PLAN DE PREVENCIÓN Y MITIGACIÓN DE IMPACTOS

Water was central to colonisation. Along with land, the Crown needed water to facilitate settlement and promote land ‘improvement’ as the engine of economic development in the new colony. Such improvement involved draining wetlands and clearing native forest to convert the land to agriculture. In the eyes of the settlers, swamps were rank, unoccupied wastelands with fertile soils that were best drained and cultivated (Park, 2002). Forests stood in the way of progress (Brooking & Pawson, 2011) and by the early 1890s, were ‘fast disappearing before the settler’s axe’ (Registrar General's Office, 1893; see also Chapter 4). To effect this conversion of wetlands and forests to farmland, Parliament passed a chain of legislation (discussed below; see also Table 1) that gave the Crown and other institutions, such as local authorities, control over water. Under the law, these bodies could dam and divert rivers and streams, abstract water for irrigation and municipal water supply, and build extensive drainage and flood protection schemes. Specific rights in water were vested in the Crown.

There were two far-reaching effects of these laws for Māori. First, the environment was rapidly and extensively transformed (Brooking & Pawson, 2011; Roche, 1994). The area of land in pasture, for example, increased from 1.4 million hectares in 1880 to 5.9 million hectares in 1914 (Brooking & Pawson, 2011). In the course of this change, water resources on which Māori relied for survival and which were the basis of the tribal economy were

33 destroyed or damaged, or became difficult or impossible to access as land was alienated or harvesting restrictions were imposed. Second, the law enabled the Crown to gradually remove control over water from Māori, and vest it in itself, either directly or indirectly, through various creatures of statute, such as local authorities.

Statutes that vested power in local authorities

One of the earliest statutes to grant powers in water to local authorities appears to have been the Highways and Watercourses Diversion Act 1858 (Waitangi Tribunal, 1999; B. White, 1998). Under this Act, provincial councils could divert and dam rivers and streams, sell the beds of rivers and streams that were diverted, and build structures such as bridges and wharves on the beds and banks of waterways. Māori were not represented on councils, nor were they compensated when rivers and streams that they used and possessed as part of a wider tribal estate were modified or alienated (Waitangi Tribunal, 1999).

In 1876, councils were given wide powers under the Public Works Act to affect land and water for drainage purposes. Under this Act, any natural watercourse, except a navigable river, could be declared to be a public drain and under the control of the county council. Councils could take any land for drainage purposes, build new drains, widen, deepen or alter the course of any drain, and enter any land to take materials to build or repair a drain. These powers were later transferred to drainage boards under the Land Drainage Act 1893. Drainage Boards were deemed to be local authorities under the Act and, as such, were elected and governed by ratepayers. White (1998) argues that this

34 policy would have been prejudicial towards Māori, who by the early 1890s were significantly outnumbered by Pākehā8 _{and had been dispossessed of 83 percent}

of their lands.9 _{Few Māori paid rates (Ward, 1995), and those who did were}

clearly a minority who would have exercised little political influence, especially with severely diminished landholdings.

It would appear that drainage boards were autonomous and reasonably powerful organisations that operated with few constraints on their activities. To carry out their functions, boards could raise revenue through rates and loans, and contract out drainage works. Under the Land Drainage Act 1893, landowners had limited powers to object to the activities of drainage boards, and people who did not own or occupy land that was affected by drainage works appear to have had no powers at all. The Land Drainage Act of 1908 improved the situation for landowners, but not for others. White (1998) observes that Māori whose fisheries were damaged or destroyed by drainage works had no recourse under the drainage laws to seek legal remedy.

Fisheries were valuable because they were the mainstay of the Māori diet and economy. The Waitangi Tribunal discussed the importance of fish to Māori in the Muriwhenua Fishing Report (1988), and remarked that:

The products of an aquatic economy provided Māori with their only animal food apart from birds, dogs and rats ... fish were important to Māori ... not just for survival but for the economy that

8 _{The Pākehā population was estimated to be 650,433 in 1892, compared with 41,993 Māori}

(Registrar General's Office, 1893).

9 _{See Durie (1998, p. 119). In 1891, Māori owned 4,985,000 hectares of land, 17 percent of lands}

35 went with inter-tribal trade. No cash was involved ... but it was business all the same. (p. 7)

In that report, the Tribunal was referring to fish harvested from the sea, but freshwater fish were just as important. As the Tribunal noted in the Ngāi Tahu report (1991):

Kai ika and kai moana [sea fish and sea food] resources are inextricably linked with kai awa, kai manu, kai roto and kai rakau [food sourced from rivers, birds, lakes and forests]. The fabric of Ngai Tahu mahinga kai can only be fully produced by interweaving all sources of kai. (p. 842)

The detrimental effects of drainage laws on Māori fisheries have been documented by White (1998), Park (2002) and the Waitangi Tribunal (1991, 2006). The passage of the Hauraki Plains Act 1908, for example, effected the drainage of vast wetlands that once covered an area of approximately 36,400 hectares (Waitangi Tribunal, 2006). The Crown’s intention in passing the Act was to facilitate settlement (Title, Hauraki Plains Act 1908). Once drained, the wetlands could be converted to dairy farms and subdivided for sale to settlers (Waitangi Tribunal, 2006). The Crown also required Māori land, and set up a legislative framework to enable it to purchase and compulsorily acquire Māori land for drainage and settlement (Waitangi Tribunal, 2006; see also White, 1998, for a detailed analysis of early drainage laws). While there is little documented evidence of the effects that transforming the Hauraki Plains had on Māori (Waitangi Tribunal, 2006), it can be assumed, based on the extent of wetland loss alone, that the water resources that provided sustenance and an economic base for Māori would have been decimated. Of the original 36,400 hectares of wetlands that once covered the Hauraki Plains, just over 6,800

36 hectares remain.10 _{Claimants to the Waitangi Tribunal’s (2006) inquiry into the}

Hauraki district recounted the effects of this loss in their evidence, stating: we were deprived of our income due to the loss of our flax on the land, and could no longer harvest our natural resources like Eels, Patiki [flounder] etc ... the swamp and rivers were kete kai [food baskets] and spiritual places for our people. The drainage and improvement schemes took them away (pp. 1147–1148).

Along with drainage boards, river boards also had extensive powers over rivers, streams and other waterbodies. Established under various local Acts from 1868, and then national legislation from 1884 (Roche, 1994), river boards could take land without the agreement of the owner, divert, dam, or take water, and change the course of any stream or river, all under the auspices of flood protection. River boards also had the status of local authorities (Registrar General's Office, 1893) and were governed and elected by ratepayers. Like drainage boards, river boards could levy rates and raise loans to pay for flood protection works, and select the contractors who would build them. With the tribal land and economic base fast disappearing, Māori worked as contractors for river and drainage boards building stopbanks and digging drains to earn a living. One claimant to the Waitangi Tribunal’s (2006) Hauraki inquiry remarked that:

we never got to participate in the new wealth that was supposed to result from the [drainage] schemes. Because we had so little land left the drainage of the plains produced fewer benefits to us except as labourers. On the other hand we paid a high price in land and

10 _{This area comprises 255 hectares of saline wetlands and 6564 hectares of freshwater wetlands}

37 the loss of the rich traditional swamp and river resources (p. 1148).

Statutes that vested power in the Crown

Other laws vested rights in water directly in the Crown. Under the Coal-mines Act Amendment Act 1903, the beds of all navigable rivers, and the minerals in them, were deemed to be the ‘absolute property’ of the Crown (section 14(1)). In the same year, Parliament vested the sole right to use water in lakes and rivers to generate hydro-power in the Crown under the Water Power Act 1903 (section 2(1)). The Crown could then grant this right to a third party, such as a council or corporation. The rights of the Crown in water were expanded under the Water and Soil Conservation Act 1967 to include ‘the sole right to dam any river or stream, divert or take any natural water, or discharge natural water or waste into any natural water, or to use natural water’ (section 2(1)).

Planning laws

A suite of planning legislation vested the right to plan – the designing or controlling of urban or economic development ("Oxford English Dictionary," 2006) – in local authorities and government departments. The Town Planning Act 1926 and Town and Country Planning Act 1953 required local authorities to prepare town and regional planning schemes. Schemes under the 1926 Act were to deal with sewerage, drainage, sewage disposal, and water supply. These matters were expanded under the 1953 Act to include harbours and navigable waterways, and power generation. Neither Act made any provision for Māori or the Treaty of Waitangi. A summary of these laws is provided on the next page in Table 1Table 1: Laws (now repealed) that affected water.

38 Table 1: Laws (now repealed) that affected water

Law Effect

Highways and Watercourses Diversion

Act 1858 Enabled provincial councils to divert and dam rivers and streams, sell the beds of diverted rivers and streams and build structures on beds and banks of waterways.

Public Works Act 1876 Empowered county councils to declare

any (un-navigable) natural waterway a public drain and under its control, take land for drainage purposes, build drains, and widen, deepen or alter the course of any drain.

Land Drainage Act 1893 Established drainage boards, which were

deemed to be local authorities and were elected and governed by ratepayers

River Boards Act 1884 and earlier local legislation11

Established river boards, which could take land without the owner’s agreement, divert, dam or take water, and change the course of any stream or river for flood protection purposes.

Coal-mines Act Amendment Act 1903 Vested the beds of all navigable rivers and

the minerals in the beds in the Crown.

Water Power Act 1903 Vested in the Crown the sole right to use

water in lakes and rivers to generate hydro-power. The Crown could then grant this right to a third party.

Town Planning Act 1926 Required local authorities to prepare

town and regional planning schemes to deal with sewerage, drainage, sewage disposal and water supply.

Town and Country Planning Act 1953 Expanded the matters that local

authorities had to prepare schemes for to include harbours, navigable waterways and power generation.

Water and Soil Conservation Act 1967 Vested in the Crown the sole right to dam any river or stream, divert or take water, discharge water or waste into water, or otherwise use water.

39