Tribunal Motunui recommendation defines the Treaty

Tu Tangata, Issue 12, 1 June 1983, Page 2

Tribunal Motunui recommendation defines the Treaty

“We have been singularly impressed with the quiet honesty and integrity of Aila Taylor and accept his evidence entirely.”

“It was obvious that the hapu had conducted extensive researches and done considerable work to present their case to us. The presentation of that case in fact took one week. We were impressed by the thoroughness of their work, and the restrained and dignified manner in which their case was presented.”

The treaty is a “fraud”, Edward Wakefield wrote to British Secretary of State for Colonies, William Gladstone, in 1846. Now, 143 years after it was signed, the Treaty of Waitangi Tribunal has breathed new life into the treaty.

For the Te Atiawa tribe of North Taranaki the solace of the tribunal’s finding is a new impetus in their battle to stop further pollution of their sole remaining resource; the seafood reefs that provide rich food for their stomaches and pride.

Since the mid 1970 s a small, dedicated few have fought judicial snubs; prejudiced attitudes; antagonistic bureaucrats; stalling officials; unsympathetic politicians and doubters within their own ranks.

They have given up leisure time; sacrificed holidays and dug deep into their own pay packets to pursue a long, legal path that led to the Treaty of Waitangi Tribunal, where their labour finally bore fruit.

The tribunal’s 75-page report is strong, clear, persuasive poetry. That alone makes it a rare legal document. It is also a watershed in the force of the Treaty of Waitangi.

No summary can convey those qualities. But within the report lies a number of recommendations, some general, some specific, which provide a window on its significance.

On the issue of fisheries, the report recommends that the Maori Land Court be given the power (subject to appeal) to set aside Maori fishing ground reservations and appoint trustees to control them.

It calls for the recognition and protection of traditional Maori fishing grounds in all legislation which has any influence over these areas.

Specifically the tribunal recognises the sense of Te Atiawa’s case and recommends a change to regulations to allow paua under 125 mm to be harvested from their reefs (paua have never grown to that size there) and an easing of the process to get a special license for a tangi.

The tribunal also recommends a study be commissioned to define Maori fishing grounds in North Taranaki and the effects of existing waste outfalls along the coast and up the Waitara river on them.

On the issue of pollution the tribunal urges the Government to locate the natural gas-using Think Big projects close together to pool resources for the best possible system of waste disposal.

The Government should become more involved in planning and co-

ordinating and funding such developments, and the side effects they have on local communities. In that respect the tribunal recommends a small, expert task force to set out medium term plans for North Taranaki and how things like waste disposal will be dealt with. But the recommendation which really sparked nationwide controversy related to the waste outfall from the Synthetic Fuel Plant at Motunui just north of Waitara. The plant has a water right to build its own waste pipeline to sea. But the construction insults Maori cultural and spiritual beliefs and threatens physical pollution of an unpolluted seafood gathering area. The tribunal recommends that outfall

be stopped, and the waste discharged through the Waitara Borough outfall. It recommends further that a new regional outfall should be built to take Waitara’s existing effulent, and all the local Think big projects. The waste discharged to sea should first be highly treated in land-based plants. When the tribunal’s findings became public it appeared as a triumph for Te Atiawa. Then victory turned sour. Almost immediately Prime Minister Mr Muldoon announced the separate Motunui outfall would go ahead regardless. Worse still, he made the announcement even before he was aware that it went directly against the tri-

bunal’s recommendation. It looked as if the Government was going to dismiss the tribunal’s report without even bothering to study it. Then the fuss started. New Zealand Maori Council figures, the Maori Warden’s Association, Te Atiawa and a host of supporters individually, and collectively, at a hui on the Manukorihi Marae, cried foul. The strength of the opposition clearly bothered the Government. Works Minister Tony Friedlander for example, quickly entered the arena to say the Government had only rejected two of the tribunal’s four major recommendations. When the anger intensified he issued another statement saying the Government had in fact only rejected one of the recommendations.

Other Cabinet Ministers involved went to ground. Maori Affairs Minister Ben Couch was in a difficult spot. When the report was first issued he said “the important point now is that action should follow discussions as swiftly as possible, to show reasoned discussion of the problems is still better than confrontation when it comes to solving practical problems effectively and with good will”. Following the Prime Minister’s announcement Mr Couch adopted a “no comment” stance. What followed is history. The political heat intensified, spearheaded by two meetings between the Prime

Minister and Te Atiawa representatives in Wellington. Te Atiawa stood their ground and drew support from a meeting of all Taranaki tribes at Parihaka. Opposition came from another area. Engineers raised concerns about the possibility of building the Motunui outfall. Finally the Prime Minister backed down. The Motuniu outfall was stopped and special legislation was introduced into Parliament with the blessing of the Labour Opposition. At the time of going to press the legislation was under scrutiny by a Parliamentary committee. The end result,

at least in broad terms, will comply with the tribunal's recommendations.

The future over the Motunui issue elevated the Te Atiawa tribe’s battle from regional to national prominence. Until then the news media, the public and Maoris from other areas had shown little interest.

In that respect, the controversy played an important role in making the public aware of the tribunal’s report, which held significance well beyond the borders of Te Atiawa’s grievance.

But in an other respect the controversy has done a disservice in highlighting one specific recommendation, with the danger that dust will collect on the other recommendations in the wake of dwindling public interest.

The Motunui pipeline was the most urgent recommendation. It was also one of the most specific. Others yet to be dealt with will have much wider effects.

But does the good-will exist within Government to deal seriously with the body of the tribunal’s report? There is no doubt that the performance on the Motunui issue has created an air of distrust. That distrust extends to another specific recommendation: that calling for a reduction in the legal size of harvested paua on Te Atiawa’s reefs.

Following the tribunal hearings, where historical Maori evidence of small paua on the North Taranaki coast received the backing of scientific studies, letters were sent to Fisheries Minister Duncan Maclntyre. Requests were made to change the legal size.

But Mr Maclntyre rejected the idea, claimed there were areas where legal sized paua could be harvested, and said a long-term study was underway looking at why paua were small on the North Taranaki coast. Meantime he wouldn’t change the regulations.

The response indicated a poor understanding of Maori custom related to reef ownership, cut across local and scientific knowledge and established the peculiar idea that a reduction in the legal size limit could not be contemplated until the cause of undersized paua was known.

Between hearings, two of the tribe’s kuia were caught with undersized paua. Then, during mussel collecting for the hui called to protest the Government’s response to the tribunal, fisheries officers insensitively exercised their legal right and confiscated several bags of mussels.

All this may say little about the eventual outcome of the tribunal’s recommendations, but it has certainly warned caution among Te Atiawa.

So what has been done with the tribunal’s recommendations?

Special legislation gets rid of the separate Motunui outfall. Following on from that, a task force has been established to come up with a scheme for an outfall at Waitara serving the waste

disposal needs of present and proposed developments. It has two years to do that.

The task force comes under a larger committee set up under Mr Graham Tuohey, of the Prime Minister’s department.

The tribunal recommended that a medium term plan coordinating developments in the area and the requirements for such things as waste disposal be carried out by a regional group in North Taranaki.

Auntie Sally Karena and Netta Wharehoka presenting their case from the floor. (Photo: Fiona Clark)

It also recommended a committee of all involved Government Departments be set up to look at regulations and laws to ensure the Maori viewpoint is better understood recognised and protected. Mr Tuohey’s committee will report on ways to achieve both these objectives. There are some gaps; such as a study of all the North Taranaki outfalls and their effects, but presumably these will follow from the committee’s decisions. That leaves the area of fisheries protection. Mr Tuohey said that issue is not one his committee is dealing with and is something Maori Affairs is looking at. Mr Couch has so far been eclipsed by the Prime Minister’s lime-light role in the whole affair. With that ended, Mr Couch’s own attitude to the tribunal’s report becomes important. Before Mr Muldoon’s involvement, he said in an interview that he was not prepared to pre-judge the issue. He regarded the tribunal’s report as negotiable rather than a set of recommendations he would openly support. Mr Couch said one of the causes of a history of Maori grievances over fishing rights was that no one depart-

ment could speak for another in ensuring the rights were recognised. He said that is one thing he will be trying to do something about. But Mr Couch said he can give no

guarantees regarding the issue of fishing rights. “I think this Government has always been, and it says it in its policy, sympathetic, and stands by the spirit of the treaty,” Mr Couch said. What is apparent is that Mr Couch regards his office as more of a clearing house for the tribunal’s recommendations than advocate for their adoption. But his department is working on related legislation in the form of the new Maori Affairs Bill. The New Zealand Maori Council produced a proposed outline for the Bill which is based on the Treaty of Waitangi and if accepted, will encompass many of the principles argued for in the tribunal’s report. The Maori Affairs Minister’s secretary Jim Taitoko said a special committee looking at the proposed Bill is “working frantically” and hopes to have a draft Bill before Parliament this session. The specific fisheries issues raised in the tribunal’s report lie with- the Ministry of Agriculture and Fisheries. A golden opportunity to adopt them lies in amending the Fisheries Bill which is being studied by a Parliamentary select committee now.

Likewise the Maori Affairs Bill will identify attitudes towards fisheries reservations and protection. Mr Couch said the Maori Affairs Department is now working on clauses in the Bill in

the light of the Tribunal’s recommendations. At this stage the Government has moved to set up specific committees to deal with most of the issues raised in the tribunal’s recommendations. Legislation either before Parliament or soon to be introduced could deal with others. What follows is a period where a strong group of watchdogs will be waiting to see if bureaucratic study leads to satisfactory action. In the short term the Government has another opportunity to display good will. The Treaty of Waitangi Tribunal has no power to recommend costs. But in its report the Tribunal strongly suggests the Crown should make an ex gratia payment to Aila Taylor as representative of Te Atiawa. It also suggests that the local Taranaki Catchment Commission and the Waitara Borough Council should receive a contribution to their legal costs. That is the sort of practical recognition which could go some way towards restoring the Government’s mana.

Alastair Morrison