Ngatipoutama land on both sides of the river, gave the owners of the Ohotu block the
ability to stop other members of the Whanganui tribe from going up or down the river.
He replied "I don't think they made an arrangement. They left it in the usual way of the
186 44 Wh MB 345
187 37 Wh MB 28
188 37 Wh MB 281-2
54
river belonging to everybody.189 Yet on the same page, he admitted that he would give
evidence about the use of particular eel weirs to support a claim to lands adjoining those
weirs.
Joseph Tarry, a former steamboat captain, also gave evidence of the use of weirs,
implying groups might corne from many miles away on a seasonal basis to repair and use
weirs. After the groins went in Maori had had a "bad time":
because they used to have to go well up the river - 10 or 12 miles- but over an
area where we didn't have a groin, so that didn't make it so hard. But when they
went behind it, it was harder.
You mean to say they went up this river 10 or 12 miles? What for - to fish? .....
Yes
To fish with weirs? ..... Oh well, they had one or two out on the bank. They
would corne up to Otumahoe, and they used to repair that when they went up
periodically to fish there in, that would be, the summer months. 190
Further on in his testimony Tarry noted that people from Paranui would travel some 20
miles to Whangamomona to use a weir. 191
During war operations in 1869, James Booth, who led expeditions against "rebel"
elements, and was later to become a land purchase officer in the Whanganui region
reported:
I was " aware of the existence of a track leading from Taiporohenui to the Patea
River, by which Tito Te Hanataua and his people used to go every summer for the
189 Record of Proceedings 1950 pX-3
190 Ibid pX-6
191 Ibid pY-3
55
purpose of eel fishing192
This suggests the people concerned travelled some distance to exercise eel fishing rights.
Downes193 noted that tuna riki, or young eel fry were caught as they congregated in a
pool under the Ohura falls where that tributary meets the Whanganui river. Downes said
that "The Maori up to a generation ago used to journey down from Taumarunui and up
from Pipiriki to procure this delicacy. "
Control Over River Use
Apart from these more specific rights, there is ample evidence that hapu and iwi, through
their leaders, exerted general rights of authority over the river. Some claimed
considerable control. Of Peehi Turoa it was said, "ko Ruapehu the maunga, ko
Whanganui te Awa, ko Haunui a Paparangi te iwi, ko Turoa te tangata. ,,194
Major chiefs were associated with control over different sections. Keepa, for example,
was very influential on the lower river, but it appears not on the upper, where the Turoa
rule was firm. There was also a division of control among groups. In 1889 Topia Turoa
held a meeting at which it was determined that steamers might come on the upper river.
In 1892, when Te Kere and his people turned back a group of Pakeha, the newspapers
made the comment that Te Kere was subordinate to Topia. The presumably this was also
the case with the chief Taumata at this time on the Tangarakau tributary. He also had a
policy to keep Pakeha out. 195
These rights of control had a long tradition. Perhaps the most famous expression of them
was the battle of Moutoa in 1864. The background to this conflict was complex. All
commentators agree however that an element basic to the conflict was the refusal of one
192 AJHR 1869 A-10 p38, DB
193 Record of Proceedings 1950 p2L-5 and Downes TNZI p303
194 J H Grace Tuwharetoa 1959 p237
195 These events are discussed more fully below
56
group to allow another access over the river. 196 In one incident before the battle, two
kaumatua stood on opposite banks holding a rope across it as a sign to the taua not to
pass and an attempt to end the coming conflict peacefully. 197 The example of Moutoa
was used in 1958 to support the claim of the Whanganui people to title to the river bed.
Unfortunately, it was presented as a matter of "Maori mythology and symbolism" .198
An examination of the Whanganui Maori reaction to Pakeha presence on the river up to
1900 demonstrates clearly how these rights operated.
The conflict of the 1860s brought steamers onto the river for the first time beyond the
immediate environs of Wanganui township. In January 1865 the colonial government's
steamers Gundagai and Sandfly (120 and 109 feet in length respectively) were ordered to
Wanganui in support of General Cameron's troops then marching along the coast. The
Gundagai in that~month reached "a little beyond Raorikia" in anticipation of a threatened
attack on "friendly" Maori. 199 In March, Governor Grey commandeered the Gundagai
and arrived with troops at Parikino (approx 35 miles upriver). He shortly afterwards used
the Sandfly to advance as far as Ramahiku. A redoubt was established of local militia
under Major Brassey at Pipiriki, although for the last miles from Parikino, men and
provisions were largely reliant on Maori canoes.200 The garrison at Pipiriki became
stranded possibly because the Maori allies moved away to attack Weraroa Pa near
Waitotara which "left no Maori to maintain the river transport service". 201 A steam
paddler, The Favourite, of local ownership,202 was chartered to provide relief, but
196 WE Gudgeon Reminiscences of War in NZ 1879 Chapter 7, Cowan The NZ Wars v2 p32
197 Tinirau pamphlet, Wanganui Public Library. Ref provided by David Young
198 Record of Addresses, Submissions and Evidence 1958 p65
199 Campbell 1990 p12-13
200 Campbell 1990 p14 and Cowan p38
201 Campbell 1990 p14. James Belich suggests the garrison was simply bogged down by minor skirmishing which was later inflated into a siege (no one on the colonists side was killed).Belich 207, Cowan thinks it was more than this see vII pp38-54
202 Campbell 1990 p14 and 243
57
could go no further than 3 miles above Parikino. Eventually some relief was provided by
the Gundagai, which in two voyages reached Atene (49 km upriver) then Koriniti (11 km
higher) with supplies. 203 However, substantial relief appears to have been supplied by
fresh troops arriving in war canoes paddled by lower river Maori allies.204 In
September 1865 a small paddle steamer, the Moutoa, became the first steam powered
vessel to reach Pipiriki. She was used to supply imperial troops which had replaced the
local militia there. 205
For all this activity, the river was still very much in Maori control. In December 1861
John Coutts Crawford on behalf of the Wellington Provincial Government undertook a
geological survey of the Upper river. 206 A coal seam had been reported on the
Tangarakau stream. Maori turned Crawford back at Utapu (now Parinui) for refusing to
pay a toll. 207 Crawford's party therefore proceeded overland early in the following year
and came back down the river from a spot just above Taumarunui. Crawford's report
suggested that steamers might navigate the river provided water levels were sufficient in
summer months, rapids cleared and eel weirs removed. 208
This closure was still in force when Grey came down the river in 1866 on a trip through =="-
the North Island districts. 209
Further discussions about access occurred in November 1869 at a large meeting was held
203 Campbell 1990 pp12-14
204 Cowan vII p42-3
205 Campbell 1990 p14. After further work on the river for the government through 1866 this vessel was sold for £400, with the proceeds being given to Hori Kingi, in recognition of services during the war. Kingi apparently refused an offer of the vessel itself. Campbell p15
206 He was appointed provincial geologist in 1861, DNZB vol 1 p93
207 This was about 110 miles from the river mouth, or 20 miles above Pipiriki
208 Campbell 1990 p11
209 Campbell 1990 p15
58
at Ranana. The Premier and William Fox, Topia Turoa, Keepa and other chiefs were
there. 210 One of the topics discussed was the opening of the upriver district for gold as
also was a road from Wanganui to Taupo. Campbell notes that Fox made further journeys
on the lower river in that month with Maori as passengers on the government steamer
Sturt, with their canoes in tow. In other places where the steamer could not run, the
canoes were relied on. 211
Serious concerns began to be expressed about land sales in the 1870s. The early years of
the decade appear to have been a time of revival after the depredations of war. There was
much interest in agricultural pursuits with tobacco, potatoes, maize and wheat being
"large crops" and "annually grown". Whanganui river Maori were also interested in
cultivating hops. Repairs to flour mills, many of which were in a dilapidated state, were
proceeding. A reserve has been made at Parikino for a native school. 212 By 1874
however the "land question" had become the paramount consideration.213
At two meetings on the river in 1872 attempts had been made to arrange the passage of
lands through the land court on a tribal basis214 In April 1874 a large meeting at Putiki
had been held to consider the disputed Murimotu block boundary. An earlier meeting in
March at Waitotara had considered Ngarauru and Whanganui boundaries to lands between
the rivers. There had been 2 further meetings on the Whanganui river in November 1873
and February 1874 to settle local disputes. Woon reported there was a strong feeling to
prevent the total sale of lands and hold them in perpetuity.
Keepa was asked for his views on the operation of the land court in 1871. His reply not
only sets out the concerns current among Whanganui Maori at the time, but also the
proactive response they were attempting to make:
210 Idem
211 Idem
212 ATHR 1872, G-l, DB
213 ATHR 1874 G-2, p14ff
214 See Cross 1994 p53-55
59
There is much trouble and confusion about the Land Court. Some of its
proceedings are not clear to us. We have had a great meeting at Parenga on this
very subject. All the tribes of this river and of Rangitikei, also representatives
from Taupo and Ngatiraukawa, were present. The matter was discussed for five
days. The decision come to was, that twenty of the leading chiefs should go to
Wellington to confer with the Government on this matter. .... We do not condemn
old Court [sic], but we are anxious to have some alterations. Under the present
system, men lose their lands; others get land that does not belong to them, because
they are strong to talk. There is much confusion also about the Crown grants. 215
In May 1874 there was a large meeting with the Hawkes Bay chiefs Henare Matua and
Tikawenga, leaders of the 'repudiation movement". Eight hundred people had attended
and no expense was spared to host these celebrities at a Whangantii river pa at Kaiwahiki.
Matua wanted to stop all land selling, and raised concerns about roads, parliamentary
representation, the birds protection legislation and railway takings. Over 200 Whanganui
people pledged their support to his ideas. Mete Kingi and Keepa, Woon notes, were
supportive in an -indirect way - allowing one of Mete Kingi's sons to join the
movement. 216
The impact of land sales has been documented elsewhere. The following quote
demonstrates the problems. It is revealing of the Maori attitude towards the legal title
received:
It is not an uncommon occurrence for a young chief to spend £50 or £60 in giving
a dinner, with beer, champagne, &c., to his friends, and this is to be particularly
noticed after a sitting of the Native Land Court. If judgment has been given on a
long-disputed question, both parties (claimants and counter-claimants) vie with
each other as to who can give the most expensive entertainment, in order to prove
to each other and the world that no ill-feeling exists between them. In this manner
215 AJHR 1871 A-2A p39, DB
216 AJHR 1874 G-2 p15-16
60
hundreds of pounds have been squandered away during the past three or four
months; and I am afraid we must not look for much improvement in this respect
whilst the Natives possess so large an extent of waste land, which can at any time
be turned into ready money. 217
It was not that chiefs like Kemp were opposed to all sales. Kemp was active as a land
purchase commissioner. 218 Rather, the Whanganui chiefs sought to control the influence
of the court and the land purchasers. As part of this resistance they also asserted their
control over the river itself. In 1877 there an attempt was made to "tapu" large areas and
place them in a form of trust under Metekingi and Keepa. Pressure from those wanting to
sell land however undermined this initiative.219 In 1877 Woon noted indignantly that a
chief on the upper river, Te Rai, had turned him back on one trip because Te Rai thought
the two friends he had brought with him were gold prospectors. Others looking for gold
were also turned back. 220
The failure of these first "land leagues" on the river did not prevent further attempts.
After meetings in August and September 1880, many Whanganui Maori supported a fresh
initiative from Keepa to put a large area of land under trust. In November a carved post
was erected at the mouth of the Kauarapaoa stream about 10 miles (16 km) from
Wanganui, which was to be the down stream marker for the area in truSt.221 Three
217 1873 AJHR G-1 p16.
218 An incident he records concerning lake bed rights is worthy of note:
"I saw the boundary of the land for sale, viz., Titiraukawa. We slept here; in the morning we reached the eel lakes. There are two lakes; Ngaruru is one, and Namunamu another. They persisted in asking for 1,500 acres as a reserve for themselves. I said it was too much and they should ask for a smaller quantity. They wanted their reserve boundary to take in both the lakes, so that no trouble might arise when this land became property of other owners and lest it might be taken away like other lakes had been by the Europeans. I told them that the persons who used the pen, who knew of these things, would inform them;"1873 AJHR G-8 p36
219 1878 AJHR G-1 p13
220 1877 AJHR G-1 p19
221 Kemp to Woon 19 October 1880, Woon to Native Dept, 6 November 1880, MA 13/14, DB
61
other such pou were established. Kemp described the area put under the trust as "te
takiwa katoa 0 te Awa 0 Whanganui, tae noa ki Murimotu" .222
Lyndsay Head in her report notes that the "weight of political and cultural meaning
carried by boundaries was expressed physically in the sheer size of the poles which were
erected to mark the limits of land selling,,223 If that is the case then this marking of the
boundary on the lower river was meant to be a very significant event:
The pole, over 30 feet long painted red and carved by a Maori expert, Utiku
Mohuia, was carried on the shoulders of 30 or 40 of Kemp's men and placed in a
hole previously dug near the river bank, up river from the stream mouth.224
The location meant the pole could be readily seen by people travelling up the river.
In a letter to the Native Minister Bryce in September 1880, Sievwright and Stout, lawyers
for Keepa, laid out the plan for the trust, and sought "moral and practical" support from
the government for the idea. The trust was to embrace an area of 1.5 to 2 million acres,
covering "Native Land extending inland from Wanganui & settled country to Ruapehu
mountain". Its purposes were to put the land through the court, make reserves, then have
the remainder managed by the trust and sold or leased to Europeans.
A council of native owners, consisting of representatives from each hapu would ascertain
owners and fix boundaries before lands went before the court, and also fix rules for
leasing/sales of land to settlers. 225
This was a fairly comprehensive plan for self-government by Whanganui Maori of the
222 Kemp to Booth 2 February 1881, MA 13/14, DB
223 Head 1994, p29
224 Smart 1972 p221
225 Sievwright & Stout to Native Minister, 28 September 1880, MA 13/14, DB
62
river lands. The government response was to hope it would die of its own accord.226
This scheme was accompanied by the usual expressions of control over access up the
river, Kemp warning one hated land purchase officer that he should not attempt to come
up the river or he would be "expelled with violence", "kei te ngarungaru tatika i
Kahuitara" ("the Kahuitara reach is violently agitated,,).227 The proposal would have
seen the river effectively closed off to settlers above the point 80 miles from its source.
This ban was put into effect, with Woon complaining in 1880 that "an obstruction to the
free navigation of the Wanganui River exists, in the shape of a blockade against European
travellers, ... about one hundred miles from town" .228
These Whanganui efforts faced opposition from other Maori. Renata Kawepo of Ngati
Kahungunu complained to Bryce in late 1881 that the government should not put up with
Keepa's supporters putting stops on wool shipments on the Whanganui river, the "Queens
Highway" as he cheekily called it. 229
Ultimately the trust effort failed, in part because of internal pressures, certainly because
of the lack of government support, but also because earlier land purchase arrangements
and accompanying "advance" payments compromised much of the land which was to be
managed by the trust. It did not die quickly however.
When the coal seams on the Tangarakau tributary became a commercial prospect in early
1884, the Wanganui Chronicle warned:
The land is within Kemp's territorial boundary, across which no white man, not
specially licensed, is allowed to set his foot. But in addition to the general order of
exclusion there is a special obstacle to be encountered in the shape of a haukoti
226 See Booth to Under Secretary, 5 January 1881, MA 13/14, DB
227 Kemp and Poari Kuramate to Rolleston, 2 February 1881, MA 13/14, Db
228 AJHR 1880 G-4 p17, DB ~
229 December 1881, MA 13/14
63
[sic] established by an old chief called Taumata, whose pa is at the junction of the
Taangarakau with the Wanganui. This intelligent savage is obstructive on his own
account as well as subservient to the policy of Kemp and his Council.23o
A year earlier when John Rochfort arrived at Kerioi to begin the survey of the central
part of the main trunk railway line he precipitated a full discussion among the Whanganui
chiefs of their access policy. Rochfort was obliged to go to Upokongaro to seek
permission to proceed, and then struck trouble when he camped at a village on the upper
Manganui-a-te-Ao. He was taken down to a village at the point near the confluence of
that tributary with the Whanganui, and was there held captive for 3 days while river
rangatira such as Taumata, Te Peehi, Rangihuatau and others determined that the survey
should not proceed, and had Rochfort escorted by river to Wanganui. After meetings
between Keepa and the Manganui-a-te-Ao faction Rochfort was allowed to return up the
river, but faced further resistance at Te Papa,(about 30 miles south of Taumarunui) and
was once again forced to return to Wanganui. He eventually succeeded in reaching
Taumarunui. 231
This incident is interesting for the insight it gives on divisions within Whanganui over
whether settlement should proceed. Rangatira like Taumata remained opposed to any
European incursion, as the newspaper article above notes, whereas Keepa was ultimately
willing to facilitate settlement.
An even more detailed glimpse of the politics of control of the river, is provided in a
report from a party surveying for gold in river beds in the same year. On the upper river
it was reported:
After leaving Utapu our troubles were not over; at every pa we came to a meeting
was held before we were allowed to proceed. We have been here now three days,
and it is only this morning we are told we will be allowed to go and prospect the
230 18 Feb 1884, DB
231 1884 D-5 sess II
64
Tuhua, and then only that portion belonging to one particular chief, but they say
by the time we have tried that Ngatai will be back, and that his influence will
probably conciliate the chiefs that are standing out. 232
Some prospecting was undertaken, but "Waitapu, the creek the natives were so anxious
for us to arrive at, was quite barren, and they were greatly disappointed. It was Topini's
boundary, and there was a great korero there, and we were very doubtful whether we
would see Taumarunui." The party was anxious to go up the Taangarakau, but realised
that they had no chance of achieving this, "[i]t is the stronghold of Taumata, the chief
that stopped us at Utapu" and added, "but the Council of Kemp that went up there,
promised me if they found any quartz they would keep it till I came down. "
It was hoped to reach a creek called Pungapunga, but this first required permission from
another chief, Ngata, who it was said would return shortly and it was hoped persuade the
owners of that portion of the land to allow free access.
Complicating matters, and as the account suggests, there was active involvement by some
Whanganui Maori in the venture. Mete Kingi and Keepa were present at the company
meeting at which this report was presented, and the meeting noted that a message has
been put in the local press, in Maori, to remind Maori shareholders that payments for
issued shares were due. 233
In 1885 the new Native Minister Ballance, also the member for Wanganui, visited Ranana l(;t,q~
and "Jerusalem or Kawaeroa". 234 Kemp addressed the meeting and outlined his views
on land sales, then Paori Kurimate set out the demands of the meeting. These consisted of
a basic contention that all land and other arrangements be managed by the Native
Committee of the area. As to the river itself:
232 Wanganui Chronicle 9 May 1884
233 A similar effort in 1872, with similar politics is noted at AJHR 1872 F-3A p3-5, DB
234 AJHR 1885 G-1 p9, DB
65
" ... we have agreed to allow a steamer to be put on the Wanganui River; this will
be dealt with by the Committees. ,,235
This statement is significant. At this stage land sales had taken place along significant
stretches of the river, affecting over 46,000 acres at Retaruke, Opatu, Kirikau,
Raoraomouku, Mangapukatea. Yet there was no question in the mind of Whanganui
people that they retained control over the river and the authority to determine access over
it.
The native committees referred to were probably those established under the Native
Committees Act 1883. They were intended to be committees of arbitration in local
disputes. Paori's statement envisaged a wider role, the control of access by steamers.
Ballance's reply was evasive. He thought the question of what powers should be given to
the Native Committees "is a very large question that will have to be carefully considered
by the Government":
Paori has referred to the question of putting a steamer on the Wanganui River. It
is not for the Government to build steamers and put them on rivers, that is a
question for private individuals, and I am glad to inform you that there are a
number of people in Wanganui who are thinking of forming a company for
building a steamer and placing her on the Wanganui River. I have no doubt that
many of you will be glad to assist in that enterprise for it is one which will confer
great benefits upon you all. There are difficulties in the way - not great
difficulties, perhaps, but difficulties in the way of steamers passing up and down
the river. These rapids will have to be made so as to allow the steamer to pass up
and down; and I think it is likely that the Government will come to their assistance
and vote money for the improvement of these rapids. I trust we shall find you all
assisting in this work. A steamer would give greatly-increased value to your lands,
and it would make the Wanganui what it was intended to be - a great highway for
235 Ibid p2
66
the people into the interior; ... "236
The next year steamers began to appear at Pipiriki and beyond.
236 ATHR 1885 G-1 p3
67
CHAPTER 6
THE CROWN ASSERTION OF CONTROL
THE WANGANUI RIVER TRUST 1891-1900
Initial Pressures
With the growth of the Wanganui township pressure came to bear on use of the river and
Maori on the river began to realise that assertions of authority contrary to their own were
being made. These assertions were never clearcut, as no-one on the European side ever
appears to have clearly articulated to Maori what the implications of English law about
tidal areas and riparian rights might be. In addition, Maori were in a situation where they
welcomed European uses of the river from which they could draw benefit, such as the
building of bridges, reclamations and steamers.
The Whanganui people, or at least those on the lower reaches of the river, appear at first
to have been enthusiastic about the proposal to run a private steamer service. Their
attempts to engage in gold prospecting have already been noted, now they hoped to
convert their canoe transport business to the new technology. The "Upriver Committee",
a group of Wanganui business notables spearheading the private steamer venture, were
delighted to note in January 1885 that:
The Maoris had discussed the question of getting a steamer ... and when Mr
Ballance was there they eagerly asked when the steamer was to be placed on the
river, offering to take shares if a company was formed .... The natives said that
when the boat was on the river they would burn their canoes. They said it did not
pay to bring small quantities of goods to town in their canoes. 237
Obviously more was said at the meeting than the printed government record revealed. A
237 Wanganui Chronicle 24 Jan 1885, DB
68
petition of 1895 also referring to the meeting provides further detail:
the steamers were to go up the middle of the River and that eel weirs that would
be in the steamer's course were to be taken up but that those that were free[?]
were not to be touched238
As has been noted, it was also agreed that the steamer would stop at Ranana. It seems
that, given the enthusiasm for the new venture and their anticipation at participating in it
and the promised non-interference with the weirs, Whanganui people would not have been
antagonistic to the controlled clearance work which was proposed.
But the government had another agenda which had overtaken these arrangements even as
Ballance was discussing them at Ranana in January 1885. At the end of March, the
engineer in chief reported to the Minister for Public Works:
Navigation of Wanganui River. - As a means of giving access to the railway
works during construction, it has been proposed to improve the navigation of the
Wanganui River, so as to make it available for steamers.
A reconnaissance survey, including particulars of the work required, has been
made, and the river has been several times examined by officers of the
department. The conclusion arrived at from these investigations is that the
Wanganui River can be made navigable for small steamers of light draught at a
reasonable cost. There are no serious obstructions right up to Taumarunui - 140
miles from the sea - the point where the railway strikes the river.
Independently of giving access to the railway during construction, the
improvement of the Wanganui is a work of considerable importance in connection
with the traffic on the railway. For the whole distance from Taumarunui to the
open country, 10 miles from the sea, the river flows through gorges and cafns of
238 NA 11 1895/947, DB
69
surpassing beauty and grandeur, so it cannot fail to become a popular tourists'
route.239
This was a very different matter from the efforts at the Wanganui end to have a private
steamer put on the river and government assistance provided for some river clearance up
to Ranana. The government had a much more active interest in the river than Ballance
had suggested - as a II road II for the colony. This is reinforced by other government
actions. In April the first sod of the Main Trunk line was turned. The Premier, Sir Robert
Stout, then proceeded to Taumarunui and embarked on a canoe for the down river
journey. He was "greatly impressed by the river and considered that it should be opened
up and made use of". He thought this would be easily done. 240
A detailed survey of the river was made in October and November 1885 by district
engineer J T Stewart, later to be chairman of the Wanganui River Trust. His report
carefully noted the clearance work required on 203 rapids. These are the comments
relating to weirs: 241
239
240
241
242
243
244
Epeka, Native kainga, on left, eel pas in river; ... a passage probably found
without moving eel pas; 11242 ••••
Paparoa ... eel pa, but passage to right of eel pa; some rocks to move at lower
end ..... I
Papaka, a rock in river; this is a taniwha; a snag to move. 243 •••
Kukupai '" eel pa just below, but passage at side of it; 244 ••••
Kawaroa - very swift run; eel pas curved to right. .... The eel pa should be
AJHR 1885 D-1 p31, DB
Campbell 1990 p21-22
AJHR 1886 D-1, DB
Ibid page vii
Ibid page viii
Ibid page ix
70
.:(
removed, as it is in channel;" ....
Rapid No. 185: Swift run; eel pa, but room to pass it;" ....
Kawaka; ... some stones to move at top; turns to left; eel pa, near bottom, should
be removed ..... , ~"lih.£ Rapid No. 192: Swift run, with turn to right; two eel pas to remove.
&'(.c
By the time Stewart completed his report, work had been in progress for 4 months. 245
He noted in November 1885 that of the 12 rapids between Atene and Parikino all but one
had been cleared. 246 A Public Works Department party undertook the clearance work,
under one J Anderson. 247 By March 1886, 31 rapids had been cleared, and it was
expected "by about Mayor June" that snagging would have been completed as far as
Pipiriki. 248 In these reports no mention was made of the Ballance agreement, or of any
discussions with iwi or hapu about the work. The legal authority for the work was not
stated. 249
It is no wonder then that the petitioners in 1895 remembered that their arrangement with
Ballance had been broken and "the thought of the Europeans was that no eel or lamprey
weirs should be seen in the Whanganui river. and that their steamers should be
benefited ,,250
In 1887 there was a complaint about how far the work had come. Pauro Tutaawha and 66
others stated:
that their fisheries and eel-weirs are being destroyed by the steamers running on
245 ATHR 1886 D-1 p31, DB
246 ATHR 1886 D-1 Appendix H page x, DB
247 Campbe111990 p22
248 ATHR 1886 D-1 p32
249 But presumably was public works legislation
250 NA 11 1895/947, DB
71
the Wanganui River. At a meeting held at Ranana Mr. Ballance promised that the
steamers should not go beyond that place; but since then they have gone as far as
Pipiriki, at which the petitioners are much annoyed.
E whai kupu ana te kai-pitihana mo a ratou pa tuna ika hoki i roto 0 te awa 0
Whanganui kua wahia hei huarahi mo te Tima. E mea ana hoki i runga i tetahi hui
i tu ki Ranana i whakaritea kia kaua e haere te Tima ki ko atu i Ranana. Na
inaianei kua rere te Tima ki Pipiriki me te nui 0 to ratou Pouri. 251
The committee reported that this matter be referred to the Government for consideration.
Clearance work to Pipiriki was completed in March 1887.252
There was another petition that same year. Werahiko Aterea and 162 asking:
that the work of deepening the Wanganui River [te mahi keri i te awa] may be
stopped, as they have never agreed to it [kihai ratou i whakaae ki taua mahi].253
The Native Affairs Committee had no recommendation as the work complained of had by
then been stopped.254 This may only have been a seasonal stoppage. The engineer-in
chief report for 1887 pointed out that work could only be undertaken December to
March, when the river was at its summer leve1.255 The committee reported in June. ~ ?< y:.;v .
Apart from these concerns, the wide~nomic im . ations of earner traffic possibly
became apparent to Whanganui Maori at this time. While a steamer would make the
carriage of goods more efficient and cost effective, if it was not in Maori ownership, it
would drastically affect the canoe trade which they enjoyed. Now they would pay to have
251 1887 AJHR 1-3 p8, DB
252 AJHR 1887 D-l p34, DB
253 Reported at 1888 AJHR 1-3 p5, DB
254 NA LE 1/1888/8 file contains only the decision of the committee
255 AJHR 1887 D-l, p34
72
their cargoes and themselves taken on the steamer. 256 Ballance commented in 1892:
The result of placing [one steamer] on the river had been to reduce the freight
quite three-fourths, because previously all goods had been taken up the river in
canoes. 257
This economic issue was referred to in later petitions discussed below.
1891 Wanganui River Trust Act
This Act was passed in recognition that a separate authority was required for the river,
which for the government had become a major arterial route. Its passage through the
House coincided with the beginning of a full time private steamer service run by the
Wanganui businessman Alexander Hatrick.258 His interests and those of government in
the river were to be very closely tied in the coming years. In 1890 he had successfully
tendered for a weekly mail contract on the river to the value of £2,000 over 4 years,
commencing in January 1892.259 The steamer built for the service, the "Wairere" was
built in England by a private firm for Hatrick, but apparently "under Government
supervision" . 260
The Act was to have major implications for Maori on the river. It did not affect the
whole river, but certainly a large part of it, covering an area called the "Upper Wanganui
River District" which consisted of 1 mile from either bank of the river in width, and
256 This is what the Wanganui businessmen seem to have anticipated: "there is every reason to believe that they will give what aid they can and will contribute largely to the passenger and goods traffic. Obstruction on their part is now out of the question, nor is it likely that their canoes can compete with the steamer even for the carriage of themselves and their goods" Wanganui Chronicle 20 Jan 1885, DB
257 NZPD vol 78 p294, DB
258 Campbell 1990 p36
259 AJHR 1891 D-l p18, DB and Campbe111990 p33 & 37. The service commenced in May 1892
260 Idem and Campbell 1990 p33
73
extending from Raorikia Native Reserve to 4 miles from the source.261 Raorikia is
about 25 miles from the mouth and is the tidal limit. This district was deemed to be a
river district in terms of The River Boards Act 1884. The Trust Board was deemed to be
a board under that Act.
The Long Title set out two objectives, "the Conservation of the Natural Scenery of the
Upper Waters of the Wanganui River" and "the Protection of the Navigation" of these
waters. Broad powers were given under the Act to:
*
*
*
improve navigation, which included removal of obstructions262
erect jetties and landing places, but this only with the sanction of the Governor in
Counci1263
impose fees or to11s. 264 The exemptions here were interesting. Public servants
and military personnel were to be exempt from any fees or tolls, and goods of the
Crown.
The Trust had 7 members, 4 of whom were local government position holders, 2
members of Parliament for the area, and one a direct appointee of the Governor at his
pleasure. 265 An amendment in 1900 added 3 locally elected officials.266 The trust
was a river board under "The River Boards Act 1884" except for the powers to levy rates
or borrow monies. 267 Income for the Trust was to be derived from a 10,000 acre
endowment cut out of the Waimarino Block, and managed by the relevant land board
261 s3. At (1922) 197 NZPD 145 it is noted that trust jurisdiction was from Kemps pole, which was the limit of the harbour board jurisdiction, to 4 miles from the source. Did Kemp's pole therefore recognise and use the tidal limit?
262 s5(1)
263 s5(2)
264 s5(3)
265 sl
266 Wanganui River Trust Act 1891 Amendment
267 s4
74
under The Land Act 1885. Although the block was gazetted in 1892, the first areas were
not leased until 1906.268
The Governor, by Order in Council, could also declare areas of Crown land vested in the
Trust. The use made of these lands by the Trust was however restricted. The Trust could
not alienate the fee, but could:
generally lease these lands for terms of not more than 21 years
grant perpetual leases in areas established as townships
make public reserves, which would be subject to the general law relating to public
reserves 269
With respect to navigation, the Trust had virtually unrestricted powers to remove
obstructions in the river as it saw fit, it could not however erect jetties or landing places
without the express sanction of the Governor in Council. 270
With respect to scenery preservation, The Governor by proclamation could declare lands
to be a public domain within the jurisdiction of the Trust. 271 Apart from this the
Governor in Council had a very wide power to make regulations as he thought necessary
to manage lands II of beautiful natural scenery II .272
According to counsel for Maori at the 1950 Royal Commission there was no record of
consultation with Whanganui Maori over the Bill or Act. 273 It does not appear to have
ever been translated into the Maori language.
268 Campbell 1990 p141
269 s8
270 s5(2)
271 sl
272 s12
273 Record of Proceedings 1950 pEl
75
Section 11 of the Act contained exemptions for Maori rights in the river which might
otherwise be affected by the Act. These provisions were enacted partly at the insistence of
Carroll. 274 It provided that the Act did not:
*
*
*
affect any rights conferred to Maori under the Treaty of Waitangi;
give the Trust jurisdiction over "private lands";
give the Trust jurisdiction over "Native lands" the title to which had not been
investigated by the Native Land Court. However, as soon as title had been
investigated and acquired by the Crown, the Governor could declare the lands
subject to section 8 (lands for lease, townships or public reserve) or 9 (public
domain).
At the second reading of the Bill in the House, James Carroll, the Eastern Maori MP,
moved an amendment. He was happy with the provision preventing the trust dealing with
Maori land until title to them had been ascertained by the Native Land Court and they had
been acquired by the Crown. However:275
with reference to other rights that the Natives might have, he would give notice of
an amendment, .... There were rights that the Natives held under the Treaty of
Waitangi - fishing-rights, and so forth - and these should not be interfered with;
and therefore, to remove any doubt upon that head, he would suggest the
followinR amendment, to make everything clear: to insert the words "shall affect
any rights conferred upon the Natives by the Treaty of Waitangi, or." Then the
10th section would read as follows: -
"Nothing in this Act contained shall affect any right conferred upon the
Natives by the Treaty of Waitangi, or shall be deemed to confer upon the
274 See below
275 3 September 1891 NZPD vol 74 p218-9, DB
76
Trust any jurisdiction over private lands ...
From these comments, it appears the reference to the Treaty was intended to cover rights
other than just those to land - fishing rights being an obvious example. Presumably also a
right to navigation, which perhaps should have exempted Maori from tolls under the Act.
Comments from other members of the House about the Bill are also instructive.
Hutchinson, opening the second reading debate said credit for the Bill was owed to the
member for Wanganui - John Ballance. 276 Ballance, in reply to questioning, noted the
objects of the bill:
first, to maintain a waterway and improve the navigation for a distance of a
hundred and fifty miles; secondly, to preserve the natural scenery on both sides of
the river. 277
He also commented, "[a]s to the constitution of the Board, he could not conceive that any
public body could be more fairly constituted. ,,278 There was no Maori representation
provided for.
Two speakers questioned whether it would be wise to remove shoals in the river which
presently assisted navigation by acting as natural locks. 279 These comments probably
overstate the effect of shoals, but they do highlight a complaint later made by Maori, that
the removal of "snags" and building of walls increased river velocities and prevented
poling in some places which were formerly navigable by canoes. 280 Hoani Taipua, the
Western Maori MP, reflected these very concerns, commenting:
276 NZPD vol 74 p217, DB
277 NZPD vol 74 p218, DB
278 Idem
279 Ibid p219 MPs Newman and Fergus
280 See evidence before 1950 commission
77
Although it was proposed to confine the scope of this Bill to European or Crown
lands, still there would be some difficulty. Owing to certain works that were being
carried on in the Wanganui River in 1886 or 1887 the Natives sent a petition to
the House which he had the honour of presenting. The Natives objected to the
works because, as they pointed out, the works interfered with certain fishing-rights
at places where they caught lampreys, and those works had to be pulled down.
The places where they were in the habit of catching lampreys had been handed to
them by their ancestors, and these they guarded very jealously: they looked upon
these as being of very great importance to them. He was glad that some
honourable members saw that it was necessary to guard these rights of the
Natives, and had pointed out that if these natural drifts or rapids were dug away
the water would rush out and dry up the river. 281
He was happy however if the amendment Carroll had proposed was accepted.
Taipua's comment is interesting because he not only expresses concern about interference
with fishing structures, but also the river flow. He envisaged that the proposed
amendment would cover this. The comments of Ballance however, speaking of making
150 miles of the river "navigable" and relating this obviously to steamer use, were in
direct conflict. The debates stated the conflict, but no attempt is made to grapple with it.
It might be wondered why this amendment had to be moved by Maori at all. Ballance was
well aware of the concerns Maori had about the river. Indeed, at the final stages of
preparation of the Bill, he was asked (probably by the Crown legal advisers), in relation
to section 5(1), which conferred the power to improve the river for navigation:
Should the Trust be required to get their plans approved by the Governor, again,
are there likely to be any Native complications in carrying out the provisions of
this subsection ?282
281 NZPD vol 74 p220, DB
282 Memo 24/2/91, 11 1895/947, DB
78
No reply is recorded. The bill went to the House without alteration.
The Act was amended several times in its first years of operation. An 1892 amendment
provided the 1891 Act shall not affect or interfere with the "full and free navigation ... by
the Natives in their canoes or boats, whether towed by steamer or otherwise". There was
a proviso that "no canoe or boat, carrying passengers or goods for hire towed by a
steamer, shall be free from toll under this section. ,,283
According to Ballance, who introduced the second reading of this measure, the 1891 Act
was intended to gain revenue through fees charged for the landing of goods at wharves.
However due to the changeable river level,284 at many places wharves were not used
for the landing of goods. A valuable source of income for the work of the trust was being
lost. The amending Act provided that fees might be charged on all goods carried by
steamer or boats or barges towed by a steamer. Ballance said the measure was not
intended to apply to goods taken by canoes, but only goods towed in barges by
steamers. 285
Hoani Taipua asked for the insertion of a clause:
to provide that the rights of the Natives were not affected in any way; because a
large number of Natives lived on the banks of the river, and were constantly
travelling up and down it, and he was afraid lest this measure should hamper them
in any way in their travelling to and fro in the manner they had done from time
immemorial. 286
Ballance assured Taipua that the Bill already made this clear, but promised to make it
283 s2
284 In some places it rose 30-40 ft in a night NZPD vol 74 p294
285 For all this, the returns were not to be great - 1909 report that of £24,882 spent by that time, only £2471 had come from tolls, while £22,100 had been govermnent subsidy, the difference coming from rents (£311). Campbell 1990 p145
286 78 NZPD p294
79
"perfectly clear" in the committee phase. 287 Taipua successfully moved the proviso
regarding Maori rights in committee.288
The Act was amended again in 1893. This amendment allowed the trust, without notice,
to remove "earth, stone, boulders or sand" from the bed or banks of the river and use this
for any of the purposes of the trust, notwithstanding anything contained in the 1891 Act,
ie the s 11 provision re Treaty rights, or that the material was removed from customary ~
Maori land. 289 Compensation was to be provided after the event on application to the
Native Land Court, which would apply Public Works Act provisions as they related to
Native land. 290
This extraordinary measure caused an outcry in the House. The second reading was
moved by the member for Wanganui, A Willis, who said it was "simply to allow the
navigation of the river to be proceeded with. ,,291
Eparaima te Mutu Kapa, member for Northern Maori, replied that it would interfere with
Maori rights along the river and that he was instructed to object to it. He had opposed the
Bill on a previous occasion and suggested consultation with Major Kemp, but this
suggestion had not been followed up, nor had the Maori owners of lands which might be
affected been consulted.292 He asked that the measure go to the Native Affairs Select
Committee, and in this was supported by Hoani Taipua.293
287 Idem
288 NZPD vol 78 p503, DB
289 s2(3)
290 s3
291 NZPD vol 82 p636, DB
292 Ibid p636
293 Idem
80
The reply came from the Premier, Seddon. He called to mind the "late lamented
Premier,,294 who had introduced the 1891 Act, and stated that the amendment:
did not really affect the interests of the Natives prejudicially: in fact, it was for
their benefit. No one would benefit more than the Natives, who were making a
good living on the river. The removal of these falls and the protection of the river
bank were really in their interests. 295
Referring the Bill to select committee would prevent its introduction in the year. The
navigation of the river was "of national advantage" and provided the only way of getting
provisions to government settlements on the river. 296 Another member acknowledged
that "the Maoris felt very strongly with reference to the supposed removal of some weirs;
but it was true, as the Premier had said, that this river was one of the greatest arteries of
commerce in the North Island", and that consequently Maori could derive only benefit
from the bill. 297
The Maori attempt to delay the Bill was easily defeated.298
Kapa's reference to earlier protest probably refers to a petition from Kemp laid before the
House in July 1893.299 The petition was from Kemp and 59 others protesting at the
passing of this amendment. No recommendation was made in relation to it.300
294 Ballance
295 Ibid p636, DB
296 Ibid p636
297 Ibid p637, R Bruce, Rangitikei
298 Ibid p637
299 NZPD vol 79 p549, DB
300 Petition No 493/1893 see AJHR 18931-3 p17-18, DB
81
Protest at River Clearance
When the Trust began operations to deepen rapids there was almost immediate Maori
resistance. Probably they saw this new body as no different from the Public Works
Department. The same personnel were involved. J T Stewart was the chairman of the
trust. This protest was anticipated. In October 1891 the Lands and Survey Department
advised:
Major Kemp has been written to in reference to the eel weirs and asked to use his
influence with the Maoris to prevent any trouble - but you must understand - no
form of warrant or other authority could be issued to empower you to remove the
weirs, unless under the Public Works Act, a long and tedious process.
The matter will have to be arranged with the Maoris and they will be entitled to
fair compensation for loss of the weirs, this you can discuss with them and then
report for the Minister's approva1.301
The letter suggest that rights to eel weirs were, reluctantly, going to be respected. But no
evidence has been found of any compensation for weirs under public works legislation. In
fact, in a letter at this time from Andrew Anderson, the snagging crew foreman, it is
suggested that weirs already destroyed by the work in the 1880s were being rebuilt.302
He anticipated further protest if they were removed again303
In March 1892 it was noted that obstruction was taking place. Europeans working at
snagging were being molested.304 WJ Butler visited Karatia and Kawaeroa where the
obstructions were taking place, but failed to persuade the people there to having the weirs
removed. He arranged for Kemp to send a letter to the relevant chiefs to this effect. 305
301 Department Lands letter Oct 31, NA PW 36/3/1 Oct 31, DB
302 This is confirmed by a Hatrick letter of 9/7/1890 on 11 1895/947, DB
303 NA PW 36/3/1, DB
304 Campbell 1990 p64
305 NA 11 1895/947, DB
82
The strong presence of women in the protest was noted. 306
In December another drama occurred. The famous upper river tohunga, Te Kere,307
turned back a party of photographers 75 miles above Wanganui. the Wanganui Chronicle
reported that the photographers:
were surrounded by the Maoris and warned by Te Kere, a native "prophet," that
they must not proceed one step past a line marked out by him. A long discussion
ensued; but the small Wanganui party were told that if they went a foot further
they would be bound and thrown into the river and their goods confiscated. "But
the river is the Queen's highway," said Mr Martin." "No," answered Te Kere,
"the Queen's highway ends at Pipiriki," and he would not budge from the position
he had taken up. 308
Te Kere was making an unequivocal assertion that the river was in Maori control. The
"Queen's highway" referred to was the road which had been completed to Pipiriki.309
His assertion of authority continued the past tradition. And the complexities of river
politics were still at work. In September 1889 at a meeting at Koriniti under Topia Turoa,
it had been decided not to stop river improvements prevent steamers coming up to
Taumarunui, but eel weirs must be protected.310 This fact might account for the
comment in the local press that "[t]he chief to whom Te Kere is responsible is Topia
Turoa, who we hardly think will approve of his adherent's foolish conduct. ,,311
In January 1893 a party removing two weirs at Matahiwi, was prevented from taking two
306 Idem
307 see DNZB v2 517
308 1 December 1892
309 Thanks to Kevin Amohia for this
310 Campbell 1990 p64
311 Wanganui Chronicle 2 Dec 1892
83
further weirs at Kauaeroa, and also refused permission to allow stone to be removed,
unless the owners received a rate of 6d yard for stone lifted312 It appears that from this
incident two Whanganui Maori were charged with obstructing the work of the river trust
and assault. Only one person received a fine however for the obstruction charge, the
assault charges being dismissed313 The Kauaeroa people had been steady in their
resistance.
In February 1894 a contract for clearance work was cancelled at Matahiwi and Haumoana
rapids, due to the flooded river causing delays but also obstruction.314 This resulted in
2 further convictions for obstruction. An idea of the form of the protests is gained from
the statement that protestors had set a river trust punt adrift. 315 The Lands and Survey
Department reported:
The past summer has been very favourable for operations on the river, but the
Natives have proved very obstructive, though by continued firm dealing it is hoped
they will not be so much longer. 316
This was the first time Maori protest had been noted in the department annual reports.
The tone suggests that Maori fishing rights and section 11 of the trust act were to remain
a dead letter. A report from Hatrick was attached, complaining of the "Native
obstruction" and listing rapids "urgently wanting attending to". These were "Ahokura,
Upokopoitoi, Matihiwi, Moutoa, and Haumoana, and the eel-fences in the channel taken
out." ~thought it would be only 4 months work, "if the Natives would allow it,,?17 \~ ~ .
312 Campbell 1990 p64
313 NA CL 196/11, DB
314 AJHR 1894 Cl p80, DB
315 NA CL 196/ll, DB
316 AJHR 1894 C-l p42, DB
317 AJHR 189~ C-l, p80, DB. This suggests how closely these two agencies were working. See also AJHR 1895 C-l p112, DB
84
The Premier visited Pipiriki with James Carroll in March 1894, mainly to discuss further
land purchases:
Another important matter discussed the same evening was the obstruction on the
Wanganui River by the natives. Both the Premier and the Hon. Mr Carroll pointed
out to those interested that the proper line to take would be to consult the
Government so that a reasonable understanding might be arrived at. The natives -
were informed that they must /not,take the law into their own hands as the country (l
would not tolerate such a lint\~~Y
The report makes no mention of the rights supposedly reserved under section 11 of the
1891 Act. Accompanied by Topia Turoa, the party then went up to Tieke in canoe to talk
with Maori there, then returned to Pipiriki where they discussed opening a school. 319
Seddon was lobbied throughout 1895 by Hatrick, the river trust and Wanganui Chamber
of Commerce about the river and its navigation.32o In May 1895 Hatrick complained
that several buoys had been sunk and ropes cut. Remaining eel pas were said to be
hindering the steamers, and Marshall, the supervisor of works, reported that Whanganui
Maori were still not allowing work to proceed at Haumoana, an important rapid for eel
weirs between Ranana and Hiruharama.321
Whanganui Maori there refused to allow stone to be taken or placed in a proposed
training wall. In May 1895 the police were called and work continued under their
observation. 322
318
319 Campbell 1990 p57-8 - this in conjunction with 1895 native townships act
320 Campbell 1990 p58
321 Campbell 1990 p65 (Hatrick had in 1893 got permission to lay down wire cables to winch up rapids. Maori apparently had akatea vines at eel weirs to help them through the fast water gap.
322 AJHR 1896 C-1 p114, DB
85
Things were coming to a head. In the same month police held a meeting at Ranana on the
Premier's authority. They warned the assembled Maori they would enforce the law. A
large crowd gathered the next morning to watch further clearance work in progress, but
then the chiefs through Capt Marshall as interpreter said it had been decided the law
would be respected. 323
The protest continued. A further petition, from Mereaina Rauangina and .151 others was
lodged:
Petitioners pray that the rights of the Maoris on the Wanganui River be not
interfered with. 324
The Maori is stronger:
... kaua e takahia nga take tika 0 nga Maori ki te awa 0 Whanganui.
The petition was from 151 Whanganui women and was a powerful statement of concern
about the effect of the clearances.325 It is also interesting because it did not focus on
damage to eel weirs, but rather, sought to "to prevent the operation of the law ... to
remove the stones from out of the Wanganui river" (the amendment act of 1893). It
suggests that clearance activity was having an affect on the shore and banks as well as the
main channel and eel weirs. Perhaps the most telling statement of the petition was:
No meetings of Hapus or influential chiefs or Government ever agreed or arranged
that the steamer and the road should go up to Pipiriki.326
On this occasion the select committee was of the opinion that the government should "act
323 Idem and Campbell 1990 p65
324 AJHR 1895 1-3 p15, DB
325 NA 11 1895/947. A separate report is to be presented to the Tribunal on it
326 Idem
86
on the recommendation of the Wanganui River Trust Board, and depute the Hon. Native
Minister to visit the district with a view to settling the dispute. ,,327
In October, Tamatea Hurunui wrote to the Premier:
I here communicate to you the thoughts that are within one section of the
Whanganui River. This then is what I say, do you compensate me for my eel
weirs, for inanga and for the rocks at Kawaeroa, the amount to be paid me by you
to be £90,000 - if you agree to give this sum then I will open the Whanganui -
River for the eel weirs aforementioned are mine .... Should you pay this money I
will cease from having anything to do with Kawaeroa should you not I will
continue to use Kawaeroa and there will be trouble with the Maori people about
their eel weirs. 328
The Premier visited Whanganui again in November 1895. He took a Hatrick steamer to
Pipiriki to formalise the taking of the site of township there from Kemp and Turoa.329
The river trust's annual report thought this visit had a salutary effect on any
obstructionists, and noted the trust was anxious not to harm Maori interests, consistent
with their navigation objective.33o
There is evidence that Maori did agree to the removal of some weirs at their meeting with
Seddon. Nevertheless, within a month they were writing again to complain the
arrangement had been breached.In December, Pita Te Rahui complained Europeans were
disobeying Seddon's command by loosening his eel weirs at Haumoana rapid331 M K
Te Rangi Hiwinui wrote that while it had been agreed pa tuna in the way of steamers
would be removed, all eel weirs and lamprey weirs on the side of Matahiwi rapid have
327 AJHR 1895 1-3, DB
328 NA 11 1895/947, DB
329 Campbell 1990 p59
330 AJHR 1896 C-1 pl15, DB
331 Letter 23 December 1895 to Premier, NA 11 1895/947, DB
87
been destroyed by subsequent work.332
Seddon requested a report from the river trust. The snagging team denied any
interference. Stewart thought there might have been "accidental contact of steamer"
involved. The Premier was satisfied and wrote to Keepa to this effect in March. 333
Obstruction did continue however. In the same month as Seddon's reply a contractor
commencing work on Te Au te Mutu rapid was not permitted to proceed and part of work
already completed was destroyed. A sergeant and police constable were despatched and
Maori desisted, but said they intended putting eel weirs in every possible place. Hatrick
wrote to Willis MHR requesting matter be brought to notice of Premier. 334
In January Maori had however allowed the weir at Kauaeroa rapid to be removed, so it
appeared that, from the trust's viewpoint, the Premier's visit had not been in vain. At
Haumoana a wall had been built, but with a small gap for canoes to travel through near
one bank. 335
Counsel for Maori at the 1950 inquiry summarised these events:
... from the time when the steamer went beyond Ranana, there was considerable
obstruction by Maoris. Some of them were arrested. . ... Maori women cut ropes
holding barges and these went down the stream. The big ground of dissatisfaction
was that, whether under the sanction of the Wanganui River Trust Board or by its
own direct action or by the action of the steamer proprietor, fishing weirs and
traps were being destroyed and the Maoris saw that if this went on there would be
the total destruction of their means for taking their staple diet of eel and other
332 letter to Premier 28 July 1896, NA 11 1895/947, DB
333 see letters 9, 12, 14, 18 March 1896, NA 11 1895/947, DB
334 1896 AJHR C-l p1l5, DB, Campbell 1990 p67
335 1896 AJHR C-l p1l5, DB
88
fish. 336
The actions of 1896 appear to have ended an initial frenzied period of resistance to the
river clearance programme, and a reluctant compromise.
The Native Township at Pipiriki
The Maori presence on the river was being affected in other ways. The Native Townships
Act 1895 was one demonstration of this. Hatrick and others had steadily lobbied for a
European township to be established there for tourism.337 The Minister of Lands and
Immigration, John McKenzie put the matter clearly when he presented the Bill to the
House:
There were various places in the North Island where it was impossible to get land
where it was necessary for townships, and the result of this was that Europeans
were building stores and dwelling-houses on Native land in places where he had
no doubt at some future day to would cause a considerable amount of trouble ....
He might mention there was one such place up the Wanganui River called Pipiriki,
where the land belonged to the Natives, and to which a steamer subsidised by the
Government was plying at the present time. To that place the whole of the traffic
towards Ruapehu and the Waimarino Block was carried, and yet no one could
build there without the consent of the Natives, which was very difficult to
get. 338
As has been noted above, the government had been under pressure from Wanganui
lobbyists to end the Maori monopoly of this strategic settlement. The measure was
attacked by Heke for its weak: protection of Maori interests,339 Carroll, who supported
336 Record of Proceedings 1950 Spratt at F1
337 Campbell 1990 p58
338 NZPD vol 87 p180, DB
339 Ibid p593-4
89
the bill, hoped that government could provide necessary protection of Maori
interests. 340
McKenzie provided an assurance that Maori would be "fully consulted" in one respect,
the areas of their land within the township declared which they might remain on to
live.341 An amendment moved by the native affairs committee that pa and burial
grounds not be affected by the measure was lost.342 In the Legislative Council, one
member felt that a bill allowing for 500 acres to be set aside, against Maori wishes, and
with limited rights of objection, was a bit of "setting a steam-engine to crack a nut" .343
The Act provided that any area of "Native land", 344, could be gazetted by the Governor
as subject to the Act, provided no area exceeded 500 acres and no two areas were within ~
10 miles of each other. Of this proclaimed area, Maori were to retain in their personal
use as much as the Surveyor-General thought "reasonable", but not exceeding 20% of the
area proclaimed. Every burial ground and building actually occupied by Maori was to be
included in these reserves. 345 Maori wishes as to the situation of their reserves were to
be complied with as long as they did not interfere with any aspect of the layout of the
proposed European township.346 There was some limited recourse by objection through
the Maori Land Court. 347
Once the layout of reserves and township was confirmed, the land became Crown
340 Ibid p595-7
341 Ibid p180
342 Ibid p409
343 NZPD vol 88 p162, DB
344 s2, which included customary land whose title had not yet been determined
345 s6
346 s7
347 s8
90
land,348 under the control of the Commissioner of Crown Lands, with powers to lease
all areas not reserved for Maori for periods up to 42 years.349 Rents collected were to
be held paid into a common fund and distributed to the Maori owners, but only after the
costs of surveying and constituting the township had been paid, and the costs of any
compensation to persons who had interests by way of charges etc on the land at the time
when it was proclaimed for the native township.35o Finally, the local government of the
township was to be a matter for prescription by the Governor in Council. 351
A heavier handed approach could hardly be imagined. It is a good indication of the power
central government was willing to exercise over development along the river. As the
Minister of Lands indicated, the Bill arose out of the Pipiriki stalemate, and it was duely
applied there first. In 1898, 59 lots were sold ranging from 1/4 to 30 acres, realising just
over £147. Survey and administration of the of the township had however cost in excess
of £372 and this -was placed as a charge on the rents, payable over the next 5 years!352
348 s10(3)
349 s14-15
350 ss20 & 13 & 2
351 s24
352 1898 AJHR C-1 page x-xi, DB
91
CHAPTER 7
THE CROWN ASSERTION OF CONTROL
SCENERY PRESERVATION AND THE COAL MINES ACT
Maori Councils Act
Apart from the activities of the river trust, from the turn of the century other factors
began to affect Maori control over the river. Of these factors, scenery preservation was to
become the most burning issue.
From 1900, a series of statutes passed through the House affecting the river and the lands
on which Maori lived beside it. The Maori Councils Act 1900 contained an interesting
provision for the Councils established to make by-laws including:
For the protection and management of eel-weirs and the regulation of their
construction in such a manner that they shall not obstruct or impede navigation of
rivers navigable by small steamers or boats; and the protection of any nets or eel
baskets from damage or destruction, and the protection of river-banks or river
bush-scenery. 353
Although the parliamentary debates do not reveal how this paragraph came to be inserted,
it bears the hall marks of an intervention by Wanganui interests. It is interesting to note
the special definition given to "navigable" here, necessary because Maori canoes were
perfectly able to navigate between weirs. It sheds some light perhaps on the use of the
term in the 1903 Coal Mines Act amendment (see below). The paragraph was an attempt
to reconcile the conflicting interests in river use.
The Maori Lands Administration Act of the same year, James Carroll's compromise
353 816(9)
92
attempt to retain in Maori hands remaining lands sought for European settlement,
provided that of lands placed under Maori land councils established in any district,
reservation could be made of land of special significance and also "eel-pas or eel-weirs,
fishing grounds" and other food gathering sites, at the request of the majority of
owners. 354
This provision could have afforded some protection against the activities of the river trust.
However, Carroll's council system did not survive pressure for more land to be opened
up for settlement, and it was essentially stillborn, to be replaced by the Maori Land
Settlement Act 1905.355
That Act, while imposing a scheme largely aimed at leasing as much Maori land to
settlers as possible, also however provided for the inalienable reservation of papakainga,
burial grounds and "eel-pas, fishing grounds" bird, timber and fuel reserves. 356
Coal Mines Amendment Act 1903
This Act, having potentially the greatest impact to rights in the river, was passed almost
without comment as to its far-reaching nature. It was essentially a minor washing up Bill
until the movement of a late amendment. Just before the 3rd reading, Seddon moved that
the Bill be recommitted to consider a new clause which had caused "considerable
controversy" . 357 The clause (which became the final version) read:
14(1) Save where the bed of a navigable river is or has been granted by the
Crown, the bed of such river shall remain and shall be deemed to have always
been vested in the Crown, and, without limiting in any way the rights of the
Crown thereto, all minerals, including coal, in such bed shall be the absolute
354 s29
355 DNZB v2 p78
356 s8(c)
357 1903 NZPD v127, p681, DB v.,{
93
property of the Crown.
The term "Navigable river" was to mean a river of sufficient width and depth
"continuously or periodically" to be "susceptible of actual or future beneficial use" by
residents along its banks or the public "for the purpose of navigation by boats, barges,
punts, or rafts". Rights of riparian owners in non-navigable rivers were said not to be
affected.
The provision was probably passed in reaction to the case Mueller v Taupiri Coal Mines
Ltd, decided in 1900.358 There an owner of lands on both banks of the Waikato River
had asserted rights in the river bed to mine coal. The Crown successfully argued that the
common law presumption ad medium filum, that such an owner owned the bed to the
middle from each side, was rebutted in the circumstances. The Crown had at the time of
the grants of land to the private owner retained the bed for navigation purposes. The case
must have alerted the Crown to the uncertainty of public rights in New Zealand rivers.
Seddon was anxious to stress however that in the proposed measure "[ t ]he Government
did not wish to disturb existing rights". There was however some difficulty about how to
achieve that, and he hoped the clause suggested, which was finally passed, would "meet
the difficulty". 359
/' The Prohibition Case 1903 //
The Coal Mines Amendment Act came into effect in November 1903. Oddly enough, just
over 3 months previously, the ownership of the bed of the river had received judicial
consideration by the Supreme Court in the case In re Wanganui River Packet Licence to
Stuart360
358 Reported at (1902) 20 NZLR 89
359 NZPD vol 127 p681, DB
360 (1903) 23 NZLR 510
94
The case concerned a challenge on behalf of the Solicitor-General to licences allowing the
sale of liquor on Hatrick's steamers. The legal challenge was instigated by Eruera te
Kahu, Hori Pukehika and Wikitoria Keepa, this last being Keepa's wife. 361 They were
concerned that the licences allowed liquor to be sold on the steamer an area of Maori land
which had been proclaimed as "dry" by the licencing law then in force. Whanganui Maori
efforts to control the sale of alcohol had continued for many years. In 1874, Haimona te
Aoterangi and 167 others petitioned Parliament about the issue. The Licencing Act 1881
allowed areas to be proclaimed in which licences to sell alcohol could not be issued. The
Rohe Potae was declared such an area in 1884 at the request of Maori. An "Upper
Wanganui Licencing Area" was similarly declared in 1887.362 Hatrick constantly
lobbied against any restrictions to his river service. In 1902 he failed to get a licence for
Pipiriki House, because 131 local Maori petitioned against it to the licencing committee.
Wikitoria Keepa was involved in that petition.363 The ability of the steamers to bring
alcohol into the heart of these dry areas weakened their enforcement. The government
was obviously happy to support the Maori temperance effort and brought the case in
1903.
The court ruled against the government/Maori case, on the ground that the ban on issuing
licences affected licences on the ground, and not those operating on a moving steamer.
However, as a secondary point, the court also suggested that the ban, which applied to an
area of "Native land", did not affect the river bed itself, because that was Crown land.
The judgment cannot be considered a precedent, because the riverbed issue was raised
and dealt with only as a secondary point, and did not receive thorough argument or
detailed comment in the judgments. It was mentioned in passing in only one judgment, so
it is not clear that the other two judges concurred.364 The arguments raised and the
361 Ibid p512
362 Campbell 1990 p82
363 Campbell 1990 p83
364 Although we can assume that Judge Edwards did, see next paragraph of this report. It was not treated as binding in In re the Bed of the Wanganui River [1955] NZLR 419
95
resulting judgment did however rehearse issues which were to arise in the riverbed
litigation after 1939.
The record of the judgment suggests the issue of riverbed ownership was raised by Judge
Edwards, who asserted "The Wanganui River is in the Crown ,,365
The lawyers acting for the Crown and Whanganui Maori answered that Chief Justice
Stout had held the river to be within the proclaimed area. 366 The Wanganui River Trust
Act 1891 preserved Maori rights, and "[t]he bed of the river is Native land, and is the
same as other native land, even though there be the public right of navigation. ,,367 This
was the last time for many years that lawyers acting for the Crown would be heard to
make such a statement.
Hatrick's lawyers replied with the argument to be advanced by the Crown in later
litigation, that "[a]l1 Native lands are desmense of the Crown, subject to the Native rights
of occupation. The mere right of occupation could not vest the bed in the Natives." The
common law rule which stated that river beds were presumed to be owned by those
owning land along the river banks (the ad medium filum rule) "cannot apply in the case
of Native possessory rights", and they would possess only rights of fishing. It would be
"absurd" to suggest that Maori had possessory rights in a riverbed. 368
In the final judgment, the riverbed issue received a passing mention in a statement that
the licencing ban did not extend to a vessel "which is near, though not upon, some part of
the Native land one day, and the next day near, though not upon, another part of the
365 23 NZLR p512. He was to make similar comments in later cases, although in the Court of Appeal in 1954 it was noted that he had (perhaps inadvertently) conceded Maori ownership of the Waikato river in Mueller v Taupiri Coal-Mines Ltd (1900) 20 NZLR 89 (see [1955] NZLR 434, see his dissenting judgment in The King v Joyce (1905) 25 NZLR 78 and comments in Tamihana Korokai v S-G (1912) 32 NZLR 321
366 I am unable to locate what this refers to
367 23 NZLR p512
368 Ibid p514. Adams J appears to confuse this point in the Court of Appeal at [1955] NZLR 443
96
same land some fifty miles off. ,,369
It would be interesting to discover if there was any Maori reaction, or even understanding
of the implications of these brief references. In 1916, Wharawhara Topine, a key figure
in later court petitions stated:
In 1907 there was an action in connection with the river and in regard to that a
number of our principal men went to Wanganui. They assembled inside the Court
buildings but the matter was adjusted outside the Court buildings by the pakehas
not proceeding with their action. 370
Although the date is several years astray, was he referring to these proceedings?
" [~) Mr Justice Edward~ook a passing swipe at the Wanganui River issue in 1905 in a
dissenting judgment concerning land granted on the Waipaoa river in Poverty Bay:
The upper reaches of the River Wanganui, for example, which are now navigable
for small steamers as far as Taumarunui, a distance of some eighty miles above
Pipiriki, were certainly not in the early days of the colony used as a highway, and
they have only recently been made navigable. These reaches are among the most
noted tourist resorts of the colony, and if any part of the bed of the river is, in this
or any similar case, held to be the subject of private ownership very serious results
would follow. 371
It is interesting that in this case the Coal Mines Amendment Act 1903 was not referred
to.
369 Ibid p517. Emphasis added
370 DOSLI HO 228 01/04 and see later this report under "Scenery Protection"
371 The King v Joyce (1905) 25 NZLR p95
97
Scenery Preservation Act 1903
European travellers on the river had been eulogising about its scenery for many
years. 372 A report of the engineer-in-chief about the river in 1885 admitted not just its
potential as an access route, but also for tourism.373
This tourism potential was recognised in the long title of the river trust Act of 1891, "the
Conservation of the Natural Scenery of the Upper Waters of the Wanganui River". As
noted above, the trust had some limited powers for scenery preservation, dependent on
areas being proclaimed by the Governor under the Public Domains Act 1881.374 These
powers do not appear to have been used, or if so, not to any great extent.375 Under the
1892 Land Act lands could be set aside scenery preservation whenever Crown lands were
opened up for settlement. 376 There was however no clear provision for the taking of
private lands for this purpose.
Apart from the scenery preservation needs recognised when the 1891 Act was passed,
concern was being expressed from other quarters. A government report in 1903
concerning the preservation of native forests optimistically proposed a reserve:
one mile wide on each side of the Wanganui River, from Parikino upwards, until
the river becomes the boundary between the Land Districts of Wellington and
Taranaki, thence on the Wellington side of the river a continuation of the reserve
one mile wide to join the Wanganui River Trust Reserve (this would include a
large number of Native reserves and settlements along the river-banks); ... 377
372 eg Campbell 1990 p30-31, 38
373 AJHR 1885 D-l p31, DB
374 s9 of the 1891 Act
375 Crown land in the Waimarino block could have been set aside under this provision. See AJHR 1903 C13B p2, DB
376 AJHR 1907 C6 pl, DB
377 AJHR 1903 C13B p12, DB
98
As this suggests, any large scale preservation schemes in North Island areas would
disproportionately affect Maori lands378
A comprehensive scenery preservation measure was proposed by the Tourism
Minister. 379 At the initial passing of the 1903 Act, the Parliamentary debate
concentrated on whether money spent on scenery preservation might not be better spent
on settlement. Willis, the member for Wanganui at the time, produced letters from
Hatrick complaining about destruction on river banks 1;.nds leased by Europeans from A
Maori. Willis made it clear that Maori lands were the ones which were to be purchased
under the Act. 380 The Act established a commission which was to tour the country and
recommend those areas which should be reserved.
Maori responded to the measure with petitions. In 1904 Hapeta Hautehoro and 100 others
(not of Whanganui) complained that the lands proposed to be taken would be:
the famous places, the lands containing thermal springs, the famous pas, the canoe
landing places of former days, the sites of famous whares, the sacred whares, the
bird snaring places of olden time, that is to say all the places as are understood by
this Act as likely to be much frequented by the Tourists of the world who visit
here. 381
There was also concern about the artificially low compensation which would be paid and
the method of making payments via the Public Trustee. The government reply was that,
legally, Maori would suffer no more than other citizens by these takings.
In January 1905 the commission arrived at Wanganui to undertake an inspection of the
river. After a tour they announced that they would recommend the Crown purchase from
378 See also comments at Ibid p2, DB
379 Sir Joseph Ward
380 NZPD vol 127 p86, DB
381 TO series 1 1904/191/12
99
Maori 19,140 acres along the river. European areas of scenic interest amounted to 190
acres. 382
Before these recommendations were put into effect, the government sought to amend the
act and replace the commission with a board of 3 departmental officials, one of whom
would be Maori. At the same time, the government also sought to remove restrictions on
alienation which might impede taking of Maori land for scenery preservation, as well as
reserving Maori bird snaring and burial rights in lands taken.383 However a concern
that a Bill "specially affecting the Maori race" had not been translated, was upheld in the
committee stages, and all references to Maori land were removed.384 Ngata commented
that Maori, particularly in the Rotorua district, were complaining that meetings of the
Commission did not occur in the district and without a chance being provided for Maori
to comment or object. Ngata thought that "a great many spots that should have been
reserved had been deliberately destroyed by the Natives as a sort of protest against the
methods of the Scenery Preservation Commissioners. ,,385 There were also concerns that
Maori lands were undervalued for compensation purposes compared to European
lands. 386
The result seems to have been that the most of the Commission recommendations could
not be actioned. Hatrick wrote in January 1907 complaining that "vandalism" of river
bank lands was continuing.387 He had been told by the Under Secretary of Lands that
government was powerless to use the Act to take Maori land.388 A month later, the
government instructed the Aotea Native Council (presumably a council established under
382 Campbell 1990 pl04, AJHR 1907 C-6 p24, DB
383 NZPD vol 138 p595, DB
384 Ibid p595. The provision for the Maori member was presumably also dropped, there is no specific reference in the 1906 Act
385 138 NZPD 596
386 Idem
387 Campbell 1990 pl05
388 Campbell 1990 p105
100
the Maori Councils Act 1900) to "assist" in preserving river scenery as far as was in its
power. 389
These efforts had resulted in some Maori land being taken. The Lands Department report
of 1908 noted that 1517 acres of Aotea Maori Land Board property, which had been
leased by them for grazing purposes, had been taken under the Public Works Act; this
included parts of the Ahuahu, Ohotu blocks. The report also noted a spring of mineral
water at Pipiriki had been taken under the same Act, "and has now been leased to Mr.
Hatrick, owner of the Pipiriki Accommodation-house". 390
In June 1908 the Under Secretary of Lands advised the president of the land board (then a
judge of the Maori Land Court) that Cabinet had approved the taking of 19,000 acres,
presumably under the same public works legislation.391 As will be shown below, it
does not appear however that this full amount was ever taken.
Hogan, the member for Wanganui, had managed in the previous year to insert a small
amendment in the annual "washing up" bill of Maori land matters, the Maori Land
Claims Adjustment and Laws Amendment Act 1907.392 Section 29 provided that:
Where any land set apart by a Maori Land Board as a reserve, other than as a
papakainga reserve, is in the opinion of the Scenery Preservation Board suitable
for scenic purposes, the Maori Land Board may, with the consent of the Native
Minister, having regard to the due interests of the beneficiaries, transfer such
reserve by way of sale to the Crown for such purposes. 393
The government was however having doubts about the course it was taking. In 1910 a
389 Campbell 1990 p106 - this power could have been by by-law made under s16(9) see above
390 1908 AJHR C-6 pI, DB
391 Campbell 1990 p106
392 NZPD vol 142 p1263
393 How or whether this was used has not been invest
101
Scenery Preservation Amendment Act was introduced which amended certain definitions,
including those relating to "Native land", 394 provided that the Governor by notice in the
Gazette could permit the taking of birds and burials in reserves395 and, by section 10
provided:
All Native or other land taken under the Public Works Act, 1908, or the Public
Works Act, 1905, or the Public Works Act, 1894, for the purposes of scenery
preservation prior to the passing of this Act shall be deemed to have been validly
taken.
At the second reading, William Herries, the member for Tauranga, questioned this
clause. He objected in general to validation clauses:
It was quite possible that in some cases the law might have been improperly
carried out, except in regard to technical faults, and the Natives might have been
properly compensated; and there might have been other cases in which the Natives
were not aware whether the land had been taken at all, and had no opportunity of
objecting or claiming compensation. They had had a case of that kind in the
Taheke case, in which the Supreme Court held that land had been wrongly taken
under the Public Works Act. The Bill barred them in future from getting any
compensation whatever. 396
The government reply, from the Minister of Agriculture, Mackenzie, was indignant. The
clause was simply to "validate straight business transactions done with the Natives, and it
was even now merely a difference of opinion between the former and present Solicitor
General whether or not the clause was necessary." There was not a single instance where
Maori had not been properly compensated or did not themselves give the land. He went
on to complain that Herries insistence in 1906 that this law be translated into Maori had
394 ss2-3
395 s7
396 NZPD vol 153 p838, DB
102
been to allow some of the best scenery in the Wanganui River district to be
destroyed. 397 Hogan, the member for Wanganui, claimed credit for the passage of this
legislation.398 These references suggest the legal problem producing the "difference of
opinion" was whether scenery preservation could in any way be described as a "public
work".
In its 1912 report the Scenery Board noted:
In the Wellington District several areas of native land on the banks of the
Wanganui River were taken under the Public Works Act, and much of the
beautiful scenery between Wanganui and Pipiriki is now preserved under the
Scenery Preservation Act. 399
And the 1914 report announced that:
All the N-ative lands proposed to be acquired for scenery-reservation on the
Wanganui River have now been surveyed off, Messrs. Bogle and Wall, private
contract surveyors, having last year completed the surveys of about fifty miles of
river frontage. There are however, several surveyed areas that have not yet been
gazetted as scenic reserves, and it is desirable that this should be done without
delay. 400
Evidence so far gathered suggests that, at a minimum, 6,500 acres were taken for scenery
preservation in the area now covered by the National Park, including parts of some blocks
along the river banks. Most takings were under the Public Works Act 1908 and were
397 Ibid p838
398 Campbell 1990 p152
399 AJHR 1912 C-6 p2, DB
400 AJHR 1914 C-6 p8, DB.
103
gazetted in 1911. 401
These efforts to preserve the native bush can be compared with efforts to assist
Whanganui Maori in the lean years at the turn of the century. In 1905 reports reached
Wanganui that Maori at Hiruharama had lost the previous years potato crop and were
living on fern root. 402. A mayoral appeal, the "Foodless Maori Fund", saw supplies
provided by Wanganui citizens and taken free by steamer to Pipiriki, Koriniti and
Hiruharama. The government response was less useful. The Premier promised to assist
with providing seed potatoes for the next year, but in June 1906 the government
announced that since it was purchasing river blocks, Maori should have no further need
for foodstuffs. 403
The scenery takings must have appeared particularly ungracious to Maori living near the
river mouth. In 1910 Walter Hipango had gifted 30 acres at Putakataka, 26 km from
Wanganui township, for a public domain to the local counci1.404
The 1916 Inquiry
Maori petitioned Parliament about the situation in 1914,405 and in 1916 a royal
commission was established to investigate their concerns. Its terms of reference were
however not only to consider whether reservations over any of the existing reserves
should be cancelled, but also to enquire what portion of the proposed scenic reserves
401 See Affidavit of C Collins in WT A27(e) and Crown Land Acquisitions 1881-1916, WT A30. Further research would be required to reach a final figure, perhaps taking into account sales of lands for this purpose (by the Land Board?) as well as any further takings
402 30 Nov 1905 Wanganui Herald
403 The whole affair had a farcical ending. At a "poorly attended" meeting of the Foodless Maori Fund in June 1906 it was voted unanimously that because Maori had recently sold lands and were in receipt of large sums of money, and rents, and the government was providing employment to Maori, the fund should be transferred to the South African Memorial Committee. That Committee than met on the spot and voted the £59 from the Foodless Maori Fund towards the purchase of two brass tablets for the memorial, just arrived! Wanganui Chronicle 11 June 1906
404 Now called Hipango park, Campbell 1990 p155
405 AJHR 1914
104
should be set apart under the Scenery Preservation Act and further, what other areas of
any land, whether Crown, river trust, Maori, or private, should be retained as forest for
water conservation or bank denudation or in the interests of river conservation generally.
The Commission sat for 11 days, and travelled up the river to view the reserves. At
Taumarunui Hakiaha Tawhiao rose to speak on the Koiro No 1 block were 102 acres
were proposed to be taken. Scenery preservation was not his major concern
however: 406
.. I am to understand that the question of preservation of the river waters, and a
hundred other questions besides, are to be considered together with that of scenic
reserves, and we shall be expected to wait for these proper payments until the
settlement of the whole plan is arrived at. The Government has been very choice
in the selection of the scenic reserves which belong to us on the banks of our
Wanganui River, but in the year 1902 when the steam boats on the river carried
away a lot of the workings of our forefathers and we applied to the Government
for protection, no notice was taken of our application. . .. If the river waters fail
there wilt be no longer travellers to visit and admire the scenic beauties, and that
brings me to the great question as to the river itself. We should be compensated
for the benefits that others are deriving from our river waters. First of all we are
entitled to compensation from Mr. Hatrick for the eel-pas destroyed by his
steamers. Secondly now Mr Hatrick derives a large amount of benefit and income
by his use of the Wanganui River and in taking along these tourists to admire the
scenic beauties, whilst we Native owners are being correspondingly put towards
the losing of our land and property, at first along the foreshore and cliffs, but now
the system is being extended to the main lands all for the benefit of our people.
My purpose here is not so much to discuss and object to the scenic system, as to
ask that we be compensated for the benefits which so many other people are
getting from the use of our river waters about which we have petitioned
Parliament, basing our claims on the provisions of the Treaty of Waitangi. .... I
406 dosli 228 01104
105
want from the Government a clear statement as to what it proposes to do in regard
to the river waters submitting that those waters belong entirely to us. The Maoris
own the river.
He was supported by the next speaker, Wharawhara Topine:
And now as to what Hakiaka (sic) has laid down about our river rights. In 1907
there was an action in connection with the river and in regard to that a number of
our principal men went to Wanganui. They assembled inside the Court buildings
but the matter was adjusted outside the Court buildings by the pakehas not
proceeding with their action. And so I submit to this Commission as representing
the Government that we expect in due course to be paid for those parts which we
agree to cede for scenic, and at the same time we expect to be paid for our river
rights, which include the boulders and stones which are serviceable and therefore
of value. There are also our Pa Tuna (eel weirs) - a large number have been
destroyed and they are an important food source from the time of our ancestors.
We are not inclined to go any further into these questions without first being
clearly informed of our river rights. For instance say that the government accepts ~----,~-,
our offer -and takes the upper half of this 1030 acres [Whitianga Pt 6] it has a
large frontage to the Wanganui River. Does the Government expect us without
arrangement or consultation to forego our river rights by the disposal of the
abutting lands. I would like that question answered.
The chairman answered that that was a matter between "the natives' and government.
Wharawhara replied that "to us Native owners the question of our river rights has
completely overshadowed that of scenic reserves, and we realise that if we do not press
the matter now, we will get no compensation or recognition of our river rights." He
asked the commission to await fixing the reserves until the river rights issue was satisfied.
He continued:
the Government will not find us unreasonable if they meet us in the proper spirit.
For instance we do not say that the Government has been unreasonable in
106
appointing and sending along this Scenic Commission, but we do say that the
Government should have granted that Commission the power to discuss with us the
matter of our river rights, and to make such recommendations as the Commission
thought fair to us. The river being the base of the whole question we should first
be asked what our desires are in regard to the river.
This question as to river rights extends from the head of the river to its mouth,
and all of our sub-tribes who own the abutting lands are interested in its solution
Other speakers endorsed these comments, one noting that a lawyer had been consulted
during the Ward ministry, but that it had been determined the cost of valuing their rights
from the source to the mouth would be too great. Wharawhara asked that the Commission
note these concerns to the government.
~~~~ The findings of the Commission, delivered a year later, were not published in official
government papers. They made no mention of river rights. The major recommendation
was to "strongly recommend" that all areas already surveyed for reservation be taken "at
once", with some provisions for Maori to appoint an arbitrator when compensation was
determined. The Commission noted that it had been "somewhat embarrassed" by the
belief of Maori appearing before it that:
land accessible to birds and quite inaccessible to stock was only to be taken for
scenery. In the course of the Commission's investigations this belief was
frequently expressed, some Natives alleging that an assurance to that effect had
been given to them by Ministers of the Crown. 407
Maori were also uncertain as to the boundaries of reserves. According to minutes of
evidence taken, the Maori petitioners did not object to the general scheme of scenery
preservation, but only where it denied the use of farmable lands. Access to blocks from
the river was also an issue where it was proposed to take the banks. Blocks complained
407 Wanganui Chronicle 27 JUll 1917
107
about included Te Tuhi 4c1a (400 acres), Tawhitinui and Kauaeroa, Puketotara no 4 (100
acres proposed to be taken), Ahuahu B (200 acres proposed to be taken, including a
burial ground), Ohotu No 1 (300-500 acres to be taken, according to the witness, parts
had been specifically cut out so as not to come into the hands of the Maori Land Board),
Puke to tara 1.408
The commission had a Maori member, Te Hikaka Takirau, who delivered a minority
report argued that Morikau No 1 block be withdrawn from scenic reservation because of
the desire expressed by Maori to farm it, and also retain control over it. He also shrewdly
recommended that of the other areas reserved, when some of them should come in the
future to be spoiled for scenic purposes, they might be returned to Maori at the price
government had paid for them. 409
/
The 1927 Petition
In 1927 two petitions were lodged concerning the river. What prompted them to be
lodged that year is uncertain. Possibly it was the recent successes of other groups, such as
Tuwharetoa, through claims to rights in lake beds. 410
The first petition by Te Akihana Rangitaroia and 210 others contained an odd collection
of concerns. Compensation was sought for eel and lamprey weirs destroyed to clear the
way for the Hatrick steamers and for areas acquired for scenic purposes, stones and
gravel taken by the river trust and not paid for. It also requested that Maori living on the
river "be granted the right to use the said river for canoes and launches", as well as the
right to catch eels and lampreys. It was said this would not interfere with the "right of
passage" of the steamers. It was also requested that the island of Moutoa be reserved, and
ended "we desire to state that we have not received any compensation monies for the use
408 LS series 79, 1
409 Wanganui Chronicle 27 June 1917 and Campbell 1990 p174-6.
410 see Native Land Amendment and Native Land Claims Adjustment Acts 1924 s29 (empowering negotiations to be entered into) and 1926 ss14-16 (vesting lake bed in Crown and establishing trust board)
108
of this river though the Government is paying the sum of £2000 to Hatrick & Company
for carrying the mail," and noted that Hatrick was charged full freight and passenger
charges to Maori. 411
The second petition, presented by Pitikotuku412 and 125 others of Taumarunui,
"Praying for compensation in respect of Native rights on the Wanganui River. ,,413 was
more forthright in its demands. Three hundred thousand pounds were sought as
compensation for:
people having "interests in and are owners of lands touching the waters of the
river" should receive payment from the money made by the company for the use
of the river;
steamers had destroyed eel lamprey and other weirs handed down by ancestors and
elders, these were 'valuable properties" and the coming generation was deprived
of the benefit of them;
trout had killed toitoi, pariri, papaneke, inanga, panerere, tunariki species. A
portion of the licence fees for trout in Whanganui, Manganui-a-te-ao, Mangatiti,
Taangarakau, Retaruke, Ongarue, Taringamutu, Pungapunga, Whakapapa, Ohura
was sought;
royalties should be received for gravel taken;
for lands taken for scenic purposes, compensation was required for the owners
because, it was argued, these were ancestral lands, and the benefit from these
lands had been lost, with all benefits having accrued to the steamer company, and
its tourist traffic. It was said that "[T]hese lands did not belong to the Europeans
but to us and were practically confiscated for scenic purposes." This issue
obviously still rankled.
The petition mentioned other matters, including the vesting in the owners by statute of all
411 18 July 1927, NA MA 15/13/188 part 1, DB
412 a close relative of Te Kere
413 AJHR 1928 1-3 pl0
109
burial grounds and pa under occupation. All landing places on the river were to be
reserved and protected. In parts the wording echoed closely the statements made before
the Scenery Commission in 1916.
The Native Affairs Committee of the House referred the matter to the government for an
inquiry. Section 34 of the Native Land Amendment and Claims Adjustment Act 1930
empowered the Chief Judge to inquire and report in accord with the equities of the case.
No action was taken before 1938, by which time the petitioners had decided on a more
direct legal claim for the river bed.
110
CHAPTER 8
THE RIVERBED LITIGATION 1938-62
Introduction
The decision to apply directly to the Maori Land Court appears to have been taken some
time in 1937. Titi Tihu, in an affidavit for later court proceedings, recalled that in that
year Wharawhara Topine and Hekenui Whakarake came to Taumarunui and told Titi they
had had legal advice to go to the Maori Land Court to seek an investigation of title to the
river bed. They approached Titi because he was a supporter of the 1927 river petition
(Piti Kotuku, the man who brought it, was Titi's uncle), but also because they thought he
could assist with vitally needed funding. 414 Titi stated that he agreed to assist with
finance, and received authorisation for this at a Taumarunui meeting. 415
Almost certainly, the legal advice given at this time concerned the settlements that had
been achieved in a number of claims to the ownership of lakes. A monetary settlement
had been achieved for Lake Taupo in 1927, and litigation over Lake Waikaremoana and . other cases (which were all to be mentioned in the later litigation), supported such a legal
claim.
These men could not however have been aware that, despite these apparent successes, the
government viewed with some alarm claims of the sort that they were about to make, and
was anxious to avoid anyone case becoming a precedent which would apply throughout
the country. It is possibly this fact, more than any other, which caused the litigation over
the Wanganui river bed to drag out as long as it did.
The government concern was set out in a memo of March 1922, a copy of which is on
414 MA 1 Ace W2459 5/13/188/1, affidavit of 9 July 1953
415 The affidavit continues that Titi and Hekenui both worked on funding until Hekenui's death in 1952. Also see Record of Proceedings 1950 Spratt pG2
111
the Crown Law file for the Wanganui river. 416 In the memo, the Attorney General
drew Cabinet's attention to the fact that the Supreme Court had decided that the question
of who owned lake beds was a matter for the Native Land Court. It was not a question of
law, but of custom as that court determined it. Assuming the Appellate Court agreed with
a decision of the Land Court, it was "very improbable" the Privy Council would reverse
that decision, based as it was on the Maori custom applying. Here was the government's
dilemma:
[a] Judge of the Native Land Court (Judge Gilfedder) in the case of the
Waikaremoana Lake, has already decided that the bed of the lake belongs to the
Natives. This, in the case of Waikaremoana is an extremely serious decision, for
the result of granting the fee simple of the bed to the Natives would raise very
serious questions as to the right to withdraw water from the lake for electrical
power purposes417
Apparently this demonstrated that at least one of the Native Land Court judges "does not
understand and appreciate" that the Treaty of Waitangi vested the "whole fee simple" of
all lands in the Crown and left Maori only rights over waters, but not to the beds under
them. The Attorney General advised settling the Arawa lakes matter out of court, even if
this involved a "considerable sum of money". The matter of Lake Waikaremoana "must
be fought out as far as it is possible to carry it to appeal". An adverse decision against the
Crown "would raise very serious difficulty in the matter of fishing and possibly of the
user of the water for electric light and other purposes. ,,418
These concerns were clearly still in the mind of government in 1938. While the first
hearing of the Whanganui river bed claim was proceeding before the Native Land Court,
the Minister of Lands, after talking with the Attorney General, wrote to his department
that the two men had concluded "that the claims made border on the fantastic, and we
416 CL196
417 Memo to Cabinet 21 March 1922, CL 196/10, DB
418 Idem
112
would both welcome the views of the Solicitor-General on the expediency of introducing
declaratory legislation definitely stating that the beds of rivers and lakes are vested in the
Crown, and have been since the date of the Treaty. ,,419 Also:
in the event of the Native Land Court deciding the Wanganui River-bed matter in
favour of the natives, before legislation can be introduced, I would favour taking it
on appeal as far as it is possible to do SO.420
The Native Land Court Application of 1938
The application lodged with the Maori Land Court was made on behalf of the Whanganui
tribes. 421 When the Court opened its proceedings on 3 November in Wanganui a
considerable number of Whanganui Maori were present in support422
It had been agreed to hear the application in 3 parts:
1 whether Maori held the bed of the river according to their customs and usages at
the time of the Treaty
2 whether those rights had been lawfully extinguished or "transmuted into Native
freehold titles"
3 the making of freehold orders, defining of the area concerned and persons entitled
and their relative interests. 423
419 Memo to Under Secretary for Lands, 19 November 1938 CL 196/2, DB. The legislation would preserve Maori fishing rights and allow for compensation
420 Idem
421 Minutes of evidence 3 November 1938 p2
422 Ibid pI
423 Judge Harvey, Maori Appellate Court 20 December 1944
113
Morison intimated that should Maori be found not to own the river bed, a separate claim
might be put in for fishing rights. He noted that the Crown had in the matter of lakes
elsewhere argued that these were the rights Maori had, and not rights in the soi1.424
Morison asked the Judge whether it was accepted that the court had jurisdiction when the
Crown opposed the matter. Section 113 of the Native Land Act 1931 then in force
provided that if the Governor-General proclaimed that any land vested in the King was
free from native customary title that would be determinative in any court proceedings. No
such proclamation had been made in this case.
The inquiry was limited to the parts of the river that were "navigable". The applicants
argued that this meant only tidal parts of rivers, the Crown relied on the broader
definition in the Coal Mines Act 1925.425 The Crown therefore immediately admitted
Maori ownership of river beds where the river was not navigable. There is some irony in
this, since the Crown's main contention at this first hearing was that Maori custom or
usage never recognised Maori ownership of river beds. Presumably then, the Crown was
at this stage contending that at the moment the title to riparian lands was determined by
the court, Maori abruptly gained a new right - title to the river bed flowing past that land.
This Crown admission immediately satisfied a Tuwharetoa application which it was noted
was then also before the Court, which applied to non-navigable parts of the river. 426
The essential case of the claimants was that the ownership of the bed was part and parcel
of ownership of the land. After referring to petitions from 1887 to 1927 to illustrate that
Maori had not slept on their rights, Morison called only 3 witnesses; Hekenui Whakarake
of Ngati Ruaka and other hapu; Wharawhara Topine from Taumarunui, of Ngati Haua
427; and Parete Wereta from Matahiwi, of Ngati Poutama, Ngatihau, Ngatitane, & 2
424 3 November 1938 pI. This secondary claim was never brought
425 Ibid p4 & 17
426 Ibid p2
427 Ibid p13
114
other hapu. 428
Morison questioned Hekenui, the first to appear, about the relevant tupuna for the river.
Judge Brown interrupted at this point:
Each hapu owning land alongside the river will be claiming the bed and each will
need separate land assessed. 429
Morison indicated that this was not necessarily his approach. He suggested that tupuna
relevant to the blocks may not be the only relevant ones, in other words that there might
be other tupuna for the river itself.
Hekenui then testified that Maori had used the river, including its bed, for many years,
and that there were 3 tupuna, Hinengakau, Tamaupoko and Tupoho, who were relevant
when discussing rights in the river. The other witnesses reiterated this point. 430
Morison was trying to establish a different model from the one the court was used to,
where commonly evidence was advanced that particular tupuna had occupied and
cultivated areas and handed rights onto the present claimants. The relationship here was
different. The 3 tupuna were said to be land based, but prior to and the source from
which all other tupuna subsequently named for land blocks before the court came. hekenui
was questioned:
Are these tipunas the same tipunas as were set up for the land adjoining the river?
No. They did not get into the land
You mean they did not get in on these tipunas?
428 Ibid p13-14
429 Ibid p5
430 Ibid p13 & 14
115
They did not get in themselves, but their descendants did. 431
What was being asserted was not separate ancestors to the river, but prior ones,
suggesting that in the Maori view the river required a special approach.
Morison had the witnesses establish that eel pa had been destroyed by work done to assist
the passage of steamers.432 Mter questioning Parete Wereta, Morison produced various
written authorities on the extent of Maori land tenure and the recognition of Maori
ownership to the beds of lakes433, then closed his case. He had taken just one and a
half days.
Prendeville, the Crown counsel, took the remainder of the second day. His submissions
were brief. The Crown argument was simply that while Maori custom admitted rights of
fishing, navigation and domestic water use, custom did not uphold exclusive ownership to
the soil of the river bed. Also, "rights of sovereignty" gave the Crown rights of
"ownership of access over the country and its navigable waters". 434 This argument of a
Crown prerogative right, evidence in the 1922 memorandum, was advanced consistently
by the Crown in the litigation which followed.
Prendeville admitted that there had been "conflicting views" on this issue for some time.
He explained the outcomes on the Wairarapa, Horowhenua, Tarawera, Taupo and
Rotorua lakes, where Maori had clearly asserted ownership to the bed in each case, as
examples of this "conflict".
Expanding on the Crown argument of a general public right, he noted "it was an
ownership under the primitive idea of public rights and that is all the Crown's ownership
431 Ibid p5 - see also p14
432 Ibid p13
433 Ibid p14-15
434 Ibid p16
116
amounts to now. The Crown is only contending the public rights". 435 Morison pointed
out that navigable waters in England could be privately owned.436
Prendeville next submitted that Maori used the river as a highway. The presence of
Bishop Selwyn on the river in 1839 was put forward as proof it was seen as such. Maori
complaints had been about interference to fishing rights, and these they had sought to
have reserved in the 1891 river trust Act, not rights in the bed itself.437 Finally, any
native custom required the support of legislation (begging the question of the point of the
native land Acts). The Native Land Court had no jurisdiction over any tidal areas.
At this point the Court closed, with Prendeville promising to return with witnesses for the
Crown. This took some time, and the Court did not sit again until 27 April 1939.
This time the sitting was in Hawera rather than Wanganui. There was an exchange
between counsel over the reason for this. Clearly, the Crown hoped that Taranaki based
witnesses would support its case. Morison preferred the case to be heard in Wanganui,
and accused the Crown of "hunting round" for suitable evidence. As it turned out, only
one witness was heard, the 88 year old Eruera te Aka who was too elderly to travel to
Wanganui.
Eruera Te Aka not surprisingly came from Ngarauru, although he said he had "many
hapus" including Whanganui. He admitted to having been 60 years away from the
Whanganui area. 438
The counsel for the Crown at this hearing, Hunter, found Te Aka a difficult witness to
deal with, his evidence being contradictory on his main point, that the river was the
"great Maori road" for the use of all and that Maori had no real interest in the bed:
435 Ibid p16
436 Ibid p17
437 Ibid p16
438 Evidence of 27 April 1939, p3
117
Was the bottom of the river any interest to Maori?
From the shore right to the river bed and the land under the river was all of
interest to the Maori.439
Under cross examination, Morison drove the contradiction home, having Te Aka admit
that if the river was called the "Maori road" then it must have belonged to Maori.44o
Although Hunter was able to have Te Aka assert that Ngarauru had used the river without
express permission of the Whanganui people, this ignored the witness's statement that he
and Ngarauru had hapu links to the Whanganui area. Morison in cross examination made
this point, asking whether for example Nga Puhi would be free to use the river without
permission. Te Aka gave no clear answer. 441
The Crown was obviously having its problems with witnesses. Prendeville was later to
complain that although they had taken a great deal of trouble going from one person to
the next to obtain the facts, witnesses became nervous on the stand. 442
When the hearing re-opened on 18 May 1939, the Crown first called as witnesses 3 river
workers, two of who were part Maori. William Robertson, then a 42 year old truck
driver employed by the river services, added little to the Crown case. He was of
Tuwharetoa descent on his mother's side, a fact Morison seized on in cross-examination,
pointing out that he probably had an interest in the Lake Taupo settlement.443
Andrew Anderson was a more substantial witness. He was the 43 year old son of the
Anderson who had first run the government mail service on the river. His mother was of
439 Ibid p3
440 Ibid p5
441 Ibid p5
442 See letter to under secretary Lands 29 May 1939 Cl 196/2, DB
443 Evidence of 18 May 1939 p3
118
Ngatikura of Pipiriki. Andrew had been a river steamer captain for the past 9 years. He
himself had been given a lamprey weir by an elderly uncle some years previously. His
evidence makes it clear that rights over weirs were still very much alive, and that disputes
were settled within the Pipiriki community. New weirs were also being built. 444
After a brief appearance by Arthur Burgess (who had been a business manager for the
Hatrick Company), the retired captain Joseph Tarry was called. He had joined the river
service in 1908. Tarry was evasive. When asked "Did you ever hear of them making any
complaints about the using of the river?" he replied that Maori were "a very friendly lot
of people" . 445 He had not heard any assertions to ownership of the river. 446
This did not quite accord with notes of an interview Tarry had, probably with Hunter, in
December 1938. There Tarry had stated that in the upper river area where he worked,
older Maori were:
very bitter against us, especially round Tawata - just below where the Houseboat
used to be - there were then a tribe of nearly 2000 living there. That was the left
bank. They showed their anger and let us know they did not want us there. They
did not take any active measures to stop the passage of the steamer. 447
He was also confused on the question of ownership. After commenting that "I never
heard any Maori say that the bed of the river belonged to him or to his tribe, although
they certainly claimed fishing rights", he contradicted himself in the interview notes a few
lines later:
Punepi448 was always hostile to the river service. He claimed that the river
444 Ibid p7. His father, Andrew Anderson senior, had been a snagging crew foreman in the 1880s
445 Ibid p9
446 Ibid pl0
447 LS 22/863/2 held at CL 196/2, DB
448 Correct spelling is Pumipi
119
belonged to the Maoris and not to the whites. The younger Maoris seemed to
concede more to the Europeans, but it was a debateable question between the
Maoris as to who the river belonged to. Punepi did not try to exercise any
authority over the other Maoris.
Punepi had definitely asserted that the river belonged to the Maoris. I have heard
Punepi refer to the Treaty of Waitangi. Reneti of Matahiwi was another bitter man
- he also claimed they owned the river, but they gave no grounds for this.449
He also commented that "[W]here the River Trust Board had put groins in, it destroyed
their fishing grounds." None of this emerged before the Court, although Tarry was to
give evidence along these lines before the 1950 inquiry.
The court reopened on 19 May, when Hunter, who had briefed the Taranaki based
witnesses, continued examination. Kuki Tautahi from Nukumaru, an ariki of Ngarauru,
was called first. Once again, the Crown tried to assert that non-Whanganui people had
free access to the river. If Eruera Te Aka was a difficult witness, Tautahi was much more
so, constantly deferring questions by reference to records and papers not in the Court.
Hunter also put absurdly leading questions; "In the lands occupied by the Ngarauru
people, how many navigable rivers have you apart from the Wanganui River?" .450
Morison was unsparing in his cross examination. Kuki Tautahi it appeared had never
lived on the Wanganui river and had confused her discussion of land there with land on
the Waitotara river. 451
Hunter called a further Taranaki witness, Maui Onekura or Rangihaeata of Ngati Ruanui,
Wanganui, Ngarauru and Ngatiapa. His evidence was mainly about the Patea River,
which included a reference to compensation in money and land for the destruction of
449 Idem
450 Ibid pI6
451 Ibid pI8
120
fishing rights on that river452• His evidence did not greatly assist Hunter, making it
quite clear that in earlier times express permission was required to travel on that
river453•
At this point the case closed. The Crown must have realised it had lost the first round.
The Crown evidence had not been entirely convincing. This was perhaps because the
Crown was seeking customary evidence to support a legal argument about a prerogative
right. The Crown strategy of proving that the river was open to all was flawed because
the witnesses produced from Taranaki had direct links with the Whanganui people and
expressed these. 454
The Maori Land Court - Ownership at 1840
Judgment was delivered on the 20 September 1939. It was brief, and a total rejection of
the Crown argument. The Court held there was not any area of the country which was not
historically under the control of one Maori group or another and permission for access
was required. Maori considered land under rivers to be as much their own as the
surrounding land, the test being the placement of pa tuna in the bed and the rights
surrounding these. The court was linking fishing rights which required for their exercise
the driving of stakes into the bed, with rights in the bed itself.
The more general use of the river made in recent years did not diminish the Maori right
in the eyes of the Court. Rather it reflected Maori inability to mount a strong challenge to
assert their rights, and the "mistaken assumption" of the Crown that the river was a
public highway.
The Court also noted that Maori protest about the destruction of weirs had remained
452 Ibid p20
453 Ibid p20
454 eg Kuki Ibid p15. The Crown argument, that the river was a highway open to all, was reversed at a later stage of the inquiry where the ad medium filum rule was relied on.
121
largely unheeded.
The Court addressed the Crown contention that native custom related solely to navigation,
fishing and domestic water. These rights the Court found were regarded by Maori as
following as a matter of course from ownership of the bed of the river. To confirm this
point the court stated:
this Court, in all its experience of native land and the investigation of the titles
thereto, never once heard it asserted by any Maori claimant that the ownership of
the bed of a stream or river, running through or along the boundaries of the land
the subject of investigation, whether that Stream or River was navigable or not,
was in any way different from the ownership of the land along its banks. Nor has
it ever heard it denied that the tribes or hapus that owned the land on the banks of
a stream or river had not the exclusive right to construct eel weirs or fish traps in
its bed or exercise rights of ownership over it.
This statement, possibly more than any other, influenced the future proceedings. 455 It
has been taken to mean that Judge Browne was hostile to the idea of a "separate title" in
the river bed. It may be that Judge Browne would not have accepted the arguments which
were to be made at a later stage. But the statement)1f did not rule out the Whanganui
claimants argument. What statements that were made suggest that the 3 tupuna for the
river were advanced as ancestors prior to all subsequent ancestors claimed in support of
titles to land. If this was correct, then, logically, it would be quite correct in one sense to
say that the ownership of a river did not differ from the land along its banks. These
possibilities were never explored before the Land Court.
The Court ended the judgment by dismissing the last Crown argument, that the Crown
had a sovereign right of ownership of access over the country and its navigable
waterways. The Court said the Treaty of Waitahgi had not altered sovereignty in NZ to
give the Crown a right not present even in English common law.
455 It was quoted in the Maori Appellate Court 1944 and Court of Appeal 1960
122
The Maori Appellate Court - Ownership at 1840
The Crown appealed the Land Court decision. That appeal was unanimously rejected by
the six judges in December 1944456• No further witnesses were heard, the court simply
receiving submissions. 457
In March 1944 the Solicitor-General had appeared before the Court and sought an
adjournment of this case and of an appeal concerning the Waikaremoana Lake.458 The
Government he said did not then have the resources to research the case. These grounds
were expanded on in the subsequent hearing, where it was said "experts" required to
search the "long and tedious" records were not available because of the war. In addition,
the necessary records had been removed in 1942 as a protection against a possible attack
on Wellington. 459
This was not entirely the case. Although the Crown Law Office obviously had manpower
problems because of the war, and Prendeville had stated this in an internal note in 1941,
there was also an attitude that "it was not until a few years ago that the Natives
discovered that they owned the bed of the River and a further delay would not affect that
position. ,,460 It was also felt to be important that "Natives and Pakehas desire to
combine together without any disturbing influences in aiding the war effort of the
nation" . 461
This was not a view which the claimants shared. It seems that Morison, who may have
been approached about the matter, had not agreed to halt the case. At this March hearing
456 Judges 0 Shepherd, Carr, Harvey, Dykes, Becchey, Whitehead
457 W gtn Appellate Court MB no 8 p4ff
458 28 March 1944 extract from Wgtn Appellate Court MB, No 6 p240 ff, DB
459 5th April 1944 Evening Post, also 4 April 1944 Dominion, Db
460 Letter to Under Sec Lands, 10 Feb 1941, DB
461 Under Sec Lands to A-G, 18 Feb 1941 CI 196/2, DB
123
he stated that Maori had been pressing for 4 years to have the appeal heard, and the
Government was well aware of this. Counsel for the Waikaremoana claimants was even
more vehement about this apparent foot dragging by the Crown.462
An additional 2 week period for the Government to prepare was agreed. Despite the
breathing space, the Crown was not in a benevolent mood. When Morison asked for costs
for the 12 hapu representatives who had come to view the proceedings, Prendeville is
recorded as saying "This is like a holiday for some of them. The expenses should be
limited to essential persons. ,,463
In the Appellate Court decision464 which unanimously upheld the Land Court judgment,
the only judge expressing hesitation decision was Judge Beechey, who thought that the
whole matter should be dealt with by a higher court, and hoped it would be the subject of
further review. He commented that he could not understand why different "takes" were
being advanced for the river as opposed to the land, but did not find that relevant at this
stage. None of the other judges referred to this aspect.
Counsel ran again the arguments used before the Land Court. Prendeville asserting that
"All New Zealanders are proud of the Maoris today. However though they are an
intelligent race it is hard to conceive that they could possibly understand the law as to
beds of rivers". He said it was significant that Maori had taken 97 years to discover that
they owned the bed of the river (although he had to admit the Putiki foreshore case of
1872).465
The Supreme Court
This result was the fears of the Crown come true. The Wanganui litigation had now
produced the precedent which might affect
462 28 March 1944 extract from Wgtn Appellate Court MB, No 6 p240 ff, DB
463 Idem
464 11 Wh Appellate MB p111ff
465 5th April 1944 Evening Post
124
other rivers and lakes in the country. An appeal to the Privy Council was not going to be
of assistance.
The Crown Solicitor at the time, A E Currie, was however reasonably relaxed about the
potential problems. He thought the rights Maori were contending for were, in the end,
"of little practical value":
Maori fishing rights were preserved under Part I of Fisheries Act 1908 by s77(2),
but Part II for fresh waters was not so subject, and even if Maori gained title to
the riverbed, it would not be "private waters" so Part II of that Act would still
apply;
The river would still be subject to a public right of navigation. He suggested every
navigable river was in any event a "harbour" in terms of the Harbours Act 1923;
Maori would get little compensation if the river was dammed anyway - most
compensation would go to the owners on the banks affected.
He also suggested that "the effect of continued and expensive litigation on the pockets and
the temper of the natives should be considered." But still the fear of precedent remained.
Although it might be possible to "Take no further action, on the ground that the nominal
rights of ownership are not worth opposing", if this course were followed the Crown
should expect "a crop of claims for the beds of other navigable rivers, e.g. Manawatu,
Rangitikei, Patea, Mokau, Wairoa, Northern Wairoa etc, as well as mangrove swamp
areas. The Natives interested are awaiting the final decision in the Wanganui case." He
then laid out other courses available involving litigation and noted concern had been
expressed by the Public Works Department.466
The Crown brought a motion in the Supreme Court for the issue of writs to prevent
Whanganui Maori, or the Maori Land Court of Appellate Courts from taking the litigation
466 26 April 1945 to Under Sec Lands and Survey, CL 196 Item 23, DB
125
further. The motion was sought on two grounds:
1 That the ad medium filum aquae rule applied. Section 121 of the Maori Land Act
1931 which determined that nature of Maori freehold titles, did not suggest that
this rule should not apply. The Crown submitted that were the ad medium filum
presumption to be upset, private titles to land would be "jeopardized" on a large
scale.467 ,
2 The fact that the river was navigable in the area under investigation meant that it
vested in the Crown under the Coal Mines Act.
These arguments- were heard before the Supreme Court in May 1949. In reply, ~~ for the Whanganui claimants pointed out that ad medium filum was a conveyancing
presumption only and not a rule. He stressed the separate take tupuna being advanced for
the river bed, and that the Maori Land Court investigation looked to Maori custom and
not rules associated with land under grant from the Crown. 468 If the Coal Mines Act
applied as the Crown contended, then it simply confiscated the Maori title to the bed, yet
the wording of the statute did not reflect this. He also suggested that the word "vested II in
that Act should be used in the same way that the word "vested" was used in the Maori
Land Act definition of customary land, that is, "land which, being vested in the Crown, is
held by the Maoris or the descendants of Maoris under the customs and usages of the
Maori people". He mentioned the case of The Queen v Symonds as the beginning point of
an understanding of the Crown's paramount title. 469 Morison was in effect raising the
doctrine of aboriginal title. The Court did not however deal further with this submission.
The Attorney General argued in response:
That the Coal Mines Act was not confiscatory because it simply extended the
467 [1950] NZLR p248
468 Ibid p250
469 Ibid p250
126
presumption that the Crown owned navigable tidal waters to navigable non-tidal
waters;
The "great part" of navigable rivers were held by Pakehas - in fact, as the 1950
Commission was to find, a substantial area of the Wanganui river bed would have
been in Maori hands at 1903 under the ad medium rule;
Maori titles or rights bound the conscience of the Crown, but did not bind it
legally. The legislation simply cancelled any "past implied grants" in navigable
waterways.
The Court decided in favour of the Crown motion. The decision was a simple one, that
the Coal Mines Act clearly vested the bed of the river in the Crown. Accordingly Maori
no longer owned the river bed. However the Court made other obiter comments which
were to have considerable force in later litigation. Mr Justice Hay noted that the Coal
Mines Act was not confiscatory since he considered that no rights under the Treaty had
been affected. Maori might no longer have exclusive rights to navigation of the river, but
their rights had been enhanced by improvements to the river under the Wanganui River
Trust Act.
He also made it clear that he thought the ad medium filum rule applied to Maori. He
based this view on comments in the Maori Land Court and Maori Appellate Court which
suggested they had doubts whether a separate title to the river bed existed from that for
the land. He did concede one general tribal right, to navigation over the river bed under
the control of the tribe. This he thought was the subject of "long-user, sufficient, indeed,
since the assumption of sovereignty to give rise to a common-law right to the public
generally". This last view was in fact the one rejected by the Maori Land Court in its
decision. Judge Hay thought this pushed Whanganui Maori into a legal corner:
The claimants are actually in this dilemma: that, in seeking to avoid the
consequences of the common-law rule which would ordinarily apply when they or
members of their tribe disposed of their riparian lands, they are bound to rely
127
upon rebutting circumstances which are consistent only with the public ownership
of the river. 470
There was of course no dilemma if the Maori Land Court view, not challenged in the
Appellate Court, had been accepted, that the general tribal right of use was concurrent
with the right to keep outsiders out.
There is some irony in this, given that the Supreme Court in these proceedings was trying
to determine the proper jurisdiction of the Maori Land Court and Appellate Court, and
the Appellate Court had expressly not made a final determination on the argument of a
separate take tupuna for the river bed. Indeed, Mr Justice Hay even quoted Judge
Beechey's comment in the Appellate Court that:
I confess -I am not able to understand why different "takes" should be advanced,
but I do not think it is relevant to the question we have to consider, viz., was the
river bed customary land in 1840.471
Hay did however go on to note that:
It is, '" somewhat singular that here the Crown should be upholding the doctrine
ad medium filum, which is in marked contrast to its attitude in the Waikato River
case. One would have expected that, in the case of one of the most important
waterways in new Zealand, the Crown would have been concerned to deny the
right of private ownership in the bed of the river. 472
In any event, the Supreme Court decision was a victory for the Crown. Not only had the
Court stated that the Crown owned the bed under the Coal Mines Act, but it also said that
it had not acted in a confiscatory manner in doing so. And it had also provided a useful
470 Ibid p262
471 Wellington Appellate MB no 8 p45
472 1950 NZLR p260
128
endorsement of the ad medium filum rule.
The Royal Commission
This loss did not deter the Whanganui claimants. They secured a meeting at Parliament in
October 1949 with senior government representatives including Fraser, Minister of Maori
Affairs, Deputy Prime Minister Nash, Minister of Justice and Attorney General Mason
(who had successfully argued the case before the Supreme Court), and the Minister of
Lands. 473 The question of a royal commission was raised by the claimants, and
received a not discouraging response. 474
The terms of reference were drawn up in consultation with counsel acting for Whanganui
Maori. 475 The Commission was to:
discover if, but for the 1903 legislation, Maori owned the bed of the river
according to their customs;
determine if Maori had suffered any loss in respect of the river bed and "in equity
and good conscience' were entitled to compensation;
recommend what level, to whom and on what terms any such compensation should
be paid.
The Commission sat in the Maori Affairs Committee room at Parliament in April and
May 1950 before a single commissioner, Sir Harold Johnston.
Counsel for the Whanganui claimants, Spratt, set out the claimant case:
473 It may be no coincidence that an election was imminent
474 Notes of meeting 11 October 1949. MA 1 Ace W2459 5/13/188 part 2, DB
475 MA 1 Ace W2459 5/13/188 part 2, DB
129
the kind of proprietary interest that the Maori Land Court turns into a freehold
order in respect of lands squatted on and used by members of the tribe, justifies it
cutting out that portion from the whole tribal area and investigating title to a
block; that kind of interest is a totally different thing from the undivided or unitary
interest of the whole tribe in what was (1) an important and necessary waterway
for them, and (2) which supplied the whole of their staple fish diet. 476
Hekenui Whakarake again gave evidence about the 3 tupuna, about tribal rights over the
river, the importance of fishing and the construction of pa tuna. The retired captain Tarry
also appeared and gave evidence in marked contrast to his remarks before the Maori Land
Court. Where before he had claimed weirs were not damaged and that Maori generally
had not complained about the river service, he now admitted that this had occurred.477
Titi Tihu then gave evidence of river use and the ancestral claim. Other witnesses
included a local Pakeha farmer, officials from the Ministry of Works and Lands and
Survey, who gave evidence on gravel taking, and a retired valuer, who also commented
on gravel. William Stewart of the River Trust was also called. The Commission also
heard fisheries evidence from a Marine Department official.
Hekenui Whakarake and Titi Tihu were the only witnesses to discuss the nature of the
Maori complaint. Much of the commission's time was taken in legal argument, and
submissions by counsel. The question of the value and quantity of gravel taken also
occupied some time.
The Royal Commission Report
The first part of the Commission's 20 page report dealt with the issue of ownership of the
river bed and its possible relinquishment. Mter quoting extensively from the judgments in
the Land Court and Maori Appellate Court the commissioner had no hesitation in finding
that Maori owned the river bed according to their customs. He based his findings very
476 Record of Proceedings pJ2
477 Ibid page X6, Y3-4
130
much on evidence relating to fishing rights in the river. He also however analysed
English common law relating to fishing rights, relying on authority that private fishing
rights making use of the soil gave rights in that soil, and concluding:
I think it is clear that if Europeans had used the river in the same way and
ownership were in European hands they would have the same claim as now made
by the Maoris. 478
In addition, he advanced the view that because Maori had such an intense interest in their
river fisheries, they might well have retained that interest, and consequently their interest
in the river bed, on sales of riparian lands to the Crown. Johnston also made the point,
which does not appear to have been raised in other proceedings, that early transactions
with Maori (here he referred to the Okui eel weir sale of 1863), presumed that there was
some ownership of land under water. 479
Turning to the issue of the loss of these rights, he found that any legislation purporting to
expropriate Maori title should make this intention clear, and quoted the Queen v Symonds
judgment in support. 480 Thus he dismissed the notion that the 1891 River Trust Act had
affected the river bed where it remained in private hands, a contention supported in later
Court of Appeal j udgments. 481
Perhaps the most telling point however was his view that:
478
479
480
481
482
The Crown has not, I think, paid sufficient regard to the principles of tribal
administration and organisation which are matters of history and can be gleaned
from the Native Land Court judgments already quoted. 482
AJHR 1950 G-2 p9
Ibid p12.
Ibid p12
Ibid p13
Ibid p13
131
The second part of the report, dealing with compensation, was not so helpful to the Maori
case. Maori had, in moving from a former "uneconomic" way of life to an "economic"
one, voluntarily changed their dietary habits, so that compensation for loss of fishing
rights was not now an issue. 483 Some compensation for the loss of gravel was however
appropriate, and it was recommended that a 3 person panel should assess this. Johnston
hoped that the Maori Land Court would be empowered to settle the question of the
rightful owners of the river bed for the payment of any compensation monies.
The Court of Appeal - The First Case
These findings were not greeted enthusiastically by the Crown lawyers. The Attorney
General minuted, "it is new (and very interesting) law to me that the ownership of fishing
rights may thereby acquire the ownership of the bed of the river etc., over which the
fishing rights extend." While the opinion of Johnston was entitled to "great weight", he
did not think it should be accepted as binding on the Crown. 484 He advised closing the
matter by negotiation of "some comparatively small sum" without prejudice to the Crown
contention that no compensation claim existed either in law or equity, finishing: "If a
settlement in this way cannot be arranged, I think we should decline to budge". 485
The Solicitor-General likewise disagreed with the finding on the legal point of fishing
rights, doubting the English cases relied on. He explained that in everyone the grantor of
riparian lands had made a grant to a different person of the fishing rights. Maori, when
they sold to the Crown, passed also the bed, unless they could prove the bed was in the
whole tribe, but would then fall foul of the public ownership rule. Judge Hay's comment
in the Supreme Court about the Maori "dilemma" was quoted. This argument about the
legal technicalities of the ad medium filum rule ignored the careful reliance Johnston had
placed on the findings of the Maori Land Court judges (as has been noted, the Maori
Land Court explicitly rejected the "dilemma" that was posed) nor consider his warning
483 Ibid p15
484 to Min Maori Affairs, MA 1 Ace W2459 5/13/188 part 2, DB
485 Idem
132
that the Crown should look to "the principles of tribal administration and organisation" to
understand the Maori case.
More important perhaps, it was second guessing the commission. If the Crown really felt
the Commission's findings were bad at law, they had a remedy in review.
Several days after this opinion, the Minister of Maori Mfairs met with the Whanganui
claimants and their solicitors. The claimants made an offer; the Crown to pay £19,000 for
expenses to date, and £6,500 pounds on an annual basis in perpetuity. If the Minister was
aware of the Solicitor-General's doubts about accepting the Commission findings, he gave
no sign of it, instead stressing that "[T]he Commission was the highest body the
Government to set up [sic]. It had all the evidence from both sides and he could not
depart from their findings without a very good reason." The claimants should restrict
their demands to the findings of the Commission (which had found loss only through
gravel extraction) and moderate them. 486
A few weeks later the Under Secretary of Maori Mfairs was officially advising the
Minister that the Commission findings should not be accepted because of the "insuperable
difficulty of ascertaining who are entitled to compensation for gravel taken from the
particular portions of the river" and the legal doubts raised by the Attorney-General and
Solicitor-General. In the under Secretary's opinion the amount asked for at the April
meeting was "so exaggerated as to be ridiculous". No more than a 'nominal amount" was
owed. 487
It was not until October 1951, when Rangi Mawhete, Hekenui, Tanginoa Tapa, Titi Tihu
and "representatives of the Wanganui river tribes" met the Minister that he gave the first
indication that the Government was considering referring the matter to the Court of
486 16 April 1951 notes of meeting, MA 5/13/188 part 3, DB
487 The Under Secretary had been present at the earlier meeting. Memo from Under Sec Department Maori Affairs 26 June 1951, MA 5/13/188 part 3, DB
133
Appeal. 488
A Cabinet memo of November 21 recorded the decision. Under the heading "Royal
Commission's recommendation unacceptable" it stated "[T]he Attorney-General and the
Solicitor-General are agreed that the Commission's recommendations are impracticable
and that some of its findings are not free from doubt". There were 3 options. Negotiate a
settlement "for a relatively modest sum (on the grounds that the gravel lost by the Maoris
would be worth little)", let the matter lie, or provide legislation for the courts to
determine "essential questions":
The first of these courses has very little prospect of success and the second is not
only likely to embarrass the Government, but would certainly lead to continual
agitation in the future. Either of these courses would, moreover, mean that certain
very vital questions regarding the beds of rivers in New Zealand would be left
undecided. 489
The third option was recommended. Accordingly the Maori Purposes Act 1951 provided
that the matter go to the Court of Appeal. 490 This enactment was drafted and passed
without reference to the Whanganui people or their counsel. 491
The legislation required the Court to determine two simple issues:
Whether, prior to the Coal Mines Amendment Act 1903, Maori, under their
customs and usages, held the soil and/or any other rights in the river bed;
To what Maori or groups of Maori these rights belonged.
488 Notes 16 October 1951,MA 5/13/188 part 3, DB
489 Cabinet memo CP (51) 1303 21 Nov 1951, MA 5/13/188 part 3, DB
490 s36
491 [1955] NZLR p459
134
The Court was to have available to it the record of evidence from the Maori Land Court,
the Royal Commission and such further evidence as it thought fit to receive to assist it.
The Court was uncertain who might be affected by its determination, and indeed who the
parties were who might argue the matter. Consequently the Court required, before
beginning its investigation, that it receive from some party a formal application by way of
motion to make declarations on these matters. The Crown filed this motion, and raised
the arguments stemming from the common law which it had argued in the earlier
litigation. The Crown asked for a declaration either:
That the river was a public highway which Maori had never owned (they had only
fishing and domestic water rights in it) and the bed of it vested in the Crown on
the acquisition of sovereignty; or
That the ad medium filum rule applied. A further argument was added here,
perhaps inspired by the Supreme Court judgment, that those parts of the river bed
not already sold to the Crown by 1903 had been declared free of any Maori title
by the Wanganui River Trust Act 1891.
Spratt argued that the Court could not overturn the Appellate Court ruling. This was
denied, but in the event proved an unnecessary consideration as the majority of the Court
affirmed that earlier judgment. As Mr Justice Cooke put it:
The view that the bed of this stretch was so held is supported by the circumstance
that, if it had happened that a tribal certificate of title to the whole of the lands of
the tribe had been applied for and issued under s.23 of the Native Lands Act,
1865, this stretch of river would, ... have been included in such certificate of
title. 492
However, the majority of the members of the Court of Appeal were reluctant to deal with
492 [1955] NZLR p433
135
the factual issues involved, considering these within the province of the Land Court.
While happy to concur with that Court on the point of ownership at 1840, they sought
evidence from it on the possible application of the ad medium filum rule after that date.
As Cooke noted, the Court of Appeal had before it evidence of only 5 instances where the
Land Court determined title to riparian blocks between 1862 and 1903 in the area being
considered. 493
The Court noted that the Crown, in raising the ad medium filum argument, was raising
the opposite contention to its assertion in the Arawa lakes case. 494 There the Crown
had argued no such rule should be held to apply.
The Crown's argument that the effect of the 1891 Wanganui River Trust Act was
"something akin to a proclamation by the Crown that the bed of the river had ceased to
be Maori customary land" was soundly defeated.495 Although the Court agreed that the
Act remained a "dead letter" in some areas until Maori customary title had been
ascertained, and the Crown had acquired it, this mistaken assumption in the legislation did
not avail the Crown before the courtS.496 Mr Justice Cooke, in a reference which raised
the issue of common law aboriginal title (but did not pursue it) thought that reading the
act in the way the Crown described would fly in the face of comments about the nature of
Maori title in Nireaha Tamaki v Baker and Queen v Symonds.497 Neither was the
wording of the act confiscatory. 498
Although the Court would not make a determination on the ad medium filum rule without
493 We now know that close to 50 blocks had been considered in that period. For the purpose of the proceedings it was admitted that all lands on the relevant stretch of river had had their titles determined.
494 Tamihana Korokai v S-G (1913) 32 NZLR 321
495 [1955] NZLR p436
496 Idem
497 Idem, also North J p465
498 Idem
136
further evidence, both North, Hutchinson and Cooke made some interesting observations
on the difficulties the Crown might have in arguing that the presumption applied: 499
There was a very heavy reliance on fishing in the river, as there were few other
good sources of food;5oo
Persons occupying one bank might have rights to a weir beyond the centre line
and close to the other bank;501
Persons being owners in a block some distance away from a weir;502
The Land Court task was to provide a "best fit" for Maori custom to English law,
in accordance with equity and justice. Accordingly there could be no justification
for applying a "broad submission" that the presumption applied, "irrespective of
the surrounding circumstances". Each case must be examined closely. 503
The suggestion in one case504 that if Maori retained fishing rights in any sale
then the ad medium filum presumption might well be rebutted. This would
possibly apply even more so where title to only one bank of the river was being
determined by the Land Court. 505
499 Cooke endorse several of these p438
500 Ibid North p476. The implication seems to be that the sheer importance of the fishing rights in the bed meant that the ground from under them would not disappear by a mere presumption. This extended the point made by Johnston at AJHR 1950 G-2 p12, that because the river was a "larder" and Maori were very much reliant on it, the presumption of ownership would be stronger than in England
501 Ibid North p468 also Hutchinson p427
502 Ibid North p468
503 Idem
504 King v Joyce (1905) 25 NZLR 78
505 Ibid Nort~There was a suggestion in this also that extinguishment of Maori customary title, guarantee~ Treaty, should not be lightly presumed.
137
Lack of a legal power in the Land Court to grant "incorporeal hereditaments" ie
fishing rights detached from the soil (the 1909 Act was mentioned). The
implication being that only by presuming that Maori retained the soil of the river
bed after a sale could any fishing rights retained be legally protected. 506
Since in English law there was no assumed public right of way over a private river
(such a public right had to be explicitly granted), the fact that tribal members
continued to freely use the river after the grant of private titles suggested private
titles were not extending into the river bed.507
Hutchinson also wondered what might be the effect of long stretches of river where there
were no rapids or weirs and therefore presumably no evidence of fishing rights to assist
in deciding if the ad medium filum presumption was applied or rebutted. 508
A Maori Land Court judgment of 1941 concerning riparian blocks along the Manawatu
river was briefly considered, and it was noted that the minute books had been looked to in
that case, but it was not felt to be a precedent for all rivers.509
The Court of Appeal had arrived at no determination as to ad medium filum, but
suggested that it had real doubts that the presumption would apply: 1\
Mr Justice Adams in a lengthy dissenting opinion did not agree that Maori owned the bed
of the river at 1840. Nor did he did not feel reticent about challenging the decision of the
Appellate Court on this point, and indeed wondered whether the 'preoccupation" of the
506 Idem
507 Idem
508 Ibid p428. The Crown solicitor also raised the issue of areas bounded by cliffs where there was no access to the river: MA 5/13/188 part 3, 1 August 1957 "I understand that in many places there are long faces of sheer cliff on one or other or both sides of the river. it occurs to me that it may be unrealistic to regard the ownership of riparian lands in these localities at least when viewed from the standpoint of native customs, as extending to the middle-line of the river when in fact there would be no means of access from such lands to the river."
509 CL 196 item 8 Judgment re Himatangi, DB
138
Land Court judges with Maori claims alone had 'induced in their minds an undue
readiness to accept" those claims. Maori had no more than certain riparian owner rights
to fish, use water, navigate and take stones.
The Court recommended that the Government provide legislation empowering the
Appellate Court to gather further evidence on the ad medium filum question.
The Maori Appellate Court - "Take Tupuna"
Accordingly, the matter went back to the Maori Appellate Court. 510
In preparation for the case the Crown collected material from minute books and had maps
drawn up. The Court sat to hear this on 6 June 1958 with 5 judges presiding. 511 None
of these had been present that the Appellate Court hearing in 1944.
The hearing was hardly satisfying for the issues being considered. It appears to have
taken just three days, much of the first day being taken up with confusion over whether
the Court was required to go through the minute book record of the title investigation for
each block, when references to eel weirs appeared in only very few blocks. Spratt called
only one witness for Whanganui, Titi Tihu, and his evidence and cross examination
achieved very little, partly it seems from the minutes because of interpretation problems,
partly because the examination consisted almost entirely of cross examination. The
development of the Maori case was left essentially to Spratt, who provided a reference to
the battle of Moutoa to assist his discussion of mana, and a statement comparing the
plaited rope of unity for the Whanganui river to the notion of the British Commonwealth.
The Crown called no witnesses on that aspect, but confined itself to statements from
Lands and Survey staff about the investigations of blocks along the river.
510 The Maori Purposes Act 1951 giving the jurisdiction to the Court of Appeal was amended by the Maori Purposes Act 1954. The decision to do so is recorded at Cabinet paper CP (54) 751 , 10 Sept 1954, MA 5/13/188 part 3, DB
511 Judges Prichard, Smith, O'Malley, Jeune, Brook
139
Consequently the Court did not hear any detailed historical evidence on river use and
control, apart from its examination of references to eel weirs in the minute books.
In its judgment, on the primary question, whether there was a separate take tupuna to the
river as opposed to the riparian lands, the court found that this might be so as a matter of
"mere symbolism" but not as a matter of "practical realism". The "practical realism"
referred to was essentially the outcomes from the Maori Land Court process, the Court
finding that, "[ n ]owhere in the evidence, both oral and documentary which has been put
before us, can we find that any suggestion was ever made to the Maori Land Court ...
that there was a separate "take" to the river". 512 The Court conceded that had the
Whanganui tribes put the whole tribal territory through the court as one block, a tribal
title "according to the relevant form prescribed by statute at the time of investigation"
might have been issued. But, this procedure had not been followed so that:
in the practical result, ... the original or tribal right, not being insisted upon by the
tribe, was being converted by these processes into the recognised rights of the sub
tribes or smaller groups as they obtained freeholds in fee simple from the
Court. 513
Their honours did not however go on to investigate whether legislation at any time would
have allowed this "original or tribal right" to be recognised by the land court, nor did
they examine evidence to discover why a broader title had not been "insisted upon by the
tribe". The evidence suggests that Maori could not in any event have asserted a broad
right in the river, as the legislation did not provide for it.514
Even the Crown ~admitted that minute book references to eel weirs were of dubious value
to answer the case stated. Crown counsel submitting that although eel weirs were put
512 Judgment of 6 June 1958 p3
513 Ibid p4
514 The Court admitted that had hapu or family groups submitted separate applications for various parts of the river the process would have become "complicated" pl0
140
forward as suppqrting claims to ancestral rights:
it has to be conceded that in this case there is no express instance we can find
where such a claim was put forward to an interest in a block. . ... These eel weirs
were discussed at length at various places but they didn't seem to - it is very
difficult to get anything conclusive from them. 515
The best that he could do was to suggest that "there is some linkage of some kind or
other between the riparian communities and the eel weirs in their locality. ,,516
The Court found that "in most cases" the same hapu owned land on both banks of the
river, and that "in some cases, they might to some limited extent, have built and used
weirs a short distance up or down the river from where they lived but still within the
hapu boundary." So that "generally speaking", the site of fishing devices "was related to
the ownership of one or other of the banks opposite". 517 This finding that hapu existed
on both sides of the river was important, because the evidence, as the Court of Appeal
had noted, showed that weirs did not easily sit on one side or the other of the river
middle line. The Court did not consider what might occur if there was a large scale
purchase of land on one side of the bank, and the weir was in the river close to that bank,
nor whether, when the land on both sides was sold or further partitioned.
The Court did not believe Titi Tihu's evidence of travelling some miles along the river to
use weirs, and thought this was a consensual arrangement with the land owners in any
event. 518
The Court of Aweal - the Final Decision
515 Record of Submissions 1958 p77
516 Ibid p80
517 Judgment 6 June 1958 p6
518 Ibid p2-3
141
This determination of the Appellate Court went back to the Court of Appeal. Perhaps
significantly, because of the reservations expressed about the ad medium filum rule, none
of the 4 judges who considered the matter in 1953-54 were present among the 3 who
considered the fresh evidence from the Appellate Court in 1960.519
The finding of the Appellate Court that no separate or different take tupuna existed for
the river bed was regarded as almost definitive of the case. The Court of Appeal
understood that the take tupuna advanced for the river was that found in a proper
appreciation of Maori "mythology and symbolism ", that the land and the river came from
"different gods" and that the river became a unity from the purpose of the three children
of Tamakehu to unite all the people of the river. These elements the Court found, in
agreement with the Appellate Court to be "mere symbolism II which had properly to be
distinguished from II practical realism ".520
In contrast to the 1954 Court of Appeal, which had urged caution in applying general
presumptions to the area of Maori custom, the judges stressed the transforming nature of
the title derived under the Maori land legislation, which brought all the incidents of
English legal title to bear. T~~ted" ol?j~S!!2!!~,~!~sti<::~li2rth_to,~~!lerC:l.l
"'H'~"'''''VU of the ad medium filum rule in the 1954 judgment were answered to a large ____ ~c _____ ~~~~--~
degree by this new emphasis.
Perhaps the closest the Court came to a consideration of the broader aspects of the Maori
case was in the following passage:
Mr Spratt's references to the mana of the Wanganui River were indeed moving;
but I cannot find in the evidence, as contrasted with the persuasive eloquence of
counsel, any facts which lead towards the conclusion that the Wanganui Maoris or
any section of them ever regarded the ownership of the river as a matter separate
519 In Re the bed of the Wanganui River [1962] NZLR 600
520 Ibid ,14-15
142
and distinct from the ownership of its banks.521
The Whanganui people's claim to the river bed had taken 24 years to reach a final
decision. As few seem to have noticed throughout this saga, this latest claim was the
continuation of efforts since at least 1870 to have the Crown admit the rights of
Whanganui iwi in the river.
521 Ibid Turner p625
143
