Where the Mōhaka River meets the sea, on the east coast of the North Island. (Photo: Connie Buchanan)

For more than 30 years, Ngāti Pāhauwera has fought to have its relationship with the Mōhaka River recognised in law. Here’s Connie Buchanan looking at a long and painful struggle.

 

The road into the Mōhaka valley was sealed for the first time in 1996, when the Waitangi Tribunal came to town.

The black strap of tar was laid from the state highway down past the school and marae to the valley floor. There, between tall, white cliffs, were no shops, no petrol station, not even a corner dairy. There was just the river, emptying into the Pacific Ocean.

The tarseal looped back up to the highway without quite reaching the coastline where fresh water joined salt, even though the river’s mouth was so many things — a social, spiritual and economic base — to the people there.

The first time the Tribunal came, in 1992, there was no time to fix up the road. The members roared down into the valley over rough-as-guts gravel. They were there under urgency, scrambling to respond to an attempt by the Ministry of Works and Development to set a water conservation order over much of the Mōhaka River.

The order was already drafted. But those involved had barely spoken to Ngāti Pāhauwera, the river’s active guardians for more than 500 years.

The Tribunal members met for three days in Rongomaiwahine, the iwi’s distinctive circular red meeting house near the top of the valley.

“The people of this house belong to the river,” they were told. “It is the essential ingredient of life.”

Witness after witness reached for all the words and examples they could think of to explain how the river flowed through their everyday lives.

“Without our rightful relationship to the river, the community could not be sustained at all,” said Tureiti Moxon, then a young mother who’d grown up in Mōhaka as the eldest of 12 children.

“Our mana is derived from the river,” said Charlie King, another of the 33 witnesses that May. “Without that heritage of the river, we are nobody. To us, the river is spiritual in all things. People go and talk to the river.”

The river was the basis of their rights and obligations to each other, they explained. It was their highway. It was their pantry, full of kahawai and eels. It was their medicine cabinet, a place of healing. Where it met the sea, at its wide mouth, it was their storehouse full of sand, gravel, hāngi stones and firewood.

All of these things were indivisible from each other, they said, and came together as a wāhi tapu, a sacred whole. It was their inherited duty to look after it forever.

The panel then rushed to prepare its report, trying to stay ahead of the ministry’s conservation order which, if finalised, would lock in an assumption that the Crown controlled the river.

“The Mōhaka River was a taonga of Ngāti Pāhauwera when the Treaty of Waitangi was signed in 1840 and remains so today,” the Tribunal wrote.

It found the iwi never relinquished tino rangatiratanga over the river. Nor had it ever transferred ownership of the riverbed or waters.

The Tribunal urged the Crown to immediately open discussions with Ngāti Pāhauwera on an agreement for the river’s control and management, saying it was confident the Treaty of Waitangi could be used in a “sensible and realistic way” to balance all the interests in such a beautiful taonga.

The Tribunal regretted that the immense time pressure it had been put under by the ministry’s draft conservation order meant it had had to sever the issue from the iwi’s wider Treaty settlement claims.

The government received the Mōhaka River Report in November 1992.

Four years later, the Waitangi Tribunal came back to Mōhaka, driving over smooth black tarseal this time, to begin its lengthy investigation into the iwi’s land compensation and settlement claims.

At the end of proceedings, the Tribunal members thudded over the valley in a helicopter, the most efficient way to see the rohe and the river’s spectacular, gleaming course through the cliffs.

Its eventual findings outlined serious Treaty breaches by the Crown in respect of both land and water. It urged the government to “hasten to comply” with its earlier river report.

That report was, by then, 14 years old.

“Ngāti Pāhauwera’s efforts in bringing the urgent claim . . . have proven to be in vain,” it wrote.

Today, in Mōhaka, the tarseal still cuts off before it reaches the river. The hard black surface crumbles to pale dust and gravel for the last few kilometres. The iwi’s road to legal recognition also disintegrates before reaching the river.

The land compensation claims were settled in 2012 for $70 million in assets, including $20 million in cash. But the Crown has refused to let go its grip on the river, still assuming the right to decide what happens to it.

It’s now 30 years since Tureiti Moxon first stood in front of the Waitangi Tribunal. She is best known these days as the managing director of Te Kōhao Health in Hamilton.

Her evidence from that hearing in Mōhaka three decades ago is still floating around the system. In August this year, it will land in the Court of Appeal, where her people will ask, yet again, for their relationship with their river to be fully recognised and protected in law.

“We’ve had to fight for every teeny-weeny, little morsel, every crumb that we’ve gotten over the last 30 years,” she says. “But really, nothing has changed. There’s no real partnership. The Crown still has all the power.”

Rongomaiwahine meeting house in the Mōhaka valley. (Photo: Connie Buchanan)

Ask someone in te reo Māori who they are and the question is phrased: “Ko wai koe?” The literal translation is this: “Which water are you?”

The question is not trying to figure out which lake or river or ocean is closest to where you live or grew up, nor where you most love fishing or taking in the view. The reo could easily express those subtleties, if that were the point. It is, without poetry or metaphor, asking which water you are.

“Ko Pāhauwera te awa, ko te awa ko Pāhauwera,” said witness after witness in Rongomaiwahine in 1992.  “Pāhauwera is the river and the river is us.”

The call and response, repeated in localised variations around the country, is a succint and coded summary of how each iwi’s rights, interests and obligations are collective, relational and located within the environment.

For hundreds of years before the arrival of Europeans, Ngāti Pāhauwera used this tikanga to assign and manage a complex and competing network of claims and usage rights to the Mōhaka River among its more than 85 hapū, its neighbouring iwi, and then with settlers as they started to arrive in the 1850s.

My own great-great-great-grandfather, Matthew Scott, a doctor in nearby Wairoa, recalled in his diary how his Māori landlords oversaw a flourishing, well-fed community of both hapū and settlers, where life revolved around the “magnificent river”.

The Pākehā legal system which obliterated the law of tikanga is trying hard these days to incorporate bits of it back again. It does this most obviously by permitting the use of te reo Māori in court. But when the language doesn’t match the system, the court often cannot hear what the reo is actually saying.

“Ko Pāhauwera te awa, ko te awa ko Pāhauwera, Ngāti Pāhauwera has said to the Planning Tribunal, an independent asssessor, the Native Land Court, the Māori Land Court, the High Court, and will no doubt say again to the Court of Appeal later this year.

You can’t be the river, the law has replied each time. You must tell us how you use it.

*

Some of the most popular uses of the upper Mōhaka River by the Hawke’s Bay community today are trout fishing, duck shooting, kayaking, rafting and enjoying its scenery.

The fishing and hunting seasons are managed by Hawke’s Bay Fish and Game, which started life in 1868 as the Hawke’s Bay Acclimatisation Society. Such societies were common among settlers throughout New Zealand. Their idea of acclimatising was not so much to adapt to their new country but to try and recreate what they’d left behind.

The men of these societies dreamed of weekends shooting grouse on heather moorlands, of sports bags filled with pheasants and quail, of trout and salmon leaping in the nearby waters, of lark song filling the air and partridges in their pear trees.

New laws written for the settlers in the 1840s and ‘50s allowed them to indulge their homesickness by importing exotic animals and plants to “supplement the inadequate indigenous food supply of birds and fish”.

Other laws allowed them to force open a gap in the pecking order for the newcomers by killing native species.

In Hawke’s Bay, the local acclimatisation society dispatched orders for grouse, heather seeds, salmon ova, perch, partridges, blackbirds, thrushes, jackdaws, rooks, and juvenile trout packed in cans and jars. One ship, the Queen Bee, which arrived in Napier in 1874, carried a cargo of 650 birds, “for the settlers to remind them of Home”.

Even at that time there were those who understood this mission to be reckless and shortsighted. A lengthy review of two books about the native birds of New Zealand, which appeared in the journal Nature in England, in 1872, closed with a warning about how the “silly mania” of acclimatisation societies for exotic importation “will inevitably become the greatest of nuisances”.

The Hawke’s Bay society amply helped fulfil this fear by supporting the government’s plan to import weasels, stoats and pine martens to the area. Like swallowing a spider to catch a fly, the weasels were intended to catch the rabbits, imported by other settlers for food and sport, that were demolishing their crops and farmland.

Soon, the Hawke’s Bay Herald noted with alarm that weasels “can evidently travel”, as it reported on one being found in the Upper Mōhaka, fully 150 miles from where it had been released.

“It seems that the eradicators have reached the place in advance of the pest to be eradicated,” the paper reported.

The society, meanwhile, was having success forcing trout into the local waters. It set up hatcheries and repeatedly stuffed the nearby rivers and streams with thousands of juveniles until a permanent population took hold.

The settlers began to issue licences, manage a fishing season, and open and close the river to anglers as if the waters in which these implanted fish swam were theirs to control.

By the 20th century, with fly-fishing established to the point of being a tourist attraction, the society started to worry that power companies, who wanted to use the Mōhaka to generate electricity, would spoil their sport, which relied on the river’s natural flow. It decided to use its network to pursue legal protection for the things its members valued so highly.

In 1987, the Northern Council of Acclimatisation Societies applied to the Ministry of Works and Development for a conservation order over much of the Mōhaka River. The benign title of the order — who, apart from power companies, could possibly object to conserving such a beautiful river? — varnished a basic truth: that the order aimed to protect a particular set of activities tied to a particular set of values that were held by a particular group of people.

It relied on an assumption that the Crown held exclusive rights of control over the river. The society’s history of drastically altering, not conserving, the local environment didn’t seem to matter.

The application shocked and galvanised Ngāti Pāhauwera, as well as other hapū and iwi connected to the river. They rallied hard for the chance to be heard. As well as convincing the Waitangi Tribunal to rush to report on the issue, Ngāti Pāhauwera delivered a massive affidavit to the Planning Tribunal as evidence of its rangatiratanga.

It laid out its whakapapa back to the ancestor Te Kahu o te Rangi, and detailed the songs, whakataukī and kōrero tuku iho which carried the history of the river from generation to generation. It revealed information that in less urgent times was considered too precious to be shared outside the valley.

The back and forth among the parties ate up another nine years. In the end, the Planning Tribunal threw up its hands. It said it had no power to recognise rangatiratanga, no power to appoint Ngāti Pāhauwera as kaitiaki of the Mōhaka River, and no ability to protect its spiritual or cultural values.

Instead, in a brisk and sweeping order of just 500 words, the tribunal upheld the cultural values of the Acclimatisation Societies, by then rebranded to Fish and Game, by recognising and protecting their beloved sports and recreation.

The Environment Minister at the time, Marian Hobbs, announced the decision as a neutral win for all.

“A water conservation order is the most effective way of ensuring the outstanding fishing, recreational and scenic characteristics of the river are not compromised, and are available to future generations,” she said.

In the second-to-last paragraph of her press release, she admitted there was a need to “discuss options” for “increasing Ngāti Pāhauwera’s involvement” in the management of the river.

The conservation order over the Mōhaka River was issued in 2004 and remains in place today. It leaves some wiggle room for authorities to continue to take gravel from the river and to continue to build bridges over it.

The order makes an exception for the water needs of firefighters. It makes an exception for the water needs of animals. Nowhere does it mention Ngāti Pāhauwera.

A view of the Mōhaka River from near Tangoio. (Photo: Connie Buchanan)

I drove from Hamilton to Mōhaka in January 2022, a tower of reports on the iwi’s claims strapped into the passenger seat beside me, hoping to find a way to pry the central ideas out of the stiff claw of legal language by visiting the river itself.

As I stacked up the bricks of paper and hunted down monster bulldog clips to hold the hundreds of pages in place, it seemed redundant to be yet another outsider hoping to be convinced of things that have already been explained to outsiders over and over again.

Ngāti Pāhauwera’s old people have been wrung out for evidence of their relationship with the river so many times that, by 2014, chairman Toro Waaka told the High Court, as he re-offered hundreds of pages of affidavits from kaumātua, that “we were reluctant to ask them for any more evidence than was absolutely required”.

“The challenges of explaining this in the English language and in settings completely different from our own are reflected in the many ways we have tried to describe for others what we know over the years,” he said.

The kuia and koroua were pouring time and effort into explaining things for lawyers, preparing painstaking affidavits, giving their evidence in court, being made to swear on a Bible that they were telling the truth, as if they were witnesses in a criminal trial, and then they were dying without seeing their river returned.

“It’s so sad that they haven’t seen a resolution, and it’s embarrassing,” says Toro’s daughter Bonny Hatami. “We have whānau coming to us saying: ‘So, did we win?’ And we still don’t have an answer.”

*

The Mōhaka River runs for 172 kilometres from its headwaters in the Kaimanawa Ranges to Mōhaka, where it drains into the Pacific Ocean. There are nine iwi which whakapapa to the river and its tributaries, with Ngāti Pāhauwera’s association running from Te Hoe junction to the river’s mouth.

The Mōhaka is not easy to access as you get down to its lower reaches. The cliffs on either side are, in some places, 200 metres high. Roads which, on the map, look like they’ll take you right up to the riverbank turn out to be chewed-up forestry paths with locked gates. At other entrance points are more gates with padlocks, signs asking for hard hats, and, in the distance, huge piles of gravel and machinery.

Down one of these back roads, four dogs nudged a billowing cloud of sheep past a sign that said: “Trespassers Will Be Prosecuted And Dogs In Stock Will Be Shot.” It’s no wonder members of the Waitangi Tribunal jumped in a helicopter to see the full stretch of the Mōhaka.

Driving on, there was a sudden gap in a row of pine trees to my left, and I drew in breath, unaware till then that the land plunged away just beyond the row of trunks. Far below was the river, a steel blade cutting through white cliffs, its silver line glinting and winking far into the distance.

For the next few minutes, the river appeared in bright flashes, and I pulled over on the high skinny verge, jammed in tight against pine trunks, to try and take in the view. On the other side of the road, sheep gathered at a fence to stare with long blank faces.

Hemmed in by pines and sheep, I unstrapped the iwi’s Deed of Settlement and other documents related to their long fight for recognition of rangatiratanga.

I read that in 1851, Governor Grey’s main man of land aquisition, Donald McLean, acquired a huge chunk of Ngāti Pāhauwera land using a simple formula: Buy an initial block cheap by promising the rangatira vast eventual benefits from increased contact with settlers, on-sell smaller parcels at much higher prices, and use the difference to open up more areas for settlement by building roads and bridges and buying more land.

How cheap? Ngāti Pāhauwera received £800 for the Mōhaka block, just over 2 pence per acre.

In a series of petitions in 1891, 1898, 1899, 1925, and 1946, Ngāti Pāhauwera appealed to parliament about the low purchase prices, the non-participation of certain rights-holders in the transactions, and the lack of provision of promised reserves and benefits from the sales.

The pattern of protest and petition was so consistent that by the twentieth century the summary arguments felt compelled to point out to perceived sceptics that the iwi’s most recent objections were “not part of the grievance industry” but were preceded by a continuous history of asserting wrongdoing.

Still, by 2012, Ngāti Pāhauwera retained just 6 percent of their original landholdings.

Reading through the actions of Donald McLean in this part of the country, my impression was of a clever man who spotted a rare and beautiful treasure, picked up the delicate whole, held it high above the unforgiving surface of settler law and then let go.

The land and resources shattered into individual, freehold, private titles and were transferred piece by piece out of collective Māori control.

The Treaty settlement in 2012 has allowed the iwi to glue some of the thousands of scattered bits back together through the return of Crown land, lease-back arrangements of private land and the purchase of established forestry and farming interests. There’s income and jobs now from shearing, orchard and forestry interests.

My own family, as a result of the marriage of Dr Matthew Scott to my great-great-great grandmother Mere Hokena, from the hapū of Ngāti Kura, acquired several tiny shards. Our shares today total no more than a hectare or so, which none of us now alive has laid eye nor foot on.

The cracks and joins and mishappen shape of the original whole are still evident in these fractional shares of traditional landholdings, in the many whānau who had to leave years ago to forge a living elsewhere, the dislocation of knowledge and its practice, the now unknown location of ancient sites and urupā, the erosion and degradation of cleared and settled lands. And the river remains the most significant, unresolved fracture running through it all.

As I sat thinking about these things, the name Donald McLean rustled in my mind and I ferreted once more through the stack of papers and reports, until suddenly there he was again: the first president of the Hawke’s Bay Acclimatisation Society.

On the side of the road, crowded in by pines and sheep, I also read Tureiti Moxon’s cry for that unbroken old world.

         Kua ngaro kē te whenua
         Kua ngaro kē te ngahere
         Kua ngaro kē te mana iwi
         Whakatikatika

         The land has already gone
         The forest has already gone
         The mana of the iwi has already gone
         Fix it, make it right

Toro Waaka and Lady Tureiti Moxon in Napier for the High Court hearing in 2021. (Photo supplied)

It’s clear from the evidence given to the courts over the years that nowhere does the iwi’s conception of what life is, and how it should be lived, coalesce more potently than at the river’s mouth.

Leaving the high areas of pine and sheep behind, I drove down through the valley to the coast, turning left onto gravel toward the river’s east bank. At the bottom of the road was a short, steep track marked by a knotted rope for climbing down to the foreshore. The beach was completely empty of people far into the distant haze of Napier to the south and Tokomaru to the north.

“There’s no wharf or piers, no ports or anything, and there’s a high Māori population,” says Bonny Hatami. “It should be the perfect case to meet all the tests of the current law.”

Before erosion and earthquakes ate away at the crumbling cliffs here, there were sea caves and sand dunes up and down the coast. For centuries, they were used as burial sites.

That soft land and its bones are gone now, but the ancestors remain, diffused among sand, rock, sea and river. Those whose actions in life elevated them to taniwha in death reside in the water. Among these are Hine Mako, Popoia and Paikea, names that carry the history of how Ngāti Pāhauwera migrated and settled this area.

They are occasionally glimpsed in the ocean as a dolphin, a red dog, a horse, a half-human half-eel with red hair, or some other momentary physical form, all now under the protection of their common ancestor Tangaroa.

Ngāti Pāhauwera has tried to explain this reality to the High Court.

“Are you saying the taniwha is a separate entity from Paikea, the whale rider?” a lawyer asked Toro Waaka at one point.

“No, I’m saying that’s the original one,” he replied.

“They are one and the same?”

“Yes.”

It’s the ancestor Paikea who is the guardian of the Mōhaka River, and the river’s mouth is his domain.

On the day I was there, the mouth was a huge, still pool on the wide beach. The tide began swirling up through a channel. I knew nothing about the conditions at high tide and I’d told no one where I was, so I stayed for just a few minutes more, watching as the ocean began to churn and mix with the river water.

Endlessly asking Ngāti Pāhauwera to explain where the river ends and they begin, I thought as I turned to leave, was perhaps like scooping up a handful of that swirling water and asking them to please separate out the salt water from fresh.

The road to the river’s mouth. (Photo: Connie Buchanan)

Whether I or anyone else who is not from here can truly grasp what it is like to be this river is beside the point.  Article Two of Te Tiriti o Waitangi guarantees the iwi’s right to conceive of the river this way and to exercise authority over it in accordance with that conception.

It’s a right that Ngāti Pāhauwera has never relinquished, and it’s a right that the Crown has never quite believed in. Instead, the law has been used to steadily eat away at that starting point, to give form to the illusion that possession and control of the river lies with the Crown, and to therefore demand that the iwi meet high thresholds of proof to secure rights to its customary activities and uses.

Unwilling to risk losing everything by operating outside the imposed rules, Ngāti Pāhauwera has chosen to wrestle with a system that is not theirs.

“The law does not accurately reflect the reality that our moana and the awa is ours, but if it provides an opportunity to protect our taonga, we will use it,” explained Toro Waaka.

First via the Foreshore and Seabed Act, then the Marine and Coastal Area (Takutai Moana) Act, they have tried to pick out the evidence that fits the requirements of the law, which demands specific forms of unbroken proof back to 1840 of their physical activities and material uses of the resources.

Please go away, the law keeps saying, and separate out the salt water from fresh.

*

There’s still no shop, no petrol station, no corner dairy, no motel in Mōhaka, so I’m staying half an hour away in Wairoa.

It’s the height of the so-called “summer of freedom” after the lifting of Covid lockdowns, but there’s just one other vehicle on the road through the valley, a truck bearing a heavy dome of roading metal.

Most of the roads around Hawke’s Bay, Gisborne and Taupō, have been built with gravel from the Mōhaka. The Mōhaka River Tribunal reported in 1992 that an average of 32,500 cubic metres of gravel had been extracted from the riverbed each year since 1963.

Since the Tribunal found that Ngāti Pāhauwera had never parted with its ownership rights over the river, it recommended that the Crown pay royalties and compensation for this resource.

“The gravel is a potential asset for an essentially asset-less people,” it wrote.

That compensation has never been paid.

On the road back to Wairoa, I get stuck behind a campervan which says “Imagine” in curly marketing writing on the back. I’m jammed behind its wide rear on the narrow road for so long that the word weasels its way into my mind and I do start to imagine.

How might all this look for Ngāti Pāhauwera if the Crown’s starting position, as a Treaty partner, was “We believe you” rather than “Prove it to us”?

I think of the language in the most recent judgment from the High Court.

Instead of saying that the sacredness of the area “cannot be merely asserted but must be objectively established,” the court might instead be able to find that the iwi “has correctly asserted rights that were properly inherited”.

But this, too, is a failure of imagination.

Thinking about the law within its own parameters is an imaginative dead end, because it was constructed to prevent the fulfilment of what the iwi is seeking, which is the realisation of tino rangatiratanga.

The process of “objectively” establishing rights means that deciding what counts as evidence, and then assessing what’s presented, happens against definitions which serve to uphold Crown control.

A wāhi tapu may have no surface features, the iwi has explained. To be protected in law it must present physical characteristics, the court has replied.

Our connection to the river is first and foremost a spiritual one, they explained.

We can’t grant you rights based on a spiritual or cultural association, unless that association is manifested in a physical activity or use related to the natural or physical resource, was the response.

Well, then, one physical reason the river is important to us is because the river’s mouth functioned as a highway for us in the past, they said.

That makes it navigable, and so, according to the Coal Mines legislation, your rights are automatically extinguished, and the mouth of the river is therefore vested in the Crown, came the reply.

It’s artificial to only be able to include some of the resources in this application because to us everything is connected, the iwi said.

The court’s reply? You have only met the test set out for customary marine title within the following points:

i. Lat. 39,091811, long. 177.291402 (a point near the Waihua River mouth) and lat. 39.092867, long. 177.29197 (a point offshore from the Waihua River mouth),

ii. Lat. 39.150189, long. 177.12798 (a point near the Ponui Stream mouth) 39.151176, long. 177.128491°E (a point offshore from the Ponui Stream mouth), but excluding any part of the bed of the Mōhaka River that is in the common marine and coastal area.

When reading the dense arguments that have been made over the years, it’s easy to become lost in the complex explanations of why the decisions can never find wholly in Ngāti Pāhauwera’s favour.

In fact, I’ve nearly given up this attempt to understand it, as someone who is not a lawyer nor any sort of expert, just someone with a very fine thread of family history running back to this area, who’s trying to think hard about whether what is happening here is right or wrong.

No doubt a lawyer could easily raise a dozen refutations as to why what’s taken place in the courts so far represents good progress, or why my impressions are flawed or reductive. But when I stacked the reports back into the passenger seat, and strapped the seatbelt back around them, to head back to Hamilton, the complexities they contained receded, and the body of argument as a whole started to radiate a larger point that was as circular as the path of a hawk monitoring for roadkill above the highway.

It seemed that the continued offering of some rights only serves to strengthen the structures that exist to deny the full expression of those rights.

The law’s approach is like building a prison and then regretting that those it’s put inside can’t escape. The incremental adjustments that the legislation has made over time consolidate the whole. “We’ve cut you out a little window,” it seems to say. “It’s not our fault you can’t fit through.”

“Try making yourselves smaller,” it seems to suggest. “Take out the very bones of who you are.”

The true exercise of imagination would be to go back and start with what Te Tiriti intended, and what the Waitangi Tribunal confirmed to be true: that Ngāti Pāhauwera never relinquished rangatiratanga over the river, and therefore should not have to prove that it’s theirs.

The starting assumption for any ensuing legal activity would be that the river is part of Ngāti Pāhauwera, who therefore hold the rights of control and management. Others could then apply for access and usage according to the regulations determined by tikanga.

Please go away, the iwi would be able to say to others in this imagining, and bring us back the evidence to prove that your proposals don’t damage our wāhi tapu.

Please demonstrate that your planned activities fit within the parameters of our tikanga. Please prove that your intended action does not damage our spiritual associations with this place.

Or, the iwi might offer, let’s use the Treaty that exists between us to come to a sensible and realistic agreement for joint control and management of this taonga.

If all of this were the case, I think as I finally overtake the lumbering campervan, then perhaps the road in Mōhaka might be sealed all the way down to the river’s mouth, because from the whakapapa, there would emerge the origins of power and responsibility.

Whānau from Ngāto Pāhauwera who gave evidence to the High Court in 2021. (Photo supplied)

Ngāti Pāhauwera’s battle to secure customary rights and title was heard in the High Court in 2021. It used the hearing to emphasise its central argument that it considers the whole application area connected and sacred, a wāhi tapu.

“We are unwilling to cut it up and compare the importance of different parts,” submitted Toro Waaka. “This would be at odds with the holistic nature of our relationship to all of our taonga which members of Ngati Pāhauwera have tried to explain over the years.”

Two days before Christmas that year, the High Court issued its decision.

Over 278 pages, the judgment laid out how and where Ngāti Pāhauwera can use their river, seabed and foreshore.

The decision cut up the area into five parts. It granted the iwi permission for:

  1. The use and collection of hāngi stones, other stones, sand, and gravel between the Waikare and Waihua Rivers, excluding the mouth of the Mōhaka River.
  2. The use and collection of driftwood and pumice within the application area between the Waikari and Waihua Rivers.
  3. The use and collection of wai tapu and rongoā over an area 200 metres south of the mouth of the Mōhaka River and north to the Waihua River and out to 50 metres beyond mean low-water springs.
  4. Non-commercial whitebait fishing at the Mōhaka and Waikari River mouths.
  5. The management, use, and protection of tauranga waka between Waikare and Poututu.

What Ngāti Pāhauwera could not have, the judgment found, was the whole application area granted as wāhi tapu, nor rights to the riverbed, nor rights to the river’s mouth.

The judge acknowledged the iwi’s long fight to regain control, particularly over the river mouth. He said it amounted to an “injustice,” and he regretted not being able to grant that control, saying: “It is unfortunate that they will not be able to do so here, but I am bound by the decision of the Supreme Court in Paki.”

So the iwi is again instructing its lawyers. They will take aspects of the judgment to the Court of Appeal, and soon there will be another document to go on the stack.

In each of those produced so far there are the names of those who’ve given their evidence and waited for the day they’d see the return of their river, but who became sick or too old, and who died without seeing their rights restored.

Ariel Aranui, Myra Te Kahika, Pauline Robinson, Moana Keefe, Eruiti Nuki Te Kahika, Ramon Joe, Tom Gemmel, George Hawkins, Reay Paku, Dotty Winiata, Awhina Waaka, Buck Tumataroa, Wiki Hapeta, Marama Rose Taylor, Mokopuna Te Kahu, Maurice Te Kahu, Whetu Tirikatene Sullivan, Hazel Kinita, Charlie King, Rangi Robinson, Fred Hancy, Peggy Cottle, Piripi Nuku, Harry Tuapawa, and William Culshaw are among those who have passed away.

“There are many more,” says Toro Waaka. “We owe it to all of them and our tīpuna to continue the fight, even if it takes us another hundred years.”

It feels like this is a story without an end; that the reports and findings and hearings and the names of the dead will only accumulate; that the law will forever open tiny windows and then lament the unwillingness of Ngāti Pāhauwera to remove their bones to squeeze through; that the hawk will keep circling and the continued offering of small changes will continue to strengthen the structures that exist to deny big change.

When I got back to Hamilton from Mōhaka, I unstrapped the body of documents and took one last flip through the pages until I found a section that I’d highlighted in anticipation of wanting to leave the temporary finish of this attempt to relay the story in the right hands.

It’s a statement from Canon Wi Huata, which was presented to the Waitangi Tribunal when it sat in the red meeting house at the top of the valley 30 years ago.

Canon Huata had prepared extensive evidence to help counter the Planning Tribunal’s conservation order, but he passed away just a few months before the Tribunal came to Mōhaka to report on the issue.

“We are doing things from the perspective of truth,” he said.

“There are two aspects of truth: being true to something wrong, and being true to something right.

“From ancient times right down until now, Ngāti Pāhauwera have been and are the guardians of the river. That is why we are fighting for our river. The good thing is, we are not talking war. We are instead weeping for our lands and for our river.”

 

  • You can read about how other countries with Indigenous populations are addressing similar legal questions over water rights, in this piece by Dr Elizabeth Macpherson.
  • See also: A vein in our bodies which covered the 2021 High Court hearing to consider Ngāti Pāhauwera’s claim for customary rights and marine title.

Connie Buchanan is an E-Tangata writer and editor. This piece was made possible by the Public Interest Journalism Fund, through NZ On Air.

© E-Tangata, 2023

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