THE WAITANGI TRIBUNAL

WAI No 215

IN THE MATTER      of the Treaty of Waitangi Act 1975

AND

IN THE MATTER      of the Tauranga Moana/Western Bay of Plenty Claims

CROWN’S OPENING SUBMISSIONS (STAGE ONE RAUPATU ISSUES) 15 October 2001

Crown Law Office (Rebecca Ellis / Andrew Irwin)

Telephone: 04-472 1719, PO Box 5012, DX SP20208

Facsimile: 04-470 4407, 45 Pipitea Street, Wellington

MAY IT PLEASE THE TRIBUNAL

1.        This is an historic occasion. For the first time, the Crown is addressing the issues raised by the Tauranga Moana claims. Although attempts have been made by the Crown to address aspects of the claims in the past – both through the Sim Commission in 1928, and through the Select Committee inquiry that led to the Tauranga Moana Maori Trust Board Act 1981, the Crown acknowledges that many of the hapu of Tauranga Moana consider that their grievances have not until now properly been heard, let alone addressed by their Treaty partner. The Crown is pleased to have been present at the hearings of claimant evidence over the last three and a half years, and thanks the hapu of Tauranga Moana for hosting it on their marae for the duration of those hearings.

2.        The Crown feels privileged to have heard and engaged in the history of Tauranga Moana. The Crown invites a reciprocal engagement as it presents evidence on Stage One (Raupatu) Issues.

CROWN ROLE AND APPROACH

3.        The Crown’s role in the Tribunal’s inquiry in the Tauranga Moana Claims is to test the evidence presented by the claimants where appropriate and to add to the research before the Tribunal, in order to assist the Tribunal in its inquiry to ultimately determine whether the claims are well-founded.

4.        The Crown seeks from this inquiry an account of history that builds upon logical inferences from all the relevant empirical data. It is hard to inquire into some matters with a detached and disinterested eye. However, if practical consequences are to flow from the investigation of historical claims, sound and reasonable conclusions must be reached.

5.        It is therefore an important part of this process for the Crown to have its say. In seeking to honour the Treaty principle of mutual respect, the Crown does not see its role as simply one of listening. Rather, mutual

respect requires the Crown to engage, to debate and to test the various concerns raised by the claimants. The presentation of Crown evidence is an important part of the process of active engagement between Treaty partners.

6.        It is a legitimate and important aspect of the Crown’s role before the Tribunal to focus on the issue of historical interpretation. As is well known, the Crown appears before the Tribunal as representative of the public interest. There is a legitimate public interest in the integrity of the Tribunal’s inquiry process. There is also a public interest in the durability of historical explanation. There must be a solid foundation for the settlement of historical grievances. That foundation must be capable of withstanding the historical analysis to which the claims process will inevitably be subject.

SCOPE OF THE EVIDENCE

7.        The Tribunal convened to hear the Wai 215 Tauranga Moana Claims has divided its inquiry into two stages: Stage One (Raupatu) Issues and Stage Two (Post-Raupatu) Issues.

8.        For the purpose of the Stage One inquiry, the Tribunal defined ‘raupatu’ to:

[…] refer to all the land confiscated under the New Zealand Settlements Act 1863 and associated legislation, and actions by the Crown to implement that legislation. Principally, this will include such events as Crown intervention in Tauranga Moana, the Battles of Pukehinahina (Gate Pa) and Te Ranga, the Pacification Hui, the Katikati-Te Puna Purchase, and the ‘Bush Campaign’. As part of a report on raupatu in Tauranga, the Tribunal will also report on the return of lands by the Commissioners of Tauranga Lands. […]

The ‘Tauranga Moana Raupatu Report’ will also, present the Tribunal’s account of the events leading up to the signing of the Treaty of Waitangi and Crown-Maori relations in Tauranga from 1840 to 1864. This will include the CMS purchase of Te Papa.”

(Tribunal Direction dated 17 August 2000 Wai 215 #2.288)

9.       The Tribunal has also directed that the division between Stage One and Two of its inquiry is the year 1886 and that Stage One may also include an inquiry into the Sim Commission and the Tauranga Moana Maori Trust Board Act 1981 (Tribunal Direction dated 3 October 2000 Wai 215 #2.299).

10.      The matters covered in the evidence that is to be led by the Crown this week will be summarised later in these submissions.

STATEMENT OF RESPONSE

11.      In respect of Stage One (Raupatu) claims, the Crown has filed a Statement of Response as directed. The response attempts to identify the key factual and legal issues that the Crown believes the Tribunal has been called upon to determine in Stage 1, and to set out briefly its position in relation to those. As stated in the response, the Crown apologises if the general approach it has taken leads to any claimant group feeling either slighted or misrepresented. It is hoped however that the Crown’s efforts to crystallize and summarize the issues will ultimately be of assistance to the Tribunal, and to the claimants, in terms of directing the process and moving it forward.

TREATY PRINCIPLES

12.      The Tribunal is charged with determining whether the claims that the Crown breached the principles of the Treaty of Waitangi are well founded. For the purposes of its Stage One inquiry the Tribunal must consider whether 19th century Crown action and omission breached what we understand today to be the Treaty principles. That is a conceptually difficult, but not impossible, task.

13.      In this respect, the Crown submits that three principal Treaty duties and one paramount Treaty principle are relevant and provide a framework for this inquiry.

14.       By Article One of the Treaty the Crown has the obligation to govern. Implicit in that duty is the reciprocal obligation on Maori to accept the Crown’s governance.

15.       By Article Two, the Treaty guaranteed to Maori “the full exclusive and undisturbed possession of Lands” or “te tino rangatiratanga o ratou w[h]enua”. However the Treaty also envisaged the transfer of ownership in land from Maori to settler via Crown pre-emption. Two further obligations arise from this:

15.1     The Crown’s duty actively to protect Maori ownership in land for so long as Maori wanted to retain that ownership; and

15.2     The Crown’s duty to ensure that the transfer of ownership from Maori to settler via the Crown occurred fairly and effectually.

16.       In determining whether the Crown has fulfilled these three duties (the duty to govern, to protect Maori land and to ensure a fair and effectual transfer of ownership) the so-called ‘paramount’ principle of partnership is relevant. This principle places a reciprocal obligation on both Treaty partners to act in good faith, reasonably and honourably towards each other.

The duty to govern – Kawanatanga

17.       It is one of the Crown’s principal contentions that in assessing the Crown’s actions in Tauranga in the latter half of the 19^th century against significant regard must be had to the temporal context in which those actions occurred. Failure to do so – for example by judging the reasonableness of Crown actions then by our own 21^st century standards – does not only a great injustice to the Crown but ultimately also does a considerable disservice to the Tribunal process itself. In the recent words of Professor W. H. Oliver:

The elaboration of an alternative past which postulates a function for ‘the Crown’ which could not conceivably have been discharged is of no help in [the Tribunal’s] primary task

– the identification of Crown breaches of the Treaty. On the contrary, its unreality is in essence counter-productive.

The Tribunal’s evaluation of the nature and extent of the Crown’s Treaty breaches and so of the Crown’s culpability is further thrown into question by its habit of examining Crown actions solely in the light of timeless principles and without the qualifications that might arise from taking ‘surrounding circumstances’ into account. In this the Tribunal is a good deal less than consistent. When it is a matter of explaining the way in which it interprets the Treaty, it insists upon the importance of such circumstances but in the event limits them to a largely speculative reconstruction of Maori expectations only, and a decontextualised discussion of Lord Normanby’s instructions. This is a thin reading of the circumstances of 1840. By contrast, when the Tribunal looks at the situation of Taranaki land-selling Maori, it gives them the benefit of a solid account of the ‘surrounding circumstances’ which caused them to take up that position. That consideration, given to the Crown agents whose activities are so rigorously evaluated, could at least qualify the extent of their culpability and would certainly lead to a higher level of historical understanding.

18.       Importantly, Professor Oliver does not suggest that such an approach would diminish claims for Treaty breach or detract from the case for reparation. Rather, he concludes –

The matter of remedy could be pursued effectively enough, perhaps more effectively, in an atmosphere less clouded with retrospective recrimination.

Oliver; The Future Behind Us in Sharp & McHugh; Histories Power and Loss (Bridget Williams Books, 2001) at pp 28-29.

19.       Perhaps the first and most significant matter of historical context is the fact that, by definition, the Crown’s actions occurred against the background of colonization. Colonization had already occurred – for better or worse - and indeed had effectively been acknowledged through the Treaty of Waitangi. Accordingly, criticism of colonization and its incidents (and there are many) can never properly be part of the Treaty claims process. By and of itself, the act of colonization cannot be a Treaty breach.

20.       Once that is accepted, it can readily be appreciated that the very fact of colonization presented the Crown with a number of unique and difficult governance issues. First and foremost was the relationship between the “colonizer” and the “colonized”. In New Zealand, of course, that relationship was conceptually governed by the Treaty. However the Treaty had no real historical precedent from which a template for action could be derived. Necessarily, both parties had to work it out as they went along. And, necessarily, mistakes were made.

21.       For example, to what extent did Maori want to participate in Government and to what extent did they want Government to intervene or assist in their everyday lives? What was to be the relationship between customary Maori law and colonial law? Was it possible to conceive of a system where a modicum of Maori self-government and British sovereignty could co-exist? What, for example, did the guarantee of te tino rangatiratanga mean in terms of whether the English criminal law should extend to Maori? How and to what extent should the Crown act “paternally” towards Maori in their land dealings? The Crown’s evidence this week will address at least some of these issues.

22.       On a purely administrative level, the difficulties faced by the colonial government in the 1860s and 1870s are difficult today to comprehend. On one level it might be thought that the administration of government in colonial New Zealand was, by comparison with the government of New Zealand today, a simple matter. Certainly there were fewer citizens who were in need of governance. Moreover, many of the complex commercial, economic and global issues that beset the government of New Zealand today were simply not present. On the other hand however, the very practical difficulties presented by a tiny population - such as an inevitable shortage of qualified or competent personnel, and the inevitable conflicts of interest that arose for those individuals who sought both to participate in government, but also to take advantage of what seemed to be on offer for those starting a new life in a new land - must have been acute.

23.       At a national political level, the situation was mercurial, particularly during the period of the wars in the early 1860s. Responsible government was still in its infancy (having been introduced only in 1854) and political coalitions were formed and dissolved with rapidity. To take but one example, in the period between 1860 and 1870, the identity of the Native Minister changed more often than once a year¹. And between July 1861 and October 1865 there were four successive ministries. Thus the circumstances in which consistent and thoughtful policy on any subject could be developed were barely present. Pragmatism almost necessarily ruled.

24.       Locally, Provincial Government had been established in 1852 and the Crown subsequently instituted the so-called “new institutions” involving the District runanga, and the use of resident magistrates and Civil Commissioners. Crown action cannot be confined to the deeds of central government. Often (and this was certainly the case in Tauranga Moana) the Crown’s representatives “on the ground” were sensitive, and tended to respond reasonably and honourably, to local exigencies.

25.       The relationship between Provincial and Central Government was not an easy one. However both had to try to strike a balance between the settlers’ demands for law, order, security, land, stability and more concretely for public works such as roads - against the demands of the Treaty partner for protection, stability and (at least to a degree) autonomy. Further, there was a continual, overarching and pressing need to find the money necessary to fund the new colony in all its aspects.

26.       In addition, there was the relationship with a distant Sovereign and her representative in New Zealand, the Governor. As already noted, the New Zealand Parliament was in its infancy, under the 1852 Constitution the laws it passed were not permitted to be “repugnant” to the laws of England, and the Sovereign could disallow Acts of the New Zealand

¹ A total of 11 men held the post within that 10 year period, 1 of whom held the position twice.

General Assembly for two years after their assent. Although by the

1860s the Governor himself was becoming a figure of more constitutional than practical significance, in most respects he remained responsible for Native affairs until 1864 and still wielded considerate pace and mana in that area throughput the period with which we are concerned 1860-1880

27.       Lastly there is the fact that, for the key period on which these claims are focused, there was a state of war in the central North Island. Regardless of who can be said ultimately to responsible for that conflict, it was a reality with which the government had to deal.

28.       It is against this background that the Crown’s performance of its duty to govern falls to be judged.

The Crown’s duty to protect Maori land

29.       In the context of the Tauranga Moana claims, two principal issues arise in relation to this duty:

29.1         Land confiscation

29.2      The purchase by the Crown of the Te Puna Katikati block.

Confiscation

30.       As far as the first is concerned, the compulsory acquisition by the Crown of land from Maori who do not freely want to give up their lands is necessarily a prima facie breach of the Crown’s duty to protect Maori land. In this way it follows that in principle confiscation is in breach of the Treaty. However, the inquiry cannot stop there. In what circumstances did the Crown confiscate land in Tauranga? Was confiscation in any sense a legitimate or orthodox response to the circumstances then prevailing in Tauranga? Did Maori in any sense acquiesce? Was confiscation anathema to Maori cultural norms? What alternatives to confiscation were there? What prejudice did Maori suffer? How did the Crown determine which lands it would confiscate? All these questions, and more, are relevant to the Tribunal’s inquiry.

31.       In reality therefore (as opposed to “in principle”) it is conceivable that a particular act of confiscation might not be in breach of Treaty principles, or that one particular act of confiscation is qualitatively different from another, in terms of Treaty breach. Confiscation must be viewed not only in light of Article 2, but also in light of Article 1. Those two Articles may on occasion come into conflict. A balance between them must then be struck.

32.       It is plain that the need for such a balance was to the forefront of the Crown’s mind in the 1860s. For example its proclamation to the Chiefs of Waikato on 15 July 1863 (published in the New Zealand Gazette (1863) pp 227-278) stated –

Those who wage war against Her Majesty, or remain in arms, threatening the lives of Her peaceable subjects, must take the consequences of their acts, and they must understand that they will forfeit the right to the possession of their lands guaranteed to them by the Treaty of Waitangi, which lands will be occupied by a population capable of protecting for the future the quiet and unoffending from the violence with which they are now so constantly threatened.

Te hunga e whawhai ana ki te Kuini, e hapai tonu ana ranei i te patu, he whakawehi i nga tangata e ata noho ana, ka whiwhi ratou ki nga utu mo a ratou mahi. Kia mohio pu hoki, ki te tohe ratou ki ena he, ka noa te tikanga i pumau ai o ratou whenua, ki a ratou, ara, te tikanga i whakatakotoria e te Tiriti o Waitangi. Ka tangohia aua whenua ka hoatu kia nohoia e tetahi hunga e kaha ana ki te tiaki i nga tangata ata noho, i nga wa a takato aka nei, kei mate i te kino e whakatakotoria tonutia nei mo ratou.

33.       The reasonableness of the balance that was ultimately struck in Tauranga therefore becomes the critical question.

34.       The Crown considers that, judged in context (as it must be), the Governor was justified in perceiving that some Tauranga Maori were in rebellion against the Crown’s authority in 1864. It follows that it is also the Crown’s position that the confiscation of land that subsequently occurred in Tauranga was lawful.

35.       Notwithstanding that lawfulness, however, the Crown has in recent times accepted that the underlying cause of the rebellion at least partially involved conduct by the Crown that is with hindsight regarded as unreasonable. And in light of the evidence that it will present, the Crown acknowledges that the confiscation of not more than 42,000 acres of the Tauranga lands was unjust and in breach of the principles of the Treaty of Waitangi.

36.       By itself, however, this concession is of limited assistance to the Tribunal. It is the nature and extent of the breach in Tauranga, and any prejudice caused to Tauranga Maori by it, that must be the crux of the inquiry. The questions posed above relating to the surrounding circumstances still require answer. In this respect the Crown will say:

36.1     confiscation was, in 19^th century terms, an orthodox response to acts of rebellion;

36.2     in 1864 some Maori in the Waikato, Tauranga and the Eastern Bay of Plenty were perceived to be in rebellion against the Crown;

36.3     the Crown did not “invade” Tauranga in 1864;

36.4     the Crown did not send troops to Tauranga with the ulterior motive of provoking conflict thereby justifying confiscation;

36.5     the troops that were sent to Tauranga remained peacefully at Te Papa throughout January, February and March 1864 observing Maori movements;

36.6     after conflict in April and June 1864, Tauranga Maori surrendered the mana of the land to the Governor and said the land was his to do with as he liked;

36.7     this seemed to be in accordance with concepts of Maori custom;

36.8     the Governor promised to confiscate only one-quarter of Tauranga lands;

36.9     in fact, the Crown only confiscated approximately 15% of those lands;

36.10    those who had lands confiscated inside the “50,000” acre block were compensated with lands elsewhere in the Tauranga district.

Te Puna Katikati purchase

37.       The two principal claims about the Te Puna Katikati purchase are that it was effected under duress from the Crown and that the Crown failed to establish, or to deal with, the true owners of the blocks. The Crown will show that neither of these allegations withstand an objective analysis of the available evidence.

The duty to ensure a fair and effectual transfer of ownership

38.       Also relevant to the Tribunal’s Stage One inquiry is the Crown’s duty to ensure that the transfer of ownership from Maori to settler via Crown pre-emption occurred fairly and effectually. The principal inquiry here relates to the determination of title to the ‘returned lands’ by the Tauranga Land Commissioners and the issue of alienation restrictions on those lands.

39.       In these respects, the framework for the inquiry should not be the calculation of how much land was ‘taken’ or ‘lost’ by way of sale. Rather, the inquiry should focus on the Crown’s superintendence of these dealings and the agency of Maori in exercising their rights to make commercial decisions about their property.

40.       More particularly, the return of land the by the Commissioners occurred at a pivotal time in the country’s history of land tenure. Elsewhere in New Zealand the newly established Native Land Court had just opened doors. Maori wanted the legal ability to deal with their lands as they

chose. This included the leasing and selling of land to settlers. As stated above, the Government’s role was to ensure that this transfer of ownership occurred fairly and effectually. Again, the inquiry must be as to how the Crown performed this role. The Crown’s answer to that will be that, based on the evidence, it did so reasonably, in good faith and (accordingly) in accordance with the principles of the Treaty.

CROWN EVIDENCE

41.       The Crown will call two witnesses: Dr John Battersby and Mr Robert Hayes.

Battersby evidence

42.       The evidence of Dr John Battersby, “Government, Commerce and Conflict in Tauranga”, provides a context for the interaction of the Crown and Tauranga Maori throughout the period under inquiry. The evidence relates to events stretching from the Ongare incident of 1842, to the conflict of 1864 and through to the economic situation of Tauranga Maori in the 1870s.

43.       Chapters One, Two and Three relate to pre-1864 matters. Chapter One concerns Government involvement in Tauranga in 1842 and 1843 and principally relates to the Government’s response to Taraia’s attack on Ongare pa and the events that arose from the taking of Farrow’s boat. From these early times Dr Battersby says that Tauranga Maori not only welcomed, but desired the location of Government officials in their regions as arbitrators of disputes.

44.       Chapter Two provides information as to the economic position of Tauranga Maori in 1840-1860 from the available sources.

45.       Chapter Three provides further information on the role of Government in Tauranga primarily during the 1850s and early 1860s. By the early 1860s there is an established Government presence in the Tauranga

region with a Resident Magistrate, H T Clarke, who was actively involved in the settlement of local disputes.

46.       Chapters Four, Five and Six relate to the conflict as it occurred in Tauranga in 1864. Dr Battersby places this conflict in its wider context: Waikato and the Eastern Bay of Plenty. Tauranga becomes involved in this conflict and the scene of hostilities.

47.       Chapter Seven addresses the events that follow from the conflict in Tauranga of April-June 1864. This includes the surrender by Tauranga Maori and the Pacification Hui.

48.       Chapter Eight relates to the Crown’s acquisition of the Te Puna Katikati lands. The Crown’s submission will be that the evidence shows a continued willingness of Maori to submit disputes to arbitration by government officials. The result of the arbitration is a re-negotiated transaction that includes a larger purchase price, a price per acre being fixed and 6,000 acres of reserves of prime harbour-front locations that Maori wished to on-sell to private buyers. The evidence points towards a willing sale of the Te Puna Katikati lands by Maori. Dr Battersby states

“Far from repudiating the sale, the Maori sellers wanted to hurry it to completion, and also appear to have managed both government and private purchasers to their advantage” (para

43,       page 159).

49.       Chapter Nine relates to the survey of Tauranga District and leads into the Bush Conflict which is addressed in Chapter Ten. In this respect it has been suggested that:

“The Government excuse for the campaign claimed that there was a threat of a general Hauhau uprising, and that Pirirakau were Hauhau, unsurrendered rebels and aggressors. There is little evidence of this. Pirirakau were fighting for their land and Government had refused to acknowledge their claims to it.” (Dame Evelyn Stokes, Wai 215 #A2, p 134).

50.       Dr Battersby however concludes that the situation was more complex. External influences, primarily the Ngati Porou Te Kaumarua, combined

with the Government’s determination to survey and Pirirakau resistance to that survey, together led to armed conflict. No one party was responsible for that conflict.

51.       Chapter Eleven concludes the report by providing information on the post-war economic situation of Tauranga Maori.

Hayes evidence

52.       The evidence of Mr Hayes relates to the issue of alienation restrictions on land. The key conclusions of this report are:

52.1     The lands to be returned by the Crown were not “reserves” in the technical sense and therefore not automatically subject to the then usual restriction on alienation by sale or by lease of more than 21 years.

52.2     There is no extant evidence at 1864 or 1866 to support the notion that the lands to be given back were to be either permanently inalienable or subject to an ordinary restriction on alienation. Had Grey intended to impose a blanket permanent or ordinary restriction on alienation at 1864 or 1866, his action would have been contrary to the policy of the Native Lands Acts 1862 and 1865.

52.3     It is unlikely Clarke ever considered all the returned lands to be inalienable despite Halcombe’s 1872 claim that H T Clarke had ‘suggested’ otherwise.

52.4     In response to the blanket restriction imposed in November 1878 Tauranga Maori were adamant that the Governor had promised to return the lands free of restrictions.

53.       Importantly, Chapter Two of Mr Hayes’ evidence provides the contextual background to the Government’s policy on alienation restrictions. Mr Hayes says that throughout the 1840s, 50s and 60s the Crown wrestled

with how to allow for direct dealings between Maori and settlers. He says that, although it had the intention to grant Maori a freedom to deal in their land, the Crown also had to consider how and to what extent it should superintend these dealings.

CONCLUSION

54.       To conclude these opening submissions, the Crown acknowledges the task that the Tribunal has before it and the contribution already made to that task by the claimants.

55.       The writing of history is never a straightforward matter, and it is made all the more difficult when it is being done with immediate and practical consequences in mind. The Crown simply asks therefore that the Tribunal listens to and evaluates all the evidence with a view to providing for the claimants, the Crown and for posterity an account of the past that is a credible one, and one that has historical, and historiographical, integrity. An account that gives credit to the Crown where credit is due will not result in the Crown ignoring the Tribunal’s report or refusing to negotiate with claimants. Rather, it is likely to give the report a broader acceptance within the community as whole and thus ultimately widen the mandate the Crown has – fairly to settle just claims against it.

56.       To end, counsel wishes to read Allen Cumow’s 1943 poem Sailing or Drowning -.

In terms of some green myth,

Sailing or drowning,

Each day makes clear a statement to the next;

But to make out our tomorrow from its motives

Is pure guessing, yesterday’s were so mixed

Papa, Atea, parents of gods or islands,

Quickly forgive the treacherous beaches, none

So bloodily furrowed that the secret tides

Could not make the evening and the morning one

Ambition has willed that constitution

In the solid sea and the space over the sea

Explosions of a complex origin

Shock, rock and split the memory.

Sailing or drowning

The living and the dead, less than the gist of what has just been said.

Allen Curnow, Sailing or Drowning (1943)