Waitangi Tribunal Thursdays: WAI 1

15/05/2025

Joe Hawke and Others: Fisheries Regulations

He mihi tēnei ki ngā rangatira kua wehe atu ki te pō.

Moe mai rā, e Dame Whina Cooper rāua ko Joe Hawke.

Moe mai rā ki a koutou katoa i takahi i te huarahi mō te mana o te iwi, ā, kua hoki atu ki te ao wairua.

Ka maumahara tonu mātou ki a koutou, ā, ki te hunga i tū ki Takaparawhau, otirā, ki te hunga kāore i tae ki te kite i ngā hua o taua tū.

This series, Waitangi Tribunal Thursdays, is my attempt to excavate what the Tribunal archive reveals about Aotearoa’s policy advisory system. Each week, I’ll examine one claim. Not for its historical narrative alone, but for what it tells us about how the policy machine works, not just in Te Tiriti and Iwi|Māori outcomes areas but also more generally. The assumptions. The frameworks. The blind spots. It is my starting hypothesis that each of these reports, in their own way, offers a window into the often-silent workings of advisors, departments, and decision-makers whose thinking has shaped how the Crown responds to Te Tiriti o Waitangi, and why we find ourselves where we currently are as a nation.

We begin where the Tribunal itself began: with WAI 1, released in March 1978.

The context matters. Just two months earlier, Ngāti Whātua Ōrākei had marked one year of their occupation of Takaparawhau (Bastion Point), protesting the Crown’s planned development of Auckland coastal land. The Land March led by Dame Whina Cooper had crossed the country three years earlier. The Māori Language Petition, carrying 30,000 signatures, had been presented to Parliament in 1972. The Tribunal itself was still barely functional, having been created in 1975, operating without permanent staff, and meeting in hired rooms.

And on the radio, the Bee Gees’ “Stayin’ Alive” had just hit number one. A pulsing anthem of survival in a disco world that mirrored the grit and swagger of its time. It was March 1978. The rhythm was changing. Something in the air had started to shift.

WAI 1 involved a prosecution brought against Joe Hawke and others of Ngāti Whātua Ōrākei for gathering shellfish from the Waitematā Harbour for a hui at Te Ōngāwahawaha Marae. They were charged under the Fisheries (General) Regulations 1950 for exceeding daily limits and for carrying underwater breathing apparatus, although the gear had not been used to collect the shellfish. No exemption permit had been sought under clause 106K(5A), though informal discussions had taken place.

The case went ahead. While a technical conviction occurred, Mr Hawke was discharged without penalty under section 42 of the Criminal Justice Act 1954. The Tribunal would later rely on that outcome, no recorded conviction, to argue that no legal prejudice had occurred.

But for Mr Hawke, the fact remained that customary practice had been treated as criminal conduct. He brought the matter before the Tribunal, asserting that the prosecution breached Article 2 of Te Tiriti o Waitangi, which guaranteed to Māori full, exclusive, and undisturbed possession of their fisheries.

The Tribunal declined to uphold the claim.

It accepted that Mr Hawke was a direct descendant of Ngāti Whātua and that the shellfish had been collected for a legitimate hui. But the Tribunal concluded that no prejudice could be shown because the prosecution had not resulted in a conviction, and because no exemption permit had been formally applied for. No evidence had been offered to prove that the regulation itself was discriminatory. As a result, the Tribunal did not find a Treaty breach.

The reasoning is legally tidy. But if you dig a little deeper, it exposes the thinking that sat beneath Crown policy at the time.

What WAI 1 exposes is a public policy advisory system grounded in liberal legalism and shaped by Weberian bureaucracy. It relied on the consistent application of general rules, presumed the state was neutral, and assumed fairness could be achieved through procedural sameness (Dicey, 1959; Weber, 1978).

Within that logic, Iwi|Māori claims had standing only if they could be framed administratively: as matters of process, not power. The Westminster tradition reinforced this: the law was sovereign, policy was colour-blind, and Māori were visible only when causing friction. The system had no tools or memory of whakapapa, local history, or Tiriti-based authority. When Joe Hawke came before the Tribunal, he brought a constitutional argument. But the system could only hear a regulatory one.

His submission reached further than the charges. He described the displacement of Ngāti Whātua, the loss of coastal land, the Crown’s failure to compensate, and the broader injustice of being required to seek permission to carry out a tikanga practice. The Tribunal dismissed most of that material as out of scope.

To be fair, at the time, its statutory authority was limited. Under the 1975 Act, it could only investigate breaches arising from laws or policies currently in force. Retrospective claims would not be allowed until the 1985 amendment. But even within its mandate, the Tribunal chose to limit its reading of what was relevant. It saw the law as the boundary of justice.

The wider advisory system supported that view. In 1978, policy advice in the public service was legalistic, managerial, and monocultural. The Department of the Prime Minister and Cabinet did not yet exist. The State Services Commission, chaired by Dr Robin Williams, set standards for administrative consistency. Duncan MacIntyre was Minister of Māori Affairs. Jim Bolger held Fisheries. Treaty analysis was not part of any official policy toolkit. Labour held the four Māori seats but Select Committee chairs were appointed by the National government. If anyone reading this knows who chaired the Māori Affairs Committee in 1978, I’d be grateful: the detail remains elusive.

WAI 1 did not lead to reform. It offered no recommendation for regulatory change. It did not propose a different approach to customary food gathering. It found that the Crown had acted properly, and that was enough.

This is why regulatory policy has long drawn such sharp responses from Māori communities. When rules are applied without recognition of whakapapa, tikanga, or lived realities, they become more than rules: they become mechanisms of control. It’s not surprising that new regulatory regimes often receive strong pushback. What might look like a neutral process from he poneketanga can feel like a deep intrusion elsewhere: on identity, on enterprise, on mana motuhake.

Few people in secure roles inside government quite understand how intrusive regulation can be: not just on the ability to operate a business or hold land, but on the ability to live as Māori. WAI 1 was an early warning. The system wasn’t built to see what it was doing, let alone listen to others.

The case revealed the gap between what Māori were saying and what the Crown could hear. Joe Hawke said: these rules are not neutral. They are part of the same system that has dispossessed us. The Tribunal said: you weren’t convicted, and the rule was applied consistently. So, there is no breach.

The Tribunal refused to engage with the wider constitutional question. The whenua made it unavoidable.

Moe mai rā e te rangatira, Joe Hawke. You brought the matter forward before the system was ready to hear it.

Next week, I’ll turn to WAI 2. We shift from food gathering to energy infrastructure. But the questions remain the same. What place does Te Tiriti hold in the policy advisory system? Whose interests are protected through regulation? And when Iwi|Māori raise objections, does the system treat them as rights-holders, or as stakeholders to be managed and ignored?

References

Dicey, A. V. (1959). Introduction to the Study of the Law of the Constitution (10th ed.). London: Macmillan.

Weber, M. (1978). Economy and Society: An Outline of Interpretive Sociology (G. Roth & C. Wittich, Eds.). Berkeley: University of California Press.

Waitangi Tribunal. (1978). Report of the Waitangi Tribunal on a Claim by J. P. Hawke and Others (WAI 1). Wellington: Department of Justice.

Treaty of Waitangi Act 1975, and the 1985 Amendment.

Orange, C. (2011). The Treaty of Waitangi. Wellington: Bridget Williams Books.