THE LEGAL FRAMEWORK FOR GEOTHERMAL RESOURCES:
A HISTORICAL STUDY
A Report to the Waitangi Tribunal
by
R.P. Boast
Wellington, Auckland
THE LEGAL FRAMEWORK FOR GEOTHERMAL RESOURCES:
A HISTORICAL STUDY
A Report to the Waitangi Tribunal
by
R.P. Boast
i
PREFACE
This report to the Waitangi Tribunal is set out in the
form of a statement of evidence, although due to its length it is
probably unlikely that the whole document will be read in
evidence in its entirety at the Tribunal's inquiry into the
geothermal claim.
This report does not attempt to deal with the "Maori
perspective" on geothermal taonga. This is a task for those with
the necessary expertise, expertise which I do not profess. Nor
does it deal in any way with Maori customary law relating to
geothermal resources. This last omission may strike many people
as strange in a report which attempts to deal with "legal" and
"legal-historical" issues relating to geothermal resources, and
calls for an explanation.
The explanation for the omission of the subject of
customary law is partly simply a matter of my personal complete
lack of expertise. I have on a number of occasions argued that
Maori customary law be given its due place in geothermal (as
indeed in all) resource management, but this is a long way from
claiming expertise in the content of the customary laws. This is
obviously a task for others. I venture to express the hope that
one of the outcomes of the geothermal claim will be a better
understanding of the concepts and workings of Maori customary
law. This can only be achieved, however, if those with the
requisite knowledge feel willing to come forward in order to
enlighten the rest of us.
Maori customary law is omitted not because it is
unimportant, but because it is important. It deserves full
exposition by those who have the capacity to grasp its subtleties
and explain them to others.
Thii report focuses on the formal, normative, rules of the
New Zealand legal system. I have tried to set this law in as
broad a context as possible. I want to make it very clear that
ii
in discussing the common law and statutory framework I am not
implying that these rules ought to be the framework for
geothermal resource management from now on. The simple fact is
that for all practical intents and purposes these have been the
rules until now. It is necessary that they be fully understood.
Some features of the existing framework may have features which
might be seen as being of continued usefulness by this tribunal,
but in the present context I do not regard this as something for
me to judge.
A further feature of this report which calls for
explanation is the fact that the report does not begin with a
discussion of the rules of common law, but begins instead with
the "Fenton Agreement" of 1880. This is quite deliberate.
Issues about ownership of the geothermal resource (meaning the
underground resource) did not become relevant until the mid-
twentieth century. Only then did New Zealand begin to develop
the technology which led to the spectacular engineering successes
at Wairakei and Ohaaki.
The concept of a geothermal "resource", in short, is
recent. Prior to World War II the geothermal "resource", if it
meant anything, meant geysers and hot springs - in other words
geothermal surface features. To the government these features,
the "thermal springs" or the "hot lakes" of the Rotorua-Taupo
region were valuable as an asset for attracting tourists. The
legal regime that was developed was linked to the objective of
developing the tourist industry. The Thermal Springs Acts thus
prohibited any but the Crown from purchasing land in the Rotorua-
Taupo region, thus ensuring public ownership of hot springs
wherever possible .. The Scenery Preservation Act, which was in
part specifically targeted at thermal springs, facilitated
compulsory acquisition from Maori owners, proceeded with at
Waiotapu and Awakeri. A further objective of the Thermal Springs
Acts was to extend the zone of effective government authority.
with the realisation that geothermal energy beneath the
earth was an energy resource came the necessity for the first
iii
time to devise a legal framework for it. In discussing this it
becomes necessary to deal with the common law rules of resource
ownership. This is why this part of the discussion forms the
central, rather than the beginning, section of this study.
This year I was fortunate enough to be commissioned to
write a report for the Tuaropaki and Ngati Tahu trustees on
geothermal issues. This was completed in May of this year and
the report presented to the trustees as Ngatoro-i-Rangi's Legacy:
Maori Interests in Geothermal Resources (1991). This present
report naturally draws to a large extent from the earlier
document. However, this report is a completely different text
and has been completely rewritten. The report for
Tuaropaki/Ngati Tahu was quite different in its scope and
objectives. This report greatly expands on some material in the
earlier report, and omits a great deal of it. Only the sections
on the common law rules and the Scenery Preservation Act remain
essentially the same, though even here there have been many
changes made. I would like to take this opportunity to thank the
Tuaropaki trustees and Ngati Tahu trustees for the earlier
commission and the opportunity to discuss the situation with
them. I would like to thank also the Waitangi Tribunal for this
present commission. Grateful thanks are due also to Tom Bennion
of the Waitangi Tribunal Division, Department of Justice, for his
own helpful report on legislative issues~ and to Dr Evelyn Stokes
of Waikato University whose many papers on this subject have been
of invaluable assistance.
R.P. Boast
1.0
2.0
3.0
4.0
5.0
iv
TABLE OF CONTENTS
INTRODUCTION . . . · · · · · . . . . . · · · · THE FENTON AGREEMENT 1880
A. Introduction · · · B. The Rotorua Region in 1880
C. Fenton at Rotorua · · . . · · · D. The Contents of the Agreement
E. The Land Court Investigates Title to Te
Pukeroa · · · · F. Aftermath at Rotorua · · · THE THERMAL SPRINGS ACTS
A. The 1881 Act · B. The 1883 Act · C. The 1910 Act · · ·
THE SCENERY PRESERVATION ACTS .
A.
B.
Scenery Preservation and Thermal Springs
Compulsory Acquisition at Waiotapu and
Awakeri ..
THE DECLINE OF THE SPA IDEAL
·
· .
· .
6 . 0 THE GEOTHERMAL RESOURCE AS AN ENERGY RESOURCE: THE
COMMON LAW BACKGROUND
A.
B.
C.
Introduction .
Surface Water
Groundwater
D. The Geothermal Resource and Other Energy
E.
Resources
Minerals .
F. The Aboriginal Title Rule and Geothermal
Energy
6.29 Common Law Claims : Summary
.
.
1
2
3
4
6
9
11
14
16
16
22
24
24
24
28
29
33
33
35
35
42
44
48
55
7.0
8.0
9.0
10.
11. a
12.0
13.0
14.0
v
THE BACKGROUND TO THE 1952 AND 1953 ACTS
A. Geothermal Energy for Electric Power
B.
C.
Generation
The British Heavy Water Project
Maori Land at Kawerau
THE GEOTHERMAL STEAM ACT 1952 . .
A.
B.
C.
D.
Geothermal Power and Water Power .
The Geothermal Steam Act in Parliament .
Discussion of Maori Issues . . .. .
The Geothermal Steam Act 1952 Analysed .
THE GEOTHERMAL ENERGY ACT 1953
A. Background ..
B. The Geothermal Energy Bill in Parliament
C. The Geothermal Energy Act 1953 Analysed
D.
E.
Verdict on the Geothermal Energy Act
Amendments
THE ROTORUA CITY GEOTHERMAL ENERGY EMPOWERING ACT
1967 . . . . . . . . . .
A. Effect of the Act
B. The Act in Operation
DAMAGE TO SURFACE FEATURES
THE WATER AND SOIL CONSERVATION ACT 1967
A. Introduction
B. Maori Values
C. The Water Act and Geothermal Issues
D. The Water and Soil Conservation Act:
Summary . . . . . . . . . . . . . . . . .
MANAGEMENT PLANNING . . . . . . . . . . . . . . . . .
RECENT DEVELOPMENTS . . .
A.
B.
Resource Rentals
Structural Changes
56
56
59
64
65
65
66
71
72
73
73
74
76
80
81
82
82
83
84
88
88
88
90
94
95
98
98
101
15.0
C.
D.
vi
Sale of Geothermal Assets
Other Recent Developments
102
103
SUMM.ARY . . . . • . • . . • . • . . . • . . . . . .. 103
The Legal Framework for Geothermal Resources:
A Historical Study
1.0 INTRODUCTION
1.1 My full name is Richard Peter Boast. I am a senior
lecturer with the faculty of law of Victoria University of
Wellington, where I teach courses on environmental law, Maori
land law, legal history, indigenous peoples and the law and
public law. I have an LL.M from Victoria University and an M.A.
(1st-class honours) in history from Waikato University. In
relation specifically to geothermal issues I was commissioned by
the Manawhenua section of the Ministry for the Environment to
write a working paper for the Resource Management Law reform
process on Geothermal Energy: Maori and Related Issues
(published by the Ministry for the Environment in 1989), and this
year I have prepared a report for the Ngati Tahu and Tuaropaki
trustees entitled Ngatoro-i-Rangi's Legacy:- Maori Interests in
the Geothermal Resource (1991).
1.2 I regard myself primarily as a legal historian, and this
report is intended to focus primarily on those aspects of New
Zealand's legal history which impinge upon the ownership and
management of geothermal resources. I have taken the view that a
consideration of the implications of the Treaty of Waitangi is a
matter for counsel to address by way of submissions than
something to be traversed in evidence. Nor is this report
intended to traverse matters concerning traditional use of the
geothermal resource. Although I am familiar with some of the
Rotorua and Taupo minute books of the Native Land Court, which do
contain a certain amount of evidence regarding traditional use of
the resource, it seems unnecessary for me to present this
material to the Tribunal. For the Taupo region this has already
been covered in the many scholarly and valuable reports and
papers by Dr Evelyn Stokes which are already on the record and in
any event a separate report on traditional use of the use as
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documented in early travellers' records and the Minute Books of
the Native Land Court will be commissioned by the Tribunal.
1.3 My focus is on legal history. I have, however, decided to
interpret this fairly broadly. I have not confined myself to a
discussion of the background to, and subsequent history of, the
Geothermal Energy Act 1953. Although the principal focus today
is on the value of the geothermal resource as an energy resource,
for a much longer period the principal interest of government had
much more to do with the scenic and therapeutic qualities of
surface geothermal features. The narrative will begin,
therefore, with the Fenton Agreement of 1880 and with its
offshoot, the first Thermal Springs District Act. Some attention
will be paid to the first major investigations of title by the
Native Land Court in the Rotorua and Taupo regions (although it
is not possible to cover this comprehensively). This will be
followed by a consideration of the Scenery Preservation
legislation, the management of the resource by the Crown in the
years before World War II, and finally by a study of the
background to the enactment of the Geothermal Energy Act 1953.
This will include a detailed covered of the relevant common law
rules.
1.4 I am mindful of the fact that New Zealand's geothermal
resources are not confined to the Rotorua-Taupo region, but are
to be found in the Bay of Plenty, the Wairoa area and at Ngawha
in Northland as well. I have, however, decided to focus on
Rotorua-Taupo for present purposes. The story of land alienation
around Whakatane is a complex story in its own right, involving
raupatu issues to a large extent; and of course the Bay of
Islands has its own complicated story. I do not feel that I
could do justice to these important histories in this report. In
my opinion, the central and principal history follows a clear
line from the Fenton Agreement through to the Thermal Springs
Acts and the Scenery Preservation Acts, and it is on this I have
decided to concentrate for present purposes.
- 3 -
2.0 THE FENTON AGREEMENT 1880
A. Introduction
2.1 The Fenton Agreement of 1880 was the precursor to the
first of the Thermal Springs Acts. It also paved the way for the
modern settlement of Rotorua and for a flood of investigations of
title by the Land Court in the Rotorua-Taupo region in the early
1880s. It forms a convenient starting-point for the narrative.
2.2 On 25 November 1880 at the Tamatekapua meeting house at
Ohinemutu an historic agreement was concluded between the Crown
and Maori chiefs of the Arawa federation, principally from Ngati
Whakaue. The Crown's representative was Francis Dart Fenton,
then aged about forty, who had already made a name for himself as
Chief Judge of the Native Land Court. Unlike the Treaty of
Waitangi, the Fenton Agreement was directly negotiated with Arawa
chiefs on Arawa territory and remains of vital importance to the
present day - as the recent re-surfacing of the issue of medical
treatment reminds us. As to whether Arawa ever signed the Treaty
of Waitangi or not, I note only a reference in James Cowan's The
New Zealand Wars where Cowan, when he discusses Arawa's refusal
to join the Kingitanga, quotes the words of Temuera te Amohau at
the meeting at Paetai in 1857:-
"One of our chiefs, Timoti, was the only man of the Arawa
people who signed the Treaty of Waitangi, but we shall not
depart from the pledge he then gave. We will not join the
king tribes. My king is Queen Victoria. ,,1
2.3 The proliferation of recent commentary on the Treaty of
Waitangi takes no account of the fact that the Treaty of Waitangi
was not the only formal compact concluded between the Crown and
the tribes. There has been no attention given to the
constitutional position of texts such as the Fenton Agreement or
- to take another example - of the Aotea Agreement of 1881 which
brought the independence of the Rohe Potae (the so-called "King
Country") to a close. If it was the case that the Maori ceded
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this country to the Crown, is it not possible that the process of
cession was in fact partial and gradual and took many years to
complete?
B. The Rotorua Region in 1880
2.4 In 1880 the Rotorua region was part of a zone of
autonomous Maori authority. It should not be assumed, simply
because the hot springs of the area were already an
internationally-famed tourist attraction, that the area was under
the effective control of the state. In fact it lay completely
outside the formal structures of government. At Rotorua the
principal agency of authority was not the state but the Komiti
Nui 0 Rotorua, the "great Committee" of chiefs. The Komiti held
regular meetings at the Tamatekapua meeting house and had
appointed a secretary to conduct the Komiti's formal business.
The Komiti had organised its own process of investigations into
customary ownership of land complete with formal hearings after
which pieces of land were awarded to claimants on the basis of
Maori custom. 2 Fenton himself, in his report to the government
after the conclusion of the agreement, describes the Komiti as
follows 3 :-
"I should add that I found in existence, at Ohinemutu, a
regularly organised head body with Chairman, Secretary and
officers. It was constituted as a Land League for the
prime object of preventing alienation to the Crown, and in
a secondary degree, of obstructing or assisting, as the
case may be, in association with private persons, but it
subsequently assumed other powers and duties, and had
acquired a position of some importance, being accepted by
the tribe as the Witanagemot was accepted by our fathers,
with little more than its own influence and strength to
enforce its decrees."
2.5 Although the region was effectively under Maori control,
life in the Rotorua region had nevertheless been much affected by
European contact. The Christianity of the missionaries had
- 5 -
penetrated deeply: the Maori villages of the region were, of
course, Christian communities. The Arawa tribes had mostly
fought on the Crown's side during the wars of the 1860s. Arawa
was in a strategic and exposed position during the wars and had
provided a vital service for the Crown in blocking access to the
main theatre of operations in the Waikato to pro-Kingitanga
contingents from the East Coast4. Some Arawa officers rose to
high positions in the Crown's armed forces. The social
dislocation caused to Arawa by the wars and the extensive
fighting in their region is an uncharted subject, but the effects
must have been considerable. The wars had also led to a
programme of road construction, and by the mid-1870s a road ran
from Tauranga to Taupo via Ohinemutu and Atiamuri on the Waikato
riverS. With the road had come surveyors. The first telegraph
office in the region was opened in 1871 6 . Most importantly
Rotorua was the centre of a rapidly-growing tourist trade centred
on the lakes and hot springs of the region7 . For most tourists
the highlight of their visit was the Pink and white Terraces of
the Rotomahana area. The terraces, which were soon to be
obliterated in the devastating eruption of Mt Tarawera, were
located in the territory of Ngati Tuhourangi, who were certainly
doing very well economically out of the tourist trade in their
region8 . And, at Whakarewarewa the local people, "well aware" as
Stafford says9 "of the commercial value of their springs" had
constructed a number of "comfortable whares" for tourists (at 5s.
a week). It was this thriving trade which had brought some
European hotelkeepers and storekeepers into the district. The
tourist trade must also have had important social and economic
effects, but it likewise remains an uncharted subject.
2.6 These European residents were obliged to enter into lease
arrangements with the Maori landownders. Strictly speaking such
leases were legally void, a violation of the pre-emption doctrine
(a lease, as an estate in land, could only be effective following
the extinguishment of the native customary title). Fenton for
some reason harbored a particular aversion for these European
"squatters,,10.
- 6 -
2.7 In 1880 the whole Rotorua region was still uninvestigated
Maori customary land. Apart from a few minor early and abortive
inquiries, the Land Court had never sat there11 . Thus land
remained wholly Maori owned; control of the tourist trade was
principally in Maori hands; and local Maori had devised their
own system for regulating title without having recourse to the
Land Court. Arawa had indeed strenuously resisted the coming of
the Court into their region, and only at Maketu had its impact
been in any way significant l2 . The European population of the
region was tiny and basically lived under Maori sufferance. But
the situation was an unstable one. Government interest in the
region was growing. The coming of the road had involved of
necessity the coming of surveyors, and there had been an incident
at Ohinemutu in 1873 when two surveyors, Henry W. Mitchell and
C.O. Davis, had been forced to leave l3 . The road and the
telegraph had reduced the Rotorua region's isolation to some
degree and the tourist potential of the region meant that its
isolation and autonomy could not continue indefinitely.
C. Fenton at Rotorua
2.8 Although Rotorua chiefs such as Rotohiko Haupapa were keen
to modernise the region and to develop education, the idea of
concluding some sort of formal agreement between the Rotorua
chiefs and the Crown appears to have originated in Fenton's own
brain. Quite what his objectives were is not altogether clear.
From what is known of Fenton14 , and from his evident distaste for
the European tenants at Ohinemutu, it is possible that his main
objective was initially to regularise land ownership around
Rotorua by means of some process which would give an influential
role to the Native Land Court. The government's main objectives
were to make the area more attractive to tourists, and to obtain
land in the region for the Crown. This can be seen by the formal
instructions telegraphed by James Bryce to Fenton, on circuit in
Hawkes Bay at the time, in November 1880 15 :-
"Mr Rolleston [the Native Minister] who is absent in
- 7 -
Canterbury requested me to reply to your telegraph of the
5th instant reo the Rotorua business [not on the file].
Both he and I would be very glad if you would return
overland as you suggested and endeavour to ascertain on
what conditions the Maoris would be willing to dispose of
enough land near Rotorua to remove the present
difficulties and obviate future ones in respect to Hotel
accommodation for visitors to the lake. Govt. would agree
to almost anything which would be effectual as township
should however be formed to secure sanitary regulations
being enforced. This might be secured either by sale or
by lease. If they [illegible] ..... the latter the lease
should still be a long one. However you know what is
required and Govt. will look forward with interest to your
report in the hope that you will be able to advise some
course which will render the Lake Country more agreeable
to visitors that it is at present."
These instructions gave Fenton a remarkably free hand. Bryce and
Rolleston seem to have been more than happy to let Fenton handle
things as he wished. Although Rolleston was later to be somewhat
taken aback when confronted with the text of the agreement Fenton
was to conclude, he nevertheless needed little persuading to
accept it and it was subsequently ratified by the government
without difficulty.
2.9 Following receipt of his instructions Fenton made his way
from Napier to Rotorua via Taupo, an arduous journey in those
days, taking with him Wiremu Hikairo, an Assessor of the Native
Land Court and (in Fenton's words) "a landowner and a man of
importance in the Rotorua country,,16. Fenton was at Ohinemutu
for about a fortnight. During this time he had a number of
meetings with Ngati Whakaue. In his report Fenton stated that he
visited the "neighbouring tribes,,17 as well as Ngati Whakaue. He
certainly discussed matters with representatives of Ngati
Tuhourangi at Ohinemutu but what other tribes, if any, he visited
is impossible to say. The agreement which Fenton concluded
appears, to have been primarily an agreement with Ngati Whakaue
- 8 -
only. A separate, and much shorter, agreement was concluded with
Tuhourangi l8 . On his way home to Auckland Fenton travelled from
Rotorua to Maketu on the Bay of Plenty Coast, also in Arawa
territory, where he had some further discussions with Arawa
chiefs.
2.10 The Fenton agreement is dated November 25th, 1880. The
relevant Maori Affairs Department file contains a draft of the
agreement in Maori and Fenton's own translation of this into
English, as well as a separate English text which may have been
re-worked from Fenton's translationl9 . There seems no reason to
doubt that the contents of the agreement were worked out in Maori
by Fenton (who spoke and wrote Maori fluently) and the chiefs,
and that the Arawa chiefs present comprehended perfectly well
what was transpiring. As to the actual drafting of the agreement
Fenton says:-
"The agreement which I enclose is abundantly signed, and
will be faithfully kept. There may be some difficulty as
to the boundary lines between this tribe and that of the
adjoining tribe, Tuhourangi, but that difficulty will be
the duty of the Native Land Court to overcome. It will
not concern the government ..... The several items of the
agreement are mostly of my own proposing - The natives put
themselves pretty well into my hands with the exception of
not permitting cession to the Crown, and I inserted the
conditions which under the circumstances I thought most
advantageous - remembering that the town would not be a
commercial town nor for many years to come couldn't [sic]
be much interested in agriculture, but that its prosperity
would be based on circumstances entirely exceptional. ,,20
2.11 Whatever one thinks of Fenton or his objectives, it has to
be conceded that the agreement he devised was a remarkable
achievement. It was no small feat to have won the confidence of
the Ngati Whakaue chiefs in the way he did. Fenton's attitude
towards the chiefs seems to have ambivalent. With some of them
he seem.s-to have developed a reasonably close friendship,
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evidenced by the· flood of telegraphs in Maori which passed
between them and Fenton. On the other hand there certainly was
an element of condescension in Fenton's general attitude, as is
shown in the revealing remark made in his report. Here he urged
the government to make haste in giving effect to the agreement
and that government:-
" ... should leave nothing unfinished or postponed. Dilatory
and prevaricating as they are themselves, they [the
chiefs] do not endure these qualities in others. ,,21
D. The Contents of the Agreement
2.12 The agreement is entirely concerned with future
arrangements for the new town of Rotorua. Following a survey to
be conducted by the Chief Surveyor, the first principal step was
to be a Native Land Court adjudication of the block later to be
known as Pukeroa-Oruawhata.
1. The whole of the land commencing on the North of Te
Pukeroa, going on to the Puerenga River, on the
Rotorua Lake and extending on to the mountains must
be adjudicated upon by the Native Land Court of New
Zealand, but excluding the Maori settlement of
Ohinemutu22 .
Following the adjudication and the survey of the block boundary
Mr Smith was to survey out the new town sections. The agreement
carefully detailed the arrangements regarding the new town as
follows:-
3.1 The land that lies between Te Pukeroa and Rotorua
shall be left for a settlement for the Maoris, but
the present road shall be widened and carried on to
the Town.
3.2 Te Pukeroa to be a Reserve for Public Recreation
for everybody, be they Europeans or Maoris. This
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Reserve shall be vested in certain Europeans and
Maoris, to be chosen by the Committee.
3.3 Persons who own portions of the Pukeroa Block shall
be paid for the same by pieces in the Town. This
shall be carried out by the Committee of Rotorua.
3.4 The piece of land owned by Roman Catholics in the
Pukeroa Block shall be exchanged for a piece in the
Town.
3.5 A skilled doctor shall be located in the Town.
3.6 All the medicinal waters within the Town shall be
Public Reserves under the management of the doctor,
who may make laws regulating their use23 .
It was provided that the streets of the town were to vest in the
Crown, that land would be given "without payment" for a water
race from the Utuhina River to the town, and that "all Maori
patients shall be received into the hospital free of charge,,24.
2.13 Some attention was given to questions of law and order and
to ensuring that the Pakeha and Maori communities would be able
to live peaceably together. It was provided in Clause 7 that
"when the Town shall have grown up and become of importance" the
government would appoint a resident Magistrate. The Magistrate,
together with the doctor and a Maori representative chosen by the
Komiti would control the issue of licences for taverns 25 .
Provisions were made regarding the fencing of stock - a frequent
source of trouble between Maori and Pakeha in other areas 26 .
2.14 Arguably, the most important sections of the agreement
related to the leasing of land. The idea was that the Town
sections at Rotorua would not be sold but would be leased and the
income be available for the Maori Owners. The leases were to be
on advantageous terms to make them attractive to purchasers, who
presumaply would be expected to pay a lump sum plus an annual
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rental. The leases were to be sold by auction in Auckland and
were to be for a period of 99 years. The auction and the
administration of the proceeds were to be conducted by the
Commissioner of Crown Lands at Auckland27 .
2.15 Essential to the success of the scheme, in Fenton's view,
was advertising the sale of the leases in Australia and India,
emphasising the therapeutic qualities of the hot springs. Fenton
states in his report:-
"I nearly forgot to state that I persuaded the Maoris that
the scheme should be advertised in the adjoining British
possessions, including India. May I take the liberty of
suggesting that Dr Hector's services would be of great
value in performing this work and that the official
Gazette would be a good medium. That gentleman is well
acquainted with the peculiar and various character of
the ..... mineral waters of the place." 2 8
E. The Land Court Investigates Title to Te Pukeroa
2.16 The first step in the process of implementing the
agreement - and of land alienation in the Rotorua district - was
the Native Land Court's adjudication of title in the case of the
Pukeroa-Oruawhata Block. This is the major block of land which
stretches east from Ohinemutu and which now accounts for most of
the modern city of Rotorua. The case was heard not by Fenton but
by Judge Symonds, the hearing beginning on 29 January 1881 with
judgment being given on 28 June 1881. Fenton, however, retained
a remarkable degree of control over events from behind the
scenes. He was engaged in a very active correspondence not only
with the Ngati Whakaue chiefs29 , but also with others sent by
Fenton to help Ngati Whakaue in getting their case through the
Court, and with the presiding judge himself 30 . He was
furthermore in constant contact with Rolleston and other members
of the government.
"
- 12 -
2.17 After the· initial burst of enthusiasm some of Ngati
Whakaue began to have their doubts about the whole scheme.
Fenton sent Gilbert Mair to Ngati Whakaue ostensibly to assist
them, although his principal task was to keep Fenton informed of
events at Rotorua and to ensure that Ngati Whakaue continued with
the project. On 1 July 1881 Mair telegraphed Fenton at
Rotorua31 :-
"Reached here last night after ten o'clock. Ngati Whakaue
will get all the block except 45 acres to Ngati Tuara. I
am to get Komiti this 'afternoon to discuss the
restrictions. The people are pleased that some one has
come to help them in the matter but I am afraid they are
not so keen about the scheme as they were originally.
Indeed I find that some of them are dead against it. The
Komiti have been trying for several days to prepare lists
of names for certificate. Their difficulties in this
direction may perhaps induce them more readily to accept a
board of trustees instead. There is a strong feeling
against all sharing alike .. ... r foresee a good deal of trouble.
WG MAIR"
Fenton also sent E.W. Puc key , another Land Court Judge, "to watch
the Court for the Crown,,32. Puckey likewise kept Fenton closely
informed as to events; Fenton in turn made sure that political
difficulties with the agreement in Wellington were smoothed
over33. Fenton's tenacity and energy certainly were remarkable,
although whether what was proceeding was really to Ngati
Whakaue's advantage is another matter.
2.18 Although the hearing lasted, by fits and starts, for
nearly six months and generated quite a volume of evidence, Judge
Symonds' decision is amazingly brief (9 short paragraphs). The
case usefully illustrates the process of adjudication of title as
it was typically conducted by the Land Court. Various Arawa
tribes advanced claims to the block: Tuhourangi, Ngati
Rangiwe~ehi, Ngati Uenukukopako. The evidence discloses a
- 13 -
complex tribal history and subtle linkages of interests between
the tribes. Ngati Whakaue went last and had essentially only one
witness, Hamuera Pango, who advanced claims to the block based on
the standard categories of conquest, permanent occupation,
fortification, cultivation, burial places, and "mana over this
and the adjacent lands". In his cryptically brief judgment,
Judge Symonds awarded the whole block to Ngati Whakaue,
completely disallowing the claims of all other Arawa tribes. The
other successful claimants were Ngati Kea and Ngati Tuara, two
small groups who had fled to Rotorua as a refuge from the
powerful Waikato tribes and who had been granted by Ngati Whakaue
a small piece of land at a place known as Tarewa34 .
2.19 The next step in the process was for Ngati Whakaue to hand
in a list of names, who would then be recognised by the Court as
owners. This technique of leaving it to successful block
claimants to work out their own names was also routine: only if
names in the lists were challenged or if there were rival lists
did the Court become involved in this stage of the process.
Although lists of names finally were prepared, this was achieved
only at the cost of considerable tension being generated within
Ngati Whakaue. According to Puc key there was much distrust
between the "people" and the chiefs, as well as a considerable
amount of sheer personal jealousy - all no doubt exacerbated by
the novel nature of the Land Court and its workings to Ngati
Whakaue 35 . As if the tensions within Ngati Whakaue were not
troublesome enough, the other Arawa tribes were far from happy
about being excluded from the Pukeroa-Oruawhata Block as a
consequence of Judge Symonds' decision. On August 12 Fenton
received a letter from Makari Hikairo and others applying for a
rehearing of the original case:-
"Under pressure of pain for lost land (He karanga na te
mamae ki te whenua iwio), we women make bold to write this
letter to you: an application for the rehearing of Te
Pukeroa-Oruawhata Block, situate at Ohinemutu ..... recently
heard by the Native Land Court ..... The grounds of our
~pplication are these:
- 14 -
1. We are not clear as to the reason why the Court did
not fully consider the many generations during which we
cultivated and occupied the pieces in the northern end of
the Block.
2. We are not clear as to ground on which the Court
stated there remained no mana of Ngatirangiwewehi on all
its pieces of land at Ohinemutu.
3. Our brother W. Hikairo was sent elsewhere as
Assessor for some Judges at some other Courts, while the
Court was sitting here at Ohinemutu. W. Hikairo is the
one best able to set forth our claims and all our rights
to the pieces of the land at the northern end of this
Block.
4. During January last the "Komiti Nui 0 Rotorua"
adjudicated upon those pieces. They were investigated
before the four judges of that Komiti, and we appears to
state our claims before that tribunal, and some of those
pieces were awarded to us by reason of our claims under
Maori custom." 36
This may indicate, indeed, that the Komiti was far better able to
appreciate the nuances and complexities of ownership around the
region than was the Land Court itself. The Court's approach
forced a complicated reality into a very Procrustean bed, leaving
much dissatisfaction in its wake. However ,no action appears to
have been taken with regard to the application from the women of
Ngati Rangiwewehi.
F. Aftermath at Rotorua
2.20 One almost immediate consequence of the Pukeroa-Oruawhata
Block hearing was a sudden flood of hearings concerning other
blocks in the region37 . For many years the Rotorua region had
been a bastion of resistance to the Court. Now, within a space
- 15 -
of months, the whole structure of carefully-managed resistance
simply caved in. The pattern in Rotorua was just the same as
occurred in every other place where the Court was finally
admitted after decades of resistance38 .
2.21 Legislative backing for the Fenton agreement came with the
Thermal-Springs District Act 1881, which gave to the Crown the
necessary statutory authority to act as Ngati Whakaue's agent in
the administration of the leases and the collection of rent.
Fenton had with characteristic energy devoted much effort to
advertising the leases in Australia and elsewhere, and the first
auctions were very successful. Fenton and the Ngati Whakaue
chiefs were delighted at the apparent success of the scheme. One
contemporary report of the auction states:-
"At the close of the sale ..... a disturbance was visible at
one end of the room ..... it was Fenton, the Chief Judge
.... . in an ecstacy of delight performing a haka with two
old Rotorua savages ..... The ecstacy of the trio arose from
the success of the Rotorua scheme and the prospect of
manipulating £2,700 per annum . ..39
In May 1881 the new town of Rotorua was surveyed out by A.B.
Morrow. Areas were reserved for a hospital, sanatorium ground,
and a railway station.
2.22 It was not long, however, before things began to turn very
sour. Initial interest in the scheme waned. The new town of
Rotorua, stigmatised by the European settlers at Ohinemutu as
"Rotten Egg Town" failed to grow as planned. This seems mainly
to be due to the deep economic recession of the 1880s. The
eruption of Mt Tarawera in 1886 was a devastating blow,
destroying the Pink and White Terraces (the major tourist
destination in the region) and reducing the formerly prosperous
Ngati Tuhourangi to virtual destitution. Existing lessees began
to default, and unallocated leases became unsaleable. Ngati
Whakaue were caught in a difficult situation. Locked into the
agreeme,nt and caught by the provisions of the Thermal Springs Act
- 16 -
(which prevented the alienation of land to anyone but the Crown)
they were unable to sell their land to anyone else. The
agreement, far from being a boon, turned out to be a millstone
around the necks of Ngati Whakaue. Unable to develop or sell the
land, deprived of rental income but not themselves able to take
any steps to collect it from the lessees, Ngati Whakaue took the
only option open to them. In 1889 Pukeroa-Oruawhata was sold to
the Crown.
2.23 More accurately, the Crown bought out the shares of nearly
all of the owners of the block. The total amount paid for
Pukeroa-Oruawhata was £9,750. The Crown was not able to acquire
all of the shares as a handful of owners refused to sell. For a
number of years the block remained technically Maori freehold
land (albeit owned almost wholly by the Crown). The Crown did
deal with parts of the block by Proclamation - for example on 2
March 1896 part of Pukeroa-Oruawhata was taken or set aside
(depending on what view one takes of the status of the Pukeroa-
Oruawhata Block) for railway purposes. The Crown could have
applied to the Land Court to have its majority interest in the
block partitioned out, but never did so. Parts of it were set
aside by Proclamation but the formal status of Pukeroa-Oruawhata
remained unchanged until 1910 4°. In this year the whole block was simply converted to Crown land by statute, extinguishing the
remaining private interests and saving the Crown the trouble of
bringing a partition application and the costs of having the
block re-surveyed.
3.0 THE THERMAL SPRINGS ACTS
A. The 1881 Act
3.1 The first Thermal-Springs Districts Act 1881 was a follow-
up to the Fenton Agreement, and its primary objective was to give
the agreement legislative effect. After its enactment the
agreement was formally ratified by the Governor, Sir Arthur
Gordon, on behalf of the Crown. Endorsed on the Maori text of
the agr~ement on MA 13/79 one finds the following:-
- 17 -
"In pursuance of the Thermal Springs District Act 1881,
and in execution of the powers conferred upon me by the
5th section of the said Act, I hereby contract with the
Tribe of Ngati Whakaue in terms of the above written
instrument.
Dated the 16th day of February 1882
Signed: Arthur Gordon
Governor"
The formal endorsement, it will be noted, contracts specifically
with Ngati Whakaue. The separate agreement with Tuhourangi had
caused some concern to Rolleston, and he had earlier raised this
with Fenton. On February 14, 1882 he telegraphed Fenton:-
"How about agreement with Tuhourangi is that to be signed
by the Governor. Rolleston.,,41
But Fenton replied:-
"The agreement with Tuhourangi tribe need not be noticed.
Their claim to this block [i.e. pukeroa-OruawhataJ was
disallowed. Presently I hope to see a town on their land
at Rotomahana.,,42
This demonstrates, if nothing else, the remarkable degree to
which the government was willing to let Fenton take charge of the
whole process.
3.2 Although the agreement and the outcome of the Pukeroa case
had caused dissatisfaction amongst the other Arawa tribes, and
some elements of Ngati Whakaue began also to have their doubts,
other chiefs were committed to the new relationship with the
Crown. Chief amongst these was Paora te Amohau of Ngati
Whakaue 43 .
- 18 -
3.3 The Thermal-Springs Districts Act 1881 was described in
its long title as an act "to provide for the settlement of the
Thermal-Springs Districts of the Colony". The area was intended
to pass out of the autonomous Maori zone and into the zone of
European settlement and effective government control. It is not
suggested that this was contrary to the wishes of Ngati Whakaue;
the issue that arises with the legislation is what is meant by
the "Thermal Districts". Even those groups that favoured
settlement in their territories and the building of closer
relationships with the Crown were not willing to do so on the
basis of an agreement that, whatever its merits, had been
concluded with just one Arawa tribe.
3.4 The Preamble to the 1881 Act read:-
"Whereas it would be advantageous to the colony, and
beneficial to the Maori owners of land in which natural
mineral springs and thermal waters exists, that such
localities should be opened to colonization and made
available for settlement: And it is expedient that powers
should be given to the Governor enabling him to make
arrangements for effecting that object ... "
The Act allowed the Governor to proclaim "localities in which
there are considerable numbers of the ngawha, waiariki, or hot or
mineral springs, lakes, rivers or waters,,44. Once such an area
had been proclaimed:-
" ... it shall not be lawful for any person other than Her
Majesty to acquire any estate or interest in Native land
therein. ,,45
Thus only the Crown could buy Native land in areas subject to the
Act.
3.5 It is important to put this in its historical context. By
1881 the pre-emption doctrine in Article II of the Treaty of
Waitangi.had been substituted by the process of investigation and
- 19 -
award of title by the Native Land Court acting under the Native
Land Acts, the first of which was enacted in 1862. The
underlying principle was that of free alienation following
investigation - provided the Land Court had issued a title to it,
any block was freely alienable46 . The Thermal Springs Act was
thus an exception to the general operation of the Native Land
Acts. Following an investigation by the Court, only the Crown
could purchase; or, to put it another way, the Crown had a
complete monopoly of purchase of Maori land in areas subject to
the Thermal Springs Acts. The legislation was not in any sense
confiscatory, nor did it change the status of any Maori land. A
number of hypotheses can be advanced to explain why this approach
was taken. One is that a conviction had developed on the part of
government that unfettered private purchase of investigated Maori
blocks led to all kinds of abuse, typified by the sorts of
practices that occurred in Hawkes Bay and which were explored
(although not remedied) by the Hawkes Bay Native Lands Alienation
Commission of 1873 47 . It is significant that in the later
nineteenth century, similar regimes were adopted for those areas
of remaining Maori autonomy - the King Country (Rohepotae),
Rotorua and Te Urewera. A common feature was that in each case
purchase of land was restricted to the Crown48 . Another
explanation for the Thermal Springs Act is that the government
wanted to ensure that the thermal areas were not all sold off
into private lands, as had happened at Wairakei49 . Further
research is necessary before either hypothesis can be fully
tested. For present purposes it is enough to note the
similarities in approach adopted in respect of the King Country,
the Rotorua region and Te Urewera.
3.6 The Fenton agreement is nowhere referred to in the text of
the 1881 Act, but it was discussed fully in parliament. The four
Maori MPs and opposition members of parliament (a key figure in
the opposition at the time was Sir George Grey) pointed out that
although Fenton's agreement had been concluded only with Ngati
Whakaue, the act itself had a much wider potential ambit - in
fact anywhere where there were thermal springs50 . The
government's response was to amend the act by restricting its
- 20 -
application to the counties of Tauranga - which then included the
whole Rotorua region - and East Taupo. This, of course, was
still an enormous area, extending well beyond the limits not just
of Ngati Whakaue but of the entire Arawa confederation, extending
into the territories of Tuwharetoa, Ngati Awa, Ngai Te Rangi and
others. The first area proclaimed was the Pukeroa-Oruawhata
block at Rotorua/ an area of 3/200 acres, proclaimed on 13
October 188151 . The concerns of Major Te Wheoro and Sir George
Grey were fully realised/ however, with the next proclamation,
which proclaimed a staggering area of 616,890 acres to be subject
to the Act52 ; and on the same day, 27 October, a substantial
area in north of Taupo was likewise proclaimed. The effect was
that the government at a stroke acquired a complete monopoly of
land purchase in an enormous area stretching from Tauranga to
Taupo.
3.7 The Act made further provision relating to thermal areas.
Section 5(3) empowered the Governor to:-
" ... treat and agree with the Native proprietors for the
use and enjoyment by the public of all mineral or other
springs, lakes/ rivers and waters."
Any by section 6(7) the Governor was empowered to:-
" ... manage and control the use of all mineral springs, hot
springs, ngawha, waiariki, lakes, rivers and waters, and
fix and authorise the collection of fees for the use
thereof ..... with the consent of the Native proprietors, to
be ascertained in such manner as he may think fit."
Quite obviously this reflects one of the principal objectives of
the agreement and the legislation - to give the government a pre-
eminent role in the development of a tourist industry based on
the hot springs.
3.8 Ian Rockel, in his book Taking the Waters: Early Spas in
New Zealand (1986) has argued that William Rolleston, Minister of
- 21 -
Lands 1879-1884, "had a particular interest in developing spas in
New Zealand on the European model. The favoured localities were
Rotorua and Te Aroha (also within the ambit of the Thermal
Springs Act after the 1881 proclamations) in the North Island,
and Hamner in the South Island. Certainly the legislative
machinery of the Thermal Springs Act enabled this to be achieved
in the North Island. The government had especially extensive
powers to initiate development at Rotorua, since after 1890 it
owned all the land in the town, with all the residents on 99-year
lease (not until 1920 was it possible to purchase the freehold).
Still, it is hard to see why, if developing spas were the main
object, it was necessary to proclaim such an extensive region
under the 1881 Act. Developing the tourist industry was unlikely
to have been the sole, or perhaps not even the principal,
objective of the government's action.
3.9 In order to form a true understanding of the effect of the
Thermal Springs Act, it needs to be remembered that the Crown had
already become involved in the purchasing of land in the
proclaimed area well before 1881 (although not at Rotorua
itself). An example is the Tauhara North block, which passed the
Land Court as early as 1869. The block, which included a number
of hot spring areas, was vested by the court in precisely two
persons, Hare Reweti Te Kume and Hare Matenga Taua. In 1873 a
large section of this block was cut off and sold to the Crown.
In 1887 Hare Matenga explained what had happened53 :-
"What I wish to explain now is the sale of this land. In
1873 this land was sold. The man who bought it was Mr
Mitchell. Reweti Te Kume was the only person who received
the money at that time. In 1875 I received some money
from Mr Mitchell - I received £100. I don't know what Te
Reweti got. On the last occasion I received money I don't
know what year it was. £15 was the amount of the last
payment made to me. When that was done then the land was
cut up for the government survey claims and start the
sale. The part cut off was from Te Aratiatia straight to
aipaua but it was one mile distant from the swamp at
- 22 -
Rotokawa. ". The reason I was so long before accepting the
money was because I didn't want to sell - and the interest
on the survey lien was increasing year by year. The part
sold was on the western side of the line I speak of. That
was why it was sold; because of the survey - and the
money Te Reweti and I got was what was left after the
survey lien was paid."
This illustrates usefully the point that the problems which
bedeviled the alienation of Maori land (quite apart from the
extra complication of the Thermal Springs legislation) were as
much to the fore in the Taupo region as they were anywhere else
in the country.
B. The 1883 Act
3.10 The purpose of the Thermal Springs District Act 1881
Amendment Act 1883 was essentially to give formal recognition to
the Fenton Agreement, and also to a subsequent arrangement made
between the Crown and Ngati Whakaue in 1883 (the "Clarke
Agreement"). On 25 February 1883 Henry Clarke had met the Ngati
Whakaue chiefs and it was agreed (quoting from the preamble of
the 1883 Act) that "all those portions of the arrangement made
between the said Francis Dart Fenton and the said tribe which
remained unfulfilled should be carried out, subject to certain
modifications in the said agreement mentioned". Section 2 of the
1883 Act provided that:-
"The said hereinbefore recited arrangement (i.e. the Fenton
Agreement) and agreement (the Clarke Agreement) are hereby
confirmed, and shall be deemed to have been valid and
effectual as from the twentieth day of November, one
thousand eight hundred and eighty-one, and shall be deemed
and taken on that date to have conferred on and given to
the Governor all the rights, powers, and authorities
specified or mentioned in the said Act in respect of the
said lands the subject of the hereinbefore recited
arrangement.
- 23 -
3.11 Perhaps not altogether surprisingly, the passage of the
1883 Act through parliament was marked by some concern about the
amount of land proclaimed under the 1881 Act. One Mr Holmes
said:-
"The quantity of land, for example, was much greater than
they had imagined when they passed the Thermal Springs
Act; he believed it extended to six hundred thousand
acres. He knew that the extent of the reserve on account
of these Thermal Springs was vastly larger than they had
imagined would be reserved at the time the Act was
passed. ,,54
But Whitaker, the Premier, defended the government's actions
vigorously:-
"The object was to prevent these springs being used by
private individuals starting grog-shops, and making a
number of small settlements over which there would be no
control, and to include the chief springs in one block.
That was why 600,000 acres were taken. When he said
'taken' he did not mean that it was taken from the
Natives: the Government took the management of it for the
benefit of the Natives. ,,55
3.12 The principal issue by 1883 had become the Thames Valley
and Rotorua Railway Company's proposed line to Rotorua. The
Rotorua chiefs seem to have been keen to have a railway link with
Rotorua, so much so that they were willing to donate land to the
railway company both for the purpose of providing land for the
track and stations and to allow the company to float its
debentures in the English market. The Crown had itself concluded
separate agreements with the railway company and the Maori
landowners 56 to facilitate the venture, and specific provision
authorising these further arrangements was included in the 1883
Act. 57
- 24 -
C. The 1910 Act
3.13 This was the last in the succession of special enactments
for the thermal-springs districts. Its main objective was to
close the Crown's title to the Pukeroa-Oruawhata block and to
extinguish the few remaining shares in the block which the Crown
had been unsuccessful in obtaining by private negotiation. It
also facilitated bringing to an end the special regime for the
region and throwing it open to European settlement, although
actual sites of thermal springs remained protected58 . Mokoia
Island was made an inalienable reserve59 .
4.0 THE SCENERY PRESERVATION ACTS
A. Scenery Preservation and Thermal Springs
4.1 The first statute concerning scenic reserves in New
Zealand was the Land Act 1892. By s.2 of this Act, the Governor
was empowered to set aside from sale areas of Crown land for
reserves for the protection of scenery or of "natural
curiosities". This was taken a step further with the Scenery
Preservation Act 1903 which allowed private land to be
compulsorily taken for the purpose of scenery preservation.
4.2 In 1904 Haupeta Hautehoro (of Rotorua) and about 100
others lodged a petition objecting to the compulsory taking of
Maori land for the purposes of scenery preservation. The
petition states:-
"We your petitioners earnestly protest against section 5
of part 2 (ss.2 of s.5?) of "The Scenery Preservation Act
1903" aforesaid, which provides that certain portions of
Native Lands be taken under this Act, and fixes the
payments for the said Maori lands, and the paying of
monies into the hands of the Public Trustee.
The Maori lands that will be taken under this 'Scenery
Preservation Act' are, the famous places, the lands
- 25 -
containing thermal springs, the famous pas, the canoe
landing places of former days, the sites of famous whares,
the sacred shares, the bird snaring places of olden time,
that is to say all such places as are understood by this
Act as likely to be much frequented by the Tourists of the
World who visit here.
And the Maoris who are the owners of the said lands will
be left to die; sufficient as to that. If any Maori or
Maoris desire to work the timber on his or their lands as
a means of earning money, or to clear the bush for a food
cultivation, he will be fined £100.
Therefore we your petitioners will continually pray to
your Hon. House that this Act shall not apply to Maori
lands.
This is a very serious punishment to inflict upon your
Maori people; inasmuch as your Honorable House has
already passed another Act to preserve the balance of the
Lands of your Maori people (i.e. the Maori Lands
Administration Act).,,60
In response Mr C.R.C. Robieson, the Acting-Superintendent of the
Tourist Department, advised the Minister for Tourist and Health
Resorts as follows:-
" ... In general the Native suffers no more hardship than a
European in cases where the Government requires any land
for the purposes of this Act. The terms of acquirement
are the same as under the Public Works Act
1892 ..... However, to exempt Native land from the
operations of Clause 5 would practically nullify the
effect of the Act as the bulk of the scenic and historic
spots, especially in the North Island! are either Native
owned or Native reserves. ,,61
- 26 -
The 1903 Act was amended in 1906, and on that occasion all
references to Native land were removed from the Act 62 . This
protection was, however, in turn removed in 1910. Section 10 of
the 1910 Act also validated takings of Native land for scenery
preservation "prior to this Act" - the significance of which will
become apparent when the acquisition of Waiotapu is discussed.
4.3 Acquisition of areas of land which contain thermal springs
was a principal purpose of the Scenery Preservation Acts. The
Long Title of the consolidating 1908 Act described it as:-
"AN ACT to consolidate certain enactments of the General
Assembly relating to the Acquisition of Lands of Scenic or
Historic Interest, or on which there are Thermal Springs."
The 1903 Act established a Scenery Preservation Commission. Its
task was to tour the country and to make recommendations as to
whether areas of land (in Crown, private of "Native" ownership),
should be reserved as "scenic", "thermal" or historic reserves.
Within two years of its establishment in 1904 14,565 acres had
been reserved. In 1904 the Assistant Inspector of the Tourist
Department at Rotorua urged that Lake Rotokawa be taken under the
Act. His report to the Acting Superintendent of the Tourist
Department gives an interesting description of Rotokawa in the
first decade of this century:-
"Rotorua, July 3 1904:-
Sir,
I herewith forward you the report of my visit to Roto
Kawa. I visited Roto Kawa in company with Messrs
Crowther, Ingles and Mr Howe all of Taupo district and who
know Roto Kawa well.
I made a very careful examination of the whole place and
found it to contain a number of boiling sulphur springs
- 27 -
and two very fine sulphur caves, the fumes would of course
prevent any person from entering the caves.
I would say that the property containing the springs and
sulphur beds would be about 300 acres. Their [sic] is no
doubt that the whole place is nothing but sulphur under
the outside crust. I noticed that visitors are in the
habit of digging for sulphur specimens which is defacing
the place and I think something should be done to stop
this. The lake is a very pretty one and it is simply
swarming with wild ducks. The land around the southwest
side of the lake is of good soil and would grow anything,
but the rest of the block which contains 2776 acres is
poor.
I am strongly of opinion that the Department should have
the whole of the springs and the sulphur beds reserved
with its lake. I am sending you a map of the District and
I have marked in red ink what I think the Crown should
resume ... "
J.G. Ward, the Minister for Tourist and Health Resorts forwarded
this on to the Chairman of the Scenery Preservation Commission,
but the file was noted:-
"Native Land. Action Cannot be Taken under Scenery
Preservation Act at present. ,,63
4.4 Relations between the Scenery Preservation Commissioners
and Maori landowners had been difficult, as is shown in Apirana
Ngata's speech on the Scenery Preservation Amendment Bill in
1906 64 :-
"Mr NGATA (Eastern Maori District) said he did not like to
let that opportunity pass without making a few comments on
the Bill. He did not want it to be understood that there
had been any organised opposition on the part of the
~ative race to the government taking historic and other
- 28 -
spots as reserves under the Act. The objection of the
Native people had been to the manner or method of
reserving certain of these areas. While admitting that
most of the historical spots and old burial-grounds should
be reserved, under such protection as would ensure their
protection from acts of vandalism in the future, there was
a suspicion in the Maori mind that in the matter of
compensation they did not receive full justice - that
there was a disregard of what I [sic] he might call the
sentimental side of the question. During the last three
years a great deal of dissatisfaction had been felt by
Natives throughout the colony - and more particularly by
the Maoris in the Hot Lakes District - with respect to the
action of the Commissioners under the Act of 1903. It
very often happened that the Commissioners held their
meetings a hundred miles from the lands proposed to be
taken, and they made recommendations and reservations
without viewing the spots proposed to be reserved. They
were guided to a great extent by the reports of interested
persons in the district, without, in many cases,
consulting the Natives concerned; and owing to that a
great many spots that should have been reserved had been
deliberately destroyed by the Natives as a sort of protect
against the methods of the Scenery Preservation
Commissioners."
B. Compulsory Acquisition at Waiotapu and Awakeri 65
4.5 The principal thermal area under Maori ownership taken
under the Act was Waiotapu. Administration of Waiotapu had
involved numerous problems, and the Tourist Department built up a
substantial file on the place in the early twentieth century (TO,
1, 1901/36, Waiotapu Reserve). Various persons complained that
the Maori owners were over-charging for conducting visitors
around the thermal area (4s. per person). There were other
problems, such as when a tourist named Fitchett carelessly set a
sulphur patch alight (fortunately the fire was put out before too
much da~age was done), or when another group of tourists only
- 29 -
narrowly missed being scalded to death from an exploding mud
volcano. There were problems with cattle belonging to Mr
Falloona, the tavernkeeper at Waiotapu, damaging the thermal
features. Government land at Waiotapu was originally used not
for any tourist purpose but as a prison, giving rise to concern
about the supposed menace to tourists posed by escaped criminals.
The Tourist Department had raised with the Department of Lands
the possibility that the Maori-owned part of the reserve be
compulsorily taken, and this idea received encouragement when in
1907 Rukingi Rotohiko Haupapa of Ohinemutu wrote to the
government stating that he wished to sell his shares in the
Waiotapu Block66 . Other others, however, were unwilling to sell.
4.6 The precise sequence of events at Waiotapu is rather
difficult to reconstruct. In September 1907 it appears that a
sizeable area of Maori land at Waiotapu was taken, pursuant to
the Scenery Preservation Act 67 which was probably illegal, since
the Scenery Preservation Act did not at the time allow the taking
of native land. A further source of confusion was that on 27
January 1908 the Engineer in Charge, Department of Tourist and
Health Resorts, Rotorua, wrote to the General Manager of the
department at Wellington urging that the Maori land at Waiotapu
be taken. This is puzzling in that this was, firstly, illegal
and, secondly, appears to have been done already. There was a
further proclamation re~ating to land at Waiotapu in 1908, but
this relates quite clearly to an area which was already Crown
land. (See NZG 1908 8937). Presumably the confused state of
affairs at Waiotapu was the reason for s.10 of the Scenery
Preservation Act 1910 which, as already indicated, validated the
taking of native land prior to the 1910 Act. By 1908, in any
case, the whole of the Waiotapu reserve was in Crown hands. This
transaction really does deserve close examination, as it appears
that the Crown illegally acquired compulsorily Maori land
containing surface geothermal features against the will of the
majority of the owners, and then validated its own actions with
retrospective legislation in 1910. A further thermal area taken
under this Act was Awakeri - see para. 7.11, below, and fn.111.
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5.0 THE DECLINE OF THE SPA IDEAL
5.1 The apogee of the Government's hopes to create a European-
style spa based on the health-giving properties of geothermal
waters came in 1908. On 13 August of that year Sir Joseph Ward
and Admiral Sperry of the American Pacific fleet opened the new
bath-house at Rotorua (the building in the Government gardens now
usually known as "Tudor Towers"). The driving force behind the
building's construction was Dr Arthur Stanley Wohlmann,
Government balneologist at Rotorua since 1902, and the building
had cost something like £40,000.00 to build. The surrounding
area was developed in order to assist in the creation of an
ambience resembling one of the great European spas. Rockel
writes:-
"The Tourist department also attempted to make Rotorua and
the gardens attractive. The tea house opened in the
grounds, now known as the Government Gardens, became the
social centre of Rotorua. A band rotunda was built and
bowling and croquet greens and tennis courts were added.
In the town metal was spread on the pumice roads ..... Dr
Wolhmann regretted that a casino could not be installed in
the bathhouse; many wealthy visitors to the spas of
Europe were partly attracted by the opportunity to gamble.
Wohlmann emphasised the importance of social life in the
bathhouse, as the centre of the Rotorua spa. The entrance
hall became the equivalent of the English spa's pump room
or the German kursaal, a place to shelter in bad weather,
to listen to light music and to rendezvous in the evening
..... An aviary and monkey house were installed in the
gardens and a camera obscura was built on the games-ticket
office in the grounds, its kaleidoscopic effects no doubt
emphasising the cultured retreat atmosphere of the
Edwardian spa68 .
The bath-house offered a number of allegedly curative treatments,
some of which sound very strange today. These include radium
water treatments (supposed to reduce blood pressure and blood
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sugar levels and to tighten loose teeth) the "Greville hot air
bath" and the "Electric Light Bath". Most of the treatments
involved the less controversial methods of soaking in hot thermal
waters.
5.2 At Te Aroha, also (like Rotorua) linked by rail with
Auckland a rather smaller but in some ways more attractive spa
was also laid out by the Tourist Department, featuring drinking
fountains, bath-houses and a tea shop. The rather charming
buildings are now all preserved in the Te Aroha domain69 .
5.3 The hot springs at Whakarewarewa, Waimangu, Waiotapu and
other places were seen as supplementary attractions for visitors
to the central North Island spa resorts. As has been seen at
Waiotapu, the Tourist department tended to favour government
ownership of the hot springs where possible. Waiotapu was,
however, rather difficult to get to, and the main tourist
attraction at Rotorua after the destruction of the Pink and White
Terraces was undoubtedly Whakarewarewa. By the turn of the
century most of the land in and around Whakarewarewa was owned by
the Crown, but the central part of the thermal area remained
Maori-owned, sandwiched between Crown land on either side of it.
Here the Tuhourangi community remained, carrying on their
traditional lifestyle - often much to the irritation of local
inspectors of works and officials of the tourist department. In
1906 the inspector of works at Rotorua complained to the
superintendent of the department that local Maori persisted in
cleaning potatoes and fish in some of the hot springs "and in
fact I have had to draw the attention of the Sanitary Inspector
to the matter, but it made little difference with the Natives,,70.
The inhabitants of Whakarewarewa seem to have entered into one of
the first commercial uses of geothermal water when they arranged
a lease of hot water with Messrs Nathan & Co. who used it for the
so-called "Oil Baths" a short distance away71. The proximity of
Maori and Crown land at Whakarewarewa seems to have given rise to
endless petty disputes, concerning such matters as tolls and
cooking and washing clothes in the hot pools. The inhabitants of
the village were particularly concerned to maintain some control
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over the benefits to be derived from tourism, and resented any
attempt to use guides who were not from the village. These
myriad disputes reflected the quite natural tensions between
those who wanted to turn Rotorua into a showcase for
"respectable" tourists and those who wanted nothing less than to
carryon with their traditional lifestyle.
5.4 The apogee of the spa era was short-lived. Rotorua was
too isolated and backward to compete as a serious rival to the
great spas of Europe. Modern medicine gradually came to discount
the therapeutic benefits of soaking in mineral waters and mud
baths. The bath-house at Rotorua was furthermore plagued with
horrendous maintenance problems. The concrete arches in the
building began to crack and the plaster began to fall away from
the ceilings. The building's design was defective in that it
failed to ventilate properly. According to Rocke1 72 :-
"For some unknown reason the ventilating shafts and open
rear basement were blocked in so that steam built up when
the building was closed overnight. On some frosty
mornings the doors had to be left open for several minutes
before anyone could venture in."
By the 1940s "things at the Bathhouse were in a desperate state".
There were a number of meetings to discuss the fate of the
building. At one of these73 :-
" ... Mr Dan Kingi, representing the Ngati Whakaue people of
Ohinemutu, urged the Government to retain the bathhouse
for its original function. He believed this would keep
faith with the elders who had made a gift of the area, now
occupied by the Government Gardens, for health and
recreation purposes."
The building was last used as a bathhouse in 1966.
5.5 In this evidence I have not attempted to deal at length
with areas of land gifted by Ngati Whakaue and other tribes at
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Rotorua for public purposes. The Fenton agreement specifically
sets aside "Te Pukeroa" as a "Reserve for Public Recreation for
everybody" - Kuirau Park. As mentioned, other land was made
available by the tribes, Ngati Whakaue in particular, to
encourage railway development. The setting aside of the area now
known as the government gardens must have been by a separate
process after the conclusion of the Fenton agreement.
5.6 The collapse of the ambitious dream did not mean the end
of Rotorua as a tourist centre, but the objectives shifted from
an attempt to recreate Baden-Baden or Cheltenham in the South
Seas to the more modest one of a tourist industry based on the
hot springs and use of thermal pools for recreational rather than
medicinal purposes. Some of the thermal areas were owned by the
Crown; others such as Tikitere, the central part of
Whakarewarewa, Orakeikorako and Ketetahi on the slopes of Mount
Tongariro were Maori-owned. A few were privately-owned, most
notably Geyser Valley at Wairakei. It was not until after World
War II that interest shifted from the value of the resource as a
tourist asset to its value as an energy and industrial resource.
6 • 0 THE GEOTHERMAL RESOURCE AS AN ENERGY RESOURCE: THE COMMON
LAW BACKGROUND
A. Introduction
6.1 Thus far the focus has been on the geothermal resource as
a resource valued by the Government as a tourist attraction.
Thinking of the resource in this way meant that legal questions
concerning ownership of the resource as a whole had no particular
relevance. The assumption seems to have been simply that those
who owned the land on which were located geothermal springs could
use them and develop then as they wished. Private arrangements
were made by which owners of hot springs allowed water to be
diverted by channels or pipes as, for example, in the water lease
arranged between Nathan & Co. and the Maori community at
Whakarewarewa, whereby water was diverted by pipe from one of the
large h,ot springs on Maori land to the "Oil Baths" on Nathan 's
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premises. Bores tapping into underground geothermal systems
certainly must have existed prior to the enactment of the
Geothermal Energy Act in 1953, but I have not found so far any
material on what the legal regime governing underground
geothermal waters was supposed to be in these early years. It
seems safe to assume that the question was one of marginal
importance.
6.2 Until the enactment of the Water and Soil Conservation Act
in 1967 water law in New Zealand was essentially governed by the
rules of the common law. Statutory inroads such as the Water
Power Act 1903 were of minor significance. The Soil Conservation
and Rivers Control Act 1941 did not affect common law rights in
respect of natural water. The Thermal-Springs Districts Acts, as
we have seen, had little to do with thermal springs per se -
their principal effect was to give the Crown a monopoly of land
purchase in an extensive region. The Acts did not themselves
impact on common law rights to surface and underground geothermal
water.
6.3 The common law never has developed a body of rules to deal
with property interests in geothermal systems. This is hardly
surprising. The technology to exploit such systems on the scale
seen at Ohaaki or Wairakei has come into existence only recently.
In any event geothermal systems do not exist in England to any
significant extent, although certainly hot springs are found
there at Bath, Cheltenham and other places. Thus the common law
"rules" with regard to geothermal water can only be discussed by
way of analogy. Geothermal systems can create surface pools and
streams and thus one analogy is the law relating to surface
water. Another analogy, the one which seems to be most relevant,
is the body of rules dealing specifically with percolating or
groundwater. However, it has to be recognised that although
geothermal systems are water systems, the geothermal resource is
an energy, rather than a "water" resource. This perhaps puts
geothermal resources more on a footing with energy resources such
as petroleum and natural gas. Lastly, geothermal systems contain
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minerals in solution, which means that the common law rules
regarding mineral ownership are relevant too.
6.4 The following section is intended as a background to the
1953 legislation. It will focus, firstly, on geothermal
resources considered as water, before dealing with other aspects
of the common law which may be relevant.
B. Surface Water
6.5 It seems unnecessary to develop this at any length. At
common law all water, whether surface water or groundwater,
belongs to no-one until abstracted. Landowners own the beds of
lakes and streams - a lake (or a geothermal pool) is simply land
covered by water. The result is that in terms of surface pools
the landowner has no property in the water itself until it is
abstracted. On the other hand, only the landowner can use the
water in the pools on his or her land - crossing the land to take
the water would be a trespass if committed by persons other than
the landowner. The riparian rights doctrine would apply,
although it is hard to see this as having much relevance to
geothermal features. These points will be developed in detail in
the next section.
c. Groundwater
6.6 The common law rules about groundwater have as their
starting point the common law rules about water generally. At
common law water was not something capable of ownership until it
had been abstracted. Water, as such, belonged to no-one.
According to Halsbury's Laws of England74 :-
"Although certain rights as regards flowing water are
incident to the ownership of riparian property, the water
itself, whether flowing in a known and defined channel, or
percolating through the soil, is not, at common law, the
subject of property or capable of being granted to
pnybody. Flowing water is only publici juris in the sense
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that it is public or common to all who have a right of
access to it."
But, once abstracted, the water becomes the personal property of
whoever has abstracted it75 :-
"Water which has been appropriated or taken into possession
from a known and defined channel is the subject of
property, the right of property existing only during such
possession, as is also percolating water [i.e.
groundwater] which has been appropriated, even by the
artificial means of pumping."
Thus it is theft at common law to divert water from some other
person's pipes: Ferens v O'Brien (1883) 11 QBD 21.
6.7 A key difference with the rules relating to groundwater is
that there is no counterpart to the riparian rights doctrine
applicable to surface water. Generally a riparian owner (a
landowner through whose land water flows above ground in a
defined channel, as in a river or stream) has a right to the
maintenance of the flow both as regards water quantity and water
quality. It is unlawful for an upstream owner, for example, to
take water from a stream, or pollute it to such an extent, that
the "natural" quality and quantity of the water (from the view
point of the downstream landowner) is impaired. But there is no
equivalent rule relating to subsurface water. Any landowner can
draw off as much subsurface water as he or she likes - even to
the extent of completely depriving neighbouring landowners to any
supply whatever. Halsbury again76 :-
"The common law confers no rights in respect of
subterranean water running in undefined or unknown
channels, except that the owner of land may sink wells in
his own land and so obtain a supply of water ,although
another owner, by doing the same, may draw off the water
from his neighbours."
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Furthermore77 :-
"An owner of land under which there is subterranean
water not in a known and defined channel has no right at
common law to the support of such water and his neighbour
may draw off such water as he pleases. Furthermore, water
in an unknown channel or percolating water cannot be the
subject of prescription or grant, and its diversion by one
landowner may not be challenged by another, whatever the
former's motive for doing so may be and however long the
latter may have enjoyed the use of the water."
Assuming then that geothermal water is (in the rather archaic
language of the common law) "percolating" water there is no right
of property in it whatever. It belongs to whoever appropriates
it (putting to one side the small problem that when geothermal
water is "appropriated" it is at that point often no longer water
at all). No landowner can complain if an adjoining landowner
manages to abstract all the geothermal fluid in the
neighbourhood; nor does the common law offer any protection to
those who have put down bores or wells first. Any newcomer can
move in next door and appropriate all geothermal water in the
system, if he or she is so minded. In short, the common law in
its pure form gives no right of priority and no protection to
existing users.
6.8 It must be emphasised that the above rules do not mean
that anyone at common law can take groundwater. To move onto
someone's land and take groundwater would be a trespass. One
consequence of the common law rules is that leases, easements and
licences aside, no-one can have access to groundwater except
landowners. Although there is no property right in groundwater,
the common law does not recognise any public right of access to
it.
6.9 The different rules relating to surface water and
groundwater did not emerge in England until the decision of the
Exchequer Chamber in Acton v Blundell (1843) 12 M & W 324, 152 ER
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1223. One can only guess as to why the issue had not arisen
until then - one possible explanation is that it was not until
the nineteenth century and the emergency of steam-driven pumps
that the technology became available to seriously deplete an
adjoining landowner's supply of groundwater. In this case the
plaintiff was a manufacturer, carrying on the business of cotton-
spinning. The plaintiff relied on the flow of groundwater from
various underground springs to fill wells which in turn supplied
the mill. The defendant, an adjoining landowner, had
subsequently sunk coal-pits adjacent to the plaintiff's land.
This had had the e