Waitangi Tribunal Thursdays: WAI 2

22/05/2025

Waiau Pa, regulation and rules without ears

E ngā mana, e ngā reo, tēnei te mihi ki a T.E. Kirkwood, mō te ūmanga ki te tiaki i ngā tikanga o te Whatapaka, ā, ki a M.R. McLarin hoki, mō te tū pakari i te taha o ngā hapori katoa.

He wā poto tonu tēnei, engari he tū kotahi.

In 1978, the Waitangi Tribunal was barely a year old. The ink on the Treaty of Waitangi Act 1975 was still drying. Its jurisdiction didn’t stretch back before 1975. Its powers were recommendatory only. But into this modest space stepped two claimants, from different communities, challenging a state energy project that would have permanently disfigured a taonga ecosystem and displaced generations of fishing practice.

The claim was WAI 2. A challenge to the proposed Auckland Thermal No. 1 Power Station at Waiau Pa, on the southern edge of the Manukau Harbour. It came from T.E. Kirkwood, representing the Waikato sub-tribes linked to Whatapaka Marae, and Mrs M.R. McLarin, chair of the Manukau Harbour Action Association. Their claims were separate but aligned. Kirkwood stood in defence of tikanga and the customary fisheries guaranteed under Te Tiriti. McLarin stood for her community, Glenbrook, Karaka, and Patumahoe, and she was concerned that the project would destroy the harbour’s fragile ecology. Together, they represented an early example of community resistance: different groups, different arguments, united in opposition to Crown overreach.

It helps to look at the institutional setting they walked into to understand just how significant that pushback was. This was the height of Muldoonism: a centralised, command-style state planning regime, welded to the logic of Old Public Management. Regulatory control sat across a maze of agencies: the New Zealand Electricity Department, the Ministry of Works, the Ministry of Agriculture and Fisheries, and an array of local boards like the Auckland Harbour Board and Auckland Regional Water Board. Robert Muldoon held the dual role of Prime Minister and Finance Minister. Duncan MacIntyre was Minister of Māori Affairs. Bill Birch had the Energy portfolio. These weren’t minor players. They were part of the Think Big machine.

While these agencies pushed ahead with scoping and site clearance, Kate Bush’s Wuthering Heights sat at the top of Aotearoa’s music charts. A ghostly, breath-caught voice drifting out of car radios and kitchen speakers was a sharp contrast to the noise of heavy machinery and bulldozers being prepped for projects like Waiau Pa. If the planners were listening to anything at all, it wasn’t the people in front of them.

The project followed the familiar script of the time: high-input, high-infrastructure, central government-led. Local communities weren’t invited to shape the decision: they were informed once decisions were well advanced. The Electricity Department proposed building a 1400MW power station on natural gas and oil. To keep it from overheating, it would need massive cooling infrastructure. The preferred method? A 560-hectare cooling pond built directly over the intertidal zones of Waiau Pa. The backup option, cooling towers, would still discharge chemicals into the water. Either way, the marine life and fisheries would suffer. And that’s what brought the claimants to the Tribunal.

What they revealed wasn’t just ecological risk; it was systemic failure. Kirkwood’s case was anchored in Article 2 of Te Tiriti, where the Crown guaranteed Māori “the full exclusive and undisturbed possession” of their fisheries, forests, and estates. His evidence detailed the ecological interdependence of the Manukau Harbour: plankton, shellfish, nursery fish, and migratory predators. McLarin’s evidence supported this with a civic lens, focusing on food sources, environmental degradation, and community loss. They came from different tikanga, but they described the same harm.

Yet even as they testified, the structural forces they resisted remained in motion. This is the quiet power of liberal legalism: it doesn’t say no to Māori, it just channels every issue through a pipeline of rules, procedures, and regulatory permissions until the meaning is lost (Morris, 2019; Charters, 2006). When tikanga doesn’t align with statute, it’s treated as noise. When customary use falls outside resource consents, it disappears from view. The project wasn’t proceeding because it had extinguished rights, but because the rules didn’t require those rights to be recognised in the first place.

This reveals that it is not a broken system, but a system functioning exactly as designed. Regulatory frameworks and Old Public Management models rely on what can be measured, bounded, and standardised (Boast, 2008). Customary rights, tikanga, and relational knowledge don’t fit. So they are neither acknowledged nor evaluated: not because of bias at the front line, but because the back-end logic never included them (Ruru, 2009). This is how regulation becomes a tool of erasure: it governs by what it can see and process, and discards what lies outside its frame.

The Tribunal, still young and cautious, nevertheless listened carefully. It heard about the destruction already caused by reclamation, over 1,000 hectares gone, and the risk of raising that to 40 per cent of the harbour’s neap tidal flats. It heard that these flats were nurseries for scallops, flounder, mullet, and juvenile fish that sustained Māori communities and broader regional ecosystems. And it heard that what was being risked wasn’t just a food source, but a practice: a relationship between people and place, one that had been maintained over generations and across legal regimes.

The Tribunal recognised quietly but clearly that Māori fishing practices weren’t just economic activities. They were ecological knowledge systems (Kawharu, 2000; Lyver et al., 2008). The claimants weren’t asking for special treatment. They described how to live with an estuary, not for one generation, but for many. And the Tribunal, to its credit, heard that. It is understood that development couldn’t just be assessed regarding jobs or megawatts. It had to account for what would be lost, especially when what was being lost had already been guaranteed under Te Tiriti.

In the end, the Tribunal found both claims well-founded. It noted that the Crown’s proposal would cause prejudice: a phrase that in Tribunal-speak means, simply and gravely, the state got this wrong. The project was paused. No power station was built at Waiau Pa. The government walked away.

But the story doesn’t end in triumph. The Tribunal stopped short of declaring whether customary rights had been extinguished because the government had backed off. There was no firm ruling on the law. And the record shows that, had they been pursued, cooling towers might still have proceeded without resolving the cultural or ecological harm. In that sense, WAI 2 isn’t a win; it’s a warning and a red flag.

What it reveals is the deafness baked into state structures. The planners didn’t intend to destroy tikanga; they simply never included it in the blueprint. The engineers didn’t aim to displace customary fishing; they just followed the specs. And the agencies weren’t malicious, they were operating exactly as designed: by rules that couldn’t hear the people they affected.

Even so, something changed. Kirkwood and McLarin showed that the Tribunal could be used not just as a site of cultural recognition, but as a lever for regulatory accountability. They demonstrated that tikanga-based knowledge and community-based advocacy could align, without erasing difference, and force the Crown to blink.

Next week, we head south to WAI 3*.

References

Boast, R. (2008). Buying the Land, Selling the Land: Governments and Māori Land in the North Island 1865–1921. Victoria University Press.

Charters, C. (2006). The legitimacy of the Waitangi Tribunal. New Zealand Journal of Public and International Law, 4(2), 301–326.

Kawharu, M. (2000). Kaitiakitanga: A Māori anthropological perspective of the Māori socio-environmental ethic of resource management. The Journal of the Polynesian Society, 109(4), 349–370.

Lyver, P., Taputu, T. M., Kutia, S. T., & Tahi, B. (2008). Mātauranga Māori in marine governance: Insights for the management of coastal ecosystems in Aotearoa. Ecology and Society, 13(2), 12.

Morris, J. (2019). The rule of (whose?) law: Contesting liberal legalism in Aotearoa New Zealand. Australian Feminist Law Journal, 45(1), 97–112.

O’Sullivan, D. (2008). The Treaty of Waitangi in contemporary New Zealand politics. Australian Journal of Political Science, 43(2), 317–331.

Ruru, J. (2009). Undefined and unresolved: Exploring Indigenous rights in Aotearoa New Zealand’s freshwater legal regime. Macquarie Journal of International and Comparative Environmental Law, 6(1), 117–139.

Footnotes

1. This account draws on official Tribunal records and public sources. Where details are unavailable, inferences are noted and handled with care.

2. Muldoon was Prime Minister, Minister of Finance, and unofficial Minister of Everything. In the 1978 charts? Wuthering Heights by Kate Bush: a woman howling through the storm while the Crown was getting ready to bulldoze wetlands.

3. The Auckland Regional Water Board, bless them, actually told the government to abandon the pond idea. An early miracle.

4. 560 hectares. That’s not a typo. That’s a third of Lake Rotorua, if you’re wondering.

5. “Well-founded” = bureaucratic speak for “they’ve caught us red-handed, and we’d rather not argue.”

6. Old Public Management: when departments executed perfectly inside their box and blamed others for drawing the wrong one. If you want to read more on the evolution of public management system over the past 300 odd years click here.

7. Tikanga wasn’t left out of the rules decision-making process, it wasn’t considered part of the process in the first place.