A promise remembered by petitioners appears in no official minute. Two men were fined £1 each for defending their fisheries. By 1919, at least 6,700 acres of Māori-owned riverside land had been taken for scenery preservation. The record holds more than the main essay could include, and each section can be read on its own.

The fishery and the steamers

In the 1880s, more than 350 eel weirs and 92 lamprey weirs stood along the Whanganui. These were fixed fishing structures built in the river, rather than portable traps. Many had names and histories of their own. Some were maintained jointly by two or three hapū.

The government saw the river as a possible commercial route inland. Native Minister John Ballance discussed steam navigation with Whanganui Māori in January 1885. They expressed support for a service, and some expected Māori committees to help decide what works would take place along their sections of the river. Ballance's official address granted the committees no such power. The Crown began clearing rapids later that year. The 2014 settlement deed says the legal authority for those initial works remains unclear.

By March 1886 crews had cleared 31 rapids. The district engineer reported in 1891 that most of the traditional fishing weirs had been destroyed, though Māori communities had rebuilt some. The rapids themselves had names and were associated with tribal guardians. Navigating past them had become the government's priority.

Primary record: 2014 settlement deed, historical account, clauses 2.38–2.46. See also Te Ara's account of eel fishing below.

Petitions, promises and fines

A promise absent from the minutes. Pauro Tutaawha and 66 others petitioned Parliament in 1887. They said the steamers were damaging their fisheries and recalled Ballance promising the boats would travel no farther than Rānana. The official minutes contain no such assurance, leaving the recollection unconfirmed. The following year, Werahiko Aterea and 162 others asked for the river-deepening work to stop, saying they had never agreed to it.

At Koriniti in 1889, Whanganui Māori asked for protection of their weirs while accepting that steamers could use the river. Parliament established the Wanganui River Trust in 1891. Section 11 of its founding Act said Treaty rights would remain unaffected, yet the board had no Māori representatives. An amendment in 1893 empowered it to remove stones even where title to adjoining land had never been investigated. Te Keepa and 59 others petitioned against the change.

The £1 fines. Two defendants accused of obstructing work at the Matahiwi rapid in 1894 said they were defending their fisheries. The magistrate accepted that the works interfered with their weirs, but declined to determine the Treaty issue they raised. He convicted both men and fined them £1 each. In another case that year, he told three defendants to “submit to European law” to establish their fishing rights.

The women's petition. Mereaina Rauangina and 151 other Whanganui women petitioned against the removal of stones in 1895. A later letter described fishing places that had dried up and erosion threatening homes and cultivated land. Premier Richard Seddon met iwi that year and negotiated the removal of a weir at Kauaeroa. The Crown subsequently acknowledged that the navigation works contributed to the decline of customary fishing and the loss of associated mātauranga, or knowledge.

Primary record: 2014 settlement deed, especially clauses 2.40–2.56.

Who could hear a river claim?

“I lay far more stress on our river rights than on these scenic lands.”

Hakiaha Tawhiao told a government commission this in 1916. The commission was investigating the acquisition of riverside land for scenic preservation, and 34 Māori witnesses appeared before it. Tawhiao spoke about the damaged weirs and what businesses had gained from the river. The commission could hear evidence about acquired land. River rights fell outside its terms of reference. Most of its recommendations concerning Māori riverside land were allowed to lapse.

The limits of jurisdiction had surfaced much earlier. In 1871, when Whanganui iwi applied for title to the riverbed beside land at Pūtiki, the Native Land Court said it could not investigate below the high-water mark. Section 14 of the Coal-mines Act Amendment Act 1903 subsequently declared navigable riverbeds vested in the Crown. There had been no consultation with Whanganui iwi.

By 1919 the Crown had acquired at least 6,700 acres of Māori-owned riverside land for scenery preservation. Piki Kotuku and 125 others petitioned in 1927 for £300,000 in compensation for lost river rights and livelihoods. The government referred the petition to the Native Land Court in 1930. Seven years later, the inquiry was still unfinished, and Titi Tihu and others applied to investigate customary ownership of the riverbed.

Primary record: 2014 settlement deed, clauses 2.38 and 2.65–2.72.

Titi Tihu's waiata

At the beginning of the 1938 riverbed claim, Titi Tihu composed Tēnei Ka Noho. The song begins with its speaker seated in the doorway of his house, listening to the wind. His thoughts turn to the rippling waters of Whanganui and the responsibility of speaking for his people before the Crown. The 2014 deed of settlement preserves the original Māori text and an English translation for readers who want to encounter the waiata in its documented setting.

The middle line in court

The Native Land Court recognised Whanganui iwi's customary ownership of the riverbed in 1939. That finding survived one appeal, yet the 24-year case ended against the claimants. The decisions followed this sequence:

Year Decision or development
1938–39 The riverbed claim began. The Native Land Court recognised customary ownership at 1840 and found that fisheries had been destroyed without remedy.
1944 The Native Appellate Court upheld the ruling.
1949–50 The Supreme Court held that the 1903 Act had vested the bed in the Crown. A royal commission subsequently recognised the strength of the customary claim but recommended compensation for gravel extraction, rather than the lost fisheries.
1951–53 Parliament authorised further inquiry in 1951, and the matter reached the Court of Appeal in 1953.
1955 A Court of Appeal majority held that Māori had been customary owners of the river in 1840. A further question about titles to riverside land was referred for examination.
1958 The Māori Appellate Court found no evidence in the earlier proceedings of a separate overarching tribal title to the bed. It had not heard the earlier petitions and protests as evidence of the claim to river authority.
1962 The Court of Appeal held that customary riverbed ownership had been extinguished when the Native Land Court granted adjoining land titles. An appeal to the Privy Council was not pursued because of cost and uncertain prospects, and the Crown declined to provide redress.

The legal presumption at the centre of the case was ad medium filum aquae. Under this English common-law rule, title to land beside a river may extend to the midpoint of its bed. The grant of adjoining land titles was therefore treated as affecting ownership of the bed beneath the water.

Water and power

The Wanganui River Trust was abolished in 1940, but government control of river works continued. The Crown authorised the proposed Tongariro diversion in 1958, while the riverbed case was still before the courts. Whanganui iwi received no consultation or notice.

Date Event or finding
1965–74 The Ministry of Works estimated that 945,000 cubic yards of gravel had been removed near Taumarunui over this period.
1968 Hikaia Amohia questioned the lack of consultation at a public meeting in Taumarunui. The chairman ruled him out of order.
1971 Water began to be diverted from the upper Whanganui catchment. Parts of the Whakapapa River ran dry.
1973 A minimum-flow requirement was introduced for the Whakapapa River, partly after lobbying by acclimatisation societies.
1975 River-maintenance responsibility passed to the Rangitikei-Wanganui Catchment Board.
1975–77 Around 84 per cent of the headwaters' mean flow was diverted during this period.
1977–83 Whanganui iwi petitioned Queen Elizabeth II in 1977 to remove Crown title to the riverbed. The petition was declined in 1983.
1983–88 Tihu sought compensation for gravel extraction in 1983. In 1986 iwi agreed in principle to a national park after assurance the riverbed would be excluded. Tihu died in 1988, before a further hearing on minimum flows.
1990–92 An 84-day Planning Tribunal hearing resulted in minimum flows lower than those sought by iwi. Amohia testified that interference with the flow meant interference with nature itself. The High Court upheld the outcome in 1992.
1973–92, measured Mean flow at Te Maire, 58 kilometres downstream, fell by 26 per cent over the measured period.

The percentages describe historical measurements, rather than the river's present flow. The 2014 deed estimated that diverted water contributed about 5 per cent of New Zealand's electricity, including generation farther downstream. The Crown acknowledged that its failure to consult over the scheme breached the Treaty and that the diversion adversely affected the iwi's cultural and spiritual values.

The principal consents authorising the Tongariro diversion are due to expire on 1 December 2039. The regional council's consent information is linked below.

Primary record: 2014 deed, especially clauses 2.59–2.63 and 2.81–2.98.

What the settlement established

Date Development
14 October 1990 Hikaia Amohia and the Whanganui River Māori Trust Board lodged Wai 167, the Waitangi Tribunal's reference for the river claim.
1994–99 The Waitangi Tribunal heard the claim in 1994 and reported in 1999. It found that Whanganui iwi had held rangatiratanga over the river and had never sold those interests, and that the Crown had breached Treaty principles.
2001–11 Litigation over the Tongariro diversion ran through several courts from 2001 to 2010. The March 2011 agreement with Genesis Energy ended the litigation, with the continuing diversion still disputed.
2002–09 Treaty negotiations began in 2002, ended without agreement in 2004 and resumed in 2009.
2011–12 The parties reached a Record of Understanding in October 2011 and agreed the key Te Awa Tupua settlement principles in August 2012.
5 August 2014 The settlement deed was signed at Ruakā Marae in Rānana, after 95.9 per cent of valid votes cast supported ratification.
March 2017 More than 200 iwi descendants attended the bill's third reading and sang after the vote. The Act received royal assent on 20 March.
2019 The collaborative strategy group Te Kōpuka first met.
2023 Te Kōpuka released a draft river strategy, Te Heke Ngahuru, for public consultation.

The riverbed and the water. Section 46 of the 2017 Act says that Te Pou Tupua's consent is not automatically required for taking or diverting water. Vesting the Crown-owned riverbed in Te Awa Tupua does not give it ownership of the water flowing over it. A consent authority may, however, determine that Te Pou Tupua is an affected person in a resource-consent application relating to water.

Duties and redress. Sections 11 and 15 prescribe how relevant decision-makers must take account of Te Awa Tupua's status and intrinsic values, with the strength of the duty depending on their statutory functions. The settlement included NZ$80 million in financial redress and NZ$1 million for establishing the framework. A separate NZ$30 million fund was provided for the river's health, alongside the Crown's apology. Section 37 sets out decision-making duties concerning Te Heke Ngahuru when the strategy is applicable, following the Act's approval and notification process.

The weirs return. The settlement allows Whanganui iwi to construct and use customary eel and lamprey weirs again, subject to agreed protocols, processes and criteria. It provides a legal route for their return; the provision alone does not establish that any have yet been rebuilt.

Sources and further reading

Return to Dividing the River