Ngai Tahu Land Report

02 Summary of the Grievances, Findings and Recommendations

2.12 Mahinga Kai Summary

Introduction

The claim involving mahinga kai is one of the most emotionally charged elements of the Ngai Tahu claim. The communal exploitation and use of natural resources both for tribal consumption and trade was basic to the Maori economy and hence to the whole social fabric of tribal and intertribal life. For generations, Ngai Tahu have petitioned Parliament over deprivation of their traditional mahinga kai. The tribe claims that the Crown guaranteed our people all our fisheries and other natural food resources under Article 2 of the Treaty and, in terms of the Kemp Purchase Deed, absolutely ...

Ngai Tahu claim compensation from the Crown for their lost mahinga kai and effective partnership with the Crown in the management and control of those few that remain-including the fisheries.

This brief description of the mahinga kai claim comes from Tipene O'Regan, chairperson of the Ngai Tahu Maori Trust Board, in his essay in Waitangi: Maori & Pakeha Perspectives of the Treaty of Waitangi. The following is a summary of chapter 17 of the report dealing with mahinga kai but it should be said here that it is difficult to further abbreviate this subject when chapter 17 itself is but a fragmentary account of a vast and integral part of Ngai Tahu society.

What is mahinga kai?

What is meant by the term "mahinga kai"? The tribunal found that to Ngai Tahu in 1848 and subsequently, this expression meant "those places where food was produced or procured". Such a definition includes the tribal resources in and on the land, in the forests and in the rivers, lakes and sea and in the sky. It includes kai ika, kai moana, kai awa, kai manu, kai roto and kai rakau. Ngai Tahu see their mahinga kai in a holistic way, but for reasons given earlier, the tribunal had to sever sea fisheries and a number of ancillary claims from this study of the principal land claims. This summary is therefore not one of the total Ngai Tahu food resource but nevertheless it will give a general picture first of how dependent the tribe was on its mahinga kai, and secondly of how Ngai Tahu was adversely affected by land settlement and development. It concludes with the tribunal's findings on the tribe's grievances. It also offers some constructive ideas as to how changes can be made to ensure Maori have an effective future stake in environmental matters.

Claimants' grievances

The claimants alleged that Ngai Tahu had been dispossessed of their mahinga kai, in breach of article 2 of the Treaty and, in the case of the Kemp purchase, contrary to the terms of the Kemp deed. More particularly the claimants complained that the Crown failed to adequately protect Ngai Tahu's natural resources on Banks Peninsula including Wairewa and that as a result these resources have been destroyed or depleted (no 1); that in respect of the Kemp purchase the Crown failed to provide ample reserves and failed to reserve and protect Ngai Tahu mahinga kai (no 2). The claimants also claimed that the denial of access to mahinga kai had accentuated the effects of landlessness (no 3),that the agricultural use of land and introduction of acclimatised species had destroyed or reduced the value of mahinga kai (no 4) and that Ngai Tahu have been denied effective participation in resource management and conservation (no 5).

Ngai Tahu and their mahinga kai resources after 1840

Ngai Tahu was a highly mobile tribe. The people depended for their survival on hunting and gathering food over vast distances. A map produced to the tribunal located almost 4000 archaeological sites; the pin-pointed sites in fact traced out the shape of the South Island. Food gathering was also largely seasonal and evidence showed that Ngai Tahu would move to an area and there catch and preserve food to take back to their more permanent settlements. In autumn an annual migration took place to the Titi Islands to gather mutton bird. Even after the land purchases Ngai Tahu continued to gather their traditional food not only near their kainga but in long journeys across and down the island. These seasonal journeys also gave opportunity for hapu to barter with other hapu. The claimant, Rakiihia Tau, gave a graphic account of how he accompanied his father to catch and gather eels, salmon, koura, shellfish, duck and geese eggs, kereru and other birds. These foods were used for subsistence in those days and food from the shops was bought only to supplement mahinga kai. Mr Tau commented on the disappearance of mahinga kai, his family's principal food source, and the apparent inevitability of this loss.

The tribunal visits the regions

The tribunal visited marae in Kaikoura, Kaiapoi, mid and south Canterbury, Dunedin, Southland and the west coast where many witnesses spoke of their past reliance on mahinga kai and commented sadly on how those resources had diminished and all but disappeared. The tribunal visited river sites, estuaries, sea shores, the inland lakes and viewed some of the traditional hunting, birding and fishing grounds of Ngai Tahu. Not only did the tribunal hear a vast amount of evidence from the tangata whenua but the parties presented an impressive array of professionals in fields of archaeology, history, zoology, biology, geography and languages. Visits were made to four museums where explanations and demonstrations were given of hunting and fishing implements including all kinds of gathering utensils. An unbroken 10 day period was spent exclusively on mahinga kai inspection and evidence. The evidence given by kaumatua demonstrated how by oral means traditional skills of gathering, preparing, storing and conserving mahinga kai had been handed down through generations to the present. We were frequently reminded of the spiritual aspect attached to the food gathering and distribution processes. Sensitive, personal evidence relating to the sites of certain food and medicinal herbs was given and the tribunal was told of the special place names given to particular types of mahinga kai. It was interesting to note the diverse resources of each region and in particular the special foods of some areas, such as the albatross of Otakou, which was once keenly sought for its meat and bone. Witnesses described the various fruits obtained from a number of native trees and how leaves from certain trees and plants were used to prepare medicines. Evidence given by Gordon McLaren, of Ngati Mamoe and Ngai Tahu, is typical of the evidence presented. It speaks both of the past and the present:

The whole of the land from Waitaha to Piopiotahi was clothed in Tane's forest, and few spots would have gone untrodden by our early hunting parties. Unlike other areas of Aotearoa, birds and fish were prolific everywhere. From the forests came the manu-kiwi, kaka, tui, kereru, kakapo, makomako and a host of others; and the hua rakau from the karaka, kotukutuku, miro, matai, rimu, kahikatea, koromiko, hinau, totara, ti, pikopiko, katoke, kurau, mamaku and others.

Other products gathered were kareao for hinaki, toetoe for tukutuku, pingao, harakeke, kie kie, raupo, kuta for weaving. With manu there was little waste-the flesh was eaten, feathers were used for decoration and the bones were fashioned into fish hooks and spear heads.

Some had dual uses, such as harakeke which also had a medicinal value and an edible nectar, and others were universal in their use, such as the ti-the dried leaves were ideal for paraerae, the fruit was eaten and the roots, when cooked in umu, were a principal source of sugar.

Then there was the puha and watercress-both still taken frequently-the aruhe.

The swamps, lakes and rivers writhed with fish life, especially tuna-once a staple diet-and yielded other food sources such as weka, pukeko and whio ... Tuna formed a big part of the diet of our tupuna, and hinaki were set all around the Makawhio-Maitahi area up until recent years. They are still taken, but no longer in great numbers.(H8:30-31)

Another witness Iris Climo explained her early life at Makawhio where there was no road access and supplies came by sea every three months. She said:

We learned how to gather our materials, practising Conservation (although we did not call it that at the time) in taking only as much as we required and returning our scrapes to the Source. The Moon was our calendar and we gathered food accordingly especially Kai Moana. We all knew how to kohikohi the birds and cook them in a variety of methods. We learnt how to cook in flax and hot ashes. Medicines using natural resources were also common. We lived as a Whanau looking after each other, taking only as much as we needed and bartering when necessary Drying and smoking fish for out of season especially Inanga, gathering seagull eggs was also a Whanau event. Hand trawling involved the whole population. In fact fishing was a major occupation.

Living was almost communal, in that so much of what we did and learned were as a group rather than individual.

Everyone participated at Hui, held in the hall and I can remember being put on the mattresses to sleep.

My mother made flax cups to drink from, when we were near streams. (H8:39)

This kind of evidence emerged as a pattern illustrating and explaining how the people continued to rely on their traditional skills and resources after 1840 and into this century.

Titi and the Titi Islands

Ngai Tahu's relationship with the Titi Islands is undoubtedly very important. The beneficial islands scattered off Rakiura (Stewart Island) and which provide the much prized titi (mutton bird), are beneficially owned by Maori and are collectively administered by those who have rights through whakapapa or genealogy. The individual rights of succession cannot be alienated by will or by gift or sale. The beneficial owners have unrestricted right of entry and they have regulatory protection from trespass or interference with their rights. Mutton birding has always been an integral part of Ngai Tahu society-an ancient tradition and mahinga kai right that is greatly valued and carefully guarded. The claimant told the tribunal that the relationship, management and administration of the islands, is perhaps the nearest living example of Ngai Tahu rangatiratanga over a natural resource. Decisions as to allocation of catching areas, protection and rules governing the environment are determined by those entitled through whakapapa to do so. The tribunal referred in some detail to the Titi Islands in the sections of the report dealing with Rakiura as well as mahinga kai. These sections set out details of the conservation measures and management procedures governing the islands. A committee of management is elected annually by the beneficial owners. The tribunal commented that the present arrangement whereby the Crown's role was to protect the resource in full consultation with the beneficial owners, reflected the principle of partnership under the Treaty. The tribunal further commented that the existence of this working relationship between Crown and Ngai Tahu on the Titi Islands illustrated how unfortunate it was that other mahinga kai such as tuna and kai moana could not have been safeguarded in a similar way.

The tribunal also looked at the ownership and the administration of the Crown islands. These islands are more widely distributed than the beneficial islands reserved for Rakiura Maori but they also contain titi and Rakiura Maori must first obtain permits before entering these islands.

The tribunal recommended that beneficial ownership of the Crown islands be vested in Ngai Tahu and that they be protected by regulation in similar way to the beneficial islands. The present joint management of the Titi Islands by Ngai Tahu and the Crown has resulted not only in the protection of the food resource but also in safeguarding a number of other endangered birds, plants, animals and insects which exist in these islands and which were described to the tribunal by Mr Ronald Tindal, district conservator for Rakiura as "the last arks of many endangered species".

Waihora (Lake Ellesmere)

Waihora was once known by its more ancient name of Te Kete Ika o Rakaihautu, or at the Wairewa end as Te Kete Ika o Tukekawa. It is now more commonly referred to by Pakeha as Lake Ellesmere. Ngai Tahu know it as Waihora.

The lake itself was one of Ngai Tahu's most precious mahinga kai, renowned for the quantity and variety of its fish, bird and other resources. The rights to these resources were shared by various hapu adjoining its shores but Ngai Tahu from more distant regions could also call on its resources through a complex network of tribal whakapapa. The lake was much larger in the mid-nineteenth century. Drainage, reclamation and opening the lake to the sea have lowered the water level and swampy wetlands have been turned into pasture.

Details were given of the lake's past treasury of food resources and of its gradual deterioration from a much deeper, clearer lake with a shingly bottom to its now highly eutrophic and deteriorated state. The principal species of fish were tuna, patiki, piharau, aua, and inaka. It was also used for birding during the moulting season. Raupo, wiwi and harakeke grew in abundance in the swamps. Although in recent years licences have been granted for commercial eel fishing we were told that fish were depleted by over-fishing. We shall be looking at the commercial fishing of this lake in the later report on fisheries.

Waihora was part of the area sold under the Kemp purchase. Despite the importance of the lake to Ngai Tahu as a food resource, despite the reservation of mahinga kai from the sale, despite acknowledgment by the Maori Land Court in 1868 that the tribe had always regarded this place as a valuable fishery and as the tribe's most highly prized and valuable of all their possessions, despite strong protests by Ngai Tahu over the years, no reserves of any kind were ever created over the lake to protect its use for Ngai Tahu.

The tribunal, in looking at the evidence, concluded that Ngai Tahu were the losers in a conflict between two economic systems with different priorities over natural resources. On the one hand Ngai Tahu relied on their traditional economy and expected that their rights to mahinga kai would be reserved to them. On the other hand the Crown saw that the Ngai Tahu economy must not prevent the needs and demands of land settlement. The agricultural and pastoral demands won the conflict. As a result Ngai Tahu interests in Waihora have been completely disregarded.

The tribunal found that the Crown acted in breach of the Treaty by failing to comply with the terms of the Kemp purchase which reserved to Ngai Tahu their mahinga kai (8.9.18-21). The Crown failed to protect Ngai Tahu in the retention of this treasured fishery. The tribunal has recommended the return of Waihora to Ngai Tahu ownership with full access to Kaitorete Spit. In considering the return of the lake the tribunal suggested there needs to be negotiation between the claimants and the Crown as to the exact area to be returned (17.2.23). Because of concerns about the present deteriorated condition of the lake,the tribunal also expressed the view that the Crown must take an active role in the provision of financial, technical, scientific and management resources to save Waihora (17.2.24). The lake may become a worthless mahinga kai resource without substantial financial and other input. The tribunal therefore suggested two options which Ngai Tahu may wish to consider. These involve first: that the Crown grant the full estate in fee simple to Ngai Tahu and at the same time enter into a joint management scheme with Ngai Tahu binding the Crown to provide resources to improve the lake or second: that the Crown grant beneficial ownership to Ngai Tahu and remain on the title as trustee. The Crown then in consultation with the beneficial owners, would make regulations to protect the lake's quality and its use.

The tribunal expressed the view that either alternative would reflect the partnership principle of the Treaty in manner similar to the Titi Islands regime. The tribunal expressed the hope that Ngai Tahu would, in any joint management exercise with the Crown, have regard to the inclusion of public facilities.

Kaitorete Spit

This is an isthmus of approximately 12,000 acres which separates Waihora from the sea and provides seaward access to the lake. It has significant historical and archaeological importance. It is of national importance also because it contains the largest pingao plantation in the country. Pingao is used for weaving kete, whariki and tuku panels. Because of the obvious importance of this land the tribunal has asked that the question of creating special reserves on it be brought to the notice of the Minister of Conservation. In a later section of the report the tribunal offers some alternatives for discussion between the tribe and Crown which may lead to the setting aside of special reserves under existing legislation.

Wairewa (Lake Forsyth)

This lake is another important eel fishing resource of Ngati Irakehu. It is a coastal lake where access to the sea is blocked by a shingle bank. The lake is opened to the sea by digging a channel through this bank. During the autumn the eels congregate in the southern and outlet area. The tribunal visited the lake and inspected the eel trenches or wakawaka. Each of the wakawaka belongs to a particular hapu. Trevor Howse recounted his whakapapa which gave him rights to the wakawaka and produced a confidential map of the drains explaining the allocation. Dr Peter Todd, a fisheries scientist and a Crown witness, presented helpful evidence on the eel population and traditions still adhered to in the catching of the tuna. Both Dr Todd and Ronald Little spelt out the environmental problems facing Wairewa. The water is highly eutrophic and at certain times has toxic algae blooms that make it dangerous to swim in or for stock to drink. Mr Little outlined the similar deterioration that had occurred to Lake Tutira, just north of Napier, and the management plan successfully designed to arrest degradation in that lake. It required interception and diversion of nutrient-rich incoming waters, isolation of livestock, provision of vegetation buffers around the lake to soak up run-off and forest planting on all slopes leading directly to the lake. Similar action is needed for Wairewa.

Mr Little said that exclusive Maori eeling rights were granted over the lake following submissions by the late Joe Karetai in 1961. The tribunal was also informed that commercial fishing of the tributaries had stopped as a result of the decline in eel population.

The claimants' principal requests concerning Wairewa were:

- a fishing reserve adjacent to the eel drains;

- restriction of commercial eeling;

- consultation and representation on water management bodies;

- access to the lake bed where the eel trenches are located; and

- access to the shingle bank dividing the lake from the sea.

The tribunal deals with the need for consultation and representation on decision-making bodies such as regional water boards in chapter 17. The tribunal found that the failure of the Crown to set aside eeling reserves at the southern end of the lake where the eeling trenches were located was in breach of the Crown's duty to protect Ngai Tahu rangatiratanga under the Treaty. Although Maori have an exclusive eel fishing right on the lake, the tribunal considered this right should have been granted to Ngai Tahu. The tribunal therefore recommended that this error be rectified by amending the regulations so as to limit the use to Ngai Tahu. The tribunal also recommended that all commercial eel fishing be prohibited in the waters leading into the lake and the regulations reserving Ngai Tahu rights be amended so as to include those streams.

The tribunal concluded its report on Wairewa by urging that Ngai Tahu should be involved in the investigation and decision-making processes in respect of the water quality of this lake and considered that the Crown through it agencies should provide the resources to save this lake in the same way as recommended for Waihora.

Conservation

During the hearing of mahinga kai evidence the tribunal heard evidence about rules handed down orally over succeeding generations to conserve food resources. These measures were designed, not only to limit the taking and gathering of food, but also to create and develop the resource.

James Russell, one of a number of people who emphasised how the philosophy of conservation was ingrained from these handed-down rules said:

In a historically hand to mouth society, it is difficult to consider anything other than a conservation ethic. Wilful pollution or destruction of a waterway or a food resource would probably have an immediate and significantly detrimental effect on the community as a whole. Consequently, an elaborate set of rules, restrictions and guidelines were enforced, often by means of quasi-religious concepts such as "tapu", "rahui", "utu", and "muru" to ensure that such resources were indeed maintained as appropriate for community needs, resource management, or "rakatirataka" or "kaitiakitaka". (H8:51)

There is no doubt that Ngai Tahu adhered to strict rules of conduct in which tapu and rahui played an important role. The tribunal was impressed with the restraint shown by almost all of the witnesses as they spoke of their tupuna and of the trust reposed in them to cherish their taonga and to hand them on in good condition.

During the hearing evidence was given that measured the changes in our environment from as far back as 800 AD showing the gradual loss of our forests and the extinction of 40 bird species. The greatest loss had occurred over the past 150 years. The tribunal considered there were ominous signs we had not yet learned from history.

Impact of settlement

Under this heading the tribunal looked at the effect of land settlement of Te Wai Pounamu following the land purchases by the Crown. The tribunal looked in some detail at a number of areas such as deforestation, clearing and drainage of land, water use, the relationship between Maori and settler on acclimatisation matters, lack of access to food resources and pollution.

As the evidence unfolded it became clear that the grievances of Ngai Tahu over the loss of their food resources were closely interwoven with, and a consequence of, the development of New Zealand after the arrival of the settlers. Several witnesses described how the loss of traditional food resources and lack of land had contributed to loss of culture.

For some time after settlement began and before pastoral farming got underway, Ngai Tahu continued with their pattern of tribal foraging. Gradually however, land was cleared and livestock introduced. Maori began to understand better the European concepts of property and ownership, as fences and gates were erected and trespass signs appeared. As the forest was cleared for grazing, the consequent run-off of water caused land erosion. The need to cope with resultant flooding led to the introduction of river control techniques with further resultant loss of wetlands, lagoons and waterways which previously provided fish and bird habitats. As the forest disappeared, and the report shows how this took place, so too did mahinga kai. A Crown witness answered a question he had posed himself as to why these things were allowed to happen by saying:

Perhaps the easy answer is that in any developing country with a struggling economy and a rapidly increasing population, an environmental conscience is a bit of a luxury. (P15a:4)

As development proceeded many of the new settlers denied access to Ngai Tahu. A kaumatua giving evidence to the 1891 commission said:

All former sources of food-supply were cut off. If they went fishing they were threatened to be put in jail, and if they went catching birds they were turned off. (H6:32)

Another said:

Some of us were nearly put in gaol for catching wekas on some of the runs.... All our old mahinga kai are destroyed, and we are left without the means of obtaining the food we used formerly to depend on. (H6:32)

Several witnesses also referred to the restrictive laws and regulations passed by Parliament and spoke of being continually fined for catching salmon. There was direct conflict between Maori and settlers over the use of the rivers as the settlers introduced trout, perch, and salmon, accompanied by new acclimatisation and wildlife regulations.

The development of hydro dams has also resulted in flow diminution in rivers, as has the draw-off of water for domestic, industrial and irrigation use. The tribunal visited the central lakes and inspected the hydro schemes.

Electricorp made submissions explaining how the corporation was committed to strict observance of environmental principles and the provision of clean pure water after use for power generation. The corporation gave evidence of its interest in creating fishery and recreational facilities for the public and also gave firm assurances of its desire to have a better consultation process with Ngai Tahu.

It was in the area of pollution that Ngai Tahu grievances were strongly and widely expressed. Witness after witness recounted the sad effect of pollution on mahinga kai. Sewerage disposal, wool scour effluent, dairy factory discharge, aerial spraying and topdressing, farm waste, wastage from forest mills, gold mining rubbish dumps and all kinds of other industrial wastes have all had their effect. Here is what one witness said:

... I look at these areas which I have mentioned here in the lakes, the mountains, the rivers, wetland areas, the forests, the estuaries and the sea, with saddened heart and misty eyes, at the rape, pillage and destruction of the national assets of this beautiful land of ours.

Our rivers, lakes and wetlands or what is left of them, most of our wetlands have been drained, nearly all of our rivers have been interfered with, or would meddled with be a better phrase to use at this time. I see raw sewerage, dead livestock, and other obnoxious materials, pouring down our waterways out to the open sea, little wonder that these areas of mahi kai are no longer fit for human consumption.

Our forests, practically nonexistent, and our native timbers, that is the chips, piled up in mountains along the quay sides of our ports awaiting export to foreign parts. I wonder at the mentality of all this carnage.

Is this the heritage that we of this generation are going to bequeath to our future descendants? Who is responsible?

I ask, where is the legislation that should be protecting these environments, and how good is it? (H13:29)

The Crown contended that pollution was of modern occurrence and was a problem facing the whole population. We were told that programmes were being put in place to cope with pollution.

The tribunal did not agree that pollution is of recent origin as there was evidence of pollution from goldmining and sawmilling back in the early settlements. The tribunal agreed there is currently much more active interest in anti-pollution measures and maintenance of water quality. However, there is irrefutable evidence of the damage caused to mahinga kai resources by pollution. Furthermore, there was no doubt in the minds of tribunal members that pollution and all the other consequences of land settlement have impacted severely on Ngai Tahu's traditional food resources.

Ngai Tahu's grievances and the Crown's response

The claimants' grievances were wide ranging. Mr Temm, counsel for the claimants, argued that Governor Grey was fully aware that the tribe hunted and gathered over a vast area and depended on mahinga kai for their survival. Counsel said that Grey, Eyre and Mantell applied a deliberate policy of leaving as little land as they could so that Ngai Tahu would be encouraged to work for the settlers. He emphasised that mahinga kai were essential, especially fresh water and sea fisheries, and Waihora and Wairewa were also significant areas that had become polluted and over-exploited. He said Ngai Tahu had never been consulted by central or local government and that decisions of those bodies lacked a Maori dimension.

Crown counsel, Shonagh Kenderdine, noted that the only deed in which any reservation of mahinga kai was made was Kemp's. Mrs Kenderdine advanced the following submissions:

- the Crown had no duty to protect mahinga kai because Ngai Tahu had varying definitions of mahinga kai;

- Ngai Tahu were increasingly affected by settlement and their complaints led to the creation of fishery easements in 1868 which fulfilled the Crown's duty under the Treaty;

- that mahinga kai as referred to in the Kemp deed meant "cultivations" and therefore the Crown's duty to reserve and protect related only to "cultivations";

- the claimants had not given full weight to the words "so long as it is their wish and desire to retain the same in their possession" in article 2 of the Treaty;

- Ngai Tahu habits changed after settlement. They had adopted some European foodstuffs and had abandoned or were abandoning mahinga kai;

- the Crown's obligation to preserve and protect applied only to those resources which Ngai Tahu used in years preceding purchase and which they wished to continue using; and

- the claimants had wrongfully sought to protect resources now discarded. This approach denied the dynamics of history and human intervention. Ngai Tahu had moved into European resources and technologies.

The thrust of the Crown's argument, apart from its reliance on the limited meaning of mahinga kai, was that Ngai Tahu had abandoned their traditional resources and had moved voluntarily into a changing society and economy with its new food resources.

Crown counsel put to the tribunal that there was no ongoing responsibility or need on the Crown's part to protect old food resources and thus no Treaty breach. Counsel did agree however that in Kemp and other purchases Ngai Tahu did not receive sufficient reserves to provide an adequate resource base.

The Crown submitted that those negotiating for the Crown would have restricted the size of the reserves for three reasons:

- the small population size of the tribe;

- the belief that Ngai Tahu would soon be extinct; and

- the belief that Ngai Tahu wished to be, and should be, assimilated.

Counsel said these factors did not excuse the granting of inadequate reserves but they helped to explain it.

The tribunal's conclusions

Omission of mahinga kai from deeds of purchase

The tribunal rejected the argument that in signing the various deeds of purchase Ngai Tahu were surrendering all future access to their traditional food resources. Lord Normanby issued a clear injunction that the Crown was not to purchase any lands that would be essential or highly conducive to Maori people's comfort, safety or subsistence. Crown officials were aware that Ngai Tahu needed access to these food resources and there was an obligation on them to make adequate provision for Ngai Tahu needs. The tribunal did not accept Ngai Tahu would have entered into the purchase agreements with the understanding they were thereby surrendering their food resources which they needed for subsistence and trade.

Abandonment of resources

The Crown argument was founded on the notion that Ngai Tahu, at the time of signing the deeds, could foresee the future and were prepared to relinquish all but their most important mahinga kai in anticipation of other benefits to come from European settlement. The tribunal found the evidence showed clearly that Ngai Tahu had no such perception or desire. They did not abandon their resources. They were shut out from them by land settlement.

Loss of rangatiratanga

In the report the tribunal found that the Crown had a duty under article 2 to ensure Ngai Tahu were left sufficient land for their present and future needs. It was incumbent on the Crown to set aside specific reserves to protect mahinga kai. It was not only necessary for the Crown to protect the principal food resource areas, it was also the duty of the Crown to provide the tribe with extensive land so that Ngai Tahu could adapt to the new pastoral and agricultural economy.

Governor Grey and his negotiators acted contrary to the policy laid down so clearly by Lord Normanby and expressed in article 2 of the Treaty. The lack of an adequate land base left Ngai Tahu a disintegrated tribe without power, without an effective voice, and unable to participate in the political economy of the nation. Ngai Tahu were victims of settlement because it appears it was not intended by the Crown's agents that they should ever have a stake in it.

The tribunal therefore found that the Crown has failed primarily in its duty to set aside a sufficient endowment for Ngai Tahu in the form of land so as to allow not only reasonable access to mahinga kai but also an economic base to meet the new and changing economy. This was a breach of article 2 of the Treaty and Ngai Tahu were detrimentally affected by that breach.

Argument on definition of mahinga kai

The tribunal rejected the Crown's argument that the meaning of mahinga kai was limited to "cultivations". The tribunal concluded that the term had the broader meaning of "places where food was produced or procured" (8.9.12). The Crown argued that if the tribunal accepted the wider definition of mahinga kai, Ngai Tahu had voluntarily abandoned their traditional resources. As already stated, this argument was also rejected by the tribunal as the evidence showed that Ngai Tahu had not chosen to relinquish their food resources. They were effectively excluded from them.

Protection of resources and resource management

Grievance nos 1, 3, 4 and 5 relate mainly to the Crown's failure to protect mahinga kai during the development of the economy after settlement. The tribunal analysed what took place as land development proceeded and concluded that Ngai Tahu were disadvantaged and suffered loss to their mahinga kai as a result of this development.

However the allegations made by the claimants were general in nature. The tribunal found that the acts or omissions of which the claimants complained may have been contributed to by a variety of groups such as farmers, foresters, fishers, miners, contractors as well as citizens, local authorities, commercial and industrial firms. The tribunal was not able to conclude that the Crown has been sufficiently responsible for this loss so as to be held liable for a breach of a Treaty principle, and was not prepared to sustain the grievances as a breach of the Treaty. The tribunal did however conclude that the matters covered in grievances nos 1, 3, 4 and 5 when taken together with the clear breach of article 2 in relation to grievance no 2, added more weight to the tribunal's finding that Ngai Tahu mana and rangatiratanga were disregarded by the Crown.

List of findings

In respect of mahinga kai the tribunal found as follows:

(a) (i) that the Crown failed to make specific reserves to preserve and protect Ngai Tahu's mahinga kai; and

(ii) that the Crown failed to provide sufficient reserves to allow Ngai Tahu to participate in the developing economy.

As a result Ngai Tahu were deprived of their rangatiratanga guaranteed to them by article 2 of the Treaty.

(b) that the findings in respect of grievance no 2, as given in 8.9.18-21, in relation to the Kemp purchase were confirmed.

(c) that the Crown failed to preserve Ngai Tahu rights to the food resources of Waihora, as required by the terms of the Kemp purchase, and thereby acted in breach of article 2, and the Treaty principle of good faith.

(d) that the Crown failed, as required under article 2, to set aside specific reserves so as to protect Ngai Tahu's right of access to their eel resources at Wairewa.

(e) that the Crown failed to protect Ngai Tahu rangatiratanga under article 2 in that it granted eeling rights at Wairewa to Maori instead of to Ngai Tahu.

(f) that grievances nos 1, and 3-5 (inclusive) as set out in this summary are not sustainable as breaches of the Treaty for reasons given in the main report on mahinga kai in 17.5.5.

List of tribunal recommendations

The tribunal made the following recommendations pursuant to section 6(3) of the Act.

Waihora (Lake Ellesmere)

At the option of the claimants:

EITHER

That the Crown vest Waihora for an estate in fee simple in Ngai Tahu and contemporaneously enter into a joint management scheme with Ngai Tahu which would include such matters as:

(a) opening the lake to improve the fishery; and

(b) improving water quality by controlling bird population and use of land margins around the lake, control of lake usage and control of sewage disposal. The joint management scheme binding the Crown to provide financial, technical, scientific and management resources.

OR

That the Crown, in manner similar to the Titi Islands, vest beneficial ownership of Waihora in Ngai Tahu but remain on the title as trustee. The Crown then, in consultation with the beneficial owners, to make regulations for the future control and management of the lake in manner similar to the Titi Islands regulations.

Wairewa (Lake Forsyth)

(a) That the existing fisheries regulations giving Maori exclusive eel fishing rights over Lake Wairewa be amended to substitute "Ngai Tahu" for "Maori" so as to return the rights to the tribe.

(b) That the same regulations be amended to give Ngai Tahu exclusive rights to fish waters leading into the lake and to cancel any other existing licences.

(c) That an area of land be reserved around the eel trenches at the southern outlet which will secure Ngai Tahu rights of access.

(d) That Ngai Tahu in consultation with the Crown and its agencies enter into a joint management scheme to improve the quality of Wairewa with the Crown providing the resources to do this work.

Other recommendations

- That beneficial ownership of the Crown Titi Islands be vested in such persons or bodies as may be nominated by Ngai Tahu and be subject to similar management regime as the beneficial Titi Islands.

- That the question of reserving the pingao plantation for Ngai Tahu on Kaitorete Spit be brought to the notice of the Minister of Conservation for consideration and action.

A Maori perspective in environmental matters

In chapter 17 the tribunal has given its views on four areas of action to improve Maori involvement in environmental matters. They are:

(a) amendment to statutes to ensure that Maori values are made part of the criteria of assessment before the tribunal or authority involved;

(b) proper and effective consultation with Maori before action is taken by legislation or decision by any tribunal or authority;

(c) representation of Maori on territorial authorities and national bodies; and

(d) representation of Maori before tribunals and authorities making planning and environment changes.

The tribunal emphasised that the most significant area for change is in the field of consultation. In Maori terms consultation advances the well-being of the tribe and the tribunal commented that leaders in local and central government need to recognise that Maori expect to discuss proposals that affect them in their traditional way in a Maori context. The tribunal emphasised the importance of oral examination of issues in the presence of Maori on a marae.

The tribunal commented on several important matters and suggested that explanation, examination and discussion on tribal marae would be much more likely to lead to informed and acceptable decisions.

Future protection of Ngai Tahu mahinga kai: the doctrine of aboriginal title

In the concluding section of chapter 17, the tribunal looks at the need to protect what little of Ngai Tahu land-based mahinga kai as remains. In a later report the tribunal will address the other important area of sea fisheries. Ngai Tahu still continue to gather traditional foods such as puha and watercress, herbs and other flora such as pingao, kuta and harakeke. Trees from the forest such as totara are needed for carving.

The tribunal considers an article by Dr Paul McHugh on aboriginal servitudes in which it was suggested that amendment should be made to the Land Transfer Act 1952 so as to provide a means of protecting customary mahinga kai rights by registration of an interest following an investigation by the Maori Land Court The tribunal made no recommendation to this effect but expressed interest in a matter which may be subject to later inquiry in the ordinary courts. The tribunal suggested that several existing statutes provide mechanisms for reserving rights and may well be worth investigation by iwi as a means of protecting reserves such as pingao.

The tribunal concluded its report on mahinga kai by expressing the hope that Crown agencies would meet with Ngai Tahu and evolve procedures not only in joint management but also in creating reserves.