John Key says nobody owns the water. One hundred and sixteen years ago Richard Seddon told Ngati Kahungungu despite gifting Wairarapa lakes to the Crown, they still owned the water and the fish. Two prime ministers, which one is right?

Do property rights fade like fabric in the sun?

Or do they remain as strong as a man's word?

The story of the struggle by Maori owners to try and hold on to their traditional -- and vital -- eeling grounds at Lake Wairarapa and Lake Onoke, immediately adjacent to the sea at Palliser Bay, has an inevitable sense of doom about it. And yet who is really the moral victor? The pakeha?

Separating Onoke from the sea was a stretch of shingle and sand known as the spit. When Maori sold land surrounding these lakes to European settlers in the 1800s, they only sold up to the foreshore, deliberately retaining their seabed because the lakes were rich with eels, which they traded as far north as Gisborne. Then in 1895 a huge earthquake uplifted more land, which the settlers claimed was theirs, but, since it came from the seabed, Ngati Kahungungu said was theirs.

For a while matters were calm, but as the road over from Wellington improved, more farmers arrived, putting pressure on available land. During wet weather, the sandspit caused Onoke to flood nearby pastures, and the new owners wanted the sandspit opened to drain Onoke. Of course Maori objected, because this put their eeling in jeopardy.

So the settlers formed the South Wairarapa River Board with the intention of opening the spit (obviously illegally, though not in their eyes). 

The Maori owners agreed to open the spit for two months a year, but the County Council unilaterally declared the spit "a public drain", which Cabinet approved, so it could be opened, and police would be present.

Piripi Te Maati, one of the leading Ngati Kahungungu owners, took the fight to the Supreme Court. The Court advised a Parliamentary Inquiry.

To cut a long story short (and the full story is in Roberta McIntyre's excellent book, The Canoes of Kupe) a drawn-out, tortuous legal fight ensued with Ngati Kahungungu finally threatening to go to the Privy Council, but was saved by the Native Affairs Select Committee which reported that the "Natives' proprietary rights had been interfered with".

In the midst of all this, the cobbled together River Board was able, via its friends in Parliament, to arrange "for the inclusion of a section (18) in the 1889 Public Works Acts Amendment Act giving it power to open the lake, in defiance of both the Treaty of Waitangi and the House Standing Orders, which stated that matters affecting Maori were to be translated into Maori." (The Canoes of Kupe)

When I read this story, I imagined how we would feel if, there being pressure on housing in Auckland with people immigrating both from overseas and other parts of New Zealand, these newcomers just came and set up house on the spreading lawns in leafy suburbs like Remuera, Herne Bay, or even the People's Republic of Grey Lynn.

And needing to get on with the business of business, they set up a stall or two, hawking their wares? Aah, but you say, there are laws to prevent such flagrant breaches of property rights. Yes, so there were more than a century ago, when these European farmer settlers, desperate to move their sheep onto verdant pastures, breached the agreement signed in 1840 (with help from their friends in Wellington) and became squatters.

I wonder if those who carp on about ending the Treaty grievance industry (or whatever they call it) would be so generous if it were their own private property being squatted on.

But I digress. Ngati Kahungungu celebrated by throwing a huge picnic at Pigeon Bush on 18 January 1896, after signing an agreement with the Crown (trusting the Crown after all these years!) at Papawai Marae (the Maori Parliament) which gifted the lakes to the Crown. The VIP guests were Richard Seddon, Minister for Native Affairs James Carroll, and Ngati Kahungungu leaders Hamuera Tamahau Mahupuku and Hoani Paraone Tunuiarangi.

Mahupuku was at pains to point out that the lakes were being given to the Crown, not sold. This was to restore mana. So it was like, you can try and cheat us out of our property, take it away by legal means, or by force, but in the end you didn't get the lakes from us. We won. But we are bigger than that. You can have the lakes.

And Richard Seddon said: "The Mana of the lake-deeps still vests in you; although the Pakehas have put (Pakeha) fish therein. The waters are still yours, and so are the fish."

Comments (17)

by Ian MacKay on October 10, 2012
Ian MacKay

The current PM will dismiss the "ownership" of water and fish as fanciful nonsense. He will say that he has other people who will dispute the claim. Simple.

by Brendon Mills on October 10, 2012
Brendon Mills

As a right wing libertarian you support private property rights. Which is fair enough. However, public access to our water ways for recreational purposes, as part of our great kiwi traditions needs to be defended, and the only way to do that is for our rivers and lakes to be in full public ownership. Iwi ownership is effectively private ownership, and will result in future generations not being able to enjoy a walk on the beach or a summers day picnic at the local swimming hole.

With all due respect, the kiwi birthright to enjoy our parks, reserves, lakes and rivers, well and truly trump any iwi property rights.

I dread the day when our rivers, lakes and National park fall into iwi ownership, and we have to pay through the nose to enjoy them.

by Rosina Hauiti on October 10, 2012
Rosina Hauiti

Ki ora Debs, thanks for the great article and for having the guts to write the Maori perspecive.Brendon and Ian, you still dont get it do you? You're blighted by your ignorance of history and Maori tikanga.Read the opening paragraph again "One hundred and sixteen years ago Richard Seddon told Ngati Kahungungu despite gifting Wairarapa lakes to the Crown, they still owned the water and the fish". Which part of that fact dont you understand?

by Andrew Geddis on October 11, 2012
Andrew Geddis

Rosina,

You are new to Pundit. Welcome. But do you think it is appropriate to storm straight into someone else's wharenui and start abusing the other guests?

Furthermore, I think you'll find that Ian is not saying Key is right to take this attitude. Instead, his point is that John Key's likely approach to this issue (based on his previous form) will be to wrongly dismiss it. So in your eagerness to spray verbal bullets, you are shooting one of the soldiers sympathetic to your cause in the back.

by Rosina Hauiti on October 11, 2012
Rosina Hauiti

Oh!! A very polite telling off.Arohamai, what was I thinking.I thought Pundit was a form of Marae, where others are permitted to express themselves in a safe environment. I meant no offense, but I find the exchanges here a wee bit eurocentric.  So when people like Deborah Coddington speak up about history from a Maori perspective, I'm gonna give her the thumbs up and send the others for a verbal skate. Are you for instance familiar with tikanga and history from our perspective? I dont think so.I may not have used the most convivial of terms to describe my disdain, but let's just say my comments were directed at the igorance of the mainstream populace of Maori history. Hei kona.

by Andrew Geddis on October 11, 2012
Andrew Geddis

Rosina,

You do acknowledge, however, that in your eagerness to condemn "the igorance of the mainstream populace of Maori history", you actually ended up abusing someone who agrees with your perspective? And that this probably isn't very productive? Good.

Now, a quick word on tikanga. Ours is that, while we welcome impassioned debate and strongly held views, we ask that commentators do not personalise their contributions or seek to demonise or denigrate those who they disagree with. While visiting this place, we'd ask you to respect that.

As for my familiarity with "tikanga and history from [your] perspective", google my wife's name: Jacinta Ruru.

by Deborah Coddington on October 11, 2012
Deborah Coddington

Brendon, if, for argument's sake, I am an avid butterfly collector, and a member of the Outdoor Recreational Butterfly Collectors Society, is it my "kiwi birthright" to enter your back or front garden without permission, without paying you, to collect butterflies?

Actually, I'm an avid gardener like thousands of New Zealanders, does that mean we should all be able to enter private gardens and stroll through private properties, enjoying our "kiwi birthright".

I admit, when I see people strolling through our vineyard, which happens frequently because it is very attractive, I go, WTF? But since reading the TOW CD on the Wairarapa claim I've stopped to think, well, whose land is it, really. (Actually, my husband's if we're talking lawyer talk, Andrew Geddis).

My point is, I think Maori property rights are ignored, just because they are historical, and yes, I've been guilty of it because of my ignorance. I'm not indulging in breast beating. So if they want to ban us from their private property, tough. But there is absolutely no evidence that every single beach, river, lake and mountain in New Zealand will be closed off to Pakeha New Zealanders, none at all, that's just scaremongering by the Muriel Newmans in her political column.

by Chris Webster on October 11, 2012
Chris Webster

Deborah. Your post adds more interesting dimensions to the water debate.

I do not think it reasonable to beat yourself up for a lack of knowledge. I am sure we are guilty or capable of not knowing everything and anything. That is why one of my favorite responses to people when they demand to know - who are you? To which I reply: I am no-one. I am nobody. It also takes the heat of the wind.

But I digress. Our mother's whakapapa is to a tribe where some 'mere males' have declared 'we (not sure who they are) but 'we own the water and always have done so - so there!'. Very helpful - like not.

Those same 'mere males' then insist to 'their people' (not sure who they are either) to not attend a government hui on shares-plus where information on how the government was interpreting what the Waitangi Tribunal was suggesting as an option in conjunction with the partial privatisation of certain energy / creating / power supplying SOE which had built constructed concrete things on different waterways. Whew!

Even to the Waitangi Tribunal the shares-plus option was new information. It is not afraid to say - give us more. In my view some of its and the government's analysis was weak - so I said so. 

And in ordering / requiring / telling (not asking) people not to attend the Hamilton Hui those 'mere males' exposed a true ignorance. They remain uninformed - as are a fair percentage of the populace.

But cutting off your nose to spite your face just does not work these days.   It does no harm to learn more - especially when you have an alternative view.

I have an alternative to what the 'ignorant' views of these 'mere males'.

It is this. I reject the 'we own the water' mantra perpetuated by a these 'mere males'.

This is neither a Pakeha or a Maori view  (noth of which I qualify membership and others). It is my informed view.

I am not threatened by holding such a view. It is my birth-right to have the right to think & express & communicate as I see fit. I understand the rights of property ownership & responsibility. I also understand & can see through the mantra of mob dictatorship and/or attempts at it.  I am not bound to 'tick-the-tribal opinion-box' because of whakapapa.

Neither do or will I capitulate or agree with any word that falls out of the mouths of these mere males. I am not bound by their decisions or opinions or declarations & I have no hesitation enunciating that position privately or publicly.

Wairarapa tangata have their history & legislative compass point and it is a pity and wrong they continue to fight for that birth-right to remain.

I (and I think many other New Zealanders) regret these hisotorical wrongs. The people of Poroti Springs - whose natural resources (water) was properly legislated for also last century - but today those birth-rights of access to and the protection of the resources - are being taken by a modern law and means. Is that a birth-right. To remove the property of one in order for another to benefit? 

The Waitangi Tribunal members thankfully do not close its ears or eyes. It listens & considers & when it is not sure it has enough it too asks questions of others & its members seek to be informed.

in August it released an interim an 296-report on national freshwater and geothermal claims. I would refer readers to page 24 where the tribunal has set out six separate examples which includes Poroti Springs and which parallel that of Wairarapa.

The Tribunal notes: 'all of these accounts were sourced in korereo of traditional relationships with the water bodies concerned and all informed us of the nature and extent of the rights claimed by Maori in respect of those water bodies'.

I think the representatives referred to in those 6 examples (who talk about their separate hapu & whanau history) are also describing their birth-rights - ones that had been guaranteed by a treaty between their ancestors and the crown / government of last century.

But today those same birth-rights are foundering and are threatened due to modern-day demands & new legislation and ignorance.

Many of the laws and regulations sanctioned by last century's parliaments remain as domestic law.

Sadly little of the laws and regulations which confirmed the birth-rights of hapu and whanau -in relation to their natural resources- have been gradually watered down where they are now meaningless or have been repealed. 

 I too have yet to meet any Maori landowner who has closed their riparian access or their hunting trails or their lands when people ask for permission to cross to get to the other side.

Our land - our whenua - sits on the edge of west coast harbour - we hold ripairan rights -- just like the recently arrived Pakeha neighbors (of 6 years) next door. BUT first week they put a gate in with padlocks up and signs - no trespassing. Keep out.

Our family have been resident there for 5 generations. We have our own urupa on the land.  We do not keep people out or say no to people who ask for access to the land or the hills or the trails or to the harbour.

And we kinda like the debates about serious stuff like this: it is too important not to be informed. .

by Tim Watkin on October 11, 2012
Tim Watkin

@ Rosina. Welcome. And what Andrew said.

Deborah, I think your question is one of the key ones to keep asking when discussing our race relations. Since I was a teenager I've been asking pakeha friends and relatives who want to dismiss the Treaty and the older law that stems from it: 'What if Indonesians/Chinese/Americans turned up and started using unused (but not un-owned) land? Or took your property? Would you and your kids take that lying down? I'd be a bit disappointed if my grandkids weren't still fighting our corner.

It's the most potent argument to ask people to imagine what they'd do/feel if they were the people they're condemning.

On the other hand, I have some respect for what Brendon says (until his last line). We have vast amounts of public land and waterways and it's important that we at least have ramblers rights or some Queen's chain-like arrangement so everyone can enjoy them. We have to have a broader, honest national discussion about individual's vs citizen's property rights.

by Chris de Lisle on October 12, 2012
Chris de Lisle

I think it is interesting that the argument against Maori ownership of lakes, foreshores, seabeds, bush, and resources so often turns on the threat that such ownership would pose to Pakeha traditions like picnicking. 

If we Pakeha have some kind of right to use these properties based on our customary practices, how can anyone claim that Maori don't?

by Deborah Coddington on October 12, 2012
Deborah Coddington

Oh well said, Chris. You put is so much more succinctly than I did. I might pinch that line in future.

Tim, I disagree with you about "ramblers' rights". What are they, exactly, when it comes to private land? I understand what they are vis a vis public land. But are you saying that the public should be able to cross private land, citing "ramblers' rights", to get to public land, or the Queen's chain? Then we get all sorts of issues like Health & Safety issues, for instance, in vineyards during vintage, shotguns being fired constantly. Admittedly it's only birdshot, but it could still do considerable damage to someone's complexion or nervous system.

Also, I find people will leave blimming gates open when they go through them, instead of shutting them behind them. So why should I have to have ugly signs everywhere for these dumb idiots who demand the right to ramble through then the right to leave the gate open so stock can ramble behind them and destroy the vines?

The short answer is, if they ask permission, it will never be refused.

by Brendon Mills on October 12, 2012
Brendon Mills

Deborah,

What is your position on the public ownership of National and Forest parks and over conservation and reserve land (inc. lakes)? Do yout think they should be handed over to iwi holus bolus?

I have no interest in traipzing over private land, and even less interest in walking into your vineyard (how boring!), what I am concerned about is the transfer of reserve land into private ownership, and the loss of public access as a result.

by NiuZila on October 12, 2012
NiuZila

Brendon, perhaps the Crown should not have stolen land "holus bolus" from iwi to begin with?

As with the analogies by many already stated above, if some one came in a claimed by back yard unilaterally, I would want it back... even if that someone turned it into a reserve or a national park, doesn't take away that fact that it's still my back yard.

by Brendon Mills on October 12, 2012
Brendon Mills

So NiuZila you are willing to give up access to our national parks then?

A lot of countries would walk over broken glass to have national parks and reserves like ours, complete with free entrie, from the commentary here, it seems that people are willing to throw those blessings away, to a new tribal owners who would put up the keep out signs.

by Chris de Lisle on October 13, 2012
Chris de Lisle

If what we are enjoying is stolen property, then the world-class degree to which we enjoy it is irrelevant.

Why do you think that there will be keep out signs?

by Brendon Mills on October 13, 2012
Brendon Mills

Mt Tawarewa, Port Nicholson, etc..

by Deborah Coddington on October 13, 2012
Deborah Coddington

Brendon I think you're throwing up a straw man. I've never mentioned national parks, or public reserves being privatised.

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