LAKE HOROWHENUA

URL: http://www.waitangitribunal.govt.nz/doclibrary/public/researchwhanui/theme/q/white/Chapt03.pdf

Chapter 3 of the Waitangi Tribunal publication The White Report; Inland Waterways: Lakes - by Ben White March 1988

This 23 page chapterfrom the report covers:

1. Introduction
2. Muaupoko and lake Horowhenua
3. Background to the Lands Surrounding Lake Horowhenua
4. Moves to make Horowhenua a Public Reserve
5. The Horowhenua Lake Act 1905
6. Conflict over Fishing in the Lake
7. Reserves and Other Lands Disposal and Public Bodies Empowering Acts 1916 and 1917
8. The Lowering of Lake Horowhenua
9. 1934 Committee of Inquiry
10. Attempts at a Resolution
11. Reserves and Other Lands Disposal Act 1956
12. A Contemporary View of the Legal Ownership of Horowhenua
13. Conclusion

CHAPTER 3
LAKE HOROWHENUA
3.1 Introduction
Lake Horowhenua lies on a sand plain near present-day Levin in the centre of Muaupoko’s rohe. The lake covers an area of approximately 390 hectares, and is at no point much deeper than a couple of metres. It is fed by various small streams, springs, and associated swamps. Hokio Stream drains the lake. Once surrounded by podocarp forest, the lake was by all accounts a thing of wondrous beauty.

1 Today, however, with the forest gone and the lake significantly lowered, Lake
Horowhenua is situated in a somewhat forlorn rural landscape – its permanently
muddied waters testament to the radically altered ecology of the area.
Unlike many other lakes in the North Island of New Zealand, Horowhenua has
always been in Maori ownership. However, at various times confusion has existed
as to the legal status of the lake. This confusion appears to have resulted from some
rather haphazard, incremental legislation, and the predilection of various
Government officials to try and limit the rights of Maori. In that no serious attempt
has been made by the Crown to extinguish the rights of Maori to the bed of
Horowhenua, and that its ownership by Muaupoko has been confirmed by
legislation, the case of Lake Horowhenua represents something of an aberration in
the history of the ownership and control of New Zealand’s lakes.
This chapter begins with a summary of Muaupoko’s use and occupation of Lake
Horowhenua. From the limited secondary sources available to the present author
pertaining to the use of the lake, some tentative conclusions about the nature and
extent of Muaupoko’s rights are made. After a cursory look at the history of the
lands surrounding Lake Horowhenua up until 1895, a detailed history of the
ownership and management of the lake is presented. This section examines how the
lake came to be first a recreational reserve and later a public domain; conflicts
between the lake’s Muaupoko owners and the Crown and various local authorities;
and how these conflicts were resolved.2
1. G Leslie Adkin, Horowhenua: Its Maori Place Names and their Topographic and Historical Background,
Wellington, Department of Internal Affairs, 1948, p 18; James Cowan, ‘Report on Horowhenua Lake to
Department of Tourist and Health Resorts’, AJHR, 1908, h-2a, p 1
2. This chapter draws primarily on the history of Lake Horowhenua written by Keith Pickens contained in
Robyn Anderson and Keith Pickens, Wellington District: Port Nicholson, Hutt Valley, Porirua, Rangitikei
and Manawatu, Waitangi Tribunal Rangahaua Whanui Series (working paper: first release), August 1996.
Virtually no primary research was undertaken by the present author.
3.2 Inland Waterways: Lakes
64
3.2 Muaupoko and Lake Horowhenua
For several centuries the lakes of Horowhenua and Papaitonga have been the centre
of Muaupoko settlement in the Horowhenua. Muaupoko whakapapa to three main
groups: the people of the Kurahaupo waka, who migrated to the west coast from
Mahia; descendants of the Aotea waka resident in south Taranaki; and the people
resident in the Horowhenua prior to Muaupoko (described by Adkin – a scholar of
the topography and archaeology of the Horowhenua – as being Ngati Mamoe).3 In
the early nineteenth century, Muaupoko suffered serious defeats at the hands of
groups migrating from the north, principally Ngati Toa under the leadership of Te
Rauparaha and Te Rangihaeata. However, after being vanquished by war parties
from the north, Muaupoko were reinstated by their victors on a strip of land centred
around Lake Horowhenua.4 These lands were shared with members of both Ngati
Apa and Ngati Raukawa.
Fishing appears to have always been a crucial aspect of the Muaupoko economy.
The lake supported eel, flounder, whitebait and kakahi fisheries. Adkin observes
that as well as supplying a large local population, the fisheries were capable of
‘exciting the dangerous envy not only of neighbouring tribes but also of those
occupying territory far distant’.5
Eel fishing was a major activity throughout the Horowhenua district. Evidence
presented to the Native Land Court in the course of its 1873 inquiry into the
ownership of the Horowhenua block, shows that Muaupoko caught eels in lakes
and streams throughout the district. Eels were also introduced to waterways where
they did not naturally occur.6 In this inquiry, the exercise of eel fishing rights was
clearly a major determinant of the customary tenure of the land.
But of all the eel fisheries in the district, those of Lake Horowhenua and its
associated waterways, appear to have been the most significant. Adkin records that
eels were caught in such large numbers that there were often more than could be
consumed immediately. The surplus was either dried or kept alive in artificial
ponds.7
Eels were caught in the lake by the use of rau matangi. Adkin describes these as
being a series of fences that channelled eels into a hinaki. He contends that ‘the raumatangi
type of weir could be operated at pleasure by anyone so desiring’, and that
they appear not to have had names bestowed upon them.8
Most eels, however, were not caught in the lake itself, but in Hokio Stream.
Adkin states that from ‘time immemorial the pa-tuna (eel weirs) of the Hokio
Stream have been famed for their productivity . . . forming an important part of the
food-supply of the Mua-upoko people’.9 Unlike the rau matangi of the lake, the pa
3. Anderson and Pickens, p 5; Adkin, pp 124–125
4. Ibid, p 127
5. Ibid, p 18
6. Otaki Native Land Court minute book 2, 29–31 March 1873, fol 5–24 (mention of eel husbandry was
made by Humia Riwana Te Hakeke at folio 6)
7. Adkin, pp 18, 19
8. Ibid, p 20
9. Ibid, p 20
Lake Horowhenua 3.2
65
tuna of Hokio Stream ‘were jealously guarded family or individual property’.10 At
the outlet of the lake, the stream was divided into three channels. At this point there
was a post called Pou-Te-Mou, named after the ancestor who placed it there. This
pou was held to possess the power to cause the seaward running eels to divide in
equal numbers between the channels. From this point to the coast (a distance of five
kilometres), Adkin details the location and names of 24 eel weirs. Only a handful
of these weirs were still in use at the time that he was writing in the 1940s. He
claims that the:
extensive series of pa-tuna on a stream of short length such as the Hokio, is an
impressive indication of the magnitude of the old-time eel-supply of Lake
Horowhenua. The inanga also, in season, furnished food for this then populous
locality and at the appropriate periods when tuna and inanga were running seaward
to breed, these now almost-disused weirs were the scene of industrious and joyful
activity.11
James Cowan, in a report to the Government on Lake Horowhenua in 1903, refers
to Maori catching kakahi with a type of dredge known as a ‘rou-kakahi’. At the
time he made his investigations, fishing was still an important aspect of the local
Maori economy. In addition to fishing, he records that Maori shot and snared
waterfowl on the lake.12
As well as being an important source of food, Horowhenua also had a strategic
significance to Muaupoko. By the early nineteenth century, significant changes had
occurred in tribal dynamics in the lower North Island. Perhaps most important were
the successive waves of northern taua and heke that passed through the
Horowhenua – especially those led by Te Rauparaha. In the face of uncertain
relations with these northern iwi, Muaupoko built several artificial islands in
Horowhenua upon which fortified pa were situated. Adkin describes seven such
artificial island pa: Mangaroa, Karapu, Namu-iti, Wai-kiekie, Roha-a-te-kawau,
Waipata and Puke-iti. The biggest of the pa appear to have been up to a quarter of
an acre in area. Of the pa, Adkin considers Managaroa to be the oldest, possibly
predating the invasions of the northern iwi. The islands were constructed by logs
being laid in the water. The interstices between the logs were then filled with an
amalgam of earth, rock, shells and vegetation. Many of the pa relied on marginal
swamps as moat-like defences. Wooden stakes were often placed in the waters
surrounding the island pa to repel attackers. By the 1940s when Adkin was writing,
the pa had all but disappeared: the organic matter with which they were constructed
having decomposed causing the islands to subside into the lake.13
In his treatise on the Kapiti district, Carkeek describes the passage of the 1819 to
1820 Nga Puhi–Ngati Toa taua through the Horowhenua. On this occasion a battle
was fought at the island pa of Wai-kiekie.14 Cowan states that despite Muaupoko
10. Ibid, pp 19–20
11. Ibid, pp 21–23
12. Cowan, p 2
13. Adkin, pp 32–35
3.2 Inland Waterways: Lakes
66
taking refuge in their island pa, Ngati Toa inflicted great carnage upon them. He
recounts in his typically populist style, ‘that as the old Maoris describe it, the waters
were red with blood, and the seagulls came in from the coast to feast on what Ngati
Toa left’.15
Historically the lake was frequently navigated by canoe. Adkin describes 21
named canoe landing sites. Mostly these were located either at the heads of small
inlets (where relatively firmer ground ran down to the lake), and at points where
cultivations abutted the lake.16 Cowan reported that at the time of his investigations,
there were still several canoes in use on the lake. Amongst these was an old war
canoe capable of carrying between 50 and 60 people.17
Another interesting phenomenon recorded by Adkin in connection with
Horowhenua was the discovery of large numbers of artefacts in the lake bed. He
postulates that there were ‘a number of undoubted instances in which single objects
or hoards were deliberately buried in the mud of the island margins’. These, he
contended, were of the Muaupoko phase of occupation; whereas many of the other
objects found were thought to belong to the pre-Muaupoko occupants of the
Horowhenua. Most of the relics were wooden, but some made of bone and stone
have been found. The artefacts recovered include ko, spears, paddles, adze handles,
clubs, pounders, burial chests, god sticks, fish hooks, spinning tops, net floats,
pumice bowls, and stone patu.18
From Adkin’s descriptions of Horowhenua, a clear picture emerges of extensive
use having been made of the lake by Muaupoko – even to the extent of having
literally ‘occupied’ it. The evidence available to the present author (namely that of
Adkin and Cowan) is of a very general nature, and by and large, is insufficient to
support many conclusions as to the precise nature of Muaupoko’s rights in the lake.
However, Adkin’s assertion that any person was free to establish eel weirs in the
lake is an important point. Whether this meant Pakeha were free to establish eel
weirs in the lake is doubtful: presumably he meant any member of Muaupoko.
Whether it was only hapu of Muaupoko who occupied riparian lands that had rights
to fish in the lake, or hapu from the wider Horowhenua hinterland, remains unclear.
The existence of such non-exclusive fishing rights suggests a very different
situation to lakes such as Rotorua and Rotoiti. These lakes were divided into
sections in which particular hapu exercised exclusive fishing rights. Further, the
fishing grounds of the Rotorua lakes were named. It is possible that the existence of
non-exclusive fishing rights in Horowhenua reflected the fact that by comparison to
Hokio Stream, the lake was much less important as an eel fishery. The relatively
lesser importance of the actual lake fishery may also be the reason why the weirs in
the lake were not named.
14. W Carkeek, The Kapiti Coast: Maori History and Place Names, Wellington, A H & AW Reed, 1966,
pp 7–9
15. Cowan, p 1
16. Adkin, p 36
17. Cowan, p 2
18. Adkin, pp 35, 83–104
Lake Horowhenua 3.3
67
3.3 Background to the Lands Surrounding Lake Horowhenua
Subsequent to Ngati Raukawa’s invasion and settlement of the Horowhenua and
Manawatu, the Raukawa chief, Te Whatanui, allocated Muaupoko about 20,000
acres of land centred around Lake Horowhenua. In spite of this land being handed
back to Muaupoko, tensions between Ngati Raukawa and Muaupoko as to their
relative rights to Horowhenua lands persisted throughout the nineteenth century.
But in relation to these disputes, the Government took no action. Eventually the
dispute was taken to the Native Land Court in 1872. The case was heard the
following year.19
At the hearing, Ngati Raukawa conceded that Muaupoko had a right to the
20,000 acres granted to them by Te Whatanui but claimed the land to both the north
and south by virtue of conquest. Curiously though, the court awarded not just the
20,000 acres to Muaupoko, but also 30,000 acres of land to the north and south –
land which Ngati Raukawa had occupied since their arrival from the north. Ngati
Raukawa were awarded just 100 acres. The decision was inconsistent with the
Native Land Court’s 1872 decision as to the ownership of the nearby Kukutauaki
lands. In this decision Raukawa had received title as a consequence of their
conquest and subsequent occupation.20
In 1886, the Horowhenua block was subdivided into 14 blocks. The lake was
situated within the Horowhenua no 11 block – a block containing 15,000 acres that
extended from the lake to the sea, and where the majority of Muaupoko were
resident. The western boundary of Horowhenua no 2 also abutted the lake. In the
same year, Major Kemp (Kepa te Rangihiwinui) offered to sell Horowhenua no 2
to the Crown to enable a town to be established. Among the conditions upon which
he offered the land for sale was that a reserve of 100 acres abutting the lake be
established for the purpose of a public reserve. The Government declined the offer.
When block 2 was eventually sold to the Crown by Kemp in 1867, he appears not
to have insisted on any of the conditions previously agreed upon.21
In September 1896, pursuant to the Horowhenua Block Act 1896, the Native
Appellate Court determined the ownership of block 11. In doing so it reserved as a
fishing easement, the lake, the Hokio Stream, and a one chain strip running along
the north bank of the Hokio Stream and around the lake. The reserve was to be
vested in trustees for all members of Muaupoko found by the court to be owners of
block 11. The lake was formally vested in trustees as a fishing easement for the
owners of Horowhenua no 11 in October 1898. However, despite it being stated in
the 1896 partition order that it was similarly intended to vest the Hokio stream and
the one chain strip, it appears that this was not done.22
The decision to vest the lake in the owners of the Horowhenua no 11 block stands
out as something of an aberration in the context of the Crown’s attitudes to Maori
19. Alan Ward, National Overview, vol iii, Waitangi Tribunal Rangahaua Whanui Series, GP Publications,
1997, p 241
20. Anderson and Pickens, pp 213–214
21. ‘Report and evidence of the Horowhenua Commission’, AJHR, 1896, g-2, pp 5–6
22. Reserves and Other Lands Disposal Act 1956, s 18
3.4 Inland Waterways: Lakes
68
claims to lakes around this time. Elsewhere in New Zealand the Crown was tacitly
asserting its assumed rights as the owner of lakes, and appears to have been
increasingly eager to establish a legal basis for being the owner of all lakes. In the
case of the Wairarapa lakes, the Crown only admitted the lakes were Maori
property in the face of strenuous protest by Maori. It appears that no such claim was
asserted by the owners of Lake Horowhenua in the nineteenth century. Why this
was remains a mystery to the present author. When lakes are contained within a
single block – as was the case with the original Horowhenua appellation and the
later no 11 block – title to the lake resided with the owners of the block. So perhaps
the Crown thought that as it owned no land adjacent to the lake, it would have great
difficulty in establishing a claim to it. When the Crown tried to establish a claim to
a lake in the late nineteenth century, it was usually by virtue of owning riparian
lands and the rule of ad medium filum aquae, rather than by an assertion of a
prerogative right. Another possible reason why the Crown acknowledged the Maori
ownership of Horowhenua, rather than try and vest it in itself, was that the lake, in
being relatively small, was not considered to be of any particular use to the Crown.
Also at this time, pressure was not being exerted by Pakeha land owners in the
Horowhenua to drain wetlands. In fact evidence exists that farmers were in fact
preserving swamps in view of the economic value of flax.23 Had this not been the
case, the Government could have been under pressure to acquire rights in the lake
sufficient to enable it to drain the lake and its associated swamps. Another theory is
that in view of the lake’s importance to the pre-contact economy, Muaupoko would
be more inclined to cede their lands if they were guaranteed continued access to the
lake. But all this aside, it remains a peculiarity that the Crown, with apparent
alacrity, simply admitted the existence of a Maori title to the lake and established
what could have become an important precedent.
3.4 Moves to make Horowhenua a Public Reserve
With the establishment of Levin in the immediate vicinity of Lake Horowhenua,
local Pakeha began to consider it desirable to make the lake and its adjacent lands
a reserve for public use. In November 1897, John Stevens, member of the House of
Representatives for Manawatu, asked the Minister of Lands:
If he will, so soon as the title there to has been ascertained, acquire by purchase
from the Native owners the whole of the Horowhenua Lake, together with a suitable
area of land around its shores, for the purpose of a public park, reserving to the Native
owners and their descendants the right to their eel and other fisheries, and dedicate the
lake and land so to be acquired to the local body within whose boundaries they are
situate?
23. Geoff Park, Nga Uruora–The Groves of Life: Ecology and History in a New Zealand Landscape,
Wellington, Victoria University Press, 1995, p 178
Lake Horowhenua 3.4
69
He continued, informing the House that not only was the lake eminently suitable for
local recreation, but also as a site for regattas: there not being such a place so well
suited within two or three hundred miles of Wellington. He cautioned that if action
was not taken soon, similar difficulties may arise as were experienced in the case of
the Wairarapa lakes – difficulties that ‘had cost the Natives a great deal of trouble,
and had also cost the colony a great deal of money to get the matter settled’. The
Minister of Lands, John McKenzie, responded that the question had been
considered by the Government and that reports had been received advising it to
acquire the lake along with another not far from Horowhenua (presumably
Papaitonga). If Parliament was prepared to appropriate the necessary funds, he saw
no difficulty in the Crown acquiring the lake as proposed by Stevens.24
Pressure from the like of Stevens was presumably a factor in the decision of the
Department of Tourist and Health Resorts to commission James Cowan to prepare
a report on Lake Horowhenua. In his report to Parliament, Cowan described how at
the time of his investigations, public access to the lake was at the sufferance of
Maori who owned the land surrounding the lake. Although the local rowing club
leased land from Maori for the purpose of a boatshed, the club was unable to obtain
a formal lease.25
Cowan observed that although most of the native forest on the lake’s margin had
already been destroyed, there remained significant stands of forest on the eastern
and southeastern shores. All this forest was on Maori land; the owners of which
were selling the trees to a local saw miller. Cowan was of the opinion that what
forest remained should be carefully preserved. He also described how there were
still several Muaupoko and Ngati Apa settlements on the shores of the lake and
opined that the:
Native life, the canoeing, &c, should enhance the interest of the lake in the eyes of
visitors, and if care is taken to guarantee the Maori their rights of fishing &c., they
could, no doubt, be induced to co-operate with the Europeans in the preserving of the
attractive features of the place for all time.
In this regard, Cowan recalled Major Kemp’s proposal of 1886 that a 100 acre
public reserve be established between the lake and the township of Levin, which he
noted was unfortunately never given effect to. He cautioned that ‘the public are at
anytime liable to be denied the privilege even to access the Levin peoples’ boatshed
on the lake-side’.26
Cowan recommended that all remaining bush on the eastern and southeastern
shore of the lake be made a reserve, along with Pipiriki pa and the islands which
still existed in 1905. In relation to the islands he warned that because Maori were
cutting flax from them, they were in danger of eroding away. He advised that in
creating such a reserve, Maori ‘should be guaranteed their present rights of fishing
for eels, dredging with their rou-kakahi for the shellfish which abound on the
24. NZPD, 1897, vol 100, pp 143–144
25. Cowan, p 1
26. Ibid, pp 1–2
3.4 Inland Waterways: Lakes
70
bottom of the lake, and of snaring and shooting wild ducks’. Cowan reported that
he had spoken to the Muaupoko chief Te Rangimairehau, who had lamented the
disappearance of birds from the area due to deforestation. Thus the chief favoured
the forest being protected. However, it was Cowan’s view that the Ngati Apa who
resided on the lake shore would object to whatever Muaupoko did. Therefore,
rather than ‘arguing with two factions’, Cowan proposed that the best plan was to
create the reserve under the ‘new Act dealing with scenic reserves’, and ‘to explain
to the Maoris afterwards that their ancestral rights will not be intefered with beyond
forbidding them to destroy the bush or vegetation’.27
Keith Pickens records that subsequent to Cowan’s report, plans were set in
motion by the Tourist and Publicity Department for a reserve to be created. It was
proposed that the reserve would include about 150 acres of bush on the lake’s
southern and eastern shores and the islands in the lake, but not the lake itself. These
lands were to be acquired under the Scenery Preservation Act 1903.28 Although
unable to find any Native Department records pertaining to this proposal, Pickens
adduced evidence that the proposal was approved by cabinet.29 But before the
reserve could be proclaimed, plans had to be produced by the Department of Lands
and Survey. Delays in the preparation of these documents transpired; apparently
because the department was not prepared to give priority to the creation of scenic
reserves over work pertaining to land settlement.30
Around this time there was much lobbying both from Maori and politicians in
relation to Horowhenua. In 1903, Hoani Puihi and 31 others petitioned Parliament
praying that the present title of Lake Horowhenua remain undisturbed. In response,
the Native Affairs Committee made no recommendation.31 In the same year,
William Field, the Member of Parliament for Otaki. asked the Government when
they proposed ‘to proceed with the promised nationalisation of the Horowhenua
Lake and the dedication of the same as a public park?’ Field recounted how on a
recent visit to the district by the Premier, Seddon had been taken for a row on the
lake and had ‘expressed himself as [being] much struck with the beauty of this
splendid sheet of water and its surroundings’. And at a function that evening
Seddon had apparently said that steps would be taken to acquire the lake and to
make it a national park. Thomas Duncan, the Minister of Lands, responded that
legislation was to be introduced to the house to enable reserves to be created like
that which had been proposed for Horowhenua.32 Presumably Duncan was referring
to the Scenery Preservation Act that was passed later that year.
27. Ibid, pp 1–2
28. Acting Superintendent of Department of Tourism to Under-Secretary of Lands and Survey, 29 July 1904,
to 1 20/148; Acting Superintendent to Minister of Tourist and Health Resorts, 10 January 1905, to 1 20/
148, NA Wellington; ‘Scenery Preservation, Department of Lands’, AJHR, c-6, 1906, p 6, cited in
Anderson and Pickens, p 272
29. Acting Superintendent of Department of Tourism to Under-Secretary of Lands and Survey, 1 February
1905, to 1 20/148, NA Wellington, cited in Anderson and Pickens, p 272
30. Under-Secretary of Lands and Survey to Acting Superintendent of Department of Tourism, 22 August
1905, to 1 20/148, NA Wellington, cited in Anderson and Pickens, p 273
31. Petition no. 891/1903, AJHR, 1904, i-3, p 19
32. NZPD, 1903, vol 124, p 477
Lake Horowhenua 3.4
71
The following year Field again asked about Seddon’s promise that Horowhenua
would be made a national park. On this occasion he noted that when such a park
was created, the fishing and other rights of Maori would be preserved. In response
Seddon stated that until such time as the Government was empowered to
compulsorily acquire Native land for such purposes, the Government could not act.
He anticipated that Parliament would be asked to authorise such takings in the
present session.33 By 1905, when Field again asked the same question, the manner
in which the Government anticipated acquiring the land appears to have changed.
Rather than compulsorily acquiring it, Native Minister Carroll stated that the
concurrence of the lake’s Native owners had to be obtained before the lake could be
secured for public use. He said that this matter would be raised with the owners at
the next favourable opportunity, and that the bush on the land abutting the lake
would be brought to the attention of the Scenery Preservation Commissioners.34
In August 1905, the tenacious Field asked the Native Minister about when a
meeting would be arranged with the:
. . . Natives of Levin . . . with a view to securing to the public, subject to Native
Rights, the free use of Horowhenua Lake and the preservation of the fast-vanishing
bush scenery of the lake?35
Later in 1905, Seddon and Carroll met with various Muaupoko and a delegation of
local Pakeha. As well as Field’s agitation, Pickens contends that a possible catalyst
for the meeting could have been problems experienced by Pakeha attempting to
boat on the lake.36 The meeting was held in the Levin boating club’s boatshed
averted to in Cowan’s 1903 report to Parliament. The meeting resulted in an
agreement, the terms of which were as follows:
1. All native bush within the reserve to be preserved.
2. Nine acres adjoining the lake – where the boatsheds are and a nice titoki bush
standing – to be purchased as public ground.
3. The mouth of the lake to be opened when necessary, and a flood-gate
constructed, in order to regulate the supply of water in the lake.
4. All fishing rights to be conserved to the Native owners (lake not suitable for
trout).
5. No bottles, refuse, or pollutions to be thrown or caused to be discharged into the
lake.
6. No shooting to be allowed on the lake. The lake to be made a sanctuary for birds.
7. Beyond the above reservations, the full use and enjoyment of the waters of the
lake for aquatic sports and other pleasure disportments to be ceded absolutely to the
public, free of charge.
8. In regard to the preceding paragraph, the control and management of the lake to
be vested in a Board to be appointed by the Governor; some Maori representation
thereon to be recognised.
33. NZPD, 1904, vol 128, p 141
34. NZPD, 1905, vol 133, pp 551–552
35. NZPD, 1905, vol 134, p 62
36. Anderson and Pickens, p 263
3.5 Inland Waterways: Lakes
72
9. Subject to the foregoing, in all other respects the mana, rights and ownership of
the Natives to the Horowhenua lake reserve to be assured to them.37
No records of this meeting have been uncovered by the present author. Therefore it
remains unclear whether the terms were freely negotiated, or if they were imposed
upon Muaupoko by the Government. The comment in the agreement that the lake
was an unsuitable habitat for trout suggested that, had this not been the case,
Muaupoko’s fishing rights may not have been guaranteed to them. But as is detailed
below, by the next decade trout were present in the lake and conflict between
Pakeha and Maori anglers was apparent. The banning of bird shooting would, in
light of the importance of the lake as a source of game birds for Muaupoko, seem
to be either an expropriation or a cession of an important right.
3.5 The Horowhenua Lake Act 1905
The agreement reached between the Ministers and Muaupoko formed the basis of
the Horowhenua Lake Bill that was introduced to Parliament in 1905. When the
Bill was before the Legislative Council, John Rigg, the Member for Wellington,
remarked that the legislation ‘practically meant that the Natives of Muaupoko Tribe
were making a splendid and generous gift to this colony’. It was recorded that Rigg
stated he would have:
preferred that the Government had purchased the lake outright from the Natives and
make it a public reserve. The mana of the Natives – whatever that might mean – they
were told, was preserved. What is that mana worth when this Bill is passed and the
control of the lake handed over to a Board? Nothing. They have, of course, their
fishing rights in the lake, and under the Treaty of Waitangi those could not be taken
from them. He did not, of course, oppose the Bill, but he did marvel at the generosity
of the Natives in making such an arrangement for the benefit of the people of this
colony.38
Similarly, Thomas Kelly, the Member for Taranaki, expressed the view that the
generosity of the Maori owners should be acknowledged – ‘either by giving them a
grant of land or by monetary consideration’. The Attorney General, Albert Pitt,
responded that he was certain the Native Minister had already acknowledged the
generosity of the lake’s owners, but took it upon himself to represent the views of
Rigg and Kelly to cabinet. He himself was of the view that there ‘was no doubt the
Natives had acted handsomely and generously’.39
The Act was passed on 30 October 1905. The preamble stated that it was
‘expedient that the Horowhenua Lake should be made available as a place of resort
for His Majesty’s subjects of both races, in as far as it is possible to do so without
unduly interfering with the fishing and other rights of the Native owners’.40 Thus
37. NZPD, 1905, vol 135, p 1206
38. Ibid
39. Ibid
Lake Horowhenua 3.5
73
Lake Horowhenua, ‘containing nine hundred and fifty one acres, more or less’, was
declared to be a recreation reserve. Although the Act guaranteed that the ‘owners
shall at all times have the free and unrestricted use of the lake and of their fishing
rights over the lake’, the exercise of such rights was not ‘to interfere with the full
and free use of the lake for aquatic sports and pleasures’. 41 A clear tension is
evident between this clause and the preamble’s emphasis upon the public’s use
rights being constrained by the rights of the lake’s owners. As per the 1905
agreement, the Act also prohibited shooting or destroying any game on the lake or
reserve; established a board to manage the reserve (a third of whose members were
to be Maori appointed by the Governor); and empowered the Governor to acquire
ten acres of land adjacent to the lake for the purpose of building a boatshed or other
buildings.42 This last provision was a variation to the original agreement which had
stipulated nine acres. That it be ten rather than nine acres had been proposed by
Field during the Bill’s second reading in the House of Representatives.43 Although
a relatively small change, it appears to have been made without the consent of
Muaupoko.
Several matters covered by the agreement were not included in the Act: for
example, the provisions to preserve native bush on the one chain strip, the
construction of flood gates, banning the disposal of rubbish in the lake, and
acknowledging that rights and mana over the lake remained with the Muaupoko
owners. Pickens suggests that the first three of these provisions could have been
considered to ‘come under the control of the board, and so did not require specific
enumeration’.44 As for the acknowledgement of Maori rights and mana over the
lake, the situation is somewhat less clear. As noted above, when the Bill was before
the Legislative Council, Rigg had pointed out that this aspect of the agreement
would mean very little once the control of the lake was vested in the reserve
board.45 However, it is possible that the Government was keen to avoid the
inclusion of any terms in the Act that could be construed as being an overt
acknowledgement that either the bed or the waters of the lake were Maori property.
Rather they may have preferred to leave the question of ownership somewhat
ambiguous. In its final form, aside from reference to the lake’s ‘Native owners’ in
the preamble, the Horowhenua Lake Act was silent on the point of who owned the
lake subsequent to the creation of the reserve.
Tame Parata, the Member for Southern Maori, was clearly of the mind that under
the Horowhenua Lake Act, the ownership of the lake had passed from Maori to the
Crown. In 1906 he asked Carroll if the Government would repeal the legislation
‘which appropriates a valuable estate without the consent of the Native owners’.
Carroll responded that the matter would be looked into, but that it was not proposed
to interfere with the Act in anyway.46
40. Horowhenua Lake Act 1905, preamble
41. Ibid, s 2(a)
42. Ibid, ss 2–4
43. NZPD, 1905, vol 135, p 1134
44. Anderson and Pickens, p 274
45. NZPD, 1905, vol 135, p 1206
3.6 Inland Waterways: Lakes
74
Pickens details how during 1905, the Scenery Preservation Commissioners and
the Department of Tourist and Health Resorts had been working towards the
acquisition of 150 acres of lake-side land along with the lake’s islands. This was to
enable the preservation of the forest growing beside the lake, which in turn, would
enhance the area’s attractiveness to tourists. Under this scheme, compensation for
Maori would have been computed by the Native Land Court. Pickens speculates
that the Horowhenua Lake Act was an effort by the Native Department to prevent
the more ambitious Tourist and Health Resorts Department’s proposal going ahead;
a proposal that would have caused more disruption to the lake’s owners. After the
passage of the Act, the Tourist Department’s scheme appears to have been
abandoned.47
During the 1906 parliamentary session, Field asked whether the Lake
Horowhenua Act could be amended to enable the Crown to acquire a further 20
acres of land abutting the lake. Field claimed that this land was of no value, and that
its owners were anxious to sell it. Carroll responded that the Act would not be
amended because the Native Department opposed the proposal to acquire the
additional land. He stated that if the owners wanted to sell the land, they were free
to make an application to do so.48
3.6 Conflict over Fishing in the Lake
By 1911, conflict had emerged between Maori and Pakeha in connection with
fishing rights in Horowhenua. Pakeha apparently resented the fact that the right to
fish in the lake was confined to the lake’s Maori owners. Maori reportedly were
preventing Pakeha from fishing for trout, and were refusing to obtain licenses to do
the same.49 In January 1911, the Chronicle reported that:
If the present embargo against fishing the lake waters (which operates in the case
of all but men with Maori blood) were removed, a great deal would be done to attract
week-end visitors to our midst. Already Horowhenua Lake contains trout in large
numbers and of abnormal size; and there is no good reason why perch should not be
acclimatised and made numerous in its waters, pending the time when Natives of the
district shall consent to a widening of the present privileges which they possess. The
old type of Maori – jealous of all his privileges, of life habits remote, and of
disposition exceedingly exclusive – has passed away; and his educated successor is
clear-sighted enough to know that a prosperous community means more to him than
any jealously-guarded but seldomly-used privilege could do. We have very little
doubt that the present embargo will be lifted amicably as soon as the endeavourers
develop sufficient strenuosity.50
46. NZPD, 1906, vol 137, p 508
47. Anderson and Pickens, p 274
48. NZPD, 1906, vol 137, p 506, cited in Anderson and Pickens, p 275
49. Field to Native Minister, 24 January 1911, ma 5/13/173, w2459, NA Wellington, cited in Anderson and
Pickens, p 275
50. ‘Horowhenua Lake’, Chronicle, 17 January 1911
Lake Horowhenua 3.6
75
Later that month, Field wrote to the Native Minister enclosing the above article and
advocating that the law be changed.51
Around 1914, presumably as a result of this agitation, the Native Department
sought an opinion from the Crown Law Office on the question of fishing rights in
Lake Horowhenua. The opinion observed that the ‘question of fishing rights had for
some time been a bone of contention between Native and European anglers’. It was
recounted how in connection with this same matter the Department of Lands and
Survey had previously obtained an opinion from the Crown Law Office. This
opinion had held that:
The Horowhenua Lake Act, 1905, is not an Act conferring any rights on the
Natives; its purpose is to take away all rights previously held by the Native owners,
excepting those expressly reserved. Prior to the passing of the Act the lake, being a
comparatively small one, probably belonged to the owners of the adjoining land ad
medium filum, but in 1905 some of those owners were Europeans, and no Native
owner of adjoining land could point to any defined portion of lake as owned or
lawfully occupied by him.
The opinion prepared for the Department of Lands and Survey concluded that the
1905 Act only confirmed Maori’s access and fishing rights, not the ownership of
the actual lake. On the question of whether Maori could fish for trout without a
license, the author considered that Maori, like Pakeha, could only fish for trout
without a license on land which they owned that abutted a waterway. This was
provided for by section 90 of the Fisheries Act 1908. It was stated that:
as the Horowhenua Lake Act only preserves such rights as they had, and no Native is
now in lawful occupation of any of the lake now, no Native can now fish for trout
without a licence without committing an offence against Part II of the Fisheries Act,
1908.
The author of the opinion requested by the Native Department concluded that the
fishing rights confirmed to Maori by the 1905 Act applied to all freshwater fish
except salmon and trout. Further, it was held that fishing for trout by Pakeha would
not interfere with those rights.52
Both the opinion obtained by the Native Department and the earlier one upon
which it was based, are quite incredible. It is hard to see how the claim that the
Horowhenua Lake Act extinguished all the rights of Maori other than those it
expressly confirmed can be sustained. Admittedly the issue of ownership was
obfuscated somewhat by the Act, but nowhere does it say that the ownership of the
lake ceased to reside with Maori. Clearly, all that passed to the reserve board was
the right to control the reserve; not the ownership of the lake. Further, the claim that
Maori had no right to fish for trout without a licence – an activity permitted from
one’s own land under the Fisheries Act 1908 – would appear to be similarly
51. Field to Native Minister, 24 January 1911, ma 5/13/173, acc w2459, NA Wellington, cited in Anderson
and Pickens, p 275
52. ‘Horowhenua Lake: the Question of Fishing Right’, nd, ma 5/13/173, acc w2459, NA Wellington
3.7 Inland Waterways: Lakes
76
erroneous. Firstly, the lake remained a Maori property, and at common law, a lake
is regarded as simply being land covered with water.53 Section 90 of the Fisheries
Act 1908 states that any ‘person in lawful occupation of any land may fish without
a licence . . . upon that land’. And in this context, ‘occupation’ would appear to
mean a person residing, or importantly, with the right to reside upon a particular
piece of land.54 Therefore an owner of the lake fishing for trout on, or from the
margin of the lake, could be exempted from the requirement of holding a licence.
And secondly, it appears that some land adjoining the lake was at this point in time
still in Maori ownership. Significantly in this regard, the one chain strip had not
been made part of the reserve. Had it been so, Maori would not have been able to
fish from their own land. However, the Government, perhaps keen to preclude such
possibilities or to stymie any claims by riparian landowners to the lake bed, shortly
afterwards introduced legislation to make the one chain strip a part of the reserve.
3.7 Reserves and Other Lands Disposal and Public Bodies
Empowering Acts 1916 and 1917
In 1916, the Horowhenua Lake Act 1905 was amended by the Reserves and Other
Lands Disposal and Public Bodies Empowering Act 1916. While the 1916
legislation was still a bill, Hema Henare and 33 others petitioned Parliament
concerning the proposed legislation. They asked that the proposed clause that
would have extended the reserve board’s sphere of control to the Hokio Stream and
the one chain strip surrounding the lake be removed from the Bill. The Native
Affairs Committee made no recommendation on the petition, and the clause was
passed into law.55 Consequently the board’s authority was extended to the one chain
strip and the Hokio Stream, and the reserve was redefined as being the lake plus the
one chain strip. The Act also changed the constitution of the reserve board. The
1905 Act had provided that a minimum of one-third of the board’s members were
to be Maori. Section 2 of the Reserves and Other Lands Disposal and Public Bodies
Empowering Act 1916 set the membership of the board at nine, no more than three
of whom were to be Maori. In this fashion, what had been a minimum quotient of
Maori board members became the maximum.
The clause of the Act affecting Horowhenua was a late addition to what was
described as a ‘washing up bill’. When Massey discussed the clause he stated that
it ‘settled an old dispute between the local bodies of the district concerned with
respect to Horowhenua lake’. He observed that it had been referred to the Native
Affairs Committee, and that the ‘Native members had had an opportunity of
looking into the proposal, and he understood, no objection was raised’.56
53. Section 2 of the Land Transfer Act 1952 holds that ‘land’ includes ‘messuages, tenements, and
hereditaments, corporeal and incorporeal, of every kind and description, and very estate or interest therein,
together with all . . . waters, [and] waterways . . . unless specifically excepted.’
54. Peter Spiller, Butterworths New Zealand Law Dictionary, Wellington, Butterworths, 1995, p 205
55. Petition no. 251, AJHR, 1916, i-3, p 16
56. NZPD, 1916, vol 177, pp 697, 795
Lake Horowhenua 3.8
77
Significantly though, the inclusion of the one chain strip in the reserve was not part
of the 1905 agreement. As Pickens observes, the ‘effect whether intended or not,
was that a substantial and strategically placed area of land was removed from Maori
control.’57 An opinion on Lake Horowhenua furnished by the Crown Law Office in
1932 stated that the one chain strip was appropriated to preclude any claims to the
lake being made by riparian owners. Of particular concern was that such owners
should not benefit if the lake was lowered.58 But as is discussed below, at different
times over successive years, a committee of inquiry, the Chief Judge of the Maori
Land Court, and the Commissioner of Crown Lands, all expressed the view that
under the 1905 and 1916 legislation, both the lake and the one chain strip remained
the property of Muaupoko.
A further 13 acres were transferred to the control of the board by an Act of
Parliament in the following year. Although this land was purchased,59 when
legislation affecting the lake came before Parliament in 1956, Eruera Tirakatene,
the Member for Southern Maori, claimed that no payment was ever made for it.60
3.8 The Lowering of Lake Horowhenua
In 1925, pursuant to the Land Drainage Act 1908, the lands surrounding Lake
Horowhenua were constituted a land drainage district under the control of the
Hokio Drainage Board. The Hokio Drainage District appears to have included all
of the original Horowhenua block 11. The Gazette notice proclaiming the district
stated that a majority of ratepayers in the area had petitioned the Governor praying
that the district be constituted a drainage district.61 Local farmers had suffered
losses as a consequence of their lands being inundated with water when the lake
flooded. Interestingly, some Ngati Raukawa who farmed land in the vicinity of the
lake favoured the Hokio Stream being widened to reduce the incidence of
flooding.62
The 1908 Land Drainage Act provided for the establishment of drainage boards
that were empowered to construct, maintain, and repair drains and watercourses.
Under section 3(1) of the Act, the Governor could constitute a drainage district
upon being petitioned by a majority of ratepayers in an area. Under the Act,
landowners on whose properties it was proposed to construct drains or other works
could object to such operations. However, there appears to have been no provision
for objections to be made by other people who would have suffered injury as a
57. Anderson and Pickens, p 275
58. Crown Solicitor to Under-Secretary, Department of Lands and Survey, 31 May 1932, to 1 20/148, NA
Wellington
59. Memoranda attached to Crown Purchase Deed 972, cited in Anderson and Pickens, p 276; Anderson and
Pickens, pp 275–276
60. Reserves and Other Lands Disposal and Public Bodies Empowering Act 1917, s 64; Anderson and
Pickens, pp 275–276; NZPD, 1956, vol 310, p 2713
61. 25 June 1925, New Zealand Gazette, 1925, no 49, p 1955
62. Anderson and Pickens, p 276
3.8 Inland Waterways: Lakes
78
consequence of drainage works being undertaken. Consequently the Muaupoko
owners of Horowhenua had no recourse under the Land Drainage Act if drainage
works adversely affected their fisheries.
Maori could also have suffered prejudicially under the Land Drainage Act’s
provision for drainage boards to be constituted if this was favoured by a majority of
ratepayers. In the case of the part of Horowhenua no 11 that included the lake, there
were several owners. However, because the land was held in trust, the trustees
alone would have been the ratepayers and hence only they would have been
counted in a decision to constitute a drainage board. Given the deleterious effect
that drainage operations had upon an economy based upon freshwater resources,
the Act’s bias towards ratepayers, as opposed to other interested parties, is
particularly unjust.
At the time the Hokio Drainage Board was constituted, Muaupoko raised
concerns about any interference with the Hokio Stream and the effect this could
have on the lake and their fisheries. A meeting was held between them and an
official of the Department of Lands at which some sort of agreement appears to
have been reached in connection with protecting their fisheries. However, when the
Drainage Board began work, Muaupoko felt that the agreement was not being
observed, and intervened to stop operations. This resulted in a second meeting and
another agreement being signed.63 This second agreement presumably resulted in
the provisions in the 1926 Local Legislation Act protecting Maori fishing rights.
In 1926, the Local Legislation Act was passed. Inter alia, this Act contained
provisions for the Hokio Drainage Board to carry out drainage operations on lands
adjacent to Lake Horowhenua and Hokio Stream. It also provided for the
safeguarding of Maori fishing rights and certain other rights enjoyed by public
users of the lake. Section 53(1) stated that any proclamations made under the Land
Drainage Act 1908 in respect of Hokio Stream were to contain such provisions as
were necessary to protect Maori fishing rights and public use rights. According to
the Act, such proclamations could provide for: the widening or deepening of Hokio
Stream; regulating the removal and replacement of eel weirs; regulating works that
would lower the lake level; or protecting the existing rights of users of the lake.64
The Drainage Board then recommenced its work on the Hokio Stream, creating
a narrow, deep, and fast flowing channel. During the course of a 1934 inquiry into
matters concerning Lake Horowhenua, representatives of Muaupoko stated that
where there had once been 13 eel weirs on the Hokio. Only two survived after this
first phase of work undertaken by the Drainage Board. According to counsel for the
Muaupoko owners at the inquiry, the Drainage Board commenced this work before
proclamations were issued. The claim was made that ‘the board trampled on native
rights and then got legislation to justify their actions’.65 As well as affecting the eel
63. Memorandum re Hokio Stream by R M Watson, 28 November 1925, ma 5/13/173, w2459, p 2, NA
Wellington, cited in Anderson and Pickens, pp 278–279
64. Local Legislation Act 1926, s 53
65. ‘Minutes of Committee of Inquiry, Levin’, 11 July 1934, ma 5/13/173, w2459, p 2, NA Wellington, cited
in Anderson and Pickens, p 279
Lake Horowhenua 3.8
79
fisheries of the Hokio Stream, the actions of the Drainage Board caused the lake
level to be permanently lowered. The lake margin, once muddy and heavily
vegetated, became arid and stony. In this way, an important kakahi, eel, and flax
habitat was destroyed.
As well as suffering as a result of the altered ecology of the lake caused by the
lower water level, Maori found themselves embattled with Pakeha farmers as to
who had rights to the dewatered area. As the margins of the lake were not fenced,
farmers of the lake’s riparian lands proceeded to graze their stock on this dewatered
zone. This resulted in further damage being caused to the vegetation of the lake
margin, especially flax. The problem was exacerbated by some farmers burning
flax bushes and ploughing them under.66 At this time it is likely that Muaupoko still
derived an income from the sale of flax – an economic opportunity that would have
been reduced by the destruction of plants on the lake margin.67
Muaupoko grievances about the lowering of the lake precipitated a series of
petitions, complaints, and deputations to the reserve board, Government
departments, and politicians. In November 1929, Te Puku Matakatea and others
wrote to Apirana Ngata complaining that lessees of certain lake-side lands were
burning flax, draining the lake margins, and claiming rights to the one chain
riparian strip. It was stated that Muaupoko had decided to fence off part of the one
chain strip. They had commissioned a surveyor to prepare the fence line; acquired
the necessary materials to build half the fence; and through their solicitors, served
notice on the lessees of the land that they would be liable for half the cost of the
fence. In response one of the lessees ploughed over the survey line that had been
laid down, and declared that he would cut down any fence that was erected. It was
recounted how the lessee’s solicitors had advised that because the one chain strip
was considered to be vested in the reserve board, his clients would not comply with
the request to cooperate in building the fence.68 The following month, Matakatea
again wrote to Ngata asking that the Hokio Drainage Board assist him in
compelling the lessees to erect a fence. In the letter it was noted that the owner of
the land was himself a member of the Drainage Board.69 Nothing appears to have
resulted from Matakatea’s request.
A deputation of Muaupoko travelled to Wellington in 1930 to complain about the
actions of the Drainage Board which had caused the lowering of the lake.
Subsequently there was a meeting at Horowhenua to examine the situation and hear
the views of various parties on the problems. Pickens records that at this time there
also appears to have been an investigation into the numbers of eels in the lake.70
In 1931, the Domain Board sought an opinion from the Department of Lands and
Survey as to whether the domain was the property of the Crown or of Muaupoko.71
66. ‘Minutes of Committee of Inquiry, Levin’, 11 July 1934, ma 5/13/173, w2459, p 2, NA Wellington, cited
in Anderson and Pickens, p 279
67. Adkin, pp 142–143; Park, pp 177–178
68. Puku Matakatea and others to Ngata, 30 October 1929, ma 5/13/173, w2459, NA Wellington
69. Puku Matakatea and others to Ngata, 14 November 1929, ma 5/13/173, acc w2459, NA Wellington
70. Anderson and Pickens, p 279
71. Ibid, p 277
3.9 Inland Waterways: Lakes
80
The inquiry was referred to the Crown Law Office, who replied the following year.
The Crown Solicitor opined that although ‘not stated in express words’, all rights
other than those reserved to Maori in section 2(a) of the Horowhenua Lake Act
1905 had been resumed by the Crown. The lake, the Crown solicitor continued, had
been declared a reserve, not a domain, and therefore had not been vested in the
board. The lowering of the lake, it was contended, had not affected the legal
boundaries defined in the 1916 Act: if adjoining landowners were grazing the
dewatered area, they were trespassing – presumably upon Crown land in light of the
view that the Crown had assumed ownership of the lake. The Crown Law Office
considered that although the Board was not technically a domain board, it enjoyed
all the powers of one. It therefore could require landowners to fence their lands and
impound any stock found on the reserve.72
3.9 1934 Committee of Inquiry
The advice from the Crown Law Office vis-a-vis the lake reserve appears to have
been ignored by the Board. Instead in 1933, after meeting with the Levin Borough
Council, the Board resolved to ask the Department of Lands and Survey to set up
an inquiry into the Board’s rights in relation to the lake and the one chain strip.73 A
year later a committee of inquiry was appointed to undertake an investigation. The
committee consisted of J Harvey, a judge of the Native Land Court, and
H W C McIntosh, the Commissioner of Crown Lands. Their terms of reference
required them to hear the views of Maori, the Domain Board, the Levin Borough
Council, and any other local bodies and individuals in relation to the lake reserve.
The committee of inquiry was to consider how the rights of Maori could be affected
by the further development of the reserve as a public resort, along with any other
matters which might emerge in relation to the legal or equitable rights of Maori.
The committee was to report to the Minister of Lands.74
The committee of inquiry met with various local bodies in Levin on 11 July
1934. As well as the Domain Board and the Levin Borough Council, the Chamber
of Commerce and the Wellington Acclimatisation Society were represented at the
meeting. Morison represented the Muaupoko owners. Two members of the tribe
and two Pakeha individuals also made oral submissions.
With the exception of the Acclimatisation Society, all of the Pakeha present at the
meeting favoured the further development of the lake reserve. In light of this, they
all believed that it was imperative that the legal situation vis-a-vis the ownership of
the lake and the chain strip be clarified. Although favouring the further
72. The board was, however, frequently referred to as a domain board in official correspondence pertaining to
the lake. Crown Solicitor to Under-Secretary, Department of Lands and Survey, 31 May 1932, to 1 20/148,
NA Wellington
73. Under-Secretary, Department of Lands and Survey, to Minister of Lands, 15 November 1933, ma 5/13/
173, w2459, NA Wellington, cited in Anderson and Pickens, p 277
74. ‘Horowhenua Lake Domain: Committee of Enquiry – Terms of Reference’, nd, ma 5/13/173, w2459, NA
Wellington
Lake Horowhenua 3.9
81
development of the lake reserve, the Domain Board believed it could not act so long
as its powers and the rights of Maori remained undefined. The Acclimatisation
Society, on the other hand, was most concerned about the effect stock were having
on the lake margin and the wildlife that inhabited this zone. The society favoured
the restoration of the lake margin and intimated that they could be able to help meet
the cost of the necessary fencing. Although the general tenor of their submission
was towards making the lake a wildlife reserve, they did not oppose Maori fishing
in the lake. However, they did object to ducks being taken.
Morison then presented the position of Muaupoko to the committee. He stated
that they considered the lake to be their property, held in trust since 1898. It was
held that the 1905 Act had given Pakeha the right of navigation over the lake;
nothing more. Morison recounted that the Board had been advised in 1911 that it
did not own the lake or have any control over the one chain strip. According to
Morison, the inclusion of the one chain strip in the reserve under the 1916
legislation was done without Muaupoko being consulted. This, it was held, was in
breach of the agreement reached between Seddon, Carroll, and Muaupoko in 1905.
That the Crown had rights over the surface of the lake and to the 13 acres of the
reserve was not disputed by Muaupoko. The committee was told that Muaupoko
wanted to have control of the one chain strip returned to them, that it be fenced, and
that it be available exclusively for their use.75
Judge Harvey’s report to the Minister held that the evidence the committee had
received clearly demonstrated, that up until the passage of the 1916 and 1926
legislation, the lake and the one chain strip were Maori property. It was observed
that if ‘these amendments have taken away the Natives’ title . . . they have done it
[in] a subtle manner mystifying alike the Domain Board and the Natives.’76 The
report set out the positions of the Domain Board and Muaupoko as they had been
represented to the committee.
Harvey opined that a compromise rather than a strict legal definition of rights
may represent the best solution to the impasse that had developed in relation to the
lake and the riparian strip. He recommended that subject to the fishing rights of
Muaupoko, the Board have control of the surface of the lake, and that it be afforded
title to 83½ chains of the dewatered area and the one chain strip along the Levin
side of the lake. Under Harvey’s proposal, the lake bed, and the rest of the one chain
strip and dewatered area would be owned by the trustees of Horowhenua no 11.77
75. ‘Minutes of Committee of Inquiry, Levin’, 11 July 1934, ma 5/13/173, w2459, NA Wellington, cited in
Anderson and Pickens, pp 278–279
76. ‘Judge Harvey’s Report to the Honourable The Minister of Lands’, 10 October 1943, ma 5/13/173, w2459,
p 3, NA Wellington, cited in Anderson and Pickens, p 279
77. ‘Judge Harvey’s Report to the Honourable The Minister of Lands’, 10 October 1943, ma 5/13/173, w2459,
p 3, NA Wellington, cited in Anderson and Pickens, pp 279 –280
3.10 Inland Waterways: Lakes
82
3.10 Attempts at a Resolution
The Native Minister, G W Forbes, favoured Harvey’s recommendations as a basis
for a settlement of the difficulties that had arisen in relation to Horowhenua. In
March 1935, the proposals were put to Muaupoko. However, whereas Harvey’s
proposal required Muaupoko to cede 83½ chains, they were only prepared to give
up about half of that area. After this impasse emerged, both the Department of
Lands and Survey and the Native Department considered that the matter should be
left to lie.78
In May 1936, a deputation of Muaupoko met with Prime Minister Savage in
Wellington. The delegation requested that all legislation affecting the lake be
repealed, and that the ownership of the lake and riparian strip be returned to
Muaupoko. This delegation resulted in another meeting between Government
officials and Muaupoko in Levin seven months later to discuss Harvey’s proposals.
Muaupoko, however, wanted to discuss the legislation pertaining to the lake and
had expected the relevant ministers to be in attendance. The meeting was
abandoned when it became apparent that the impasse that had caused the cessation
of the March 1935 meeting remained unresolved.79 Subsequently, Harvey advised
the Native Department that progress towards a settlement as proposed in his report
was unlikely to be achieved through further meetings with Muaupoko.
Alternatively he proposed that the one chain strip be revested in the trustees of
Horowhenua no 11, and then the part wanted for the proposed domain be taken
under the Public Works Act.80
By the 1940s the Domain Board had effectively ceased to function. A letter from
the Native Department to the Department of Lands and Survey stated that the
reason for this was that no Maori were willing to accept nomination.81 In 1943,
another meeting was convened between representatives of the lake’s owners and
the then Native Minister, H G R Mason. At this meeting the perennial grievances
concerning the one chain strip and the dewatered area were traversed.82 Nothing
appears to have resulted from the meeting. The opinion of the Chief Judge of the
Native Land Court was then sought. He considered that to a large degree, the
Domain Board’s failure to fence off the one chain strip and take action in
preventing stock from grazing the domain were to blame for the impasse that had
developed. He stated that although the issue of the lake’s ownership had become
confused, the lake remained the property of Muaupoko pursuant to the Native Land
Court orders for Horowhenua no 11.83 Pickens, in the course of his research into
78. Anderson and Pickens, p 280
79. ‘Minutes of Meeting of Deputation of Muaupoko Tribe and Prime Minister, 29 May 1936’, p 6, ma 5/13/
173, w2459, NA Wellington, cited in Anderson and Pickens, p 280
80. Harvey to Under-Secretary, Native Department, 15 December 1936, ma 5/13/173, w2459, NA Wellington,
cited in Anderson and Pickens, pp 280–281
81. Under-Secretary, Lands and Survey to Under-Secretary, Native Department, 13 June 1940, ma 5/13/173,
w2459, NA Wellington, cited in Anderson and Pickens, p 281
82. Anderson and Pickens, p 281
83. Shepherd to Under-Secretary, Native Department, 21 October 1943, ma 5/13/173, w2459, NA Wellington,
cited in Anderson and Pickens, p 281
Lake Horowhenua 3.11
83
this matter, found no response to Shepherd’s opinion. He speculates that this could
have been because of the Second World War, or that the impasse that had developed
over Harvey’s proposal precluded any progress being made towards a resolution of
the conflict.84
Another series of meetings and deputations began in the 1950s. In 1950, the
Minister of Maori Affairs, Ernest Corbett, met a delegation of Muaupoko in
connection with the lake. The group, led by the member of Parliament for Otaki,
had sought an audience with him:
in an endeavour to obtain some solution to this vexed problem of control, and to clear
up, if possible, the position as to the ownership of the lake and the Hokio Stream.85
In 1952, a report on the Lake Horowhenua dispute was produced by E McKenzie,
the Commissioner of Crown Lands, and Messrs Mills and McEwan of the
Department of Maori Affairs. In spite of Crown Law Office opinions to the
contrary, the report considered that the 1905 Act had not vested the lake in the
Crown. The authors identified the Domain Board as the main source of difficulty:
particularly the way in which it had repeatedly ignored the views of Maori and even
requested that they be removed from the Board. They were of the opinion that the
only solution was to try and purchase the additional land wanted for the reserve.86
3.11 Reserves and Other Lands Disposal Act 1956
In 1956, the Reserves and Other Lands Disposal Act was passed, section 18 of
which pertained to Lake Horowhenua. Although it is not clear the extent to which
this legislation resulted from the 1952 report of McKenzie et al, both were
predicated upon the notion that the lake and the one chain strip were Maori
property.87
In introducing the part of the Bill affecting Lake Horowhenua, the Minister of
Maori Affairs, Ernest Corbett, repeatedly stressed that the legislation met ‘fully the
wishes of the Maori owners.’ In speaking to the same clause, Eruera Tirakatene, the
Member for Southern Maori, briefly traversed the legislative history of the lake and
contiguous lands. He noted that as a consequence of various Acts of Parliament, it
appeared the Maori owners had lost some of the rights guaranteed to them in the
original 1898 deed. He observed that 13 acres for the domain had also been ceded
by Muaupoko, and that there existed no record of any payment being made for
these lands. In addition the Maori owners felt ‘that motor boat racing on the lake is
detrimental to the waterfowl and other bird life there, and that the lake should be
retained as a bird sanctuary.’ The bill contained provision for the constitution of a
84. Anderson and Pickens, p 281
85. NZPD, 1956, vol 310, p 2712
86. E McKenzie, J A Mills, and J M McEwan, ‘Horowhenua Lake Domain Brief History and
Recommendation’, 1952, ma 5/13/173, w2459, NA Wellington, cited in Anderson and Pickens, p 281
87. Anderson and Pickens, p 281
3.11 Inland Waterways: Lakes
84
Domain Board. It was proposed that the board would include four members of
Muaupoko and that it would be chaired in an ex-official capacity by the
Commissioner of Crown Lands for the Wellington District. In respect to the
proposed board, Tirakatene was critical of the fact that it was to be chaired by a
Commissioner of Crown Lands. ‘Why’, it was asked, ‘could not a Maori be the
chairman of the board? There are many Maoris capable of holding that office.’88 In
response to a question from Tirakatene as to the status of Muaupoko’s rights to the
lake, Corbett stated ‘that the Bill safeguards the rights of the Maoris to the
ownership of the lake bed, to the bed of the Hokio Stream, the chain strip, and the
dewatered area around the Lake, as well as those lands for which title had been
granted by the Court in days gone by.’89
The Act declared ‘the bed of the lake, the islands therein, the dewatered area, and
the strip of land one chain in width around the original margin of the lake . . . to be
and to have always been owned by the Maori owners’. The Act confirmed that the
lake, the dewatered area, and the one chain strip were vested in the trustees
appointed by the Maori Land Court in 1951 on behalf of the owners. Similarly the
bed of the Hokio Stream, excepting any part that had been legally alienated by its
Maori owners, was deemed to be Maori property.90 Subsection (4) of the Act
secured public access to the 13 acre reserve, the chain strip, the dewatered area, and
the surface waters of the lake. Subsection (5) declared the surface of the Lake to be
a domain and guaranteed public access to it. It also secured to Maori unrestricted
use of the lake, and guaranteed their fishing rights in both the lake and the Hokio
Steam. However, as with previous guarantees, the exercise of these rights was not
to interfere with the reasonable rights of the public – the extent and nature of which
were to be defined by the Domain Board. The Act abolished the Hokio Drainage
Board and transferred its powers and jurisdiction to the Manawatu Catchment
Board. However, no work was to be undertaken by the Catchment Board without
the prior consent of the Domain Board.91 Subsection (8) specified how the Domain
Board was to be constituted: four members of Muaupoko; one member
recommended by the Horowhenua County Council; two members recommended
by the Levin Borough Council; and in an ex officio capacity, the Commissioner of
Crown Lands, who was to chair the board. Subsection 12 repealed all earlier
legislative provisions affecting the lake.
Pursuant to the Reserves and Other Lands Disposal Act 1956, a certificate of title
for the bed of the lake was issued by the District Land Registrar on 12 October
1959.92
88. NZPD, 1956, vol 310, p 2714
89. Ibid
90. Reserves and Other Lands Disposal Act 1956, s 18(2)–(3)
91. Ibid, s 18(9)–(10)
92. S E Kenderdine to Director General of Conservation, 13 July 1989, Wai 52/0, Waitangi Tribunal, p 5
Lake Horowhenua 3.12
85
3.12 A Contemporary View of the Legal Ownership of Horowhenua
In 1989, the Director-General of Conservation requested an opinion from the
Crown Law Office on several legal issues pertaining to Lake Horowhenua. The
reason why this opinion was sought is not known.
In considering section 18 of the Reserves and Other Lands Disposal Act 1956,
S E Kenderdine of the Crown Law Office opined that, under the Act, the lake ‘is an
entity and ownership of its waters were to be confirmed by vesting the bed of the
lake in the Maori owners’. The effect of this, it was thought, ‘should provide
adequate legal protection for the Maori owners in respect of the lake.’93 However,
Kenderdine considered that the declaration contained in section 18(5) that the
waters are to be a public domain suggested that the ownership of the lake’s waters
does not necessarily accrue to the owners of the lake bed. The effect of section
18(5) therefore is to ‘place boundaries on what would then have been common law
rights to water and Maori customary title’. But as noted by Kenderdine, there has
never been an authoritative decision from ‘the superior courts’ in New Zealand as
to exactly what such rights in relation to lakes and rivers are.94 The opinion
continued, that by declaring ‘the surface waters of the lake to be a public domain
and assuming them to be vested in the Crown cuts across the full incidents of
ownership envisaged by Muaupoko’s title to the lake bed’. Therefore ‘it is hard to
escape the conclusion that the legislation was designed to take away ownership to
the lake once it had granted it back again.’95
Kenderdine goes on to consider in some detail some other questions posed by the
Department of Conservation. In doing this, a rather confused and ambiguous
situation vis-a-vis the legal situation is revealed. To make sense of these
ambiguities, Kenderdine proposes that the issues raised be reconceptualised in
terms of rights rather than absolute ownership. She contends that employing such
an analysis of the Reserves and Other Lands Disposal Act 1956 as it affects
Horowhenua, ‘makes extraordinarily good sense’. First, she opines that the title to
the lake bed and contiguous lands affirms Muaupoko’s status as tangata whenua
and that they hold manawhenua over the lake: ‘Their rangatiratanga to the lake is
more important than who “owns” the surface waters.’ Secondly, the retention of
Muaupoko’s unrestricted use of the lake is consistent with their manawhenua.
Thirdly, it is observed that the 1956 legislation records an agreement between
Muaupoko and the Crown that transfers to the public some of the tribe’s use rights.
Also recorded in the Act is the agreement that Muaupoko will not exercise its rights
in such a way as to ‘interfere with the reasonable rights of the public.’ Fourthly,
Kenderdine notes that the ‘reasonable exercise by the public of its rights
demonstrates the reciprocal duties involved in the grant by the Tribe of use rights to
the lake.’ Finally she argues that the constitution and existence of the Domain
Board is an acknowledgement by both Muaupoko and the Crown that to
93. Ibid, p 3
94. Ibid, pp 5–6
95. Ibid, pp 7–8
3.13 Inland Waterways: Lakes
86
accommodate the use rights of the public, the lake needs to be appropriately
managed.
3.13 Conclusion
The traditional importance of inland waterways to Horowhenua Maori was
immense. Geoff Park, in his treatise on New Zealand’s lowland forest ecosystems,
has opined that ‘the Horowhenua’s vast swamps of harakeke and eels were the
mainstay of mana, and the central attractions to the Waikato people who overran
them.’96 Maori fished for flounder, kakahi, whitebait, and eels in Lake Horowhenua
and its associated swamps and streams – especially the Hokio. Not only was fish an
important part of the local Maori diet, it was also dried and traded. Evidence shows
that Muaupoko engaged in eel husbandry. The lake and its margins also furnished
Maori with supplies of game birds and weaving material.97
But apart from the resources its ecology supported, Horowhenua had many other
significances to Muaupoko. Artificial islands were constructed in the lake upon
which fortified pa were built. These were an integral part of Muaupoko’s response
to the invasions of northern iwi during the early nineteenth century. The lake was
also a repository for taonga. Large numbers of artefacts have been uncovered –
many in surprisingly good condition. Exactly why they were placed there is not
entirely clear, but it could have been to prevent them from falling into the hands of
the invaders from the north. In light of the uses made of Horowhenua by
Muaupoko, and that many of their number died in the defence of their pa situated
in it, it would be hard to overstate the importance of the lake to them. The evidence
certainly supports the contention made in relation to other North island lakes that to
Maori, waterways were in many ways more treasured than land.98
Although the importance of Horowhenua to Maori was perhaps no more
remarkable than with many other lakes in New Zealand, that the Crown afforded
legal recognition of the Maori ownership of the lake in the late nineteenth century
is something of an aberration. In 1898 the lake was formally vested in Muaupoko.
Although cases of the Crown claiming lakes to be within the ambit of its
prerogative rights were rare in the nineteenth century, it was actively engaged in
trying to limit the extent to which Maori rights to lakes were recognised. In the case
of the Wairarapa lakes, for example, the Crown persistently argued that Maori
simply held fishing rights and nothing else. Exactly why the Maori ownership of
Horowhenua was recognised by the Crown remains unclear to the present author as
well as to others that have written on the history of the lake. Importantly, Maori do
not appear to have mounted a campaign to retain title to the lake.
96. Park, p 178
97. Adkin, pp 18–23; Cowan, pp 1–2
98. See for example Alexander Mackay, ‘Report on Claims of Natives to Wairarapa Lakes and Adjacent
Lands’, AJHR 1891, g-4, pp 5–6
Lake Horowhenua 3.13
87
The legislation pertaining to Lake Horowhenua that followed the vesting of the
lake in Muaupoko served to obfuscate the issue of who held title to the lake. The
1905 Horowhenua Lake Act was based on an agreement reached between Seddon,
Carroll and Muaupoko. While prima facie, the Muaupoko ownership of the lake
was not altered by the agreement or the Act, they did afford guarantees to Pakeha
that they would be able to use the lake for fishing and boating. Importantly this
shows a willingness on the part of Maori to grant rights to Pakeha in respect of their
lakes so long as their overall ownership was acknowledged and protected.
However, disputes did arise as to the extent and nature of fishing rights in the lake.
The issue appears to have been whether the guarantee of Maori fishing rights meant
that they could fish for trout without a licence and prevent pakeha from fishing on
the lake.99 This precipitated an opinion being sought from the Crown Law Office –
the first of several that disputed whether the title to the lake resided with
Muaupoko. Essentially it was argued that because the Act of 1905 did not expressly
confirm the Muaupoko ownership of the lake, it had therefore passed to the
Crown.100 Surely though the very opposite was true – that title remained unless
expressly extinguished? This was certainly the view taken at different times by a
committee of inquiry, the Chief Judge of the Maori Land Court, and the
Commissioner of Crown Lands.
Although Lake Horowhenua has remained in Maori ownership until the present
day, the history of the lake in the twentieth century serves to illustrate how such
ownership rights can in fact mean very little in connection with the control and
management of a lake. It appears that once the flax industry went into decline,
farmers began to assert pressure for the lake level to be lowered. This was to
achieve the object of bringing further land into production, and to mitigate the
effects upon adjacent lands when the lake flooded. Under the Land Drainage Act
1908, the lands surrounding the lake were constituted as the Hokio Drainage
District. The Act provided for districts to be proclaimed when the majority of
ratepayers in an area petitioned the Government. This provision clearly
prejudicially affected Maori given how much of their land was held in trust, and
how few individual Muaupoko would therefore have been ratepayers. Although
Muaupoko sought and were granted guarantees that their fishing rights – especially
in the Hokio Stream – would not be affected by the operations of the drainage
board, it is clear that many of their eel weirs were destroyed and the lake’s water
level permanently lowered.101 When it is considered that much of the drainage
board’s membership was made up of local farmers, it is hardly surprising that the
rights of Muaupoko were disregarded.102
The constitution of the board set up to manage the recreation reserve similarly
shows how in practical terms, being the legal owners of the lake did not correspond
99. ‘Horowhenua Lake’, Chronicle, 17 January 1911
100. ‘Horowhenua Lake: the Question of Fishing Right’, nd, ma 5/13/173, w2459, NA Wellington
101. ‘Minutes of Committee of Inquiry, Levin’, 11 July 1934, ma 5/13/173, w2459, p 2, cited in Anderson and
Pickens, p 279
102. See for example Puku Matakatea and others to Ngata, 14 November 1929, ma 5/13/173, w2459, NA
Wellington
3.13 Inland Waterways: Lakes
88
to a high degree of control over the lake. Under the 1905 Act a minimum of onethird
of the members of the board charged with managing the lake had to be Maori.
When the Act was amended in 1916, this quotient was changed to a maximum of
one-third, and the total membership of the board set at nine. But even though the
board’s constitution meant that Maori would always be a minority on the board,
evidence exists that the Pakeha members requested that the Maori positions on the
board be done away with altogether.103 The board was also identified in two reports
as being primarily responsible for the failure to resolve the ongoing conflict over
the extent of Muaupoko’s rights in relation to the lake that had existed since shortly
after the enactment of the 1905 legislation. In particular, attention was drawn to the
way in which the views of the Maori board members had been repeatedly
ignored.104
Although the Reserves and Other Lands Disposal Act 1956 explicitly
acknowledged that the lake belonged to Muaupoko, an analysis of the Act serves to
further illustrate how the incidents of ownership are in fact very limited. Clearly
under the Act, the ownership of the lake’s waters did not accrue to Muaupoko as the
owners of the bed. Also they have no right to prevent others accessing the lake or
fishing in it. As the Crown Law Office stated in 1989 in respect of Horowhenua, ‘it
is hard to escape the conclusion that the legislation was designed to take away
ownership to the lake once it had granted it back again.’105
Although this view could be considered to be somewhat brutal, the fact that
Horowhenua has always been in Maori ownership – even if the full incidents of
ownership have not accrued to the owners – is somewhat remarkable in the context
of the history of lakes in New Zealand. And despite the recent history of the lake
having been fraught with conflict concerning its management, the situation vis-avis
the ownership of Horowhenua is a possible model for what could have
happened to other lakes, or importantly, still could.106 Although it could be argued
that Muaupoko’s ownership of the lake is reduced to a purely symbolic
phenomenon, their status as tangata whenua, and the fact that they exercise mana
whenua over the lake is formally recognised. And further, their fishing rights,
traditionally an important incident of ownership, are preserved.
103. E McKenzie, J A Mills, and J M McEwan, ‘Horowhenua Lake Domain Brief History and
Recommendation’, 1952, ma 5/13/173, w2459, NA Wellington, cited in Anderson and Pickens, p 281
104. Shepherd to Under-Secretary, Native Department, 21 October 1943, ma 5/13/173, w2459, NA Wellington,
cited in Anderson and Pickens, p 281; E McKenzie, J A Mills, and J M McEwan, ‘Horowhenua Lake
Domain Brief History and Recommendation’, 1952, ma 5/13/173, w2459, NA Wellington, cited in
Anderson and Pickens, p 281
105. S E Kenderdine to Director General of Conservation, 13 July 1989, Wai 52/0, Waitangi Tribunal, pp 7–8
106. See for example James Norgate, ‘Failure to consult over lake causes friction’, Dominion, 8 August 1996,
p 10