Hawke’s Bay iwi Ngāti Pāhauwera’s application for customary rights and marine title, covering a 22-kilometre stretch of the Wairoa coast, is awaiting a decision after a seven-week High Court hearing in Napier which ended last week.
Under the Marine and Coastal (Takutai Moana) Act 2011 — which repealed and replaced the highly contentious Foreshore and Seabed Act — the iwi must demonstrate that they have exclusively used and occupied this section of foreshore and seabed since 1840. That’s a heavy burden of proof, as Connie Buchanan writes.
Few people lived nearer Arcadia than we of Te Wairoa . . . on the bank of a magnificent river which supplied us plentifully with fish, while its lagoon and tributaries contributed wild ducks innumerable, and the forest fringing its banks pigeons and Maori game without end; surrounded by, and not on too intimate terms with our Maori landlords and their hapus, who raised wheat and other produce in large quantities, and were then an industrious happy community . . . we lived very peacefully and happily together . . . Maori and pakeha.”
When my great-great-great-grandfather Dr Matthew Scott wrote these words in 1890, he was describing a paradise already nearly gone. The thousand-year Māori history of dominion over Wairoa’s rivers, forest, and ocean was being dismantled by war and land loss, and the centre of power was shifting to colonisers and pastoral farmers.
Since then, the Crown has, through legislation, assumed regulatory control over the area’s resources and environment.
Today, when it rains hard in Wairoa, the rivers turn murky yellow with topsoil. International visitors make case studies of the erosion. The foreshore that lies between the great crumbling cliffs and the foaming sea is a beautiful dark velvet grey. It is often covered in the wooden vomit of forestry slash, even now, years after everyone said something must be done.
Protest signs along the coastal highway say “You Can’t Eat Trees”. Many people who live in Waihua, Mōhaka, Raupunga, Pūtōrino and Tangoio struggle with the price of food. Seven dollars for a kilo of kūmara. Thirty-nine dollars for snapper at the nearest New World.
The Māori landlords referred to by Dr Scott — Ngāti Pāhauwera — have fought hard to have their rights reinstated. They want the same Crown that flayed open their land and sea to exotic state forestry, intensive farming, and commercial fishing to return to them the ability to protect it, and in turn be protected.
“Mana is my name,” Mana Keefe told the court. “I understand fully what my name means. It doesn’t mean power. It means responsibility.”
Her (and others’) evidence given to the High Court in Napier this year put flesh and blood onto the old bleached bones of Dr Scott’s words.
“The Mōhaka River is a vein in our bodies. It is a part of us.”
“We had 14 kids in our family and we always had plenty to eat. We hunted pigeons and pigs and we fished. We went to the river mouth for kahawai.”
“Kahawai was the main catch. And snapper. You could go out and get 30 or 40 snapper.”
“We have lived this life and we have learned it from our ancestors.”
“We are scrambling to try and replace resources with . . . nothing really. With nothing.”
The Mōhaka River runs between a series of high terraces that formed during the late Pleistocene. It is incised all the way to the coast, emerging between cliffs onto a wild and steep coastline. The river mouth is rich with gravel that cleanses the water and sweetens the kahawai that spawn where river mixes with ocean. A Ngāti Pāhauwera whakataukī recalls how the waters there would teem:
He mano ngā whetu ki te rangi, he mano ngā kahawai ki te moana.
A thousand stars in the sky, a thousand kahawai in the sea.
Ngāti Pāhauwera wants to secure in law its ability to protect and manage this fragment of its former landholdings, a 22-kilometre long section of the Wairoa coast which includes the mouth of the Mohaka River and runs 25 kilometres out to sea.
They are applying for customary rights and marine title under Takutai Moana. It’s the law which, in name, repealed and replaced the inflammatory Foreshore and Seabed Act, but which, in substance, places the same heavy burden of proof on Māori. The iwi must demonstrate that they have exclusively used and occupied this section of seabed and foreshore since 1840.
Giving the new law a Māori name was audacious, for it is built on a fundamental mistrust of Māori. Prove yourselves, it demands. Prove that you are who you claim to be. Prove that you have lived this life that you learned from your ancestors.
The section of coastline in question is remote and rugged. Almost no one, apart from the commercial fishing trawlers, ever goes there. This is reflected in the general lack of interest in the Ngāti Pāhauwera application. There has been little coverage of the case. The evidence was not challenged by cross-examiners — the Council and Crown evidence was largely technical.
Nothing in any of the detail showed that the iwi wanted to prevent any general member of the public accessing or navigating or camping or fishing within the common marine area.
Yet iterations of this legal action have ground on now for over 20 years, the system never quite satisfied, forever demanding more evidence of the scale, extent and frequency of Ngāti Pāhauwera’s activities.
Each day of the High Court hearing in Napier began and finished with karakia and waiata. Witnesses spoke in te reo Māori if they preferred, which was then translated for the judge, who thanked each one with words that were foreign to his tongue: “Tēnā koe e te whaea. Ngā mihi.”
The space for tikanga, the use of the reo by the judge, all of this was respectful enough. But it was decorative. Ceremonial. The business of the court was not kaupapa Māori. The iwi was there as a supplicant. There was a police officer on the door. The judge was elevated above.
Why should we have to come here and beg? a people with a thousand-year history might reasonably be expected to ask.
Why shouldn’t it be you, sitting in our house of law, proving to us that you had a right to take away what was ours?
Ngāti Pāhauwera has an obligation to the land and water. They are worried about the erosion, the trawlers, the ability of people to feed themselves. It was under this sense of obligation that they prepared their case — the evidence of 45 witnesses and legal argument to sustain seven weeks in court.
Many of the iwi witnesses attended on behalf of someone else. They were all asked a version of the same question.
“Whose evidence are you reading?”
“Why is the witness not here today?”
“Why were they not able to come?”
They all gave a version of the same answer.
“I mate ia.”
“I mate ia.”
“Kua hemo kē.”
“He is dead.”
“She is dead.”
“Already passed away.”
The original witnesses had died while they waited. Now younger people sat in the old peoples’ seats, speaking for the dead. They referred patiently to the vast number of things already collected and submitted to courts over the years.
“It is on Tab 138, Page 1,796.”
“It is on Tab 141, Page 2,612.”
“It is on Tab 164, Page 6,931.”
The descendants’ job was to read small portions of their relative’s words out loud. Mana Keefe proceeded carefully through the prepared statements of her uncle but then ploughed off script at the end in frustration.
“I just read the evidence of my father’s brother. We are still fighting the fight he had 22 years ago when he died! I am 50 years old now! I don’t want my children to be fighting at 50!”
The court paused and waited.
“Ngā mihi mō tō kōrero me te kōrero o tō koroua,” said the judge.
The witness stepped down to make way for the next.
“Whose evidence are you reading, and why are they not here to read it themselves?”
“Ani Keefe is my mother. She is currently ill. She had a stroke maybe six months ago.”
Taken in total, the thousands of pages of evidence describe the indivisible spiritual and physical layers that embed Ngāti Pāhauwera into the geography of Wairoa. The iwi’s most critical statement is that the seabed and foreshore, and all the life within and on these, is an inalienable part of who they are — veins in their bodies — but they are aware that this position has caused confusion for courts in the past.
So the witnesses were guided to pick out tiny, hard bits of proof that might satisfy the law’s appetite for discrete, material things. It had the effect, sometimes, of crushing a sophisticated and intricate worldview down into rubble.
“I have collected hāngi stones. Blue ones and red ones.”
“I have also collected firewood, and I still do.”
“We also used driftwood as palings for fences because of whānau not being capable of buying the actual wood for fences.”
“I have whitebaited by scoop net and set net, but I only caught enough for a feed.”
“I have also used a rod to catch snapper, kahawai, shark.”
“I keep the eels hanging for a day and I smoke them using the hot and cold smoking method.”
The need for this approach frustrated some of the witnesses. Olga Rameka, speaking for herself as a living witness, delivered a statement polished by concealed anger.
“I have never thought about Ngāti Pāhauwera exercising tino rangatiratanga over the seabed and foreshore. No one ever talked about our relationship with it. It never occured to us to talk in terms of mana whenua, kaitiakitanga, mana moana. It was just obvious. I have always just known it is ours. We never anticipated anyone would take it away. Only more recently have we actually had to say these things.”
Other evidence, from those long since dead, gave a glimpse of how difficult it has been to try and build an unbroken road of material proof out of a way of life that cracked apart once the forests were cleared and the speculators and sheep farmers came and the land was gone.
“Ētahi wā, ka haere au ki te hī ika, engari te nuinga o te wā ka mahi au i te pāmu.” (Sometimes I would go fishing but most of the time I was working on the farm.)
“Kāore ngā kōrero e pā ana ki te awa i rongo au i tērā wā. I mahi au i ngā wā katoa.” (I didn’t hear many stories about the river at that time. I was working all the time.)
All of the things that were altered, suppressed, taken, or systematically worked out of a people by law: ritual, language, customs, knowledge. Now the law has asked for them back again, as evidence. It was painful for witnesses to explain why the required proof wasn’t always easily to hand.
“My grandfather was taught the whakapapa which he would recite on the marae ātea when he stood. Unfortunately, none of his children could speak Māori. So when my grandfather died in 1960 at the age of 59 years, my father was too young to remember how his recital went.”
It’s as if, through legislation, the Crown decided it wanted to watch Whale Rider — evidence rendered in clear cinematic scenes, emotive moments, and vivid colour. But the witnesses had sworn on a Bible to speak the truth, and so they did, and the truth was murky and silted up and indistinct.
“When I was young my uncle took my sister and I travelling and he showed us a site called Te Whēnui. We saw the place from a distance, so I have no idea if it has a toka called Paikea as he had told, but I had no reason to doubt him.”
Paikea, in Ngāti Pāhauwera tradition, travelled from Hawaiki on the back of a whale. Today Paikea resides at the mouth of the Mōhaka river as a protective taniwha.
The story is a luminous thread in the finely woven net of the iwi’s oral history that captures both physical and spiritual realms to describe in allegorical, and therefore highly memorable, terms the iwi’s lineage back to the waka Tākitumu, captained by Tamatea Ariki Nui, back again to the ancestral islands of Hawaiki, back again to Tangaroa who holds dominion over all oceans, back again to Papatūānuku the earth mother herself, and finally to describe a philosophical view of Te Kore, the world beyond the realms of what humans can see and understand.
A law written in 2011 for political ends is irrelevant within that context. Still, for seven weeks in a city courtroom under electric lights, the descendants of Paikea tried to stay within its narrow parameters. They pulled apart the tightly twisted strands of their history to separate out the things that the court might understand and might accept. Most of all, they tried to describe what it felt like when one of the veins in your body was a river.
“It was our life-sustaining force. It fed us. It cleansed us.”
“We have always had mana over the river and it has always had mana over us.”
They did all of this, even though they’ve done it many times before, because they know that, like an artery, the river cannot be taken from them.
E kore he wai, ka mate.
Without it, we will perish.
More than 45 witnesses from Ngāti Pāhauwera presented evidence last month, during a seven-week High Court hearing in Napier to consider the iwi’s application for customary rights and marine title. The hearing ended last week and the iwi is now awaiting a decision.
Connie Buchanan has Scottish-Irish as well as Ngāti Pāhauwera whakapapa connections through her great-great-great-grandmother Mere Hokena, who was married to Dr Matthew Scott, quoted in this piece. She was born and grew up in Hamilton and has lived in Wellington, Auckland, London, and the Cayman Islands. She has a degree in broadcast journalism from Christchurch Polytech Institute of Technology, a master’s degree in International Relations from Victoria University, and is a graduate of Te Tohu Paetahi at Waikato University. Connie works as a communications consultant and lives in Hamilton with her husband and two boys.
Thank you for reading E-Tangata. If you like our focus on Māori and Pasifika stories, interviews, and commentary, we need your help. Our content takes skill, long hours and hard work. But we're a small team and not-for-profit, so we need the support of our readers to keep going.
If you support our kaupapa and want to see us continue, please consider making a one-off donation or contributing $5 or $10 a month.