THE
HAURAKI REPORT

DAME EVELYN STOKES
1936 - 2005

The members of the Hauraki Tribunal wish to pay tribute to the late Dame Evelyn Stokes for her great contribution to the Hauraki claims process and for her insight, vast knowledge, advice, wise counsel, and understanding and appreciation of claimant sensitivities and issues. Her participation in the completion of this report was particularly significant and invaluable. She enjoyed an earned respect from fellow Tribunal members, the legal community, and other professionals, as well as from claimants, as a person of high integrity and intellect.

Dame Evelyn was contributing material for this report right up to a brief period before her death. Despite suffering from ill health for many years, her dedication to her tasks was entire. We of the Hauraki Tribunal are profoundly appreciative of her service and collegial sense and for her companionship. She will sadly not share her accomplishments in providing further to the history and reshaping of our nation.

THE

HAURAKI REPORT

VOLUME I

WAI 686

WAITANGI TRIBUNAL REPORT 2006

The cover design by Cliff Whiting invokes the signing of the
Treaty of Waitangi and the consequent interwoven development of
Maori and Pākehā history in New Zealand as it continuously
unfolds in a pattern not yet completely known

National Library of New Zealand Cataloguing-in-Publication Data

New Zealand. Waitangi Tribunal.
The Hauraki report / Waitangi Tribunal.
(Waitangi Tribunal report)
Includes bibliographical references.
ISBN 1-86956-285-2 1.
Treaty of Waitangi (1840) 2. Maori (New Zealand
people)-New Zealand-Hauraki District-Claims. 3. Maori
(New Zealand people)-Land tenure-New Zealand-Hauraki
District-History. 4. Hauraki District (N.Z.)-History. I. Title.
II. Series
333-33099327-dc 22

www.waitangitribunal.govt.nz
Typeset by the Waitangi Tribunal
Published 2006 by Legislation Direct, Wellington, New Zealand
Printed by SecuraCopy, Wellington, New Zealand
10 09 08 07 06 5 4 3 2 1
Set in Adobe Minion Pro and Cronos Pro typefaces

CONTENTS

Volume i

LIST OF FIGURES

LIST OF TABLES

ACKNOWLEDGEMENTS

The Tribunal would like to thank Max Oulton of the University of Waikato for producing the maps for this report. We also wish to acknowledge the contribution of a number of Waitangi Tribunal staff, past and present, who assisted us both during the hearing of the claims and in the writing of this report. They included Lisa Hippolite, Charlene Radovanovich, and Midge Te Kani (claims administration); Dougal Ellis, Grant Phillipson, and Matthew Russell (research and claims facilitation); Ewan Johnston, Kate Riddell, Alan Ward, and Mathew Ward (report writing); Margot Fry, Andrew Gregg, and Tony Nightingale (report-writing assistance); Angela Ballara (editing); Lissa Chong and Wendy Hart (reference checking); and Dominic Hurley (production).

ABBREVIATIONS

‘Waf’ is a prefix used with Waitangi Tribunal claim numbers Unless otherwise stated, footnote references to claims, statements, papers, and documents are to the record of inquiry, the index to which is reproduced in the appendix.

Unless otherwise stated, footnote references to Archives NZ are to the Wellington branch.

EXECUTIVE SUMMARY

ES.1 The District, The People, and Their Claims

The Hauraki inquiry district comprises the southern part of Tikapa Moana — the Hauraki Gulf — and its islands, the Coromandel Peninsula and the lower Waihou and Piako Valleys. It is the home of many iwi. Some, such as Ngati Hako, Ngai Tai, and Patukirikiri, trace their origins in part from before the arrival of the famous waka. Others trace their origins from those waka, including Ngati Huarere and Ngati Hei from Te Arawa and Ngati Rahiri Tumutumu from Mataatua. From about the late sixteenth century, however, traditional history is dominated by the invasion and settlement of the district by iwi of Tainui origin, collectively known as the Marutuahu tribes. They include Ngati Maru, Ngati Tamatera, Ngati Whanaunga, and Ngati Rongo-u. During the course of the Marutuahu conquests, Ngati Paoa also entered the district, as did a smaller tribe, Ngati Tara (or Ngati Koi). By the early nineteenth century, Hauraki was occupied by an intricate patchwork of groups, predominantly of Marutuahu descent, intermingled with groups of earlier occupants, and all having many connections through intermarriage and shifting alliances. In the mid-nineteenth century, tuku of land were made to three hapu of Ngati Porou at Harataunga and Mataora, and to a section of Ngati Pukenga at Manaia.

The first Treaty claims were lodged by the Hauraki Maori Trust Board, constituted by Act of Parliament in 1988 as a body corporate representing most of the above tribes. As research proceeded, many of the groups named in the 1988 Act (or sections of them), and others not named but connected with the named tribes, lodged separate claims. The Marutuahu tribes also lodged a claim, bringing additional evidence about their collective interests and those of the constituent iwi. There were 56 claims in all, including eight that lapsed or were withdrawn, or that related mainly to lands outside the inquiry district where Hauraki tribes also have customary interests.

Details of these claims can be found in the main body of the report. All relate to the process of colonisation under the British Crown, the extraction of the resources of the region (notably gold and kauri) and the purchase of all but 2.6 per cent of the land in the inquiry district. Our report traces the history of colonisation as a connected narrative, while discussing chapter by chapter the Treaty issues arising in each phase of the Crown’s interaction with Hauraki iwi and giving our findings on claims of breach of Treaty principles. In this summary, we present only our findings on the most important issues, or those most common to the various claimant groups. For findings on matters particular to only one or few claims, we refer readers to the main body of the report.

ES.2 Pre-1840 Transactions and Pre-Emption Waiver Purchases

Pre-1840 transactions between settlers and Maori, and direct purchases by settlers from Maori under Governor FitzRoy’s waiver of Crown pre-emption in 1844 to 1846, were investigated by a sequence of land claims commissioners. The investigations resulted in some 42,000 acres of ‘old land claims’ and about 3400 acres of waiver purchases in Hauraki being awarded to settlers. The Crown retained some 5700 acres as ‘surplus land’ - that is, land where the transaction was considered to have extinguished native title (creating a title in the Crown, which had assumed sovereignty in 1840) - and in the interests of curtailing ‘land sharking’ and promoting closer settlement, the land was not granted by the Crown to the initial purchaser.

This was a relatively small percentage of the claim area, compared with old land claims in Tai Tokerau, or in South Auckland where Hauraki tribes were among the customary right-owners. It stands to the Crown’s credit that its requirement that the claims be investigated at all, and alienations affirmed by Maori witnesses, caused some hundreds of thousands of acres of speculative claims in Hauraki to lapse or be withdrawn. Even so, Maori claimants to the Tribunal have submitted that the inquiries by the land claims commissioners were inadequate and that most transactions were not intended to be sales in the European sense but grants of occupation wherein the tribes retained underlying rights.

In our view, the evidence shows that the investigations were indeed flawed and many, though not all, of the initial transactions did not extinguish all the interests of all the customary right-owners. However, we have also noted that many of the transactions were effectively renegotiated during or soon after investigations by the land claims commissioners, Maori frequently accepting the transfer of areas much reduced from those originally claimed by settlers. Some disputed areas, notably in Piako and on Waiheke Island, were overlaid by subsequent Crown purchases.

The Crown acknowledges that the investigations into McCaskill and Martin’s purchase at Hikutaia were inadequate, and were ‘a failure of process and good faith’. It accepts also that the land later awarded to Ngati Pu hapu was inadequate compensation. We agree, and note also that other hapu besides Ngati Pu (particularly Ngati Karaua) may have been prejudiced. We also consider Bell’s award to Willis of 1797 acres at Tairua to have been based on flimsy evidence.

Some claimants have focused particularly upon the Crown’s retention of land as ‘surplus’ to be the most prejudicial aspect of these matters. However, we do not consider that the land retained as ‘surplus’ was in a fundamentally different category from that awarded to the initial settler transactors: in respect of both categories Maori were prejudiced by the inadequate, protracted, and confused nature of the Crown’s investigation of the initial transactions or by the failure, in some cases, to make adequate and prompt adjustments to remedy defects.

ES.3 Crown Purchases, Pre-1865

Between 48,000 and 60,000 acres in the inquiry district were purchased by the Crown between 1840 and 1865, under the Crown’s pre-emptive (monopoly) right. The claimants submit that the land purchase agents were manipulative, that Maori were paid less than potential market value for their land, and that virutally no reserves were made for the vendors. The Crown contends that genuine bargaining occurred, that Hauraki Maori were not pressured into selling, and that, although very little land was formally reserved, no more than 6 per cent of the inquiry district was purchased, leaving iwi with ample land.

In our view, the main prejudice to Maori in this period was that from 1847 the Crown reimposed a monopoly right of purchase. Governor Grey and his advisers considered, but did not develop, a system of licensed direct dealing, including leasing, between Maori and settlers. It has not been shown that the Crown paid only derisory prices for the land it purchased: in the instances where evidence is available the prices appear to have averaged between two shillings and four shillings an acre - much higher than the prices paid in the South Island, Hawke’s Bay, and Wairarapa. However, the absence of an open market, including the option of leasing, denied Maori a range of commercial opportunities.

While Hauraki Maori in 1865 still possessed over 80 per cent of the inquiry district, and no tribe was absolutely bereft of land, the Crown’s purchases, together with pre-emption waiver purchases, resulted in the acquisition of almost all the commercially strategic gulf islands and mainland harbours. This contributed to the sharp decline in the fortunes of some tribes which had initially benefited from the trading advantage of proximity to Auckland. When chief land purchase officer Donald McLean purchased eastern Waiheke in 1858, he suggested that land would be made available there for various tribes wishing to continue trade with Auckland, but this was not done.

ES.4 War and Raupatu

ES.4.1 General issues

In the mounting tensions of late June 1863, following the resumption of fighting in Taranaki on 4 May, Grey explained to his Ministers that, should military action against the Kingitanga also be considered necessary, his forces would need to take control of South Auckland and Hauraki lands eastward to Pukorokoro because of their strategic importance in relation to Auckland and the British lines of supply into Waikato. Although they had committed no acts of aggression against the Crown, Hauraki were thus caught up in the tensions between the Crown and the Kingitanga. Following General Cameron’s advance across the Mangatawhiri on 12 July, some sections of the Hauraki tribes took up arms in what they saw as legitimate

defense of their lands and people. They lost many lives in the fighting which followed and great social dislocation was caused to so-called ‘rebels’ and ‘loyalists’ alike.

The confiscations of land which accompanied the British military advance included the East Wairoa block of at least 51,000 acres (owned by Hauraki tribes), and over a million acres in central and eastern Waikato in which Hauraki tribes owned significant interests. Only a few thousand pounds and 3000 or 4000 acres of land have ever been awarded to Hauraki Maori in compensation for these losses, even to those deemed ‘loyal’. Further reserves were promised under the Waikato Confiscated Lands Act 1880, but the Crown acknowledges that ‘These arrangements were not formalised at the time leading to confusion and problems … 15 years later when they were eventually formalised’.¹

The Crown has further conceded that:

► ‘In general terms that the application of the confiscation policy in respect of land in East Wairoa and central Waikato (Maramarua) was unjust and was in breach of the principles of the Treaty.’

► ‘The East Wairoa confiscation [was] … from groups that were, for the most part, considered loyal.’

► ‘Unlike the Waikato confiscations, very limited land within the East Wairoa confiscation was returned to Maori.’

► ‘Many of the claimants find the use of the term rebel perjoritive… It is further acknowledged that this has had a detrimental effect.’

► ‘The stark evidence of the dislocation caused by the period of war and confiscation, and the effects of this on Maori communities, weighs heavily with the Crown.’

► ‘The legislative authority to take the land was never perfected and the practical machinery required to implement it never really existed in New Zealand.’

► ‘Given the very real potential for injustice arising from the inherently draconian nature of the powers and having abrogated the Article 2 guarantee of protection, the Crown was under a Treaty duty to take particular care in implementing the legislation. However, it clearly failed to do so.’²

We welcome the Crown’s concessions because of the seriousness of the injuries to Hauraki tribes, and because the particular interests of Hauraki have not been taken account of in earlier attempts at redress. The Sim commission of 1928 did not consider the East Wairoa confiscation apart from the Waikato confiscations generally, nor the extent to which Hauraki tribes were affected by the central Waikato confiscation. Hauraki iwi, as such, were not included amongst the beneficiaries of the Waikato Raupatu Claims Settlement Act 1995 and the boundary of the Waikato Tainui raupatu claim area excluded the East Wairoa confiscation.

1. Paper 2.550, p 22

2. Document AA1, pp 78-79, 106-107

While making the above concessions, the Crown offered evidence, apparently in mitigation, about the origins of the conflict between the Crown and Waikato - evidence not considered by the Waitangi Tribunal prior to the negotiation of the 1995 Waikato raupatu settlement. Essentially, the Crown argued that Governor Grey’s policy from late 1861 was peaceable, but that he felt obliged to assert military authority over Waikato following the attack on British troops in Taranaki in May 1863 (apparently instigated by the Kingitanga leader Rewi Maniapoto), and indications of a possible attack on Auckland by elements of the Kingitanga. We have considered this and other historical evidence and find that, while there were genuine fears in Auckland of an attack, the prospect of some kind of general conspiracy or rising was exaggerated by Grey and his Ministers. The roots of the conflict in 1863 lay rather in the Crown’s failure to negotiate a genuine settlement in Taranaki, the bellicose attitude of Ministers towards the Kingitanga, and Grey’s failure to reach an accord with that body.

ES.4.2 Maramarua Forest

The map attached to the Waikato deed of settlement 1995 included the area of the Maramarua Crown Forest, but under clause 17.3 of the deed, the Crown and Waikato acknowledged ‘that the Maramarua lands were the subject of competing claims by the Hauraki Maaori Trust Board’. That matter was to be resolved by an appropriate authority or by agreement before any assets relating to Maramarua Forest were transferred. The Maramarua lands are within the Hauraki inquiry district of the Tribunal.

Hauraki claimants and Waikato Tainui did not reach agreement regarding the Maramarua lands and forest but made various submissions to us regarding them. Having examined the evidence, we find that:

► There is no need to determine a ‘boundary’ between Hauraki and Waikato as both had customary interests within the Maramarua district and share kin links and overlapping and intersecting rights along a border zone between the Waikato and Hauraki sections of Tainui waka descendants. Waikato and Hauraki retain their ancestral connections with the Maramarua district.

► If Maramarua Forest is not transferred to Hauraki in settlement of their claims, then Waikato retain only the right of first refusal to purchase, having already been paid $12.25 million as the value of the forest land by the Crown in final settlement.

► We consider that the Crown has met all its obligations in the Waikato Raupatu Claims Settlement Act 1995 and deed of settlement by the payment of money in settlement of Waikato Tainui claims to Maramarua lands.

► The Maramarua Forest and other Crown lands in the district may therefore be considered by Hauraki claimants and the Crown, through the Office of Treaty Settlements,

free of other claims and potentially the subject of negotiations in settlement of Hauraki claims.

ES.5 Cold

Issues relating to gold have been a central feature of the Hauraki claims. A gold-mining agreement was first negotiated over land at Coromandel in 1852, whereby Maori owners ceded to the Crown the management of the goldfield in return for payment to the Maori landowners of revenues based largely upon the number of miners holding licences. Further cession agreements were negotiated in respect of various parts of the inquiry district until the 1890s, the most important being at Coromandel, Thames, Ohinemuri, and Te Aroha.

The claimants have submitted that they received inadequate payments for opening their lands to gold-mining and that the Crown used undue pressure and manipulation to secure some of the agreements. Moreover, in the later nineteenth century, the Crown arbitrarily reduced the agreed scale of payments and mismanaged the collection and distribution of revenues due. When the Crown systematically purchased the freehold of land subject to cession agreements, Maori lost the mining revenues they had previously received. The claimants further submit that they would have received much fairer returns had the Crown renounced the royal prerogative over gold and recognised Maori ownership of it. As it was, by the early twentieth century Hauraki Maori had lost most of the mining revenue and the land.

The Crown denies almost all of these claims. It has submitted that, although the royal prerogative was preserved in mining legislation, it was not applied. The key issue was not ownership of gold but control of access to mine it, and policy and law upheld the right of Maori to permit or forbid mining on their land throughout the nineteenth century. Only in respect of the Ohinemuri agreement of 1875 and the Te Aroha agreement of 1880 does the Crown concede that undue pressure or manipulation occurred. It concedes also that legislation in the late nineteenth century which unilaterally diminished the scale of payments due to Maori and allowed certain reserves within goldfields to be mined without explicit Maori consent was inconsistent with the principles of the Treaty. In mitigation, it submits that the changes were required by the downturn in mining and the economics of the industry at the time. The Crown further submits that the claimants’ assumption that the retention of ownership of gold by Maori would have resulted in a fairer return to Maori is highly speculative, and takes no account of the very high capital costs of quartz mining. The Crown adds, however, that the question of the extent to which the presence or suspected presence of gold was the primary motivation for the extensive acquisition of the freehold of Maori land in Hauraki is ‘important’.

Our findings on these and related matters follow.

ES.5.1 Context

We consider that:

► Gold, apart from land, was not considered a taonga in Maori culture. On the other hand, land and control of access to land were highly valued, and the importance of gold and other minerals in the commercial economy was quickly understood.

► The first significant discoveries of gold at Coromandel came only three years after the great California rush and a year after the first Australian rush. Crown officials and Maori alike were genuinely concerned about the likely influx of a large, itinerant, and turbulent mining population and how best to manage it.

► In contrast to the South Island fields, however, there was little alluvial gold in Hauraki. Individual miners had very short-lived success. Gold had to be extracted from a quartz matrix, by companies able to make large and long-term capital investments, and (apart from a few ‘bonanza’ reefs at Thames) to process large quantities of low-grade ore.

► Consequently, the mining population in Hauraki was not as transient as on an alluvial field. It consisted largely of wage labourers working on company mining leases and then settling in the district. Hauraki Maori were not only demographically overwhelmed by the mining population but also displaced by it in local industries.

ES.5.2 Coromandel: the first gold-mining agreement

We consider that:

► The agreement negotiated between Crown officials and Hauraki rangatira at Patapata in 1852 was a provisional attempt to deal with a situation that was new to both sides. It was limited to three years or whenever payable gold ran out. Although the Crown could not in good faith abrogate the terms lightly, it was inevitable that the basis and scale of payments would be reviewed. They had been based upon the precedent of alluvial mining in Australia and the mining licence fees charged there; it was recognised from the outset that the terms for mining matrix gold had yet to be negotiated. (Moreover, the fee for a miner’s licence in Australia was drastically reduced following the Eureka Stockade rising of 1854.) Claimant submissions to the effect that the Patapata agreement was a ‘treaty’, a ‘blueprint’ or ‘template’ therefore overstate its significance. In any case, the Crown is correct in pointing out that two of its fundamental principles were in general maintained: namely, that gold-mining on Maori land would occur only with the landowners’ consent; and that rent or revenue payable to Maori would be pegged to the number of miners working the field.

► The claimants have submitted that the Crown was negotiating in bad faith in 1852. It really would have preferred to acquire the freehold and soon set about doing so. The Crown has submitted that the Patapata agreement, or any other mining cession

agreement, did not preclude it from subsequently negotiating for the freehold, and that the negotiation of the cession agreement was neither in bad faith nor involved a Treaty breach. We concur with the Crown view of the cession negotiations, but consider that many of the negotiations for the freehold involved breaches of Treaty principles (see below).

ES.5.3 Subsequent agreements in Coromandel

We consider that:

► Donald McLean negotiated a prospecting agreement with several Coromandel hapu in 1861. The claimants have suggested that undue pressure was used in that the Maori leaders were ‘threatened with the consequences of disorder if they did not let the Government control the situation. This is misleading. Following the gold rushes in the South Island, there was a real likelihood of a rush on Coromandel. It was reasonable for the Government to seek the right to control prospecting and mining. The rangatira who concluded the agreement were not opposed to having their land prospected.

► The claimants have submitted that the Crown subsequently secured the opening of the Tokatea block for mining against the wishes of the leading Ngati Tamatera right-owner, Te Hira Te Tuiri, by dealing with other right-owners, notably Riria Karepe. The Crown submits that it is unrealistic to expect complete unanimity from right-owners before concluding an agreement. We consider that the overriding of the wishes of a significant group of right-owners, even if they were in a minority, breached the article 2 requirement of informed consent to alienation of land rights. However, we note that Te Hira, though angry at being out-manouevred in the negotiations, accepted part of the payment and did not wish the miners to leave Tokatea.

► When mining was under way in Coromandel a further agreement was negotiated in July 1862. The claimants have submitted that this failed to take account of important matters such as payments for residence sites or for cutting timber, or to set a date from which the payments for each miner on the field would be payable. We consider these criticisms to be valid but note that, in October 1864, payments due up to that date were agreed and the respective rights of Maori and miners clarified.

ES.5.4 Thames

From the early 1860s, some Hauraki rangatira, such as WH Taipari, actively supported prospecting on their land, with the intention of opening it to mining. A general hui of Ngati Maru in July 1867 agreed that, while not all were willing to admit miners, those whanau who wished might do so. From then until mid-1868, the Civil Commissioner, James Mackay, negotiated a sequence of mining cession agreements, broadly on a hapu-by-hapu basis. The

Thames gold rush followed, bringing a flush of wealth to some miners and some Maori. The claimants have submitted that Mackay pursued ‘divide and rule’ tactics and brought undue pressure to bear to secure these agreements. The Crown contends that there were inevitable divisions of opinion among Maori about the extent and pace of opening their lands to mining, and that no land was opened without the consent of the rangatira and hapu concerned. The agreements included payments to Maori landowners for ‘all claim holders and their servants’, for residential and business site licences, and for the cutting of kauri and other timber.

On these matters, we note the following:

► In general, we concur with the Crown’s view. Mackay firmly policed the boundaries of Maori land not opened to mining and awaited the agreement of principal rangatira to mining on the land they controlled.

► The allegation of undue pressure relates mainly to Waiotahi, on the northern side of Thames, which Aperahama Te Reiroa had kept closed. We accept that Mackay did bring some undue pressure to bear on Te Reiroa but also that minimal prejudice was involved because many owners in Waiotahi were already in favour of mining the land.

► In several instances, rangatira asked for advance payments as part of the terms of mining agreements. Mackay declined in some instances and agreed in others. We consider it unwise for the rangatira to have asked, and unwise but not improper for Mackay to have acceded. The advances were against an assured stream of mining revenue, not a debt on the land, and were part of a general agreement among the principal owners, not a buying off of one group to get a foothold against known opposition (as was to occur in Ohinemuri).

ES.5.5 Ohinemuri

The Crown has accepted that there were ‘elements of pressure and coercion’ in the pursuit of a mining cession in Ohinemuri, then the freehold of it, and that Ohinemuri was ‘a particularly regrettable transaction.’³ The Crown nevertheless submits in mitigation that Maori right-owners in Ohinemuri were always divided on the question, and that the Crown did not confront or overrule the opposition to mining (led by Te Hira) but kept miners off the land pending the withdrawal of opposition. We have received many submissions relating to the propriety or otherwise of the Crown’s advances to individual right-owners or sections of them, for their interests in Ohinemuri, Waikawau, and Moehau blocks (including £3000 advanced by Mackay for tangi expenses); also on the practice of ‘raihana’ - the acceptance by Mackay of orders many Maori owners made with storekeepers for day-to-day needs, also charged against the land. In late 1874, Mackay and McLean confronted the assembled

3. Document AA1, p 181

rangatira with the huge cumulative debt from the hundreds of individual advances. The freehold of Waikawau and Moehau was not considered by the Crown to be of sufficient value to redeem the debt, and £16,000 was charged against Ohinemuri. Te Hira then reluctantly accepted a mining cession agreement in order to save the freehold of the land. But within three years the Crown had resumed the purchase of the freehold. The Native Land Court awarded it some 66,000 acres of Ohinemuri in 1882 and the Crown purchased over 20,000 acres more by 1900.

In light of these events, we consider the Crown’s concession regarding Ohinemuri to be grudging and inadequate. The Crown behaved deviously, manipulatively and in very bad faith over Ohinemuri, with little or no regard to its protective obligations towards a people who had virtually no experience in the management of debt. In particular, we consider that:

► The practice of making advances to individuals charged against land still in customary tribal title was divisive and destructive of the traditional relationship between rangatira and their communities.

► Although Mackay did make some effort to stop storekeepers and Maori from charging store orders against the land, he also specifically indicated to his superiors that he considered the advances for tangi expenses and raihana to be a way of overcoming the resistance of Te Hira and others. This contradicts the Crown’s claim that it did not deliberately foster debt.

► Not until late 1874 did Crown officials begin to discuss with Maori a price per acre for the land against which the advances were accumulating. Consequently, none of the right-owners had any idea of the vast amount of land the debt represented, in the Crown’s view.

► The Ohinemuri mining cession agreement of February 1875, charged the £16,000 debt not only against anticipated gold-mining revenue but also against all minerals, kauri gum, residence and business site rentals, and agricultural leases. The Crown made reasonable efforts to explain the terms, in Maori, to those actually attending the relevant meetings but did not provide a written translation of the deed in Maori nor circulate the document in advance. Consequently, many right-owners, including the many who had never received advances, belatedly discovered they had lost virtually all control of the district and its resources as well as any entitlement to revenues from them.

► Arguably, this might have been justified if it meant that the debt against Ohinemuri was all the more quickly redeemed and Maori retained the freehold. But the Crown did not wait for that outcome. Instead, it began buying the freehold again in 1877 and eventually waived about half the debt. The basic agreement between the Crown and Te Hira in December 1874, expressed in Mackay’s words ‘You are to have the land and I am to have the gold’, was repudiated by the Crown.

ES.5.6 Te Aroha

Gold was discovered at Te Aroha in 1880 by the Maori prospector Te Hone Warehiko. The reefs lay partly in Crown land and partly in the Ngati Rahiri Tumutumu reserves at Omahu and Wairakau. The Crown negotiators, George Wilkinson and Harry Kenrick, negotiated a mining agreement with Te Mokena Hou and WH Taipari over a portion of the land in which they had dominant interests, but others of Ngati Rahiri held out for better terms. Relying on the part-agreement, and the fact that some of the gold was on Crown land, the Crown officials declared the field open anyway. Although most of the former dissentients then took out licences and began mining (as well as receiving a share of lease revenue) the Crown accepts that the officials’ action in forcing the agreement on them ‘did not accord with the policy of the [1868?] legislation requiring consent before [Maori] land was open to goldmining, and is inconsistent with the principles of the Treaty’.⁴

ES.5.7 East Coast goldfìelds and Manaia

A sequence of mining cession agreements was negotiated in respect of Harataunga, Cape Colville, Pakirarahi, Whangapoua, Kuaotunu, and Manaia. There are indications of some haste by Crown officials in declaring fields open, but generally the evidence shows that consent was obtained. Many of the gold workings were short-lived, and burdened by high costs of extraction. Claims that some Maori were deprived of rights to some mining revenues is confused by boundary issues which were not resolved then and are not readily resolvable today - and by the purchase of the freehold of the land. The owners of Pakirarahi signed deeds of sale, but also signed a further agreement indicating that they wished to sell only the timber on the land and to retain both the freehold and the mining revenue. The district registrar of titles registered the deeds of sale but also registered a caveat noting the subsequent agreement. In the confused legal proceedings which followed, Pakirarahi 1 came under the control of the Kauri Timber Company, and the owners - unfairly we believe - lost access to the mining revenues. However, because the registrar had also registered the caveat, they were ultimately able to recover the land itself. Mining cession revenues continued to be paid by the Crown in respect of Pakirarahi 2 until the late nineteenth century, after which the record becomes obscure and mining petered out.

ES.5.8 General issues

(1) The basis of payment

Claimant evidence indicates that Hauraki Maori received under the cession agreements payments totalling in the order of £62,000 for the period 1867 to 1880 and £27,000 for the

4. Paper 2.550, p 14

period 1881 to 1897. The value of gold exported was worth some £7.8 million over the same period. This has led claimants to submit that the payments to Maori were far too low, and should have been based upon royalties on the quantity of gold extracted rather than upon the scales of fees (essentially rentals for rights of access) agreed in the cession agreements. It is not conceivable, in our view that either the Crown or the mining industry would have agreed both to royalties and to lease rentals, and it has not been shown to our satisfaction that the former would have been more advantageous to Maori than the latter, especially if the net rather than the gross value of gold were to be the basis of payment. As the Crown has submitted, no payment system would have been agreed that did not take into account the huge capital costs involved in mining matrix gold: demands for royalties that did not do so would soon have depressed investment. As it was, in a situation of high risk, Maori were paid in the order of £6 per acre per year in miner’s rights fees, plus other agreed fees, as long as miners were working the field, regardless of whether they were making profits. We have seen no evidence of Maori complaint at the time about the system as such, and various hapu continued to sign cession agreements under it throughout the nineteenth century.

(2) Erosion of the agreed levels of payment

The claimants have submitted that the Crown allowed the level of fees negotiated in the cession agreements to be eroded. Certainly, when the Auckland provincial government in 1868 introduced provisions for company leaseholds rather than annual individual miner’s rights, Maori owners’ entitlements were greatly reduced. However, the general government acknowledged the legitimacy of protests by Thames Maori and took steps to restore the mining revenues to the previously agreed levels. In 1886-87, though, the governments of the day succumbed to pressure from the flagging mining industry and reduced the fees payable to Maori by as much as 75 per cent (against the protest of Wilkinson, who had negotiated the Te Aroha agreement). We believe that the Crown should rather have renegotiated the terms with Hauraki Maori. Reducing the fees unilaterally breached the Crown’s Treaty duty to deal in good faith with Maori at all times.

(3) The Crown’s role in collecting and distributing agreed entitlements

The claimants have submitted that the Crown’s administration of the cession agreements was flawed and that officials did not collect and distribute all the revenues due to Hauraki Maori. We have noted the inherent difficulties of the task and are not persuaded that there was serious negligence by the Crown, at least before the 1890s. By that time, the growing complexity of Maori rights to land due to succession and absentee ownership led to entitlements become increasingly fractionated, and uneconomic. However, rather than negotiate a better system with the Maori beneficiaries, Ministers and officials of various Government departments shuffled the responsibility between them, letting the records fall into confusion and payments into arrears.

(4) Crown purchase of land subject to mining cession agreements

For most of the 1860s, the Crown showed no wish to purchase the freehold of goldbearing land rather than negotiate mining cession agreements. By 1870, however, some Hauraki Maori had begun to put land through the court and either to let or to sell it to private parties. Successive Ministers, and Crown officials in Hauraki, then began to urge that, in the public interest, the Crown should buy auriferous land. There is also evidence of growing resentment by miners, mining companies, and local bodies to paying licence fees and rentals that flowed to Maori owners. By the early 1880s, when the Crown bought Maori land already subject to mining cession agreements, it paid the mining revenues to local authorities, not to the former Maori owners. From 1876 to 1882, there was uncertainty among officials about the effect on mining revenues of Maori selling their land to private parties, though this uncertainty was as much about whether the revenues were payable to the Crown rather than the private owners as whether it was still payable to Maori. In 1882, however, the Attorney-General, Frederick Whitaker, gave a definitive ruling that such entitlements passed along with all other lesser rights to the new owner of the fee simple. This spurred Crown Ministers and officials to new efforts to purchase auriferous land.

(5) The MacCormick commission

In the late 1930s, Judge MacCormick of the Maori Land Court was appointed commissioner to investigate the arrears of payments of goldfields revenue still due to Maori. His report was highly critical of the Crown’s administration of those revenues. In the course of his inquiry, MacCormick also examined the way in which lands such as Ohinemuri had passed into the Crown’s ownership, and he concluded that Maori were not fully advised of the fact that, when they sold the freehold, they lost their entitlement to continue to receive mining revenue. MacCormick considered that consequently they may have made bad bargains. Although he did not believe the Crown had done anything illegal, he recommended that the Crown make an ex gratia payment to Hauraki Maori of £30,000 to £40,000:

in view of the very large sums of money received by the Crown by reason of its purchase of the freehold previously ceded to it for mining purposes, and the doubt whether the Natives fully appreciated the effect of their sales, and the further doubt as to the proper distribution to the Natives of the money they were entitled to.

The Second World War intervened, and MacCormick’s recommendation has never been implemented.

(6) Implementation of the MacCormick recommendation

In opening submissions to this Tribunal on gold issues, Crown counsel stated that the Crown ought to have acted on the recommendation of the MacCormick commission. We note, however, that in closing submissions Crown counsel also stated that the concession was made

in the light of MacCormick’s observation that the purchases of ceded land were made when the goldmining industry was in decline and that, ‘if considered at the time they were entered into, [they] would not appear such bad bargains as they appear in the light of after events’ (when the industry recovered). Moreover, the Crown does not accept that the calculation by Michael Copeland (consulting economist for the claimants) of the present-day value of the MacCormick recommendation provides some sort of benchmark for redress: ‘Factors to be taken into account when determining the nature and extent of redress provided in settlement [are] more appropriately addressed in settlement negotiations’.⁵ On this matter:

► we consider that, in view of the long delay in implementing the MacCormick recommendation, the Crown’s concession is welcome;

► we agree that the nature and extent of the redress should be addressed in settlement negotiations; and

► we note that in its purchases of auriferous land the Crown did pay a premium as against the generality of land (in the order of five shillings an acre, as against two shillings to three shillings an acre in the 1870s, and between 10 shillings and £3 an acre, as against five shillings an acre by 1900).

However, we also believe that the occasions when Maori vendors made informed and considered choices between selling the freehold (and thereby losing the mining revenue) or retaining the land and the mining revenue were rare, and mostly came late in the nineteenth century. Many of the purchases resulted from dealings by Crown agents with individuals for their undivided interests in land titles, followed by application to the court for a partition of the land and an award to the Crown of its proportionate interest in the title. The community as a whole often had little or no opportunity to make a considered decision as between leasing and selling. Maori owners were not well advised, if they were advised at all, and undoubtedly made many bad bargains. In view of this, we believe that the MacCormick recommendation should be implemented fully and in a generous spirit.

(7) Other twentieth-century developments

The Mining Act 1971 declared gold and silver to be the property of the Crown. The Crown at last relinquished its rights over any remaining land still subject to nineteenth century mining cessions, but maintained a right to authorise access for mining on private land as if it were Crown land, and maintained a right to authorise access for mining on private land as if it were Crown land. The Crown Minerals Act 1991 qualified that right, generally requiring the consent of owners for mining on their land. The claimants have been critical of the formulation of both Acts, but we consider that there was reasonable consultation by the Crown in the shaping of the 1991 Act. There was undoubtedly a prejudicial effect to Hauraki Maori from the fact that fees for residence site licences, granted from as early as the 1860s, were not revised to reflect market values. Following protest and litigation by Hauraki Maori, a settlement was negotiated with the Crown in 1980. We have received submissions that the compensation provided was inadequate but the evidence does not, in our view, provide grounds for reopening the 1980 settlement.

5. Document AA1, p 28

ES.6 Timber

‘Timber leases’, that is, the purchase of cutting rights, were made between Maori and timber millers, mainly in respect of kauri, notably from the late 1850s. These were technically illegal, or at least extra-legal, but were condoned or assisted by Crown officials. After 1865, fresh agreements were negotiated under the Native Land Acts, to formalise the previous ones, and some new agreements were also reached. Then, in the 1870s, the Government commissioned James Mackay to buy large areas systematically on the Coromandel Peninsula. Mackay was in many cases already acting for the timber millers in their lease negotiations and suggested that the Crown purchases be subject to the timber leases, in which the millers had invested heavily. Ministers agreed. The claimants have submitted that Mackay and the Government colluded to ‘drive down’ the price paid for the land. We do not consider that this case is made out. It is normal commercial practice to discount the price for land when the resource that constituted much of its value has already been sold. The fact that Mackay was acting both for the Crown and the millers certainly suggests a conflict of roles, but such multiple roles were not unusual in the nineteenth century. Crown land purchase agents were generally directed to pay low prices to Maori and it is not self-evident that Maori would have got better prices for the land had a different agent been employed. In our view, the low prices paid were more a consequence of the fact that the Crown was buying under proclamations of pre-emption.

There is insufficient evidence available to judge the fairness of prices paid to Maori for the timber. In addition to the prices recorded during the formalisation of the agreements in the 1870s, there were also payments during the period of informal agreements, not systematically recorded. Timber merchants also usually paid for the cost of surveys. The Native Lands Act 1867 allowed them to secure what was effectively a lien over the land for their advances, which commonly led to private purchases of the land, especially at Whangapoua and Mercury Bay, as Maori struggled to redeem the debt. We accept the Crown’s view that the prejudicial effects of this system are best seen, along with survey costs generally, as arising from the Native Land Acts rather than relating particularly to timber.

ES.7 Land Law and Land Purchase

We have received a great deal of evidence relating to the law affecting Maori land - the Native Land Acts - and land purchase policies which have left Hauraki iwi today with only 2.6 per cent of their customary land. The claimants submit that this was a consequence of deliberate Crown policies designed to acquire their land at low prices and make it available for Pakeha settlement. We have received many detailed block histories illustrating how these policies affected particular whanau lands.

The Crown has argued in defence that Maori could not escape all the pressures of the monetary economy and that the Crown policies aimed to strike a balance between giving some protection to Maori landowners while allowing them to participate in new economic opportunities. The Crown concedes that, in retrospect, more retention of Maori collective institutions would have been desirable, but that this perception owes a good deal to hindsight. Moreover, Maori society was not wholly collective traditionally but allowed considerable place for individual and family rights, and much land alienation occurred because individual Maori chose to transact land in order to seek higher living standards:

Having said that, the Crown does accept that the particular feature of the Hauraki inquiry, and a factor contributing to eventual outcome [s], is the combined effect of the facilitation of alienation created by the native land laws, and a vigorous Crown land purchasing policy.⁶

We welcome the Crown’s concession because in our view the evidence submitted clearly supports the claimants’ view that the alienation of nearly the totality of Hauraki land was the result of deliberate Crown policies, pursued - against widespread Maori protest - until well into the twentieth century. Moreover, it does not require hindsight to show that the empowerment of individuals to alienate their share of the tribal patrimony was deliberately favoured by Crown policies (rather than any ‘balance’ being sought). Indeed, this was pointed out by various settler politicians and officials from 1866 onwards, but any legislative changes in favour of stonger collective control were soon swept away if they resulted in a slowing of the rate of purchase of Maori land. In short, although the Crown arguments and evidence have refined our understanding of some matters, they have not modified in any significant way the interpretation of the Native Land Acts and Crown land purchase policies provided by successive commissions of inquiry since the 1870s, by a succession of academic historians in the last 40 years, and most recently by the Tribunals 2004 report Turanga Tangata Turanga Whenua. Indeed, we believe that the dislocation to Hauraki Maori society and the loss of control over their land arising from the land law had more damaging consequences even than war and raupatu.

In particular, we find that:

6. Document AA1, p 113

► It was appropriate for the Crown in the early 1860s to establish some form of commission or tribunal to clarify customary land rights rather than leave this to land purchase officials, but there was very little consultation with Maori or regard for Maori opinion as to the form and the practice of that tribunal, either at the outset or during the next 100 years.

► It was not unreasonable that customary tenure should be modified to meet the needs of the commercial economy, including the aspirations of Maori to farm their own land. But the extent and nature of that modification was far too drastic and owed little to Maori wishes. The titles created facilitated alienation of the land by sequential purchase of undivided individual interests in titles, followed by a succession of partitions. The system destroyed the traditional balance between individual and community rights, fostered factional division and frustrated rather than assisted Maori aspirations for commercial farming, either by individuals or groups. Instead, it created a sense of fatalism among Maori as to the land’s passing and a pauperising opportunity to obtain money for day-to-day needs by selling individual interests.

► As Crown witnesses have conceded, the Native Land Act 1873 (under which most Hauraki land was alienated) did not include an adequate mechanism for community control over either alienation or development of the land. The memorial of ownership created by that Act empowered title-holders to alienate the land and little else.

► About 70 per cent of Hauraki land was acquired by the Crown between 1870 and 1914, most of it under Crown monopoly through proclamations of Crown pre-emption in 1872 and 1874 and under the Government Native Land Purchases Act 1877, which meant that Maori were prevented from selling or leasing on an open market.

► The cost of securing land court titles (survey costs and court costs) commonly drew Maori communities into debt and eroded any potential advantage in securing the titles in the first place.

► The Native Land Act 1909 attempted to deal with the increasing fractionation of Maori land titles by allowing decisions to be made at ‘meetings of assembled owners’. This resulted in considerable areas being alienated by majorities on the night, even though they might not hold a majority of all interests in the blocks concerned.

► When the Stout-Ngata commission of 1906 to 1907 examined the situation in Hauraki, only about 15 per cent of the claim area remained in Maori ownership. The commissioners recommended that Hauraki iwi required virtually all remaining land for their own needs. The Crown nevertheless continued to purchase systematically in the district (including the compulsory acquisition of land in the Hauraki Plains drainage scheme) and facilitated a spate of private purchases in the period 1910 to 1929. There is no evidence of any attempt to reciprocate by reserving land for Maori dairy farming in the Hauraki Plains.

► When the State eventually sought to assist Maori farming through the Maori land development schemes from 1930 to 1970 there was very little suitable Hauraki land still in Maori ownership on which viable farms could be created.

The claimants have submitted that prejudicial effects arose from the law relating to succession to Maori land. We have examined the relevant law and practice from 1865 to 1993. The provision that, on intestate succession, the land is divided among all natural heirs has been blamed for the fractionation of Maori land titles. We find, nevertheless, that this succession principle was generally in conformity with Maori wishes: it was the passing of land outside the bloodline by means of written wills that caused most dissatisfaction and injured some whanau. The problem with intestate succession lay rather in the nature of land titles and the alienability of individual interests, rather than the succession rule as such. The question has been addressed in the Te Ture Whenua Maori Act 1993.

ES.8 Te Aroha Mountain, the Hot Springs, and the Township

The Crown acquired the Te Aroha block, including the western side of the mountain and the hot springs at its base, by purchase in 1878. The eastern portion lay inside the Tauranga confiscation line and was acquired by the Crown in 1864. Te Aroha mountain nevertheless remained a maunga tapu in the minds of Ngati Rahiri Tumutumu and Hauraki people generally. Yet, they have had little participation in its management or the management of the hot springs in Te Aroha Domain.

Despite some oral traditions to the contrary, the Ngati Rahiri Tumutumu rangatira Te Mokena Hou and his whanau did not, in legal terms, ‘give’ to the Crown the hot springs reserve in section 16 of the Te Aroha purchase (while retaining sections 15 and 17 where the township was built). Rather, Crown control of the springs was asserted through the Te Aroha purchase, the proclamation of the Te Aroha goldfield in 1880, and the Public Domains Act 1881, under which the reserve was gazetted. We accept therefore that another Ngati Rahiri Tumutumu oral tradition that the springs were ‘taken by the Crown has some validity. In general, we find that the Crown has failed to protect the traditional values and kaitiakitanga of the tribe in Te Aroha mountain and hot springs.

Similarly, although no specific documentation has been provided of any agreement between local Maori and the Crown for continued free use of the springs by Maori, there is documentary evidence from as early as 1885 that this was their understanding.

The claimants have been critical of the Crown for purchasing most of the interests of the Mokena Hou and Lipsey families in Te Aroha township in the early twentieth century. We note, however, that those families had previously benefited significantly, relative to other Ngati Rahiri Tumutumu whanau, from their cooperation with the Crown in development

of the township. We note also that Crown officials resisted the removal of restrictions on sale of the town sections and purchased many of them in the public interest, only when it appeared that the family might sell to private parties to whom they had become indebted. Given article 3 rights and responsibilities, we consider that there are limits to the protection that the Crown can accord to individual Maori owners of property which is no longer undivided tribal property. As discussed earlier, the prejudice arises initially from the system of land law which divided community land into individual interests alienable without further involvement of the community.

ES.9 Taonga and Wahi Tapu

We have considered the claims of several Hauraki groups that their wahi tapu were not protected by the Crown when blocks of land were sold. In many cases the evidence available has not enabled us to make findings on particular cases, especially where land was sold to private purchasers. But there is a more general issue. The Crown has acknowledged that where Maori requested reserves to be set aside for urupa or wahi tapu, its fiduciary obligations required the Crown to do so. Moreover, because many of the early Crown purchase deeds did refer to reservation of wahi tapu, and some oral agreements to that effect were made after that time, it is likely that Maori vendors commonly assumed that sales of land to the Crown did not necessarily mean loss of control over wahi tapu. In practice, however, the nature of freehold titles, especially when held by private parties, meant that only where wahi tapu were pointed out and specific requests made for their reservation did the Crown offer active protection - and not always then. The losses of wahi tapu were therefore part and parcel of the alienation of the great bulk of Hauraki land.

We consider that real prejudice has resulted over the past 150 years from the desecration and destruction of wahi tapu sites and from the taking of movable taonga for private collections and for export, in breach of the clear article 2 guarantee to Maori that they would be protected. Maori spiritual sites and moveable taonga were usually treated as less important than the rights of private property owners. We consider that compensation is due for these breaches and the resulting prejudice, to enable Maori to reclaim lost taonga where possible, to foster skills to assist in the creation of new taonga through a vibrant arts culture, and to assist Maori with consultation procedures for the better protection of taonga and wahi tapu. We recommend that the Resource Management Act 1991 be made more consistently effective for the protection of wahi tapu and taonga (which the Crown has conceded is not always the case), and that the Government, local authorities, and Maori should work together to publicise the protection measures available under it and ensure their use to the fullest extent possible. In this context, we note the difference between archaeological sites and ‘living’ wahi

tapu, known and valued by claimants today. One possible way forward would be for working groups of tangata whenua, Crown officials, and local authorities, formed under the Resource Management Act, to locate those living wahi tapu most in need of protection.

Es.10 Rating of Maori Land

The Crown has acknowledged that the burden of local body rates might not always have been applied equitably in Hauraki. Our report discusses particular cases. We also note that the titles created under the Native Land Acts, and the partitioning of land into uneconomic parcels, made it difficult for Maori to meet rating obligations. Provided that the Crown acknowledges this, and the considerable contributions in land which Maori have made, both voluntarily and compulsorily, for local and national infrastructure, we see no problem in Treaty terms with the concept of rating Maori land. We note that, although current legislation allows for negotiation and adjustment of the rating burden, earlier generations lost land to compulsory charging orders and find that the Crown should take this into account in negotiating the quantum of settlement for Hauraki claims.

ES.11 The Foreshore and Seabed

Many claimant groups raised with us the issue of proprietary rights over the foreshore and seabed, or at least rights of rangatiratanga and kaitiakitanga. The ‘ownership’ issue has taken on particular prominence since the Court of Appeal decision in the Ngati Apa case, and the subsequent legislation, both of which occurred after the Hauraki Tribunal completed its hearings. We are of the view that the issue has been addressed by another Tribunal in the 2004 Report on the Crown’s Foreshore and Seabed Policy and is now a matter for the courts rather than for this Tribunal.

We do, however, note that in purchasing Maori interests in the Thames foreshore the Crown denied Thames Maori the opportunity or right to lease the foreshore for the purpose of mining, which contemporary evidence shows to have been their preference. Furthermore, following Fenton’s judgment in the Kauaeranga case (1870), and faced by the prospect of the Native Land Court recognising Maori interests in other Hauraki foreshores, the Crown shut down the jurisdiction of the court to inquire into such claims, and further strengthened its control via the Harbours Act 1878. We consider this to have been prejudicial to Maori, though we are not in a position to determine the extent of the prejudice.

ES.12 Public Works Takings

Hauraki claimants have made extensive submissions concerning the legislative regime under which Maori land was taken for public works, and numerous instances of particular land takings, including those relating to the improvement schemes for the Waihou and Ohinemuri Rivers (following the use of those rivers as mining-sludge channels), the Hauraki Plains drainage scheme of the early twentieth century, and the taking of Ohinau Island for a lighthouse and a number of school sites. We note that, in addition to the specific takings of Maori land for public purposes, the Native Land Acts and Public Works Acts generally provided for the taking of 5 per cent of Maori land for roading purposes, without compensation, within 10 (or 15) years of its passing the court. The claimants submit that both in the particular cases and in general they were prejudiced by the further diminution of their already depleted estate, with inadequate compensation or countervailing betterment. We have given our findings on the particular cases in our report where the evidence allows (which is not always the case), and have recommended that land be returned where appropriate or the issues taken up further in negotiations.

Crown counsel have submitted that in considering whether Maori land should be taken for public works a balance has to be found between the Crown’s kawanatanga rights under article 1 and the rangatiratanga guaranteed by article 2, and accepted that in general Maori land should be taken for public works only where there are no other practicable options and after appropriate consultation with those affected. Counsel acknowledges that ‘the Crown must consider whether Maori are left with sufficient land for their present and foreseeable requirements’.⁷ In the light of these principles, the Crown has conceded that, in respect of the Hauraki drainage scheme, ‘There is some evidence that lands taken were required, but there is also evidence that more land than was required was taken’, possibly with insufficient consultation.⁸ Moreover, although Maori did have the opportunity to ballot for dairy farms in the scheme, ‘there is no indication whether this occurred’. There is no indication either that farms in the scheme were set aside for Hauraki Maori, even though the Stout-Ngata commission had not long previously reported that they could afford to lose no more of their land. We agree that Hauraki Maori must have received some indirect benefit from the scheme in terms of public roads and bridges, and potentially could have had better access to markets and dairy co-operatives. But (as the Crown also acknowledges) the benefit of such market access only accrues where sufficient suitable land was retained by Maori, which was patently not the case in Hauraki.

We note that the river improvement scheme led to some unfair outcomes for Maori in that compensation was not paid in the first instance because of alleged betterment to Maori as well as settlers. Investigations into Maori petitions subsequently disclosed that Maori

7. Document AA1, p 255

8. Ibid, pp 254, 255

communities had received little benefit from the improvement schemes and lost the use and enjoyment of valued riparian lands. Compensation of £1605 was paid, and further proposed takings of Maori land were not proceeded with. We are not able to gauge the adequacy of the compensation on the information available, a matter partly attributable to the lack of record as to precisely which of the land affected was Maori land and which was non-Maori land.

In general, we find that the official notification procedures for the taking of Maori land were inadequate and disadvantaged Maori owners. This is partly the consequence of the creation, by the Crown, of a complex system of multiple ownership and the vesting of control of fractionated interests in the Maori Trustee, a Crown official, rather than in Maori tribal authorities. Relative to the weight and resources of the Crown compared to the limited resources of multiple private owners, we consider that Maori were disadvantaged in the matter of public works takings, and their remaining lands an easy target for development purposes.

ES.13 Impacts on Maori Uses of Lands and Waterways

We have received a great deal of evidence from claimants about the impacts upon customary usages of coastlines, rivers, swamps, and forests of modern industries, supported by Crown policies which owed little or nothing to consultation with Maori. The declaration of the Waihou and Ohinemuri Rivers as sludge channels under the Mining Act 1891, following the introduction of the cyanide process for extracting gold from ore, is the classic case. The felling of forests and use of streams for rafting timber, the drainage of swamps (especially the Piako Swamp), and the overfishing of foreshores and harbours are other examples of material damage to Maori food resources and disregard for Maori customary values and kaitiakitanga.

The Crown has acknowledged the validity of elements of these claims.⁹ In particular, Maori had been left with ‘some expectation’ that their lands and waters outside the goldfield cession areas would not be affected by mining, and they were ‘less likely [than non-Maori] to be able to utilise the few protections that existed within the system’. Maori interests were ‘more likely to be considered of little account’ by the mining industry. There were attempts by the Crown to mitigate the impacts of mining but these ‘did not address the issue of food supplies, waahi tapu and spiritual concerns’. While it would have been preferable to consult and negotiate sooner, the needs and demands of the mining industry were such that ‘to some extent the government was forced into a reactive mode’. We welcome the Crown’s concessions on these matters.

9. Document AA1, pp 220-221

In relation to the Timber Floating Act 1873, and timber cutting generally, Crown counsel have submitted that the Crown was in a dilemma over the conflict between the rights of private landowners, ‘and the goals of State resource development’, and that it sought to balance those rights. Crown witnesses have submitted that it would be anachronistic to expect modern ideas about conservation to operate in the nineteenth century.

We accept that these arguments have some validity. We also acknowledge that some Maori were themselves active in advancing the mining and timber industries. But such arguments should not be taken too far. There was in fact an active forest conservation movement in New Zealand from at least the 1860s but its proposals either did not become law or if they did the law was poorly enforced. There is also evidence that the discharge of mining wastes was subject to much stronger controls in California and Victoria than it was in New Zealand, where mining law was more concerned to promote and encourage the industry than to regulate or restrain it.

While some Maori benefited in the short term from some aspects of the mining and timber industries there is also overwhelming evidence of damage, in both the short and the long term to their traditional resources, with very limited compensation. Nor, until very recently, was provision made for ongoing Maori involvement in resource management or their inclusion in the benefits of land development. Notwithstanding the article 2 guarantees, Maori concerns about damage to their resources, expressed consistently in petitions and in parliamentary inquiries, were almost always the Crown’s last priority. We therefore find that the Crown’s duty of active protection of Maori rangatiratanga over valued resources was often not honoured in Hauraki.

ES.14 Socio-economic Impacts

We have studied the demographic evidence submitted by claimant witnesses and note that, according to that evidence, of the 10,000 Maori who reported affiliation to Hauraki iwi in 2001, only 19 per cent live in the inquiry district. Moreover, Hauraki iwi members make up only about 15 per cent of the Maori population resident in the inquiry district, and several socio-economic indices show them still to be disadvantaged relative to Maori of other iwi and non-Maori. The evidence supports the claimants’ view that many Hauraki Maori moved out of the district early - from the early twentieth century as well as after the Second World War - and settled in the Waikato and Auckland districts where 67 per cent now reside. We believe their out-migration was largely a consequence of their having insufficient usable land and employment opportunities in Hauraki. Competition for employment from non-Maori was evident since the gold rushes. The evidence relating to Maori health and housing from the late nineteenth century till after 1945 shows that Hauraki Maori were among the most

disadvantaged and needy people in New Zealand. The fact that many claimant witnesses testified to the satisfying community life they lived in that time, including harvesting the bounty of the bush and sea, cannot disguise the shocking impact of epidemic and endemic disease, closely related to poor housing.

Consideration of these matters is connected to the fact that Hauraki Maori have lost more of their customary land than most iwi. The Crown has argued that there is no necessary connection between land loss and poverty - that a community can possess a great deal of land and still be poor and that much depends on the quality of the land and its resources, and on the acquisition of skills to manage land productively. We accept that this theoretical position has a degree of validity. We accept also that much of Hauraki is too steep to cultivate or carry stock. Nevertheless, there are also rich river valleys and rolling hill country in the south of the district; harbours and islands, which brought early trade and settlement; and a coastline, which today has great value. Why have not Hauraki Maori been enabled to have a greater share of the opportunities that these provide?

We accept the argument of the claimants that the State did too little to assist Hauraki Maori and also created conditions which worked against them. We refer particularly to the system of land law which facilitated sale, did not include good management structures for land in multiple ownership, and divided communities in a perennial sequence of deals over individual or sectional interests in what was traditionally community land. It was not only that Hauraki Maori lost nearly all their land; it was the manner of losing it that divided and pauperised them. Subsequent owners of the land have benefited significantly from it since. The gold rushes and timber milling brought only temporary, and ill-distributed, prosperity. In many respects, gold proved a curse rather than a benefit, particularly in the way it led to auriferous land being targeted for purchase, with Maori then losing access to mining revenue.

Much of this is not due to geographical accident but to failings in Crown policy. As Professor Oliver has put it:

The loss, to such an extreme degree, of this economic base [the land] was not accompanied by the opening of reliable additional economic opportunities. The proceeds from land cessions, leases and sales, proved to be transitory and delusive. Even at the lower end of the socio-economic scale, in such activities as gum digging and road and rail construction, Maori workers suffered from unreliable returns, crippling competiton and discriminatory practices.¹⁰

Land loss does not necessarily lead to poverty, but for Hauraki Maori that became the case. History confirms for us that the transfer of asset value from land to any other form of asset is fraught with risk, and more often than not fails to preserve equivalent value. For centuries,

10. Document A11, p 58

land has been mankind’s preferred and most durable form of wealth storage. The authors of the Treaty would have been very conscious of this widely accepted belief, for they identified the possession by Maori of land as their foremost tangible asset.

Subsequent Crown actions, however, from the adoption of land identification systems through to the provision of infrastructure and services, favoured the individualisation of land ownership and individual reward for human endeavour on the land. These developments, integral to the functioning of a commercial consumer society, were in stark contradiction to the cultural imperatives of traditional Maori society. The ease with which Maori land, including specific reserves, could be converted into individual interests and thence into cash to enable participation by Maori in this new and seductive consumer society, precipitated a downward spiral of asset loss and eventual tribal poverty. The subsequent alienation of such a high proportion of traditional Hauraki lands has deprived Hauraki Maori of their share of the ever increasing community-created land value, which the region enjoys. This consequence is in direct contradiction of the objectives and purpose of the Treaty, and the aspirations of those who signed it.

ES.15 Overall Finding

We conclude that Hauraki Maori have been marginalised in their own rohe by the transfer of land and resources to others, including Maori of other iwi. Moreover, we find that this outcome, particularly the wholesale purchasing of Hauraki lands, was the consequence of policies and laws deliberately introduced and sustained well into the twentieth century, and that this falls short of the Treaty requirement that land and other taonga be acquired through informed consent. In this context, we note particularly that:

► the Crown has conceded that Hauraki iwi lost large areas of land during the raupatu of the 1860s and have received very little compensation, either in land or money;

► the Crown has also conceded that the MacCormick commission of 1939 to 1940 found that Maori who sold the freehold of land already subject to gold-mining cessions were not well advised and that a substantial sum should be paid in redress, which sum has not been paid; and

► most Hauraki land was acquired by the Crown under pre-emptive (monopoly) right, and Hauraki Maori generally did not have the option to lease their land or to sell it on an open market, nor to make well-advised community decisions on the terms and conditions of sale.

In these matters, and other matters discussed in our report, we find that Treaty principles of dealing fairly and with utmost good faith have been breached, that substantial restitution is due, and that the quantum should be settled by prompt negotiation.

PART I

THE DISTRICT, THE PEOPLE, AND THEIR CLAIMS

Figure 1: The Hauraki inquiry area

CHAPTER 1
PARE HAURAKI CLAIMS : THE BACKGROUND TO THE INQUIRY

In 1987, the Hauraki Maori Trust Board (hereafter, the HMTB) was constituted under the Hauraki Maori Trust Board Act 1988 expressly for the purpose of preparing and submitting a consolidated claim for all the iwi and hapu of the Hauraki inquiry district. With Huhurere Tukukino as the named claimant, the hmtb lodged several claims with the Waitangi Tribunal, including the substantial Wai 100 claim. Subsequently, 55 other claims were lodged, some by groups that joined with the hmtb, and others by groups that did not wish to do so. In late 2001, the Marutuahu Claims Committee, comprising the Marutuahu groups within the hmtb, also lodged claims.

In this chapter, we give a brief history of the inquiry and a description of the claimant groups as they defined themselves to us. We then summarise the 10 key issues of Wai 100, followed by those of the ‘non’ HMTB claims. Lastly, we outline the structure of the report into the original 56 claims of Hauraki Maori.

Under the Treaty of Waitangi Act 1975 (as amended in 1985), the Tribunal is required to investigate and report on claims made by Maori that the Crown has prejudicially affected them, by act of either omission or commission, through breaching the principles of the Treaty of Waitangi.

1.1 The History of the Inquiry

In April 1998, Dame Augusta Wallace was appointed presiding officer for the Hauraki inquiry, and in May 1998 John Kneebone, Professor Wharehuia Milroy, and Dame Evelyn Stokes were appointed members. Preparation for the inquiry had begun many years earlier, with the receipt of the first claims relating to the Hauraki district. All claims, both trust board and non-trust board, were consolidated into the Wai 686 inquiry in January 1998.

Hearings for the inquiry began on September 1998 at Ngahutoitoi Marae, with the opening submissions of the HMTB (Wai 100); those for non-HTMB claims began in October 1998. Hearings ran for over four years until November 2002, making this the longest running inquiry heard by the Waitangi Tribunal. There were 26 hearings in total, at many different venues, from the Thames Racecourse to many of the marae in the Hauraki district.

1.2 The Claimants

1.2.1 The HMTB

The HMTB was constituted by an Act of Parliament in December 1988 as a body corporate under the terms and for the purposes of the Maori Trust Boards Act 1955. Section 4(2) of the Hauraki Maori Trust Board Act 1988 states:

The beneficiaries of the Board shall be the descendants of Ngati Hako, Ngati Hei, Ngati Maru, Ngati Paoa, Patukirikiri, Ngati Porou ki Harataunga ki Mataora, Ngati Pukenga ki Waiau, Ngati Rahiri-Tumutumu, Ngai Tai, Ngati Tamatera, Ngati Tara Tokanui, and Ngati Whanaunga.

In 1998, 3600 Hauraki Maori were registered as beneficiaries of the HMTB, out of 6995 Maori nationwide who identified as being of Hauraki descent.¹ In the Act, provision was made for the establishment of a management board representing the 12 groups, a roll of adult beneficiaries, and an annual hui.

In April 1987, a set of claims were lodged with the Waitangi Tribunal on behalf of the incipient trust board in the name of Huhurere Tukukino (now deceased). These were registered as Wai 100 (incorporating also Wai 373, Wai 374, and Wai 650). Extensive research was commissioned for the associated casebook, which ran to 11 volumes in length, plus over 40,000 pages of associated supporting documents.² We support the description of this valuable body of evidence given by HMTB member and tribal leader Toko Renata Te Taniwha, as ‘a legacy to our children and the Hauraki tribal nation.’³

Counsel for Wai 100 described the Wai 100 and associated claims as presented:

on behalf of all the tribes of Hauraki in respect of all the lands and resources of those tribes, covering all of the Treaty breaches perpetrated by the Crown against them. It is one of the largest and most complex claims yet to be heard by a Waitangi Tribunal. It covers territory which is familiar to the Tribunal - old land claims; raupatu and the like. And it covers issues that are either complete[ly] novel or have not been comprehensively dealt with by the Tribunal in the past. Foremost among these is the Crown treatment of Maori rights in Hauraki mineral resources, for they are in many ways the linch pin of this claim.⁴

The Wai 100 claimants say that Hauraki Maori are left with 2.6 per cent, or 38,500 acres, of their original land area, which they say runs from Matakana in the south to Mahurangi

1. Document A74, para 30. The board expected the number of beneficiaries to grow following the Tribunal’s inquiry.

2. Document A52, p 7

3. Document A5, p vi

4. Document A51, p 1

in the north and incorporates an area of 1.8 million acres.⁵ They claim that 80 per cent of the area lost was lost due to direct Crown action, including 14 per cent, or 205,000 acres, as a result of confiscation. Twenty per cent of the loss is alleged to be the result of private land purchases in the period 1865 to 1997.⁶

The Wai 100 claimants described the 10 key issues of their claim as: first, the confiscation of land in the East Wairoa block (western Firth of Thames), near Katikati (western Bay of Plenty), as well as at Maramarua, in the Piako district, and near Te Aroha. Secondly, prejudicial Crown policies towards Maori land through pre-1865 Crown purchasing, through the post-1865 operation of the Native Land Court, and through various other practices, including the Public Works Act. Thirdly, the Crown assumption of the ownership of all minerals (and its failure to fulfil the terms of the original gold-mining agreements), and takings of geothermal resources and hot springs. Fourthly, the Crown assumption of the ownership and management of the foreshore. Fifthly, the Crown failure to prevent the destruction of natural resource habitat (eg, streams, rivers, and wetlands) resulting in the loss of traditional food sources. Sixthly, the taking of (and looked-for return of) specific parcels of land through Crown legislation such as the Public Works Act or the Hauraki Plains Drainage Act, and for roading, reclamation works, and other infrastructure services, especially where no longer used for the purpose for which they were taken. Seventhly, the Crown failure to prevent the destruction of sacred places (wahi tapu) and the loss of cultural heritage (taonga). Eighthly, for the Crown’s failure to prevent cultural breakdown and social deprivation resulting in poor socio-economic outcomes for Hauraki Maori. Ninthly, the official imposition on Maori of economic disadvantages, including the loss of land in lieu of rates payments. Finally, the tenth key issue was defined as the failure by the Crown to ensure adequate, inalienable land reserves to meet Hauraki Maori needs.⁷

In addition to these 10 key issues, the HMTB claim also identifies pre-Treaty and preemption waiver transactions, the Crown’s acquisition of the Ohinemuri, Piako, and Hauraki Plains blocks, and timber leases as sources of grievance.⁸

The HMTB also submitted claims relating to three specific issues: Wai 373 relates to the Waikato raupatu and, in particular, to Hauraki interests in the Maramarua State Forest; Wai 374 relates to central Auckland railway lands, but these are outside the Hauraki inquiry district; and Wai 650 was filed in relation to the Athenree State Forest and the Te Puna-Katikati (also called Katitkati Te Puna block) purchase. The Tribunal has commented on the overlap

5. Document A5, p 7; doc A51, p 3; doc A52, pp 8-11; doc A74, para 37. It should be noted that neither Mahurangi nor Matakana is included in the Hauraki district inquiry area: see fig 1. The Katikati raupatu area was included and dealt with in in the Tauranga inquiry district.

6. Document A5, p 7

7. Ibid, pp 2-3

8. Claim 1.3(b), pp 20-21, 35-44

between the Hauraki claims and the claims of Tauranga Moana in our Tauranga raupatu report.⁹ The Wai 100 claimants state that these three claims are ‘for all material purposes to be treated as if they are part of the comprehensive Wai 100 Hauraki claim’.¹⁰

In 1998, the HMTB lodged a further claim with the Tribunal in respect of the proposal to turn Tikapa Moana into a national marine park (Wai 728). That proposal became a reality in 2000 with the passing of the Hauraki Gulf Marine Park Act. In 2001, the claim went to urgency before the Waitangi Tribunal, which found that no prejudice had been established from the passing of the 2000 Act.¹¹

In addition to the Wai 100 and associated claims, counsel for Wai 100 said that the following claimant groups had given the HMTB a mandate to prosecute Wai 100 on their behalf, in addition to their specific claims: Ngeungeu Te Irirangi Zister concerning the Wairoa and Otau blocks (Wai 96); Rebecca Fleet concerning Ngati Hei lands (Wai 110); Ngaruna Ronald Mikaere concerning the Manaia school site (Wai 148); Patricia Bailey concerning Nga Whanau o Omahu claim (Wai 174); Shane Ashby and others concerning the Manaia block claims (Wai 285); Rikiriki Rakena and others concerning the Waikawau purchase claim (Wai 418); Gavin Kaird and others concerning the Pakirarahi 1 block (Wai 464); Shane Ashby and others concerning the Wharekawa East 2 block (Wai 661); and Denis Tanengapuia Te Rangiawhina Mokena concerning Te Aroha lands (Wai 663).¹²

In her opening evidence at the first hearing of the Hauraki claims in September 1998, the then chief executive officer of the HMTB, Josephine Marama Anderson, commented on the ‘rich diversity amongst the ensemble of Hauraki tribes’. She continued:

The various waves of occupation of Hauraki whenua, and associated political alliances, wars, deprivations and triumphs have produced this diversity, and out of this landscape have emerged autonomous entities, every one of them unique in terms of their world view, yet inextricably bound to the other by the land and by whakapapa. Ko tenei te kupenga nui o Hauraki, this is the great net of Hauraki.¹³

Later in her submission, Ms Anderson added that the trust board ‘sits at the feet of the Hauraki tribes’.¹⁴ We take this to mean that, despite the fact that some Hauraki hapu and iwi chose to put in claims separately from the HMTB, and despite the tension that might have arisen as a result, the trust board is anxious to serve the whole district by promoting unity amongst all Hauraki Maori and to work for a shared outcome. We support and endorse this aim.

9. Waitangi Tribunal, Te Raupatu 0 Tauranga Moana: Report on the Tauranga Confiscation Claims (Wellington: Legislation Direct, 2004), pp 2, 16-17; doc A51, pp 4-5

10. Claim 1.3; doc A5, p 24

11. Waitangi Tribunal, The Hauraki Gulf Marine Park Report (Wellington: Legislation Direct, 2001), p 44

12. Document A51, pp 5-6

13. Document A74, para 9

14. Ibid, para 29

1.2.2 Other claimant groups

As research proceeded, many of the groups named in the 1988 Act, and others not named but connected with one or more of the tribes named there, lodged separate claims. This brought the number of claims associated with the Hauraki inquiry district to 56 in total (though a number of these were not prosecuted before this inquiry owing to a lack of information or because they were resolved or because the claimants did not follow up their specific claim). The specific claims were from Ngati Hei, Ngati Pukenga, Ngati Pu, Ngati Tamatera, Ngati Huarere, Ngati Rahiri Tumutumu, Ngati Koi/Tara, and Ngati Tokanui, the three Ngati Porou hapu (Te Aitanga-a-Mate, Te Aowera, and Te Whanau-a-Rakairoa), Ngati Karaua, Te Patukirikiri, Ngati Paoa ki Waiheke, Ngati Kotinga/Ngati Hauauru, and various hapu and whanau of Ngati Maru.

These claimants agree that they are closely connected by intermarriage and whakapapa with people of the 12 groups named in the Act, particularly the large Marutuahu tribes. This being so (and since the Act provides that the beneficiaries of the HMTB shall be ‘the descendants of the 12 named groups’), it was not strictly necessary that each and every hapu be listed separately in the Act or that they lodge a separate claim with the Tribunal. But clearly they wished to reassert their identity and lodge claims relating to their particular interests. Several of the iwi or hapu which were named in the Act also considered it appropriate to lodge distinct claims, and secured funding to research and present them. Many of these claimant groups ‘adopt the claims’ of the HMTB but go on to specify the particular blocks of land to which the claims apply (and in some cases raise matters additional to those mentioned in the Wai 100 claims).

Where non-HTMB claims support the general submissions and evidence of the HMTB, we have investigated and reported in a generic manner, and made findings that cover all relevant claims. An example is the section on the native land legislation - almost every claim in the Hauraki inquiry refers to aspects of the Native Land Court process. Therefore, instead of repeating our main investigation and findings for every individual claimant group, we have considered all claims relating to the land court in our general findings in that section. However, we have used some non-HTMB claims as case studies of the workings of the court where the evidence has supported such an approach. Where non-HTMB claimant groups have raised unique issues, we have covered the claims separately. Finally, in our closing chapter, we return to each of the claims described below to indicate where we have considered their general and specific issues.

The following claims were lodged separately from the HMTB.

(1) Wai 72: Ngati Paoa

Wai 72 was lodged in October 1987 by Hariata Gordon on behalf of Ngati Paoa kaumatua and descendants of Paoa and Tukutuku.¹⁵ Part of the Ngati Paoa rohe was the subject of a settlement with the Crown in respect of the Report on the Waiheke Island Claim (Wai 10). Another large part is included in the Wai 100 claims relating to the East Wairoa confiscation and the alienation of lands on the western Firth. Other issues including the large Fairburn purchase have been included in the South Auckland consolidation, Wai 406. According to Wai 72 claimant counsel’s closing submissions:

This is a claim by Ngati Paoa concerning Wairoa East. The land was confiscated without justifiable authority in 1865. The Crown purported to pay compensation but the compensation hearings were fraught. The outstanding claim against the Crown is that Ngati Paoa were wrongly described as rebels so far as the East Wairoa lands were concerned, their interest was not properly recognised in the compensation hearings, and that in the event inadequate compensation was paid.¹⁶

Claimant witnesses spoke of Ngati Paoa holding ahi ka over parts of East Wairoa, stressing the importance of the Hunua Ranges for their inland food resources, wahi tapu, and places of healing, and of the demise of Ngati Paoa’s position on the Tamaki isthmus through intertribal war, the impact of whalers, timber cutters, and others, of land purchase, and the confiscation - and the loss of resources through confiscation - of East Wairoa.¹⁷ It is claimed that Wi Hoete’s submissions with regard to the confiscation of Ngati Paoa interests ‘were not given proper consideration by the Crown’, that the Compensation Court ‘had the effect of dividing Maori’, and that ‘Maori were also mislead [sic] into believing that if they declared that they were loyal that they would retain their land’.¹⁸

(2) Wai 96 and Wai 423: Ngai Tai ki Tamaki

Wai 96 was filed in September 1989 by Rachael Ngeungeu Te Irirangi Zister.¹⁹ Mrs Zister died in 1997 at the age of 103, and the claim was continued by her great-nephew, Stephen Zister.²⁰ Wai 96, as described by claimant counsel in his opening submissions, focuses solely on the allegation that ‘the Crown breached the Treaty by confiscating the East Wairoa block and subsequently failed to adequately compensate Ngai Tai’.²¹ This claim has been brought under the umbrella of Wai 100, to which Ngai Tai (as represented by the Wai 96 claimants)

15. Claim 1.2

16. Document Y9, p 4. The relevant submissions and evidence in relation to the Wai 72 claim include documents H6, T3, T12, T13-T16, T38, T39, and Y9.

17. Documents T38, T39; doc T15, p 1

18. Document T15, p 1; doc T13, p 1

19. Claim 1.2(a)

20. Document A68, pp 1, 2

21. Document A41, p 4

is an affiliate (as well as to the former Tainui Trust Board).²² As such, the Wai 96 claimants have not lodged separate closing submissions, relying instead on those of the Wai 100 claimants.²³ But we discuss the Wai 96 claim here because of its relationship with the other Ngai Tai claim, Wai 423.

Wai 423 was filed in December 1993 by Te Warena Taua and Emily Karaka on behalf of themselves, the Ngai Tai Ki Tamaki iwi, and the Ngai Tai Ki Tamaki Tribal Trust.²⁴ According to claimant counsel, ‘At its core the claim is about the loss of [ownership,] possession, authority and access to Ngai Tai lands and resources’. A natural flow-on effect of that loss has been a ‘diminution of Ngai Tai rangatiratanga and mana’.²⁵ Counsel submitted that ‘Today Ngai Tai own a remnant of their former lands. What remains in tribal title consists only of a few acres set aside for an urupa and Maori reservation.’²⁶

While Wai 96 focuses almost solely on issues of war and raupatu, the Wai 423 claimants also raise a number of issues discussed elsewhere in the report. They assert that the following events and processes contributed to Ngai Tai’s state of landlessness: pre-Treaty and pre-emption waiver transactions; Crown purchases to 1865; war and raupatu; Native Land Court title investigations and subsequent alienations; and public works takings.

(3) Wai no: Ngati Hei

Wai 110 was lodged in 1987 by Patricia McDonald and Ripeka Fleet on behalf of Ngati Hei and is described as ‘a comprehensive tribal claim that covers land, water and other matters of significance to the iwi’.²⁷ It also covers ‘taonga, namely land, rivers, foreshores, the Whitianga and Tairua Harbours and the sea within the Claimants’ rohe’, together with ‘wahi tapu, te reo Maori and the kaitiakitanga of hunting and fishing … resource management, conservation, rating and local government’. The claim also concerns ‘the Claimants’ tino rangatiratanga over and, where relevant, their ownership concerning their taonga’.²⁸ According to the statement of evidence of Peter Johnston, ‘Ngati Hei’s rohe in general terms runs from Matarangi south of Kennedy’s Bay to Tairua, and from the eastern Coromandel coast to the Coromandel divide, and out to the Mercury Islands’.²⁹ Mr Johnston stressed that the Kuaotunu 6 block, ‘a fraction of its original 621 acres’, is the last remnant of the Ngati Hei tribal estate.

22. Ibid, pp 3-4

23. Documents Y1, AA14

24. Claim 1.19; doc T20, p 3

25. Document T20, p 3; doc Y15, p 3

26. Document Y15, p 4, para 2.6 The relevant submissions and evidence in relation to the Wai 96 claim include documents A36-A40, A41, and A68, together with the closing submissions for the Wai 100 claim (doc Y1). The relevant submissions and evidence in relation to the Wai 423 claim include documents T20, T24, Y15, and AA10 Documents A46, C2, C5, T2, and T3 are relevant to both claims.

27. Claims 1.4, 1.4(c); doc Y9, p 4

28. Claim 1.4(c), p 2

29. Document N3, p 3

The main issues of claim with regard to the alienation of Ngati Hei lands include old land claims, the implementation of the Native Land Acts, and their results: the undermining of Ngati Hei rangatiratanga; the breaking down of communal title; and the destruction of traditional ways of life, leading, it was submitted, to landlessness, survey liens, Crown purchase methods, timber leases, the loss of the Tairua and other reserves, gold, land taken for public works (including Ohinau Island for a lighthouse), the failure to protect wahi tapu, cultural taonga, and issues pertaining to the environmental degradation of rivers, the foreshore, and the seabed.³⁰

(4) Wai 148 and Wai 285: Ngati Pukenga

The Ngati Pukenga claims relate to the lands at Manaia on the western side of the Coromandel Peninsula, given to Ngati Pukenga (who are of Mataatua origins) by Ngati Maru. It was submitted that ‘Ngati Pukenga forms a distinctive Maori community at Manaia’, a community described as ‘probably the largest in Hauraki and … deserving of the Crown’s active protection, consistent with the Treaty of Waitangi’.³¹

A September 1999 amended statement of claim combines the claims made by Ngaruna Ronald Mikaere on behalf of himself and Ngati Pukenga (Wai 148) and those of Shane Ashby on behalf of himself and Ngati Pukenga ki Manaia Incorporated Society, Ngati Pukenga, and Te Tawera (Wai 285).³² In their ‘Historical Background Report’ for Wai 285, Buddy Mikaere and Shane Ashby note that ‘The historical documentation in respect of Ngati Pukenga often uses the appellation, Te Tawera. Ngati Pukenga and Te Tawera are one and the same people.’³³

The Ngati Pukenga claims relate to the exercise of Ngati Pukenga rangatiratanga over their lands at Manaia derived from tuku whenua. Counsel for the claimants submitted that the Crown, ‘in breach of the Treaty of Waitangi, acted to destabilise and destroy the functioning of Ngati Pukenga as a tribe particularly through the Crown promotion of individual over tribal rights’ and ‘failed to actively protect the special Maori community at Manaia, including Ngati Pukenga’.³⁴ The claims refer specifically to the loss of tribal control (rangatiratanga) under the Native Land Court and the subsequent alienation of much of the Manaia lands through Crown purchasing (including the purchasing of largely non-resident individual interests), land taken in lieu of payment for survey charges, and the conversion of uneconomic interests. The claim also refers to the loss of the Manaia 10 block, which was given for a school in 1897 and then sold by the Maori Trustee following the school’s relocation in 1962. Further aspects of the claim relate to the claimants’ relationship with local and

30. Documents N9, N12, Y9. The relevant submissions and evidence in relation to the Wai 110 claim include documents A15, G2, K4, M25, N1, N2, N3, N4, N5-N10, N12-N15, N22, Y9, and AA12.

31. Document Y7, p 2

32. Claim 1.8(c)

33. Document I2, p 4

34. Document Y7, p 3

central government, the loss of language and culture, health issues, lack of infrastructure, the difficulties of providing for housing and community facilities, and building and sustaining an economic base, particularly in the face of a heavy and mounting rates burden.³⁵ We note that counsel for the claimants submitted that ‘Ngati Pukenga as an iwi of Hauraki were also prejudiced overall by the Crown’s policies and practices in respect of rivers, gold, and timber, and by its non-recognition of Ngati Pukenga rights in respect of the foreshore and seabed’.³⁶

(5) Wai 174: Ngati Kotinga and Nga Whanau o Omahu

Wai 174 was lodged by Ata Patricia Bailey in October 1990.³⁷ In Native Land Court minute books, Ngati Kotinga were most frequently identified as being a hapu of Ngati Whanaunga or Ngati Maru, with links also to Ngati Paoa.³⁸ The blocks identified in the Wai 174 statement of claim were claimed under the mana of one or more of those iwi, rather than under Ngati Kotinga specifically. Nor was the hapu affiliation given for each of the owners listed on the court titles. However, the hapu name, Ngati Kotinga, was mentioned, along with those of other Ngati Maru and Ngati Whanaunga hapu in the courts investigation of other blocks. In the word of their counsel in closing submissions:

The Claimants claim that they have been prejudicially affected and/or dispossessed from a number of blocks that they either wholly owned or had an interest in. The processes of the Native Land Court, the public works regime and the Crown’s purchase policy all played a part in dispossessing the claimants of their ancestral lands. These processes are detailed in the Wai 100 closing submissions.³⁹

The claimants cite as causes of action the following block studies which equate, albeit with more detail’, the allegations made by the Wai 100 claimants (the HMTB claimants): Te Hotere 1 and 2, Papakitatahi a, Kuaotunu 1, Wharekawa East 1 to 5, Opu 3, and Hohia Opou 5A.⁴⁰

(6) Wai 177: The Cregory-Mare whanau

Wai 177 was lodged in February 1991 by Selwyn Tukumana Gregory and Sharon Gregory.⁴¹ The claimants are descendants of Wikitoria Te Ngahue (born circa 1860, died 1932) principally of Ngati Maru, and her husband, Mare Teretiu. The claim relates to some 19 blocks

35. The relevant submissions and evidence in relation to the Wai 148 and Wai 285 claims include documents I4-I6, I10-I18, I20-I23, Y7, and AA14. The relevant research reports include documents A16, A17, A34, D19, and I2.

36. Document Y7, p 4

37. Claim 1.6

38. See doc H1, pp 9-14

39. Document Y2, p 2

40. The relevant submissions and evidence in relation to the Wai 174 claim include documents F18, P20, H1, J3, J14, J15, and Y2. The relevant research reports include documents A10 (pts 1, 2), F3, G11, H3, J6, and J4.

41. Claims 1.7, 1.7(c)

distributed through three widely separate districts within the claim area, in which those tupuna held interests. The important ancestors of the whanau include: Hohepa Paraone (d 1878); Eruera Te Ngahue (d 1872), father of Wikitoria; Pahau Ngatawa (d 1872); and Raika Whakarongotai, who adopted Mare Teretiu. Through these tupuna, the Gregory-Mare whanau are connected to a number of prominent Hauraki hapu: Ngati Tauaiwi, Ngati Naunau, Ngati Pu, Ngati Matau, and Ngati Karaua. Extensive whakapapa evidence has been submitted to show these connections and the relationship of the hapu with the various land blocks upon which the claim focuses. In some cases, the tipuna of the whanau were awarded by the Native Land Court much the greatest interest (if not the totality) of the block concerned, but in other cases the claimants acknowledge that many other whanau and hapu had customary rights in the land.⁴²

The main issues of claim relate to the loss of tribal tino rangatiratanga, self-determination, and control or ownership of land (including the foreshore and seabed) and other property as a result of the Native Land Court and its attendant legislation. The issues are, for the most part, the same as those cited by the Wai 100 claimants and the Marutuahu iwi, of which the Gregory-Mare whanau are a constituent group. We have been assisted by the specific block histories written for the Wai 177 claimants.⁴³

(7) Wai 289, Wai 792, Wai 866, and Wai 968: The Harataunga claims

There are several closely interrelated or overlapping claims regarding Harataunga. Three claims are brought by various representatives of the three hapu of Ngati Porou - Te Aitanga-a-Mate, Te Aowera, and Te Whanau-a-Rakairoa - which gained possession of lands at Harataunga through a tuku whenua from the Ngati Tamatara rangatira Paora Te Putu in 1852.

Wai 289 was brought by Sam (Hamiora) Moeke in May 1992, on behalf of himself, the descendants of Ropata Ngatai, Tapiata Kiwi, Paratene Pahau, Hirini Kouta, Matiu Paeora, Haratiera Humare, and Hakopa Ihaka, and Ngati Porou ki Harataunga. Mr Moeke passed away on 28 September 2000, and Sue Te Huinga Wiremu Nikora has become the new representative for the claimants.⁴⁴ The claim focuses largely on the non-payment by the Crown of the ex gratia payment recommended by the MacCormick commission.⁴⁵

Wai 792 was made by Parekura Tamati White in October 1999 on behalf of Te Aitanga-a-Mate, Te Aowera, and Te Whanau-a-Rakairoa, and concerns ‘the land, waters and natural

42. Document D1, pp 3-42

43. The relevant submissions and evidence in relation to the Wai 177 claim include documents D1-D3, R21, R24-R29, Y9, and AA12. The relevant block histories include documents D4-D14 and R14. John Hutton makes the point that in this claim ‘the research focus was on the Crown Forest blocks that related more directly to the Gregory-Mare whanau’: doc D7, p 3.

44. Document Y17, paras 1-2

45. The relevant submissions and evidence in relation to the Wai 289 claim include documents D15, M11-M13, M37-M39, M41, Y17, and AA6.

resources of Harataunga’. The Wai 792 claimants were particularly concerned with providing ‘detail about the traditional history of how the hapu members of Te Aitanga a Mate, Te Aowera and Te Whanau a Rakairoa acquired their rights and interests in Harataunga [Kennedy Bay]’, and ‘how those members of three hapu lost their rights and interests’.⁴⁶

Wai 866 was made by Pakiriki Harrison in June 2000 on behalf of members of Te Aitanga-a-Mate, Te Aowera, and Te Whanau-a-Rakairoa. The Wai 866 claimants describe themselves as ‘tangata hau kainga and keepers of ahi ka at Harataunga and Mataora’.⁴⁷ Counsel for the Wai 866 claimants has described them as being of:

the Ngati Porou of te [T]airawhiti, but have permanently occupied Harataunga and Mataora for over two centuries within the bosom of Hauraki. They have emerged as a unique band of Ngati Porou. They retain both the advantages of their connections to Hauraki and to Hikurangi, while maintaining the special identity that such a geographical isolation engenders.⁴⁸

Counsel also described them as ‘a tight knit community who occupy a geographically discrete location’.⁴⁹

A fourth claim relating to Harataunga was brought by Korohere Ngapo on behalf of Nga Uri a Maata Ngapo and descendants of Marutuahu ki Harataunga (Wai 968). The Wai 968 claimants are of Ngati Tamatera and Ngati Paoa, and their claim deals with the effects of the marriage of Te Rakahurumai of Ngati Porou and Te Paea, the birth of Maata Ngapo, the tuku of Harataunga, and the alleged failure of the Native Land Court to note the residual rights of Marutuahu in Harataunga.⁵⁰

The Harataunga claims relate to gold mining and timber licence revenue; the findings of the MacCormick commission; the reform of customary land tenure; the operation of the Native Land Court and the impact of survey liens; the taking of land for public works; the taking of land at Mataora as a result of boundary changes; the Crown’s acquisition of land under the Native Townships Act 1895, including Rangiriri (the Harataunga 2 block), the effects of rating and alleged omissions of the Maori Trustee, and foreshore and seabed issues. We have been greatly assisted in our consideration of these issues by the well-researched and detailed evidence submitted by and for the Wai 792 claimants in particular, notably the series of research reports presented by Parekura White.

46. Document Y18, p 3. The relevant submissions and evidence in relation to the Wai 792 claim include documents R16, R16(a), R33, S8(a)-(d), S9, S17-S20, Y18, and AA10.

47. Document Y19, p 3

48. Ibid, pp 3-4

49. Ibid, p 6. The relevant submissions and evidence in relation to the Wai 866 claim include documents M41, R16, R16(a), R33, S8(a)-(d), S9, S17, S21-S27, S35, Y19, and Y19(a).

50. The relevant submissions and evidence in relation to the Wai 968 claim include documents X2, X4-X10, X28, Z5, and AA9.

(8) Wai 349, Wai 720, and Wai 778: Ngati Tamatera

Wai 349 was lodged by Te Wiremu Mataia Nicholls in March 1993; Wai 720 by Tamatehura Mataia Nicholls in December 1997; and Wai 778 by by Te Wiremu Mataia Nicholls and Te Runanga o Ngati Tamatera Incorporated in November 1998.⁵¹ In July 2002, a combined amended statement of claim for the three claims asked that they be treated as consolidated for the purpose of hearing. The consolidated claim was made on behalf of ‘all the descendant whanau and hapu and the constituent whanau and hapu of the Ngati Tamatera of the Marutuahu Tribal Confederation.’ Wai 339 and Wai 778 - which had originally joined the Marutuahu group (discussed below) - elected to be heard separately (together with Wai 720).⁵² The claim, broad in scope, was described by claimant counsel:

While the claim also relates to the areas of land, lakes, rivers, seabeds, islands, minerals - in particular gold, traditional fishing grounds and reefs onshore and off shore; the indigenous flora and fauna and other species; waahi tapu and other sites of cultural, spiritual and historic significance; and other taonga tuku iho both tangible and intangible in the traditional mana whenua areas which the descendant whanau and hapu of Ngati Tamatera occupied continuously, the primary focus of the claim is the impact of acts and omissions of the Crown that were and remain in breach of the principles of the Treaty of Waitangi on the cultural, spiritual, social and economic way of life of the peoples of Ngati Tamatera specifically protected and guaranteed by the Treaty of Waitangi.⁵³

The claimants assert that pre-Treaty transactions, Crown purchases to 1865, war and raupatu, the operation of the Native Land Court and public works policy contributed to the state of landlessness which Ngati Tamatera found themselves in. Further issues of claim concern the acquisition of the Ohinemuri block and the environmental degradation of resources which Ngati Tamatera have interests in.⁵⁴

In his opening submissions, counsel for the claimants acknowledged the evidence and submissions relating to Ngati Tamatera, and to Hauraki Maori generally, made by and for the Wai 100 and Marutuahu group claims (as well as by and for Wai 418), stating that the presentation of the combined Wai 349, Wai 720, and Wai 778 claims provided ‘an opportunity to this proud division of the Hauraki peoples to echo the grievances that have befallen other Maori of the District and which have been placed before this Tribunal in voluminous evidence’.⁵⁵

51. Claims 1.13,1.32A, 1.35

52. Claims 1.13(b), 1.32A(c), 1.35(b)

53. Claim 1.35(b), p 4

54. Ibid, pp 14-23

55. Document W1, pp 2, 7-8. The relevant submissions and evidence in relation to the Wai 349, Wai 720, and Wai 778 claims include documents V1-V10, W1-W13, Z3, and AA7.

(9) Wai 355 and Wai 704: Hikutaia and Whangamata lands

Wai 355 was lodged by Ropata Rare and Ani Wells in April 1993 on behalf of Ngati Pu, concerning the alienation of Hikutaia and Whangamata lands.⁵⁶ The core grievance’ as identified by counsel for the claimants relates to the McCaskill transactions and old land claim, which, it was submitted, has ‘been the subject of relentless complaint, protest and petition by Ngati Pu since the 1850s’.⁵⁷ Other issues of claim relate to the alienation of this and other lands and to the operations of the Native Land Court in particular. Related issues include Crown purchase, survey and other costs, reserves, timber issues, the laws of succession, and public works takings. Other claims relate to rating, gold, the foreshore and rivers, environmental impact, wahi tapu and taonga, and socio-economic factors. Counsel stressed that ‘today the land held by Ngati Pu amounts to approximately 35 hectares’ and that Ngati Pu have suffered social, economic and cultural dislocation and a loss of status.⁵⁸

Wai 704 was lodged by Dianne Chalmers in February 1998 on behalf of her whanau, the descendants of Haki Pene Hura, and his daughter Poihaere Hakipene Hura. The claimants are a whanau of Ngati Pu (numbering over 300 people) and their claim relates to the interests of their tipuna in Ngati Pu land, particularly at Hikutaia and Whangamata, of which ‘All but a miniscule remnant … have now been alienated’.⁵⁹ Counsel for the claimants submitted that the whanau were dislocated from their ancestral lands and, in addition to any economic loss, ‘have experienced an erosion of traditional values and beliefs and have lost their te reo and tikanga’, and are marginalised as a whanau.⁶⁰ The particular issues of claim relate to the sale of Poihaere’s interests in part of these lands while still a minor, and the later alienation of her remaining lands.⁶¹

(10) Wai 418: The Waikawau purchase claim

Wai 418 was lodged by Rikiriki Rakena and others in October 1993 on behalf of members of Ngati Tamatera, with regard to the Waikawau block, including its reserves and wahi tapu.⁶² The claim relies on the submissions of Wai 100 and is described by claimant counsel as forming a discreet case study within the framework presented by the HMTB claim, and as a subset of the wider Ngati Tamatera claims.⁶³ The main issues relate to the Crown purchase

56. Claim 1.14

57. Document Y8, p 2

58. Ibid, pp 46-48. The relevant submissions and evidence in relation to the Wai 355 claim include documents J8, J9, K5-K19, L21-L24, Y8, AA11.

59. Claim 1.30(a), (b); doc Y12, p 2

60. Document Y12, pp 2-3

61. The relevant submissions and evidence in relation to the Wai 704 claim include documents I1, S15, S16, S31, S32, S34, Y12, and AA10.

62. Claim 1.18(a); doc Y3, p 2

63. Document Y3, pp 2, 22. The relevant submissions and evidence in relation to the Wai 418 claim include documents J10-J13, Y3, and AA14. The relevant research reports include documents A8, A10, A13, and J2.

of the Waikawau block, the alienation of the Waikawau reserves, the alienation and failure to protect Wairotoroto, Waipatukahu and Omawhiti wahi tapu, and the alienation of the Tapu reserve.

(11) Wai 464 and Wai 661: Ngati Hikairo

Wai 464 was lodged by Gavin Caird and others in April 1994 on behalf of Ngati Hikairo (a hapu of Ngati Maru) and the owners and trustees of the Pakirarahi íc block, with regard to the alienation of this block.⁶⁴ This land was returned to the control of Ngati Hikairo in 1991, without compensation for the period of alienation and the loss of mineral and timber resources.⁶⁵ Wai 661 was lodged by Shane Ashby and Philip Hikairo in November 1996 on behalf of Ngati Hikairo, with regard to the Wharekawa East and other blocks. Wai 464 and Wai 661 are set out in a combined amended statement of claim (September 1999).⁶⁶ The claimants rely upon the evidence presented during the hearing of Wai 100 and on the Wai 100 closing submissions.⁶⁷ The Ngati Hikairo claim also refers to taonga and wahi tapu, timber, public works policy, the operation of the Native Land Court and the alienation of Te Waitotara 1 and 2 blocks, Te Whakataha 3 and 4 blocks and the Parawaha block (collectively referred to, by the claimants, as 'the Manaia blocks').⁶⁸ Counsel for the claimants submitted that ‘The almost total disappearance of Ngati Hikairo as a separate entity was a direct result of this land loss’.⁶⁹

(12) Wai 475: The Mangakahia whanau

Wai 475 was lodged in October 1994 by Remehio Te Maunga Mangakahia and others.⁷⁰ The claimants have stressed that they claim as a whanau, ‘not on behalf of any wider group, whether Ngati Pare or Ngati Huarere’.⁷¹ The main issues of claim relate to the loss of ownership, kaitiakitanga, and rangatiratanga over customary lands, rivers, foreshores, and seas, including Whangapoua Harbour, and lost taonga, including te reo Maori. This loss, it is claimed, was in consequence of the processes created by the Native Land Acts, which, among other things, allowed for Crown and private land purchases without the creation of sufficient inalienable reserves of land. Other issues of claim relate to timber, environmental degradation, the succession principles introduced by the Crown that caused land to pass outside the bloodline, the erosion of Maori rights and interests with regard to the ownership and control of foreshores and harbours, and the effects of the Harataunga development

64. Claim 1.21(a)

65. Claim 1.21(b), pp 4-5; doc Y4, p 10

66. Claim 1.21(b)

67. Document Y4, p 2

68. Claim 1.21(b), p 2; doc Y4, p 3

69. Document Y4, p 3. The relevant submissions and evidence in relation to the Wai 464 and Wai 661 claims include documents H3, I7-19, I24-I35, Y4, and AA14.

70. Claim 1.22

71. Document A28, p 40

scheme on Te Pungapunga blocks which the Mangakahia whanau had kept for their use and occupation. We have been greatly assisted in our consideration of those issues by the well-researched and detailed evidence submitted by and for the Wai 475 claimants.⁷²

(13) Wai 663: Ngati Rahiri Tumutumu

Wai 663 was lodged in January 1997 by Tanengapuia Te Rangiawhina Mokena on behalf of themselves and for Ngati Rahiri Tumutumu.⁷³ According to claimant counsel’s submissions, the claim concerns the alienation of Ngati Rahiri-Tumutumu lands and other taonga’. The focus of the claim ‘is upon the lack of Crown protection of Ngati Rahiri-Tumutumu authority over their ancestral lands and taonga, as required under the principles of the Treaty of Waitangi and in particular the Mokena whanau claims regarding Te Aroha Township’.⁷⁴ In closing submissions, claimant counsel also stated that ‘This claim serves as evidence of the process of individualisation of title introduced by the Native Land Court and the way in which Ngati Rahiri-Tumutumu’s tribal estate was eroded as a result of that individualisation process’.⁷⁵

The Wai 663 claimants rely on the evidence and submissions of the Wai 100 claimants with regard to ‘the general policies and practices of the Crown … concerning Crown purchases, the Native Land Court and the Crown’s treatment of taonga’.⁷⁶ The specific matters claimed by the Wai 663 claimants relate to the Crown purchase of the Te Aroha block in 1878, the proclamation of the Te Aroha goldfield in 1880, and the creation of Te Aroha as a township serving the goldfield, including the acquisition of land for public works projects, and Te Aroha mountain and the hot springs at its base.⁷⁷ A further claimant issue concerns the alleged failure of the Crown to return land in the Te Aroha township that was gifted for the purpose of creating schools and churches but, ultimately, not used for those purposes.⁷⁸

(14) Wai 693: The Matamata-Harakeke block claim

Wai 693 was lodged in November 1997 by Whaitiri Mikaere on behalf of the descendants of Ngati Raukatauri (of Ngati Huarere), and concerns the alienation of the Matamata-Harakeke block.⁷⁹ The issues of claim include the bringing of the block before the Native Land Court by one owner against the wishes of the majority and the naming of that individual in the title as sole owner (others were added later); the sale of most of the block by

72. The relevant submissions and evidence in relation to the Wai 475 claim include documents A28-A31, L1-L6, L7-L11, L12-L14, L15-L18, L19, L20, K1, K3, K4, M2, Y9, and AA12.

73. Claim 1.26; doc J17, p 1

74. Document J17, p 2

75. Document Y5, p 2

76. Ibid, p 2

77. The relevant submissions and evidence in relation to the Wai 663 claim include documents A10 (pt 3), G1, J5, J17-J20, Y5, and AA14.

78. Claim 1.26(b), pp 5-6

79. Claim 1.27; docs M5, M35

the named owners; the alienation by will of a 240-acre reserve to a non-resident spouse, whose descendants subsequently sold the land to a Pakeha, and the sale of reserve land by the Maori Trustee.⁸⁰ According to the evidence of Whaitiri Mikaere:

For Ngati Raukatauri the common theme - one that is common for all Hauraki Maori - of the landlessness and economic and social decay are the same. The impact for Ngati Raukatauri can be assessed in the following way. Firstly, the immediate effect of alienation of Matamataharakeke and other lands brought loss of income from economic activity and access to natural and cultural resources. Secondly, the loss of future economic opportunity through timber milling, gold and mineral extraction employed during alienation. Ngati Raukatauri were left with lands depleted of its natural resources.⁸¹

(15) Wai 694: The Tairua block and Te Karo 1 block claim

Wai 694 was lodged by Reremoana Jones in November 1997 on behalf of her whanau (the descendants of Hori Kerei Tuokioki) with regard to the investigation and alienation of the Tairua block and Te Karo 1 block. Hori Kerei Tuokioki was one of the original five grantees in the two blocks.⁸² Claimant counsel submitted that ‘Mrs Jones and her whanau do not represent all the descendants of Hori Kerei Tuokioki, nor do they represent all of the descendants of the original five grantees in those blocks’.⁸³ According to claimant evidence, despite the alienation of these blocks, the whanau has continued to maintain their ahi ka in Tairua.⁸⁴ The main issues relate to the Crown purchase of the Tairua block, the creation of reserves and their later private purchase. A further issue of claim relates to the protection of wahi tapu, notably at Green Point and Te Karaka. A related contemporary issue concerns the realignment of State Highway 25 and the exchange of part of the Oturu reserve for land at Green Point.

(16) Wai 705: The whanau of Peneamene Tanui

Wai 705 was lodged in February 1998 by Barbara Francis on behalf of the whanau of Peneamene Tanui of Whitianga, by virtue of her descent from that tupuna.⁸⁵ Although Ms Francis identifies as Ngati Hei and there are some shared interests between the claimant and Ngati Hei in some of the lands which are the focus of Wai 705, the claim is not brought as

80. Document A35; doc Y9, pp 17-18, 26-29. The relevant submissions and evidence in relation to the Wai 693 claim include documents M7-M9, M14-M16, M35, Y9, and AA12. The relevant research reports include documents A35 and M4-M6.

81. Document M16, pp 3-4; doc Y9, pp 28-29

82. Claim 1.28; doc M36, p 3

83. Document Y11, p 2

84. Ibid, p 3. The relevant submissions and evidence in relation to the Wai 694 claim include documents J6, M17, M18-M24, M36, Y11, and AA10. The relevant research reports include documents A8, A10, D21, and G11.

85. Claim 1.31; doc Y14, p 5

part of the wider Ngati Hei claim (Wai 110).⁸⁶ At the time he was advancing claims in the Native Land Court, Peneamene Tanui identified with the hapu Te Rapupo, as did his uncle Kaitu (also known as Pungehuka). Counsel for the claimants states that:

The name Te Rapupo came about from a connection with the iwi Ngati Whanaunga and Ngati Piri [of Ngati Huarere], and indeed Maori at Whitianga included in these blocks identified also as being Ngati Piri, Ngati Whanaunga along with Ngati Paoa and Ngati Koheru.⁸⁷

The claim, as set out in the opening submissions of claimant counsel, relates principally to five blocks on the western borders of Whitianga Harbour - Te Weiti, Whakau, Karamuramu, Wharetangata, and Puahape - in which the land court found Peneamene Tanui, among others, to have interests. Claimant counsel submitted that Crown policies and legislation, including the operation of the Native Land Court, and the action of Crown agents ‘led to the claimant’s whanau being landless soon after the turn of the century’.⁸⁸ Other issues of claim include foreshore and seabed, social and economic deprivation, taonga and wahi tapu, and environmental degradation.⁸⁹

(17) Wai 714: Ngati Koi, Ngati Tara, and Ngati Tokanui

Wai 714 was lodged in March 1998 by Hone Tiwaewae Williams representing Ngati Koi, Ngati Tara, Ngati Tokanui, and Ngati Tawhaki ki Ngahutoitoi.⁹⁰ In claimant counsels opening submissions, Ngati Koi are described as ‘the same people as Ngati Tara, and … through alliances and intermarriage over many years, the same people as Ngati Tokanui’.⁹¹ The claimants’ rohe was described as being ‘within the area bordered by the Waihou River to the west, Waihi beach to the east, and otherwise generally defined by the catchment of the Ohinemuri River’.⁹² It was claimed that:

Today, as a consequence of the policies and practices of the Crown … which have been described in the Hauraki [Maori] Trust Board claim, only the land at Ngahutoitoi marae is identified as remaining in the ownership of Ngati Koi/Tara/Tokanui, and only a very small amount remains in the ownership of individual Ngati Koi/Tara/Tokanui.⁹³

86. Document R5, p 5; doc Y14, p 5

87. Document S29, p 1

88. Ibid, p 2. The relevant submissions and evidence in relation to the Wai 705 claim include documents A10, K2, R5, S10-S14, S29, Y14, and AA2. The evidence submitted in respect of the Ngati Hei and Mangakahia whanau claims (Wai 110 and Wai 475 respectively) is also relevant to this claim.

89. Claim 1.31(a), pp 2-5

90. Claim 1.32

91. Document R30, p 5

92. Ibid, p 5

93. Claim 1.32(a), p 3

The claim is described as being ‘complementary to that presented by the Hauraki Maori Trust Board’, in that it ‘provides the opportunity for Ngati Koi to tell their story, which has not been covered in the evidence so far’.⁹⁴ Counsel for the Wai 714 claimants adopt the Wai 100 submissions. The particular issues of claim raised by the Ngati Koi, Ngati Tara, and Ngati Tokanui claimants relate to the operations of the Native Land Court, gold mining and Crown purchase, the allocation, and loss, of reserves, the Crown’s acquisition of the Ohinemuri block, the pollution of the Ohinemuri River, the protection of wahi tapu, and the issue of the stigma associated with Ngati Koi being labelled as ‘rahi’ within the Native Land Court process.⁹⁵

(18) Wai 806: The Kuaotunu and Tikouma blocks

Wai 806 was lodged in August 1999 by Maraea Rihi Blomfield on behalf of the descendants of Anaru Pahapaha, Ripeka Titiparu, and Hohepa Mataitaua, with regard to the Kuaotunu and Tikouma blocks.⁹⁶ The claimants and the named tipuna are ‘principally of Ngati Karaua … a hapu of Ngati Whanaunga’, and the claim is described as ‘seek[ing] to complement the Ngati Whanaunga me ona hapu claims and the wider Marutuahu claims’.⁹⁷ The claim relates, for the most part, to the Native Land Court investigations and subsequent partitions and alienation of the two blocks (including by Crown purchase and in lieu of survey charges). Other issues of claim include the contemporary rating of land at Tikouma, in particular the Tikouma 3B2 block. A further issue referred to by Maraea Blomfield in her brief of evidence is the inability of the claimants to exercise kaitiakitanga over the foreshore and harbour adjacent to the Tikouma blocks. She spoke, in particular, of the inability to control the actions of boat-users ‘who burn our native timber, leave rubbish and broken glass on our foreshores and simply disrespect this land’.⁹⁸

(19) Wai 808: Ngati Horowhenua

Wai 808 was lodged in January 2000 by David James Peka, and Raumiria Te Mihiao Katipa later submitted an amended claim on behalf of Ngati Horowhenua, a hapu of Ngati Paoa. The claim concerns the ‘loss of tupuna whaea lands [of Ngati Horowhenua] within the Hauraki rohe’.⁹⁹ The claimants allege that Ngati Horowhenua ‘have become virtually landless and are unable to properly exercise their rangatiratanga’, and that ‘the acts and omissions of

94. Document R30, p 4

95. The relevant submissions and evidence in relation to the Wai 714 claim include documents R7, R8-R13, R30, R31, R33, and Y20.

96. Claim 1.37(c)

97. Document X25, p 3

98. Document X26, pp 7, 9-11; doc Z2, p 12. The relevant submissions and evidence in relation to the Wai 806 claim include documents A10, J7, X3, X25-X27, Z2, and AA15.

99. Claim 1.38

the Crown, in breach of the principles of the Treaty of Waitangi, are the primary cause of the prejudice that has resulted from these key grievances’¹⁰⁰

Issues of claim relate to pre-Treaty and pre-emption waiver transactions, Crown purchases to 1865, war and raupatu, and the operation of native land legislation. The claimants also highlight environmental degradation of their resources and inadequate protection of Ngati Horowhenua customs, relating to the naming of individuals, as sources of grievance.¹⁰¹

In closing submissions, counsel for the Wai 808 claimants stated that the claimants ‘have brought this claim as a hapu of Ngati Paoa within Hauraki’, and that their claims in Hauraki ‘focus upon the whakapapa from the union of Paoa and Tukutuku, and, in particular, Tukutuku’s lineage from Ngati Hako and Ngati Tamatera’. This whakapapa, counsel states, ‘is vital to their claims and has been set out in the evidence of Tomo Baggs and from representatives of Ngati Hako’.¹⁰² The Wai 808 claimants also acknowledge ‘the evidence on Ngati Horowhenua by Tipa Compain on behalf of the Wai 345 claim that illustrated the whakapapa from Marutuahu to Horowhenua’.¹⁰³

According to the evidence of Raumiria Te Mihiao Katipa:

Our claim is for Nga Uri o Horowhenua. This hapu is a tangata whenua in the Hauraki region. Ngati Horowhenua has interests in lands along the Western side of Tikapa Moana, around the islands of the Hauraki Gulf, and to the South towards the Waikato to Te Hoe o Tainui. Our people would never be so bold as to say we are the only hapu with rights over this area. We know there are heaps of other hapu, many of whom are our whanaunga. All we say is that Ngati Horowhenua has rights in this area.¹⁰⁴

The Wai 808 claimants have drawn upon evidence presented by Ngati Horowhenua witnesses in the course of Wai 100,¹⁰⁵ and have adopted in full the closing submissions of Wai 100.¹⁰⁶

(20) Wai 810: Waiheke Island lands

Wai 810 was lodged in December 1999 by Moana Te Aria Te Uri Karaka Te Waero of Ngati Paoa.¹⁰⁷ As stated by counsel for the claimants, the claim concerns lands at Ostend and Tawaipareira on Waiheke Island and runs ‘parallel and in harmony’ with the Wai 72 (Ngati

100. Document Y6, p 2

101. Claim 1.38(b), pp 2-5

102. Document Y6, p 2

103. Ibid; doc X24, p 24

104. Document T31, p 2

105. Documents A66, A67, B7

106. Document Y6, p 2. The relevant submissions and evidence in relation to the Wai 808 claim include documents A8, A9, A10, C2, C5, T30-T32, and Y6.

107. Claim 1.41

Paoa) claim.¹⁰⁸ It is claimed that the land in question at Ostend Domain, which, according to claimants, has historical significance to Ngati Paoa, in addition to its being leased to the Waiheke Sports Club (of which many of its members are Ngati Paoa), was reclassified as a reserve and vested in the Auckland City Council in August 1999, thus removing the future opportunity of this land being made available as part of a Treaty of Waitangi settlement.¹⁰⁹ Another issue of claim relates to the protection of urupa on Te Huruhi block and elsewhere on the island, and the diminution of land reserved for a church.

(21) Wai 865: Waihou railway land claim

Wai 865 was lodged in April 2000 by Richard Murray and others on behalf of ‘all the descendants of the original owners’ of land defined by the claimants as ‘section 2A and 2B block XII of the Waihou survey district, currently a railway corridor made up of 8719 square metres and situated at Komata North’. According to the claimants, this is Crown land and, at the time of hearing, leased to Tranz Rail Limited under a head lease arrangement’.¹¹⁰ Counsel for the claimants (relying solely on instructions in the absence of evidence to advance the claim) submitted that ‘the claimants allege that land taken for railway use should have been returned once that usage became redundant, whereupon the Crown should have been responsible for that land’s return’.¹¹¹

(22) Wai 949: Ngati Koheriki

Wai 949 was lodged in October 2001 by Taka o Te Rangi Taka on behalf of the Wi Taka whanau of Ngati Koheriki ‘and such others of Ngati Koheriki who may elect to join the application’. The claim concerns lands of Ngati Koheriki contained within the East Wairoa confiscation block.¹¹² According to counsel for the claimants:

As a people Ngati Koheriki have collectively lost much of their group memory of their ancestry and their traditional links with East Wairoa. Accordingly Ngati Koheriki has had to rely on Tribunal appointed historians to tell them much of their own history.¹¹³

It was submitted, based upon the evidence presented, that Ngati Koheriki are among the oldest tangata whenua of the Hunua/Wairoa region’ and that they have ‘exercised their mana whenua and rangatiratanga over their lands and resources independently of any relationships with associated descent groups’. Central to Wai 949 is the assertion that, while the Ngati Koheriki rohe had extended beyond the East Wairoa region, this was where their ‘core

108. Document Y9, pp 6-7; claim 1.41

109. Claim 1.41; doc T19, pp 5-19. The relevant submissions and evidence in relation to the Wai 810 claim include paper 2.596 and documents R18, T5, T6, T7, T8, T9, T10, T17, T18, T19, T33-T37, Y9, Y10, and AA12.

110. Document Y9, p 33

111. Ibid, p 32

112. Claims 1.46, 1.46(a); doc Y16, p 5; doc T25

113. Document Y16, pp 12-13

lands’ were located at the time of the military activity and raupatu of the 1860s.¹¹⁴ Counsel submitted that ‘the impact of invasion and raupatu on Ngati Koheriki has been devastating’.¹¹⁵ Other issues of claim include the alienation of their lands, notably the actions of the Native Land Court, under which, it is claimed, ‘the traditional lands of Ngati Koheriki bordering on the East Wairoa Block were awarded to “loyal” Maori’. It is also claimed that the reserve eventually granted to Ngati Koheriki at Waikarakia was insufficient, and that ‘by a series of actions the Crown reduced that already small area by over two thirds’.¹¹⁶

(23) Wai 969: The Harrison whanau claim

Wai 969 was lodged in August 2001 by Reece David Harrison for and on behalf of descendants of Arama Whakatau.¹¹⁷ The Harrison whanau is of Ngati Hei and their claim relates to the alienation of 11 blocks situated in the Mercury Bay area through the operation of the Native Land Court, Crown purchase and public works legislation: the Te Kapowai, Taumatawahine, Kahuwera, Rautawhiri-o-Te-Ao, Te Hoho, Te Pepe, Huhurahi, and Oteao 1, 2, 3, 4, and 4A blocks.¹¹⁸ According to counsel for the claimants, ‘Reece Harrison and his whanau do not claim that they represent all descendants of Arama Whakatau and Mita Arama Whakatau or all of the interests in the blocks’.¹¹⁹ Counsel submitted that this claim provides a ‘specific example of how particular members of a whanau have suffered’, describing the claim as ‘an intimate portrait of a whanau’ and a contrast to the larger claims in this inquiry.¹²⁰ It was submitted that ‘At the heart of this claim is the failure on the part of the Crown to prevent wholesale alienation of these lands. The result has been the dislocation and disassociation of this whanau from their whenua’.¹²¹ No new technical or historical evidence was presented to support this claim, the claimants instead relying on existing evidence before the Tribunal.¹²²

(24) Wai 970: Ngati Tamatepo-Ngati Rongo-u

Wai 970 was lodged in August 2001 by Florence Te Paea Watene Gurnick and others on behalf of the descendants of Tamatepo of Marutuahu.¹²³ In opening submissions, counsel for the claimants described the claim, stating that ‘the descendent whanau hapu and iwi of

114. Ibid, pp 13-14

115. Ibid, p 18

116. Ibid, pp 26-27. The relevant submissions and evidence in relation to the Wai 949 claim include documents T3, T4, T25-T29, and Y16.

117. Claims 1.49,1.49(a)

118. Document Y13, pp 2-3

119. Ibid, p 2

120. Document U3, p 12

121. Document Y13, p 10

122. The relevant submissions and evidence in relation to the Wai 969 claim include documents A8, A10, M2, N1-N4, U3-U5, and Y13.

123. Claims 1.50, 150(a)

Tamatepo, the eldest son of Marutuahu have suffered hugely as a result of the loss and decay of their taonga tuku iho, and that their intrinsic and specific Tikanga have been likewise affected’.¹²⁴

Counsel for the claimants acknowledged the themes associated with the Wai 970 claims ‘In many ways … share relevance with those of Hauraki iwi as a whole, and so these submissions draw liberally on the Wai 100 submissions’ to emphasise ‘distinctly Tamatepo experiences’ and, in so doing, represent the claims of ‘those iwi and hapu which constitute the descendants of Tametepo, namely Ngati Rongo-U, Patutatahi and Uringahau’.¹²⁵ Counsel argued that ‘Owing to the almost complete diminution of Tamatepo’s mana through his submergence into Hauraki iwi and Marutuahu, further loss has been sustained by his descendants, who are now unable to draw upon the substantial resources and archives kept by the Maori Land Court in order to uncover information specific to Tamatepo’.¹²⁶ Counsel submitted that:

While the claim also relates to the areas of land, lakes, rivers, sea beds, islands, traditional fishing grounds and reefs onshore and off shore; the indigenous flora and fauna and other species; waahi tapu and other sites of cultural, spiritual and historic significance; and other taonga tuku iho in the traditional mana whenua areas which the descendant whanau and hapu of Tamatepo occupied continuously, the principal focus of the claim is around the rights to self determination that have been undermined in the past 170 years.¹²⁷

The loss and environmental degradation of taonga tuku iho relates to Hauraki Maori generally, and there are issues peculiar to the Tamatepo claimants.¹²⁸ The claimants assert that pre-Treaty transactions, Crown purchases to 1865, war and raupatu, the operation of the Native Land Court, and public works policy contributed to the Tamatepo claimants’ state of landlessness and social and economic deprivation.¹²⁹

(25) Wai 997: The Papaaroha block claim

Wai 997 was lodged in May 2002 by Daniel Hitchcock on behalf of the descendants of Hera Maraea Tauteka of Ngati Rongo-u.¹³⁰ According to counsel for the claimants’ closing submissions:

The claim concerns tribal lands from Papaaroha northwards to the southern boundaries of Aotea, and including Moehau. The Papaaroha 1 block of land was the papakainga of

124. Document Z4, p 2

125. Ibid, p 3

126. Ibid

127. Ibid, p 4

128. The relevant submissions and evidence in relation to the Wai 970 claim include documents U2, U6, U7, U8, U9, U10-U15, U16, U17, Z4, and AA5.

129. Claim 1.50(a), pp 13-19, 22

130. Claim 1.51

Hohepa Kapene, who sought before his death to have Ngati Rongo U’s connection with the land maintained and protected.¹³¹

The focus of the claim is on the alienation of the Papaaroha block via the operation of native land legislation, and includes the common themes of disputed boundaries, the sale of lands to cover debts from surveys and other charges, succession outside the tangata whenua line and subsequent sale of land to non-resident non-Hauraki owners. Other issues include the failure to protect wahi tapu and the loss of tino rangatiratanga and kaitiakitanga over taonga.¹³² A further issue relates to the alienation of areas of land for which, it was claimed, only the rights to extract shingle below the high-water mark had been sold, and the grant by the Crown of an exclusive right of extraction without considering the rights of the owners of the block.¹³³ According to claimant counsel:

Today the claimants find themselves in a position where their iwi has had no recognition of its existence by the Crown, and are struggling to maintain a sense of autonomy in relation to other iwi. Ngati Rongo U is an iwi that as a result of Crown policies and legislation have been estranged from their lands, their papakainga, their wahi tapu and each other.¹³⁴

(26) The Marutuahu claims

A number of claimant groups (most already represented by the HMTB claim, and in some cases with existing individual hapu or whanau claims) came together as ‘the Marutuahu claims’, with shared legal counsel and additional research funded by the Crown Forestry Rental Trust under the supervision of Dr Michael Belgrave.¹³⁵ In his closing submissions, counsel for the Marutuahu claims, Paul Majurey, stated that each of the claimants he represented has widespread Marutuahu whakapapa and hapu and iwi affiliations, and that ‘the principal affiliations in these claims are: Ngati Maru, Ngati Whanaunga, Ngati Tamatera, Ngati Paoa, Te Patukirikiri, and Ngati Tumutumu’.¹³⁶ In closing submissions, counsel for the Marutuahu claims acknowledged that in their submissions, ‘Counsel for the Hauraki Maori Trust Board have, along with other claimant counsel, detailed various aspects of the claims’, and that rather than repeating this approach would instead take a complementary approach in addressing the “big picture”’.¹³⁷

131. Document Y9, p 7

132. Claim 1.51; doc Y9, pp 34-38

133. Document Y9, pp 65-67

134. Ibid, pp 38-39. The relevant submissions and evidence in relation to the Wai 997 claim include documents F2, F7, F8, X1, and Y9.

135. The Marutuahu Treaty claims research reports comprise documents V1 to V10 and various supplementary statements of evidence and amendments to these reports (docs V12(a)-(f)). The relevant submissions in relation to the Marutuahu claims include documents V11 and Z6. In addition, many of the members of the Marutuahu claim group presented individual submissions and evidence.

136. Document Z6, p 4

137. Ibid, p 5

The Marutuahu claims for the most part reiterate and provide additional evidence on the claims brought by the HMTB, though the constituent groups in the Marutuahu cluster focus upon their various traditional lands. The following claims were identified in closing submissions as being in support of the Marutuahu claims:

(a) Wai 345 (Ngati Tipa hapu of Ngati Paoa) and Wai 346 (Ngati Whanaunga): The Fairburn purchase: Wai 345 was lodged in January 1993 by Maude Moengarangi Rawiri and Turiakotahi Julia Susan Rawiri on behalf of herself and Ngati Tipa, Te Runanganui o Ngati Paoa and the descendants of Marutuahu.¹³⁸ Wai 346 was lodged in February 1993 by Walter Tamahou Rawiri and Dinah Moengarangi Steele (née Rawiri) on behalf of the descendants of Ngati Whanaunga.¹³⁹ Both claims are concerned with the Fairburn purchase (which falls outside the boundaries of the Hauraki inquiry district) and are therefore not specifically addressed in this report. However, Tipa Compain’s statement of evidence in support of Wai 345 does provide useful details of Ngati Paoa origins and hapu relevant to this inquiry.¹⁴⁰ Wai 346 was heard (along with Wai 754) under Wai 809 as ‘Ngati Whanaunga me ona hapu’ generic issues.

(b) Wai 349 and Wai 778: Ngati Tamatera: Wai 349 and Wai 778 (together with Wai 720) were elected to be heard separately from the Marutuahu group. See above.

(c) Wai 454, Wai 812, and Wai 867: Marutuahu lands and taonga claims: Walter Taipari and Adrian Taipari lodged Wai 454 in April 1994 on behalf of the descendants of Hoterene Taipari and his son, Wirope Hoterene Taipare, of Ngati Maru.¹⁴¹ Clive John Majurey lodged Wai 812 in January 2000 on behalf of the descendants of Hoani Nahe, rangatira of Ngati Kotinga, Ngati Hauauru, and other hapu of Ngati Maru and the Marutuahu iwi, in respect of land and other taonga in the Marutuahu rohe.¹⁴² In the hearing, the two claims were presented together as generic issue Ngati Maru claims, along with Wai 867 (lodged by Amy Cooper and Waimanuka Meremana in July 2000, on behalf of the descendants of Meremana Konui, a chief of Ngati Maru).¹⁴³ The Wai 454 and Wai 812 claimants are described as descendants of Hotunui, Marutuahu and his five sons. The claims span the Marutuahu rohe as represented in the pepeha ‘Mai Matakana ki Matakana’ (encompassing the entire inquiry district), thus forming a comprehensive claim on behalf of Marutuahu, under the following heads: issues of tino rangatiratanga; social, cultural, and economic deprivation; war and

138. Claim a. 11; claim 1.11(a), p 2

139. Claim 1.12

140. Document X24. Mr Compain notes that Wai 345 presented documents A66, A67, and A67(a) under the Wai 100 claim.

141. Claims 1.20,1.20(a)

142. Claim 1.42

143. Claim 1.47

raupatu; pre- and post-Treaty transactions; gold and minerals; the Compensation Court and Native Land Court; loss of reserves; public works; rates; the foreshore and seabed, waters and riverbeds; customary fishing; timber leases; geothermal resources; environmental degradation; and taonga.¹⁴⁴ Wai 867 also relates to the loss of lands and resources ‘within the Marutuahu Tribal Region’.¹⁴⁵

(d) Wai 495: Te Moananui-Tawhaki claim: Mahuta Pitau Williams lodged Wai 495 in March 1993 on behalf of Tote and Hirawa Meha Te Moananui, the children of Tanumeha Te Moananui, the chief of the Tawhaki-Hura hapu of Ngati Tamatera, and relating to interests at Moehau, Thames Coast, Ohinemuri and Katikati.¹⁴⁶

(e) Wai 563: Wharekawa-Pingao Estate Trust claim: Wai 563 was lodged by Andrew Anaru Andrews of Ngati Paoa and others in November 1995 on behalf of the Pingao Estate Trust Wharekawa 9 block.¹⁴⁷ The claim relates to the acquisition of three acres of land from the Wharekawa 5B (Pingao) block for the relocation of Kaiaua School, taken under the Public Works Act 1928 in May 1934, and the taking of a further two acres in 1959.¹⁴⁸

(f) Wai 695: Te Wharau whanau and Ngati Tumutumu: Peter William Tutuki Te Wharau lodged Wai 695 in November 1997, with regard to Te Aroha lands and mountain.¹⁴⁹ According to the Wai 695 statement of claim, Mr Te Wharau’s claim to Te Aroha is through being the direct descendant to Tumu Tumu, first paramount chief of Te Aroha’.¹⁵⁰ In his statement of evidence, Mr Te Wharau states that, having defeated Ngati Hako at the base of the mountain, ‘Tumu Tumu climbed to the summit of Te Aroha and claimed mana whenua of Te Aroha’. Following Tumu Tumu’s death, and burial in a cave on Te Aroha mountain, ‘Te Ruinga was the new chief of Ngati Tumu Tumu and the Tutuki Te Wharau whanau were to become the senior line from Te Ruinga’.¹⁵¹ The primary focus of Wai 695 is the Crown purchase of Te Aroha, and in particular the role of James Mackay.¹⁵²

144. Claims 1.20(a), 1.42(a)

145. Claim 1.47. In addition to the general Marutuahu submissions and overview reports, the relevant evidence in relation to the Wai 454 claim are documents X37, X38, and X39. Clive Majury gave evidence in support of the Wai 812 claim (doc X41). The relevant evidence in relation to the Wai 867 claim are documents X29 to X32. The statements in documents X33 to X36 were made in support of the Wai 454, Wai 812, and Wai 867 claims.

146. Claims 1.23, 1.23(a). In addition to the general Marutuahu submissions and overview reports, the relevant evidence in relation to the Wai 495 claim is document W15.

147. Claim 1.24

148. In addition to the general Marutuahu dosing submissions (doc Z6), the relevant evidence in relation to the Wai 563 claim includes documents C4, A9 (pp 191-250), F4, and X21-X23.

149. Claim 1.29

150. Ibid, p 1

151. Document W17, p 2

152. In addition to the general Marutuahu submissions and overview reports, the relevant evidence in relation to the Wai 695 claim includes documents W16, W17, W18, and W19.

(g) Wai 754: Purangataua Whanau Trust claim: Garrick Cooper lodged Wai 754 in September 1998 on behalf of the Purangataua Whanau Trust (descendants of Purangataua Taiporutu) of Ngati Whanaunga.¹⁵³ The claim relates to 11 specific blocks, mostly located on the eastern coast of the Coromandel Peninsula: Kahuwera; Rautawhiri-o-te-ao; Whenuakite; Te Pepe; Whangamata 2 and 5 (eastern Coromandel); Onepu; and Waipatukahu (western Coromandel).¹⁵⁴ The Wai 754 statement of claim also listed the Tairua block, but research undertaken by Dr Tracy Tulloch for the Wai 754 scoping report failed to uncover any information linking the named tipuna or their successors to this block.¹⁵⁵ Wai 754 was heard (along with Wai 346) under Wai 809 as Ngati Whanaunga me ona hapu generic issues.

(h) Wai 809: Ngati Whanaunga (Hauraki) claim: Toko Renata Te Taniwha lodged Wai 809 in January 2000 on behalf of himself and Ngati Whanaunga me ona hapu.¹⁵⁶ The Wai 809 claimants adopt the claims of the Wai 100 claimants as well as those of the Marutuahu group.¹⁵⁷ The claim was heard alongside Wai 346 (Ngati Whanaunga Fairburn purchase) and Wai 754 (Purangataua Whanau) as Ngati Whanaunga me ona hapu generic issues. Counsel stated that Wai 809 had ‘in a sense … become the umbrella claim for those who derive their existence and mana from Whanaunga the ancestor’, and that the claim was ‘designed to emphasise and highlight within the Hauraki context the tino rangatiratanga of Ngati Whanaunga me ona hapu’.¹⁵⁸ The Wai 809 claims were summarised in closing submissions (separate to those of the Marutuahu group) in terms of the following themes: landlessness and ‘the corresponding demise and damage to [the claimants’] tino rangatiratanga as a result of the loss of land’.¹⁵⁹ Evidence was presented separately for Ngati Whanaunga me ona hapu.¹⁶⁰

(i) Wai 811: Te Patukirikiri lands and taonga claim: William Kapanga Peters and Te Warana Rehi Williams lodged Wai 811 in January 2000 on behalf of Te Patukirikiri Iwi Incorporated Society.¹⁶¹ In the hearing, Mr Peters stressed to us that, while the claim was administered by Te Patukirikiri Iwi Incorporated Society, this was not a Patukirikiri iwi claim, but rather a ‘Marutuahu whanau’ claim.¹⁶² The claim relates, in general terms, to the alienation of a number of blocks of land (as listed in the Wai 811 statement of claim).

153. Claim 1.34, doc X18, p 2

154. Claim 1.34, doc M2, p 8

155. Document J1; doc M2, p 8. In addition to the general Marutuahu submissions and overview reports, the relevant evidence in relation to the Wai 754 claim includes documents J1 and M2.

156. Claims 1.39, 1.39(a)

157. Claim 1.39(a), pp 3-5; doc Z1, pp 5-6

158. Document Z1, pp 2-3

159. Ibid, p 4

160. In addition to the general Marutuahu overview reports, the relevant submissions and evidence in relation to the Wai 809 claim include documents X3, X11, X12, X13-X20, X43-X45, Z1, and AA8.

161. Claim 1.40

162. Document W20, pp 1-5. In addition to the general Marutuahu submissions and overview reports, the relevant evidence in relation to the Wai 811 claim includes documents W20-W22.

(j) Wai 968: Nga Uri a Maata Ngapo and descendants of Marutuahu ki Harataunga: For Wai 968, see section i.2.2(y).

(27) Other claims

A number of other claims were included in the Hauraki inquiry district. While several claims were withdrawn or found to lie outside the boundaries of the district, the remaining claims were considered by the Tribunal to a greater or lesser extent depending upon the submissions and evidence heard. We consider that most of these claims fall within the scope of the general issues covered in this report.

(a) Wai 30: Tainui land claim: Robert Mahuta lodged Wai 30 in March 1987. Within the Hauraki inquiry district, the claim was limited to the issue of raupatu with respect to the Maramarua State Forest.¹⁶³

(b) Wai 236: Early land transactions, South Auckland: Te Kani Kingi (deceased) lodged Wai 236 in August 1991 with regard to South Auckland lands, particularly early land transactions.¹⁶⁴ The claim was found to concern issues largely outside the boundaries of the Hauraki inquiry district and was not pursued in this inquiry.

(c) Wai 326: Cathedral Cove-Mercury Bay marine reserve: William Alexander Ngawati lodged Wai 326 in December 1992 with regard to an alleged lack of consultation with respect to the creation of the Cathedral Cove-Mercury Bay marine reserve.¹⁶⁵ The claimant was not of Hauraki and this matter was not pursued in this inquiry.

(d) Wai 330: Auckland and South Auckland lands: Ngarau Te Paea and others lodged Wai 330 in November 1992 with regard to Auckland and South Auckland lands.¹⁶⁶ The claim lies largely outside the Hauraki inquiry district and was not pursued in this inquiry.

(e) Wai 364: Tamaki Hauraki (Tooke) claim: Rawiri Tooke lodged Wai 364 in May 1993.¹⁶⁷ Mr Tooke declined to be heard by this Tribunal and the claim was withdrawn.¹⁶⁸

163. Claim 1.1. The relevant submissions and evidence in relation to the Wai 30 claim include documents A1, A2, and Z7 and paper 2.75.

164. Claim 1.7(a)

165. Claim 1.10. Document A19 was taken as read. No request was made for hearing time.

166. Claim 1.10(a)

167. Claim 1.15

168. Papers 2.524, 2553

(f) Wai 369: Waiheke Island lands: Horimatua Evans lodged Wai 369 in August 1993, with regard to Waiheke Island lands.¹⁶⁹ In August 2003, the presiding officer instructed the registrar to note that the Crown had informed the Tribunal that Wai 369 had been settled.¹⁷⁰

(g) Wai 508: Ngati Te Ata claim: Whititera Kaihau lodged Wai 508 in May 1995, with regard to Ngati Te Ata interests in South Auckland lands.¹⁷¹ Brief submissions were filed which in part concerned Ngati Te Ata interests in the Waitakaruru block (Piako area) but little evidence was presented.¹⁷²

(h) Wai 826: Te Kawakawa block claim: Te Awanuiarangi Black lodged Wai 826 in May 1999 on behalf of the descendants of Titikawhena Oketopa/McMahon (née Hapi) with regard to the alienation of interests in the Te Kawakawa block.¹⁷³ While some evidence was filed, the claim was not pursued in the Hauraki inquiry.¹⁷⁴

1.3 Our Report

An inquiry of such length and complexity has resulted in a long, detailed report, necessary if any justice is to be done to the history of relations between the Treaty parties in Hauraki. However, we have provided an executive summary of our principal analyses and findings at the beginning of this report.

Our report is made up of seven parts; the most substantial of which (parts II to IV) have a prologue introducing the major themes explored. The seven parts are divided into 28 detailed chapters on specific themes:

► Part I of this report defines the Hauraki inquiry district and the Hauraki iwi and hapu who live within it. We set out our understanding of the relationships between these groups, their history in Hauraki, and the areas they primarily associate with, as they themselves explained them to us. We define the boundaries of our Hauraki inquiry district, which, we recognise, do not incorporate all areas with which Hauraki people claim association.

► Part II outlines the land and other claims relating to the early period before and after the signing of the Treaty, from the first transactions between Pakeha and Maori through to the beginnings of Crown intrusions into Hauraki territory, and ending with the

169. Claim 1.16

170. Paper 2.598

171. Claim 1.23(a)

172. The relevant submissions and evidence in relation to the Wai 508 claim include documents AA4, Y21, Y22, and X42.

173. Claim 1.43

174. Documents P3, R4

break down in relationships between the Crown and Hauraki Maori as war broke out in Waikato territory in 1863.

► Part III investigates the complex issue of gold and other subsurface minerals, described by counsel for Wai 100 as ‘the linch pin’ of the Hauraki claims’. It also discusses timber issues.¹⁷⁵

► Part IV moves into Native Land Court issues, drawing in part on the recent findings of the Waitangi Tribunal’s report into the Gisborne claims,¹⁷⁶ but focusing more specifically on the background to the earliest land legislation, the 1862,1865 and later Native Land Acts. Native land legislation is at the heart of land loss, and as such forms a very significant focus of our report.

► Part V moves into a discussion of several different but general themes, again common to most claimant groups: foreshore issues, the impact of colonisation and development on the environment, the rating of Maori land, public works takings, and the destruction or lack of protection for wahi tapu and taonga. In this part, we also discuss specific issues relating to Te Aroha township and the Te Aroha hotsprings.

► In part VI, we give our overall comments on the accumulative impact of all the above issues on the socio-economic health and status of Hauraki Maori.

► Finally, in part VII, we set out our findings relating to the specific non-HTMB claims, not covered in the generic discussions in earlier parts. Otherwise, we refer the reader to where the non-HTMB claims are discussed throughout the report.

175. Document A51, p 1

176. Waitangi Tribunal, Turanga Tangata Turanga Whenua, vol 2, ch 8

Figure 2: Geological structure of Hauraki lands. Source: Schofield, 1967.

CHAPTER 2
THE DISTRICT AND ITS PEOPLES

2.1 The Hauraki District

The Hauraki inquiry district as defined by the Tribunal comprises the southern part of Tikapa Moana - the Hauraki Gulf - and its islands, the Coromandel Peninsula, and the lower Waihou and Piako Valleys. In traditional Maori imagery, the Coromandel is the jagged barb of the great fish of Maui, Te Tara o te Ika, also called Te Paeroa o Toi. The peninsula is also seen by Tainui people as the ama (outrigger) of their waka, with the 900-metre high peaks of Te Aroha and Mount Moehau marking the prow and stern respectively.¹ The total land area is 5059 square kilometres (1.25 million acres), but there is an almost equal area of ocean and it should be recognised that the seas and tidal foreshores of Tikapa Moana north to Great Barrier (Aotea) and the Mahurangi coast were as important as the land to the tangata whenua of the region. Theirs was a maritime empire, based upon harvesting the seas and foreshores and traversing the sheltered waters for complex exchanges between tribes.

Geologically, the Hauraki district, like all of New Zealand, has been shaped by the abutting of two tectonic plates. The Pacific plate to the east is being pulled under the Indo-Australasian plate to the west at the rate of about 50 millimetres per year. The two plates are moving laterally as well. Consequently, the earth’s crust has buckled along a series of fault lines. Mountain chains have formed along them, including the Hunua and Hapuakohe Ranges west and south-west of the Firth of Thames, and the Coromandel and Hunua Ranges to its east and south-east.² The period of ‘old volcanism’, with its upwelling of molten minerals and folding of layer upon layer as the earth’s crust boiled, twisted, and cooled, left the Hauraki region embedded with deposits of hard minerals such as basalt, obsidian, chert, and argellite, important in Maori material culture. Louise Furey’s archaeological work shows that the basalt at Tahanga (eastern Coromandel) was for many centuries the most important stone material in the North Island, being worked and traded throughout the country, though eventually partly supplanted by discoveries of argellite.³ The period of old

1. Document A6, p 3

2. Evelyn Stokes, The Legacy of Ngatoroirangi: Maori Customary Use of Geothermal Resources (Hamilton: Department of Geography, University of Waikato, 2000), pp 4-5

3. Document M25, pp 36-40

volcanism also caused veins of gold to be deposited in the igneous rocks, the exploitation of which by Europeans was to have profound effects on the region’s history. Geothermal activity has continued to affect the region, notably in the form of numerous hot springs about Te Aroha, and about Miranda (Pukorokoro), on the western shore of the Firth.⁴

Many rivers flow from the mountains into the plains and sea, the most navigable being the Piako and the Waihou, which Cook named the Thames. Until drained in the early twentieth century, the Thames-Piako flood-plain formed one of the largest wetlands in New Zealand: ‘In summer, it dried out into definable watercourses and ponding areas, while in winter it became a sprawling inland sea.’⁵ On the other side of the Coromandel Ranges, the largest rivers discharging on the eastern coast are the Whitianga and the Tairua. Whitianga Harbour (Te Whitianga-o-Kupe) is the best harbour in the region, but the Coromandel and Manaia Harbours also offered good shelter, as did the Waihou and Piako Rivers and many small bays and inlets.

Flat, well-drained, and easily cultivated land was limited in Hauraki, in comparison with other regions. ‘Areas of alluvium at river mouths soon gave way to shallow clay-based soils on steep slopes.’⁶ But the area was temperate and the gulf islands frost-free, permitting the cultivation of kumara and (less readily) of taro and yam brought from central Polynesia. The broadleaf and podocarp forests included miro, hinau, tawa, and karaka, whose fruit could be harvested in season. The region abounded in bird life, including moa in the early decades of Maori settlement. There were many wetland bird species and thousands of migratory waders, which congregated on the coastal mudflats in season. The seas and foreshores teemed with fish and shellfish, the swamps and rivers with birds, eels, and other freshwater fish. Seals abounded on the eastern Coromandel coast.⁷ A rich region for human habitation, the people who traversed and harvested the seas and inland waters as readily as they traversed and harvested the land. Apart from the swamplands, most of the region was thickly forested, with the rivers and harbours giving access to great stands of kahikatea (on the flood-plains) and kauri (on the hillsides) which drew Pakeha to its shores.

2.2 Pare Hauraki : The People

The term ‘pare Hauraki’ is attributed to Hotunui, who used it to welcome his son Marutuahu when he first arrived in Hauraki. While the name has clear Tainui origins, the late Taimoana Turoa, a kaumatua of Hauraki, proposed that it might be used for the peoples of the region.⁸

4. Stokes, pp 225-250

5. Paul Monin, 7his Is My Place: Hauraki Contested, 1769-1875 (Wellington: Bridget Williams Books, 2001), p 8

6. Ibid, p 122

7. Document M25, pp 3-4

8. Taimoana Turoa, Te Takoto 0 Te Whenua 0 Hauraki: Hauraki Landmarks, edited by Te Ahukaramu Charles Royal (Auckland: Reed Books, 2000), pp 42-43

2.2.1 The earliest occupants

Hauraki - ‘winds from the north’ - was a point of entry for the Polynesian settlement of Aotearoa—New Zealand, and lay in the midst of the busy seaway from North Cape down the eastern seaboard of Te Ika a Maui, later traversed by the canoes of many iwi and hapu. Furthermore, it commanded the access to the isthmus of Tamaki-makau-rau, with its canoe portages to the Manuka (Manukau) Harbour and thence to the west coast and Waikato. The Waihou and Piako Rivers were also avenues to and from the Waikato heartland. The resource-rich and exposed Hauraki islands, rivers, and harbours were visited by many groups and periodically fought over.

The earliest occupants of the region are considered to be descendants of the explorer, Toi-te-huatahi (also called Toi-kai-rakau) who preceded the famous waka such as Tainui, Arawa, Mataatua, and Takitimu. These disparate early descent groups, often called ‘Te Tini-a-Toi’, intermarried with the peoples of the various waka as the latter arrived and settled the area.

Ngati Hako are widely acknowledged to be one of the oldest of the surviving Hauraki tangata whenua groups. The ancestral traditions of the tribe appear to have been lost in subsequent invasions.⁹ Heather Bassett and Richard Kay suggest that Ngati Hako, Ngati Tokanui, and Ngati Paeahi (or Paiahi) were hapu of Nga Marama, a pre-Tainui people.¹⁰ Taimoana Turoa, however, regards Nga Marama as the earliest of the Tainui tribes who lived in Hauraki.¹¹ Tauranga tradition suggests Nga Marama were the early people defeated by Ngati Ranginui and then Ngai Te Rangihouhiri.¹² Paul Monin also mentions another tradition, recounted in 1958 land court evidence, of Ngati Hako’s descent from Hako, son of Taha, left in Hauraki by the Tainui canoe.¹³ Among other early tribal names, Graeme Murdoch, a historian for the Auckland Regional Council, notes the names Tutumaio, Turehu, and Maewao attributed at different times to very early occupants of the inner Hauraki Gulf.¹⁴ Ngati Hako dominated southern Coromandel, the Hauraki Plains for many generations, but were often defeated and harried by the later-arriving Marutuahu people. Their survivors were eclipsed for a while and restricted to a much narrower land base. When Marutuahu called a halt to the fighting, Ngati Hako’s lands were reduced to an area about the junction of Hikutaia and Waihou Rivers. But they made peace with the invaders, intermarried with them, and were never totally subjugated.¹⁵

Ngai Tai (or Ngati Tai) traditions also contain reference both to pre-Tainui and Tainui origins. Stephen Zister told the Tribunal of a large pohutukawa tree on the foreshore east

9. Ibid, pp 44-47

10. Document R7, pp 14, 22

11. Turoa, p 55

12. Waitangi Tribunal, Te Raupatu 0 Tauranga Moana (Wellington: Legislation Direct, 2004), p 28

13. Document C5, p 14

14. Graeme Murdoch, He Korero Tawhìto mo Rangitoto: A Brief Outline of Maori Historical Associations with Rangitoto Island (Auckland: Auckland Regional Council, 1991) (doc C5, p 11)

15. Their position was analagous to that of Ngati Ranginui at Tauranga after the Ngai Te Rangi invasion: see Waitangi Tribunal, Te Raupatu o Tauranga Moana, p 46.

Figure 3: Hauraki tribes, circa 1840. Source: Taimoana Turoa, 1997.

of modern Howick named ‘Te Tuhi a Manawatere’. Ngai Tai tradition says that Manawatere came from Hawaiki not by waka but on the back of a taniwha, to Maraetai and Cockle Bay, where he marked the pohutukawa with ochre as a guide to those following him.¹⁶ But Ngai Tai are also connected with the Tainui canoe, which came to the Tamaki area 25 generations ago and left people whose descendants still live there. The waka then voyaged to the eastern Bay of Plenty, where Torere, the daughter of its commander, Hoturoa, was left at the place named after her. Generations later, when bitter feuding broke out at Torere, the leaders there resolved to send three chiefly sisters, Te Raukohekohe, Motu-ki-tawhiti, and Te Kawenga, with others of their people, to find their kinsmen back in Hauraki and Tamaki. On arrival at the Maraetai-Wairoa area, they mingled and intermarried with Ngati Maru (who had meanwhile arrived in the district), with the Tamaki section of Ngai Tai (Ngati Tai), and with the older (pre-Tainui) Te Wai-o-Hua, an early people of Tamaki, later displaced or absorbed by Kaipara and Waikato peoples. More precisely, Te Whatatau of Ngati Tai of Tamaki married two of the chiefly sisters from Torere (Te Raukohekohe and Motu-ki-tawhiti), while the third sister (Te Kawenga), married Te Whiringa of Te Uri o Pou, kin to Te Wai-0-Hua.¹⁷ From this time the tribal name Ngai Tai seems to have been preferred over the earlier Ngati Tai. Zister states that, while the tribal name Ngai Tai is maintained at Torere, Tamaki, and the western shore of Hauraki alike, ‘the people who lived between the Wairoa and Tamaki River [estuary] also use the name Ngati Te Raukohekohe’.¹⁸

Another hapu of the Wairoa and Hunua district, which features prominently in discussion of the East Wairoa land confiscation of 1864, is Ngati Kohua.¹⁹ This group is variously given as a hapu of Ngai Tai and of Te Wai-o-Hua.²⁰ It is also given as an alternative name for Te Koheriki, now known as Ngati Koheriki by the claimants associated with East Wairoa and the Waikarakia block of the Maramarua district.²¹

Ngati Huarere were an important, early Hauraki people whose ancestors arrived in Te Arawa waka. Huarere was the grandson of Tamatekapua, commander of the waka which made landfalls at Moehau and elsewhere in the Hauraki district. After settling in the Bay of Plenty, Tamatekapua quarrelled with his kin and returned northward to Moehau (northern Coromandel), where some descendants settled.²² Tradition suggests that Huarere ended his

16. Document A68, pp 2-3. Te Warena Taua, who discusses these marriages in some detail, states that ‘Te Whatatau was the rangatira of the Tamaki-Maraetai section of Ngati Tai and Wai o Hua, while his wife belonged to the Ngati Maru of Papa Aroha’: doc T24, p 12.

17. Document A68, pp 3-5; doc T24, pp 11-13; see also doc A40(b)

18. Document A68, p 5; doc T24, p 13

19. See whakapapa and associated discussion in document T24, pp 20-21, and document C3, pp 25-27.

20. Document T24, p 20

21. Claim 1.46(a), para 5

22. See Don Stafford, Te Arawa: A History of the Te Arawa People (Auckland: Reed, 1967); doc M4, p 6; see also Leslie G Kelly, Tainui: The Story of Hoturoa and his Descendants (Wellington: The Polynesian Society, 1949) p 174. Kelly regards Huarere as the son of Tamatekapua.

days on Waiheke Island, and Paul Monin considers that most of the pa sites on that island were constructed by Ngati Huarere.²³ Ngati Huarere, together with Ngati Hei and Ngati Hako, dominated the Coromandel Peninsula for many generations. There were at least four hapu of this iwi, including Ngati Pare, Ngati Raukatauri, Ngati Piri, and Ngati Koheru. These hapu responded variously to the Marutuahu arrival, discussed below. (The claimants have said that, after returning from the Waikato in the early 1830s, they tended to identify with Ngati Tamatera and Ngati Maru to ‘distance themselves from the image of N Huarere as a conquered iwi’.²⁴)

Ngati Hei are also said to descend from the crew of Te Arawa, their eponymous ancestor, Hei being an uncle of Tamatekapua. Hei moved southwards to the central Bay of Plenty with his son, Waitaha or Waitaha-(nui)-a-Hei. The Bay of Plenty people known as Waitaha descend from them, as do Ngati Wai, now of Whangarei district but formerly also of the gulf islands, through the marriage of Waitaha-a-Hei with a high-ranking woman of Hauturu (Little Barrier Island).²⁵ In tradition, Hei had long-established connections with Whanganui-a-Hei (Mercury Bay), and in time Ngati Hei settled the east coast of Coromandel Peninsula from Whangapoua to Whangamata and the offshore islands.²⁶ Evidence given in the Native Land Court in the late nineteenth century complicates the tribal history in showing that 13 generations previously another Hei - Hei Turepe of Tainui ancestry - came to the Hauraki district from the Waikato, conquered land from the previous tangata whenua about Whitianga and Tairua, and intermarried with Ngati Huarere.²⁷ This is one of many examples of hapu with mixed origins identifiable in the nineteenth century.²⁸ Protected by the Coromandel Ranges, Ngati Hei were less exposed than Ngati Huarere to the Marutuahu invasions from the west.

The traditions of Ngati Rahiri date to the Mataatua canoe, which landed at Whakatane and later voyaged north to Te Tai Tokerau. In Hauraki tradition, Rahiri accompanied Puhi-kai-ariki, the ancestor of Nga Puhi, on this voyage. But, approaching old age, Rahiri wished to return to Whakatane and journeyed south with some of his people, via Tamaki isthmus and Hauraki, naming various land features as they went. On this journey, Rahiri and his granddaughter climbed a peak they named Te Aroha-a-uta; some kin stayed there as Rahiri journeyed on.²⁹ Later, they intermarried with other Hauraki hapu, including Ngati Tumutumu, who were living at Te Aroha before and after the battle of Taumatawiwi about 1830 (see below); these originally different peoples are now named Ngati Rahiri Tumutumu

23. Paul Monin, Waiheke Island: A History (Palmerston North: Dunmore Press, 1992) p 17; doc M4, p 11

24. Document M5, para 13.1

25. G Graham, ‘Hauturu — The Wind’s Resting Post’, Auckland Institute and Museum, MS120 (doc C5, p 12)

26. Document N2, pp 11-21

27. Ibid, pp 17-20, 23-29

28. See Peter McBurney’s discussion of the relationships between Ngati Huarere, Ngati Hei, Te Patukirikiri, and Ngati Rongo-u, as expressed in the whakapapa of Whangapoua chiefs: docs A28, L12.

29. Turoa, pp 50-51

in the Hauraki Maori Trust Board Act 1988. Their present claim is focused upon Te Aroha maunga and its environs. One hapu of Ngati Tumutumu was Ngati Kopirimau; Wiremu Hotereni Taipari, generally regarded as Ngati Maru, also belonged to this group.³⁰

Te Patukirikiri or Patukirikiri is a group which also seems to have preceded the Marutuahu invasion and retained their earlier identity together with newer connections. They are considered to have descended from Te Wai-o-Hua of Tamaki and Waiheke Island, through the marriages of their chief, Kapetaua. Wiremu Peters stated to the Tribunal that their tupuna arrived in the Hauraki district only a short time before the Marutuahu invaders and intermarried with them. Other statements suggest that Patukirikiri now regard themselves as a hapu of Ngati Tamatera or, alternatively, of Ngati Paoa.³¹ Taimoana Turoa states that Patukirikiri managed to avoid full-scale engagement in the conflicts between the Marutuahu tribes and the previous tangata whenua. He suggests that they gained their distinctive name in a conflict with earlier occupants of the Coromandel by hurling stones at them - the name ‘Patukirikiri’ being rendered as ‘killing with, or killing upon stones of the beach’.³²

Another important pre-Marutuahu group was Te Uri-o-Pou, descended from Poutekateka or Poutukeka, a chief of both Arawa and Tainui origins whose people occupied Whakatiwai and its environs on the western shore of Hauraki Gulf. Another early group, of Toi stock, was named Te Kahui-ariki.

2.2.2 The Marutuahu invasions

The traditional history of Hauraki is dominated by the invasion and settlement of much of the region by iwi of Tainui origin, collectively known as Marutuahu. Tribal traditions are revealed in the statements of witnesses before the Tribunal, in oral traditions collected and published by early Pakeha ethnographers such as George Graham, writing for early numbers of The Journal of the Polynesian Society, in the work of Bruce Biggs and Pei Jones entitled Nga Iwi 0 Tainui,³³ in Leslie Kelly’s book Tainui (based on traditions related by Pei Jones and published by the Polynesian Society in 1949), and in recent scholarly analysis of Maori evidence given in the Native Land Court and other Maori sources (notably the work of Angela Ballara).

An account by Tukumana Te Taniwha, collected and published by George Graham, states that about the late sixteenth century the Tainui chief Hotunui of Kawhia (not to be

30. Hauraki minute book 10, fols 405-406 (doc W17, pp 3-4)

31. Document A58, pp 4-6. For a reference to ‘the Patukirikiri hapu of Ngati Tamatera’, see document M4, p 38. An 1865 statement by a Pita Taurua links Patukirikiri with Ngati Paoa: doc C5, p 16.

32. Turoa, pp 51-52. In a somewhat parallel account, Finlay Phillips states that the name means ‘slain on the shingle’ and refers to a defeat at the hands of Ngati Huarere on Motutapere Islands, Coromandel Harbour, about 1805: Phillips, Nga Tohu a Tainui: Landmarks of Tainui — A Geographical Record of Tainui Traditional History, 2 vols (Otorohanga: Tohu Publishers, 1989), vol 1, p 114 (doc C5, p 16).

33. Pei Te Hurinui Jones, Nga Iwi 0 Tainui: The Traditional History of the Tainui People, edited by Bruce Biggs (Auckland: Auckland University Press, 1995)

confused with Hoturoa, captain of Tainui waka, who lived some eight to 11 generations earlier), falsely accused of stealing kumara seedlings, left Kawhia to live on the western shore of Tikapa Moana with Te Uri-o-Pou. Hotunui left behind his pregnant wife, Miharawhiti, with instructions that if the coming child was a boy he was to be named Marutuahu, ‘maru being the shelters for kumara seedlings and ‘tuahu’ the mounds for growing them.³⁴ In Hauraki, Hotunui married Waitapu, daughter of Te Whata³⁵, and lived with her at her father’s pa, Te Tikiore, at Whakatiwai. Despite his high rank, Hotunui was treated with indignity. In time, Marutuahu, the son born at Kawhia after Hotunui’s departure, found his father at Whakatiwai. He too stayed and married local women, first Hineurunga (or Hinerehua in some accounts) then her sister Paremoehau, daughters of Te Ruahiore in Tukumana Te Taniwha’s account, and in Leslie Kelly’s.³⁶ Pei Te Hurinui Jones and Bruce Biggs, however, state that Hotunui’s wife was the daughter of Te Ruahiore and that the two sisters, Marutuahu’s wives, were daughters of Te Whata.³⁷ The most recent published Maori account, Te Takoto o Te Whenua o Hauraki: Hauraki Landmarks, by Taimoana Turoa, regards Paremoehau as the elder of the two sisters, of Te Uri-o-Pou and Te Kahui-ariki descent.³⁸

By Hineurunga, Marutuahu had three sons, Tama-te-po, Tama-te-ra and Whanaunga.³⁹ From Marutuahu and his sons descend the Hauraki iwi, Ngati Maru, Ngati Tamatera, and Ngati Whanaunga. Ngati Rongo-u or Rongo-U, take their name from Rongomai, grandson of Tama-te-po, but this group seems to have eventually merged with the stronger sections of the confederation.⁴⁰ Despite the intermarriages with Te Uri-o-Pou, Marutuahu resolved to extract utu or satisfaction from them for their bad treatment of his father, and with his family and Te Kahui-ariki allies, attacked and drove them out of the district. The Marutuahu people then established their own ancestral kainga at Puwhenua, an area between Kaiaua and Orere.

The descendants of Marutuahu at first tried to live peaceably with Ngati Hako and Ngati Huarere with whom they had intermarried, but Waenganui, wife of Taura-kapakapa, youngest son of Marutuahu, was killed and her body desecrated by her own people. Taura-kakakapa took utu from Ngati Hako and Ngati Huarere, but was himself killed. The Marutuahu tribes then systematically overcame most of the previous tangata whenua and settled upon much of the lands they conquered. But they also made further strategic marriages with the earlier occupants to cement their conquests and re-establish peace.⁴¹ By the

34. Kelly, p 100

35. This is also spelt ‘Te Whatu’ in various historical texts: Jones, p 104.

36. Recorded by George Graham from Tukumana Te Taniwha in 1929 and published in The Journal of the Polynesian Society, vol 50 (1941), pp 120-133. See also Kelly, pp 99-115.

37. Jones, pp 102-106

38. Turoa, p 60

39. Jones implies that Paremoeahu (Paremoehau) was their mother: Jones, p 104.

40. Turoa, p 62; Jones, pp 102-106; Angela Ballara, Iwi: The Dynamics of Maori Tribal Organisation from C1769 to C1945 (Wellington: Victoria University Press, 1998), p 347 fn 113

41. Turoa, pp 60-61

eighteenth century, they were the most dominant groups in the Hauraki region, including the islands of the gulf.⁴²

Relations between the various Marutuahu factions as they developed were by no means always peaceful. Taimoana Turoa writes:

Upon the death of Marutuahu, Tamatera received the mana of his father. This was to cause trouble in the family as the custom was for the mana of the father to be passed to the eldest child, in this case, Tamatepo. As was also the custom, the wife of the deceased also becomes the wife of the person to whom the mana is passed. In this case it was Hineurunga, his mother’s youngest sister, who became Tamatera’s wife … The liaison invited the strong disapproval of Tamatera’s people. Some Hauraki sources make an oblique reference to not only an adulterous relationship but also one bordering on incest which was considered despicable … matters came to a head when Tamatera’s younger brother, Whanaunga, returned after some years of absence spent in Kawhia. He was the most belligerent of all the brothers and on learning of the marriage was so incensed that he vowed to kill him … Paremoehau … on learning of Whanaunga’s intention sought out Tamatera and warned him to depart.⁴³

Tamatera left Whakatiwai and moved to Te Komata, near the present town of Paeroa, and thence to Katikati and Whakatane. He did not return.⁴⁴

During the course of the Marutuahu conquests, another iwi of Tainui derivation, Ngati Paoa, entered Hauraki. Paoa was a ranking Waikato River chief, the younger brother of Mahuta, eponymous ancestor of Ngati Mahuta, later the people of Potatau Te Wherowhero and his descendants. Tradition has it that, shamed by his wife’s failure to provide adequate food during one of Mahuta’s visits to his kainga, Paoa left Waikato and travelled to Hauraki. There he married Tukutuku, a granddaughter of Marutuahu, and eventually settled in the district. He and his children by Tukutuku were forebears of the Ngati Paoa people.⁴⁵ By the early nineteenth century, Ngati Paoa, along with the Marutuahu tribes, had established themselves in considerable numbers along the western side of the gulf, along parts of the Tamaki isthmus, in many of the gulf islands including Kawau and Great Barrier and along the Mahurangi coast. A struggle for dominance developed between them and Ngati Maru. Taimoana Turoa notes that whilst engaged in the struggle against Ngati Paoa, Ngati Huarere and Ngati Hako, Ngati Maru assessed their situation, and, as more land became available they took up station around Thames and Wharekawa (eastern Coromandel), leaving their former home to Ngati Whanaunga and the increasingly powerful Ngati Paoa.⁴⁶

42. George Graham, ‘The Wars of Ngati-Huarere and Ngati-Maru-Tuahu, of Hauraki Gulf’, Journal of the Polynesian Society, vol 29, no 113 (1920), pp 37-41

43. Turoa, p 63. In the version recounted by Kelly, the two brothers were sons of Hineurunga, which, if true, would make Tamatera’s incest even more extreme: Kelly, pp 173-174.

44. Turoa, p 63; Graham, p 39

45. Document A67, p 1; see also Jones pp 162-168; Ballara, p 347 fn 113

46. Turoa, p 65

According to evidence presented to us, another much smaller tribe, Ngati Tara, kin to Ngati Maru and Ngati Tamatera, but also to Ngati Raukawa, followed Marutuahu into the Hauraki district but apparently retained its own identity.⁴⁷ Taimoana Turoa’s account and research by Bassett and Kay into Native Land Court records show that Marutuahu and Tara both descended from Hoturoa of Tainui through Whatihua.⁴⁸ Ngati Tara moved, perhaps in the seventeenth century, from Maungatautari to the Waihou River, where they fought and then intermarried with Ngati Hako. Eventually, they controlled land between Piraurahi near the Waihou River and Owharoa near Ohinemuri, and had acquired the alternative name Ngati Koi in the process. Until the early nineteenth century, they continued to fight with Nga Marama groups around Waihi and Katikati, forming an alliance with Ngati Tamatera during these struggles. They also created ties by marriage with the Ngati Tokanui hapu of Nga Marama.⁴⁹ Bassett and Kay state:

By the late nineteenth century intermarriage had occurred to such an extent that descendants of Tara and the descendants of Tokanui were virtually the same people. Nevertheless they still acknowledged and maintained their separate ancestral land rights deriving from Ngati Tara and from Ngati Tokanui. This meant that in some Native Land Court cases Te Keepa [the leading rangatira of the group at the time] claimed blocks through Tara, and in other cases he claimed blocks through Tokanui.⁵⁰

Similarly, though closely related to Ngati Tamatera, Ngati Tara appeared as a claimant group contending with Ngati Tamatera in the Native Land Court in the 1870s.⁵¹ They are represented as Ngati Tara Tokanui in the Hauraki Maori Trust Board Act 1988. In the early nineteenth century, their customary interests were in the Ohinemuri-Waihi-Katikati district. A contemporary preference for much intermarried hapu such as these is to identify with a marae, such as Ngahutoitoi. Amelia Williams, for the Ngati Koi/Tara and Ngati Tokanui claimants, Wai 714, states:

When we first registered our claim we formed a committee that represented the four groupings on our Marae and we were mandated to research identity aspects of Ngati Koi,

Indeed, so much of their story is woven in with that of Ngati Tara that it is no surprise to find that Ngati Koi are referred to as a sub-tribe of Ngati Tara. However, genealogical recitals known today contradict such a view and confusion is compounded by a lack of information concerning generations preceding Koi himself. This does not necessarily cancel out a Tara affiliation as the name itself could refer to an incident ascribed to them …

47. Document A69, p 2

48. Turoa, pp 53-54; doc R7, p 27. At page 78, Turoa wrote:

49. Document R7, pp 9-32

50. Ibid, p 25

51. Native Land Court, Important Judgments Delivered in the Compensation Court and Native Land Court, 1866-1879 (Auckland: General Steam Printer, 1879) pp 97-100

Ngati Tara, Ngati Tokanui and Ngati Tawhaki ki Ngahutoitoi. Ngahutoitoi enshrined our cultural and social identity.⁵²

The outcomes, for the previous tangata whenua groups and the Marutuahu peoples alike, were complex and not easy to state precisely. Te Uri-o-Pou and Te Kahui-ariki were mostly killed or driven beyond the borders of Hauraki. (Even while Captain Cook was visiting Hauraki, Ngati Paoa were in process of driving Te Uri-o-Pou from Tapapakanga and Orere.⁵³) Dr Ballara considers that among tangata whenua who survived the Marutuahu conquests were some Ngati Huarere.⁵⁴ Evidence presented in respect of Ngati Raukatauri hapu of Ngati Huarere indicates that most hapu of Ngati Huarere were decimated by conflict with Ngati Rongo-u and other Marutuahu peoples, with Ngati Pukenga and amongst themselves, but that Ngati Raukatauri survived by forming an alliance with Ngati Tamatera. Henceforth they were no longer aligned with other hapu of Ngati Huarere, but had taken on a new name, Te Mango, and were more closely aligned with their Marutuahu allies to whom they had gifted land and with whom they had intermarried. ‘By the nineteenth century [some five generations later] this led to a situation where Ngati Raukatauri identified themselves primarily as Ngati Tamatera, rather than Ngati Huarere’ or at least could equally claim to be members of Ngati Tamatera’.⁵⁵

Thus, by the early nineteenth century, Hauraki was occupied by an intricate patchwork of groups, predominantly of Marutuahu descent, intermingled with groups of earlier occupants. Most of the tribes were intermarried and had complex linkages with each other. Some early hapu had lost their separate identity in the constant process of hapu formation and reformation. Others retained their pre-Marutuahu identity and survived independently, even if in somewhat tenuous relationships with the Marutuahu tribes. Some eighteenth- and early nineteenth-century hapu derived their identity from more than one of the founding Marutuahu divisions; Ngati Kotinga are an example. They ‘are most frequently identified as being a hapu of Ngati Whanaunga or Ngati Maru. The minute books also suggest, however, that Ngati Kotinga have close links with Ngati Paoa.’⁵⁶ Captain Cook’s expedition, arriving in Whanganui-a-Hei (Mercury Bay) in November 1769, found that it was engaging with two distinct Maori groups. One, represented by the chief Toiwa, is generally regarded from land court evidence as Ngati Hei; the other, as revealed in the remarkable account of Horeta Te Taniwha, recorded probably in the 1840s, was Ngati Whanaunga. Relations between the two were tenuous, Toiwa explaining to Sir Joseph Banks that when the Endeavour sailed he would have to retire to his pa, because he anticipated that Ngati Whanaunga would seek

52. Document R12, para 6

53. Monin, This Is My Place, p 24

54. Ballara, pp 197-198; see also Kelly, pp 175-181

55. Document M4, pp 9-27

56. Document H1, pp 9-18

retribution from his people for the loss of a Ngati Whanaunga man, killed during a theft and apparent defiance of the English a few days earlier.⁵⁷

The centuries of migration, warfare, and shifting alliances had produced a complex web of customary land rights throughout most of Hauraki, derived variously from ancestral occupation, raupatu (conquest), tuku (‘gift’ or permission to occupy) and ahi ka (continuous residence and cultivation). There were few extensive areas of cultivable land, capable of supporting large village clusters. Most hapu were obliged to establish rights to various resources and patches of cultivations scattered throughout the district, and interspersed with the rights of other hapu. Parts of the land were ‘whenua tautohe’, debated or contested between two or more claimant groups.⁵⁸ Populations were dispersed; most lived and worked in mobile whanau, kin groups or small hapu of about 30 to 50 people, keeping their claims alive in a number of areas. In the smaller offshore islands, often rocky and waterless, a number of groups might visit for mutton-birding, shellfish gathering, or to establish temporary camps for seasonal sea-fishing. But some of these islands were unfit for continuous occupation and cultivation.⁵⁹

Although outside the Hauraki inquiry district, a complex of Ngati Paoa villages developed on the northern Tamaki shore, an area gifted to Ngati Paoa following intermarriage with an early people, Nga Oho, kin to Te Wai-o-Hua. Focused on the great kainga of Mauinaina and the pa called Mokoia, the complex, which developed extensive potato cultivations, was estimated to contain 4000 people, the largest Maori community observed by Europeans in pre-1840 New Zealand.⁶⁰

We note again that the Marutuahu ‘empire’ was largely maritime, based upon harvesting the foreshores and seas and upon a rohe-wide network of feasting and gift exchanges based on their produce. The people were well placed for fruitful interaction with Europeans, but also vulnerable to penetration by well-armed raiders from the north.

2.2.3 The ‘Nga Puhi' raids

As the Marutuahu tribes (particularly Ngati Paoa and Ngati Maru) moved into the Tamaki isthmus and the northern Hauraki Gulf, they encountered local peoples such as Te Wai-o-Hua and Te Kawerau. They were increasingly challenged by Kaipara peoples including Ngati Whatua and Ngati Rongo, who were moving southward into the area in the latter half of the eighteenth century, and by invaders from Northland, collectively known to them as ‘Nga Puhi’. Fishing parties of the various iwi shared the gulf waters, or even collaborated in great seasonal harvests such as the annual shark fishing off the Mahurangi coast. But competition

57. Document N9, pp 6-13. Te Taniwha’s account was published in John White, The Ancient History of the Maori, his Mythology and Traditions, 7 vols (Wellington: Government Printer, 1887-91), vol 5, pp 121-133.

58. Monin, This Is My Place, p 13

59. Document C5, p 9

60. Monin, This Is My Place, pp 51-52

Figure 4: Tribal movements, 1820-40

for resources and offences to mana soon brought clashes at Mahurangi, Takapuna, and Waiheke. George Graham shows that northern iwi were concerned to avenge Ngati Huarere, some of whom had moved northward after their defeats by the Marutuahu peoples; and Ngati Paoa had again clashed with Te Uri-o-Pou at Papakura and Tamaki.⁶¹ Northern expeditions raided the coast near Taupo (modern Clevedon) about 1793; in return Ngati Maru,

61. George Graham, ‘“Kahu-mau-roa and Te Kotuiti”: Two Famous War Canoes of Ngati-Paoa and their History’, Journal of the Polynesian Society, vol 33, no 130 (1924), pp 130-135

Ngati Paoa and Ngati Whanaunga launched successful expeditions against the tribes at the Bay of Islands.⁶²

The Marutuahu groups also fought amongst themselves, jostling for Hauraki resources. About 1818 serious fighting broke out between Ngati Paoa and Ngati Maru. In these struggles, the former called on the assistance of Nga Puhi and Waikato, while Ngati Maru invited Ngati Pukenga - a Mataatua people - into Hauraki to assist them.⁶³ This internecine fighting is said to have left Marutuahu ill-prepared when Nga Puhi and others acquired significant numbers of muskets, and from 1818 commenced their devastating raids on the Hauraki islands and coast. The great Ngati Paoa settlements of Mauinaina and Mokoia were sacked in late 1821, then Te Totara Pa near modern Thames. The exposed Hauraki peoples withdrew inland to the Waikato, Ngati Paoa mostly to Horotiu and Ngati Maru to Maungatautari, where they dwelt in an uneasy relationship with Ngai Haua and Ngati Raukawa. Nga Puhi invaded the Waikato itself in pursuit of Ngati Paoa and Ngati Whatua. Hongi Hika achieved a major victory at Matakitaki in 1822 then made peace with Waikato. He observed that peace, and though the battle of Haere-awatea in 1825 was fought in Waikato territory, Hongi made it clear that his target was Ngati Whatua, not Ngati Paoa. Under the chief Te Rauroha, Ngati Paoa were able to stand aside, and later returned to the Hauraki Gulf. Later raids led by other northern alliances under Pomare in 1826 and Te Rangituke in 1827 were defeated by Waikato and Hauraki warriors. The Waikato ariki, Te Wherowhero then led a great expedition northward and defeated the northern alliance in a campaign culminating at Tawatawhiti, near Haowhenua on the Waikato River.⁶⁴

Meanwhile, serious conflict was brewing at Maungatautari. Even in refuge in the Waikato, Ngati Maru and Ngati Paoa had continued to fight with other tribes, including Ngati Raukawa. They obtained guns through traders and became demanding and aggressive towards their hosts. Ballara characterises the Hauraki groups as manene (strangers), occupying land by permission from Ngati Haua, and states that ‘their troubles leading to the great battle at Taumatawiwi began because they began to assert ownership in an area where they had none’.⁶⁵ Te Waharoa, the great Ngati Haua war leader, determined to rid his territory of them and enlisted the aid of Ngai Te Rangi. The battle was fought about 1830. Both sides suffered heavy losses, but the chiefs of Ngati Maru and the other Hauraki tribes accepted a proposal from Te Waharoa to leave the district under his protection. Probably early in 1831, they returned to Hauraki and the gulf islands.⁶⁶

62. Kelly, pp 271-275; Jones, pp 328-330

63. Monin, This Is My Place, pp 44, 50

64. Kelly, pp 368-380

65. Ballara, p 199

66. Kelly, pp 384-386; Phillips, pp 163-169; Monin, This Is My Place, pp 66-67

2.2.4 The situation about 1840

The situation remained volatile through the 1830s and beyond. Ngati Paoa and sections of Waikato clashed at Whakatiwai in 1834 and 1835. In 1836, Waikato and Marutuahu chiefs accepted a suggestion by the missionary Henry Williams to transfer the land between Tamaki and the Wairoa River, as yet not reoccupied, to the Church Missionary Society (CMS), subject to the right of named tribes to settle upon it, a transaction known as ‘the Fairburn purchase’. It was intended to create a buffer zone betweeen the warring factions. But, in 1836, large forces under Te Waharoa with his Ngai Te Rangi allies attacked Te Arawa at Maketu. Consequently, while food-gathering parties of the Hauraki tribes ranged widely throughout their former rohe, the threat by Ngai Te Rangi, Ngati Haua, and Waikato meant that they did not immediately resettle inland border areas. But large pa and associated village clusters grew again at Whakatiwai, Kauaeranga, and the lower Waihou, and Taraia led Ngati Tamatera in evicting Ngati Haua from encroaching on Te Aroha.

We note that when occupation was resumed, rights to and control of land - already very complex before the northern attacks - became even more complicated, because not all groups returned to precisely the same areas they had left 10 or more years before, or stood in the same relationship with each other. We expand on this statement below.

For example, Ngati Maru, concerned to avoid a resumption of the damaging clashes with Ngati Paoa, did not resettle Waiheke Island in numbers. While not relinquishing their ancestral claims they left the way clear for Ngati Paoa to take stronger possession and control in Waiheke and the gulf islands generally. However, tensions persisted among Ngati Maru, Ngati Paoa, and Te Patukirikiri over Waiheke. Paul Monin states that in about 1840 a kanga (curse) by Mauhukuku of Ngati Maru against Kahukoti of Ngati Paoa led to mediation by Crown officials, involving the formal ceding of rights at Putiki Bay by Ngati Maru to Ngati Paoa.⁶⁷ The Ngati Paoa chief, Wiremu Hoete, gave a different version to land claims commissioner Bell. He stated that the land originally belonged to Te Wai-o-Hua and was then seized by Te Patukirikiri:

but afterwards they committed an offence against a chief of ours, named Kahukoti. The nature of that offence was was that Tahungao Maro [sp ?] had written a letter to Pomare [of Nga Puhi] desiring him to come and make war on the Ngatipaoa - and it was in consequence of that, that Putiki was taken away by us (Ngati Paoa).⁶⁸

Ranapia of Te Patukirikiri stated to Bell that, after these events, Ngati Paoa allegedly ‘seized the whole of Waiheke … We belonged to the Ngati Paoa ourselves, but since the affair of the curse they call us Ngatimaru’.⁶⁹ Such was the nature of shifting rights and relationships on Waiheke about 1840. In 1987, the Waitangi Tribunal, investigating Ngati Paoa

67. Monin, Waiheke Island, pp 51-52; doc C5, pp 24-25

68. Sworn statement of Wiremu Hoete, 20 December 1859, OLC 1/1164, box 61, Archives NZ

69. Sworn statement of Ranapia, 15 April 1859, OLC 1/1214-5, repro file 1670

claims relating to Crown actions affecting the island, commented guardedly (and correctly) that ‘Ngati Paoa maintained that before 1840 [Ngati Maru] were expelled to join their kin on the Coromandel Peninsula’, but that Ngati Maru ‘had a different opinion and clearly the position in 1840 was not certain’.⁷⁰

Monin’s study of the gulf islands led him to the view that ‘the predominant political factor at work in the inner gulf in the 1830s was Ngati Paoa expansionism, characterised by their seeking to replace rights formerly shared with other Hauraki iwi with more exclusive rights rather than the conquest of new territory’.⁷¹ We note that there was a strong movement of the Marutuahu tribes into the islands and shores of the gulf, to take advantage of trade with European flax and timber merchants, who were entering the region just as Marutuahu were returning after the battle of Taumatawiwi.

As a result of the northern incursions, some Hauraki groups had gained greater prominence while the position of others had weakened. For example, Ngati Hei, though having retained much territory in the east of the Coromandel Peninsula during the Marutuahu invasions, had been exposed to the full brunt of the northern raids and a great many were killed. The writer of their ‘mana whenua’ report goes so far as to state that ‘Following the Ngapuhi raids of the early nineteenth century they virtually ceased to exist as a tribe’, but that ‘The remnant survivors of Ngati-Hei remained in the Whitianga district and eked out a solitary existence in small isolated pa and fortified rock stacks during this period’.⁷²

The heavy loss of life amongst Ngati Hei and other smaller tribes meant that much of their former lands were claimed by other, more numerous tribes returning to Hauraki after Taumatawiwi. On the other hand, some groups, formerly relatively weak, such as Ngati Hako, Ngati Koi, and Whakatohea, who had remained in the swampy middle reaches of the Waihou and Piako while their Marutuahu neighbours withdrew to the Waikato, seem to have strengthened their position at the expense of those who left.⁷³

Some Marutuahu hapu names enter the documentary historical record in the late 1830s and subsequently. A hapu named Ngati Pu, variously said to be of Ngati Rongo-u⁷⁴ or of Ngati Maru, occupied a rare area of flat land above the swamp-line, at the junction of the Hikutaia and Waihou Rivers; they feature strongly in post-1840 history. Taimoana Turoa recounts a tribal tradition that the name was given in 1864, when some of the hapu fought with the Waikato. One of their rangatira, Herewine Te Rangai, was responsible for the maintenance of the firearms; at the conclusion of the fighting he is said to have renamed his people Ngati Pu or ‘The gun tribe’.⁷⁵ However, the group is referred to by that name in respect

70. Waitangi Tribunal, Report of the Waitangi Tribunal on the Waiheke Island Claim (Wellington: Department of Justice, 1987), p 8

71. Document C5, pp 27-28

72. Document N2, pp 1, 53-54

73. Document R7, pp 46-48; doc A6, pp 15-16

74. Turoa, p 86

75. Ibid

of its movements and its land rights well before that date. Paul Monin’s account, derived from the missionary Fairburn and from Maori Land Court evidence, states that they came to Hikutaia from the Waikato in December 1830, spent about two years there, moved to the Mahurangi coast to work on Gordon Browne’s timber-cutting establishment, then assisted Ngati Paoa on Waiheke. Others went to Turua at this time.⁷⁶ Ngati Karaua (an established hapu of Ngati Whanaunga) were also active at Hikutaia and Whangamata in 1839 and later. Te Uri-karaka was an important Ngati Paoa hapu in the western shore of the gulf and adjacent islands. Te Koheriki or Ngati Koheriki, a hapu of mixed Waikato (Ngati Tamaoho) and Ngai Tai descent, occupied land in the upper Wairoa and upper Mangatawhiri Rivers and came into prominence when British forces entered Hauraki and the Waikato in 1863.

Some new communities entered the Hauraki district as well. They included Ngati Pukenga, a Mataatua people, alternatively known as Te Tawera, and Ngati Porou. Both are discussed in the next section.

2.2.5 Tuku whenua issues

We discuss different aspects of Maori customary land tenure in various parts of this report. We also discuss in the various appropriate chapters such aspects of social organisation as chiefly mana, the nature of iwi and hapu communities, the effects of intermarriage and other matters. We have not attempted a full outline of these subjects in any one section, but adopt the general findings on customary tenure and community rights in the Turanga report.⁷⁷ We report here on one aspect of customary tenure with particular relevance to Hauraki iwi: tuku whenua or the granting of rights to occupy land.

‘Tuku whenua’ is often correctly translated as a ‘gift of land’. But the word ‘tuku’ also means to ‘let’ or ‘allow’. In some circumstances, a more precise gloss might be ‘permission to settle or occupy’. In pre-contact times, some ‘tuku whenua’ were intended as permanent gifts of land, although always with the proviso that if the gift was abandoned by the recipient’s people, it reverted to the giver. In other words, the mana of great chiefs and their people making the gift continued to overlay the area gifted. What was gifted were carefully delineated lands for cultivation and residence, and often the use of certain resources. But the permissions given might vary from gift to gift, according to the circumstances at the time. We turn to a consideration of the tuku at Harataunga, Mataora, and Manaia.

(1) The Harataunga tuku whenua

In 1852, various hapu of Ngati Porou - including Te Aitanga-a-Mate, Te Aowera and Te Whanau-a-Rakairoa - were gifted lands at Harataunga by the Ngati Tamatera rangatira,

76. Document J8, pp 16-17

77. Waitangi Tribunal, Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims, 2 vols (Wellington: Legislation Direct, 2004), vol 1, pp 14-19

Paora Te Putu. Several reasons or take were given for the tuku, the most immediate being the request by the chief, Te Rakahurumai for a place to take shelter and rest on the trading voyages from the East Coast to Auckland. Earlier take included connections through whakapapa and tupuna, particularly through the deeds of the early ancestor of Ngati Porou, Paikea, who made landfall from Hawaiki at Ahuahu (Great Mercury Island) before continuing his journey to Whangara in Te Tai Rawhiti. When Paikea reached Ahuahu - which lies directly to seaward of Harataunga - he covered himself with sand (ahu) to get warm. The full name of the island is Te Ahuahutanga-o-Paikea.⁷⁸ At Ahuahu, Paikea is said to have cultivated the kumara. Some Ngati Porou traditions - including that recorded by John White in 1887 - refer to Paikea’s marriage while at Ahuahu to Te Ahuru-mo-Wairaka, a granddaughter of Toi, with whom he had a number of children.⁷⁹ Upon leaving Ahuahu, Paikea is said to have visited Harataunga and, according to Dr Pakariki Harrison, ‘a few of the families who live at Harataunga trace their ancestry to [this] marriage’.⁸⁰ In his evidence, Piriha Potae spoke of a freshwater spring in the rocks above sea level at Waipo at the southern end of the bay. Paikea is said to have come ashore at night looking for water and, finding none, struck the rock so that the spring appeared.⁸¹

Evidence has been submitted that groups of Ngati Porou called at Harataunga ‘well before the 1820s’, en route to trade at Te Tai Tokerau, and that over time the visits became more permanent.⁸² It was submitted that these Ngati Porou groups assisted Ngati Tamatera against Nga Puhi raids in the 1820s, and that the land at Harataunga and Mataora was given to Ngati Porou in exchange for this contribution.⁸³ According to Dr Harrison, the gifts of land were made under the custom of ‘tapae toto’.⁸⁴ But this tradition of early nineteenth-century visits is not corroborated in Marutuahu sources.

In the 1840s and 1850s, Ngati Porou schooners began to call regularly at Harataunga on trading missions from Whareponga to Auckland. By the end of 1852, the people of Waiapu owned eight schooners.⁸⁵ According to Parekura White, ‘Under the guidance of their arataki and entrepreneur … Te Rakahurumai, the three hapu of Te Àitanga a Mate, Te Aowera and Te Whanau Rakairoa … were heavily involved in the production and transportation of food produce to Auckland and the Hauraki region’.⁸⁶ Te Rakahurumai owned three schooners: King Araeta, The Children, and The Committee. They transported wheat, potatoes, kumara,

78. Document S8, pp 17-18

79. Ibid, pp 18-19; doc S27, p 2; White, vol 3, pp 31-32. Te Ahuru-mo-Wairaka is also referred to as Ahuru-moa-I-raka by White.

80. Document S27, p 2

81. Document S22, p 2

82. Claim 1.45(a), p 4

83. Ibid, p 5

84. Document S27, p 3

85. Document S8(a), p 21

86. Document S8, p 84

and corn to Auckland from the East Coast and from Harataunga itself.⁸⁷ Those Ngati Porou who died at Harataunga were taken back to the East Coast for final burial.

(a) The tuku: In 1852, Te Rakahurumai asked Paora Te Putu for land and a harbour at Harataunga to rest his crews and anchor his schooners. In 1878, Henare Nawaia told the Native Land Court that Te Rakahurumai was drowned before receiving the news of Paora Te Putu’s consent.⁸⁸ Tamehana Kakano said in 1878 that nine months after Te Rakahurumai’s death:

Makoare, Henare [Nawaia], Tamati [Tawhiri] and Te Mokena the chiefs of the Itenga A Mate [sic] asked Paora [Te Putu] to give them the land which he had promised to Te Rakahurumai. The hapu came on to Harataunga on the ‘Committee’ followed by the schooner Children … Paora gave Harataunga to the Te Itenga A Mate on this occasion.⁸⁹

Major Rapata (or Ropata) Wahawaha, while not present at the gifting, gave evidence at the Native Land Court hearing that ‘Te Waipara of Ngati Tamatera stood up and named the outer boundaries and a plan of the land was sketched on the sand. Raniera [Kawhia] wrote down the boundaries on paper. He also got the names of places inside the block and wrote them down.’⁹⁰ In May 1854, a meeting was held there to confirm the gift.⁹¹ To seal the gift of Harataunga, it is claimed that Paora Te Putu told the people of Te Aitanga-a-Mate: ‘He whenua tuturu tenei mo o uri ake tonu atu’.⁹² (‘This land is permanently for your descendants for ever.’) According to Rapata’s later evidence, members of Ngati Porou then claimed particular pieces of Harataunga land.⁹³

According to the evidence of Korohere Ngapo before this Tribunal, the tuku came about as a result of the birth of his tupuna Maata Te Ao Whakatere Ngapo (or Maata Pokia), daughter of Te Rakahurumai and Te Paea, who generally lived at Harataunga’.⁹⁴ Mr Ngapo said that the agreement itself was cemented by the marriage of Maata to Paora Te Putu. Another marriage was made between Pita Te Hangi, Maata Ngapo’s brother, and Riria Karepe, niece

87. Document S20, p 2; doc S8(a), p 22

88. Document S8, p 90

89. Ibid, p 91; Coromandel minute book 3, fols 86-87

90. Coromandel minute book 3, fols 97-101; doc S8, p 93. In May 1868, in response to Mackay’s description of the boundary of Harataunga for the purpose of releasing the land for gold mining, Raniera Kawhia described the boundary in a letter to Mackay as follows: ‘The commencement of the boundary is at Ohineperu (a spring of water), Piripirika (a fern hill), Taraingapoito, Te Pu (this is a hill) Tahatu, Te Ranga, Tau-O-Maroiri, Tokatea, Kaipaua, Waikoromiko, Pukeohiku, Hapapawera, Pukenui, Tapuae, Kakahiaroa, Pukeruru, Te Harakeke’: Raniera Kawhia to James Mackay, 23 May 1868, AJHR, 1869, A-17, pp 28-29; doc S8, p 99.

91. Coromandel minute book 2, fols 389-390 (doc S8, p 89)

92. Ibid, fol 390 (p 96)

93. Ibid, fol 98 (p 93)

94. Document X4, pp 2, 4-5

of Paora Te Putu. Mr Ngapo stated that ‘the purpose of these marriages was to unite and maintain rights to the whenua for the Maratuahu iwi residing at Harataunga’.⁹⁵

According to Wiremu Kapanga Peters:

even though Ngati Tamatera are accredited with the gift of Harataunga to the hapu Te Aitanga a Mate of Ngati Porou, the Ngati Mango and Raukatauri sides of Te Patukirikiri played a major part in the gift … Paora [Te Putu] went to ask the people and other Rangatira of Tokatea if they’d agree to this. Many Rangatira did, and in fact gifted some of their lands to this cause.⁹⁶

In his evidence, Mr Haereroa spoke of the gifting of the Harataunga lands in terms of the concept of koha. He explained that the word ‘koha’ can be broken into two parts: ‘ko’ means to give emphasis; ‘ha’ means the breath of life; and that ‘what this means is to give life to the land which is being presented as a gift’. We heard from both Mr White and Mr Haereroa that ‘From the perspective of Ngati Tamatera and Ngati Patukirikiri the giving of the land and the harbour at Harataunga was to create a strategic alliance with the three hapu under the leadership of Te Rakahurumai.’ This alliance ‘was a signal to other hapu and iwi that if Ngati Tamatera and Ngati Patukirikiri were attacked our three hapu would support their alliance partners’. In return, ‘to Te Rakahurumai the land and the harbour at Harataunga was ideally placed and provided his schooners with shelter and a resting place for his people’.⁹⁷ According to Dr Harrison, Paora Te Putu ‘wished to learn the art of trade and he needed a protective screen from his enemies, as his own people had fled from the belligerent tribes of Ngapuhi to live at Horotiu’.⁹⁸ We discuss this tuku below as affected by the Native Land Court decisions regarding title to Harataunga.

When the gifting of Harataunga was formalised, the Ngati Porou hapu ‘laid before their hosts … a greenstone patu of great significance. This patu was called “Whaita”’.⁹⁹ Other gifts associated with the gift of land included a number of horses, a garment, and various sums of money which were apparently accepted specifically as payment for a burial place.¹⁰⁰

Tuta Nihoniho (Beau) Haereroa told us that, ‘in the view of our elders, it would have been an insult to the people of Ngati Tamatera and Ngati Patukirikiri not to occupy Harataunga following the gifting’.¹⁰¹ He stated that ‘it is said that the first people to establish ahi kaa or the fires of occupation were Mokena Te Horua, Kapo Whetu and Ihaka Ingoakore’, and that ‘our people have maintained mana whenua and mana moana until today’. The Harataunga

95. Document X4, pp 3, 5-6

96. Document A58, pp 16-18; doc S8, p 85

97. Document S8, p 84; doc S20, pp 3-4

98. Document S27, pp 2-3

99. Document S20, p 3

100. Document S8, p 98

101. Document S20, p 4

land, he continued, ‘has now become a standing ground for our three hapu. For that reason our three hapu have united to be one through inter-weaving with each other’.¹⁰²

According to Mr White’s evidence, following the tuku, and ‘to meet the market demands of Auckland, the flat areas of Harataunga were transformed into a large commercial cultivation producing potatoes, wheat, maize, kumara, onions, cabbages, peaches, pigs, and fowls’.¹⁰³ However, the trading activities of Te Aitanga-a-Mate had already declined with the death of Te Rakahurumai in 1852, and were further set back by the loss of two schooners in the late 1850s, together with Auckland’s developing self-sufficiency, before being curtailed completely with the conflict of the 1860s.¹⁰⁴

(b) Further gift of land at Mataora: In the latter half of the 1860s, a section of the Ngati Porou community was banished from Harataunga on account of their affiliations with Pai Marire. Ngati Tamatera of Paora Te Putu’s whanau then granted these people land at Mataora, north-east of the township of Waihi.¹⁰⁵ Paul Monin has recounted the ‘Pai Marire scare’ centred on Harataunga in March and April 1865, shortly after the killing of Vōlkner at Opotiki on 2 March 1865. It was apparently rumoured that ‘Hauhau fanatics’ were to descend on Coromandel township, destroying Alexander McGregor’s timber mill at Harataunga on the way. HMS Eclipse was dispatched to protect Coromandel before joining James Mackay - with 250 stands of arms and a delegation of local chiefs - at Kennedy Bay. Mackay delivered an ultimatum that the Pai Marire group must leave or face the use of force by the Eclipse. It was reported that 19 people - men, women, and children - left for Mataora.¹⁰⁶ But as Monin recounts, ‘it transpired that the Pai Marire had simply wished to attend the horse races at Coromandel and that the European timber millers, who in any case greatly outnumbered them, had at no time been concerned for their safety’.¹⁰⁷

As with Harataunga, the gift of land at Mataora in the mid-1860s was later recognised by the Native Land Court. At the June 1880 hearing of the Ohinemuri block, witnesses stated that Mataora was gifted to the members of the various Ngati Porou hapu by Paora Te Putu, and that they continued to occupy it after Paora’s death. A sum of £25 was given to Ngati Tamatera.¹⁰⁸

(c) Tuku and the effects on iwi and hapu of Native Land Court decisions: At the 1872 Native Land Court hearing on Harataunga, Rapata Wahawaha recalled having been requested by

102. Ibid, pp 3-4

103. Document S8(a), p 22. White cites G Barton, ‘A Description of the Archaeological Landscape of Kennedy Bay, Coromandel Peninsula’, New Zealand Archaeological Association Newsletter, vol 23, no 2 (1980), p 105.

104. Document S8(a), pp 27-28

105. Document S26, p 2; doc S27, pp 2-3

106. Monin, This is My Place, pp 208-209; Daily Southern Cross, 5 April 1865, p 4; 7 April 1865, p 4; April Summary 1865, p 6

107. Monin, This is My Place, p 209

108. Hauraki minute book 12, fol 347, Hauraki minute book 13, fols 5-7,12,15, 18-19, 23 (doc S8, pp 100-103)

the Government to visit to persuade his people to ‘abandon Hauhauism’. While there he was informed that Paora Te Putu’s niece, Riria Karepe ‘and the Ngati Tamatera had taken back the place’. This was apparently in response to Henare Nawaia having reclaimed the patu pounamu, ‘Whaita’, from Ngati Tamatera. Wahawaha intervened, attempting unsuccessfully to persuade Riria to accept a greenstone of his own and money in place of ‘Whaita’. He then went to Mataora to demand the return of the weapon. Rapata informed the court that, having obtained Whaita:

I took it with me to Harataunga and showed it to the people there. I and 100 Ngati Porou took the weapon and a double barrelled gun in addition to Omaru. I laid the gun and greenstone before Riria and said ‘there is what you told me to bring you’. I have given you what is yours give me what is mine that is Harataunga. She gave me the land and said she would never reclaim it.¹⁰⁹

Rapata emphasised that it was this act ‘which got back this land’. ‘The gift of Paora Te Putu’, he claimed, ‘was made null by the act of Henare [Nawaia] in taking away his greenstone’.¹¹⁰ We note that Parekura White refers to Rapata as connected to Te Whanau-a-Rakairoa.¹¹¹

In June 1872, at Kapanga, Coromandel, the Native Land Court heard an application for a certificate of title for the Tokatea block within Harataunga. Following requests from the parties present, Judge Monro agreed to consider the title ownership of the whole of Harataunga. Evidence was presented regarding the gifting of Harataunga, and careful attention was paid to the question of whether it was gifted to particular hapu of Ngati Porou or to Ngati Porou generally. Rapata Wahawaha informed the court that ‘This land [Harataunga] was not given to the whole Ngati Porou tribe but to a hapu of it, Te Aitanga a Mate. The chief of the hapu was Te Rakahurumai. The owners of it now are Hiria Te Rakahurumai, Raniera Kawhia, Te Ruia Tuatai, Hanara Tangiawa, Tamati Tawhiri, Ropata Ngatai, Anaru Te Horua, Henare Nawaia, Ropata Wahawaha’.¹¹² He was supported by other witnesses.¹¹³ This was disputed by Pita Te Matatahi, who stated that he belonged ‘to the Ngati Porou to the Te Whanau a Ruataupare hapu and reside at Harataunga’. He claimed that ‘this land was given to the Ngati Porou, not to any one in particular but to the tribe, as an anchorage for their vessels’.¹¹⁴ Judge Monro accepted Rapata’s view, concluding that ‘the land had been given by Paora Te Putu to Te Rakahurumai and his hapu Te Aitanga a Mate not to Ngati Porou generally’.¹¹⁵

109. Hauraki minute book 3, fols 100-101 (doc S8, p 94)

110. Coromandel minute book 3, fols 97-101 (doc S8, pp 93-94)

111. We also note that The Dictionary of New Zealand Biography gives Rapata Wahawaha’s principal affiliation as Te Aowera: Steven Oliver, ‘Wahawaha, Rapata’, DNZB, voh, pp 567-570.

112. Coromandel minute book 2, fol 381 (docs8, p 86)

113. Evidence of Ropata Ngatai (Te Aitanga-a-Mate), Riria Karepe (Ngati Tamatera), and Arama Karaka (Ngati Tamatera), Coromandel minute book 2, fols 389-394 (doc S8, pp 88-89)

114. Coromandel minute book 2, fols 381-382 (doc S8, p 87)

115. Ibid, fol 395 (p 95)

We note that certain members of Ngati Tamatera, including Riria Karepe, attended the 1872 hearing of Harataunga and made no objection to the granting of title to Ngati Porou. The Wai 968 claimants (Nga Uri a Maata Ngapo and the descendants of Marutuahu ki Harataunga) argue that Riria Karepe was present to affirm the tuku, and that she and those whom she represented ‘believed that their rights to the land of Harataunga were protected under the Maori customary law of tuku whenua’. These claimants submit that ‘it is unlikely that Ngati Tamatera understood what the true effect of the Native Land Court awarding title to the hapu of Te Aitanga-a-Mate was going to have in the future’, arguing that ‘if they knew that the true effect of the European freehold title system was to alienate absolutely then the transaction would not have proceeded’. Marutuahu, they state, ‘still had Urupa, Waahi tapu in Harataunga and they still maintained tino rangatiratanga over the land’.¹¹⁶

The Wai 968 claimants argue that in making its decision, the Native Land Court ‘destroyed the intended effect of the tuku whenua, which resulted in the claimants losing their tangata whenua rights to the land forever’. They assert that they have been ‘permanently alienated from their tribal lands’ and ‘prevented from exercising their tino rangatiratanga over the whenua’. They state that the loss of land (and loss of control of the land) has resulted in loss of leadership, customary traditions, language and identity, and that they ‘have been forced to endure the long-term effects of unemployment, low educational achievement, and other adverse social consequences relating to a general well-being due to the dislocation of the people from their whenua’.¹¹⁷ Korohere Ngapo spoke of the shame associated with the failure of the Native Land Court to recognise the claimants as tangata whenua at Harataunga, and their loss of mana over the land.¹¹⁸ Others spoke of the specific effects associated with landlessness and more particularly of their dislocation from their turangawaewae, and of the lack of consultation on environmental and natural resources matters due to the loss of perceived tangata whenua status.¹¹⁹ One point emphasised by the Wai 968 claimant witnesses was the need to re-establish a Marutuahu marae at Harataunga.¹²⁰

(d) Non-resident owners: All of the present claimants have stated that Harataunga was given to only three Ngati Porou hapu - Te Aitanga-a-Mate, Te Aowera, and Te Whanau-a-Rakairoa - not to the people of Ngati Porou generally. However, it is apparent that there remains some tension between the exercise of rights by the resident owners in Harataunga (and their close descendants) and those of the three hapu residing in Te Tai Rawhiti. Dr Harrison noted that several Harataunga families descend from Ngati Tamatera and women brought from the East Coast to marry three brothers from Hauraki.¹²¹ The Ngati Porou

116. Document Z5, p 4

117. Ibid, p 5

118. Document X4, p 8; doc Z5, p 7

119. Document X5, pp 3-6; doc X6, p 12; doc X7, pp 3-4; doc X8, pp 4-5; doc X9, pp 2-3; doc Z5, pp 7-8

120. Document Z5, p 9

121. Document M12, para 7

people of Harataunga and Mataora obviously retained their connections with the East Coast. Piriha Potae, for example, spoke of his parents (neither of whom were born on the East Coast) keeping close contact with the Coast, and of them travelling from Harataunga to tangi at Hiruharama.¹²²

We note that running counter to these maintained links is a concept of Harataunga as an autonomous settlement, whose land the East Coast residents should not control. While in fact the hapu at Harataunga have retained more land than most, some was alienated against the wishes of residents because land agents in Gisborne purchased the interests of non-residents. It appears to us that largely as a result of closely intermarried families and descent from former residents, non-resident members of Te Aitanga-a-Mate, Te Aowera and Te Whanau-a-Rakairoa did, to some extent, have rights in Harataunga. While actual residence does not seem to have been regarded as crucial, it does appear that those members resident at Harataunga did have the greater right.

(e) Discussion: We note here that all of the Ngati Porou claimants have taken care not to claim tangata whenua status at Harataunga. Rather, it was submitted, ‘they assert rights, interests and obligations as a result of holding the mana whenua and mana moana over the land and resources of Harataunga’.¹²³ As already noted, the Wai 866 claimants have particularly identified themselves as ‘tangata hau kainga and keepers of ahi ka at Harataunga and Mataora’.¹²⁴ The term ‘tangata hau kainga’ was defined to us as conveying a literal meaning of ‘the people of the breezes of home’, and being used to describe ‘those people who have lived at the home base for some considerable time’.¹²⁵

We also heard that the claimants were generally agreed that the tuku of Harataunga was more complex than an absolute alienation of rights by Ngati Tamatera and others, but rather a conditional right of occupation, under which the donees should do nothing to diminish the mana of the donors. According to the evidence of Korohere Ngapo, ‘the donor’s ties to the whenua were never meant to be diminished’.¹²⁶ Both the Ngati Porou claimants and those from Ngati Tamatera agree that the Native Land Court failed to observe tikanga in awarding the land absolutely to the Ngati Porou hapu and making no mention of residual rights in the donors. The Wai 968 claimants allege that ‘in Harataunga the effect of the Native Land Court investigation was to permanently destroy the existing Maori land tenure, which at that time was based on the custom of tuku whenua’.¹²⁷ They argue that:

122. Document S22, p 3

123. Document Y18, p 6

124. Document Y19, p 3

125. Document S35, p 6

126. Document X4, p 7

127. Document Z5, p 2

Tuku whenua gave a set of rights and obligations to the donee tribe but never ownership. Inherent in every tuku whenua was the mana of the tangata whenua (donor), in this case, Marutuahu, and this mana could never be relinquished. The concept of tuku whenua must be understood within a cultural context. It is not an act that extinguishes the tangata whenua rights; it is intertwined with Maori tikanga that includes manaakitanga, aroha and utu. A tuku whenua was a supreme example of Marutuahu kindness, not a permanent alienation of land in the European sense.¹²⁸

The Wai 968 claimants acknowledge that this has been recognised in part by the Wai 792 claimants, and quote Parekura White’s statement that ‘Under the concept of tuku whenua… land that is gifted, as was the case with Harataunga, could be definitely permanent but never absolute.’¹²⁹ They further claim that ‘the rights of the tangata whenua, Marutuahu, were still paramount over the lands of Harataunga after the tuku whenua had occurred and up until 1872, the time of the Native Land Court investigation into Harataunga’. Marutuahu, they argue ‘were still “owners” of the land, notwithstanding their lack of occupation’. They submit that the Native Land Court recognised the Ngati Porou hapu for two reasons: ‘Firstly, they saw occupation as the primary indicator of ownership and secondly, the Native Land Court incorrectly interpreted tuku whenua as a “gift”, an absolute term.’¹³⁰ According to the evidence of Korohere Ngapo, ‘the recipients of the tuku had no right to sell or lease the land under tuku whenua terms. Should that occur then it is apparent that the recipients no longer need the land and it should revert back to the donors’.¹³¹

We note that following the presentation of the Wai 968 evidence, we accepted that to interpret the Maori word ‘tuku’ only as ‘gift’ is misleading, and instead suggested the phrase ‘a licence to occupy’ as a better translation that captures the essence of the phrase ‘tuku whenua’. The Tribunal is of the view that under such an arrangement, the grantors would have retained some residual right with regard to the land in question and that in this case, the rights of Ngati Tamatera would not have been totally extinguished. We note that the negotiation and condition of such an arrangement would be unique to the particular circumstance and that it is difficult to generalise with regard to this matter. The parties involved would have been seeking to maintain a balance of relationships, militarily, economically and socially, and it would appear that a residual right would have remained with the group extending the privilege. It is apparent that some conditions of such an arrangement would have been assumed to be understood and not necessarily discussed during the course of the negotiations, and it is likely that this set of understandings would have included a reasonable

128. Ibid

129. Ibid; doc S8, p 109

130. Document Z5, p 3

131. Document X4, p 7

expectation that the land would not be alienated to a third party. Indeed, such an option, at the time of the tuku, may well have not even been considered: with the introduction of the Native Land Court, the world changed.

By 1868, however, Hauraki Maori were becoming aware that a Native Land Court decision would be likely to lead to alienation. One conclusion that might be made is that with the alienation of any such land, the compact or trust would be broken, and any proceeds should be shared among the original grantors as well as the selling grantees. While this may have been a reasonable possible expectation, the delicacy of the arrangement was not (and perhaps could not be) encapsulated in the Native Land Court process. We cannot say to what extent the court was made aware of the nature of the tuku.

The Tribunal is of the view that a customary tuku probably did not include a right of on-sale to a third party without the permission or participation of the donor - a right that was of course made legally possible by the grant of a certificate of tide. It seems quite clear that the tuku made by Paora Te Putu was (despite the uncertain situation under Riria Karepe in the mid-1860s, but resolved by Rapata Wahawaha) effectively confirmed at subsequent stages, including Riria’s silent consent at the Native Land Court hearings. There may be more to Riria’s silence than acquiescence, but we have no additional information before us on this matter.

For the most part, the land sold at Harataunga was sold by non-residents. The 1899 sales were mainly sold by absentee owners who were sought out by Crown agents in Gisborne and the East Coast. This matter is discussed in section 12.2.3 and chapter 17.

(2) The tuku of Manaia lands to Ngati Pukenga

Ngati Pukenga are of Mataatua origin. We heard evidence that their main genealogical line descends from Toroa, the captain of the Mataatua waka to his daughter, Wairaka, and to her son, Tamatea-ki-te-huatahi. According to the evidence of Lawson Richards, Tamatea’s son, Tanemoeahi, was the older brother of Tuhoe and the father of Pukenga, after whom the tribe was named.¹³² According to the evidence of Buddy Mikaere and Shane Ashby, ‘The generally accepted version of Ngati Pukenga history is that they formerly lived in the Opotiki-Waimana-Whakatane districts centred mostly round Waiaua and Omarumutu’.¹³³ They state that, according to their traditions, ‘Ngati Pukenga moved to the Tauranga district in a series of three heke’. They ‘joined with Ngaiterangi in the invasion of Tauranga Moana … and proceeded on a military campaign to help subjugate the district’.¹³⁴ According to Mikaere and Ashby, towards the end of the eighteenth century, Ngati Pukenga, having fallen out with Ngai Te Rangi, ‘began forming military alliances with the Hauraki tribes, Ngati Maru and Ngati Tamatera in particular, as a means of improving their military strength in

132. Document I11, p 2

133. Document I2, p 7

134. Ibid (also confirmed in Waitangi Tribunal, Te Raupatu o Tauranga Moana, p 29)

the ongoing conflict with Ngaiterangi’.¹³⁵ Mikaere and Ashby state that about that time Ngati Pukenga were ‘participating with Hauraki iwi in raids into Te Arawa territory’, and that Ngati Pukenga were with Ngati Maru at Te Totara Pa when it was sacked by Nga Puhi in 1821 (although there is some evidence to suggest that some Ngati Pukenga were fighting on the same side as Nga Puhi).¹³⁶ Ngati Pukenga are said to have been invited to Hauraki at this time by Te Puhi of Ngati Maru to assist in the conflict with Ngati Paoa (in turn assisted by Nga Puhi).¹³⁷ In 1828, Ngati Pukenga joined Ngati Maru and Ngati Tamatera in the successful attack on the Ngai Te Rangi pa at Te Papa. Mikaere and Ashby assert that ‘the fortunes of Ngati Pukenga were firmly tied to the iwi of Hauraki … a number of them were living with Hauraki at Haowhenua near modern-day Cambridge’. They state that when Marutuahu returned to Hauraki following the battle of Taumatawiwi about 1830, Ngati Pukenga accompanied them.¹³⁸

The origins of the name Manaia are unknown to Mikaere and Ashby, but it is acknowledged that the name is very old and may derive from Hawaiki. They state that Manaia is said to have been a rich resource area as evidenced in the whakatauki ‘Ko Manaia, he pataka kai’ (Manaia the food store).¹³⁹ According to Mikaere and Ashby, Manaia was held by Ngati Huarere (an iwi we have discussed in section 2.2.1) prior to the arrival of Marutuahu in Hauraki. After their victories over Ngati Huarere, Ngati Maru and Ngati Whanaunga divided the Manaia lands between them, with Ngati Maru taking the southern side of the harbour and Ngati Whanaunga the northern.¹⁴⁰ Mikaere and Ashby state that ‘Today, families of Ngati Maru and Ngati Whanaunga descent still hold much of the land on the eastern (or northern) side of the Manaia River’.¹⁴¹

There are two accounts of how land at Manaia came to be a tuku to Ngati Pukenga. The first, by Mikaere and Ashby, ‘tells that the tuku was made as payment for assistance given by Ngati Pukenga in avenging the killing of two Ngati Maru chiefs, Pataua and Te Waha’ at the hands of Tuwharetoa and Ngati Raukawa in two separate skirmishes. In this version, in return for their assistance, Te Tapuru, who was Pataua’s daughter and Te Waha’s sister, ‘is said to have stood [at the celebrations following the victory] and said: ‘E Te Kou! Na te kore kai, engari ma koutou taku whenua i Manaia’ (Te Kou! Because there is no food (here), there can be a place for you at Manaia).¹⁴² Te Kou refers to Te Kou-o-Rehua, a chief of Ngati

135. Document I2, p 7

136. Ibid, p 8; Na Takaanui Tarakawa I Tuhituhi, ‘Nga Mahi a Te Wera me Nga-Puhi Hoki, Ki Te Tai Rawhiti’, Journal of the Polynesian Society, vol 8, no 32 (1899), p 179; Stephenson Percy Smith, ‘The Fall of Te Tumu Pa, Near Maketu, Bay of Plenty’, Journal of the Polynesian Society, vol 32, no 3 (1923), p 127

137. Monin, This is My Place, p 50

138. Document I2, p 9

139. Ibid, p 11

140. Ibid, p 12

141. Ibid, p 13

142. Ibid, pp 15-18. Mikaere and Ashby state (p 18) that there is an alternative view that ‘Te Tapuru gave her interests in the land to Ngati Pukenga out of aroha’: that ‘she felt sorry for Ngati Pukenga’s drifting from place to place’. But this version, they say, ‘was not widely supported at the time it was given’ in 1872.

Pukenga. The second account attributes the tuku to Ngati Pukenga’s support of Ngati Maru in a battle against a northern taua at Port Jackson in 1828. In this affair, Ngati Pukenga assisted Ngati Maru to achieve utu for those killed by Nga Puhi at Te Totara. Ngati Pukenga having successfully ambushed the northern raiders, a Ngati Maru chief, ‘grateful for their help and mindful of the long journey ahead of them said: “kaua e hoki ki Tauranga. Kei Manaia he kainga mo koutou hei noho” [Do not return to Tauranga. At Manaia, there can be a place for you to live.]’¹⁴³

While the majority of Ngati Pukenga accompanied the Hauraki iwi in their return to Hauraki in 1830 (with some returning to Maketu and Tauranga), it was not until some 20 years later (about 1852) that they took up the tuku of the Manaia lands. According to Mikaere and Ashby:

It was Kapakapa of Ngati Maru who called on Ngati Pukenga to take up the tuku and move to Manaia. Taiao was the first of Ngati Pukenga to go there. He was followed by Te Kou O Rehua and many others of Ngati Pukenga. As far as can be determined this occurred sometime around 1852.¹⁴⁴

According to the evidence of Lawson Richards:

Pukenga’s great grandson was Kiorekino. Ngati Kiorekino is the name of my hapu. This hapu is made up of the descendants of Te Kou o Rehua or Rehua. Te Kou received the first tuku of the Manaia lands. He lived and died here. The whakatauki which shows this is ‘Ko Hauturu hei kawhene mo Te Kou’ - that is let Hauturu be the burial place for Te Kou. The Ngati Maru chiefs offered this whakatauki during the discussions about the Manaia lands … Our people have lived in the Manaia Valley since the times of Te Kou.¹⁴⁵

Mikaere and Ashby relate that several disputes arose over the Manaia lands. Two of the Ngati Maru chiefs living at Manaia, Rameka Te Tohirangi (also known as Rameka Te Tapuru) and Te Marau (a nephew of Te Tapuru), gave their interests in the Manaia lands to Te Kou-o-Rehua. The land given to Ngati Pukenga, some 5055 acres, was known as Te Ruahine. It lay on the southern (or western) side of the Manaia River. While Te Tapuru and Rameka had not physically set out the boundary of the land, they had named boundary markers. Some Ngati Maru and Ngati Tamatera argued that only the north-west corner of Te Ruahine had been given to Ngati Pukenga. According to Mikaere and Ashby, the boundaries were named again at a hui ‘in the presence of all the people and the Ngati Maru chiefs’. Te Kou-o-Rehua is said to have tried to return the land to Ngati Maru on his deathbed, but the offer was refused.¹⁴⁶

143. Document I2, p 19

144. Ibid, p 20

145. Document I11, p 2

146. Document I2, pp 22-24

Unlike the situation with regard to the tuku of Harataunga land to the Ngati Porou hapu, we have not heard any issues of claim relating to the tuku of lands at Manaia to Ngati Pukenga. In this case, the details of the tuku are set out here (as they were presented to us) to provide a context for the Ngati Pukenga claims relating to Manaia.

2.2.6 Native Land Court awards and ‘mana whenua’

We note that considerable shifts in the pattern of inter-tribal rights and relationships were occurring both before and after 1840, when the Treaty was signed. These relationships were affected by such factors as the advent of European traders and Christian missions, the Crown’s efforts to establish the pax Britannica, the politics and warfare of the 1860s and Crown and private negotiations for land. Inter-tribal rights and relationships were imprecise and shifting in many parts of Hauraki even as the Native Land Court began to hear applications for ‘title’ and ‘ownership’ of land after 1865. We shall return in due course to the procedures of the Native Land Court, but it should perhaps be noted here that in some cases at least the court recognised land rights as they had evolved after 1840. In other words, its awards were not simply a ‘snapshot’ of rights as they stood in 1840.

It was clearly no easy task to disentangle the land rights of the intermingled iwi and hapu, before or after 1840. Dr Ballara uses the evidence of Hauraki minute books to show that:

The lands of a major hapu were, typically, far from being one continuous territory. Cultivations for crops were only a small part of the total resources which might be used by any one hapu, and the areas they made use of might be widely separated and interspersed by the rights of other hapu. For example, about 1800, Ngati Naunau (or Ngaungau), a major hapu of Ngati Maru (often described as a tribe in the land court), lived and cultivated sometimes at Poihakena (Port Jackson) at the northern end of the Coromandel peninsula, sometimes at Tangiaro near Umangawha (Colville Bay) where they had a pa called Motukahakaha, and sometimes at Te Mata near Manaia, south of the Coromandel Harbour; part of Ngati Naunau had claims as far south as Te Puru and Taruru, a short distance north of Thames. They lived on Great Barrier Island for periods until threatened by Nga Puhi in the early 19th century; they went there at the season for catching tawatawa (mackerel). In between their settlements, cultivations and resource areas were those of the myriad of small and large hapu, some of Ngati Maru iwi, some of Ngati Tamatera, and others the surviving groups of earlier tangata whenua such as Ngati Mahanga and Ngati Huarere. By the 18th century, through generations of intermarriage, these interspersed hapu had lines of descent from all of these iwi sources.¹⁴⁷

147. Ballara, pp 197-198

In virtually all of Maori society, the rights of hapu and iwi were dispersed in this way, within the area under the general control of the groups concerned. Rights were probably more than usually dispersed and intermingled in Hauraki, a relatively small area still being settled and fought over by many hapu as British settlers and officials began to penetrate the district. While certain natural features such as ridges, streams and prominent rock features were accepted by adjacent groups as boundary markers between them - perhaps alter negotiation following a period of conflict - the concept of a continuous circumference neatly bounding all the land rights of a group and separating them from those of adjacent (and related) groups was virtually unknown before contact. Thus, we consider claims to ‘exclusive possession’, pre-1840, by particular hapu over wide areas, made before this Tribunal on several occasions, to be problematic. Rather, we consider that the creation of such boundaries was driven by the process of post-1840 land transactions or the determination of ownership of distinct ‘blocks’ by the Native Land Court.

Moreover, virtually all spokespersons for the various claimant groups told us that the various iwi and hapu in Hauraki were closely intermarried. Individuals commonly identified with more than one hapu, and in many parts of Hauraki it would not have been easy to distinguish one hapu sharply from another or clearly define the relationship between them, especially after the tumultuous events following the Nga Puhi incursions. Again Dr Ballara has cited a Hauraki example to show that communities comprising sections of two or more hapu commonly came together under the mana of a particular rangatira, and held together for a greater or lesser period of time: in this case, such a community had formed from two Marutuahu hapu about the late eighteenth century but did not stay together after the return from Waikato in 1830.¹⁴⁸ It is also clear from land court evidence that much land was ‘whenua tautohetohe’: it was being struggled over between various groups, and it was by no means always clear which party was dominant at the time of Native Land Court decisions. Moreover, some groups which some Marutuahu iwi had claimed were subordinate or ‘rahi’ to them had maintained rights to some land independently, and had, moreover, become resurgent in times of greater security before 1840. We note that they were recognised by the Native Land Court as ‘owners’ of land, in terms of the Native Lands Act 1862 and its successors.

Land court judges worked under policy and legislative imperatives which required them to identify groups which seemed under custom to have the dominant customary interests in a given area of land and declare them to be the owners of that land. This inevitably led to oversimplification of complex intersecting rights. Dr Ballara’s research into many Hauraki minute books has shown how the court process reinforced the tendency of nineteenth-century officials to define iwi as clearly demarcated ‘nations’, with judges becoming impatient or incredulous when Maori witnesses described the intricacies of the lived reality.

148. Ballara, p 207

The tendency is illustrated in the Te Aroha block of over 62,000 acres straddling the Waihou River. In 1869, the court first awarded the block to Ngati Haua alone, on the basis of their victory at Taumatawiwi. Ngati Rahiri (Ngati Tumutumu) - who had ancestral rights in the block before the Nga Puhi incursions, and had probably left kaitĺaki there during those incursions and in any case returned soon after Taumatawiwi - appealed the 1869 decision. Following a rehearing in 1871, the block was awarded to ‘the Marutuahu tribes’ (not Ngati Rahiri alone).¹⁴⁹ Crown and private land purchase agents found that in practice they had to recognise the claims of many Marutuahu groups in physical occupation and control of Te Aroha, and in 1877 the Native Affairs Committee of Parliament, in response to a Ngati Rahiri petition, stated that the subject ‘involves questions of Native title to land of a character much more intricate than appears on the surface’, and referred the matter back to the land court. The court in 1878 effectively upheld the 1871 decision. The judges noted that, at a meeting at Pukerahui, Ngati Paoa, Ngati Tamatera, Ngati Whanaunga, and Ngati Maru had all confirmed the sale of their interests to the Crown. Ngati Rahiri leaders had objected on the basis that the other Marutuahu tribes should not have taken part in the sale, but some Ngati Rahiri leaders had already taken money from the Crown agents on the basis of the Pukerahui agreement. Ngati Rahiri argued that they:

were the original possessors of a portion of this land, and were afterwards placed there by Marutuahu to guard it against Ngati Haua. They would not have held it unsupported by the confederation; in fact after the battle of Taumatawiwi they lived at Turua and returned to live on the Aroha after the land was awarded to Marutuahu.¹⁵⁰

The court then awarded 7500 acres of the block, at Omahu, to Ngati Rahiri. By this time, of course, the arrangements reflected not only the court’s interpretation of complex customary rights but transactions which had been in progress for some years.

Writing of this complicated story, Dr Ballara states:

Judges Frederick Maning and Henry AH Monro, for example, when summing up the Te Aroha case in 1871 [the first rehearing], decided that:

The question at issue … is, in fact, not between individuals, but between the great Marutuahu and Waikato tribes, of which parties the sectional tribes, Ngati Maru and Ngatu Tumutumu, of the Marutuahu confederation, and the Ngati Haua, of Waikato, seem to be the most particularly interested.

By this prescription the issue of 200,000 acres at Te Aroha was thus to be decided on the basis of a version of the relations between the peoples living all around the Hauraki Gulf as far as Tamaki, on the whole Coromandel Peninsula, and inland in the Thames region at least as far as Te Aroha on the one hand, and, on the other, the many peoples living from

149. Hauraki minute book 4, fols 257-258; Native Land Court, Important Judgments, pp 132-133

150. Hauraki minute book 11, fol 13

Mangere and Manukau, up the 100-mile long Waikato River as far as the districts of Mokau and Taupo. In the event the issue came down to whose pigs were running on the banks of the Waihou, and which individuals out of two or three small hapu had the right to catch eels in a couple of streams on the block. But the mind-set was there. The format of evidence suggests that witnesses were usually asked to identify the ‘large tribe’ to which the descent groups they were discussing belonged. Failure to do so, perhaps because the hapu in question belonged genealogically to more than one iwi, or had split in sections living in diĺferent communities and localities, damaged their credibility.¹⁵¹

The judges were looking for groups to set up an ancestor with rights to a block whose descendants had retained occupation and control (or at least control) over the land, the more exclusively the better. This tendency married well with the competitive side of Maori culture, stimulating the pursuit of mana, and eventually the expanding concept of ‘mana whenua’. This has come to mean something like ‘exclusive ownership or control’ in common law terms (but with other groups possibly having permissive or subsidiary rights). This tendency overlooks the flux of hapu formation and re-formation, the effects of peacemaking, marriage alliances, and gifts, and, we note, the consequent layering of different kinds of rights in the same land.

This is a tendency which continues to this day. The problem is evident even in submissions to this Tribunal. Bassett and Kay, discussing the intermarriages and tuku of land between Ngati Tara, Ngati Tokanui, Ngati Hako, and Ngati Tamatera, state appropriately:

As a result of such gifts, intermarriage, and whanaungatanga relationships, land occupation patterns cannot be strictly demarcated. Different whanau or hapu became interspersed, and whakapapa links meant that people of one hapu also had rights of some description [such as pockets of settlement] to areas of land more usually identified with other hapu.¹⁵²

On the other hand, they also observe (apparently approvingly) that the Ngati Tara chief Te Keepa stated in the Rotokohu case ‘that Ngati Tara and Ngati Tokanui had always lived together, but pointed out that “N Tara have no right to N Tokanui lands’”.¹⁵³ As Ballara, Bassett and Kay, and others have pointed out, occupation alone is not of itself evidence of full ownership and control over land. Occupation rights may have come (for example) from a tuku granted when a political alliance and marriage tie was forged, with the donor chiefs still claiming overall authority over the land. This was what Te Keepa meant perhaps when he said that Ngati Tara had ‘no right’ to Ngati Tokanui lands. But of course Ngati Tara’s occupation did give them some kind of right, a right which strengthened over time, as they planted and harvested crops, as their children were born on the land and their dead buried

151. Ballara, pp 89-90

152. Document R7, p 36

153. Ibid, p 25

in it, and as generations of intermarriage blurred the distinction between Ngati Tokanui and Ngati Tara. The sharpness of division between the two groups arose again in the land court because they were contending for ‘ownership’, and had to recall the origins of various rights.

In some cases, the court process resulted in the representatives of more than one hapu being included in the ownership lists of a block. In others, the court would aggregate the scattered interests of a hapu in one subdivision (to which they were given exclusive rights) and those of another, previously intermingled hapu, in an adjacent subdivision. Which group did best out of this process no doubt depended upon the force and skill of the advocates of the various parties, and the weight which the judges accorded to various take, each of which possibly had some validity.

Where judges did struggle to determine the nuances of Maori culture, their decisions sometimes attempted finely drawn interpretations of complex evidence. Among other published Hauraki decisions, for example, in 1870 Judge Monro found in favour of Ngati Tara against Ngati Tamatera in respect of the Owharoa block. He wrote that ‘Through a cloud of evidence, a vast deal of it irrelevant, and most of the rest of it absolutely contradictory, the Court clearly sees these facts’. Ngati Tara had conquered Owharoa from Nga Marama and had since retained occupation of it. While counsel for Ngati Tamatera had shown ‘some degree of subordination’ of Ngati Tara to Ngati Tamatera, it was far short of absolute serfdom’, and that even if Ngati Tara had become the ‘rahi’ of Ngati Tamatera (having secured the assistance of the latter against Nga Marama), that did not warrant the ‘disherison’ of Ngati Tara of their original lands and the vesting of them in the chiefs of the dominant tribe.¹⁵⁴ A few months later, Monro awarded the Waihi block to Ngati Tamatera against Ngati Tara claimants. In this case, Monro found that, although Ngati Tara had conquered the area from Nga Marama, that tribe had then defeated Ngati Tara and recovered possession of the land. The real and lasting conquest of Nga Marama at Waihi was subsequently achieved by Ngati Tamatera, not by Ngati Tara. Ngati Tara had occupied certain cultivations on the land, under the protection of Ngati Tamatera (including some post-1865 occupation), and the court awarded them those 15 acres.¹⁵⁵ Bassett and Kay have cited an 1893 comment by the Ngati Tamatera leader, Tareranui that his elders had been defeated in the Owharoa case because they were unfamiliar with how to conduct a claim, but ‘had become wiser & defeated Ngati Koe [Ngati Koi/Ngati Tara]’ in the Waihi case six months later.¹⁵⁶ Clearly, Ngati Tamatera claimants were learning to present their evidence in such as way as to win the judges’ nod in a ‘winner takes all’ situation.

We have quoted these examples at some length both to show the complexity of land rights in the Hauraki district and to caution claimant witnesses today against equating

154. Fenton, p 97

155. Fenton, pp 99-100

156. Document R7, p 63

the outcome of land court processes as full expressions of customary rights and relationships. For example, evidence submitted to us by Mr McBurney on behalf of the whanau of Hamiora Mangakahia shows that, although the chief Ruamano and Ngati Pare hapu of Ngati Huarere were defeated by Marutuahu at Whangapoua they were not all killed by the conquerors, and ‘consolidated their occupancy’ through intermarriage with them. Some four generations later, a descendant of Ruamano, Mira, had become a prominent man at Whangapoua, and Te Mangapai of Ngati Maru and Ngati Tamatera, who was still engaged in conquests on the east coast of Coromandel Peninsula, married his daughter to Mira. Mr McBurney states:

This suggests an alliance, rather than subjugation into vassaldom. Indeed in the Native Land Court, witnesses from both Ngati Hei and Patukirikiri supported Mohi and Hamiora Mangakahia, and they acknowledged Mira as the key ancestor. At the Opitonui hearing some groups claimed the land through Te Mangapai, and others through ancestors affiliated to Ngati Maru. Despite their own connection to Te Mangapai, Mohi and Hamiora Mangakahia demonstrated an unbroken sequence of ancestry and occupation at Whangapoua deriving from their Huarere lineage, which set them apart from other claimants and confirmed their mana whenua over Whangapoua. [Emphasis added.]¹⁵⁷

Such statements are problematic, as indeed is the whole trend in the Treaty claims process to generate a stream of ‘mana whenua reports’, each written to emphasise the claims of a particular iwi, hapu or whanau, and (if only by omission) to diminish the claims of others. Any Maori can of course trace descent from a number of ancestral lines - the lines of four grandparents and beyond. In various social and political situations, including claims to land rights, it is appropriate to emphasise one or more of these. Unbroken occupancy of particular lands can also be demonstrated, though how much Hauraki land remained in unbroken occupancy during the Nga Puhi incursions is doubtful. What we are less comfortable with is the competition to claim ‘mana whenua’ and the use of the judgments of the colonial courts to confirm’ it. As previously mentioned, the term ‘mana whenua’ appears to have gained expanded currency as a result of the land court’s pursuit of finite groups of ‘owners’ of land. Maori found themselves in an adversarial environment and began to select evidence with a view to winning the court’s awards. Eventually, land around Whangapoua (as elsewhere) was awarded as a series of surveyed subdivisions of blocks to various clusters of people, who were closely inter-related but chose to emphasise one aspect or other of their lineage and history. This system tended to yield owners’ and ‘non-owners’ in situations where, as we have noted, rights were often complex and multi-layered. Whatever the merits or demerits of this system it is scarcely appropriate in our view, to in effect reverse the

157. Document L12, pp 14-15. McBurney provides the relevant whakapapa and states the whole situation at greater length in his mana whenua report.

land court process, and read court awards backwards (so to speak) as proof or confirmation of the late nineteenth century stretched interpretation of the customary concept of ‘mana whenua’.

Some claimant submissions have taken the other tack and used the evidence of the land court minute books to argue that the court’s final decision was inconsistent with that evidence - that it should have awarded certain land to their tupuna or in the name of a hapu other than that favoured in the court’s judgment. This is an implicit invitation to the Tribunal to review the decisions of the court.¹⁵⁸ But it is hardly feasible now to review the findings of the court in particular cases. Although the Native Land Court may well have erred in some cases in its effort to find the dominant owners of particular lands, it also wrestled with a great deal of evidence given by the very people who had lived on and fought over the land, evidence much more voluminous and immediate than is available to the Tribunal today. Consequently, while the Tribunal will comment on Native Land Court processes, it is not in a position to review the decisions of the court in relation to the particular claims of one hapu or iwi as against another. We might wonder at the confident way in which Native Land Court judges sifted the evidence and came up with their precise judgments. We might note and criticise the tendencies of some judges on some occasions to recognise occupation of the land at the expense of the ancestral claimants who had placed the occupiers on the land in the first place, and vice versa. We will also have occasion to observe that there were numerous occasions on which the judges did not feel so confident about the correct balance between competing claims of right and sent the contending parties outside the court to come to an agreement - commonly a sharing of the land - which the court would then ratify. No doubt this often resulted in rough justice, and to awards which some groups to this day feel were unfair. But no minutes of evidence were kept of out-of-court discussions, nor has the surviving evidence of proceedings in court been canvassed so exhaustively and dispassionately as to permit a review of particular decisions.

2.3 Population Numbers

We turn to a brief consideration of the total numbers of Maori in Hauraki in the period we have been discussing, and the relative numerical strengths of the various iwi and hapu. Hauraki archaeologist Caroline Phillips estimates that there were some 5500 people in 1770 and about 6500 in 1800 in the region, including Tamaki and the Mahurangi coast.¹⁵⁹ The introduction of the white potato fostered larger village communities but newly introduced

158. Document M6, pp 1-3

159. Caroline Phillips, Waihou Journeys: The Archaeology 0/400 years of Maori Settlement (Auckland: Auckland University Press, 2000) fig 5.12, p 102

Figure 5: Maori settlements recorded by European visitors pre-1840. Source: document A7.

diseases were also having their impact. Venereal diseases, dysentery, and ‘rewharewha’ (a respiratory disease) were evident from the 1790s. Early population estimates are necessarily largely conjectural, yet European ships staying for lengthy periods to collect timber from the Waihou found concentrations of several hundreds of people.¹⁶⁰ The spectacular growth of the Ngati Paoa complex of villages at Mokoia-Mauinaina on the Tamaki Peninsular between 1815 and 1820 - in one estimate, 4000 people lived there in apparent security rather than being scattered in villages on the Whakatiwai coast - suggests a burgeoning population, living well on potato cultivation and pigs as well as traditional foods. But in tribal fighting in 1821 Mokoia-Mauinaina was destroyed, the people killed or dispersed.¹⁶¹ The Ngati Maru pa Te Totara was also destroyed with much loss of local population. The Marutuahu iwi and their allies were involved in many wars outside Hauraki in the ‘musket war’ period - in Taupo and Whanganui and along the Bay of Plenty and east coasts - all of which must have contributed to attrition, directly or indirectly.

Missionary records and one official’s estimate in 1846-47 suggest a likely population of around 4000 in Hauraki in the early 1840s.¹⁶² By the time British officials began attempting formal censuses, Maori numbers had declined drastically, though by how much depends upon much-debated estimates of the population at 1769. New epidemic diseases continued to take a heavy toll. F D Fenton’s 1858 official census of the Maori population gives only 2279 for Hauraki, though the resident missionary James Preece considered that many significant local areas had been left out.¹⁶³

Further population decline is evident in the more careful official censuses after in the wars of the 1860s: 1860 persons in 1870, 1664 in 1874, 1451 in 1878, and 1582 in 1881. Although the methods of taking these early censuses were idiosyncratic, and they cannot be relied upon for precise numbers, they give some idea of the relative sizes of the total Hauraki population we are discussing.

As far as relative tribal strength is concerned, the shifting categorisation of various groups as separate ‘tribes’, ‘sub-tribes’ or ‘hapu’ of larger ‘tribes’ was clearly a subjective matter, no doubt reflecting the census-taker’s perceptions and perhaps the contemporary, politicised claims of the groups concerned. Such categorisations are not precise guides to the identity of Maori social groups or the relations between them. Nevertheless, taken overall the four censuses broadly show the relative size of the groups concerned, the very small numbers in

160. Monin, This Is My Place, p 32

161. Ibid, pp 49-52, 57-61

162. R Maunsell, letters, 25 October 1846, CMS Archives CN/064, ATL; ‘Returns of the Native Population’, GBPP, 1846-47, p 47 (Monin, This Is My Place, p 166)

163. Preece, report, AJHR, 1862, E-7, p 15 (Monin, This Is My Place, p 165). The demographer Professor Ian Pool considers that many Maori had moved from Hauraki to the Waikato at the time of Fenton’s census: Pool, Te Iwi Maori: A New Zealand Population Past, Present and Future (Auckland, Auckland University Press, 1991), p 51. But there is stronger historical evidence that many Hauraki Maori had moved into the coastal areas of their own rohe for trade and timber cutting in the 1850s.

some of them, the persistence (or re-emergence) of certain group identities, and the disappearance of others from official view.

In 1870, much the largest of the Marutuahu tribes were - in the following order - Ngati Paoa (600), Ngati Tamatera (450), Ngati Maru (310), and Ngati Whanaunga (165). But in that census Ngati Paoa was deemed to include Ngai Tai and Te Patukirikiri, Ngati Tamatera included Ngati Hei, Ngati Koi, and Te Whakatohea, and Ngati Maru included Ngati Rahiri and Ngati Pu. Te Tawera/Ngati Pukenga at Manaia (85) were listed separately, as were Ngati Porou at Harataunga (250). The later censuses varied these figures considerably. In 1874, Ngati Tamatera were deemed to include only 196 people. Patukirikiri (nine) were still included, but Ngati Hei were listed separately and Ngati Koi and Te Whakatohea were listed with other iwi. Ngati Maru had ‘increased’ to 409, still including Ngati Pu (36) but now also including Te Whakatohea (22). Te Whakatohea and Ngati Koi were also listed as hapu of Ngati ‘Hoko’ (Hako), numbered at 210.

The censuses continued in 1878 and 1881 with significant variations, the inclusion of ‘new’ hapu divisions each time together with the submergence or disappearance of others. In these censuses, of the pre-Marutuahu tribes Ngati Hako and Ngati Koi were the most numerous, while Ngati Hei and Patukirikiri were quite small. Of the two groups which had established themselves after 1840 - Ngati Pukenga and Ngati Porou - the former had remained relatively stable, while the latter had burgeoned, particularly after its Native Land Court award. Further census data and the modern socio-demographic profile of Hauraki Maori are discussed in sections 25.1.1 and 25.1.2.

2.4 Hapu, Whanau, and Iwi Interrelationships

Land court evidence has commonly been used selectively by claimant groups in these proceedings to advance their particular positions. Given the comprehensive evidence about the complexity of inter-tribal relationships in Hauraki, we have some concern about the renewed emphasis on the small group identity, based on land court records. Some groups have even claimed under names that have been found in the records of the Native Land Court and possibly not anywhere else, or at least not in living memory. For example, the hapu name Ngati Raukatauri was revived in respect of the Matamata-harakeke block.¹⁶⁴ Ngati Hikairo are another example. Shane Ashby, speaking for the Wai 661 claimants, told us he had not heard the name previously, nor had his mother or the koroua and kuia in the valley. The name had been found in Native Land Court evidence. Ashby recounted that Hikairo was a Ngati Maru chief said to have led the conquest of Pakirarahi and Wharekawa

164. Documents A35, M4, M5

West.¹⁶⁵ A somewhat different approach was taken by the Wai 705 claimants - the whanau of Peneamene Tanui of Whitianga. Te Rapupo claimed some 28,000 acres in the land court under this name. The land was subsequently purchased by the Crown. The claimants frankly state:

This hapu [Te Rapupo] can be said to no longer exist in that it is a name that has come into dis-use…. The name Te Rapupo came about from a connection with the iwi Ngati Whanaunga and Ngati Piri [from the Kawhia area], and indeed Maori at Whitianga included in these blocks identified also as being Ngati Piri [and] Ngati Whanaunga along with Ngati Paoa and Ngati Koheru … Ngati Piri and Ngati Hei came, conquered, then intermarried to settle in the region. Te Rapupo then could identify with the ancestor Piri, but intermarriage later (Te Hinaki’s to Te Wawa) made for Paoa and Whanaunga identification too.

The Tribunal is asked to bear in mind this fluid history of intertribal marriage and settlement when considering the way in which the tangata whenua witnesses identify themselves as Ngati Hei rather than from the hapu Te Rapupo.¹⁶⁶

While old hapu names have been recovered from the records of the Native Land Court it is perhaps problematic whether they should be retained for future use, rather than allowed to fade in the normal customary process by which small hapu flourished at one time but then merged with larger hapu or iwi with whom they had intermarried, or through other political or social circumstances.

Many of the hapu and whanau claims refer to specific blocks awarded by the land court. We note that subsequent alienation histories of these blocks are the local application of grievances already adduced by the HMTB and the Wai 100 claim. The Tribunal is concerned at the time and expense involved in the duplication of research and additional hearings. However, experiences particular to the various claimant groups do require specific discussion in this report. Moreover, we recognise that a large part of the purpose of the Treaty of Waitangi Act is to enable Maori to express their felt grievances fully and freely, and that this sometimes means that they will be expressed by smaller groups as well as through overarching representative bodies.

Many of the claimants have emphasised the centrality of whakapapa in Maori culture, in respect of the extent and limits of rights to land, among other things. As Colt Gregory expressed it for the Wai 177 claimants, ‘The focus should be on the tupuna, and under them the whanau, the hapu and then the iwi’.¹⁶⁷ Kevin Murray, another Wai 177 claimant, has stated:

165. Document I35, pp 2-3; see also doc H3, pt 2. A few individuals of Manaia and Thames identified themselves as Ngati Hikairo, as a hapu of Ngati Maru, in the 1908 and 1919 electoral rolls for Western Maori.

166. Document S29, p 1

167. Document R28, p 4

The hapu representatives come from whanau. But the problem in Thames with Ngati Maru and Ngati Whanaunga is that a multitude of us belong to a multitude of hapu. It should really come back to tangata whenua and their relationship to the whenua. Where you have rights in the whenua you should get together to set up a forum to look after it.

However, we consider that Mr Murray overstates his case in saying, ‘I believe that “iwi” is a Pakeha concept.’¹⁶⁸ So too does counsel for the Wai 177 claimants when he stated:

the concept of ‘iwi’ or other bodies such as Trust Boards claiming land contradicts the rights of whanau and hapu. The whanau claims these lands directly through whakapapa, and acknowledges that the claim can incorporate any who can also whakapapa into the same piece of land.¹⁶⁹

We see no basis whatever for suggesting that ‘iwi’ is a Pakeha concept. The functions and definitions of iwi have certainly evolved since European contact but traditionally the concept referred to groupings of related ‘hapu’ and ‘whanau’ with common descent from an early ancestor. Nor do we concur with claimant counsel’s view that iwi-based organisations such as trust boards ‘contradict’ the rights of whanau and hapu. The claimants’ own evidence and counsel’s own submissions make it quite clear that all levels of Maori society, including new organisations such as trust boards, are mutually supportive. Whakapapa are no doubt central to this task now as they were traditionally, when Maori communities also had to collaborate at iwi or multi-iwi level to deal with the exigencies which faced them.

For the above reasons, we consider that the various hapu and whanau claims should be included in a single comprehensive negotiation and settlement for the inquiry district. We have considerable sympathy with the difficulties Maori communities face in trying to create the structures and mechanisms which link whanau and hapu in wider tribal structures needed to deal with many modern challenges. Claimants’ comments about the expense of face-to-face meetings remind us of the importance to Maori of access to modern communications technology for dealing with modern exigencies. We would emphasise, however, that there is an evident need to ensure that proper delegations of authority are achieved, and periodically reviewed, to ensure that (on the one hand) overarching tribal organisations are adequately empowered to act on behalf of the wider community without undue fear of capricious withdrawals of mandate, and (on the other hand) that adequate mechanisms are in place to ensure regular accountability of the tribal authority to its constituent groups.

168. Document R29, p 7

169. Document R21, p 9

PART II
LAND ISSUES FROM TREATY TO WAR

PROLOGUE

We note that, in the early nineteenth century, the British Government was reluctant to take formal responsibility for New Zealand.¹ The appointment of James Busby as British Resident was an attempt to continue recognising Maori autonomy and avoiding the extension of British sovereignty. By 1837, however, Busby’s presence and policies were deemed to be inadequate because of continued tribal fighting, because of the persistence of informal colonisation from New South Wales and because the New Zealand Association was planning organised colonisation from England. Lord Glenelg, the Secretary of State for the Colonies, concluded in December 1837 that, with colonisation ‘to no small extent’ already under way, ‘The only question therefore is between a colonization, desultory, without law, and fatal to the natives, and a colonization organized and salutary [sic]’.² This decision led to the appointment of Lieutenant-Governor designate William Hobson, with instructions from Normanby to negotiate with Maori for the cession of sovereignty and to assert it in any case over the South Island by right of discovery.³

The Crown’s overall strategy was based on the assumption that European colonisation of New Zealand was irreversible. This is fundamental to an understanding of all that followed. By intervening, negotiating the Treaty, and asserting British sovereignty over New Zealand, the Crown had assumed the responsibility of ensuring land was available for that colonisation. Subject to that obligation, Maori were to be offered protection from the rapacity of unregulated colonisation, inclusion in the new jural order and participation in the new social and economic regime.

Lord John Russell’s instructions to Hobson in December 1840 clearly show that it was assumed in London that the settlers in New Zealand would eventually be granted self-government, as in the settler colonies of Ontario and Quebec at this time. The transfer of Government functions to ministries chosen from elected parliaments became an axiomatic policy for the Australian colonies and New Zealand.⁴

1. Edwin Tapp, Early New Zealand. A Dependency of New South Wales, 1788-1841 (Melbourne: Melbourne University Press, 1958); Claudia Orange, The Treaty of Waitangi (Wellington: Allen and Unwin, 1987), pp 6-18

2. Glenelg to Durham, 29 December 1837, CO209/2:423-32 (Peter Adams, Fatal Necessity (Auckland: Auckland University Press, 1977), pp 103-104)

3. Adams, pp 103-171; Orange, pp 19-31

4. For a discussion of the framing of New Zealand Constitution Acts of 1846 and 1852, and of the Maori franchise, see William Renwick, ‘Self-government and Protection: A Study of Stephen’s Two Cardinal Points of Policy in their Bearing upon Constitutional Development in New Zealand in the Years 1837-1867’, MA thesis, Victoria University of Wellington, 1961. It should also be recalled that Durham (whose 1840 requests underlay the granting of self-government to Ontario and Quebec) was patron of the New Zealand Association.

The 1839 instructions of the Secretary of State for the Colonies, Lord Normanby, to Hobson have been quoted frequently in claims before the Waitangi Tribunal, usually with emphasis on the protection to be extended to Maori and their lands. However, we believe that a fuller consideration of the instructions reveals contradictions within Crown policy - possibly inescapable contradictions - which explain why the protections proposed for Maori were often not applied, or applied only weakly. We also believe that closer attention should be paid to the royal instructions which superseded those of Normanby.

Protection of Maori was to be achieved partly by the Crown’s assumption of the ‘preemptive’ right (in fact, monopoly right) to purchase Maori land. Hobson’s instructions therefore required the issue of a proclamation that land purchases from Maori would be valid only if derived from or confirmed by the Crown, that commissioners would be appointed to investigate previous transactions, and that any further private transactions purporting to transfer interests in land would be null and void. This proclamation was issued by Governor Gipps in Sydney on 14 January 1840 and repeated by Hobson in the Bay of Islands on 30 January 1840. Normanby further instructed Hobson that, having negotiated a cession of sovereignty, he was to acquire ‘by fair and equal contracts with the natives, the cession to the Crown of such waste [uncultivated] lands as may be progressively required for the occupation of settlers resorting to New Zealand’. But the Maori owners were not to be allowed ‘to enter into any contracts in which they might be the ignorant and unintentional authors of injuries to themselves’, nor was the Crown to purchase from them ‘any territory, the retention of which by them would be essential, or highly conducive, to their own comfort, safety or subsistence’. These instructions have been regarded by claimants and by the Tribunal as a benchmark of the Crown’s protective intentions towards Maori, a context in which the Treaty itself should be read, and a measure of the Crown’s subsequent performance. Indeed, it may be presumed that Crown counsel’s concession in these proceedings that the Crown purchased Maori land excessively in Hauraki also derives substantially from them.

There was, however, another purpose behind the introduction of Crown pre-emption. Administration of the colony and further land purchases had to be paid for. The resale of the first lands acquired by the Crown, Normanby continued, ‘will provide the funds necessary for future acquisitions’:

I thus assume that the price to be paid to the natives by the local government will bear an exceedingly small proportion to the price for which the land will be re-sold by the Government to the settlers. Nor is there any real injustice in this inequality. To the natives or their chiefs much of the land of the country is of no actual use and, in their hands, it possesses scarcely any exchangeable value. Much of it must long remain useless, even in the hands of the British Government also, but its value in exchange will be first created, then