Claim by Sir Charles Bennett and others of Ngati Pikiao against a proposed Nutrient Pipeline to the Kaituna River (1984) Waitangi Tribunal Wai 4

Tu Tangata, Issue 24, 1 June 1985, Page 34

Claim by Sir Charles Bennett and others of Ngati Pikiao against a proposed Nutrient Pipeline to the Kaituna River (1984) Waitangi Tribunal Wai 4

Waitangi Tribunal, Te Takinga Marae Mourea, 23-27 July, 8-12 October, 7 December 1984 Chief Judge Durie (Chairman, Sir Graham Latimer JP, P.B. Temm QC

Maketu historical landing place of Te Arawa waka "ko tangaroa te kaitiaki"

Continued from April/May Tu Tangata

Treaty of Waitangi and Waitangi Tribunal a proposal to discharge effluent to the Kaituna River held contrary to the principles of the Treaty owing to traditional fishing and other uses and the prospect of cultural and other pollution recommendation against the project on the ground that the objective sought could be achieved by an alternative proposal the significance and legal effect of the Treaty and the Treaty of Waitangi Act 1975 Water and Soil Conservation Act contrary to Treaty.

The Rotorua District Council proposed the construction of a pipeline from the city to the upper reaches for the Kaituna River for the discharge of the city’s treated effluent. A water right was granted by the Regional Water Board and the grant was upheld by the Planning Tribunal on an appeal. The proposal was an integral part of a major scheme of the Bay of Plenty Catchment Commission directed, amongst other things, to the arrest of the pollution of Lakes Rotorua and Rotoiti and the restoration of the waters.

The scheme also had Government support. The lakes were regarded as national assets. Through the Ministry of Works and Development the Government had provided special and substantial subsidy rates. The pipeline had been proposed by the Ministry. It acknowledged that the construction of the pipeline was a policy of the Crown within the meaning of s 6 of the Treaty of Waitangi Act 1975.

The claimants were members of the Ngati Pikiao sub tribe of Te Arawa whose tribal territory includes the Kaituna River and parts of both lakes. They were opposed to the Kaituna River discharge upon the grounds that it would pollute the river, which had special significance for them, and convey the pollutants to the tribal shellfish and fin fish fisheries at Maketu on the coast. Although only highly treated waste would be discharged, the discharge of human or animal wastes to water used for bathing and supporting food and plant life offended their spiritual and cultural values which demanded a very high standard of water purity. There was conflicting opinion on whether the Maketu fisheries would be affected by the discharge of treated effluent to turbulent waters some distance from them but the evidence of a cultural pollution was “virtually unchallenged”.

The Waitangi Tribunal found that the Ngati Pikiao had traditional fishing rights in respect of the river, Maketu estuary and the sea, that the Treaty of Waitangi guaranteed them the continued enjoyment and undisturbed possession of that right, and that the discharge of sewage effluent to the river, “no matter how scientifically pure" was an infringement of that right and was therefore contrary to the principles of the Treaty.

Having found that the claim submitted to it was well founded the Tribunal had then to consider whether, in all the circumstances of the case, ac-

tion should be taken to stop the discharge. Various parties in support of the discharge argued, amongst other things:

That although the river discharge might represent a cultural affront, it ought nonetheless to proceed. The lakes were of considerable local and national importance, the pollution of the lakes had reached such a severely critical level that the Crown had committed itself to a substantial expenditure to arrest pollution and restore water quality, that a major contributor to the pollution was the existing discharge of treated effluent to Lake Rotorua, that the pipeline would remove that discharge from the relatively still lakes waters to turbulent river waters beyond the lakes, and that alternatives to the pipeline were either impracticable or insufficiently proven when compared with the certainty that the pipeline gave.

That the discharge to the turbulent waters of the river would have little effect on the river or the marine life at the coast, or, any effect would be small when weighed against the effect of a continued discharge to the lakes.

That if the river discharge did not take place, and the lakes continued to deteriorate, the river, which flows from the lakes, would be polluted anyhow from the eutrophic overflow.

That the existing discharge to Lake Rotorua must be culturally offensive to the tribes surrounding the lakes and whose members fish the lakes. The pipeline would remove that prejudice.

The Maori claimants argued that the lakes were already polluted and that it was now wrong to pollute the river. The pipeline simply transferred the problem from one water body to another. The use of rivers from the disposal of waste was wrong and there had been an insufficient investigation of land disposal, which was the only alternative that was culturally acceptable. The position might be different if the river was secondary river for the tribe, but it was a river of high importance, passing through native bush, pa sites and wahi tapu and renowned for its purity enabling its use for the treatment of kiekie and flax for weaving, and the gathering of plants for medicinal cures. Unlike

other tribes enjoying an expansive coastline, the Te Arawa-Tuwharetoa who extended to Lake Taupo were an inland people having only a narrow corridor to the coast along the Kaituna River, and with a small coastal fishing ground that was virtually limited to Maketu.

The Tribunal considered on the evidence that the Ministry of Works and Development had not properly explored the alternatives in the light of the Maori objections. By its control of the subsidies it had been able to dictate to the Rotorua District Council. The Council on the other hand had explored the alternatives and had shown a willingness to accommodate the Ngati Pikiao concerns. The Tribunal accepted that a discharge to land was not practicable at this point in time. It considered however that on the evidence an expanded treatment plant with nutrient stripping, when coupled with other land retirement programmes, would achieve the objective of arresting pollution and restoring water quality. It would also avoid the transfer of the problem to another area. Although this would still involve a discharge of effluent to a lake used for fishing the discharge point would be at Sulphur Bay, a thermal area not used for fishing bathing or recreation. There was also evidence that the acid conditions of the Bay operated to remove much of the phosphorous from the effluent stream.

It was recommended that the nutrient pipeline be substituted by an expanded treatment plant with biological or chemical stripping, and that the search for a practical land disposal system continue.

Other matters considered by the Tribunal were as follows.

On the significance of the Treaty of Waitangi to the early Maori

The Tribunal cited with apparent approval from the submissions of Professor Kawharu a Professor of Anthropology. He argued that for the Maori the important words in the Treaty would have been those relating to “kawanatanga” and “rangatiratanga” In agreeing to ceded “kawanatanga” the Maoris would have known that by so doing they would be gaining “governence”, the law and order for which the missionaries had long been pressing. They would have ceded “that part of their mana and rangatiratanga that hitherto had enabled them to make war, exact retribution, consume or enslave their vanquished enemies and generally exercise power over life and death”. In return they would have seen the Treaty as protecting their “rangatiratanga” that is “all the power privileges and mana of a Chieftain" or "Chieftain-ness' in the widest sense. “They would have believed they were retaining their rangatiratanga intact, apart from a licence to kill or inflict

material hurt on others, retaining all their customary rights and duties as trustees for their tribal groups...”.

On the significance of the Treaty to the Maori New Zealander

“He (Professor Kawharu) can say, with absolute truth, that no other ethnic group in New Zealand has ever had such a solemn pact made with it. The Maori New Zealander has a special place in our community so long as the Treaty of Waitangi stands in its present form”.

On the effect of the Treaty of Waitangi Act

The Tribunal considered the general judicial view that rights purporting to be conferred by the Treaty of Waitangi cannot be enforced in the Courts except insofar as they have been incorporated in the municipal law.

It then considered that the enactment of the Treaty of Waitangi Act 1975 gave the Treaty a new status.

“From being ‘a simply nullity' the Treaty of Waitangi has become a document of importance approaching the status of a constitutional instrument so far as Maoris are concerned. It is not truly a constitutional instrument because conflict between an Act of Parliament or Regulation and the Treaty does not render the statute null and void. But it does expose the Crown to the risk of a claim that the statute in question is in conflict with the Treaty and to that extent it would seem prudent for those responsible for legislation to recognise the danger inherent in drafting statutes or regulations without measuring such instruments against the principles in the Treaty.

This leads us to the conclusion that there is ample room for the view that the Treaty of Waitangi is no longer to be regarded as ‘a simply nullity’, that it is now part of an Act of Parliament, that it is in the nature of a statutory instrument and not something to be taken lightly by those responsible for introducing new legislation or enforcing legislation that already exists.”

The Tribunal went on to consider that a “policy of the Crown” includes the continuation of pre 1975 legislation.

On the legal status of the Treaty

The Tribunal considered a lengthy submission from P G McHugh a Fellow of Sidney Sussex College Cambridge. He argued that the principles of the Treaty are directly enforceable in the New Zealand Courts as a matter of colonial law.

He challenged the approach taken in the New Zealand Courts “as being based on a concept of international law when they ought to have been based on established principles of colonial law”. The Tribunal commented: “Tempting though it may be to reach a final conclusion on Mr McHugh's interesting

argument, we do not propose to make any ruling on the matter. Our statutory authority is to make a finding as to whether any action of the Crown, or any statute or Order in Council is inconsistent with the principles of the Treaty. This wide power enables us to look beyond strict legalities so that we can in a proper case, identify where the spirit of the Treaty is not being given due recognition”.

On legislation contrary to the Treaty of Waitangi

The Tribunal considered: “The Water and Soil Conservation Act 1967 and related legislation does not contain any provision to enable Regional Water Boards or the Planning Tribunal to take into account Maori spiritual and cultural values. By contrast, the Town and Country Planning Act 1977 does make such provision in s3(l)(g). This gap in the Water and Soil legislation puts Maori objectors at a disadvantage and does not reflect the principle contained in Article II of the Treaty of Waitangi by which the Crown guaranteed to Maori New Zealanders (“... to the Chiefs and Tribes of New Zealand, and to the respective families and individuals thereof ...”) the full exclusive and undisturbed possession of their Fisheries and other properties”.

It was recommended: “That the Water and Soil Conservation Act 1967 and related legislation be amended to enable Regional Water Boards and the Planning Tribunal properly to take into account Maori spiritual and cultural values when considering applications for grant of water rights, the renewal thereof or objections to such applications”.

On whether the Tribunal members were disqualified from hearing the claim

In the course of hearing the Tribunal delivered a decision declining a motion that certain members disqualify themselves from sitting on the ground of a prior involvement with certain of the claimants in other commercial and legal proposals. It was considered that the involvement would not have led to predetermined view or bias.

H K Hingston for the Maori claimants. L H Moore for Rotorua District Council. T G Richardson for Bay of Plenty Catchment Commission and Regional Water Board, A Munro, B Curtis, B Rankin and N R Watson for Ministry of Works and Development, C N Northover for Commission for the Environment, H A Gadjadhar for Director General of Agriculture and Fisheries, J Walker for Secretary for Maori Affairs, C J Richmond for Conservator of Wildlife, A Miller for Director General of Health, E J Sherring for Tauranga County Council, G R Fish for Guardians of the Rotorua Lakes.