THE
HAURAKI REPORT
VOLUME II

WAITANGI TRIBUNAL REPORT 2006

THE
HAURAKI REPORT

THE
HAURAKI REPORT
VOLUME II

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

CHAPTER 10
THE OHINEMURI COLDFIELD

10.1 Ohinemuri Closed to Mining

10.1.1 The aukati at Omahu Stream

The southern boundary of the Thames goldfield was fixed at the Omahu Stream (north of Hikutaia) in 1868. As described at section 9.3.4, James Mackay found that south of this stream he encountered serious opposition to mining expressed by Herewini Te Rangai of Ngati Pu, a hapu of Ngati Rongo-u and Ngati Maru. At least for the time being, Mackay and the Government were obliged to acquiesce in the Kingitanga aukati, which included Ohinemuri. The opening of Thames contrasts with that of Ohinemuri, in that in the latter the Crown pursued the freehold of the land as much as a mining agreement. Treaty issues arise in relation to both goals.

The leading figure in the aukati was Te Hira Te Tuiri of Te Matewaru hapu of Ngati Tamatera, a Kingitanga supporter from at least 1862 (see sec 5.3.1). Te Hira remained at Ohinemuri during the war; he was not particularly belligerent but staunch in his desire for Maori to retain significant areas of land, and autonomy within them from the Crown. Among Te Hira’s most important supporters was Tukukino, rangatira of Te Kiriwera hapu of Ngati Tamatera¹, who in the post-war years during which Ohinemuri remained closed to mining, repeatedly declared his willingness to fight in defence of the land.

The Ohinemuri district was a stronghold for supporters of the Kingitanga before gold- mining became an issue. A political boundary or aukati would probably have been established around it even if there had been no gold. The upper Thames had already provided a refuge for Maori displaced by the Waikato and Bay of Plenty confiscations. Ngati Porou of Mataora also came in from the coast when threatened by fighting around Tauranga in early 1867.

In the immediate post-war years, the Ohinemuri region remained unsettled, affected by the rise of the Pai Marire movement and Te Kooti’s links to the area. In April 1867, Te Hira received a party of Pai Marire delegates from Waikato, which tried but failed to persuade

1. Document A10, pt 2, pp 204–206

Figure 45: Sketch map of Ohinemuri, published by the Daily Southern Cross and Weekly News Company, 1875

Ngati Maru of Kopu and Puriri to meet Te Hira.² The discussions Te Hira held with these delegates were not open to Europeans or ‘friendly’ Maori. Following them, he banned Government officials and declared his land a refuge for offenders against the law.

Mackay was trying to draw people out of Ohinemuri. At Opukeko, up the Waihou near Te Hira’s setdement, he invited Taraia and Te Hira to meet with him. On 5 April 1867, in Taraia’s presence, Mackay said that if the Waikato refugees left Hauraki to fight, they should not be allowed to return ‘for he would not allow Hauraki to be the gathering place for the disaffected’.³ Between the Kingitanga and ‘friendly’ camps lay a buffer zone between the Hikutaia Stream and the Omahu Stream, where customary rights were contested.

Early in 1868, King Tawhiao held a great meeting at Tokangamutu (Te Kuiti) attended by Te Hira and Tukukino with 500 supporters; they ‘placed’ the gold in their lands into the hands of the King. King Tawhiao reiterated his disapproval of land sales and leasing and proscribed the mining of gold. Te Hira returned home fortified by Tawhiao’s support, and in mid-April 1868, as Mackay was finalising the goldfield proclamation of that month, Te Hira proposed that Te Munu, one of the King’s councillors, should be the guardian of the boundary of the goldfield at Omahu.

2. John Lincoln Hutton, ‘Troublesome Specimens: A Study of the Relationships between the Crown and the Tangata Whenua of Hauraki, 1863–1869’, ma thesis, University of Auckland, 1995, p 224; Hauraki minute book 8, p 58 (Paul Monin, This Is My Place: Hauraki Contested, 1769–1875 (Wellington: Bridget Williams Books, 2001) p 212)

3. Daily Southern Cross, 16 April 1867 (Hutton, p 220)

In 1869, Mackay reported that he went to Ohinemuri in April 1868 to endeavour ‘to prevent the Hauhau Natives from handing their lands and those of the friendly Natives over to the so-called Maori King’. He had little success. Although some Ohinemuri Maori were displeased with Te Hira for acting without their permission, with the backing of the King he had sufficient mana to effect the aukati. Mackay persuaded the Kingitanga followers to agree that the Queen’s police would be allowed across the aukati to remove any trespassing gold prospectors.

10.1.2 A house divided

By March 1868, the aukati established, Ohinemuri had become a ‘locked up box’ as far as gold mining was concerned.⁴ Yet, as was pointed out by Dr Battersby, it was remarkable that it remained so long closed, given that serious differences about allowing mining had arisen among Ohinemuri Maori by 1869. Ohinemuri remained closed to mining until March 1875.

On 16 October 1867, provincial superintendant Williamson visited Thames where, advised by Mackay, Williamson counselled miners not to rush Ohinemuri by force.⁵ Armed conflict between miners and Maori remained a threat: in late 1868 and in 1869 tensions ran especially high because of the presence of unemployed itinerant miners and the nearby military campaigns against Hakaraia of Waitaha and Te Kooti.⁶

In September, Mackay urged the Native Minister to pass legislation imposing stiff fines or imprisonment on anyone mining on Maori land without the permission of the owners, in order:

to prevent the Colony being plunged into a frightful war of extermination. It has been argued by some persons that the best plan to settle the Native difficulty would be to allow the miners to rush the upper Thames Country. An unarmed undisciplined body of men would speedily be driven back by the Natives, and murderous onslaughts would be made which would effectively prevent mining operations being carried on, and destroy the confidence of capitalists who are now beginning to visit the country and assist in the development of the resources of the field.⁷

Mackay’s urging contributed to sections 5 and 6 of the Gold Fields Act Amendment Act 1868, which banned prospecting on Maori customary land without a prospector’s licence,

4. James Mackay, Translation in English: Address of Mackay to Ngati Maru (Thames: WM McCullough General Printer, 25 May 1896) (doc B11(a), p 30)

5. James Mackay, ‘Report by Mr Commissioner Mackay Relative to the Thames Gold Fields’, 27 July 1869, AJHR, 1869, A-17, p 7

6. Some Ngati Porou from Harataunga were involved in these wars: see Judith Binney, Redemption Songs: A Life of Te Kooti-Arikirangi Te Turuki (Auckland: Auckland University Press, 1995), pp 193–194, 202.

7. Mackay to Native Minister, 3 September 1868, Le 1/1869/133 (Phillip Hart, ‘Maori and Goldfields Revenue’, unpublished paper, University of Waikato, p 21)

which in turn required the landowners’ consent. Mackay soon used these provisions in turning unauthorised miners out of Ohinemuri.

While Williamson was in Shortland, Ropata Te Arakai (also known as Te Pokiha) came with Periniki and Wikiriwhi Hautonga of Ngati Taiuru hapu of Ngati Tamatera⁸ to offer their Ohinemuri lands to be leased for gold mining. Te Arakai, of Te Uriwha hapu of Ngati Tamatera or Ngati Hura hapu of Ngati Paoa (or both),⁹ was considered by Mackay as ‘always … loyal and well-disposed towards Europeans’.¹⁰ He had wanted Ohinemuri to be opened from 1865, and the Kingitanga aukati created a rift between him and Te Hira. After Te Arakai’s visit, Mackay arranged for Te Moananui to accompany Superintendant Williamson to Ohinemuri, but just then gold was discovered at Tapu Creek (see sec 9.3.3), diverting Mackay’s attention. No agreement was made with Ropata at this time, but he was to become an important ally of Mackay’s in future negotiations.

A year later, on 5 October 1868, Mackay attended a public meeting at which:

a quarrel arose between the Hauhaus and the friendly Natives, which resulted in two of the latter (Periniki and Wikiriwhi) coming forward and offering the whole of their lands for goldmining. This was seconded by the loyal chief Ropata Te Arakai and his people, to the great dismay of the Hauhau party, who left the meeting in anger and disgust at these proceedings.¹¹

Ropata’s description of the events, as reported in the New Zealand Herald, was as follows:

Mr Mackay came to Ohinemuri in consequence of a letter he had received from Te Hira, which letter had nothing to do with the question of opening the land, but was respecting the aukati or boundary line which the Hauhaus wished to draw at Hikutaia, beyond which the pakeha was not to come. A large native meeting was then held. On this occasion there was a great amount of talk respecting the opening of the goldfields at Ohinemuri. The Hauhaus were totally opposed to it. One of us (the friendly side) then got up and handed over his ground to Mr Mackay. This was Wikirihi...

Robert [Ropata Te Arakai] said that after Wikirihi had handed his land over to Mr Mackay, the Hauhau showed a great amount of anger. Then my friend Piriniki [sic] stood up and said, ‘No one has any authority over my land.’ He then took a stick in his hand and laid it before Mr Mackay, saying, ‘I put my stick into Mr Mackay’s hands’. The stick was lying in front of Mr Mackay when the Hauhaus rushed at it to take it up, but Mr Mackay’s hand was upon it.¹²

8. Document a10, pt 2, p 206

9. Document a8, p 195

10. Mackay, ‘Report by Mr Commissioner Mackay’, p 7

11. Ibid, p 9

12. New Zealand Herald, 26 October 1868 (doc o6, p 148)

In the week following, if press reports can be trusted, both sides were ‘standing to their arms’.¹³

Te Hira was not present on 5 October, but he sent representatives. This did not indicate personal animosity, but was consistent with his policy of permitting European deputations to come up the river to Ohinemuri, but not meeting them himself. He is said to have had cordial respect for Mackay as an adversary, and in 1870 Mackay was to represent him in the Native Land Court.¹⁴

Many Thames miners did not share Te Hira’s respect for Mackay; he was not regarded as their friend. Late in October, the second of two deputations of miners visited Ropata Te Arakai’s kainga at Puketea-waitapu and sought a private arrangement with him, but he rejected it, saying, ‘The Government advised me not to open that land until Te Hira and his party agreed to open theirs, which, I think can be arranged before long. I am desirous of avoiding bloodshed between the Kingites and the Queenites.’¹⁵ Te Hira’s representatives said that he ‘would not oppose the opening of the land to the miners if the Maoris, on being called together gave their consent’.¹⁶ The commitment at this stage of all parties, including the Government, to consensual decision-making was important.

Governor Bowen visited upper Thames in January 1868, but Te Hira did not meet him. Superintendant Williamson came to Ohinemuri in November 1868 at the invitation of Ropata. Mackay resented the interference, writing that ‘His Honor the Superintendant had considered it his duty to visit Ohinemuri also, and use his influence in the matter; and I must say that his proceedings there in no way assisted my efforts to arrange this very difficult question.’¹⁷ Te Hira wrote a friendly letter to the superintendant after the latter’s visit, but Mackay was correct that Williamson achieved little towards the opening of Ohinemuri.

About 200 Maori were estimated to have attended the meeting with Williamson at Ohinemuri on 12 November 1868, and around 500 were reported to have attended a further meeting on 18 November, including ‘Hauhaus’ from Piako and all the principal chiefs except Te Hira and Tukukino.¹⁸ If the estimates are correct, the second meeting would have involved a majority of the adults of Hauraki. At the first meeting, Maori divided themselves into pro- and anti-mining camps, and a message arrived from the King to Ropata, saying not to part with the land. However, Hori Pokai, one of the proponents of mining, was quoted as saying, ‘do not let strange tribes be dragged in to have authority over my land … My property is my own; it will be for me to speak of’.¹⁹

13. New Zealand Herald, 14 October 1868 (doc o6, p 148)

14. Document o6, p 287

15. New Zealand Herald, 5 November 1868 (doc o6, p 153)

16. Ibid, 27 October 1868 (pp 151–152)

17. Mackay, ‘Report by Mr Commissioner Mackay’, p 9

18. New Zealand Herald, 19, 24 November 1868 (doc o6, pp 153–155)

19. Ibid, 19 November 1868 (p 154)

At the second meeting, Williamson pointed out the peacefulness of the miners at Shortland and continued, ‘There is one opinion you hold, viz, that if you throw open the country for mining purposes the land will be taken from you. This is a mistake – you will permit the gold to be dug out of the hills – the mana to the land will still, as it is now, be yours.’²⁰ But Pineaha of Ngati Hako, Reihana Te Tahua, Rota, and others disagreed. In debating with Reihana, Williamson offered the assurance that the Government ‘would not give any money until they have obtained the consent of those concerned’. Reihana responded, ‘if you spend your money amongst those who are giving up the land evil will arise. Your affairs will not be amicable to us.’ Williamson concluded in a potentially divisive fashion, foreshadowing dealings on a hapu-by-hapu or individualised basis, by asking those who were offering to land for mining purposes for their names, so that their titles could be investigated by the Native Land Court and the ‘true owners’ determined.²¹

The issue of separating the interests of those in favour of mining from the interests of those opposed was the bone of contention at the meeting organised by Mackay for 16 December 1868. According to Mackay, the group opposed to mining ‘were ably supported by all the Hauhaus who could be mustered from Piako and the adjacent districts’.²² At this meeting, Teni Te Kopara raised the analogy of the Waitara purchase, which had triggered the first Taranaki war. He pointed out that the land was jointly owned, there were many claimants, and there was no consensus as at Shortland, where ‘Hoterene [Taipari] gave up the land and all the tribe consented’. He urged Mackay to be cautious. Mackay replied, ‘It is true what you say, that the assertion of individuals that they own land which is common to the whole tribe has frequently caused trouble.’ He maintained, however, that he had exercised caution; although he had accepted Ropata’s offer of his own land, he had not given Ropata any money or placed miners on it. He blamed outsiders for inflaming the situation.

The meeting continued into a second day with the pro-mining speakers asserting their right to deal individually with their land, and the anti-mining speakers saying that rights were mixed, and they would not open their land. Te Hira wrote to Mackay requiring him to leave, but Mackay declared that he would ‘hold’ the land given to him for mining purposes by Ropata and others. He asked the pro-mining faction whether they agreed to hand over their lands for mining: they did. Mackay obtained some 63 signatures to a cession agreement, described as ‘preliminary’, dated 19 December 1868, in consideration of which he agreed to pay £1500, of which £1000 was an advance against miner’s rights and £500 was a bonus payment, ‘as a deposit to bind the said agreement’.²³ Some money, perhaps even the whole amount, was handed over at the meeting.²⁴

20. New Zealand Herald, 24 November 1868 (p 156)

21. Ibid, 24 November 1868 (p 156)

22. Mackay, ‘Report by Mr Commissioner Mackay’, p 9

23. Ibid, pp 9–10, ends m, MA

24. New Zealand Herald, 22 December 1868 (doc o6, p 162)

As written up by Mackay, the agreement covered ‘all the land at Ohinemuri’. However, Ropata told Puckey (Mackay’s successor as native officer at Thames) in mid-1869 that ‘the understanding in respect of their lands leased to the Government at Ohinemuri only had reference to the north bank (proper right bank) of the Ohinemuri Stream’.²⁵ So there is doubt as to the precise intentions of Ropata and his co-signatories. Taraia Ngakuti did not sign the agreement but instead wrote to Bowen giving his consent to the Governor having the gold but not the land. In addition, Mackay was handed the same day a letter dated 26 October 1868, which Te Wauo Toiwhare, a relative of Te Hira, had addressed to John Thorp of Opukeko, saying that he would give over ‘his auriferous lands’ to Mackay.²⁶

With support for Te Hira apparently crumbling, the New Zealand Herald reported: ‘The Hauhaus were busy talking the matter over amongst themselves, [they] were as a house divided against itself, leaving very little doubt that they would be talked over one by one until the arrangements were completed satisfactorily.’²⁷ These forecasts were, however, premature.

10.1.3 Outside influences and local Maori responses

With so many Maori of Ohinemuri committing themselves to the opening of their lands and the Kingitanga in apparent disarray, affairs at Ohinemuri appeared hopeful to miners and Mackay. On 10 January 1869, the ‘insurgent’ Hakaraia of Waitaha arrived at Piako with an armed party, but he was sent away by the Piako Maori, who said that they could manage their own affairs.²⁸

In January 1869, Mackay asked Te Moananui and others of the ‘loyal party’ to ‘assist in arranging the Ohinemuri question’. On 4 February 1869, Mackay and ‘a large number of the friendly Natives of the Hauraki District’ travelled to Ohinemuri for a meeting which Te Hira attended. On 5 February, Te Moananui was reported as saying to him ‘I wish you to come and remain in Hauraki. You think a great deal of your king. He is not of any value to you.’ And, later that day, ‘The land was given you by the tribes to reside on, and to look after the land and the people. It was not meant that you should go away and leave the land and the people to confusion.’²⁹ The next day, Riwai Te Kiore, who had so reluctantly agreed to the mining of his own land, was reported to have ‘lamented the divisions in the once united people of Hauraki. These divisions had been caused by Hauhauism and Kingism.’³⁰

Neither chief, however, was reported as attempting to dissuade Te Hira from opposing mining. Their involvement appears to have had less to do with gold than with preventing the

25. Puckey to McLean, 19 October 1869, AJHR, 1870, A-19, p 4 (doc o6, p 179)

26. Mackay, ‘Report by Mr Commissioner Mackay’, p 10, ends mb, mc

27. New Zealand Herald, 22 December 1868 (doc o6, p 162)

28. Ibid, 23 February 1869 (p 163)

29. Ibid, 8 February 1869 (pp 166–167)

30. Ibid (pp 167–168)

Maori of Hauraki from becoming embroiled in civil strife. Te Moananui’s advice to ‘remain in Hauraki’ echoes the attitude he had adopted in 1863 during the wars in the Waikato. The meeting continued on 8 and 9 February without any substantial shift in opinions. On the last day, Mackay obtained just four signatures, on an agreement concerning the Waitekauri block.

Meanwhile, since December miners had begun to assemble in increasing numbers at Thorp’s station in the expectation that the opposition would soon crumble. Some of these were conducted on prospecting trips or signed leasing agreements with individual Maori right-holders, to the displeasure of Te Hira, who wrote to Thorp and Wood ordering them and the Europeans who were living with them to leave. Thorp met with Te Hira, who was friendly but unhappy that there were so many miners starting to operate in the region.

Mackay was generally quite scrupulous about keeping miners out of areas not opened to mining, but in this instance he had particularly pressing concerns. By February, Mackay had learnt of attempts by a group of Irish miners – rumoured to be associated with the revolutionary Irish nationalists known as Fenians – to enter into a direct leasing arrangement with the ‘Hauhaus’. The leading figure was thought to be a certain Michael O’Connor, also suspected of promising to supply weapons. Mackay held a public meeting at Thorp’s farm on 7 February asking all Europeans to leave by 9 February 1869. When a few miners continued prospecting, Mackay swore in a force of 35 Maori special constables and removed all but established settlers and their servants from the Ohinemuri region.

Mackay was very concerned not to inflame a dangerous situation. He had heeded the comparisons made with the Waitara purchase at the December meeting in Ohinemuri and declared at Thames in February:

We know the result of the Waitara case, which was analogous to this. Teira wished to give up the land, but William King, who was a greater chief, and who owned a small portion of the land, determined that it should not be given up. Governor Gore Browne said ‘I will survey the land and take what is Teira’s’ – thinking himself justified in asserting the right to Teira’s land, and the result was a war.³¹

For once, Mackay found the miners willing to heed his warning. Reinforcing the need for caution was the presence of Te Kooti nearby; in March 1869 he was reported to be in the forest inland of Tauranga, and Te Hira warned settlers to leave Ohinemuri because he was concerned for their safety.³²

As related, Mackay resigned in March 1869. HT Clarke succeeded him as Civil Commissioner for Auckland, Waikato and the Bay of Plenty; in Hauraki Mackay was replaced by EW Puckey, occupying the new position of native officer (or native agent).³³

31. New Zealand Herald, 23 February 1869 (p 171)

32. Mackay, ‘Report by Mr Commissioner Mackay’, p 10

33. Document o6, p 176

Others who were to take part in gold-mining negotiations were: John Thorp (the son of the pre-1840 settler Joshua Thorp), T B Gillies (who succeeded Willamson as superintendent of Auckland province), and Donald McLean, Native Minister from June 1869.

Puckey visited the Thames district in August 1869. Ropata Te Arakai told Puckey about ‘opposition on the part of Taipari, Riwai Te Kiore, and Te Moananui … which added much to the opposition made by Te Hira and others’.³⁴ The nature of this ‘opposition’ remains obscure. In June, the New Zealand Herald reported that ‘The Shortland natives are helping those natives, who are hard up, and advising them not to open Ohinemuri. It will interfere with their income, they fear.’³⁵ But the lending of material aid to kin did not necessarily imply a selfish motive.

In mid-October, Puckey attended a meeting at which the great majority were in favour of opening the land to mining, Te Moananui having called for a vote. Te Hira remained adamant in his opposition. In Puckey’s words:

The chief argument made use of by those opposed to ceding the land to [the] Government was, that that course would eventuate in the loss of their land – the mana of the Queen would light down upon the land – their mana would be gone, and they would lose the land. This was replied to by Ropata’s people, by saying that the benefits that would result from leasing the land would be substantial, and would be enjoyed by themselves and their children for many years, whilst they were gaining no advantage whatever.³⁶

All this while Te Kooti remained at large and the Government had to be careful not to act provocatively in Ohinemuri. In August 1869, emissaries of Te Kooti were reported by Thorp to have visited Te Hira, taught him karakia, and may have been supplied with munitions.³⁷

In October 1869, the anticipated arrival of McLean encouraged the hopes of miners, but Tukukino declared that he would resist any attempts to alienate Ohinemuri. Supporters of Ropata Te Arakai asked Thorp to appeal to the Government on their behalf for arms for, wrote Thorp, ‘they are menaced by the hauhaus for taking sides with us’.³⁸

In November 1869, tempers flared at a runanga called to discuss land leasing. Te Hira was reported to have challenged his opponents to fight without the help of Pakeha. Te Hira’s opponents replied that they would fight side by side with Pakeha against all Hauhau comers.³⁹ These challenges might have been rhetorical. But around this time Te Hira was seeking weapons from the suspected Fenian, O’Connor, reported as living at Ohinemuri in August 1869 ‘on terms of the greatest intimacy and friendship’ with Te Hira.⁴⁰ In September

34. Puckey to McLean, 1 October 1869, AJHR, 1870, a-19, pp 1–2 (doc o6, p 175)

35. New Zealand Herald, 15 June 1869 (doc o6, p 175)

36. Puckey to McLean, 19 October 1869, AJHR, 1870, A-19, p 4 (doc o6, p 178)

37. Thorp to Cooper, 2 August 1869, Donald McLean papers, ms papers 32, ATL (Monin, p 218)

38. Thorp to McLean, 27 October 1869, ms-papers 32, folder 603, ATL (doc o6, p 179)

39. New Zealand Herald, 30 November 1869 (doc o6, p 182)

40. Ibid, 25 August 1869 (p 194)

1869, O’Connor was reported to have visited King Tawhiao on business for Te Hira.⁴¹ Sometime during the year, he may have promised Te Hira to supply guns in exchange for the right to work gold. But O’Connor failed to supply the arms and Te Hira broke with him. Thorp reported these dealings to McLean in April 1870.⁴² However, Te Hira remained supportive of Te Kooti, invited him to Ohinemuri in January 1870, and gifted him powder and ammunition via emissaries.⁴³

Te Hira’s connections with O’Connor, the Kingitanga at Te Kuiti and Te Kooti caused dissatisfaction within Ngati Tamatera, sensitive concerning their tribal autonomy. The damage was compounded in March 1870 when Puckey received a letter from Tana Te Waharoa of Ngati Haua on behalf of the King stating that Ohinemuri would be opened.⁴⁴ This revelation and the inference that Te Hira had permitted Te Waharoa to speak for Ohinemuri led to the disaffection of several of Te Hira’s supporters.⁴⁵ Te Hira was censured at a meeting held in April 1870.⁴⁶

In June, senior leaders of the Kingitanga washed their hands of the matter. According to Wi Te Wheoro, Tawhiao himself said that he ‘will have no voice in the matter, but that he will send a message to Te Hira recommending him to let go the land to the Europeans to be worked’.⁴⁷ Te Wheoro’s next letter to McLean relayed the words of Te Paea Tiaho, sister of Tawhiao:

What you say is right. I agree to it [removing the Kingitanga’s objections to mining]. I myself will send a message to Te Hira and Mere Kuru. Manuwhiri and myself have already written to Te Hira to say that if he were willing to open up Ohinemuri, he should do so without reference to us. But Te Hira was not willing to let it go – even on those terms.⁴⁸

The decision to agree to mining was for Te Hira and his sister Mere Kuru to make.

10.1.4 A different Crown agenda

After Mackay’s resignation, there was little pressure from the Government to secure cession agreements. Puckey did not actively seek signatures in the way that Mackay had done. Donald McLean was by now very sensitive to strategic considerations and engaged in diplomatic approaches to the Kingitanga. He had not attended the October 1869 meeting at

41. New Zealand Herald, 10 September 1869 (p 194)

42. Thorp to McLean, 18 April 1870, ms papers 32, folder 603, ATL (doc o6, p 194)

43. Binney, p 201

44. New Zealand Herald, 30 March 1870 (doc o6, p 190)

45. Puckey to McLean, 11 April 1870, ms papers 32, folder 1022, ATL (doc o6, p 191)

46. Thorp to McLean, 29 April 1870, ms papers 32, folder 603, ATL (doc o6, pp 191–192)

47. Wi Te Wheoro to McLean, 9 June 1870, AJHR, 1870, a-21, p 25 (doc o6, pp 192–193)

48. Wi Te Wheoro to McLean, 11 June 1870, AJHR, 1870, a-21, p 26 (doc o6, p 193)

which Te Moananui had secured a vote in favour of mining, but when he did arrive on 9 December he was met by Te Hira’s eloquent opposition:

I will not consent. If you give me what is not life I shall know. Of what is the use of the land after it is broken? When the land is broken, the owner perishes … This is my place, why do you seek after it? It is only a little piece. Let it remain to me.⁴⁹

McLean argued that each person in Ohinemuri ‘should be allowed to deal with their own share as they think best’. But he counselled pro-mining Maori to be patient; he would retain what they had placed in his hands, and they should decide upon the location of reserves, in the event of the goldfield being opened.⁵⁰ He warned the miners assembled at Thorps farm against indiscreet actions.⁵¹ Superintendant Gillies rejected their idea of paying cash advances to ‘friendly’ Maori:

until the negotiations show signs of success, and are put into some tangible shape as to terms, it does not appear to me prudent to make an advance to the friendly Natives, who appear to be unable to open even their own lands without the consent of their opponents.⁵²

By June 1870, the miners were losing hope and Puckey wrote to McLean that there was ‘nothing new about Ohinemuri except that diggers are leaving it’.⁵³ Thorp continued attend Maori meetings and in October 1870 wrote to McLean urging the Government to act, yet in November he was writing again to complain of having received no response.⁵⁴

This Government diffidence may have been prompted by stiffening support for Te Hira; by December Te Moananui was residing at Ohinemuri and, wrote Puckey, ‘will not fail to do all in his power to retard the opening of that part of the country’.⁵⁵ Te Moananui’s disaffection with gold mining is difficult to interpret. He had received fairly substantial but declining goldfield revenues but distributed much of them to his people. In August 1870, he had failed to honour a promissory note and had departed for the King country to evade bailiffs.⁵⁶ He returned to Thames after the Government advanced £300 to his creditor. This episode may have been a proximate cause of his firm alliance with Te Hira.

49. Te Hira Te Tuiri, ‘Notes of a Meeting which Took Place at Ohinemuri on 9 December 1869’, AJHR, 1870, a-19, p 10 (Monin, p 220)

50. ‘Ibid, pp 8–11 (doc a8, p 198; doc o6, p 183)

51. New Zealand Herald, 13 September 1869 (doc o6, p 183)

52. Gillies to McLean, ‘Correspondence Relative to Ohinemuri and Native Matters at the Thames’, 9 February 1870, AJHR, 1870, a-19, pp 1–16 (doc a8, p 198)

53. Puckey to McLean, 25 July 1870, ms papers 32, folder 518, ATL (doc o6, p 195)

54. Thorp to McLean, 6 October 1870; Thorp to McLean, 11 November 1870, ms papers 32, folder 603, ATL (doc o6, p 196)

55. Puckey to McLean, 28 December 1870, ms papers 32, folder 518, ATL (doc o6, p 196)

56. Clarke to McLean, 31 August 1870; Pollen to McLean, 2 September 1870, Donald McLean papers, ms papers 32, ATL (Monin, p 229)

But Te Moananui’s earlier support for gold mining was hardly wholehearted. Some Ngati Tamatera had adopted the strategy of ceding their lands at Coromandel whilst retaining the upper Thames district. Te Moananui’s opposition to Te Hira’s handing the block over to the King is not inconsistent with his making common cause with him in retaining control of it. When concessions had to be made from 1874, Te Hira and Te Moananui were willing to sell Moehau and Waikawau before surrendering the gold in Ohinemuri.

Rather than pursuing a mining cession, Government action was directed to three other areas: bringing the Native Land Court to Ohinemuri, completing the Auckland- Tauranga telegraph line, and eventually, purchasing the block. The best explanation of the Government’s tactics is therefore that its goals had changed, or arguably reverted to the original primary goal of purchasing the freehold of land, either for mining or settlement. Opening fresh fields to mining was no longer urgently required as a source of social and economic growth. But a pressing concern was preventing private speculators from signing leases or purchasing land once it had passed through the Native Land Court.

10.1.5 The mail and the telegraph

Maori leaders were often opposed to the passage of the telegraph through their rohe, viewing it as the first step towards Pakeha settlement and stronger Government control. In 1871, encouraged by the Kingitanga, and supported by Ngati Porou at Mataora, Te Hira stopped the mail being carried from Ohinemuri to Waihi. Thorp reported that ‘only some 70 old men’ were so opposed and that most local Maori would accept a show of Government force on the issue.⁵⁷ McLean did threaten to arrest Te Hira, but that only increased his ire, and McLean’s action was criticised in the local press. The officials returned to diplomacy.

In the latter half of 1871, the telegraph reached Shortland; Maori were bitterly divided over allowing its extension to Tauranga. Mackay, though not then in Government employ, and, taking advantage of jealousies between Te Moananui and Te Hira, succeeded in negotiating the telegraph’s extension. It was understood that Te Hira could continue to oppose verbally; and that, as payment, Tukukino’s hapu, Te Kiriwera, could muru Andrew’s store at Paeroa (the only one permitted by Te Hira and Mere Kuru) to the tune of £80 or £90. On New Year’s Day 1872 at Bowentown, the venerable Hori Tupaea turned the first sod for the telegraph; Te Hira sent two of his nephews to endorse the proceedings tacidy. Tukukino still opposed the mail, but after further diplomacy it was allowed through.⁵⁸ A regular steam- launch service was commenced up the Waihou to Ohinemuri and in May 1872, Te Hira, Mere Kuru and Te Moananui joined in petitioning the provincial government for a subsidy to maintain it.⁵⁹

57. Document o6, p 216

58. Ibid, pp 221–226

59. Ibid, p 230

Maori soon made regular use of these services, earning income from working on the telegraph and supplying timber for poles. They planted potatoes in the land cleared for the line, and their produce again reached the Auckland market.⁶⁰ The question remained, however, whether, as Te Hira had feared, this involvement would draw them inexorably into sale of land.

10.1.6 The advent of the Native Land Court

The Native Land Court will be discussed substantially in chapters 15 to 18, but in this context we note that, in contrast to the telegraph line, in Ohinemuri the court was relatively welcome. Part of the motivation was that private interests were active in pursuing purchases, leases or timber rights agreements, offering prices attractive to Maori as gold revenues declined. Private purchases occurred on the Waihou and behind Shortland in the late 1860s. Some Ohinemuri right-owners also began surveying in 1869, apparently with a view to private leasing. An attempt by private interests to survey a township at Paeroa was, however, blocked by Te Hira and Mere Kuru. Because of the intersecting rights of various tribes in Ohinemuri, and because non-Marutuahu groups such as Ngati Koi (or Ngati Tara) were pressing their claims to the land, it began to seem useful to groups opposed to mining to have their rights clarified by the court.

For their part, Government officials encouraged the court’s adjudication of rights in Ohinemuri to break the impasse over gold mining. By 1870, those who had surveyed were ready to make application for a hearing. The court heard the Ohinemuri block in Auckland on 5 May 1870, having postponed it earlier because not all parties were ready to participate. At the hearing, the lawyer John Sheehan, under instruction from Te Hira, moved that the court adjourn to Ohinemuri. Despite pessimistic expectations of Te Hira’s and Mere Kuru’s support, on 17 May 1870 the court sat in Te Hira’s meeting house with him and Mere Kuru in attendance. Mackay represented Te Hira, Te Moananui and all the Ngati Tamatera and Ngati Paoa respondents to the Ngati Koi applicants.⁶¹

An important element of the complex debates concerning the application was Ngati Tamatera fury that, first in the Owharoa block, then in Waihi (Ohinemuri), Ngati Koi (Ngati Tara), whom they considered rahi to them, should claim the land. Even before the court gave its decision on Owharoa, Te Moananui had taken a taua to Waihi to muru the Ngati Koi settlement. The court awarded Owharoa to Ngati Koi and then had to adjourn hastily for fear of violence from Ngati Tamatera. When it resumed in Shortland in October, Te Hira and his group were awarded Waihi, but afterwards verbally recognised some Ngati Koi

60. Ibid

61. Ibid, pp 197–201

rights, provided they did not sell the land. Hauraki Maori did not reject the court outright but sought to pursue their own goals through it.⁶²

The Owharoa decision indicated the legal import of Mackay’s 1868 agreement with Ropata Te Arakai and others. McLean ordered that Theophilus Heale (district surveyor at Tauranga) bring it to the court’s attention, with the request that no certificate of title be issued without a restriction vesting in the Government the right to regulate the mining of gold. When the Owharoa award was made to Ngati Koi – parties to the 1868 agreement – a ‘restrictive clause maintaining the agreement’ was added. When Puckey asked for a similar addition to the Waihi award five months later, the court ruled that this would only be done if the grantees were party to the 1868 agreement.⁶³ This episode probably contributed to the Government’s subsequent decision to proclaim a pre-emptive right over any Hauraki land thought to be auriferous.

Mackay now reappeared in new roles: as a representative for Te Hira and others in the court, and then as a Land Purchase Agent for the Crown. The Crown had recommenced large-scale and systematic land purchasing from 1871, empowered by the Immigration and Public Works Amendment Act 1871 to issue proclamations debarring private transactions over lands for which it wished to negotiate. The entire Coromandel Peninsula and the Hauraki Plains southward to Te Aroha were brought under this provision in 1872 and 1874, although an amendment to the 1872 proclamation exempted the cultivable land on the east bank of the Waihou and the reserves within the goldfield cessions, lands deemed most suitable for close settlement.⁶⁴ In March 1872, Mackay was appointed by J D Ormond, Minister for Public Works, on commission of fourpence per acre, to purchase the Waikawau, Moehau, and Ohinemuri blocks.

10.1.7 Raihana and other advances against land

From his commissioning as Crown agent in 1872, and although the land had not yet gone through the land court, Mackay began to pay individuals he considered to be right-owners raihana (licences for store goods) or advances for their interests or both. This contentious issue impacted upon Ohinemuri probably more than on any other Hauraki block. The questions at issue are whether Mackay’s advances constituted reasonable and appropriate credit arrangements, or whether they amounted to ensnaring Maori in a debt trap.

Dr Battersby describes the ‘food and other items obtained by Maori from general storekeepers, which were drawn on pre-approved orders [licences or raihana] from the government’. He cites contemporary evidence that the term came to be extended to include ‘orders for goods given or satisfied by land purchase agents on security of land, or an advance in

62. Document o6, pp 204–209

63. Memorandum to Heale, 14 May 1870, 6 June 1870, AJHR, 1870, a-19, p 12 (doc o6, pp 210–211)

64. Document a8, pp 201–202

part payment of land’. But he suggests that raihana were ‘not cash, or cash advances... Cash advances on land were usually the result of negotiations between a land agent and a Maori owner for the sale of land, or land interests’, a payment for an individual’s complete interest (in a multiple title), or a deposit on the balance, to be paid over at the completion of the sale.⁶⁵

The practice of issuing raihana seems to have emerged from the emergency credit arrangements made to help Waikato Maori resettle after the dislocation of war. At the time, Mackay, then a judge of the Compensation Court, was irritated that Maori ordered goods and charged them to Mackay privately or to the Government. He issued a notice saying that the Government would not redeem such orders. He also suggested that advances for food, seed potatoes and agricultural implements be redeemed by days of labour rather than held as a lien on the crop. However, Dr Battersby suggests that, as a private land agent, Mackay fell in with the usual practice of settling small sums outstanding at stores or providing food or other supplies at Maori request.⁶⁶ Dr Battersby argues that Crown agents often recognised real need: when Rawiri Taiporutu’s wife died in 1880, he asked Wilkinson for £40 for the tangi and the cost of a coffin, but despite Wilkinson’s pleading the Government authorised only £3. Again, when many Maori came from a distance to attend the court hearing of Ohinemuri, Wilkinson asked for food supplies for them, and was scathing when only £25 was authorised.⁶⁷

Dr Anderson’s evidence suggests that the sums advanced against Ohinemuri were relatively small before 1872, but later hakari and tangi costs involved advances of a different order. John Thorp estimated that £3000 was spent on food for Taraia’s tangi in March and April 1872. Mackay later revealed his opportunism in relation to that event:

After I was instructed to purchase these blocks, I attempted in vain to get the Hauhaus to treat for the sale of them to the Government. They refused to take ‘the Governor’s money’. At this time the old and influential chief Taraia Ngakuti died … and a very grand feast was contemplated, and although the obstructives would not take money they joined the friendly natives (secretly) in procuring some thousands of pounds worth of flour, sugar, tobacco, tea, bullocks, sheep and clothing.⁶⁸

Mackay sought and received from provincial superintendant Gillies an advance of £2000 for the purpose.⁶⁹ He told the Audit Department that it had first been arranged that the supplies should be charged against Waikawau (for which a preliminary sale agreement was drawn up and signed at or near the time of the tangi) but that ‘as some members of the

65. Document o6, pp 231–232

66. Ibid, pp 232–233

67. Ibid, pp 270–271

68. Mackay, memorandum, 26 August 1875 (doc a8, p 220)

69. Document a8, p 219

tribe had no interest in it, portions of the first and subsequent advances were charged to the Moehau and Ohinemuri blocks’.⁷⁰ Discussions at meetings in 1874 show that many Maori owners of interests in these blocks either did not know of these arrangements or did not understand their implications.

Senior rangatira became concerned at the tendency to charge such costs against land, and sought to control it by treating the land as under Te Hira’s authority. Te Moananui warned:

If any Pakeha wanted land at Ohinemuri, let him go to Te Hira … Let them not go to the owners of the land, for the mana (authority) is in the hands of Te Hira. The Pakehas would only waste money by paying it to those who go into the European’s townships and ask for grog; and when asked for payment, say it will come from the lands at Ohinemuri.⁷¹

There was clearly concern among Maori that debts for liquor would be charged against land, though if detected this would, by the terms of the Native Lands Frauds Prevention Act 1870, have invalidated a transaction. Whether for this reason or not, Puckey and Mackay seemed alert to prevent liquor being charged as raihana. But Mackay hoped that, if enough Ngati Tamatera were brought into the sale of Ohinemuri by means of his payments to individuals or heads of hapu, Te Hira would not be able to ‘stand alone against the wishes of the whole tribe’.⁷²

Various figures presented in evidence are difficult to reconcile. Notwithstanding Taraia’s tangi, an official return cited by Dr Anderson indicates that less than £1500 had been charged against Ohinemuri up to early 1873, and £13,966 against Waikawau and Moehau.⁷³ Yet, in December 1872, Mackay informed McLean that Ngati Tamatera’s debt overall approached £26,000. He suggested its possible apportionment against the main blocks under negotiation:

Moehau block as surveyed contains 54,827 acres. The Waikawau block 44,161 acres … From this has been deducted for reserves, and lands owned by tribes other than Ngati Tamatera, leaving a balance of 63,008 acres available for purchase from the Ngati Tamatera. To this may be added the Waikanae block containing 2,738 acres, making a total of 65,746 acres which at 3/- per acre amounts to £9,861.18.0 or say £10,000. The sum advanced to that tribe to the present date is about £25,000 which would leave say the sum of £16,000 to be provided for within the Ohinemuri district, including land on the west of River Waihou.⁷⁴

This statement explains Dr Anderson’s comment that ‘Mackay continued to advance monies after he considered the value of Waikawau and Moehau to be used up, so that the

70. Document a8, p 220

71. New Zealand Herald, 6 June 1873 (doc o6, p 235)

72. Mackay to Minister for Public Works, 22 June 1872 (doc a8, p 225)

73. James Mackay, ‘Blocks under Negotiation but Price Not Finally Arranged’, 24 March 1873, AJHR, 1873, g-8, p 13 (doc a8, pp 220–221)

74. James Mackay, ‘Report to Native Minister’, 3 December 1872, NLP75/117 (doc a8, p 225)

debt would begin to accumulate against their [Ngati Tamatera] interests at Ohinemuri’.⁷⁵ The debt against Ohinemuri escalated in the next two years, largely as a result of store accounts charged by Maori against the block while Mackay was absent in Waikato from May 1873 to June 1874. At a great assembly at Whakatiwai in August 1874, a number of temporary stores and a bakery sold food, drink, and clothing to the thousands who attended.⁷⁶ At the end of 1874 Mackay denied that he had encouraged the practice – rather the opposite – but had accepted the charges on his return, partly, he said, to save members of Ngati Tamatera from imprisonment for debt.⁷⁷

10.2 The Leasing of Ohinemuri

As a result of the mounting debts against the land, the attitudes of the Government and former Maori objectors to gold mining were reversed. All the objectors bar Te Moananui came to accept mining as the best means of discharging debt. But the Government, now in pursuit of the fee simple title to the land, was less than eager.

Leasing and sale of land were prominent topics at a large hui at Whakatiwai in July and August 1874; so too was raihana, now the subject of serious criticism in the local press. But Mackay produced a pocketful of receipts for store debts which he said were forced upon him for blocks from Moehau to Te Aroha. The tribal leaders were clearly embarrassed and concerned, and met to try to find ways of dealing with the problem, now out in the open.

Mackay sought to embarrass Te Hira with details of raihana taken by his relatives, and asserted that Ohinemuri was now open. When Te Hira retorted that McLean, the Governor and Mackay himself had acknowledged that Ohinemuri was in his keeping, Mackay replied, ‘Separate your own pieces from those of others, and keep them to yourself, pieces owned by other people are gone.’ There were angry exchanges, Mackay asserting that Mere Kuru had received raihana and Mere denying it. Te Moananui blamed Mackay for failing to cease issuing or accepting orders on goods, and charging them against land. Te Hira said that Mackay had no right to charge him with what the young people had done. Again Mackay took the line of individual responsibility for individual interests in land: ‘what solely belongs to you, you can keep solely for yourself’.⁷⁸

Te Hira, although still opposed to gold mining in Ohinemuri, reluctantly agreed to negotiate.⁷⁹ Another large meeting was held at Ohinemuri on 10 November 1874 at which Mackay put the question as to how the cash advances were to be redeemed. Many in the

75. Document E2, p 71

76. Thames Advertiser, 5, 8,14,17, 20 August 1874 (doc o6, pp 241–242)

77. Document a8, p 223

78. Thames Advertiser, 24 August 1874 (doc o6, pp 244–245)

79. Ibid, 22 October 1874 (p 247)

past opposed to gold mining were now in support of it as the lesser of two evils as compared to land sales. Mackay met with each hapu in turn to go over the accounts and ascertain the debt of each.

Mackay also tried to explain in the local press his involvement with raihana. He asserted that he had never asked Maori to take orders for goods, instead of cash, for payment in land:

The difficulty I have to contend with … is to withstand the innumerable applications made to me for money and goods, and to find out which of the persons asking for payment or preliminary deposit is entitled to the land … The result of giving orders for goods is not at all satisfactory to me … I have to pay the storekeeper whether I get the money or not, and I frequently lose money by mistakes in accounts, and by natives repudiating the receipt of articles they have applied for on behalf of friends and relatives … I claim niether profit on [the goods] or interest on the money, which I frequently pay to storekeepers long before it can be charged against the land, and be refunded by the Government. I have therefore given these orders to oblige the natives, and to enable me to obtain lands which they would not sell for money down. It must not however, be assumed that I have paid for land with goods only. Many blocks have been purchased for cash, and nothing else; in all other cases payment has been in money and goods.⁸⁰

Meanwhile, hapu leaders had been amazed and troubled at the levels of debt revealed by Mackay as having accumulated against the land. A newspaper correspondent reported that they ‘are tortured to think the land that the soil they almost worshipped must go, and yet cannot clearly see any other way of escape’. Informed of a debt of £5067 against Ngati Tawhaki, the hapu of Te Moananui, the latter accused Mackay of impatience and would not meet him, but he did not repudiate the debt. Te Hira said that his people’s debts would have to be redeemed against other lands, not Ohinemuri.⁸¹ At a further meeting at Pukatea-wairahi on 19 October, Hohepa Te Rauhihi pointed out to Mackay that Te Hira, Te Moananui, and others had told him to stop issuing raihana. Mackay acknowledged that this was so, but those who had urged such a course ‘were among the first to apply for more. He would rather have paid them in cash, but they themselves had pestered him for orders to get goods.’⁸²

At this meeting, serious discussion began concerning the apportionment of the £26,000 debt which lay over Ohinemuri, Waikawau, and Moehau. Mackay said he had over 100 signed receipts relating specifically to Ohinemuri for over £15,000, and pressed for the transfer of the block. The Maori leaders asked for the debt to be redeemed against the other two blocks. Ngati Koi and Whakatohea, however, said they had no interests outside Ohinemuri and would give up some of the land rather than live under obligation to others. By 28 November,

80. Thames Advertiser, 14 November 1874 (p 249)

81. Ibid, 18 November 1874 (pp 250–251)

82. Ibid, 20 November 1874 (p 252)

with Waikawau and Moehau in principle given up, the interests of the various hapu in those blocks were agreed and the balance still lying against Ohinemuri considered.

Now, perhaps for the first time, there was serious discussion of the per acre valuation of the land. Te Moananui and the runanga asked for 10 shillings an acre. Mackay considered this greatly excessive; in his view, most of the good land had been reserved or sold and much saleable timber already cut off the remainder. He stated that when the cash or goods was paid over to Maori it was understood that the price would be the established price for land of similar description in the vicinity. That, he said was on average 2s 4d an acre, as in the Waikawau-Moehau area. The bitter debate continued, with many Maori debtors agreeing to give up their interests in Ohinemuri, and Te Moananui, Tukukino and the Kiriwera hapu still refusing. Mackay told waiting settlers that if these chiefs did not agree to settle their debts he would ignore them and take much of Ohinemuri anyway, within certain boundaries.

However, on 3 December 1874 Mackay reported to McLean a possible solution. The ‘Hauhau’ and ‘neutral’ parties proposed that the right to mine for gold should be ceded, the revenues to expunge the £15,000 debt charged against Ohinemuri: ‘In the event of the country not proving auriferous, then land equivalent to the amount advanced to be conveyed to the Crown.’ Mackay remarked that ‘The only person making any strenuous objection to the above scheme is Te Moananui’. Mackay argued that a mining lease could be obtained sooner than a purchase completed, and without the serious difficulties that still stood in the way of the latter.⁸³ It is not entirely clear from whom the proposal emanated. Te Hira had been suggesting that the debts be paid from timber and kauri gum revenue, but Mackay rejected that as impracticable, and later claimed that he had suggested payment via the gold revenue.⁸⁴

McLean replied immediately, revising Mackay’s previous instructions:

The Government recognising the importance of opening the Ohinemuri country as a Gold Field and finding that the Native owners do not desire to alienate the fee simple are prepared to accept the cession of say 60,000 acres in that district as a Gold Field, the natives receiving the fees from miners rights and other revenue after advances made by Mackay have been recouped.⁸⁵

Mining arrangements now began to fall into place. On 7 December another large meeting was held, and the issue of redeeming the debts again brought up:

Considerable discussion ensued as to whether the land or the gold should be given up. It was put to the meeting, and decided unanimously that the gold should be given up, and the land be placed in Te Hira’s hands, as trustee for the tribe.⁸⁶

83. Mackay to Native Minister, 3 December 1874. MA-MLP1881/246 (doc a10, pt 3, p 4)

84. Thames Advertiser, 21 December 1874 (doc o6, p 262)

85. McLean to Mackay (memorandum), 4 December 1874, ma13/54b, Archives NZ (doc o6, p 257)

86. Thames Advertiser, 8 December 1874 (doc o6, p 258)

The next day was spent arranging boundaries and reserves. The 1868 advance of £1500 to Ropata Te Arakai was explained by Mackay, who said he had ‘given Ropata Te Pokiha an order for £1500 in December 1868, with the understanding that £1000 would be by way of advance on account of miners’ rights fees receivable, and the remaining £500 by way of bonus’. He agreed to honour the bonus and would consider whether it should be deducted from the debt owing.⁸⁷

On 11 December 1874, Donald McLean arrived at Thames to complete the negotiations, and the bitter debate revived. Te Moananui criticised the lack of openness in the raihana system:

If my land is paid for with that which I do not know the cost of, I shall not know how much I am getting for it; if it were done in a straightforward manner in accordance with what I wish for it would be different. I thought there was good in that which I saw and wished for, but it was diverted and so a deep pit was yawning behind.⁸⁸

Te Moananui demanded of McLean: ‘From whom did this ration system emanate? Was it from the Queen? or the Governor? or from yourself? Or from the Land Purchase Agents?’ Mackay replied, ‘you yourselves began it’. Te Moananui retorted, ‘I learnt it from you’, and demanded to know what was the best value of guns, flour, and coils of rope. McLean said. ‘Money was the correct payment for land’.⁸⁹ Dr Battersby comments that ‘This was the answer that Te Moananui was looking for and called on the government to deal in land with money.’⁹⁰

Relating to the issue of price, Mackay stated, ‘I have paid large sums of money by your direction for orders, you said nothing about 10/- an acre then, nor did you complain, if you had asked that price you should not have received the money’. Both men, and Te Hira, then spoke of their efforts to stop the storekeepers giving Maori goods on credit. Te Hira referred to his public warnings to ‘the Pakeha’ (storekeepers?) that no debts would be allowed by him against Ohinemuri, ‘however they paid no attention to me’.⁹¹

Te Moananui and Te Hira again pressed for the debt to be charged against Moehau and Waikawau blocks, not Ohinemuri. Mackay remained adamant: ‘What has been written down in black and white cannot be expunged. I am unable to charge the Moehau and Waikawau Blocks with the indebtedness of Ngatikoi, Ngatitaharua, Te Uriwha and Ngatipinenga.’⁹²

87. Thames Advertiser, 10 December 1874 (pp 258–259)

88. ‘Proceedings of Native Meeting Held at Thames on 11th and 12th of December 1874’, ms papers 2520, ATL, pp 8–9 (doc a8(a), pp 553–554)

89. Ibid

90. Document o6, p 260

91. ‘Proceedings of Native Meeting Held at Thames on 11th and 12th of December 1874’, pp 18–20 (doc a8(a), pp 563–565)

92. Ibid, p 24 (p 569)

As to whether the land was implicated in the arrangement as well as the gold, Mackay stated to Te Hira that a division had been made:

you are to have the land, and I am to have the gold; this has been agreed to by the tribe and there is nothing else to say, the people have received payments on the land outside and on Ohinemuri, also in which you participated; this is the arrangement you are to have the land and I am to have the gold.⁹³

Mackay took credit for this division since, he said, both had already been conceded at the Pukatea-wairahi meeting: ‘your people not only gave me the gold, but also the land. It is I who proposed to accept the gold and to leave the fee simple of the land.’ Te Hira then observed: ‘There is gold sufficient upon the blocks I have already agreed to sell, upon Waikawau, Moehau, Te Puru and others’ If gold were not found on Ohinemuri, the land would then have to be taken to pay the debt, therefore, ‘let the land already given be sufficient’. Either he had discerned or the officials had clarified that acceding to the mining arrangements afforded no absolute protection for Ohinemuri land.⁹⁴ However, on 22 December 1874 Te Hira withdrew his opposition.⁹⁵

In February 1875, Mackay and McLean finalised a mining lease. The goldfield revenues would, as discussed in the late 1874 meetings, be paid to the Crown towards repayment of the raihana issued – some £15,000 worth – against the purchase of the land.⁹⁶ The agreement covered gold and other minerals, gum, and coal. Official interest in coal in Hauraki came from discoveries at Miranda and in Ohinemuri itself (a discovery apparently kept secret from Maori by the prospectors who found it).⁹⁷ As in Thames, rights to cut timber went with miner’s rights, except for kauri, which was to be sold in lots by public auction subject to the right of miners to purchase trees at the standard 25 shillings per tree. Miner’s rights fees and rents would be charged and paid to the Crown. Significantly, the agreement also gave the Crown the right to grant agricultural leases under regulations in accordance with the Gold Fields Act then in force. The Crown had long been interested in the district for settlement purposes.

As drawn, the lease was between the Governor on the one part, and ‘the Chiefs and people of the tribe Ngatitamatera of Hauraki’ on the other. It appears that, at the official signing on 18 February 1875, in the presence of Pollen, McLean, and Puckey, 88 Maori signed or affixed their marks (both to the deed and to the boundary description and plan drawn

93. Ibid, p 12 (p 557)

94. Thames Advertiser, 21 December 1874 (doc o6, p 263)

95. Ibid, 23 December 1874 (p 264)

96. Henry Hanson Turton, An Epitome of Official Documents Relative to Native Affairs and Land Purchases in the North Island of New Zealand (Wellington: Government Printer, 1883), Auckland deed 835, deed 391A, pp 543–548

97. Document a8, p 227

on the back of the deed). They included Te Hira and Mere Kuru. Tukukino did not sign and subsequently refused to recognise the lease where it affected land in which he claimed interests. Meha Te Moananui’s name does not appear either, although Hirawa Te Moananui, presumably his teina, did sign.

There was subsequently an allegation by some Hikutaia Maori (reported through Henry Alley, the purchaser of McCaskill’s land) that Te Moananui received a personal advance on miner’s rights fees, authorised by McLean, as an inducement to accepting the lease. Indeed there are eight entries in the table of ‘payments of the £15,000’ drawn up for the MacCormick commission, five on 10 November 1874 and three on 18 November 1874, specifically identified as ‘advances against future payments’; they were the only entries in the list so described. The entries for 18 November include £718 to Meha Te Moananui.⁹⁸ The item is puzzling, given that Te Moananui was still strenuously opposing the mining agreement in the December meetings, and appears to have taken no part in the subsequent agreement. By the time purchasing of Ohinemuri resumed in 1877, he had died.⁹⁹

The signatories to the February 1875 agreement include a number of people recognisably from iwi other than Ngati Tamatera, including Ngakapa Whanaunga of Ngati Whanaunga and Tamati Paetai of Ngati Pu, but hapu or iwi affiliations are not noted on the deed, and most names do not otherwise appear in the documentary record. There were four subsequent signings, some at least at Shortland, before 24 March, organised by George Wilkinson (licensed interpreter) and witnessed by various settlers. These resulted in a further 61 names being added to the deed. There was no Maori-language version of the deed, but Wilkinson certified that he had translated it at each signing and that his translation was ‘perfectly understood’ by the Maori signatories. (Another licensed interpreter, Mackay’s clerk, John Guilding, was present at the two main signings.¹⁰⁰) The Ohinemuri goldfield block was proclaimed under the Gold Fields Act 1866 and not under the Gold Districts Act 1873, which imposed some limitations on the kind of mining leases that could be issued.

When the Ohinemuri lease was proclaimed, a section of Hikutaia right-owners petitioned the Auckland superintendent (George Grey) in March 1875: they had not known that coal was to be included in the lease.¹⁰¹ Others also were unhappy: the lease (and the

98. ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’, goldfields special block file ma13/ 35(b), Archives NZ (doc A8(a), pp 1026–1237). Dr Anderson has cited Puckey’s report of 31 July 1880 as supportive of the Hikutaia allegation but this is incorrect – Puckey was referring to the advances made to Te Moananui and others in the Thames negotiations of 1867, discussed in the previous chapter: see E W Puckey, 31 July 1880, in Hauraki goldfield petition, Treasury statement, ma13/35(c) [ma13/35g], Archives NZ (doc a8(a), pp 686–692); Alley to Grey, 29 March 1875, Auckland Provincial Government general correspondence, ap2 29/280/75 (doc A8(a), pp 574–577).

99. Monin, p 243

100. Turton, pp 543–548. Mackay also told the Native Affairs Committee that he explained each paragraph ‘three times’: ‘Petition of Epiha Taha and Other Natives of Ohinemuri Brought before Parliament and Select Committees’, 18 August 1875, Le 1/1875/12 (doc a8(a), pp 578–614).

101. Document a8, p 227

proclaimed goldfield) covered 132,175 acres, an area that included the land of right-owners who had not received advances or been party to the 1875 lease agreement. Members of Ngati Hako and Whakatohea (led by Epiha Taha) petitioned the Native Affairs Committee in 1875, and again in 1876 (under Aperahama Tupu). Mackay told the committee in 1875 that the petition was instigated by Pakeha who wanted to make separate and private arrangements about coal. He claimed the petitioners were ‘rahi’ to Ngati Tamatera, whose chiefs could speak for them. He maintained that some of the petitioners had been present when coal was discussed, and one of their principal men, Pineaha Te Wharekohai had signed the deed. After confusing evidence about tribal relationships, the committee recommended that they should state their case to the Native Land Court.¹⁰² Included also in the leased area were promised, but unmarked, reserves at Mataora and Waihi. The last in particular was to lead to confrontations between Maori who had been promised the reserve and miners wanting to gain access to its gold.

Te Hira hoped that the land would eventually be cleared of debt and returned to Maori ownership. Paul Monin records him as stating, ‘Although he [McLean] might take the flesh, [Ngati Tamatera] would keep the bone … The gold has been given to you … and when all our debts are paid you can give [the land] back to us.’¹⁰³ His view was that the mining agreement set a new boundary to Pakeha settlement, as ‘Sir Donald McLean had promised him … that no new Europeans should be allowed to settle on lands south of the Gold Fields line’. He objected to a settler, George Cribb erecting a hut on the line of road from Paeroa to Mackaytown.¹⁰⁴

10.3 Crown Purchasing of Ohinemuri

10.3.1 Purchasing resumes, 1877

With the completion of the Ohinemuri mining agreement, the Government had hoped to dispense with commissioned land purchase agents, but (partly because his 1872 instructions were about purchase of Ohinemuri, not a mining lease, and his remuneration for the latter was unclear) Mackay was retained as a commissioned agent until 1878. He was instructed first by McLean and then by Pollen to stop the raihana system and pay only in cash. ‘Nothing but evil will come of your practice’, Pollen wrote in December 1875. Mackay said he had issued no store orders since 10 June 1875, and was glad to stop because he had laid out £4000 in advances and was unsure of recovering the money. (Indeed, he quarrelled

102. Ibid, pp 229–231; ‘Petition of Epiha Taha and Other Natives of Ohinemuri Brought before Parliament and Select Committees’, 18 August 1875, Le 1/1875/12 (doc a8(a), pp 578-614)

103. Thames Advertiser, 19 February 1875 (Monin, p 243)

104. Document a8, p 229. This hut was in the contiguous Te Aroha block.

with the Government over his terms of employment and in 1880, still privately saddled with some of the expenses he had ‘incurred on behalf of Govt’, declared that he would take no further part in land purchase transactions.¹⁰⁵)

Before long, Crown purchasing of Ohinemuri resumed. The MacCormick commission believed that it recommenced as early as July 1877.¹⁰⁶ The 1875 leasing arrangement was in fact seen in Wellington as a poor return for the money laid out in advances. It was also poorly regarded by local bodies (the Thames Borough Council and various highway district boards which replaced the provinces in 1876), which pressed for the purchase of the freehold.¹⁰⁷ Their demand was supported by the fact that, in the early years of its opening, the Ohinemuri goldfield was not very productive.¹⁰⁸ Administrative costs were high, made more so by the complexities involved. From the Government’s point of view, the solution was to extinguish the difficulties by purchasing the freehold. In Dr Battersby’s words, the decision was made ‘to re-purchase, with cash, interests for which raihana or cash advances had been given before 1875, and to complete the sale by purchasing such other unsold interests as could be acquired’.¹⁰⁹

Early in 1878, a deed of purchase was drawn up for Ohinemuri (see sec 10.3.2). Purchasing of individual interests resumed under Mackay, at the rate of five shillings an acre, and was continued by G T Wilkinson and E W Puckey. Maori needed cash in a money economy and, with the goldfield revenues going to the Crown, had limited sources of income. Some took out miner’s rights and others worked as casual labour, but these activities provided little income. Maori felt that they had lost control of the land as a result of the 1875 agreement, which left them little room to make alternative uses of the land. Although goldfields warden Harry Kenrick seems to have consulted with the owners, virtually all commercial arrangements had to be mediated through him. Although mining was confined to very small areas, much of Ohinemuri passed quickly under agricultural leases, 96 of which had been issued by 1878. In 1882, Ohinemuri Maori complained to Richard Gill, the under-secretary of the Native Land Purchase Department, that the best agricultural land had been leased.¹¹⁰ In these circumstances, many individuals sold their interests in the freehold, and by 1879 Government agents had acquired some 260 signatures, which they estimated would entitle the Crown to two-thirds of the block. The main resistance still came from the Kiriwera hapu of Ngati Tamatera, residing at Komata and led by Tukukino.¹¹¹

105. Document o6, p 269

106. ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), pp 1026–1237)

107. Document a8, p 261

108. Document o6, p 271

109. Ibid, p 282

110. Gill to Native Minister, 29 July 1882 (doc a8, p 261); ‘Return of Goldfields Revenue from August 1867 to June 1882’, md1 82/714 (doc a8, p 269)

111. Document o6, pp 271–272

10.3.2 Allocating the debt

In 1880, against considerable Maori opposition, Wilkinson brought Ohinemuri before the Native Land Court, with a view to having the various hapu interests defined and the outstanding debt allocated against them.

The question arises as to whether the £15,000 that Mackay advanced against Ohinemuri was against purchase of the freehold, or was ‘a consideration for the right to proclaim and possibly, to occupy the gold fields, rather than on account of purchase’. In 1883, the Native Affairs Committee considered the issue in relation a petition from the Thames County Council, which sought a determination that the advances constituted a legal purchase of land.¹¹² The committee rejected the county council’s contention that the Government had commenced to purchase ‘from the moment it first paid any sum of money to the Natives, which might by law have been assessed at any time in land to the value thereof by the Land Court’. Instead, it concluded that ‘the evidence before the Committee is that the sum of £15,000 was not paid on account of purchase but was really a payment for the right to proclaim, and perhaps to occupy the gold fields’.¹¹³

Possibly, the committee was influenced by the fact that the Crown, when it decided to resume purchasing in 1877–78, paid the right-owners regardless of whether they had received pre-1875 payments (advances on mining revenue) or not. The committee’s finding is nevertheless puzzling in that the documentary record shows that from 1872 to 1874 Mackay was employed to purchase the freehold of Ohinemuri (as well as other Hauraki blocks). Although his 1868–69 provisional agreement with Ropata Te Arakai and others had clearly involved a payment for a mining cession, the available documentation (quoted above) indicates that, once he had accepted the Government commission to purchase land in March 1872, Mackay regarded his payments against Waikawau, Moehau, and Ohinemuri to be payments for the freehold; he turned back to the negotiation of a ming lease only in the meetings of late 1874. Moreover, by producing the receipts or vouchers at those meetings, Mackay obliged a number of Maori present to acknowledge that they had accepted payment chargeable against the land, not miner’s rights fees.¹¹⁴ The MacCormick commission of 1939–40 also quotes evidence from both before and after 1875 showing that Mackay’s advances were on account of the purchase of the freehold.¹¹⁵

The MacCormick commission noted that:

Reference to the actual Deed of Conveyance [of the freehold] itself does not help as it is undated, but it does not seem that any further evidence upon the point is required. The

112. Thames county petition, in ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), pp 1026–1237)

113. Document a8, pp 262–263

114. Ibid, p 270

115. ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), pp 1026–1237)

[cession] Deed of 1875 broke into the purchase negotiations for a time but they were revived later upon the same Deed of Conveyance.¹¹⁶

This statement is puzzling in that it assumes that an undated deed of conveyance of the freehold existed before 1875. But there is no evidence that such a deed existed. If it had, Mackay would surely have produced it at the meetings in 1874, whereas he produced only vouchers and receipts.¹¹⁷ The purchase deed was drawn up only in 1878 after the purchasing of freehold interests had resumed in 1877. The deed was explained by Richard Gill in April 1882, who quoted a clause of the deed by which the Crown was to convey reserved areas to the vendors of the land. MacCormick thought it ‘remarkable’ that the deed was undated and did not state the purchase price, but praised Gill for specifying to the Native Land Court each interest already purchased and giving all signatories an opportunity to appear and make objections.¹¹⁸

The purchasing of interests in Ohinemuri seems adequately documented after 1878 but confusion persists about the pre-1875 payments. Mackay’s purpose was to buy the freehold. But whether this was understood by Maori recipients of payments is not clear, because instead of signing a deed they signed vouchers and receipts. The appendices to the MacCormick commission show that payment was made on some 107 vouchers before December 1874, for a total of £12,000. (Nearly £6000 of this was in ‘tribal’ payments, apparently to heads of whanau, which were further broken down into 103 individual payments.) In November 1874, seven payments were made labelled ‘advances against future payments’ – presumably payments of miner’s rights, because the lease agreement was now being contemplated. Then in January 1875 and the first fortnight of February, when the lease agreement had been negotiated but not yet signed, there were a further 30 payments made against vouchers (with no reference to ‘advances against future payments), building the total advances to £15,508.¹¹⁹ The Audit Office investigated Mackay’s transactions in mid-1882 as accounts were being tallied for the Native Land Court proceedings. In the course of the inquiries, an official (probably of Treasury) noted, ‘Mr Mackay was allowed credit for nothing except upon witnessed receipts signed by the Natives’. These receipts or vouchers were held by Gill of the Native Land Purchase Department.¹²⁰

But did Maori understand what interest they were alienating when they signed receipts for advances simply charged (according to the table in the MacCormick commission) ‘On

116. ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), pp 1026–1237)

117. A check in Archives NZ in Wellington has disclosed no pre-1878 deed.

118. Gill to Native Minister, 24 April 1882, in ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), pp 1026–1237)

119. ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), pp 1026–1237)

120. Minute of J G Anderson, 3 July 1882, in ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), pp 1026–1237)

account Ohinemuri’?¹²¹ Tupeka Whakamau apparently did not, because when his involvement in a transaction with Mackay and a storekeeper was investigated by the court, he could not remember whether he had signed a voucher ‘as I do not understand writing’. (His signature was on the voucher.¹²²) Possibly, Mackay failed, when making or authorising advances, to clarify that he was purchasing the freehold of Ohinemuri (not Waikawau or Moehau). To resolve this point is difficult, because the original receipts or ‘conveyances’ have not been located.

When Wilkinson first brought Ohinemuri before the court, he found that many Maori who had accepted payments (in cash or raihana) were reluctant to come to court to prove their claims, preferring to ‘stand to one side in order to allow those who have not sold to get large areas’. Wilkinson reported to McLean:

I have talked this matter over with the Judge and he is of my opinion viz. that it would be prejudicial to the Government to have its claims brought on too soon, as the Natives would be very sore when they found out how much of the block would go into Crown hands, considering how they have been all along trying to baulk the Government as much as possible, they would be sure to raise some excuse of obstruction to prevent the remaining portion of the block from going through the court.¹²³

The Crown was thus able to acquire further individual interests before 1882, when it applied to the court for its interests to be determined (as well as those remaining to Maori). The various hapu had unequal interests in Ohinemuri, and individuals had received different amounts as advances against the land. The debt against the block in 1882 was £15,000 less £6817 paid off in miner’s rights fees and other revenues from the 1875 lease agreement. With the court’s lists of owners determined, it was apparent that many of the 260 persons who had taken payment from Mackay or Puckey were not owners in Ohinemuri. Richard Gill, under-secretary of the Native Department had come to the district to take charge of the complex adjustments that followed. His analysis shows that, when Mackay resumed purchasing (in 1878 according to Gill), a deed of conveyance was prepared:

of those who signed the deed [between 1878 and 1880], 193 Natives were found to be owners in the land when the Title was investigated by the Native Land Court in July 1880. [Because] the Court found the interest of the Grantees to be unequal... Of the 193 Grantees 43 of them have been overpaid the sum of £4415.19.6 and 150 underpaid £5714.6.0, the price of the land in each case being calculated at 5/- an acre. Since the land passed the Court 141

121. ‘Purchase Money – Individual Payments’, in ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), pp 1026–1237)

122. ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), pp 1026–1237)

123. Wilkinson to Gill, [1880] nlp80/365; Wilkinson to McLean, 9 August 1880 (doc a8, pp 265–266)

[further] Grantees have signed the conveyance, with these there has been no difficulty, their actual shares being an order of the Court.

There are as yet 85 Grantees who have not signed the conveyance … 9 have received advances.¹¹⁴

Gill recommended that the 150 underpaid grantees be given additional payments to make up the rate of five shillings per acre, that the overpaid amounts be written off and that he be authorised to negotiate (at between five shillings and seven shillings sixpence per acre, because mining was raising the value of the land) with the 85 grantees who had not yet signed a conveyance.¹²⁵

Dr Battersby’s evidence indicates that, while Native Minister John Bryce approved these arrangements, he also decided to write off all the remainder of the £15,000 debt that could not be recovered from the goldfields lease:

A schedule of payments made to owners, compiled from the Native Department ledgers for the MacCormack [sic] Inquiry, shows that moneys or moneysworth [raihana] paid to Maori before 1875 did not form part of the purchase of the block in 1882, and Maori owners were listed as non-sellers unless they had received a payment after 1875 at 5/- per acre; and this regardless of whether they had participated in the earlier advances.¹²⁶

While this write-off may appear generous, the situation had arisen from the Crown’s determination to acquire the freehold. Had it allowed the mining agreement to continue, the whole of the pre-1875 payments would have been recovered within another seven to 10 years, Maori would still have had the ownership of the land, and at last begun to receive revenues from the mining agreement. The 1882 arrangements meant that some Maori owners had received quite high payments – their pre-1875 payments plus the later purchase price – while others received only five shillings an acre. None received goldfields revenue from the land before 1882; after 1882, with the pre-1875 debt written off, the owners of reserves where gold was found received some revenue.

The more serious impact of the 1875 agreement on Maori was that the burden of debt had resulted in loss of control of the block. In addition, right-owners who had had not received raihana, advances or payments for the freehold were particularly penalised. Dr Battersby cites Gill’s account of a deputation of Ngati Koi who waited on him in 1882 saying that they had not received large money payments from Mackay and asking when they could expect the mining rights’ fees they expected from the 1875 arrangement. Gill had to tell them that the 1875 agreement had charged the £15,000 debt against mining revenue from the whole

124. Gill to Native Minister, 24 April 1882, nlp82/323, in ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), pp 1026–1237); ma13/54b, Archives NZ (doc o6, p 283)

125. Gill to Native Minister, 24 April 1882 (doc o6, p 283; doc a8, p 266)

126. Document o6, p 284. The lists referred to by Dr Battersby are appendices G to 1 following ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), pp 1026–1237).

of Ohinemuri, including their block at Waihi, and they could not expect to receive any revenue until the whole debt had been paid.¹²⁷

Dr Battersby has referred to the view of the MacCormick commission, that in relation to prevailing land values, the Government was out of pocket for the purchase of the Ohinemuri blocks. The commission calculated that up to 1882 the Crown had paid overall £39,390 for land, which, when valued at five shillings an acre, was worth only £16,504.¹²⁸ Dr Battersby comments that:

After mining revenues (£7,838.12.0) and the value of the reserves returned (£1,659) had been accounted for, Maori appear to have received twice as much money as the land, which the government actually acquired, was worth. The cost to the Government was roughly 10/- per acre, coincidentally the price Te Moananui had attempted to obtain from Mackay in 1874!¹²⁹

This may be true for the land value, but if the value of the gold is factored in, the situation looks different, depending on how well the Ohinemuri field actually produced, and how much revenue flowed to the Crown. This matter, and the question of who, after sale of the land, should have received the revenue, will be taken up in the overview on gold issues and Maori in chapter 13.

10.4 Ohinemuri Mining and Further Purchases

10.4.1 Reserves

More than half of Ohinemuri was awarded by the Native Land Court to the Crown in July 1882. In arranging this application, the Crown promised reserves to those who had consented to sell, but was not generous with their extent and allocation. The non-sellers’ interests were excised, at the rate of 10 per cent of the area examined by the court – that is 7237 acres out of 73,251 – but the non-sellers were not to be included in the ‘reserves’ made within the alienated land.¹³⁰

In his purchase negotiations Mackay had promised to the vendors: 2550 acres for Ngati Koi, and 1000 acres each for Ngati Tangata, Ngati Karaua, Te Uriwha and Ngati Hako. In 1882, the court was informed of these promises by the various hapu, but the Crown did not regard itself as bound by them because, whereas Mackay had been negotiating for an estimated 135,000 acres, Maori admitted the sale of only 73,251 acres. The vendors requested one-fifth of the land as reserves but this was declined by Gill; the vendors were offered 10 per

127. Document o6, p 284

128. ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), pp 1026–1237)

129. Document o6, pp 285–286

130. Document a8, p 270

Figure 46: Native Land Court awards in the Ohinemuri block, 1882

cent of the acreage sold, to be defined within one or two blocks. Eventually, ‘tribal’ reserves were agreed as follows: Ngati Tamatera, 3430 acres; Ngati Koi, 1170 acres; Ngati Tangata (with Ngati Karaua and Ngati Koroki), 632 acres; Te Uriwha, 793 acres; Ngati Taharua, 434 acres; and Ngati Rahiri, 147 acres. No restrictions were placed on the titles. Six inalienable reserves of 10 acres or less each were also made, apparently to whanau.¹³¹ Dr Anderson notes Gill’s comment that:

it was necessary, if possible, that the order of the Court about to be made to those Natives who had not parted with their share, should not include land that was at the present time in use for mining purposes or that was held under agricultural leases from the warden of the Goldfields.¹³²

The same restriction was also applied to the location of the reserves awarded to sellers.

131. ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), pp 1026–1237)

132. Gill to Native Minister, 29 July 1882, nlp82/291 (doc a8, p 270)

Figure 47: Reserves in the Ohinemuri block

Much land that would eventually produce very high levels of bullion was awarded to the Crown. The awards to the Crown and to non-sellers, and the intended reserves to be Crown- granted back to sellers, were marked on plans. Surveying took place in 1883 and 1884 and most of the interests awarded to the Crown were declared to be Crown land in August 1884.

10.4.2 Subsequent negotiations and personal connections

Some auriferous land within the Ohinemuri mining block did remain in Maori possession after the July 1882 awards to the Crown. Especially noteworthy were the Komata Reefs, Maratoto, the Waitekauri Valley, and the Ngati Koi reserve near Waihi. Crown purchasing of these lands continued steadily throughout the remainder of the nineteenth century. In these later transactions, mining activity was a determinant of the price that the Crown was willing to offer.

There is a noteworthy link in the Komata, Maratoto, and Waitekauri purchases. A major

Figure 48: Ohinemuri gold mines

shareholder in those areas was Te Rihitoto Mataia whose husband, W G Nicholls, was chairman of the Ohinemuri County Council for a period and brother-in-law of Charles Dearie, collector of goldfields revenue in Thames. After Crown purchase, goldfield revenues that had gone to Maori owners would then go to the county council, so Nicholls represented a body that had a vested interest in Crown purchase. Dearie acted on occasions for the mining warden and resident magistrate on land matters, and at times facilitated or executed Crown purchases.¹³³ Such close connections between influential persons were not uncommon in nineteenth-century New Zealand.

Adding further complexity, native agent Wilkinson, the husband of Merea Wikiriwhi who was a co-shareholder with Rihitoto Mataia in Ohinemuri 20a block, was sometimes suspicious that Dearie was seeking to conduct purchase negotiations in such a way as to favour his brother-in-law’s wife (Te Rihitoto Mataia). Wilkinson advised the Native Department not to give much credence to Dearie’s advice in respect of the purchase of her shares.

10.4.3 The Crown purchase of Karangahake

When the Ohinemuri mining block was first opened most interest among miners focussed on the Karangahake Gorge, near the junction of the Waitawheta River and the Ohinemuri River, conveniently only a little above the head of navigation of the Ohinemuri River. On 3 March 1875, about 600 miners assembled to stake out their claims. Few were successful in staking good claims and, although a 20-stamp battery was erected in 1875, the field was said to be practically deserted by April.

More extensive reefs were opened in March 1882. Three companies acquired most of the claims and worked the Crown, Woodstock, and Talisman mines. After the adoption of the cyanide process in 1889, the New Zealand Crown mine became one of the first mines in the world to trial the process commercially. The population of Karangahake reached about 2000 at its peak, and the area was to become the second greatest producer of bullion, after the Waihi mines, in Hauraki.

The principal mines and the township of Karangahake were located in Ohinemuri blocks 10,11, or 17, on land which was awarded to the Crown in 1882 and declared as Crown land in August 1884. In Ohinemuri 11, a 27-acre non-sellers’ portion was purchased in March 1886.

10.4.4 Waitekauri mining and Crown purchases

The Waitekauri Valley runs from the headwaters of the Waitekauri River near Whakamoehau mountain to the north, to its junction with the Ohinemuri River near Waikino to the south. Gold was discovered along the river and on the slopes to the east and west. The Komata

133. Document a10, pt 2, p 167

Figure 49: Karangahake, circa 1900. Inset: Diagram of a typical stamper battery.

Reefs lie on the upper reaches of the Komata River east of Paeroa and to the north-west of Waitekauri township. Both fields lie in the Ohinemuri 20 block, which was the last subdivision of the Ohinemuri block to be investigated by the Native Land Court, largely because of Tukukino’s resistance. The block was created and title investigated in August 1884, and title was reheard in 1885.

The Waitekauri Valley was prospected prior to 1870, presumably under extra-legal private arrangements. Some claims were pegged out in 1875 and several were amalgamated to form

Figure 50: Crown purchases in the Ohinemuri and Owharoa blocks

the Waitekauri Company. Their mine was left to tributers (miners working for a share of the gold produced) in 1880 but revived in 1894 by London investors who formed the Waitekauri Goldmining Company. The richest deposits were discovered in 1892 high up in the valley and were worked by the Golden Cross mine, which became the biggest producer in the area. The second biggest was the Jubilee mine. The upper Waitekauri was intensively explored in the 1880s and a new mine opened in 1891 after the Empire vein system was located.

The Waitekauri battery and township was situated about half way up the valley in the Ohinemuri 1 subdivision, on land that was awarded to the Crown in July 1882. The upper- middle part of the Waitekauri Valley lies in Ohinemuri 20A. Ohinemuri 20A1 was partitioned out in 1884 and awarded to Rihitoto Mataia solely.¹³⁴ It contained several water races which fed the Waitekauri battery and part of the Jubilee special mining claim. This

134. Document a10, pt 3, p 117

Figure 51: Karangahake geology. Inset: Cross-section of Talisman mine along Maria Reef.
Source: John Henderson and John Bartrum, The Geology of the Aroha Subdivision, Hauraki, Auckland, Geological Survey Branch Bulletin 16 (Wellington: Department of Mines, 1913) and PC Morgan, The Geology and Mines of the Waihi District, Hauraki Coldfield, New Zealand, Geological Survey Branch Bulletin 26 (Wellington: Department of Mines, 1924).

subdivision had been offered to the Crown at 12 shillings sixpence in May 1886 but rejected at that price. It was acquired by the Crown in July 1891 at nine shillings an acre after two well-known miners expressed an interest in the area.

The balance of Ohinemuri 20a was a wedge shaped block, which was subdivided into 20a2 and 20a3 in September 1890.¹³⁵ The upper part of the Komata River and the Komata Reefs lie in the thick western part of the wedge, and part of the Waitekauri Valley lies in the narrow end of the wedge, immediately to the north of 20a1. Presumably that part of the Jubilee Claim not lying in 20A1 must lie in 20a. In 1891, the owners of 20a3 offered to sell their undivided shares at seven shillings sixpence per acre. Native agent Dearie urged Native Minister Cadman to approve the purchase, telegraphing in mid-August 1891 that ‘Considerable attention being called to this block just now on account of new find in

135. Document a10, pt 3, p 126

Teaomarama licensed holding recently taken up. 22 miners’ rights issued for same block during last week.’¹³⁶

The transaction could not proceed until the time statutorily allowed for applications for rehearing of title investigations had elapsed, but Cadman advised the under-secretary of the Native Department that everything should be put in readiness to complete the transaction: ‘The amount of consideration asked by Mr Dearie, viz £12-10-od is reasonable. If mining breaks out in the interim the Natives will double the amount now asked for.’¹³⁷ By the end of August, the increase in mining activity had in fact been such that Rihitoto Mataia had withdrawn her portion from sale and was asking nine shillings sixpence per acre. This price the Crown refused, and in January 1893 Rihitoto Mataia accepted seven shillings sixpence per acre. The sole owner of Ohinemuri 20a2, Merea Wikiriwhi, likewise accepted seven shillings sixpence in March 1893, after having her offer at nine shillings sixpence refused.

The upper part of the Waitekauri Valley, containing the Golden Cross mine, was located in the Ohinemuri 20 parent block, still in Maori ownership. By March 1895, all interests in Ohinemuri 20 and 20c – the vendors wanting to link the transactions – had been purchased at seven shillings per acre save for the interests of Tareranui Tutana. Tareranui’s successor, Haora Tareranui, held out for a higher price, writing that ‘more gold than ever is being obtained from that land’.¹³⁸ His interest was partitioned out, he being allowed to choose the location of his share but having to bear the cost of the subdivision survey. The Crown’s part of Ohinemuri 20 received the designation Ohinemuri 20E when it was awarded to the Crown in April 1896. Haora Tareranui’s chosen ground was given the designation Ohinemuri 20f. In 1906, after a number of claims formerly held by the Waitekauri Goldmining Company were again taken up, Haora offered the block for 12 shillings sixpence per acre. He subsequently asked for 15 shillings per acre because he had had paid for the subdivision survey, but in 1907 agreed to sell at his original asking price.¹³⁹

10.4.5 Maratoto mining and Crown purchases

The Maratoto gold deposits lie to the north of the upper Waitekauri Valley in the upper reaches of the Maratoto Stream, a tributary of the Hikutaia River. Major reefs were discovered in 1887. In 1888, a New South Wales syndicate acquired the reef claim and formed the Maratoto Goldmining Company which ceased operations in 1891. In 1909, the Silverstream Company and the Tellurides Proprietary Company undertook serious reinvestigation. The area was worked until 1972.

136. Dearie to Native Minister (telegram), 18 August 1891, d20.51–52 (doc a10, pt 3, p 129)

137. Native Minister to under-secretary, Native Department, 18 August 1891, d20.53 (doc a10, pt 3, p 129)

138. Haora Tareranui to land purchase officer, Thames, 1 July 1895 d20.97–99 (doc a10, pt3, p 134)

139. Document a10, pt 3, p 137

Figure 52: Waihi mines, 1924- Source: PG Morgan, The Geology and Mines of the Waihi District, Hauraki Goldfield, New Zealand, Geological Survey Branch Bulletin 26 (Wellington: Department of Mines, 1924).

The upper reaches of the Maratoto Stream traverse the boundary of Hikutaia 3 and Hikutaia 4 blocks. Hikutaia 3 was purchased by the Crown in December 1872, shortly after title had been awarded by the Native Land Court. (Auckland superintendant Gillies had been eager to have the block proclaimed within the Hauraki gold district as he anticipated a rush.) Hikutaia 4 lay at the northern edge of the Ohinemuri goldfield block. In March 1884, land purchase officer Wilkinson wrote to the Native Department requesting authorisation of the purchase of the block. None was given. However, the increase in mining activity in the late 1880s spurred the Government’s interest, and in August 1889 native agent Wilkinson was instructed to see if the block could be purchased ‘for any reasonable price’.¹⁴⁰ Wilkinson reported that:

Have made inquiries re possibility of purchasing Hikutaia 4, and think I can buy several shares at 10/- per acre. Some however want £1 per acre but I think they will take less. There is or has lately been considerable mining on the block and I am informed that over £300 goldfields revenue has already been disbursed amongst owners of the block.¹⁴¹

140. Under-secretary, Native Department, to native agent, Alexandra, 21 August 1889, b71.7 (doc a1o, pt 2, p 164)

141. Accountant, Native Department, 21 September 1889, b71. 8–11 (doc a10, pt 2, p 164)

Wilkinson was instructed to offer seven shillings sixpence per acre and by late 1890 had purchased all shares, Rihitoto Mataia being the last to agree.¹⁴²

10.4.6 Waihi mining and Crown purchases

The Waihi deposits lie in low hills to the south of the Coromandel Ranges. The area is blanketed with volcanic lava and ash and the auriferous character of the area was not immediately recognised. In February 1878, two prospectors, McCombie and Lee, drove a test shaft into the Mount Martha quartz outcrop. While working they were disturbed by Maori who declared the area tapu. An altercation occurred, and a Maori woman was tumbled into a pit. According to the prospectors this fortuitously broke the tension; they were able to resume work. The two prospectors extracted trial quartz, the assay for which was high, but the yield obtained by available methods would have been low. The prospectors were unable to find backers and were obliged to abandon the project. We have heard no further evidence on the alleged tapu and are unable to comment.

Mount Martha lies at the western end of the Ohinemuri 8 block, close to the boundary with Ohinemuri 7. In 1882, the area in the vicinity of the mine was awarded to the Crown. As it turned out, the awards to non-sellers in Ohinemuri 8 and Ohinemuri 7 were both at the other ends of the respective blocks from the subsequent site of the mine. The nearest Maori land to Waihi was the Mangakiri reserve for Ngati Koi at Waitete, to the immediate south-east of Waihi.

The Martha Extended Goldmining Company was formed in 1883, but struggled to obtain profitable yields. In 1891, the mine was sold to the London-based Waihi Goldmining Company which in 1894 erected a cyanide treatment plant. A great increase in yield resulted. The mine continued to be worked as an underground mine until 1952. Substantial nearby deposits were also worked by the Grand Junction and Union Hill mines. The Martha mine was reopened as an open-cut mine in 1987, and a major expansion of the mine took place in 1999 to 2000. The Waihi mine is now New Zealand’s second largest gold producer.

A number of owners of the Mangakiri reserve offered to sell it at 10 shillings per acre in November 1894, explaining that ‘The value of this block of land consists in the gold mines which are situated upon it, also the mining quartz battery, the water race, tramway, butcher’s shop, and some farm sections which are let at certain rentals.’¹⁴³ Land purchase officer Mair telegraphed the chief land purchase officer on at least three occasions, stressing that it was ‘a most desirable block’ and that the owners were in such want of money that it could be obtained for as little as seven shillings sixpence per acre. Purchase was approved and, by April 1896, 64 out of 74 shares had been purchased by the Crown, some 85 per cent of the

142. Document a10, pt 2, pp 164–166

143. Ibid, pt 3, p 99

Figure 53: Waihi mining, 1980

reserve then being awarded to the Crown. The non-sellers were awarded acreages at the north-east of the reserve, away from Waihi.

10.4.7 Owharoa and Waikino

The Owharoa Falls are in the Ohinemuri River upstream of Karangahake. The Owharoa diggings are in the Coromandel Ranges to the north and north-east of the falls, including the Owharoa Stream and the lower Waitekauri Valley.

The largest operator was the Maoriland mine, located in Owharoa 2 or Ohinemuri 5 block, on land awarded to the Crown in 1882. However, the most valuable land in the area was the site of Waikino township, above the Owharoa Falls near the junction with the Waitekauri River, located in Owharoa and Owharoa 3 subdivisions. The land was good agricultural land. Both subdivisions were surveyed at the expense of A J Thorp. Owharoa was privately purchased by Thorp in 1877, the land, although proclaimed, being excepted from the Ohinemuri purchase deed and the conveyance being permitted by the Land Purchase Department. Owharoa 3 was purchased by the Crown in two sets of transactions at a price of around £1 per acre. Three of the four owners agreed to sell before the June 1882 awards and the remaining owners interest was purchased from his successors in late 1885.

10.5 Treaty Issues Arising

10.5.1 Claimant submissions

In closing submissions, counsel for the Wai 100 claimants, has stated that, given the expressed wish of many Maori to keep Ohinemuri:

the resultant saga of Crown pressure and coercion, initially to open the land for gold mining, and then simply to acquire the land is … a particularly striking example of the Crown’s failure to actively protect the interests of Hauraki.

The Crown pursued its goals:

► By making targeted payments to Ngati Tamatera individuals who supported the opening of Ohinemuri for gold mining;

► By deliberately fostering debt amongst Ngati Tamatera individuals through advances of goods on credit and cash advances and charging the debt against lands including Ohinemuri;

► By securing a lease over Ohinemuri to satisfy the debts; and

► By acquiring the freehold of Ohinemuri after Crown officials promised that the Crown would not seek to acquire the freehold.¹⁴⁴

Important steps in these processes included:

► the agreement of 19 December 1868 with Te Arakai, Wikiriwhi Hautonga, and others openly used the payment to ‘drive a wedge between those who were opposed to opening Ohinemuri and those who supported it’;

► the payment of raihana and ‘the exploitation of tangi and the cultural obligations that it created for Hauraki’;

► the acquisition of blocks adjoining Ohinemuri; and

► the transfer of debts incurred by individual Maori in respect of such lands as Waikawau and Moehau onto Ohinemuri.

Counsel points out that, although Mackay was to argue that raihana was a practice foisted on him by storekeepers and Maori, he admitted that he also viewed it as ‘the only way to break down the barrier of exclusiveness set up by the King party’.¹⁴⁵ Raihana payments were made to individuals without the extent of those individuals’ interests in Ohinemuri being known, or even if some of them had customary interests there. Because they were made piecemeal, the tribal leadership had little possibility of controlling the practice. Evidence is also cited to suggest that the storekeepers charged inflated prices for goods on raihana orders.¹⁴⁶

Counsel notes that:

The Crown has accepted that raihana contributed to the alienation of Maori land, but draws a distinction between ‘debt, raihana, and advances on purchases’. … In practice it is hard to see how such a distinction can be drawn. These practices fostered debt in an individual, satisfied by the alienation of tribal interests in land. In all cases the funding for the practice was provided by the Crown and in all cases the ulitmate aim was to provide a wedge to enable the acquisition of land, often land not able to be purchased by more open, conventional means. In the case of Ohinemuri, the Crown set about acquiring the interests of individuals before the title had even been determined by the Court.... It is submitted that in Treaty terms there can be no distinction between the fostering of debt, raihana, and cash advances. … The Crown has conceded that the practice of raihana was prejudicial to Maori and all it can offer in mitigation is that it was abandoned from 1875, a matter of cold comfort to Hauraki. [Emphasis in original.]¹⁴⁷

144. Document y1, p 134

145. ‘Statement of Mackay Laid Before the Tairua Investigation Committee’, 7 October 1875, AJHR, 1875, i–1, p 45 (doc y1, pp 135–136)

146. Document y1, p 137

147. Document y1, pp 91–92

Regarding purchases of lands adjacent to Ohinemuri, counsel for Wai 100 notes that these included the private purchase by H C Young of Komata North, land awarded to Ngati Taiuru hapu of Ngati Tamatera (or ‘Ngati Kama’ in one account) against the claims of Tukukino and Te Kiriwera hapu at the first investigation of the court in May 1871. Young purchased the interests of Rihitoto Mataia, Mataia Te Ngahira, and others in April and May 1874, isolating Tukukino, who had been awarded a minority interest. He and Te Moananui protested to Puckey, but he said he could not intervene because the land was the subject of a Crown grant.¹⁴⁸

Counsel further notes that at Whakatiwai on August 1874, Mackay confronted the assembled Maori with the extent of the debts charged against their lands and, when Te Hira protested against Ohinemuri being charged, said that his particular interests could be partitioned out.¹⁴⁹ The implication is that the Crown was prepared to deal with individuals and hapu severally, but not to recognise Te Hira (and other Ngati Tamatera leaders) as having a right to control transactions respecting the whole of Ohinemuri. At the Pukatea-wairahi hui of 19 November 1874, Mackay sought to humiliate publicly the various rangatira with disclosure of their personal borrowings, or those of their immediate family.

It is submitted [that] Mackay deliberately waited until he had a large enough debt before he confronted Ngati Tamatera with the prospect that Ohinemuri would have to be surrendered. It was only at this late stage that they were able to see what he [Te Moananui] described as ‘the pit yawning which had been hidden’. Te Hira would always have stood firm, but in the end he had little choice in the matter. Mackay’s tactics were simply reprehensible by any standards and constitute a severe breach of the Crown’s duties to act with utmost good faith and to protect the interests of Ngati Tamatera.¹⁵⁰

Counsel for Wai 100 thus considers that the ‘agreement’ to open Ohinemuri to mining was a forced agreement. By it, the Crown acquired the right to mine not only gold but also coal, kauri gum, and other minerals, the right to cut timber other than kauri, and the right to grant leases. Moreover, the Crown failed to alert Ngati Tamatera that the ‘cession’ involved more than gold, or the potential value of the coal and other minerals: ‘In essence, although the freehold remained with Ngati Tamatera all useful surface and sub-surface resources were taken by the Crown, as well as the right to utilise the land.’¹⁵¹

Counsel notes that Aperahama Tupu and 65 other of Ngati Hako and Whakatohea who petitioned Parliament in 1876 had received no advances and had not consented to the

148. Ibid, p 137; doc a8, pp 221–223; doc a10, pt 2, pp 202–209. Alexander shows that Young sold his interests to the Crown in 1879 and that the block was subject to several rehearings in the court up to 1893.

149. Document 06, p 244; doc y1, p 139

150. Document y1, p 140; doc a8, p 205; ‘Proceedings of Native Meeting Held at Thames’, p 17 (doc a8(a), p 562)

151. Document y1, p 141

mining agreement. In its amended statement of response of 2 September 2002, the Crown denied ‘that it is obliged to obtain the consent of all rightholders before making goldfield cession agreements’.⁵² This, counsel for Wai 100 suggests, ‘appears to be a clear breach of the principles of rangatiratanga embodied in Article 2 of the Treaty of Waitangi’.¹⁵³

Counsel for Wai 100 then sets out a series of claims of Treaty breach, in respect of the purchase of the freehold of Ohinemuri:

From 1877-1882, the Crown acquired the freehold of Ohinemuri despite clear and express promises at the time of the cession that the Crown would not seek to purchase the freehold, but rather would give the opportunity to repay the debt...

The Crown claimed that it acquired interests in Ohinemuri by making advance payments to individuals and having them fix their name to an imcomplete deed. The Crown, in fact, treated pre-1875 payments as payments on account when there is no evidence that these were intended to be so. Payments from miners’ rights were not paid out by the Crown even to those who had received no payments for [the freehold of] Ohinemuri, but rather retained by the Crown to reconcile the debt owing. The Crown also argued that £15,000 that had been expended prior to the 1875 cession was a down-payment towards purchase rather than a payment towards the leasing of the land. This was also used to coerce Hauraki to sign the conveyance for the land. A Native Affairs Committee in 1883, responding to a petition from the Thames County Council found that the expenditure was for the right to proclaim the land open for mining, not as a payment towards the purchasing of Ohinemuri however it recommendations were ignored.

The Native Land Court assisted the Crown by advising its agents not to bring the Crown’s claims to Ohinemuri [yet,] to allow further time for more interests to be acquired...

Ultimately the Crown arranged to have non-seller’ interests partitioned out. It also ensured that the non-sellers’ lands were placed in those parts of the Ohinemuri where miners’ rights or leases had not been granted. In this way potential income was not made available to them.

It is a significant final note that many of the 260 signatures on the draft deed of conveyance that had been collected by Mackay and Puckey were found by the Court not to have any interests in the block whatsoever...

The Crown breached the principles of active protection, rangatiratanga and utmost good faith through its dealings with Ohinemuri.¹⁵⁴

152. Paper 2.550, p 35

153. Document y1, p 142

154. Ibid, pp 142–144

10.5.2 Crown submissions and claimant responses

Crown counsel has acknowledged that:

The practice of raihana, particularly in relation to Ohinemuri, is one of the more regrettable elements of the Hauraki claim. As Dr Battersby has noted, the basic concept was at the time ‘widely considered undesirable’. Such contemporary criticism can properly be seen as reflecting a moral judgement about the wrongness of exploiting the vulnerability of Hauraki Maori.¹⁵⁵

Having said that, Crown counsel took issue with a number of assertions by claimant counsel. He noted that counsel for Wai 100 had criticised the distinction Dr Battersby had sought to draw between ordinary debt, raihana and cash advances on purchase, stating that all these practices ‘fostered debt in an individual’. Crown counsel, however, has submitted that:

the notion of fostering ‘debt’ is not one that accurately describes the situation. As Dr Battersby has pointed out, raihana is not simply created by the actions of Crown Land Purchase Officers – and the practice continued despite attempts by both Mackay and Te Hira to curb it.

Crown counsel also noted Dr Battersby’s querying the contention that poverty and need drove Maori into debt and reliance on raihana. The evidence of Hauraki cultivations, and provision of food at hakari (even where raihana were also involved) suggests otherwise. Attention is drawn to Mr Monin’s book, This is My Place, which suggests that expenditure on hakari for cultural reasons was a significant cause of Hauraki ‘impoverishment’ in the 1870s. Counsel also challenges Dr Anderson’s statement that raihana were ‘instrumental in the alienation of interests in huge blocks – raihana payments were made for undefined areas within some 200,000 acres of land under negotiation’. Such ‘broad assertions’ he suggests should be critically assessed. He noted that Dr Battersby found ‘no further reports of raihana or negotiations to procure supplies’ after Taraia’s tangi in April 1872, and Mackay acted on Hauraki Maori’s instructions to provide raihana for large quantities of goods for the Whakatiwai hui of 1874, to be charged against the Waikawau block.¹⁵⁶

With regard to the Ohinemuri transactions generally, Crown counsel makes qualified concessions:

The Wai 100 claimants have described the Ohinemuri as a ‘saga of Crown pressure and coercion’. While there are elements of pressure and coercion the actions of the Crown throughout were generally slow, cumbersome and driven by a desire not to confront

155. Document aa1, p 179

156. Document p 5, p 68; doc a6, p 205; doc aa1, pp 179–180

opposition. Having said that, the Crown repeats its acknowledgement that Ohinemuri was a particularly regrettable transaction.¹⁵⁷

Crown counsel then observes that the Wai 100 claimants ‘have been particularly critical of the Crown driving a wedge between “those who were opposed to opening Ohinemuri and those who supported it”’, and, similarly, ‘that the Crown failed to obtain “the consent of all rightholders”’. Such criticisms, Crown counsel submits, overlook Dr Battersby’s point that ‘it is too simplistic to accept that the reality of chiefly authority over certain lands was manifest only in expressed opposition to the Government’, and ‘that it is essential to understand the depth of the debate which occurred between Hauraki communities over gold, land and other political questions’¹⁵⁸

Crown counsel also questions the Wai 100 claim ‘that the Crown acquired the freehold of Ohinemuri despite “clear and express promises at the time of cession that the Crown would not seek to purchase the freehold, but rather would give the opportunity to repay the debt”’. ‘This is not correct’, in Crown counsel’s view:

Ohinemuri had not been part of the original raihana arrangements, but numbers of Hauraki Maori had received cash for their interests in it. Mackay then moved to treat Ohinemuri as a purchase as well. However, Te Hira resisted, the Government conceded, and the owners of Ohinemuri were given an opportunity to repay the money.

Hence the mining lease agreement of 1875, from which the Crown would recover its debt (of nearly £16,000) and the plan that from then on Maori would receive the mining revenues:

However, only half that sum was recovered from the block after 1875 and the rest was written off in 1882. The debt then ceased to be an issue. From 1878 the block was completely repurchased [at five shllings an acre]... ie the Government did give the owners an opportunity to repay the debt – they repaid about half and the rest was written off... Ultimately the Government paid some £39,309.9.6 for the Ohinemuri Blocks - which at the Government price of 5 shillings per acre was worth only £16,504.15.0.

Crown counsel concludes by quoting Dr Battersby’s summary to the effect that ‘the Ohinemuri purchase was an elongated and unsatisfactory process to all concerned’: to Maori owners (whose interests were bought out over a long period of time); to Mackay, who ended up out of pocket personally for some of the advances made), and the Government (which spent thousands of pounds over many years buying undefined interests on a block to which it could not obtain title till the land had passed through the court).

157. Document aa1, p 181

158. Ibid, pp 181–182

The most at fault was … clearly the Government, the policy of which was inconsistent over time, moving from purchase to lease, to purchase, and from purchase on commission to salaried agents – all of which were influenced by practical responses to the circumstances (and these must be taken into account), but which left a considerably complex and easily confuse situation.¹⁵⁹

In response, counsel for Wai 100 questions Crown counsel’s suggestion that raihana payments ceased in 1872, and notes that ‘raihana payments locked a huge area of land into negotiations for purchase before the actual tribal right holders and leaders had been properly determined. Thus, even after the practice ended, the consequences continued for a considerable period.’¹⁶⁰

On the purchase of Ohinemuri, counsel for Wai 100 is dismissive of the Crown’s defence that time was given for the debt to be paid off and the unpaid balance was written off and ceased to be an issue: ‘This does not however get around the issue that the Crown nonetheless proceeded to acquire the freehold almost simultaneously with the writing off of the debt, which it was submitted was in breach of the agreement reached.’¹⁶¹

10.5.3 Tribunal comments and findings

We welcome the Crown’s frank acknowledgement that the acquisition of gold-mining rights, then the freehold, of Ohinemuri were attained by a ‘regrettable transaction’. But we wonder why the Crown does not go further and explain why governments persisted in pressing for the acquisition of Ohinemuri. There is no question that the Crown, first through James Mackay, then through other agents, sought from 1867 to the 1880s, with little if any remission, to ‘open’ Ohinemuri against the wishes of many Maori right-owners, and to overcome the resistance of Te Hira, Te Moananui and other leaders of Ngati Tamatera to either mining or sale.

Crown counsel’s contention is that the Government did so because there was strong public interest in securing access for the telegraph, roads, and land for general settlement purposes. Gold mining would serve the interests of investors, miners, and some Maori, hoping to secure revenues from the opening of mines. A case can be made that the Crown should, in the public interest, have controlled transactions in relation to auriferous lands through the assertion of the pre-emptive right to negotiate. We are not persuaded, however, by the reason that Crown counsel has suggested for this action, namely ‘to ensure that land would not be closed to mining once it had passed out of Maori ownership’.¹⁶² It would have been

159. Ibid, p 182

160. Document aa14, p 41

161. Ibid, pp 41–42

162. Document aa1, p 171

far more likely that private owners would have developed the field under their own aegis. Without a Crown monopoly, Maori owners would have been able to negotiate directly with private interests, possibly on a leasehold basis, as they did in the Thames reserves and foreshore. In assuming the pre-emptive right the Crown also assumed a particular responsibility to ensure that Maori were treated fairly in purchase negotiations.

In our view, the methods which the Crown employed to open Ohinemuri indeed breached Treaty principles. The central issue is whether the land was, as the claimants put it, ‘tribal’ land. The relevant concepts surrounding tribal leadership customary land tenure were discussed in section 2.2.6. We indicated there that we prefer the view that different kinds of land rights were held at several levels of Maori society – individual, family or whanau, hapu and iwi or even wider – within loosely defined boundaries. Most Maori testimony in these hearings, and most scholarly literature, indicates that the hapu or cluster of closely interrelated hapu was the core socio-political entity of Maori life, the various whanau exercising their rights in land and forest and waters by virtue of their membership of such a community, and (in addition to their day to day family life) contributing to the community’s larger activities and helping to defend its territory.

It should be evident from this outline that the transfer of land rights to strangers – people who were not born into the community or had not married into and dwelt among it – could not be within the power of individuals and families alone, for such transfers touched upon the prerogatives of the wider community, the hapu or hapu cluster. Even the most senior men were constrained by that principle. A high-ranking rangatira might transfer certain rights to rangatira from other tribes, but ultimately his action reflected community opinion. This communal land control was clearly recognised by the British authorities in New Zealand and articulated by such men as McLean in the 1856 board of inquiry, who said that there was, strictly speaking, no such thing as individual tenure in Maori society.

The leaders of several Hauraki hapu and iwi had sought to make a controlled engagement with the wider world, engaging in its commerce and inviting Pakeha settlers into the district. But many Maori recognised from the outset that this was a risky enterprise, and that local communities could easily become overwhelmed and lose control. Hauraki involvement with the Kingitanga from the late 1850s reflected that anxiety, and the felt need to resist further land alienation.

Gold rushes posed a particular problem. Despite the concerns just mentioned, many Hauraki Maori had engaged with mining, themselves or through the leasing agreements of 1861 and 1867 which opened the Coromandel and Thames fields. But, although many Maori benefited from those fields, the anxieties remained. Some leaders like Te Hira and Tukukino had sought to limit Pakeha encroachment. Meha Te Moananui accepted mining in the Thames field, but by 1870 supported Te Hira in keeping Ohinemuri closed. In a situation of perceived threat to the wider community, he and other senior rangatira recognised in Te Hira an authority that over-arched the particular rights of the various local hapu.

In part, the governments of the day acknowledged this, because they did refrain from opening Ohinemuri to mining until the chiefs had withdrawn their opposition. It is to the Crown’s credit (which Te Hira acknowledged to Mackay) that encroaching miners were removed from the land in 1869–70 and that the Government deferred declaring Ohinemuri open until 1875, after it had finally secured the reluctant acquiescence of Te Hira in a mining agreement. But, it is equally clear that the successive governments, through their principal agents, set out to isolate the people they called ‘Kingites’ and ‘Hauhaus’, and to force their acquiescence in the opening of the land. This is clear from the stated intentions of the principal Crown agents in the field, but also from the support these agents had from their superiors in Wellington, and from the provincial authorities in Auckland.

The Crown did not create all the divisions among Ohinemuri right-owners about opening the land to mining. Crown counsel rightly point to the fact that significant sections of right- owners, impressed by what could accrue to Maori from earlier mining agreements, wanted similar arrangements, and approached Mackay as readily as he approached them. But in December 1868, Mackay deliberately sought to exploit the division of opinion, indeed to widen it, by signing a ‘preliminary agreement’ with Ropata Te Arakai and others, and offering an advance on miners rights fees of £1000 and a ‘bonus’ of £500, the latter essentially a bribe to win further support. It is unclear when the money was actually paid over: the £1000 was spoken of in late 1874 as an advance paid.

The saga of ‘raihana’ then ensued. The morality of authorising raihana payments was always ambiguous. In many senses it arose out of real need in Maori communities, such as the dislocation caused by war in Waikato, and intervals before crops could be grown or harvested. Dr Battersby, as noted in section 10.1.7, cites examples of Wilkinson’s dilemmas after raihana had been stopped. These situations created real dilemmas for field officers. On occasion it would have been callous of them not to give way. There is also some justification for Mackay and other officials giving Maori credit for food and other necessities, rather than cash which could be spent on alcohol.

The issue in terms of Treaty rights, however, is whether the costs of raihana or other advances should have been charged against the land. We have discussed this issue in the previous chapter (see sec 9.7.3). In that instance (in Thames), advances were paid in the context of a nearly completed agreement to include the land in the goldfield, and the annual revenue was virtually assured. To charge lands where agreement had not been reached, and against the freehold of the land rather than anticipated revenue from mining, was very different from the Thames situation, and unacceptable in our view.

It is also offered in extenuation by the Crown that Mackay and other officials were not solely responsible for the raihana system: Maori and storekeepers colluded in passing credit arrangements on to Crown agents. This is correct, as Te Hira acknowledged in his debates with Mackay in late 1874, but it does not exonerate the Crown. Indeed, as Crown counsel acknowledges, ‘Mackay did not attempt to stop the raihana system, although he did try to

limit it – but was thwarted by store-keepers who did not cooperate with this and ultimately Mackay paid them, encouraging the practice to continue’.¹⁶³

Moreover, Mackay’s own statements show that he was fully aware of the leverage over Ohinemuri that raihana gave, and used it for that purpose. Although Maori leaders asked him for supplies for Taraia’s tangi and the hakari at Whakatiwai, his request to Gillies for £2000 additional funding for the former shows how deliberate was his use of the opportunity to gain leverage over the ‘Kingite’ Maori who had refused the cash advances he had been laying out for the purchase of Ohinemuri. He defended his practice before the committee investigating the Tairua purchase as the only way to break down the barrier of exclusiveness set up by the King party.¹⁶⁴ As the claimants correctly point out, this statement is tantamount to an admission that this was his ulterior purpose all along. He was persisting with raihana advances even after successfully negotiating the mining agreement over Ohinemuri and despite a flurry of public criticism of the practice. It took serious questioning in the Audit Department and Native Department in mid-1875 before McLean finally instructed Mackay to cease payments in goods, an instruction backed by Pollen’s entreaty in December 1875.¹⁶⁵

One of the worst features of raihana was its secretiveness. While not every order or signing of vouchers was made secretively, it was the cumulative effect of them that was hidden. The aggregate of the multiple charges against Ohinemuri shocked and dismayed Maori leaders when it was revealed by Mackay in 1874. This was the source of Te Moananui’s charge that the Crown’s acquisition of rights in the land was not done ‘in a straightforward manner’. Ngati Tamatera were ensnared, and it is impossible to deny that Mackay intended them to be. Even the local settler press found this repugnant. Although Mackay got his signed vouchers and never hid from individuals that a reckoning would be due some day, his methods, in our view, involved an abuse of the Crown’s power: with the connivance and support of his superiors, he took advantage of the dispersed nature of Maori rights in land, and embarked upon a deliberate course of action designed to create a burden of debt among as many right-owners as possible, giving the Crown control of the situation. The Crown should never have allowed such a crippling debt to develop, without ensuring that the borrowers had the means to repay in cash. The transactions in Ohinemuri were engineered by the Crown through the cumulative effect of the many raihana payments or advances to individuals, and the authority of the rangatira in whom the control of Ohinemuri had been entrusted was circumvented.

We agree that another dubious aspect of Mackay’s methods was (in Dr Anderson’s words) the ‘failure to define the ultimate price and acreage of the land concerned on the vouchers’.¹⁶⁶

163. Document o6, p 265

164. Ibid, p 267; doc a8, p 248

165. Document a8, p 250; doc o6, p 269

166. Document a8, p 250

The concern of the Audit and Native Departments was that this left them in an unsatisfactory position. But the lack of unambiguous discussion of the price to be paid for the land at the time the advances were made, left Maori not knowing how much land they would have to relinquish to meet the debt. Mackay was adamant that Maori who took raihana or advance payments knew that the land would be valued at the prevailing price on the day (which he later argued to be considerably less than five shillings an acre), and forcefully rejected Te Moananui’s demand for a valuation of 10 shillings an acre. But what could have been the understanding of Maori at the time they signed the vouchers? Prices varied widely. Indeed, we query whether any valid contractual agreement had been reached at all through raihana and advances, when no per acre price had been stated on the vouchers, nor any precise area of land. The dismay of Ngati Tamatera was that not only were the lands of Moehau and Waikawau insufficient to meet the debt but also that a huge debt lay over Ohinemuri. Maori were often accused by Government officers of evading their obligations and engagements, but what impresses in this instance is that they were willing to accept that debt did lie over the land, and agreed to try and meet it through the mining agreement. But we accept the claimants’ view that Te Hira, Te Moananui, and others were pressured into this agreement by their situation in 1874.

One question for us was whether a relevant distinction can be drawn between payments in cash and raihana. Part of the problem, about which the Ngati Tamatera leaders complained at the time, was the ambiguity about what goods were worth. They asserted that storekeepers inflated prices and sold goods of poor quality, and we have seen some evidence that this happened at times. Mackay said that he tried to ensure that Maori got goods at fair value; he probably did, but it was difficult to police the transactions. By 1875, everyone concerned was of the view that payments should be in cash. That at least gave Maori much more control over what they got for their money from the storekeepers.

We share the claimants more fundamental objection to the cash payments, both before 1875 and after purchasing resumed in 1877; namely, that they were made to individuals, privately, for land which was owned tribally. Transactions over tribal land should have been made with the acknowledged tribal leaders, in open meetings. The purchase of individual interests undermined and frustrated efforts by the Ngati Tamatera leaders in particular to retain the land. We also note that many of the 260 signatures collected by the Crown agents for Ohinemuri were of persons found eventually to have no customary interest in the block. Yet those signatures had been instrumental in causing the land to be brought into court and eventually partitioned.

Essentially, the complaint over purchase of the undivided interests of individuals in Ohinemuri is a sub-category of the claimants’ fundamental criticism of the Native Land Acts: namely, that they facilitated and legalised dealing in the interests of individuals, thus effectively side-stepped the control of senior tribal leaders opposed to alienation. We accept the claimants’ view on this most important issue, and accept also the view of the Waitangi

Tribunal in the Te Roroa Report 1992 that the making of advance payments ahead of the investigation of title was ‘undoubtedly an established pressure tactic, an unfair practice designed to purchase land as quickly and cheaply as possible, and incompatible with the Crown’s fiduciary duty under the Treaty’.¹⁶⁷ We shall discuss this issue further in the next part of this report.

Crown counsel have argued that it would have been unreasonable to have expected unanimity among the owners: such a requirement would have been tantamount to blocking many transactions altogether. We agree that this might have been so in many blocks, and that possibly more of New Zealand might have remained in Maori ownership. Article 2 of the Treaty clearly recognises the various levels in which property rights were held in Maori society. In the Maori version:

Ko te Kuini o Ingarani ka wakarite ka wakaae ki nga Rangatira ki nga hapu ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenu o ratou kainga me o ratou taonga katoa. [Emphasis added.]

In the English version, the Queen:

confirms and guarantees to the Chiefs and Tribes of New Zealand and to the respective families and individuals thereof the full exclusive and undisturbed possession of their Lands Estates Forests Fisheries and other properties which they may collectively or individually possess. [Emphasis added.]

Both Maori custom and the Treaty recognised the collective property rights of rangatira and hapu, as well as those of individuals. In our view, for the Crown to seek ways and means of circumventing tribal or customary collective leadership, is very much in breach of the spirit of article 2. Te Hira and Te Moananui, with Ngati Tamatera, had eventually joined in the goldfield agreements in Thames. They had even agreed that the debts charged against Waikawau and Moehau would have to be settled by the alienation of the freehold of those blocks. They had also permitted (with no more than a show of protest for form’s sake) the mail and the telegraph to pass through Ohinemuri, although suspicious that this would lead to greater Pakeha control. They were then hounded by Crown agents into opening Ohinemuri first to gold-mining then to the alienation of the land. This Crown action shows its contempt at that time of Ngati Tamatera’s wish for a measured engagement with commerce. ‘This is my place’, said Te Hira in 1870. ‘It is only a little piece. Let it remain to me.’¹⁶⁸ But, despite Treaty promises, his wish was not allowed.

We note the complicating factor that not all interests in Ohinemuri were held by Ngati Tamatera. Many Ngati Koi and Whakatohea had supported a mining agreement before 1874. The question of whether these groups were rahi to Ngati Tamatera has been addressed in

167. Waitangi Tribunal, The Te Roroa Report 1992 (Wellington: Brooker and Friend Ltd, 1992), p 60

168. Monin

section 15.4.1; that argument was still being asserted through appeals over blocks in the Ohinemuri district late in the nineteenth century. If in fact land was in the possession and control of Ngati Koi, Whakatohea, Ngati Karaua, or Ngati Hako as autonomous groups, then each should have been free to deal with their land (or not) as they saw fit, under their tribal leadership, just as much as Ngati Tamatera were free to deal with theirs. The principle seems clear.

The facts of customary ownership were, however, often far from clear. In those circumstances, the Crown could seek to negotiate only with the intersecting tribal leaders to agree on a division of their interests, or refer the problem to the Native Land Court. As it happened, all concerned in Ohinemuri seemed willing to accept the court, no doubt expecting to prevail over their rivals there. The outcome was not what Te Hira hoped for, and land on the borders of Ohinemuri began to be alienated, partly to meet the costs of the surveys necessary to win the victory in court.

We should make some comment on the question of divisions within Ngati Tamatera and the partition of that tribe’s interests. Mackay argued that Te Hira was in the minority, many right-owners having agreed that they had sold their interests, and therefore he should partition out his individual pieces. Here, Mackay appears to be proposing to deal at whanau level. He might have thought that this was similar to what he had done in Thames in 1867–68, but there had been deep discussion within Ngati Maru which resulted in a general consensus (see sec 9.2.3). In Ohinemuri, Te Hira had withheld consent and was supported in doing so by the majority of Ngati Tamatera, and associated hapu. Te Moananui, for example, supported Te Hira’s authority as was exempified by his statement that even if the ‘owners of the land’ accepted Mackay’s payments it would avail them nothing, without Te Hira’s consent. Certainly, within Ngati Tamatera (and less certainly with associated hapu) there had been a decision in 1867–68 to take a stand over Ohinemuri, with the mana vested in Te Hira to hold the land.

In our view, then, for Mackay to propose that Te Hira should sever out his pieces and let him (Mackay) negotiate a deal with the vendor groups would have infringed Te Hira’s right and role as the ‘tribal’ or collective leader. It would have been akin to the fatal course that Governor Browne and McLean took in 1860 when they told Wiremu Kingi that he could cut out his piece of Waitara but not veto the sale by Teira.

This time McLean did not press such a course and the issue was blunted by the mining agreement of early 1875. But the veto power of recognised senior tribal leaders in Ohinemuri was also circumvented by the titles created under Native Land Acts and the power vested in the court to partition blocks. We discuss below in chapter 17 the fact that Tukukino, one of eight owners named by the court in Komata North, had his interest partitioned out, and his authority circumvented, when the other seven owners sold their shares. In the end, the non-sellers in Ohinemuri also had their land partitioned out after the Crown applied to the court in 1882 for the share of the block to which the aggregate of their individual purchases

entitled them. By that time, Te Hira’s strength had ebbed (he died in 1883) and the block was no longer under effective tribal control. Mere Kuru, who had long stood with her brother in holding Ohinemuri against mining and settlement, also gave up the struggle; in 1882 she too sold her individual interest to fund her son’s education.¹⁶⁹

Two other matters require our comment: first, whether Crown agents acted deceptively in framing the 1875 mining agreement, failing to inform Maori that other sub-surface resources besides gold, especially coal, were subject to it. Secondly, whether the Crown agreed that it would not pursue the freehold of Ohinemuri in 1875 and then went back on its word.

On the first matter, we consider that no deliberate deception was practised. The agreement was a written document openly negotiated with the leaders who discussed it with Mackay in late 1874, and later with McLean. It was numerously signed, first by about 150 people in the major public meeting then by about 60 others in three subsequent signings. No Maori-language version was drafted, and this is certainly a weakness in the Crown’s position, but the evidence indicates that it was explained in Maori by Mackay, paragraph by paragraph, at the main signing and formally translated by Wilkinson at each other signing. It is entirely possible, however, that those not present were not fully cognisant of the terms or realised the import of them. Certainly, many who had not accepted advances against the land were puzzled and angry when they found out that they too would have to do without miner’s rights revenue until the debt was paid. There is a case to be made for the Crown officials to have allowed more time for the terms to be circulated and discussed before ratification by the leadership at a later hui. Too often in such negotiations the Crown acted to ‘seize the moment’ when it had Maori leaders on the back foot, and before full community understanding had been secured. But the making of the Ohinemuri lease agreement extended over more than two months, and no deliberate deception appears to have been intended.

It is also debateable whether the balance of advantage and disadvantage in the terms added up to a prejudicial effect. If the objective was to clear the debt off Ohinemuri as quickly as possible, then the more items that could be put into the agreement to reduce it the better. In principle, once the debt was cleared, the revenues from all those items would then have been payable to the Maori owners. The problem with Ohinemuri was not in the wide-ranging nature of the agreement: it was in the extent of the debt held against the land (and the Crown agent’s methods of raihana and advances which resulted in this debt), the slow rate at which mining revenues could have cleared it, and the short-circuiting of the latter desirable process through Crown purchase.

As regards the Crown acquisition of the freehold, resuming so soon after the mining agreement which denied any such plan, in our view the claimants have a strong case. Mackay’s rhetoric on 11 December 1874 was tantamount to an assurance that the Crown

169. Gill, report, 29 July 1882, in ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), pp 1026–1237)

would not seek the freehold. ‘You are to have the land and I am to have the gold’ he said. The Maori leaders concluded the agreement with Mackay and McLean on that basis, Te Hira expecting that the land would remain and the mining revenues eventually return to Ngati Tamatera. Crown counsel’s defence that Maori were given a chance to repay the debt is flimsy, for nothing was stated in the 1875 agreement about a time-frame within which the debt must be cleared, or the rate at which it must be cleared. As was all too common, the Crown’s agreements with Maori were loose. Maori had no protection, for the creditor (the Crown) had virtually complete possession and control of the land, including the right to licence mining and receive the fees therefrom, and the power to grant agricultural leases, indefinitely, or until the debt had been paid.

As noted earlier, the revenue stream from mining on Ohinemuri proved disappointing, but it was by no means insignificant. By 1882, almost half the £15,000 debt charged against Ohinemuri had been cleared, and mining was picking up considerably in that year; within another seven or 10 years most of the debt would have been paid. But in fact the Crown had waited barely two years before resuming the purchase.

This haste to purchase, in our view, is a breach of the spirit of the 1874–75 agreement and an act of bad faith. The onus was on the Crown to make clear that the debt had to be cleared by a certain time or at a certain rate. It failed to do so and it should have worn the consequences. At the very least, if the Crown considered the rate of repayment too slow, it should have reconvened a general meeting of Ngati Tamatera and other owners and sought to renegotiate the agreement. As it was, in 1877 the Crown proceeded (by unilateral decision, as the claimants point out) to purchase, then (in 1880) obliged the right-owners to come into court to establish their relative interests, and finally (in 1882) invoked its statutory power to have the court define the extent of its interests, measured at a price which the Crown itself, in a monopoly position, had set. The process was ruthless and remorseless, and the Crown secured the bulk of Ohinemuri. The fact that it then wrote off the balance of the pre-1875 debt did little to redress the Maori situation.

One group of right-owners was particularly affected: those had never received advance payments from Mackay, Puckey, or Wilkinson. They had not sold their individual interests, yet they too were saddled with a share of the debt which in 1875 was deemed to lie over the whole block. The MacCormick commission of 1939 drew attention to this issue.¹⁷⁰ Its recommendations are discussed in section 13.7.3.

Mr Hayes, for the Crown, has commented at some length on the claimants’ charge that the court was in collusion with the Government over the timing of the Crown’s application to have its interests defined and partitioned out (with the judge proving to be, as Dr Anderson put it, ‘an obliging instrument of Government policy’).¹⁷¹ Mr Hayes notes that the

170. ‘Statement of the Facts and Circumstances Affecting the Ohinemuri Block’ (doc a8(a), p 1059); doc a8, p 263

171. Document a8, p 266

conversation referred to (between Wilkinson and Judge Monro) occurred while Ohinemuri was in process of being heard and that it is likely that Monro saw that the Crown’s claims were vulnerable at that point, with sellers and non-sellers both seeking to minimise the sellers’ rights. The matter is complex, and Monro probably did not see himself as doing anything improper by indicating the likely outcome of the Crown’s applying too soon, but Mr Hayes accepts that ‘in the circumstances, it was inappropriate for Wilkinson and the Judge to have a private conversation on a matter that was for discussion in the Court’.¹⁷² We agree.

The overall view we take of the opening of Ohinemuri to mining and the subsequent purchase of freehold is that the Crown had abandoned much of the restraint it had showed in the opening of the Thames goldfield. Short of provoking outright confrontation with leaders such as Te Hira and Tukukino, it proceeded quite systematically to foster division among the Maori right-owners, buy off individuals, and create a burden of debt on the land, which eventually obliged those who sought to preserve the area in Maori ownership and control to give way. In these respects, it breached its Treaty obligations to deal with Maori in utmost good faith and to offer active protection of their interests.

172. Document q1, pp 42–45

CHAPTER 11
TE AROHA AND THE COLDFIELD

11.1 First Negotiations and Crown Purchase

Loose quartz or alluvial gold was observed near Te Aroha by a Colonel Chesney in 1852, although, ‘the land being then in Native hands’, he did not advise the Government of his find until 1864. The Government considered sending James Mackay to head a prospecting party to investigate, but ‘the disturbed state of the country caused the idea to be abandoned’.¹ In September 1867, the New Zealand Herald reported that Maori from the region were on their way to see Mackay about gold, and that their dead were being moved from Te Aroha mountain.²

11.1.1 Negotiations to open the field

A start towards opening the area to miners was made in January 1869, when Mackay signed a preliminary agreement with Ngati Haua for rights to mine at Te Aroha and paid them a deposit against miner’s rights fees.³ However, Ngati Haua’s claim there was contested by Ngati Maru and Ngati Paoa. In February–March 1869, the Native Land Court awarded the Te Aroha block to Ngati Haua; sections of the Marutuahu iwi immediately occupied the land, and fighting between armed groups from either side was narrowly avoided. Marutuahu lodged applications for a rehearing while ‘Hauhau’ adherents vested the land in Te Hira of Ngati Tamatera to hold it ‘closed’ in order to keep the peace.⁴ In the 1871 rehearing, the court reversed its decision, awarding the land to Marutuahu with the exception of the part known as Ruakaka, which was not reheard. Mackay’s mining agreement with Ngati Haua had come to nothing.

1. James Mackay, ‘Report by Mr Commissioner Mackay Relative to the Thames Gold Fields’, 27 July 1869, AJHR, 1869, a-17. Colonel Chesney wrote to the Colonial Secretary in February 1864. His letter reads in part: ‘a gold field, which I believe to be of considerable importance, was observed by me in the year 1852. It is on the right bank of the Waihou or Thames River, a few miles above Waiarakiki. The land being then in native hands I kept the discovery to myself; but it might now be useful to the Province of Auckland to have the spot tested’: doc g1, p 9 fn 17.

2. New Zealand Herald, 18 September 1867 (doc o6, p 142)

3. Mackay, ‘Report by Mr Commissioner Mackay’, pp 33–34

4. Daily Southern Cross, 20 April 1869 (John Hutton, ‘Troublesome Specimens: A Study of the Relationships between the Crown and the Tangata Whenua of Hauraki, 1863–1869’, ma thesis, University of Auckland, 1995, p 350)

Six months after the rehearing, WH Taipari (who besides being of Ngati Maru had connections to Ngati Kopirimau, a hapu of Ngati Rahiri), wrote to the Native Minister that he and ‘others of us’ were willing to hand their portion of Te Aroha to the Government to manage for gold-mining purposes. Whether Taipari was speaking on behalf of Ngati Maru, Ngati Rahiri, or both is not known. Taipari further advised that he had applied to the Native Land Court as advised by Government agent Dr Pollen and HT Clark, civil commissioner for Hauraki. This advice was that, since the court had awarded the block to Marutuahu, the court should subdivide the block among their iwi before any ‘hapus or individuals’ decided to open their lands for mining.⁵

Unlike its action in Ohinemuri, in this instance the Government was unwilling to enter into goldfield negotiations while Marutuahu tribal interests were undivided, since Taipari did not have authority to deal with the land autonomously. In November 1873, Te Moananui and Te Hira wrote to the Governor and Native Minister, saying that ‘The Aroha is a part of Ohinemuri. The word that I uttered in the presence of the Governor (was) that the lands reserved by us as settlements as permanent places for us, must not be taken away.’ Gold mining was not mentioned, but the two chiefs said that the roads or surveys consented to by ‘one Maori and one whiteman’ (Taipari and Mackay?) had not been ratified by all of Marutuahu.⁶ Te Hira no doubt viewed the aukati then in place against miners in Ohinemuri as applying also to Te Aroha, further south. As we noted in section 10.2, even after he had reluctandy withdrawn his opposition to a mining agreement over Ohinemuri in 1875, Te Hira regarded the southern boundary of the Ohinemuri field as a new aukati, beyond which Pakeha settlement was debarred.⁷

Given this attitude by important Ngati Tamatera leaders and given also the complicated and overlapping customary rights to Te Aroha and the undivided court award to ‘Marutuahu’ generally, Te Aroha remained closed to mining for some years, notwithstanding the favourable disposition of sections of Ngati Rahiri to its opening. The opening of a goldfield at Te Aroha would eventually result, not from further subdivisions by the Native Land Court, but by the Crown’s purchase of all interests other than those of Ngati Rahiri, leaving them as the sole group with which a mining agreement had to be negotiated.

11.1.2 Crown purchase

Te Aroha was one of the blocks classed as ‘Upper Thames’ by Mackay, and in March 1872 he was particularly directed to acquire them. This was less because they might have been

5. Taipari to Native Minister, 6 September 1871, Maori Affairs head office special file 120 (doc a10, pt 3, pp 158–159)

6. Te Hira and Tanumeha Te Moananui to Native Minister, 29 November 1873, Maori Affairs head office special file 120 (doc a8, p 250; doc a10, pt 3, p 161)

7. Witness Te Hira’s statement that he had a promise from McLean to that effect: doc a8, p 229.

auriferous than because the Minister for Public Works, JD Ormond, perceived them to be suitable for the settlement of immigrants.⁸ As in Ohinemuri, Mackay proceeded with the purchase of Te Aroha by making advances to hapu and individuals. By 1875, Donald McLean was concerned that Crown purchase activities were inflaming tensions amongst different tribes, but Mackay was instructed to complete the purchase anyway. However, because gold was present and the scandal of raihana had emerged, Mackay was instructed in 1875 to make all his advances in cash and cautioned that ‘no such compromise as in the Ohinemuri business could ever be agreed to, and that he must accept strict personal responsibility for all his proceedings in regard to it’.⁹

In late 1876, an investor named Broomhall negotiated with the Waste Lands Board to purchase 47,000 acres of Te Aroha for a special settlement, even though Maori title had not yet been extinguished. Mackay told Broomhall that ‘the public would not be satisfied at the hill lands being granted to him, unless the right to mine for gold was reserved by the Crown’.¹⁰ But the issue was not addressed in the correspondence between the Waste Lands Board and Broomhall.¹¹ As further evidence that, in the Government’s eyes, gold was of much less concern than agricultural settlement, Mackay was urged to complete the purchase forthwith so that the proposed scheme could be implemented. By mid-1877, Mackay had acquired 204 signatures on the deed of purchase for payments totalling some £12,900, mostly made to Marutuahu groups but including also £2000 to satisfy the claims of Ngati Haua and Waikato.¹²

About this time, a serious quarrel broke out, Ngati Rahiri opposing the Marutuahu groups Ngati Paoa, Ngati Whanaunga, and Ngati Tamatera. Ngati Rahiri advanced what they believed to be a superior ancestral claim to that of Marutuahu, and repudiated the latter’s right to have accepted Mackay’s advances. The threat of conflict was averted, native agent Puckey giving considerable credit to Ngati Tamatera and the advice of Te Moananui and Te Hira.¹³ The resolution of this conflict may have seen Ngati Tamatera abandoning their claim to sole control of mining rights in Te Aroha.

Following the resolution of the quarrel, the topic of gold mining was broached in November 1877 by Reha Aperahama of Ngati Tumutumu-Rahiri, who telegraphed Hoani Nahe, a member of the House of Representatives and kin to Ngati Rahiri, to say that he was willing to open his land to miners. Mango Whaiapa and others of Ngati Ruinga, a hapu of

8. Under-Secretary for Public Works to Mackay, 4 March 1872 (doc a8, p 215)

9. Pollen to McLean, 24 November 1875; draft memorandum for Mackay, undated, MA-MLP1885/18, Archives NZ (doc a8, p 250; doc o6, pp 268–269)

10. Mackay to Minister for Public Works, 31 July 1877, AJHR, 1877, g-7, pp 7–10 (doc a10, pt 3, pp 165–166)

11. Document a10, pt 3, pp 165–166. For correspondance on, and details of, the proposal, see ‘E Aroha Block and Mr Broomhall’s Proposed Special Settlement’, AJHR, 1878, d-8, pp 1–8.

12. Document a8, p 250; doc a10, pt 3, p 166

13. Puckey to under-secretary, Native Department, 24 April and 8 June 1877, AJHR, 1877, g-1, pp 4–5 (doc a10, pt 3, pp 164–165)

Figure 54: Te Aroha lands

Ngati Rahiri also wrote to native agent Puckey stating, in connection with lands at Wairakau, that a different section of Ngati Rahiri had arranged to lease land to a Mr Strange for a cattle run, that they opposed this lease and intended instead to let the land be managed by the Government for gold-mining purposes.¹⁴ We have also heard evidence that a Maori prospector named Hone Werahiko found gold in 1877 but was driven from the land by Ngati Rahiri; he had not obtained their permission to mine.¹⁵

The Government, however, was more concerned with completing its purchase than with effecting a mining lease. Puckey’s report on the negotiations between Ngati Rahiri and Strange mentions only that no time should be lost in ‘blocking speculators out’ so that the Crown’s purchase should not be involved in any further difficulty. Puckey was instructed to give notice that Te Aroha had been proclaimed to be under Crown purchase under the

14. Document a10, pt 3, pp 168–169

15. ‘Te Aroha Correspondent’, Thames Advertiser, 30 July 1880, p 31 (Phillip Hart, ‘Maori and Mining at Te Aroha’, unpublished paper, University of Waikato, pp 2–3). Hart states that prospectors were driven away from the vicinity of Te Aroha maunga before 1880, but that a shortage of money and the experience of revenue from the Thames and Ohinemuri fields brought a change of heart among Ngati Rahiri, and prospectors were encouraged.

Waste Lands Administration Act 1876, and that by that Act private dealings were prohibited. Following the enactment of the Government Native Land Purchases Act 1877, a further notice under that Act secured the land for the Crown.¹⁶

Early in 1878, the chairman of the Thames County Council and Native Minister Sheehan were negotiating to bring the road from Ohinemuri through to Te Aroha. During these negotiations, in April or May 1878 at Pukerahui, Taipari’s marae at Shortland, the sale to the Crown of all the Ngati Paoa, Ngati Whanaunga, Ngati Tamatera, and Ngati Maru interests in Te Aroha was finalised. In July 1878, the Crown applied to the court to have its interests in the block defined. The court ruled that Ngati Rahiri had acquiesced in the sale at Pukerahui of all the Marutuahu interests, but in recognition of their distinct claims to the block awarded them 7500 acres at the Omahu end of the block. On the basis of these covenanted arrangements for the Ngati Rahiri reserves, the court, in judgment delivered on 28 August 1878, vested the remainder of the Te Aroha block, 53,908 acres, in the Crown.¹⁷

In fulfilment of the July award to Ngati Rahiri, separate grants of agreed areas of land on the east side of the Waihou near Omahu and near Wairakau were made to hapu and families (with each member listed) and to three individuals (Reha Aperahama, Wiremu Ututangata, Rihia Te Kauae) solely.¹⁸ Additional grants totalling another 1150 acres were arranged west of the Waihou River. Dissension amongst the grantees over what ground each should receive hindered the subdivision of the Omahu and Wairakau reserves (4268 and 3250 acres respectively), but by August 1879 the external boundaries of these reserves had been surveyed and the Crown’s portion east of the Waihou was proclaimed; the western portion had been proclaimed in July.¹⁹ The subdivision of the two reserves was put on hold for the time being so that surveying could commence and grants be issued.

11.2 The Genesis of Te Aroha Township

The need for a town near Te Aroha mountain – to serve miners and agricultural settlers – had been anticipated for some years. Ruakaka had been considered by Mackay in 1872: ‘Te Ruakaka block … is a valuable property and likely to be the site of a Town if that country is opened up for gold mining. There is auriferous land immediately at the back of it.’²⁰ But, as late as December 1877, the block was too much in dispute for any settlement to proceed there, at that time being occupied by Ngati Rahiri, who were challenging its award to Ngati Haua.

16. ‘Notification of the Payment of Money on and Entry into Negotiations for the Purchase of Native Lands in the North Island’, 15 May 1878, New Zealand Gazette, 1878, no 44, p 606 (doc a10, pt 3, p 170)

17. Document a10, pt 3, pp 173–174

18. Ibid, p 173

19. Ibid, p 178

20. Ibid, p 249

The Omahu reserve was seen as a better prospect; in 1878 Sheehan telegraphed to Preece:

I believe it might be made the site of the township, and, by a judicious admixture of freehold and leasehold of the town, suburban and rural lots, it might be made the source of great permanent profit to the Native owners. With this view, I wish you to do all that is in your power to induce them to make their lands inalienable except by the consent of the Governor. This [Native] Department will then take the matter in hand, should they agree to it; will survey, subdivide and dispose of the property making ample reserves for the natives, and debiting them also with only the actual cost of the operation.²¹

Preece replied that Ngati Rahiri were at that time unwilling to participate in such a scheme, but ‘hereafter will see their advantage in coming under the system of management proposed by you’.²²

The site where Te Aroha township grew was the natural site to choose, being located close to the auriferous land and also to the hot springs, which had attracted visitors from the early 1870s and caused a small settlement to develop by 1879. The siting and growth of the town in fact owed a great deal to the entrepreneurial skills of George Lipsey (who arrived there in 1874) and his father-in-law, Te Mokena Hou (Morgan). He had married Ema, Te Mokena’s daughter. Te Mokena Hou was one of the principal right-owners in the southern end of the Omahu reserve, at the foot of Te Aroha mountain. There appears to have been little dispute about his rights in the land within which the hot springs stood. Dion Tuuta has stated that the land was awarded to the Mokena whanau in 1878.²³ This is not strictly correct, since the subdivision of the Omahu reserve was incomplete in 1878, but an understanding was evidently in place: Puckey commented in July 1879 that ‘Morgan and his family had already been dealt with liberally, having had the pick of the reserves’. Similarly, Preece and Wilkinson reported that it had been known for some time previous to the proclamation of the goldfield (November 1880) who were to be the owners of the southern end of the Omahu reserve.²⁴

Even before the opening of the goldfield, and presumably with Te Mokena Hou’s assent, miners and merchants began to gather at the developing goldfield township. By mid- November 1880, with the opening of the goldfield imminent, the New Zealand Herald reported that several stores were being erected, a site for Government buildings had been selected and that the ‘township near O’Halloran’s Hotel will soon be an accomplished fact’.²⁵

21. Document a10, pt3, p 172

22. Land purchase officer, Thames, to Native Minister (telegram), 10 August 1878, Maori Affairs head office special file 2 (doc a10, pt 3, p 172)

23. Document j5, pp 1–2

24. Land purchase officer, Thames, to Native Minister (telegram), 10 August 1878; native agent, Thames, to under-secretary, Native Land Purchase Department, 8 July 1879 (doc a10, pt 3, pp 172, 177)

25. New Zealand Herald, 19 November 1880 (doc g1, p 11)

11.3 The Opening of the Coldfield

The discovery which occasioned the opening of the Te Aroha goldfield was made in late 1880 by a Government-subsidised prospecting party led by Adam Porter (Arama Poata), under the working management of Hone Werahiko, with Rewi, youngest son of Te Mokena Hou, assisting.²⁶ The party commenced operations in August, and in September reported the discovery of gold on a spur of Te Aroha mountain near the hot springs, on land in which Te Mokena Hou was a principal right-owner. Subsequently they found a small leader, and Harry Kenrick, warden of the Auckland goldfields, had a ton of ore crushed at Grahamstown; it yielded an ounce of gold.

Miners, officials and politicians all regretted that the find had occurred on the Omahu reserve, not on the Crown freehold. Porter considered that ‘it would be a misfortune if the same complications should be allowed to take place that had caused so much trouble on the Thames Gold Field’ (presumably a reference to disputes over access to land and the collection and payment to Maori of goldfield revenues).²⁷ Attorney-General Whitaker at first tried to purchase the reserve but Ngati Rahiri were aware of the potential revenues from the spa settlement as well as from mining and did not wish to sell.²⁸ But the usual pressure to open a field soon set in: despite the Government’s efforts to keep the prospectors’ finds secret, private interests began to approach Ngati Rahiri for further prospecting agreements.

The Government’s first intention had been to extend the boundaries of the Ohinemuri mining district to include Te Aroha, but this would have enabled Thames and Ohinemuri miners to work under their existing miner’s rights, and potential Maori revenue would thereby have been diminished. It was decided to open a new field, ‘so that faith may be kept with the Natives’.²⁹

The Crown negotiators were fortunate that the gold was on land in which WH Taipari and Te Mokena Hou were principal right-owners and amenable to the opening of a field. Te Mokena had shares in at least one Thames claim, and for 13 years had received rents from land there.³⁰ Following preliminary agreement with these rangatira, a large meeting was convened at Te Aroha on 26 October 1880 to discuss terms.

The negotiations to open the field were conducted by Wilkinson and Kenrick. In May 1881, Wilkinson, sarcastically and prejudicially, reported:

the Natives, seeing what they thought was their opportunity (and being wrongly advised by some Europeans), did not hesitate to take advantage of it, and modestly demanded that the Government should first pay them a bonus of £1,000, after which they would agree to their promised reserves being thrown open for gold-mining. This extortionate demand was,

26. Hart, pp 9–10

27. Porter to Kenrick, 11 September 1880, md1 12/353, Archives NZ (Hart, pp 3–4)

28. Kenrick to Wakefield, 22 October 1880, md1 12/353, Archives NZ (Hart, pp 6–7)

29. Ibid (p 8)

30. Hart, pp 9–10

of course, out of the question, (especially when it is considered that the Natives were to get for themselves all the miners’ rights fees, timber licences, &c, as well as town rents), and it was found necessary to discover a way by which to get over the difficulty. This was done by enlisting on the Government side several Natives – including WH Taipari, Makena [sic] Hou, and others – who, through owning lands within the Thames Gold Field, had tasted the sweets of being able to receive Native revenue from the same in the shape of miners’ rights fees, &c, at regular intervals. These people were negotiated with, and after the matter had been explained to them, they readily signed the agreements to open the field in so far as their blocks were concerned. The result of this negotiation was a decided split in the opposition camp, who now reduced their demand for a bonus to £,500. This was also denied them, and as it was now apparent that the bold but necessary stroke of opening the field, whether some of the Natives were willing or not, could be carried out without any real danger, it was decided to do so; and, acting under instructions from the Hon Mr Whitaker, arrangements were made for the opening, which took place by Proclamation, read by Mr Warden Kenrick from the prospectors’ claim, on the 25th November last [1880], much to the surprise and chagrin of some of the dissenting Natives; who, seeing that this was the first time, for a number of years, that any policy (however necessary for the public good) at which they chose to express disapproval, should be forced on them, seemed quite taken aback, and unable at first to realize the position. When, however, they found that the opening was accomplished, and their opposition fruitless, they accepted the position, and the following day most of them came in and signed the agreement; and, in a great many cases, at once took out miners’ rights, and went to work pegging claims with as much zeal as their European brethren.³¹

We have quoted this statement at length for its candour. We do not imply that we accept the subjective remark of Wilkinson, that this was the first time in years that a Government policy had been forced upon dissenters.

Several aspects of Wilkinson’s 1881 report can be understood better from his more considered progress report to Whitaker of 30 October 1880, quoted in Dr Hart’s unpublished research paper ‘Maori and Mining at Te Aroha’. The demand for the £1000 ‘bonus’ was led by Te Karauna Hou, a principal Ngati Rahiri rangatira, on behalf of many in the community who were sceptical of the benefits of agreeing to mining unless they could get ‘an immediate cash benefit’. Wilkinson’s adamant refusal stemmed from two advantages that he held: the Government’s power to legislate for ‘Peace and Good Order’ (to quote the preamble to the Treaty); and the already-assured support of Te Mokena Hou and WH Taipari. As to the former, Wilkinson reported that he put to the meeting:

31. McKerrow, ‘Ihe Gold Fields of New Zealand’, 1 July 1881, AJHR, 1881, g-8, pp 9–10 (doc a8, pp 273–274; doc g1, pp 14–15)

That Gold having been found, it was impossible to keep the Europeans from coming to search and dig for it – That as Maories could not well dig for it to the exclusion of others, it would be advisable to let the Europeans come. That if Europeans were allowed to come it would be necessary for the safety and protection of all that they should not be allowed to come unless the law came with them (ie, that they worked under the recognised laws for Gold Mining). That as the Maories had no laws and were not in a position to make any, affecting Gold Mining, and that as a much larger extent of Government land than Maori land would be included in the proposed Gold Field, I considered it would be advisable for them to include the Reserves that they were to get out of the Aroha Block within the land the Government proposed to open as a New Gold Field, in return for which they would be allowed to receive all the Revenue accruing therefrom in the shape of Miners Rights Fees, Business, Battery and Residence Site fees, also Kauri Timber and firewood licences, the Government binding itself to collect these monies and pay the same over to them quarterly.³²

Following the objection of Te Karauna Hou and others, Wilkinson let his proposals lie and turned to the negotiation of an agreement with Te Mokena Hou, the principal owner in 750 acres within which gold had been found, and 750 adjoining acres ‘ceded’ to the agreement by the Taipari family. The agreement – the prototype for the subsequent general agreement – involved a declaration of a new field under the Gold Mining Districts Act 1873. Every man mining on the field would be required to take out a miner’s right, at an annual fee of £1, and the Maori owners would receive these, plus other fees listed in Wilkinson’s 1880 report. However (as Kenrick explained in a letter of 22 October 1880), rents from licensed holdings (the former ‘leases’ of the Thames company mining system) were reserved to meet local government expenses in managing the field; Kenrick and Wilkinson considered that they duplicated miner’s rights fees.³³

Te Aroha township was a major issue in the agreement. Wilkinson and Kenrick suggested to Te Mokena Hou that part of the ceded land should be exempted from the mining agreement as a ‘cultivation reserve’ and part be surveyed for a township. Twelve acres were designated for the latter and Mr G Purchas, the Government surveyor then demarcating the reserves, sketched out the roads and 60 allotments for the town. The formal agreement included a clause that said ‘At the request of Ema Mokena, We undertake to cut out and reserve from occupation under the Gold Mining Districts Act all the land between the river and the foot of the hills, within the Reserve Block at Te Aroha required for the use of herself and children’.³⁴ The township was mainly a Mokena family enterprise.

32. Wilkinson to Whitaker, 30 October 1880, md1 85/1006, Archives NZ (Hart, pp 11–12)

33. Kenrick to Wakefield, 22 October 1880, md1 12/353; Wilkinson, memorandum, 16 November 1888, md1 6/14, no 1, Archives NZ (Hart, p 17)

34. Kenrick and Wilkinson, ‘Minutes re Te Aroha Reserves and Land’, 26 October 1880, md1 6/14, no 1, Archives NZ (Hart, pp 13–14)

In November 1880, negotiations resumed with the other owners of the reserve, according to the plan outlined in Wilkinson’s 1881 report. Hart records a new complication which occurred the day before signing; a group of Ngati Rahiri assembled at Kenrick’s office to seek further concessions. These were refused and when one man threatened to take the gold from miners on the reserve, Kenrick said that he must withdraw the threat or face arrest and detention until sureties were paid for his good behaviour.³⁵

Harry Kenrick’s appointment as warden and regulations for the new goldfield were gazetted on 25 November. On the same day, the goldfield was opened with ceremony, in terms which underline the perception of the Crown officials present, that ceded land effectively passed to the Crown:

At 9 o’clock Mr Warden Kenrick, accompanied by Mr GT Wilkinson, Government Agent, Mokena Hou, the late owner of the field, and Mr FA Puckey, Court Interpreter, proceeded up the hill, and took their positions at the top of the Prospector’s Claim, the point arranged at which the guns notifying that the field was opened were to be fired from … By the time the reading of the proclamation was finished the watches showed nine o’clock and at the signal from Mr Kenrick, Mr GT Wilkinson, and Mokena Hou fired off two double-barrelled guns, the reports of which were heard all over the field. [Emphasis added.]³⁶

A ‘considerable rush’ took place and 90 claims were pegged, some several times over by different claimants, which led to initial disputes.³⁷

The proclamation of Te Aroha as a goldfield under the Gold Mining Districts Act 1873 was gazetted on 18 November 1880. The Te Aroha goldfield block did not coincide with the Te Aroha land block: it was confined to the east bank of the Waihou at the northern end of the land block, extending into the Tauranga confiscation block. All of the Omahu reserve and most of the Wairakau reserve were included in the goldfield. Specifically excluded were the Ngati Haua-owned Ruakaka block and the hot springs reserve. However, when in 1884 the Mokena family brought an action in the Resident Magistrate’s Court against a tenant on one of the allotments, the magistrate ruled that the effect of the goldfields declaration was that the land was let by the Maori owners to the Crown for a period of 21 years or for such time as it might be required.³⁸ It is not clear which portion of the township this refers to.

11.3.1 The terms of the agreement

The agreement reached with the Mokena and Taipari families was used for the main agreement with the other owners, but the reference to land for Ema Mokena was replaced by:

35. Thames Star, 15 December 1880, p 2 (Hart, p 18)

36. Document g1, p 18

37. McKerrow, ‘The Gold Fields of New Zealand’, 1 July 1881, AJHR, 1881, h-17, p 12

38. Document y5, p 6

The necessary cost of enforcing the payment of the revenue will as at present in Hauraki be defrayed from the Revenue collected.

Native cultivations and Tapus together with the ground occupied by them for residence will be laid off and exempted from occupation under the Act.

Any additional land that may be wanted by the Natives for cultivation will be reserved as required by them.³⁹

These last provisions were regarded by Wilkinson as allowing any Maori landowners to exclude their land from mining if they wished.⁴⁰

The annual fees payable to Maori owners were the standard £1 fee for a miner’s right, £1 for a residence site, £5 for a business site, £10 for a machine site, £1 5s per kauri tree, and £5 for a licence for cutting other timber.⁴¹

Dr Anderson has commented that the outcome of the negotiations ‘represented a decline in the Maori position’ because under the agreement the Maori owners, while entitled to revenue from miner’s rights and other fees, were not to receive the rent from mining leases or licences; these were payments characteristic of company quartz mining. Dr Anderson considers that these contributed some 30 per cent of the income of Maori right-owners on the Thames field.⁴² Wilkinson reported on this exclusion in his 1889 ‘Report on the Question of Miner’s Rights’:

When the late Mr Warden Kenrick and I negotiated with the Natives for the opening of Te Aroha goldfield we, having in view the difficulties that had arisen in other goldfields through the introduction of the leasing system and its consequent reduction in revenue from Miners’ Rights, made an arrangement with the Natives that they were not to receive the revenue from Mining Leases, and it was therefore not included in the sources from which the Native were to get their revenue, as set forth in the agreement.⁴³

The rationale given here for the exclusion of rents from leases from Maori revenues is difficult to comprehend. It is not as if leasing regulations would not apply at Te Aroha and that therefore all mining claims would be held under miner’s rights. Wilkinson was simply subtracting lease moneys from the moneys that Maori would receive. Dr Anderson has stated, ‘Negotiators for the Government insisted on this exclusion, in order to satisfy the mining

39. See copy of agreement, Te Aroha Warden’s Court, mining transfers, bbav a485/42, Archives NZ (Ak) (Hart, p 17)

40. Wilkinson, memorandum, 17 October 1887, Te Aroha Warden’s Court, bbav a485/42, Archives NZ (Ak) (Hart, p 18)

41. Province of Auckland, Rules and Regulations for the Hauraki Gold Mining District (Auckland, 1873) (Hart, p 18)

42. Document a8, p 273

43. Wilkinson, 'Report on the Question of Miners’ Rights and Other Revenues Payable to the Native Owners of the Thames, Coromandel, Ohinemuri and Te Aroha Goldfields’, 30 May 1889, j1 96/1548, Archives NZ (doc a8(a), pp 701–719)

and local body interest which had so strongly criticised Maori receipt of those revenues in the case of the Thames field.’⁴⁴

This interpretation is consistent with the explanation given in Kenricks letter to Wakefield of 22 October 1880, cited above. Wilkinson may also have been concerned that there should be no excuse for not enforcing the holding of miner’s rights. But this is a poor legitimation.

We have not seen figures that would allow us to quantify the amount of revenue foregone by Maori as a result of the exclusion of lease moneys. That is, we do not know what sum of lease moneys were collected from miners or companies occupying Maori land at Te Aroha, which would otherwise have been payable to Maori. But Wilkinson regretted excluding lease moneys in the 1880 agreement when the Mining Act 1886 reduced the moneys receivable by Maori to 15 shillings per each £1 miner’s right.⁴⁵ He protested that this would especially disadvantage Te Aroha Maori because (with mining lease revenues already foregone) miner’s rights were their main source of revenue from mining.⁴⁶

11.3.2 The development of the Te Aroha goldfield

Hart’s research shows that 20 Maori took out miner’s rights on the opening day (among the 200 total) and a further 77 in the next month. Maori then traded in their shareholdings in various claims, as did Pakeha miners. Hart concludes that 131 Maori held shares in the rush of 1880–81; by tribal affiliation the largest single group (19) were Ngati Rahiri but there were considerable numbers of Ngati Tamatera, Ngati Koi, Ngati Haua, and others. Some claims were worked by parties of Maori, often on their own, sometimes with a Pakeha manager. Rangatira, like Pakeha businessmen, commonly bought and sold shares in companies, rather than actually mining, but Te Mokena Hou, aged 84, joined in the labour of sinking a shaft at the Whakapipi claim. Maori spouses or partners of Pakeha also invested, among them Ema Lipsey and Merea Wikiriwhi (Wilkinson’s de facto wife and mother of four of his children).⁴⁷ Werahiko, who was paid a bonus of £350 for finding payable gold at Te Aroha, continued to prospect, with Maori colleagues.⁴⁸

Yet, despite the flourish with which the Te Aroha field opened, experienced miners were dissatisfied. As reported by mining inspector McLaren in May 1881:

the general opinion of the Thames gold-miners who had experience soon came to be that there was nothing to warrant an extensive rush. The gold obtained by the prospectors on the surface and in the leader which they afterwards found did not continue down to any great depth, as the rock became very hard and pinched out the quartz, and in the neighbouring

44. Document a8, p 273

45. Document p6, p 85

46. Wilkinson, ‘Report on the Question of Miners’ Rights’

47. Hart, pp 22–32

48. Ibid, pp 33–35

Figure 55: The geology of the Te Aroha goldfield. Source: John Henderson and John Bartrum, The Geology of the Aroha Subdivision, Hauraki, Auckland Geological Survey Branch Bulletin 16 (Wellington: Department of Mines, 1913).

claims no discovery of any moment was made, the Prince of Wales Claim being the only one which might be said to have a slight show.⁴⁹

McLaren reported that the Morning Star claim, situated considerably south of the prospectors’ claim, was said to have found fair gold, and two or three miles to the north thought that:

[the] Ruakaka District... [is] a much more kindly-looking country for mining, containing large bodies of quartz showing a little gold, and which might be made payable if a battery

49. McLaren to Under-Secretary for Gold Fields, AJHR, 1881, h-17, no 3, pp 17–18

Figure 56: Waiorongomai mining area, Te Aroha goldfield

was erected driven by water-power, where large quantities of quartz might be put through at a cheap rate.

A crushing company was being formed which would allow the true prospects of the field to be determined, but McLaren was not enthusiastic:

Rushes of this unfortunate nature are to be deplored, sweeping away as they do, years’ savings of many poor men; not but that there may be good gold in the district, but the nature of the prospecting work, the hard rock to be driven through, and the consequent slow progress that can be made, neccessitate the expenditure of much time and money before any adequate returns can be had.⁵⁰

Warden Kenrick, however, was cautiously optimistic: ‘To summarize the present and future prospects of this gold field, I may state that I still hold the opinion … that a permanent gold field has been opened; but it is one that will take both time and money to develop.’⁵¹

The more promising Ruakaka district, referred to by Kenrick as the ‘Omaha line of reef’ (near the headwaters of the Omahu and Tui Creeks, in the ranges behind the Ruakaka block) was the location of many Maori claims. Their work was interrupted by the brutal murder in February of Hamiora (or Haimona) Haira, probably by a European. Maori deserted their claims and gathered together, partly in fear but principally in mourning; some may have lost their claims in so doing.⁵²

Few if any mines in Te Aroha or near Ruakaka ever became very productive. Most gold produced from the Te Aroha goldfield came from the Waiorongomai Valley to the east of Te Aroha mountain, where Hone Werahiko located a reef in November 1881. These deposits were mainly within the Crown land between the Omahu and Wairakau reserves.

Two businessmen established the Te Aroha Battery Company. When this battery did not prove to be profitable in its own right they invested in developing a mine. Tens of thousands of pounds were spend on tramways and mine works and thousands of tons of quartz were crushed. However, the yields obtained from the ores were very low, and the mine operated at a considerable loss.

Mines inspector Downey wrote in 1935 that ‘the history of mining on this field can scarcely be described as any other than one long chapter of disaster’.⁵³

50. McLaren to Under-Secretary for Gold Fields, AJHR, 1881, h-17, no 3, pp 17–18

51. Kenrick to Under-Secretary for Gold Fields, 2 May 1881, AJHR, 1881, h-17, no 2, p 13

52. Ibid; see also Hart, p 32. Kenrick does not give the murdered man’s name, but Hart refers to him as Himiona Haira.

53. J F Downey, Gold Mines of the Hauraki District, New Zealand (Christchurch: Cadsonbury Publications, 2002), p 261

11.4 Te Aroha Township

Meanwhile, upon the opening of the goldfield in November 1880, the rush to register business sites (which, under the relevant mining legislation, it lay with the warden to grant), was perhaps even greater than the rush for mining claims. Kenrick reported ‘considerable difficulty’ in meeting the demand, and some sites were applied for by six or seven applicants. Dion Tutaa cites an account in which the door to the warden’s office was broken down by a stampede of applicants who, amid the struggle to be registered first, threw their applications to the warden. The demand for sites remained so high that Kenrick instructed surveyor Purchas ‘to survey another block in front of O’Halloran’s Hotel’.⁵⁴ Wilkinson reported in January the following year that Purchas was still engaged on work at the township.

The explanation for the sustained demand for township sites did not lie in high expectations of the goldfield alone. Warden Kenrick extolled the virtues of the goldfield township:

A more favourable site for an inland town than the Aroha could not have been selected. Placed on a navigable river, connected by fair roads to the Waikato, and by water to the Thames and Auckland, with a large extent of good agricultural land in the immediate vicinity, it is probable that a permanent town would sooner or later have been built in this locality, independent of any gold discoveries. The Lincolnshire farmer’s settlement [Broomhall’s scheme which was abandoned] would almost have insured this.⁵⁵

The Government was benignly paternalistic towards the developing township. Shortly after the opening of the goldfield, Wilkinson advised the Native Department against granting a request from Te Karauna Hou and other owners of the Omahu reserve to allow leases of longer than 21 years – the maximum allowed under the mining legislation – over parts of the reserve. Wilkinson argued that the field was only newly opened, and if long term leasing were allowed before the township site was fixed, land leased by Europeans might become the permanent site, ‘in which case the Europeans would then be reaping the benefit instead of the natives’.⁵⁶ The request to allow long leases was denied ‘for the present’. Hart remarks, ‘The persistent attempts of Reha Aperahama to sell the inalienable Te Kawana block to meet his debts were likewise declined’.⁵⁷

The original township site, agreed between Te Mokena Hou and Wilkinson in October 1880, was surveyed as ‘Morgantown’. It was rivalled by (but soon merged with) the subdivision organised by George Lipsey on his wife’s reserved land (‘Lipseytown’). By May 1881, the first four subdivisions had been surveyed, and by 1884 the settlement had grown sufficiently large to be constituted a town district under the Town Districts Act 1881. Whereas gold

54. Document g1, p 19

55. Kenrick to Under-Secretary for Gold Fields, 2 May 1881, AJHR, 1881, h-17, no 2, p 13

56. Wilkinson to under-secretary, Native Department, 10 December 1880, Maori Affairs head office special file 2 (doc a10, pt 3, p 210)

57. Hart, p 37

mining was to remain small scale and had largely petered out by 1914, the most enduringly valuable of the assets connected with gold mining were not goldfield claims but the township allotments leased under the provisions of the Mining Acts.

11.5 Revenues Actually Paid

Dr Hart’s careful research has shown that Ngati Rahiri owners received in goldfield revenue: £836 in 1881–82 (after deductions by officials and local bodies), £1123 in 1882–83, and £764 for 1883–84, thereafter declining steadily to £636 in 1898–89 and falling sharply to £291 in 1899–1900. There was apparently no marked fall after the 1886 Mining Act (see sec 11.4), but Dr Hart remarks that, because the reserved land was increasingly alienated to settlers or the Crown, the amounts payable to Maori decreased as a percentage of the total payments from the field. Thus, Maori landowners received £561 out of the total payments of £1366 in 1897–98, £636 out of £1775 in 1898–99, and £291 out of £633 in 1899–1900. Of the payments to Maori, the Mokena family received the largest: ‘Morgan’s block’ yielded £2404 from December 1880 to March 1889, and ‘Lipsey’s block’ £5481 from December 1880 to December 1894.⁵⁸ It is not clear whether these figures included town rents.

11.6 Tribunal Comment and Findings

Neither claimant nor Crown closing submissions relate specifically to gold issues in Te Aroha. The Ngati Rahiri Tumutumu claimants (Wai 663) have made reference to aspects of the Te Aroha purchase, to the thermal springs and to Te Aroha township. The two latter issues are dealt with in chapter 19.

Concerning the Crown purchase of Te Aroha, Ngati Rahiri Tumutumu claimants note the 1877 petition of Ngati Rahiri against the right of Ngati Tamatera and other Marutuahu to sell the Te Aroha block (see sec 11.1), and argue that this challenges the Crown’s contention that the purchase was negotiated ‘in the main with traditional groupings’.⁵⁹ We note that the Native Land Court of 1878 concluded that Ngati Rahiri had acquiesced in the sale by the Marutuahu tribes of most of the block, but awarded Ngati Rahiri the 7500-acre reserve at Omahu in recognition of their distinct interests. We have not been provided with the evidence nor do we have the jurisdiction to go behind the specific finding of the court. However, we note that the location of the Ngati Rahiri reserves in effect divided Te Aroha Maunga between the Crown and the Omahu reserve, a point not clearly established until

58. Ibid, pp 38–39

59. Document y5, p 3; paper 2.550, p 36

1880. It is odd that only the southern slopes of a mountain considered sacred by local Maori was included in the reserve. (The tapu of Te Aroha Maunga is discussed in section 19.2.) But we have seen no detailed evidence as to how the boundaries of the reserve were decided.

The subsequent subdivision of the reserve, the award of its constituent blocks to named individuals and their subsequent sale relate to the issues arising out of the Native Land Acts and Crown purchases, and will be considered further in that context (in chapters 15 to 17).

On Te Aroha township, the claimants assert that declaring the land a goldfield had ‘a serious impact on the way the Mokena whanau were able to manage their lands’, in that the declaration was held to amount to a lease of the township land to the Crown, for sub-letting under the goldfields regulations.⁶⁰ Undoubtedly, the goldfield regulations imposed certain restraints on how the Mokena family could manage its lands, but this is hardly a grievance. The evidence is clear that the Mokena family and Crown officials collaborated closely in the establishment of the town, and that the Crown rendered considerable assistance in such matters as survey, town planning and the collection of revenues from town leases. It seems likely that the costs of survey were deducted from revenues, judging by Sheehan’s 1878 instructions to Preece (see sec 11.2), but the Crown was willing to bear the initial cost, in the interests of getting the field opened. Moreover, Crown officials were protective of the Mokena family’s interests, refusing to lift restrictions on alienation beyond short leases in the first instance. Generally speaking, the Mokena family seems to have benefited from the Crown’s intervention and support in the late 1870s and early 1880s.

We wish to comment here, however, on the way the Te Aroha goldfield agreement was secured and its terms. It is clear from Wilkinson and Kenrick’s reports that Crown officials, supported by Attorney-General Whitaker, were heavy-handed in the way they opened the field. In 1880, they had the active cooperation of two leading right-owners, Te Mokena Hou and WH Taipari, respecting some 1400 acres. Although officials were aware that Ngati Rahiri were divided about agreeing to mining without an up-front grant of £1000 (later reduced to £500), on 18 November the Crown gazetted a goldfield over a vast area of land (Crown and Maori) and on 25 November opened the Te Aroha field. As Wilkinson reported in 1881, this policy, considered necessary for the public good, was ‘forced on’ those initially refusing to sign the agreement without bonus payments. Wilkinson and Kenrick had discerned that Ngati Rahiri were fundamentally supportive of mining; the hapu quickly abandoned their demand for a bonus and joined in the rush for claims. But the Crown officials’ actions were considerably short of negotiating in utmost good faith and securing full prior consent. The agreement did include clauses allowing Maori owners to opt out by having their land declared cultivation or residential reserve, but it would have been more consistent with Treaty principles to have opened the field on the Mokena and Taipari land and allowed others of Ngati Rahiri to opt in. However, as always in goldfield situations, there

60. Document y5, p 6

were indeed serious public interest considerations involved, and we accept as genuine the need to bring the whole area affected under regulation to deal with the anticipated rush.

The terms of the agreement were a diminution of entitlements previously agreed on the goldfields to exclude fees or rents for licences and pay these instead to local bodies. There may have been some effort to offset this by enforcing more vigorously the taking out of miner’s rights at Te Aroha than at some other fields, but the effect of the 1886 legislation was to diminish the potential Maori earnings. The matter would have been more serious had the Te Aroha field continued to prove lucrative, but the issue becomes somewhat academic as it proved to be no bonanza. On the contrary, the extraction of gold on Te Aroha soon proved difficult and expensive, a factor which underlay the 1886 attempt by the Legislature to make the fee structure more attractive to investors (see sec 13.4.2).

Figure 57: Gold-mining areas of eastern Coromandel

CHAPTER 12
EAST COROMANDEL GOLDFIELDS

12.1 Introduction

From 1868 to 1900, the eastern Coromandel Peninsula was the scene of several gold discoveries and small rushes. None assumed the proportions of the goldfields discussed in previous chapters. But the hope that they might yield great riches attracted miners and investors, and led to renewed efforts by the Crown and private buyers to acquire the land from Maori.

12.2 Harataunga

12.2.1 The opening of the block

The Harataunga block was among many blocks ceded to the Crown for gold-mining purposes through James Mackay’s efforts in the late 1860s. Gold was worked in the Waikoromiko Valley and Harataunga Stream upstream of their junction near the centre of the block and, most importantly, east of the Tokatea Hill. What some sources refer to as the Tokatea goldfield – named for the hill, not the mining block of the same name – actually straddled the Tokatea and Harataunga mining blocks, with many of the principal mines located in the latter. Maori retained ownership of parts of these auriferous areas into the twentieth century.

Customary rights in this block rested with various Ngati Porou hapu, including Te Aitanga-a-Mate, Te Aowera, and Te Whanau-a-Rakairoa, who had gained possession through a gift or tuku by the Te Matewaru and Ngati Tamatera chief, Paora Te Putu in 1852 (see sec 2.2.5). Mackay secured the cession agreement without opposition from Paora’s hapu. What underlying rights his hapu might have retained over gold mining were not fully tested, as they might have been had they opposed the agreement. Some issues have been raised by claimants in connection with the administration of revenues and timber rights.

Mackay was prompted to seek the cession of mining rights at Harataunga by the report that a prospecting party led by George McLeod had found alluvial gold. This find was probably in the Waikoromiko or Harataunga Streams rather than on the reefs near the Tokatea Hill. Even within the Tokatea mining block, opened earlier, miners did not work those reefs until the discovery of the ‘Tribute’ leader in mid-1868. Even then, although these deposits

Figure 58: Tokatea-Harataunga gold-mining area. Source: New Zealand Geological Survey Bulletin 4.

extended into the Harataunga block, it is unlikely that miners had put any great pressure on the right-owners to allow them access.

Mackay negotiated the mining cession, dated 13 May 1868, with resident Ngati Porou led by Ropata Ngatai. The Ngati Tamatera chief, Te Moananui and Paora’s niece, Riria Karepe, signed as witnesses but not as parties to the agreement. They did not claim the right to receive a share of goldfield revenues then or after. Ropata Ngatai then travelled to Tuparoa at Waiapu to visit the Reverend Raniera Kawhia, whom Mackay described as the principal man among the non-resident claimants. Kawhia approved the agreement on the condition that two pieces of the block formerly leased to Messrs Smart and Hogg were reserved. In subsequent dealings and land court proceedings (in 1878) to establish title to the Harataunga blocks, a leading role was taken by Rapata Wahawaha (‘Major Ropata’), rangatira of Te Aowera hapu, normally resident at Waiapu.

The 1868 mining cession agreement was modelled on the Te Mamaku 2 agreement negotiated with Ngati Maru and Ngati Whanaunga. It stipulated that the land was ceded for gold-mining purposes under the Gold Fields Act 1866, and that revenues of £1 per miner s right issued would be payable to the Maori owners. As was usual by then, miners would be

Figure 59: Harataunga block (goldfield), 13 May 1868. Source: Henry Hanson Turton, Plans 0/ Land Purchases in the North Island of New Zealand, 2 vols (Wellington: Government Printer, 1877), vol 1, deed 344.

entitled to free use of timber other than kauri, for mining purposes only. Kauri could be cut for a fee of £1 5s per tree. Any person desiring to cut other timber for sale had to obtain a miner’s right and a timber licence from the Crown for a fee of £5 per annum, also payable to the Maori owners.

The Harataunga block was proclaimed as part of the Coromandel goldfield on 18 May 1868. The proclamation was validated by the Auckland Gold Fields Proclamations Validation Act 1869, which also stipulated that the rights acquired by the Crown would not be affected by the conversion of customary tenure into Native Land Court titles. Mackay reported that, following the proclamation ‘a considerable number’ of miners came to Kennedy Bay but most soon left, for the gold deposits were not easily worked by individual miners.¹ By the early 1870s, however, some valuable reefs were being worked and new discoveries made, including Waikoromiko in the south of the block.

12.2.2 The administration of revenues

According to an 1880 report by Puckey (native agent for Thames and Coromandel), no payment of goldfield revenues was made to Harataunga Maori by Mackay in 1868–69. After

1. James Mackay, ‘Report by Mr Commissioner Mackay Relative to the Thames Gold Fields’, 27 July 1869, AJHR, 1869, a-17, pp 8–9

Figure 60: The Harataunga block. Left: Mackay's sketch map of the goldfield at Kennedy Bay, 1869. Source: AJHR, 1869, a-17. Right: Cold mining on the block.

repeated applications for them, Puckey went to Harataunga in December 1870 to resolve the matter. Ropata Ngatai and others claimed the whole accrued sum, but Puckey refused to pay more than half, pending clarification of the entitlements of the right-owners at Waiapu. After much dispute, the other half was paid to Rapata Wahawaha, the leader of the nonresident right-owners. Puckey explained:

Other payments have at intervals been made since to Major Ropata and Rev Ranura [sic] Kawhia who substantiated their claims to the whole known auriferous portion of the block in the Native Land Court at Coromandel in February 1878, since which time one payment has been made.²

In the land court hearing, the Harataunga block was divided into Harataunga East (4552 acres) and Harataunga West (4339 acres) divided by the Harataunga Stream, each containing a number of subdivisions. According to Puckey, Harataunga West subdivisions 1 to 7 contained most of the gold diggings. These blocks were awarded to Wahawaha’s party of claimants. However, the Waikoromiko mines were in Harataunga East 1 and the southern portion of Harataunga East 2.

The issue of the distribution of revenues re-emerged in 1895 when some owners complained that they were not receiving any. Native agent Wilkinson wrote to the mining warden:

Until March 31st 1892, all revenues accrued from the Harataunga blocks (without distinction between East and West) has been paid to Ropata Wahawaha and Eruera [sic] Kawhia on behalf of all the owners. Since then, however, it has been retained, because of an objection by one of the owners to these chiefs receiving the money. There is now about £145 in hand, and what I propose should be done now is for the Mining Inspector to allocate that money to the particular subdivisions on which mining etc has taken place, and pay it to the owners of those subdivisions, or to those who they may appoint to receive it.³

No further evidence is available about the question of distribution of gold revenue.

12.2.3 Crown purchases in the block

Following the court determination of 1878, the owners indicated some willingness to sell the mountainous goldfield land but not the 600 or so acres of flat land fronting the harbour, where they had their houses and cultivations. The Crown showed little interest, however, until the 1890s, when the land purchase officer in Gisborne received offers to sell from Harataunga owners there, in particular an offer from Wahawaha in November 1892 to sell

2. Native agent, Thames, to under-secretary, Native Department, 31 July 1880, Maori Affairs head office special file 62 (doc a10, pt 1, p 6)

3. Wilkinson to mining warden, Thames, 23 March 1893, ma-mlp1899/48 (doc a10, pt 1, p 20)

Figure 61: Crown purchases in the Harataunga block

the Harataunga West 1 to 7 blocks. Between 1893 and 1896, the Crown agent in Gisborne purchased a number of interests, at five shillings an acre, but in Coromandel Peninsula, where most of the owners lived, the land purchase agent, Gilbert Mair was able to obtain no interests at all.⁴ He reported:

Puterangi, the principal chief at Kennedys Bay, and his immediate relatives will not sell their interests as they say they have no other land whatever. It has been a great waste of money surveying the numerous subdivisions. The natives seem anxious now to have them all swept away, with a view, if it could be arranged, of taking the non-sellers shares in one or two pieces, and so save cutting up the 6 or 7 divisions into as many more by long narrow strips.⁵

4. Document a10, pt 1, p 18

5. Hauraki minute book 49, fol 318 (doc a10, pt 1, p 19)

In 1899, the Crown’s interests in the Harataunga West blocks were partitioned out by the court. They amounted to 675 acres, the owners retaining 2248 acres. Mair reported that he had great difficulty in arranging ‘a fair subdivision of the land’ because the shares of each owner had never been defined, and their residences and cultivations were on the seaward end of each block. Another problem was that ‘those natives who had resided on the land for the last 50 years were most unwilling to admit that the sellers, none of whom had ever probably seen the land, should have equal shares’.

But Mair insisted that the shares of residents and non-residents alike be treated as equal. The Crown selected the back portion of Harataunga West 1 (plus nine acres extra on account of the lack of frontage) and the back of 3 and 4 on account of the kauri timber. ‘As to the rest, the Crown awards comprise the best of the land.’⁶ Mair made no mention of gold being a consideration in the Crown’s choice of land; by that time, mining was of little importance in Harataunga.

The resident owners of the Ngati Porou hapu at Kennedy’s Bay could scarcely have been pleased at their non-resident kin in Gisborne selling the land from under them, and it must be doubtful whether descendants of the non-residents today have any basis for claiming interests in the remaining Harataunga West lands. Moreover, whatever the strictly legal view of the matter, in our view it was unconscionable and not in keeping with the spirit of the Treaty for Mair to insist on treating the interests of non-residents as of equal worth with those of the resident owners. The issue touches upon the very large question of the way nonresidents in land court titles can exert a much greater role than would have been possible in customary tenure and one which often prevented resident owners from developing the land and retaining the full value of their developments. This matter is discussed further in various sections of chapters 15 to 18.

12.3 Pakirarahi (and Adjacent Blocks)

Claims relating to Pakirarahi have been brought both by the Wai 100 and Marutuahu claimants, and by Gavin Caird and Shane Ashby on behalf of the Ngati Hikairo hapu (Wai 464, Wai 661). It has been submitted that not all the customary right-owners had consented to the cession of the block to the Crown for gold-mining purposes before it was declared open. More seriously, it has been submitted that in 1895 the district land registrar registered a freehold title to the Pakirarahi 1 block in favour of the Kauri Timber Company (ktc), without the transaction being approved by the Native Land Court, thereby depriving the Maori owners of both gold and timber revenue.⁷

6. Mair to chief land purchase officer, 23 March 1899, ma-mlp1899/48 (doc a10, pt 1, p 20)

7. Document H3, pp 2–6

12.3.1 The opening of the block to miners

The Pakirarahi block is in the Coromandel Ranges east of Thames, in the watershed drained by the eastward-flowing Tairua River. It includes the so-called Neavesville goldfield.⁸ The block was included in the proclamation of 8 April 1875 extending the Hauraki gold district; also proclaimed were the Tairua, Kapowai, and Puketui blocks (the Crown purchase of which was either complete or nearly so), and parts of the Taparahi, Korongo, and Takatakaia blocks.⁹ However, only verbal - not written - agreements existed between Crown and Maori relating to these blocks.

James Mackay, in an ‘Address to Ngati Maru’ given in 1896, explained that the Pakirarahi block was among lands he had excluded from the 1868 Te Mamaku 2 mining agreement. It had then been proposed by Ngati Maru that one of the mining blocks into which their land was to be divided, namely the Kirikiri mining block, should encompass part of the Taparahi, Korongo, Takatakaia, and Pakirarahi blocks. Had it done so, the Kirikiri mining block would have extended across the crest of Coromandel Ranges into the watershed drained by the Tairua River. Mackay, however, having no surveyor at hand, insisted that it was necessary to adopt natural boundaries; the watershed ridge between the east and west coasts should be the eastern boundary described in the 1868 mining agreement. Mackay’s proposal was vehemently opposed by the Maori negotiators at the time on the ground that he was cutting off lands which, in terms of customary ownership, were one with the lands on the Thames side of the watershed.

Mackay recorded in 1896, that when the Hauraki gold district was extended in 1875, he again discussed the eastern lands which had been cut out:

I drew [the proclamation] out. But before writing it, I went to Hohepa Paraone Tarawerawera, Riwai Te Kiore, and Te Hoterene Taipari, and spoke thus to them – ‘Friends, do you recollect the portion of the Kirikiri block, which I excluded from the agreement of the 9th March, 1868, that is part of the Taparahi, Korongo, Takatakaia, and Pakirarahi blocks, which I have held ever since in my hand. At present, I and Dr Pollen are drawing out a fresh proclamation to include more land in the goldfield. What do you say about it?’ They said at once, ‘include it now, so that the lands may lay straight in their own places.’

Mackay also added, in response to a doubt raised by Cadman, then Minister of Mines, that the Crown had acquired Maori consent to mining on Pakirarahi:

8. The spelling ‘Nevesville’ was officially adopted by the New Zealand Geographic Board: Decisions of the New Zealand Geographic Board Nga Pou Taunaha 0 Aotearoa, 28 January 2004, http://www.linz.govt.nz/rcs/linz/pub/web/root/core/Placenames/PlaceNameDecisions/28jan2004/index.jsp.

9. ‘Proclamation Enlarging the Boundaries of Hauraki Gold Mining District’, 8 April 1875, New Zealand Gazette, 1875, no 21, p 237; Auckland Provincial Government Gazette, 20 April 1875, V0l24, no 20, p 238. Dr Anderson stated incorrectly that Pakirarahi was included in the March 1875 proclamation; it was the Ohinemuri block that was proclaimed in March.

Figure 62: The Pakirarahi block. Inset: The Neavesville mining area.

If the Government had no authority to sanction mining on the Pakirarahi block, perhaps they will be able to show the reason why the Miners Right, and the lease money, has been paid to the Maoris all these years. Also the payment for such ‘kauri’ trees as have been bought for mining purposes.¹⁰

Mackay’s account rings true. Yet, the opening of the Pakirarahi block had struck difficulties arising out of Mackay’s complex negotiations in relation to the Tairua-Pakirarahi area. In the course of these, he apparently endorsed a promise by a private mining company of a share in a mining claim to Nikorima Poutotara, one of the presumed right-owners in the Tairua-Pakirarahi area, in exchange for his consent to the proclamation. Shortly after the

10. Translation in English: Address of Mackay to Ngati Maru (Thames: WM McCullough General Printer, 25 May 1896) (doc b11(a), p 31). Mackay mistakenly recollected the date of the proclamation as 8 April 1875.

1875 proclamation, Matiu Poono and Tauturo (Tauturo Tawa) asked the superintendent of the province not to approve any applications for mining leases: ‘The land is ours which has not been adjudicated upon. Therefore, do not be led ignorantly into granting a lease of that land but let the applicant come to us the owners of the land.’¹¹ Licensed interpreter WH Grace wrote on their behalf that they had not ceded any interests in the block nor been consulted in the matter, and that ‘One native only [Nikorima Poutotara] who claim[ed] a small interest in the Block, consented to the opening of the said land for gold mining purposes … without the knowledge of other claimants.’¹² Matiu Poono and others also petitioned the House of Representatives about the manner of the opening.¹³

Although Mackay seems to have believed that he had obtained the consent of the major right-owners to the proclamation, he had not done so. Nor had he held a general meeting to sanction the proclamation, arranged for the allocation of revenues, or come to a written agreement with the owners. These omissions, and the preferential treatment of Nikorima Poutotara, underlay the difficulties in the opening of Pakirarahi.

The Native Affairs Committee investigated. The main concerns raised by Grace, representing the petitioners, were who had a right to deal with the block and receive revenues from it and whether, as Grace espoused, all of the major right-owners in the block were entitled to shares in the claim equal in value to those promised to Poutotara. The committee also examined whether the receipt of such shares by those entitled to receive them was a necessary condition of the cession. The committee decided that the petitioners had not established a case for compensation and it recommended only that the ownership of the block should be determined by the Native Land Court.

The awards made by the court in December 1875 did confirm that Mackay had dealt with most of the major right-owners (assuming his 1896 account to be accurate). The portion known as Matakitaki was awarded to Te Hotereni Taipari solely. Pakirarahi 1 (3494 acres) was awarded to Hohepa Paraone, his wife Maata, Kataraina Te Whakaharuru, and

11. Tautoru and Matiu Poono to superintendant, 19 April 1875, 1875/1188, ap2/51 (Robyn Anderson, Goldmining: Policy, Legislation, and Administration, Rangahaua Whanui Series (Wellington: Waitangi Tribunal, 1996), p 43)

12. WH Grace, 24 June 1875, Auckland Provincial Government general inwards correspondence, ap2/511777/1873 (doc a8, pp 272–273). Mackay had not consulted with Nikorima alone but he had consulted with very few others of the Ngati Te Ahumua hapu, and the objectors were fundamentally right in respect of that hapu’s portion of the block. The promoter’s share promised to Nikorima may be the same share referred to in evidence before the Tairua Investigation Committee by WH Grace, who acted for those Maori protesting the proclamation of the Pakirarahi block. Grace refers to a dispute involving Te Moananui, Tanumeha, Riwai Te Kiore, Hohepe Paraone, Matiu Poono, and Tauturo Tawa regarding the division of shares in the Prospector’s Claim to which, according to Grace, they were entitled (this claim appears not to have been awarded in the end). Grace refers to a promise made by Mackay to these Maori that, if they agreed to the opening of Pakirarahi, then it would be arranged that some of the shares promised to Nikorima would be made over to them: see WH Grace, ‘Minutes of Evidence’, 7 September 1875, AJHR, 1875, i-1, pp 24–25; James Mackay, ‘Minutes of Evidence’, 7 October 1875, AJHR, 1875, i-1, p 47.

13. Anderson, p 43. Dr Anderson does not name the other petitioners or say how many there were.

Hona Pou.¹⁴ Pakirarahi 2 (2495 acres) was awarded to Nikorima Poutotara and 37 others.¹⁵ However, Matiu Poono and Tautoro Tawa were amongst the awardees of Pakirarahi 2 and thus their right to have been consulted by Mackay was borne out.

The subdivision of the block appears to have overcome potential objections: Kataraina Te Whakaharuru later gave evidence that she ‘was not agreeable for the miners rights to issue until the land had been partitioned between us and Nikorima - then it was said let us cut the survey line that it may be known upon whose land the miners rights [were to] issue’.¹⁶

All this evidence suggests that, despite the limitations of his proceedings, there had been considerable consultation by Mackay, and that from 1868 onwards most of the principal owners were willing to see the land included in a mining agreement. For want of much fuller documentation, we are unable to go behind the decision of the Native Affairs Committee on Poonu’s petition. The fact that Kataraina Te Whakaharuru’s objection related to the apportionment of revenues, suggests that she was supportive of mining rather than opposed to it.

We conclude that most of the customary owners had given consent to mining on Pakirarahi and the related portions of the former Kirikiri block. However, Mackay’s arrangements for the opening of the block were less than thorough, and the proclamation including the block in the Hauraki goldfield was premature.

No information is available as to whether any shares in mining claims were made over to Nikorima; Tautoro Tawa and Matiu Poono may have come to some accommodation with him. Mining on a limited scale commenced, and it seems that some goldfield revenues were paid to the named owners in the next few years.¹⁷ The only indication of further discontent among the owners was that in June 1889 the Native Land Court partitioned Pakirarahi 1 into 1a and 1b ‘to cut the interest of Porokuru Tamamutu, who was not a blood relation of the owners, out of the block’.¹⁸ There is no further mention of this partition in the evidence until the re-amalgamation of the two parts as Pakirarahi 1c in 1991.¹⁹

Claimant research indicates that mining was difficult on Pakirarahi, and that several of the mines opened in 1875 had a short life. Production increased after 1900 following new investment. The most productive site was ‘the Golden Belt’, an area of about 30 acres embracing the Ajax reef. Claimant research indicates that some 11,000 ounces of gold and 18,500 ounces of silver were extracted from Pakirarahi up to 1940, and that 80 to 90 per

14. Document h3, pt 2, pp 8–12. The awardees of Pakirarahi 1 claimed from the ancestor Hikairo, whereas Nikorima claimed from a tuku from Hikairo to his wards Kaimoka and Te Kutu.

15. Document h3, pt 2, p 12

16. See the evidence of Kataraina Te Whakaharuru before the Native Land Court in the 1889 hearing regarding the subdivision of Pakirarahi 1: Hauraki minute book 21, fols 224–230 (doc h3, pt 4, pp 16–17).

17. Hauraki minute book 21, fols 224–230 (doc h3, pt 4, p 14)

18. Document h3, pt 4, p 13

19. Ibid, p 31

cent of this came from Pakirarahi 1.²⁰ However, this is indeterminate because the Golden Belt site straddles Pakirarahi 1 and 2 blocks. The claimant report also recognises that much capital had been invested in the development of the mines.

12.3.2 The alienation of Pakirarahi 1

Before mining in the Pakirarahi block took place on any significant scale the various owners of Pakirarahi rentered into a series of transactions with the Union Steam Saw Moulding Sash and Door Company (hereafter, ussc), with perhaps unintended consequences for their rights in the block.

The first set of transactions were recorded in three deeds of conveyance:

► The first, dated 31 March 1882, was signed by Hohepa Paroane, Mata Paroane, and Kataraina Te Whakaharuru and purported to convey to ussc ‘all their estate and interest’ for the sum of £770 10s. Subsequent to the signing, the investigation of title begun in 1875 was completed by the award of a certificate of title to the same three owners plus Hona Pou. The certificate is dated 29 August 1883. On 26 June 1884, TM Haultain, trust commissioner, attached his certificate to the March 1882 transaction.

► On 14 July 1884, Hohepa Hikairo and Matire Parehuitau, two of the three successors to the interests in Pakirarahi 1 of Hona Pou, who had died before the 1882 sale, conveyed their interests to ussc, in freehold, for £157. Haultain’s certificate dated 30 July 1884 was attached. The need to find successors to Hona Pou and transact with them as well, had probably emerged when Haultain examined the 1882 transaction on 26 June.

► On 25 August 1884, Mohi Hamuera also conveyed his interest to ussc for £75.

However, within a few weeks the various owners had apparently decided to clarify what they had actually intended to convey, for on 19 September 1884 (having paid the nominal sum of 10 shillings to ussc) they signed a deed of covenant with ussc which reshaped the deal. This deed recited the previous deeds then stipulated that ussc would convey the block back to the Maori covenantees or their successors, either when it had taken out the timber, or at the end of a term of 99 years. It also reserved to the Maori vendors the right to receive mining revenues, in the following terms:

If at any time hereafter during the said term of ninety nine years any prospecting searching or mining for gold or other minerals shall take place on or in the said land or any part thereof all fees dues or monies paid for or on account of such prospecting searching or mining by any person or persons, Company or Companies or bodies or bodies corporate

20. Document h3, pt 5, pp 1, 13

shall be paid to and deemed to belong and be the property of the covenantees their heirs successors or assigns the deeds of Conveyance hereinbefore in part recited to the contrary notwithstanding.²¹

Two points should be made in clarification of these matters:

► First, provided the Crown held no unexpired pre-emptive right of purchase over Pakirarahi 1 (and none was asserted), it was perfectly lawful for the Maori owners to alienate their land to private parties, regardless of whether there was a mining agreement over it and it was within a mining district. A consequence of any such sale would be that the land would cease to be Crown land or land deemed to be Crown land under mining legislation. Provisions of the mining legislation relative to Crown land and regulations under it would then cease to apply.

► The terms of the September 1884 covenant embodied the company’s promise to recon- vey the land to the Maori vendors after the removal of the timber or after 99 years, and protected its entitlement to fees and dues from prospecting or mining. But they do not appear to have otherwise qualified the title that ussc enjoyed in the meantime, by virtue of its purchases.

► By virtue of its assumed title, ussc mortgaged the land to the Bank of New Zealand in 1888; the bank then, in default of repayment by ussc, sold the land to ktc. Mining on the block would first have been under ussc’s terms, then those of ktc, not those of the Crown, as on Maori land subject to cession agreements. Among the arrangements that ktc made in relation to mining was in 1896 to give grant and assign to Finlay McLiver of Nevesville ‘all the right to the land and interest’ in the 30-acre area known as the Golden Belt, one of the richest areas of mining on Pakirarahi.²²

The company’s claimed freehold interests were further established by the fact that the three deeds of conveyance of 1882 and 1884 were able to be registered in the Land Transfer Office (although not without possible technical malfeasance), while the deed of covenant of September 1884 was not. The covenant itself was registered in the Deeds Registry Office on 1 October 1884 as number 89727.²³

A freehold title for Pakirarahi 1 (certificate of title 71/84) was first issued by the Land Transfer Office on 9 September 1895. The certificate of title was issued in the names of four of the original awardees,²⁴ and ante-vested to 1875 under the authority of section 73 of the Native Land Court Act 1894. By this time, ktc was in possession of the block. Its solicitor

21. Certified copy of deed of covenant (doc h3, pt 4, pp 15–16). The following account of the transactions and litigation is taken from document h3, pt 4.

22. Document h3, pt 4, p 19

23. Ibid, pp 17–18

24. The late Maata Paraone had been admitted by the other awardees out of aroha, and her interest had since been awarded to them.

applied to have the three deeds of conveyance of 1882 and 1884, and a number of subsequent deeds by which it claimed title, brought forward and registered under the land transfer system. The district land registrar, Edwin Bamford, agreed to register them on the conditions that ktc admitted notice of the deed of covenant of September 1884, and that a caveat pursuant to it be entered on the title. The transactions between ussc, the Bank of New Zealand, and ktc were also entered.

The result was that in February 1896 ktc became the registered proprietor of Pakirarahi 1 under the land transfer system. The company’s freehold title was encumbered only by the caveat (caveat x1069) entered at Bamford’s request. The caveat states that it was entered ‘for the prevention of improper dealings and the protection of the interests of the several natives as mentioned in the Deed of Covenant registered in the Deeds Registry Office under No 89727’.²⁵ This caveat had the concrete effect of preventing the registration of further transfers of the freehold, which ktc found inconvenient. It is not clear what effect in law the caveat had on mining rights fees and dues, although (as noted above) the covenant appeared to protect the Maori covenantees’ entitlement to them. We have seen no positive evidence that they received no revenues from fees and dues after the registration of the ktc title. There were, for example, no contemporary complaints that these had ceased. However, the claimants’ understanding is that the revenues did stop at that time.

Registrar Bamford’s right to issue freehold title and register the conveyances was never ruled on in the courts. There were, however, cases heard concerning the caveat. In 1902, the Supreme Court heard an action brought by ktc against the district land registrar seeking the removal of the caveat. After observing that ‘it is perhaps rather unfortunate, but I cannot help it’, Judge Conolly ruled that the intention to reconvey the land expressed in the deed of covenant was against the law of perpetuities and that the caveat must be removed. Bamford then appealed the decision. His appeal was allowed and the order to remove the caveat discharged.²⁶

Although the registrar’s defence of the caveat was obviously protective of the Maori interest, comments made by Justice Stout in the Court of Appeal raise other serious questions about the officials’ protection of the rights of the Maori covenantees. Stout commented:

It is clear that until the Registrar treated the conveyances as transfers under the Act, and registered them, the Kauri Company had no legal estate in the land. The conveyances and the deed of covenant constituted the agreement between the Maori and the Union Company, and the Kauri [Timber] Company had no greater rights than as assignees of that agreement. And if the Court had to spell out the real transactions from these conveyances and deed of

25. Document h3, pt 4, p 18

26. Ibid, pp 19–29

agreement, I am convinced the Maori did not understand they were parting with their land absolutely and forever. The transaction intended to be carried out was really in the nature of a lease. What was done by the District Land Registrar may amount to the giving of an estate in fee simple to the company unburdened with any conditions. Until, however, the conveyances were registered as transfers, this was not given …

What is asked now is to remove the caveat the lodging of which was the consideration for the registration of the conveyances. Removing it would deprive the Maoris of rights they possessed before the registration of the conveyances. In my opinion the Court should not do so until the Maoris interested are before the Court.

In Stouts view then, until the registrar had treated the deeds of conveyance as transfers under the Land Transfer Act 1885, ktc had no legal estate in the land other than as assignee of ussc’s agreement.

It is doubtful whether Bamford should have registered the conveyances of 1882 and 1884 under the Land Transfer Act. The Maori awardees had not become formally entitled to a Crown grant until 1883, when they were awarded a certificate of title by the land court. But, for the ante-vesting to 1875, the 1882 conveyance to ussc could have been legally void under the Native Land Acts. The two later (post-1883) conveyances were not void as legal instruments but were possibly invalidly registered as transfers of the freehold.

We note that the judges in the Court of Appeal believed that some technical irregularities might have occurred, and that questions remained which required further evidence before they could be definitively answered, including evidence from the interested Maori parties, heirs to the original awardees of Pakirarahi 1. Thus, Justice Stout stated:

It may be that the first conveyance is void, and that the other conveyances, not being in the form provided by the Land Transfer Act, are invalid. It is clear that after the certificate of title of the 29th of August, 1883, a Provisional Register should have been opened if the order made declared the title to be freehold and did not leave it Native customary land.

The District Land Registrar appears to have treated the conveyances as transfers under the Land Transfer Act. If the conveyances were properly registered under the Deeds Registration Act he may have been warranted in so doing. But if he did not, and if a Provisional Register ought to have been opened, then he could only do so under sections 212 to 215 inclusive, of The Land Transfer Act 1885, and no facts are stated showing that he ought to have treated the conveyances as transfers. Did he act under section 212?

Stout answered his own question:

The Registrar according to his own statement, came to an agreement with the Kauri Company which he states as follows: ‘Ultimately, however, it was agreed between the Kauri Timber Company’s solicitors and the Registrar that the question of forms should be waived,

that the company should admit notice of the covenant (which was done in writing) and that the Registrar should lodge a caveat for the protection of the covenantees’...

Stout did not believe that the Court of Appeal yet had enough evidence before it to answer all the questions arising:

But in my opinion this Court ought not at present to enter on the consideration of what the effect of the deed of covenant was … Removing it now would deprive the Maoris of rights they possessed before the registration of the conveyances. In my opinion the Court should not do so until the Maoris interested are before the Court. They do not seem to have consented to the registration, and whether the Registrar had power to register those conveyances has not been considered or contested. Further, on the facts stated, the first conveyance may be void. The facts are not sufficiently stated to enable any opinion on the validity of the conveyances, the registration, or the right of the District Land Registrar to enter the deeds on the Land Transfer Register to be arrived at. To remove the caveat would prevent these and other questions being raised.²⁷

He therefore declined to remove the caveat. Other judges also raised unresolved questions. Justice Edwards noted that the certificate of title awarded by the Native Land Court on 29 August 1883 did not of itself extinguish native title. When the conveyances were entered into, the vendors were entitled only to execute a memorandum of transfer, which required to be confirmed by the land court before the original land court title could be extinguished and a freehold order made in favour of the purchasers:

So far as the material before this Court shows, the Native owners did not acquire a freehold title or become entitled to a Crown grant under the [Native Land Court] Act of 1894, No 43, came into operation, when their title became freehold by virtue of the 73rd section of that Act … Meanwhile the respondents’ conveyances, if the facts are as they appear to be, came within the express prohibition of section 87 of the Native Land Act, 1873. [Emphasis added.]²⁸

Edwards went on to say that if the facts showed that the conveyances ought not to have been registered, the district land registrar ought, in Edwards’ opinion, to cancel the registration under section 69 of the Land Transfer Act. Moreover, because, ‘very possibly the Maori parties had been deprived of an interest in the land they never intended to part with, they might be entitled to compensation from the legal Assurance Fund, although that might be barred by section 187 of the 1885 Act because more than six years had elapsed since the conveyances. Edwards continued:

27. Document h3, pt 4, pp 24–26

28. Ibid, p 26

If it has, the case is doubly hard to the Natives as it does not appear that they had any opportunity of objecting to the registration of the respondents’ conveyances, or even that they knew that they had been registered. If so, it is doubly the duty of the officials of the Land Transfer Office to endeavour by every means in their power rectify the error, if there is an error.

If the registrar came to the conclusion that no error has been made, it was, in Edwards’ view, still at least his moral duty to inform the Maori owners so that they could take steps to protect their rights.²⁹

Miss Connolly, witness for the Wai 464 claimants, has submitted evidence showing that an application made under the Official Information Act 1992 elicited the response that ‘the District Land Registrar could find no records which would indicate that any investigation was made into any of the matters raised by the Court of Appeal’.³⁰ The land therefore remained effectively in the freehold title of ktc, which continued to extract the kauri timber and on-sold an acre of land in Nevesville for a hotel.

In the late 1960s, barrister and solicitor Finlay Phillips was instructed to find the descendants of the original owners and recover the land. Miss Connolly records that ‘This was successfully achieved but not without great expense to the persons who were finally found to be the rightful owners’.³¹ On 22 November 1991, the owners received title to Pakirarahi 1c, being an amalgamation of the former 1a and 1b, declared Maori land by the Maori Land Court. It is not clear whether the acre sold for the hotel was included in the title but presumably it was, since the hotel itself was removed some decades ago. Miss Connolly further records that ‘An attempt was made to negotiate with the Attorney-General and the district land registrar over the question of payment of costs, but these negotiations were never finished’.³²

12.3.3 The Crown's Treaty responsibility

The technical and legal history of Pakirarahi 1 includes many questions raised by the Court of Appeal judges in 1902 which were never finally determined. We are more concerned to consider whether and in what ways the Crown failed in its duty of active protection of the right-owners, and what prejudicial effects they suffered.

In that context we note the terms of the various deeds of 1882 and 1884, most particularly the covenant of September 1884 which seems to us (as it did to Justice Stout in 1902), to embody the Maori owners’ intentions quite clearly: namely, to convey the land to ussc, for the lump sums named in the deeds, for the purpose of cutting the timber, at the same

29. Ibid, p 27

30. Ibid, p 28

31. Ibid, p 31

32. Ibid, p 32

time reserving to themselves the right to receive fees and dues payable for gold mining, and specifying an undertaking by the company to convey the land back to them when the timber was removed or at the end of 99 years.

It seems very likely, as the Court of Appeal judges set out in some detail, that proper technical forms or procedures were not followed in relation to the 1882 deeds and the transactions under them before 1896. But the judges did not have the full facts in front of them which could definitively resolve the technical questions, and neither do we. We therefore make no finding as to those questions.

Nor do we wish to speculate on the likely outcomes had some other course of action been followed: if, for example the conveyances had come to the Native Land Court for approval rather than simply to the trust commissioner. The Wai 464 and Wai 661 claimants have submitted that, ‘If the conveyances had been submitted to the Maori Land Court for confirmation, confirmation would have been refused because the purported transaction was unconscionable.’³³

This is by no means certain. As we shall discuss in our chapter relating to land law, from 1889 to 1894 the Legislature passed several statutes aimed at validating agreements which were technically in breach of one of the myriad acts relating to Maori land, including the setting up of a special Validation Court and the subsequent granting of similar powers and functions to the judges of the Native Land Court. A great many technically flawed transactions throughout the North Island were validated, and it is entirely possible that had either ussc or ktc taken its transactions to one of those bodies, the court would have validated them, although not, it must be said, without the Maori parties concerned being heard. We would also point out that one of the most relevant statutory provisions was section 73 of the Native Land Court Act 1894, by which Justice Edwards considered the owners of Pakirarahi 1 had their customary title converted to a freehold title.

However, the solicitors for ktc negotiated with district registrar Bamford for registration of the transfers. Instead of telling them to go to the Validation Court or the Native Land Court, Bamford took it upon himself to waive the question of ‘forms’ (ie, due processes) in return for ktc’s agreement to register the caveat referring to the September 1884 covenant. It is very much to Bamford s credit that he secured that much legal force for the covenant. By this act, he did protect Maori interests, possibly as much as the Validation Court or Native Land Court would have done. On the other hand, there is no indication that the Maori owners themselves were heard at the time, as would have been the case if the issue had gone to the Validation Court or Native Land Court. Perhaps there was some attempt by Bamford to let them know informally what he intended, but Justice Edwards in 1902 seemed to think they were kept in ignorance as to what was being done with their land in 1895–96. This we consider to be a most serious failure on the part of the Crown officials.

33. Document h3, pt 1, p 5

We also note that, having secured the caveat, Bamford was active in protecting it, taking the matter on appeal after Justice Conolly had acceded to ktc’s request to remove the caveat, and winning. Ultimately, the caveat, and the covenant, were the basis by which the Maori owners recovered the land in 1991. This return at least was a reasonably satisfactory outcome.

12.3.4 Actual prejudice

We now assess (although with difficulty) the actual prejudice suffered by the Maori owners of Pakirarahi 1.

(1) Timber

The transactions of 1882 and 1884 were made for payments totalling £1010 10s. This money was for the removal of kauri, for the owners reserved (or attempted to reserve) their entitlement to mining fees and dues. Possibly, the owners made a bad bargain, in comparison to being paid 25 shillings for each kauri tree as was normal under mining cession agreements. But they may have needed a lump sum, and ussc was probably pleased to transact on the basis of what was effectively a long lease. Miss Connolly suggests that ‘Such arrangements were common practice in the King Country in the 1890s [and] early 1900s’ By then a more sophisticated system of timber purchase had evolved ‘in that the Land Transfer Office began to issue titles to the trees on the surface of the land in addition to title to the land itself … If such a system had been in place in the 1880s then this present dispute would not have arisen’.³⁴

While this may be so, we believe that the deals made over Pakirarahi in 1882–84 must be evaluated with regard to the circumstances of the time. No evidence has been submitted as to the value of timber revenue lost under the transactions as compared to the lump sums paid. In chapter 24, we discuss damage to the economy, environment and similar issues, but without more evidence we cannot assess the monetary prejudice to Maori in respect of the timber taken from Pakirarahi 1.

(2) Gold revenue

The 1884 deed of covenant explicitly stipulated that any fees and dues payable for gold mining were to be the property of the Maori parties who transacted with ussc. The vesting of the freehold title in ktc, on the other hand, allowed the company to behave as if its ownership of the block was unconditioned by any such obligation.

In September 1896, ktc granted Finlay McLiver ‘all the right to the land and interest or demand of the Company’ in the 30-acre Golden Belt claim.³⁵ McLiver had held a number

34. Ibid, pt 4, p 5

35. See caveat x1134 on the registered title: doc h3, pt 4, p 19.

of mining leases in Pakirarahi 1 and 2 since 1875, when the mining block was first ceded to the Crown. The 1896 transaction was recorded by a caveat on the certificate of title. We have heard no evidence concerning what consideration ktc received for making this grant.

In 1902, the Golden Belt Mining Company was formed and worked the claim between 1906 and 1920. In 1927, a syndicate took up the claim again and carried out testing but did not work the ground. The claim was then sold to a Mr Grace who also acquired some other claims on Pakirarahi 2. About 7800 ounces of gold was produced from the Golden Belt complex, making it much the biggest producer in the Pakirarahi mining block. The second biggest producing mine in the Pakirarahi mining block was the Chelmsford mine, located on Pakirarahi 1. The Chelmsford Goldmining Company started working this claim in 1889 and was wound up in 1905. We have heard no evidence concerning how the Chelmsford Company acquired its claim but, given that it commenced work in 1889, it must have acquired rights from the Kauri Gold Estate Company.³⁶

Mr Alexanders evidence indicates that the Native Land Court confirmed in June 1896 that mining rights in Pakirarahi 2a and 2b had been ceded to the Crown.³⁷ This block had not left Maori ownership, although was possibly in the possession of a timber company for logging purposes. As mentioned above, there are indications that goldfield revenues were paid to the Maori owners, at least to that date.

Evidence given on behalf of the Wai 464 and Wai 661 claimants suggests that ktc ceded mining rights over Pakirarahi 1 to the Crown in about 1898.³⁸ However, Judge MacCormick of the Maori Land Court commented in 1935: ‘I am informed that no Mining Privileges have been granted over this block, which is not within the area ceded to the Crown for mining purposes.’³⁹ It is possible that ktc set the block apart for mining and made mining rights generally available under its own ‘kauri freehold gold estates regulations’ rather than by ceding the block to the Crown for mining purposes.⁴⁰ We do not have sufficient evidence to settle the question.

We also know that some mining revenue was paid to the Maori owners of ‘Pakirarahi’. In his 1896 address to Ngati Maru, quoted above, James Mackay referred to payment ‘during all these years’. It is not clear what years exactly Mackay was referring to, nor whether the payments were in respect of Pakirarahi 1 (subject of the 1882 and 1884 transactions) or Pakirarahi 2, which remained in Maori title and was still subject to the mining cession

36. Document h3, pt 5, pp 7–8, 14–21

37. Document a10, pt 2, p 265

38. ‘Gold was also extracted through the operation of the Gold Fields Acts’: doc h3, pt 4, p 29. ‘In 1898, this problem [confusion regarding ktc’s lease/ownership] had been resolved with the Kauri Timber Company surrendering their rights over the land to the miners’: doc h3, pt 5, p 7.

39. Judge to under-secretary, Native Department, 18 February 1935, closed correspondence file, Maori Land Court, Hamilton (doc v3, p 63)

40. A copy of these regulations can be found in Charles Rhodes, ‘Conditions for Mining on the Land Held by the Kauri Timber Company: Kauri Freehold Gold Estates Regulations’, AJHR, 1896, i-4a, pp 35–38

of 1875. His reference to payments for timber suggest that he was most likely referring to Pakirarahi 2, because in the 1882–84 transactions the timber rights to Pakirarahi 1 had been sold to ussc for a lump sum. It is apparent from its transactions with Finlay McLiver and others that after 1896 at least, ktc was acting as if it owned the freehold of Pakirarahi 1 and would not have been paying mining fees and dues to Maori. Whether the previous company, ussc had continued to pay them, as per the terms of the September 1884 covenant, we do not know, but there was little successful mining until 1901 and then wildly fluctuating fortunes for various companies until 1940.⁴¹

Mr McEnteer’s research indicates that about 10,000 ounces of gold and 17,000 ounces of silver were taken from Pakirarahi to 1940, the greater part after ktc acquired freehold title to Pakirarahi 1 in 1896. However, his tables and maps do not make entirely clear how much came from Pakirarahi 1 and how much from Pakirarahi 2 (still in Maori ownership).⁴²

Mr McEnteer’s submits that the present (1998) value of the gold and silver extracted would be ‘approximately $6,000,000 … However, the true economic value of the gold and silver extracted would be many times that figure because the value for each year would have to be assessed and converted into present day dollars’ He suggests that the ‘net present value’ of the gold and silver could be calculated by an economist.⁴³

It is not clear what is meant by ‘net present value’ or why reckoning the return for each year would result in much higher figures. But if net return was assumed to account the costs of production - all the costs of machiney, capital works, and wages - the result might very well be negative rather than positive: most of the Pakirarahi mines failed and closed.

We consider that the legal issues remain unresolved (as per the Court of Appeal decision), These findings are based on a simple reading of the owners’ clear intentions, as expressed in the covenant of 1884. The Crown officials’ actions preserved the covenant but caused the owners ‘loss of control’ over Pakirarahi 1 block and attendant ‘loss of resources’ following the registration of the ktc titles in 1896. If the translation of the lease into a sale involved a breach of law then some question of compensation for the loss of goldfield revenues arises, although not for the ‘net value’ of the gold itself (as Mr McEnteer seems to be suggesting).

Under the covenant of September 1884 the Maori owners reserved to themselves all miner’s rights fees, and lease rentals for claims, residence sites agreed in the 1875 cession. It appears that these ceased to be paid to the owners in respect of Pakirarahi 1 after about 1895 (when the ktc titles were registered), if not earlier. If, for example, the Maori covenantees received miner’s rights fees or the lease equivalent for the 30 acres granted by ktc to Finlay McLiver, they would probably have been entitled to about £60 per annum, assuming all 30 acres were worked. Other, smaller areas would also have attracted fees. We consider that the

41. Deed of sale, 14 July 1884 (doc h3(a), pp 13–21)

42. Document h3(a), pp 14–19

43. Document h3, pt 5, pp 1–2

clear intention of the covenant was grant a 99-year lease, not a freehold, reserving the mining revenues. The district registrar’s registration of a freehold in ktc cost the Maori owners that revenue.

It must also be recognised, however, that the district registrar’s defence of the covenant and the caveat endorsing it, saved the land itself and enabled the owners to recover it unencumbered in 1991. This was the result of their own initiative, however, not as the result of the successors at law of ktc recognising that a lease had expired (let alone that a 99-year term granted in 1884 would have expired in 1983). Maori owners were put to heavy (though unspecified) costs. In our view, the reconveyance should have been at the expense of ktc or its successors at law.

The extent of loss of mining revenue during the period between the registration of ktc as owners of Pakirarahi 1 in 1895 and the cessation of mining some time in the 1920s is impossible to determine, however, as the statistics of returns relate to claims rather than land blocks and many were on Pakirarahi 2. The issue falls within the general confusion about the collection and distribution of mining revenue from the late nineteenth century for which the Crown must accept responsibility, and should be addressed in the remedies considered appropriate under this head for Hauraki generally.

12.4 Whancapoua and Kuaotunu

12.4.1 Whangapoua

On 15 October 1868, James Mackay signed a mining cession agreement in respect of lands behind Whangapoua Harbour, including the Opitonui Valley, east of the central divide. The Maori signatories to the agreement were Mohi and Hamiora Mangakahia and Makaore.⁴⁴ No significant gold discovery was made in the next few years, however, although it was the news that the Maori owners of Whangapoua were negotiating to sell the freehold of what was believed to be auriferous land that prompted Donald McLean to seek ways by which the Crown could acquire the title.⁴⁵

The Whangapoua lands became the subject of bitter competition between Thomas Craig and C A Harris for timber-cutting rights, involving the owners in litigation (see sec 14.4.1). David Alexander has reported that the Opitonui block was leased to Harris in January 1870 for a term of 99 years. In May 1870, Harris entered into purchase agreements with Paora Matutaera, one of the two principal owners of the block following the land court award of the title in September 1870. A complicated series of exchanges with Mohi Mangakahia, the other principal owner, gave Harris the full title. The adjacent Waitekuri block was also

44. Mackay, ‘Report by Mr Commissioner Mackay’, p 29

45. McLean to Fenton, 18 December 1869, McLean mss, ATL (doc d2, pp 30–31)

leased by Craig and Harris and then purchased by Harris from Mohi Mangakahia in 1870.⁴⁶ (For a full discussion of these developments, see chapter 13.)

James Mackay wrote in January 1872:

This [block] has nearly all been granted to natives under the Native Lands Act. Gold has been found in two or three places in the neighbourhood of the Waitekuri River, but the workings were abandoned in consequence of the obstructive policy pursued by the Native owners... It is questionable whether much of the Whangapoua Block could be purchased, as it is probable the title to it is complicated by private arrangements between the Native owners and certain Europeans.⁴⁷

What obstruction Mackay encountered from ‘Native owners’ in 1872, after the Harris purchases, has not been explained. No evidence has been presented to us concerning the arrangements under which the gold deposits were worked, who authorised mining and who received any revenues accruing. A major reef was located in this block in 1889 and worked until 1939, but this was long after the block had ceased to be Maori land.

12.4.2 Kuaotunu

The Kuaotunu goldfield lies to the east of Whangapoua Harbour. It was the most productive of the Hauraki goldfields on the eastern Coromandel. Most of the mining took place on Crown land but some Maori land was affected. Mining commenced on the Maori land within it, and a goldfields township was planned by Warden Northcroft, before a goldfield cession had been negotiated.

Kawhina Rangitu, an owner in Kuaotunu 2b, found payable ore on the block in 1887 but would disclose its location ‘only if he were given a share in the proposed mining company’.⁴⁸ However, late in 1888 European prospectors also made finds, and in January 1889 the Government declared the area part of the Hauraki mining district under the Mining Act 1886. Development of the field, including the lucrative Trifluke (or Try Fluke) claim, was initially hindered by the fact that Kuaotunu had been partitioned between blocks purchased by the Crown from 1878 to 1882 (Kuaotonu 1a and 1b), and blocks still in Maori ownership (Kuaotunu 1c, 1d, and 2a), the boundaries between them still unclear. The Crown’s law officers soon advised that the Maori blocks could not lawfully be included in the goldfield until their owners consented to a mining agreement. There is early evidence that they were not unwilling: one of the successful prospectors, William Peebles, reported to the Northcroft in February 1889 that ‘the natives say they will sign any paper you wish them to for the

46. Document a10, pt 1, pp 293, 325

47. Mackay to Minister for Public Works, 24 January 1872, ma-mlp1885/18 (doc a10, pt 1, p 293)

48. Document j7, p 13

Figure 63: The Kuaotunu gold-mining area

purposes of opening the place … We have been waiting two months to get on the ground but have been afraid to on account of having no clear title’⁴⁹

But, by September 1889, with no mining cession agreed, mining was under way on both Maori and Crown land, and a township was springing up. Maori were making agreements

49. Peebles to Northcroft, 13 February 1889, mdi 92/932, Archives NZ (doc j7, p 13)

directly with miners and storekeepers. According to James Mackay, Northcroft had approached the Maori owners to cede the land for mining purposes, but at that stage they had declined. The terms of their direct leases were apparently agreed at, or following, a public meeting between themselves and the miners. The terms showed good commercial sense, although the rent charged for a mining claim was low:

► Rent for a mining claim would be £1 per acre per annum, payable half-yearly in advance for lease of 21 years (10 shillings per acre for agricultural leases).

► Claims would be worked with ‘a reasonable number of men but if the claim was abandoned or the rent unpaid for more than three months the owners or their agent could re-enter.

► Rent for building on a main road was four shillings per foot frontage, payable quarterly in advance.

James Mackay, acting as a private agent for various miners and Maori, wrote to the Native Minister on 4 April 1889 that he had so far arranged for the lease of 39 mining claims, two agricultural holdings, and 11 town lots. Mackay also acted for Pierce Lanigan in leasing from some (but not all) of the Maori owners, a portion of land in Kuaotunu 1d near the landing site, for a stamping battery, an agreement which included the exhumation and reburial of koiwi. When Warden Northcroft laid out Kuaotunu township, Lanigan agreed to a resurvey of his land to conform with the town allotments; but whereas he had assumed that his sections would be reserved to him, Northcroft included them in the authorised rush for sites. Disputes then set in about the validity of Lanigan’s lease and that of his sub-tenants, as against the residence permits authorised by Northcroft. Kuaotunu 1d was the one block for which a final Native Land Court order had not issued prior to the proclamation of the Kuaotunu goldfield, so that resolution of these difficulties in turn depended upon determining the correct Maori owners of the land and whether their consent had been obtained to any of these arrangements.⁵⁰

In early 1890, Northcroft reported that Kawhena Rangitu had offered to cede his land to the Crown for mining purposes. Cadman, the local member of the House of Representatives, urged Native Minister Mitchelson to accept immediately, as the situation was very confused: ‘There are at least 40 claims on the native lands there, the arrangements for which must be irregular and illegal, and, being based on all sorts of terms, the whole place may at any moment become a scene of discord and lawsuits.’⁵¹ Though these were probably exaggerated fears, Cadman’s comments further indicate the reasons for which central government Ministers favoured acquisition of the freehold. In January 1890, Mitchelson instructed the under-secretary of the Native Department, Lewis, to make inquiries about areas involved and purchase prices. Without waiting for Lewis’s report Mitchelson then consulted with

50. Document a10, pt 1, pp 239–248

51. Cadman to Minister of Mines, 20 March 1890, mining warden, Thames, miscellaneous inwards correspondence (doc a10, pt 1, p 241)

Figure 64: The Kuaotunu block. Inset: The Kuaotunu mining township, surveyed by JI Philips, 1890.

the Surveyor-General and decided to offer up to £2 per acre. Lewis then reported that purchase would be difficult as many minors held interests in the land: their shares could only be sold by their trustees with the sanction of the Supreme Court. Lewis also thought that the division of sellers and non-sellers interests might not result in the Crown acquiring the most valuable portions and doubted that the owners would accept the £2 per acre proposed. After consulting with the Minister of Mines, Mitchelson decided that cession agreements be sought as being the quickest solution, and in April instructed Northcroft to seek owners’ signatures towards a cession agreement.

Northcroft soon found that many owners were willing, but collecting all signatures was protracted because some owners resided in another district or were minors for whom trustees had to be named, and because succession orders had to be sought for those deceased. By March 1891, Northcroft had the signatures of all living owners in 1c and 2a, although he awaited the successors of three deceased owners to be defined by the court. One owner in Kuaotunu 1d, Hohepa Mataitaua, held out. According to Mackay, he would have been willing to sign, but first wished to have the block subdivided as he considers that some of the

grantees are entitled to less interest in it than others’.⁵² An application for partition was in fact lodged in September 1891 but not heard till December, by which time (on 31 October) Hohepa Mataitaua had signed. He had first sought a guarantee that two allotments in the town, on which Kawhena’s house stood, should be given to him; the Native Minister had declined to make such an exceptional arrangement, but Northcroft indicated that, under the powers he exercised through the Mining Act he would agree to Kawhena having the allotment.⁵³

The terms of the cession agreement were essentially those worked out 20 years previously in Thames, as modified by recent legislation. Fees payable were: the miner’s rights fee of £1 per annum; an annual £5 fee for cutting timber for sale; kauri trees at 25 shillings per tree; mining and occupation licences; machine, business, and residence site licences as defined by the Mining Act 1886, its amendments, and regulations (the annual fee for business licences being £5 and for residences £1); and, for the digging of kauri gum or any other activity not already specified, a fee of £1. Reserves for Maori occupation and residence were to be set aside and exempt from the provisions of the Mining Act.⁵⁴ The receiver of gold revenue was to pay the collected revenue to the owners quarterly.

There is no evidence as to whether similar dissatisfaction over the collection and distribution of revenue to that at Thames and Ohinemuri was known at Kuaotunu, but if it was, it did not sway the owners of Kuaotunu from agreeing to the cession. The reasons why they should prefer it to their initial preference for directly dealing with miners are not made explicit in the evidence but they can be reasonably inferred. By agreeing to a mining cession, Maori owners passed over to Northcroft and his colleagues the complicated task of collecting a range of fees, while they themselves concentrated on sorting out their competing interests through the land court. The original Coromandel-Thames model thus still had much to commend it in Maori eyes, with the Crown assuming the burden of managing the field, the township and the miners, while assuring Maori owners a flow of revenue.

As mentioned, there was considerable confusion over the ownership of several Kuaotunu blocks, especially 1d, part of the township east of Kuaotunu Stream. This had intensified in 1889, partly as a result of Lanigan’s attempt to lease, and resulted in a protracted land court hearing followed by partition of the block in December 1891. Both the Crown and a private buyer, Robert Comer, had begun to acquire interests in Kuaotunu 2 before the discovery of gold. Subsequently, in May 1889, Kuaotunu 2 had been partitioned, and then, in September 1891, 2a had been further partitioned. Kuaotunu 3 was the subject of a long-running dispute with ktc over a forestry agreement which the company also interpreted as giving them control of mining. Moreover, some owners in most of the blocks were absent from the district,

52. Mackay to Native Minister, 13 August 1891, ma-mlp1890/144 (doc a10, pt 1, p 247)

53. Document a10, pt 1, pp 248–249

54. Document J7, pp 24–25. It should be noted that between 1887 and 1891 ‘wagesmen’ and ‘tributers’ working under a licensed miner were not required to take out mining licences: see below section 14.2.1.

and it was difficult for miners to get complete titles from their direct dealings. Indeed, in the Native Minister’s opinion, the Maori owners were not in a position to give legal title in Kuaotunu 1.⁵⁵ Probably, this applied to any block for which the Crown had begun to negotiate a purchase. In the confusion, many miners and other residents would have been unsure as to whom they should pay rents or fees; many probably resisted paying Maori owners at all, and preferred to pay the warden for residence permits. Amongst themselves, Maori owners disagreed at to their respective entitlements to any distribution, as Hohepa Mataitaua’s comment above reveals.

Confusion also existed over the status of two reserves created by Warden Northcroft, acting under the authority of the Mining Act. One was an urupa of a little over an acre; the other, of 43 acres, was part of Kuaotunu 2a3, created at the 1891 partition. However, in 1899, at a hearing to ratify the sale of 2a3 to Dufaur of Auckland, the Native Land Court decided that the warden had not had sufficient authority to make the reserves and in 1891 the area had been included in 2a3 without any mention of restriction on the title. The 43 acres transferred with the rest of the block. The court did, however, recognise the Government’s authority to create the urupa reserve, and it was vested in Kawhena Rangitu and others.⁵⁶

By the 1890s, however, mining cessions did not necessarily assist the other goal of Hauraki Maori in the 1850s and 1860s, namely to ensure that the land remained in Maori ownership. Yet the pattern of sales in Kuaotunu suggests that Maori owners were ambivalent about selling or staying with the mining lease system. Certainly, they became increasingly conscious about the money to be made from land, either by sale or lease. Some offers of sale began to be received by Crown officials almost as soon as the lease agreement had been negotiated, but these usually involved very high asking prices, which the Crown declined. The warden reported that when he was instructed to offer the owners at Kuaotunu £2 an acre (about the Crown’s normal maximum for auriferous land at the time) ‘the native owners all declined to sell at that price, some asking £10 an acre, others refusing to sell at all’.⁵⁷ A few years later, however, as mining at Kuaotunu began to decline, agreements for sale began to be reached, commonly at around £2 to £3 an acre. Several negotiations which stalled in the 1890s were completed in the early 1900s. Some examples drawn from Mr Alexander’s evidence are;

► In October 1893, Harata Taiporutu and Hohepa Mataitaua offered to sell Kuaotunu 1d1 (122 acres) for £1000, including accumulated gold revenues. They were one of two parties in dispute over a partition of the block and opted to sell rather than await the trouble and expense of a rehearing that was due in the land court. The Crown purchased the block in 1895–96 for £2 an acre.⁵⁸

55. Native Minister to Mackay, 23 April 1890, ma-mlp1890/144 (doc a10, pt 1, p 243)

56. Document 17, pp 89–92

57. Warden, file note, 12 July 1892, D H McPherson to mining warden, Thames, 24 June 1892, Mines Department head office file 1894/429 (doc a10, pt 1, p 323)

58. Document a10, pt 1, pp 251–253

► In 1895, the Crown purchased for £14, seven acres of 1d4, being the interests of two of the owners, which were partitioned out.

► In 1896 and again in 1901, Kawhena Rangitu offered to sell Kuaotunu 2a2 for over £10 an acre. He expressed some dissatisfaction with the collection of rents and fees due under the mining cession but was nevertheless receiving sufficient to cause him to decline an offer from the Crown of 10 shillings an acre. Eventually, in May 1902, he sold the block for £400, nearly £2 18s an acre.⁵⁹

► In 1901, the elderly Katerina Hauruia initiated the sale of Kuaotunu 1c, wishing to keep 50 acres of her 110-acre share as a homestead. She asked for £5 an acre but settled for £2 7s 6d. Alexander records that in 1902 she sold 2a1 (area not stated) for £145, reserving a life interest in her homestead.⁶⁰

► ktc claimed to have a lease of Kuaotunu 3,4916 acres, dating from 1885, but the validity of the lease was challenged by some of the owners and by the Crown. When gold was discovered on the block, Peneamene Tanui offered to sell his undefined interest to the Crown for £1000. The Crown wished to pay no more than 10 shillings an acre, or about £2400 for the whole block. For the time being, it focused on securing agreement to a mining cession; in 1893 this was agreed and Kuaotunu 3 was included in the goldfield. In November 1894, new offers to sell shares were received and purchase negotiations began at 10 shillings an acre. Some of the owners, led by Peneamene Tanui, tried for a partition so that they could directly lease a portion of the block. But others were jealous of him ‘and would not trust Pene to collect and divide the money’. The Crown did not support the arrangement. By 1895, the Crown had purchased all the interests save those of a deceased owner, Ereatara Tirirau. Those interests were partitioned out in 1896, as Kuaotunu 3b (100 acres) and 3c (213 acres), which were still subject to the mining agreement. The Crown was awarded the balance of 3867 acres as Kuaotunu 3a. An indication of its possible value came from Gilbert Mair, land purchase officer in the district, who urged his superior in Wellington to persist, despite the litigation with ktc and the need to determine the succession to Tinirau’s interests.⁶¹ Mair wrote: ‘I have always said that this block would be worth all the bother and more. It would sell at the present moment for £40,000 once open. The gold revenue would recoup all outlay.’⁶²

Mair’s forecast may have been optimistic; after the speculative rush of the early to mid-1890s, mining on Kuaotunu would certainly have stabilised or declined. By 1914, mining had practically ceased. Nevertheless, Kuaotunu 3 was good coastal land.

► In 1899, the owners of Kuaotunu 3b and 3c offered to sell to the Crown for 10 shillings an acre. The Crown was not interested and 3b (100 acres) was sold to a private

59. Ibid, pp 259–261

60. Ibid, pp 249–250, 261

61. Ibid, pp 272–280

62. Mair to chief land purchase officer, 22 October 1895, ma-mlp1902/40 (doc a10, pt 1, p 280)

purchaser for £45 in 1913. Kuaotunu 3c remained Maori freehold land until 1970 when it was converted to general land under the 1967 Act.⁶³

The various transactions show that the Maori owners were able to exercise some choice as to whether they continued to receive mining revenue or sold their interests (either to the Crown or private buyers). They also show the influence of partitions under the Native Land Acts, and the want of a mechanism for corporate estate management.

12.5 Other East Coromandel Blocks Purchased for Mining

12.5.1 Tairua

The Tairua or Broken Hills goldfield was one of the less important Hauraki fields in terms of production. In January 1872, Mackay reported that the block was auriferous and that a ‘rush’ had recently taken place.⁶⁴ He included the 36,000-acre block in his 1872 recommendations for Crown purchase, oversaw the its passage through the court in November 1872 and purchased the block for the Crown, subject to a timber lease to the Seccombe brothers, for £2900. The issues arising from the Tairua purchase have been discussed in section 14.3.6, and in various chapters in relation to the Ngati Hei and Mangakahia family claims.

12.5.2 Whangamata

As has been discussed in our earlier chapter dealing with old land claims and McCaskill’s purchase, the Whangamata and Hikutaia blocks stretched from the east coast westward to the Waihou, not far south of the Thames goldfield. They were the subject of strong dispute between Ngati Pu and Ngati Karaua in particular, but also to claims by Ngati Tamatera, Ngati Hako, and Ngati Whanaunga. The superintendent of Auckland was particularly anxious that the lands should be acquired. His reasons, although not clearly stated in his correspondence, are fairly obvious: the Hikutaia lands and the coastal flats of Whangamata were scarce arable land, very desirable for settlement. They straddled the strategic route southeast from Thames (through which the telegraph was being constructed), yet were within the first aukati that Te Hira attempted to establish against settlement and the Queen’s authority in the district broadly known as Ohinemuri. Finally, they were believed to be auriferous, to the extent that in January 1873 the superintendent reported that he anticipated a rush.⁶⁵

In June 1872, Mackay succeeded in prompting Ngati Pu to survey the land and submit an application to the land court. After delays due to the intervention of an armed party of Te

63. Document a10, pt 1, pp 281–282

64. Ibid, pt 2, p 89

65. Ibid, pp 99–103,159–161

Figure 65: The lower Tairua mining area

Hira’s men, claims to the blocks were heard by the court in November and December 1872. Whangamata 6 was surveyed separately. Hikutaia 1, 2, and 3 blocks, and Whangamata 1 to 5 were created by the court and awarded to the various claimant groups. By prior arrangement, Hikutaia 2 and 3 were immediately purchased by the Crown, partly to cover survey costs. At the same time, acting in his private capacity, Mackay arranged the lease of timber rights to

Richard and John Seccombe.⁶⁶ In January 1873, Mackay also purchased Whangamata 1, 3, and 5 for the Crown, again subject to a timber lease to the Seccombes.⁶⁷

The Crown’s focus then shifted to Whangamata 2, a coastal block of 5487 acres, close to the auriferous district and assumed to be gold-bearing. The block was restricted against private sale or lease beyond 21 years, and proclaimed as land for which the Crown was negotiating. As early as 1873, Hone Mihaia (John Davis, of Ngati Whanaunga and Pakeha parentage), a principal owner in the block, desired to remove the restriction, but both he and the Crown acted cautiously because of Te Hira’s opposition. Matters lay dormant until 1886 when new offers of sale were received. The Crown became interested when Wilkinson reported in October 1887: ‘I hear that gold has been discovered on Native land adjoining, and that the reef extends into Whangamata No 2. Claims have been pegged out on the former.’⁶⁸ This referred to the Wentworth Valley, which ran through Whangamata 2 and 3. The block was not part of any mining agreement, and as more reports of gold finds came in in May 1888 and again in September 1888, the Native Minister instructed his officers to seek either the purchase of the land or a mining cession. The September instructions included the sentence, ‘You will have to be very careful in your negotiations and inquiries not to raise the cupidity of the Natives or give them an exaggerated idea of the value of their land’.⁶⁹

The Native Department accountant noted that the Crown had paid seven shillings sixpence an acre for Hikutaia, ‘which is quite as good land … but as the right to mine on Whangamata No 2 has not been acquired, I think we might offer 8/- per acre for shares in it’.⁷⁰ This was approved and the purchase of interests began, beginning with that of Takerei Te Putu, successor to Riria Karepe. Hone Mihaia, then living at Otorohanga, offered to facilitate the purchase of other interests in return for a bonus price for his own share and travelling expenses. By January 1891, all signatures had been obtained, and Hone Mihaia was paid an £80 bonus.

In December 1889, Wilkinson suggested that the payment of goldfields revenue to Maori owners in respect of Whangamata 2 should cease.⁷¹ In the absence of a mining agreement, it is not clear if they had ever been paid, although it is possible that the boundaries of land blocks, as defined by the court, were in some way confused with those of declared mining blocks, such as Ohinemuri or Thames, and owners in Whangamata 2 may have had interests in other blocks for which gold revenues were payable.

66. Document a10, pt 2, p 162

67. Ibid, pp 102–103

68. Ibid, p 106

69. Under-secretary, Native Department, to Butler, 21 September 1888, ma-mlp1891/8 (doc a10, pt 2, pp 107–108)

70. Accountant, Native Department, to under-secretary, 27 September 1889, ma-mlp1891/8 (doc a10, pt 2, p 109)

71. Document j1, p 21

In April 1890, Wilkinson reported an offer of sale from Rihitoto Mataia of her interests in Whangamata 6. This block of 7402 acres was within the boundaries of the Thames goldfield and formed part of the northern boundary of the Ohinemuri goldfield, adjacent to Crown land within that field. For these reasons, the Native Minister authorised purchase at five shillings an acre. By July 1895, the Crown had acquired the vast majority of the shares in the block and applied to the court for a partition. Then there arose a difficulty: Gilbert Mair claimed an acreage for the Crown based on the proposition that all of the shares in the land were equal. Rihototo, however, who was retaining two shares for herself, claimed that the shares were not equal: that her father, Mataia, from whom she had inherited them, was of greater rank than most other owners, and that therefore the shares she retained amounted to a greater acreage than Mair was willing to allow. The land court found in her favour, awarding her a 75-acre ‘excess’. Wilkinson was furious, saying that Rihototo’s action was simply a ‘try-on’ and that ‘old Mataia’ had no greater status than other original owners in the block such as Tukukino, Ruihana Kawhero, and others. The Crown therefore appealed the original land court decision in order to diminish Rihitoto’s award, but lost. Mair reported that Rihototo was found to be fully entitled to her 75-acre ‘excess’, and would probably have received more had she argued for it. The Crown was awarded 6799 acres of Whangamata 6. The episode throws into relief a question of huge importance, namely, how Crown officials and land courts approached the unequal rank and authority of hapu members when it came to translating customary interests into a court title. This is considered in the relevant chapters on the Native Land Acts.

But Mair was rebuked by the chief land purchase officer over another matter. In purchasing the shares of Te Aowhakatere Ngaone, he had acceded to her request for a five-acre urupa reserve where her father and other kin were buried. She had returned £1 5s 6d of her purchase payment of £11 5s 6d for the purpose. Mair was told: ‘The survey of the 5 acres reserve will have to stand over for the present, unless the Native interested is prepared to pay the surveyor. If you had consulted me beforehand I would have instructed you to not to purchase anything less than the full interest.’⁷²

Crown policy in the 1890s had clearly moved a long way from that of earlier decades when purchase deeds routinely reserved urupa and wahi tapu. Crown policy on these matters is discussed in chapter 21. We have no further information on this particular urupa.

Noted here also is the purchase of the 100-acre reserve awarded to Hori Ngakapa Whanaunga in 1867. Why Hori wanted to sell the land is unclear. He was not living on it but it was coastal and was used periodically by Hauraki Maori as a fishing station. Mair reported that ‘it is one of the best sites on the Whangamata Harbour … the old man is in danger of being sent to jail for non-payment of a judgement summons, and is anxious to

72. Chief land purchase officer to land purchase officer, Thames, 19 October 1896, ma-mlp1898/21 (doc a10, pt 2, p 114)

know whether Government will entertain his offer’.⁷³ The reserve was purchased for five shillings an acre.

The main point to emerge from these Whangamata examples is that they exemplify the Crown’s policy of seeking the freehold of land known or likely to be gold-bearing, and adjacent to existing goldfield land. A negative example of the same principle is provided by Whangamata 4, where in 1893 some owners offered to sell for six to seven shillings an acre. Wilkinson had previously reported that ‘All the Whangamata blocks are more or less of a gold bearing nature and are within the Thames Goldfield’.⁷⁴ The officials’ decision depended on price and in 1893 the Surveyor-General did not think much of Whangamata 4: ‘the only reason why the Government should acquire it is to get rid of the Native title and so allow mining and gum-digging’.⁷⁵ Just why the native title had to be got rid of’ for such purposes is not clear, because in 1897 Mair reported that ‘The owners will neither cede [gold mining rights] or sell at present. They are trying to arrange with some company to work the land’.⁷⁶ Maori aspirations to work goldfields themselves, and to seek joint ventures with investors, had not entirely died. But there was no significant find on Whangamata 4 and the importance of the block in the context of gold disappears. The bulk of the block was, however, purchased by the Crown under the legislation and procedures of 1911 to 1916.⁷⁷

12.5.3 Wharekawa

This discussion relates to Wharekawa East 2, the Wharekawa subdivision of 6921 acres near the harbour, on which gold was found in the mid-1880s. The alienation features in the claims of Te Tawera/Ngati Pukenga (Wai 285), Ngati Kotinga and Nga Whanau o Omahu (Wai 174), the Gregory-Mare whanau (Wai 177), the Mangakahia Whanau (Wai 475) and the Ngati Hikairo claimants (Wai 464, Wai 661). The alienation history of the block illustrates the intervention of the Crown to circumvent private control of the block by James Mackay and his associates.

The block was awarded solely to Hohepa Paraone Tarawherawhera in 1872, subject to restrictions on alienation, and devised by will to his nephew Hohepa Hikairo. In October 1885, Hikairo executed a lease for 21 years to James Mackay, for £100 per annum, giving Mackay the right to dispose of all timber other than kauri, the right to cut and sell kauri with one-seventh of gross profits payable to the lessor, and the right to mine for all metals and minerals subject to the payment of a royalty of £2.10.0 per cent on the net profits.⁷⁸

73. Mair to chief land purchase officer, 26 April 1895, ma-mlp1895/382 (doc a10, pt 2, p 115)

74. Wilkinson to under-secretary, Native Department, 15 January 1891, ma-mlp1893/147 (doc a10, pt 2, p 116)

75. Surveyor-General to chief land purchase officer, 11 October 1893, ma-mlp1893/147 (doc a10, pt 2, p 116)

76. Mair to chief land purchase officer, 9 April 1897, ma-mlp1893/147 (doc a10, pt 2, p 117)

77. Document a10, pt 2, pp 117–128

78. Document a10, pt 2, p 132

(This last provision was practically meaningless because of the difficulty of determining net profits and the ease of hiding any profits at all.) Although Mackay held a signed copy of the lease it seems not to have been registered.

Hikairo also asked Mackay to advance him £300 of the rent in order to clear an existing debt, which Mackay agreed to do as soon as he could find a company willing to work the minerals and timber. Because of the depression in Auckland, however, he had little success, and by February 1886 Hikairo considered the agreement had lapsed and offered to sell the block to the Crown for five shillings an acre. The Surveyor-General’s comment was that five shillings seemed rather high, ‘but the finding of gold would immediately raise the price above that’.⁷⁹ But Mackay’s as-yet-unregistered lease proved to be a bar to immediate removal of the restriction and completion of the sale, and when gold was found in the locality, if not on the block itself, Hikairo immediately pressed for 10 shillings an acre.

Kenrick, the warden and resident magistrate in Thames, moved to block Mackay and win Hikairo over to a deal with the Crown. He urged the entry of a caveat with the trust commissioner against passing any lease with the right to mine, and requested an imprest to enable him to pay a deposit to Hikairo. ‘It is of considerable importance that this block should not fall into private hands on account of gold discoveries’, he wrote.⁸⁰ Kenrick also tried to negotiate with Mackay, who was willing to concede the right to mine to the Crown provided he was permitted to secure what land he required as a mining claim for himself. Kenrick then played a card which Crown officials presumably believed all along to be in their hand: ‘I informed Mr Mackay that whether the Crown bought the land or not the preemptive [right] to the minerals would not be given up’.⁸¹

On 22 March 1886, Hikairo signed a deed of sale to the Crown at five shillings an acre, on a £3 deposit, the balance to be paid when the agreement with Mackay was cancelled, the restrictions removed and the transfer signed. There were to be no encumbrances on the title, but two burial grounds totalling 20 acres were to be reserved. Hikairo ceded to the Crown the right to mine, sell timber, and grant water rights, and business and residence leases ‘upon the like terms and conditions as they are now being exercised in respect of the Te Aroha goldfields lands’. Mackay’s agreement with Hikairo remained an obstacle, however, because although the lease itself had not been completed, there was no time limit stated on the associated memorandum whereby Mackay undertook to advance Hikairo £300 to clear his debts. He offered to match the Crown’s purchase offer and denounced Kenrick’s ‘gratuitous threat’. The officials considered that Mackay’s lease had been speculative from the outset, and that he was now manoeuvring to secure the best compensation he could for withdrawing. But Mackay was in a good bargaining position, which he subsequently

79. File note, 16 February 1886, ma-mlp1887/201 (doc a10, pt 2, p 133)

80. Kenrick to under-secretary, Native Department, 23 March 1886, ma-mlp1887/201 (doc a10, pt 2, p 133)

81. Kenrick to under-secretary, Native Department, 22 April 1886, ma-mlp1887/201 (doc a10, pt 2, pp 135–136)

strengthened by offering Hikairo 10 shillings an acre, an offer which the rangatira promptly asked Kenrick to match. The Government decided to try to negotiate with Mackay to withdraw his claim.

When asked, Mackay estimated that, compared with the £1725 purchase price agreed with the Crown, Hikairo would have received from him £2100 in rent alone over the term of lease, plus £119 for kauri timber and mineral royalties which might have been substantial or nothing at all. He himself would have received the equity in 700 to 800 acres of agricultural land, four million feet of kauri timber valued at £714 (after payment to the Maori lessor) and 300 to 400 acres of white manuka, for which there was a market in Auckland at £1 a ton, less cutting and cartage costs. He claimed an equity of £1500 for the lease, but said he would surrender it for £1000 or let the matter go to arbitration. He claimed that, before the Crown’s intervention, the New Zealand Timber Company had arranged to find the funds. The under-secretary considered Mackay’s claim ‘preposterously excessive’, but because the Crown had difficulty completing its title while Mackay refused to withdraw his agreement, negotiations continued.

In the event, Hikairo completed his sale to the Crown in September 1886 and Mackay offered to withdraw his claim on payment of £300. The under-secretary wrote to the Native Minister, ‘The purchase having been made from the native on very good terms, I think the Government could afford to offer £250 in settlement of this alleged claim’. The Minister agreed and Mackay accepted the offer.⁸² The implication of the under-secretary’s statement is that Hikairo did not receive full market value for the land.

We have set out these details to indicate some of the possibilities that might have been available to Maori had the Crown not intervened so strongly. Although it did not have a prior declaration of pre-emptive right over the block, the Crown was in a position to make difficulties for Mackay, and to put pressure on Hikairo to deal with them. Over the longer term, Hikairo would almost certainly have done better to stay with Mackay and hope that he would find the financial backers to pay the rent and other agreed dues. In the absence of a really payable gold strike, however, that was by no means assured. Mackay had no capital of his own and the whole arrangement could well have fallen through if the Crown had advanced Hikairo’s legal expenses to take him to court (as one official had suggested). As for Hikairo, like a great many Maori owners, he was feeling the pressure of debt. The Crown’s cash offer proved attractive.

Little gold was ever found on Wharekawa 2, but the Crown’s determination to ensure that it had control over auriferous land, and keep it out of private ownership is evident.

82. Document a10, pt 2, pp 139–142

12.5.4 Whitianga (Mercury Bay)

Some gold was discovered at Kapowai in the headwaters of the Rangihau Stream, a tributary of the Waiwawa River, but no mining occurred until 1898. A small amount of gold was extracted in the early 1900s. Further north, the Mahakirau block of 8385 acres, running down towards Mercury Bay, had been purchased by Donald McLean for the Crown in August 1862 at 4s per acre, mainly from Ngati Whanaunga.⁸³ In 1872, Mackay reported that ‘gold in small quantities has been found’ in Mahakirau block, but it was cut off from the harbour by Te Weiti and Kaimarama blocks. He therefore recommended purchase of Te Weiti, which also offered river access and homestead sites; 5000 acres of Te Weiti was purchased by the Crown in 1873.⁸⁴ Very little gold was extracted from the mines of Mahakirau.

Writing more generally of the Mercury Bay lands, Mackay reported in January 1872 that gold had been found in two places but that the workings were by now abandoned. Most of the area was subject to timber leases.⁸⁵ The Crown did, however, acquire the Kapowai block of 8663 acres in 1875, for £700, a mere one shilling sevenpence an acre.⁸⁶ It appears that new finds of gold were made on Kapowai late in the nineteenth century. This led the Crown to entertain offers of sale from some of the Maori owners of Te Kauanga Whenuakite block adjacent. The chief surveyor, Auckland, urged caution, however, because ‘the success of the Kapowai goldfields close by is not yet assured’.⁸⁷ True to its policy of buying auriferous land in order to control mining, in 1902 the Crown purchased Te Kauanga Whenuakite 3, of 3160 acres, for five shillings an acre. This had become the established minimum price for land within the Thames goldfields, where mining was not actually taking place. In the event, there was no large-scale goldmining on the Mercury Bay blocks.⁸⁸

12.6 Tribunal Comment

The purchase of the large areas of east Coromandel land illustrate the Crown’s determination to acquire any land thought to be auriferous in order to keep out private ‘speculation’ and to control mining. By the 1890s, purchases were also made merely to ‘get rid’ of native title, and to ease the difficulties of administration including the gathering and distribution of goldfield revenues. In the case of Wharekawa East 2, apart from taking the land out of private ownership, the Crown’s payments offered a lesser return than that offered under

83. Ibid, p 22

84. Ibid, pp 11, 22, 64–65

85. Ibid, p 11

86. Ibid, pp 12–13

87. Chief surveyor, Auckland, to chief land purchase officer, 28 October 1901, ma-mlp1902/67 (doc a10, pt 2, p 18)

88. Document a10, pt 2, pp 15–20

the leasehold negotiations undertaken by Mackay (assuming that these might have been carried through). In some blocks, including Whangamata 4, Maori owners tried to work the land themselves. But discovery of payable gold was a chancy business, and in the end gold proved to be of little importance in any of these areas. Maori lost land to the Crown purchases but may have sold it to private purchasers if the Crown had not pre-empted them. Beside the loss of the land and some revenue, the main area of actual prejudice to Maori is more likely to have arisen in relation to the kauri timber.

CHAPTER 13
COLD: GENERAL ISSUES

13.1 Introduction

In chapter 6, we introduced gold prospecting and mining in Hauraki and Maori involvement in the process, and in chapters 7 to 12 focused on events in particular goldfields. Here, we turn to general subjects, including: the ownership of gold; rights of access to mine gold; the Crown’s administration of goldfield revenues; statutory and regulatory changes affecting the terms and conditions of the various goldfield agreements, and in particular, the revenues payable to Maori under them; the connection between gold and land loss; and the MacCormick inquiry. The environmental damage caused by gold mining is discussed in chapter 24.

At the end of the nineteenth century, few former goldfield lands remained in Maori ownership; most of the gold-mining industry gradually shut down in Hauraki in the early twentieth century, with the notable exception of the Waihi mines. But most of the goldfield agreements remained in force until the passage of the Mining Act 1971. The Crown continued to manage some uses of the lands concerned, the most contentious aspect of which was the power to issue residential site licences. The Crown’s failure to return the remaining gold lands to Maori control at the earliest practicable opportunity, and its failure to implement the recommendations of the MacCormick inquiry in 1940, are the major issues arising in the twentieth century.

13.2 The Ownership of Gold and the Indirect Assertion of the Royal Prerogative

13.2.1 The issue in brief

The core of the Hauraki claim in relation to gold is that the Crown’s gold-mining policy and law should not have assumed that ownership of gold lay with the Crown by virtue of its assertion of sovereign authority in New Zealand. The claimants contend that it was wrongly assumed that the introduction of English common law carried with it the Crown’s prerogative right to gold and silver. Counsel for the Wai 100 claimants has noted that the English Laws Reception Act 1858 provided that English law was received only so far as was

applicable to the circumstances of the colony: ‘An obvious circumstance where English law presumptions ought not to apply, was in circumstances where Maori had a clear proprietary interest over a particular resource.’¹ They claim that the Crown’s policy and law should have been grounded in continuing Maori ownership of their lands and all the mineral resources in the land, gold and silver included.

Counsel for the Crown has acknowledged that ‘the theory of Crown ownership [of gold] was largely maintained by Government officials throughout the 19th century’ and that ‘retention of the prerogative was a feature of legislation’.² However, the Crown refrained from asserting its prerogative right to ownership of gold when the first discoveries were made in Coromandel in 1852 and opted instead to negotiate with Maori for the right to manage the goldfield in exchange for a share of its revenues. The Crown continued this policy in later years, in respect of the other goldfields of Hauraki. As a result, the question of ownership of the gold slipped into the background, and, Crown counsel contends, was largely irrelevant.

The claimants have not disputed that the royal prerogative remained in the background. However, they consider that the position taken by the Crown in 1852 was pragmatic, borne out of recognition of Maori numerical superiority and strength, not a genuine acceptance that the royal prerogative was restricted by Maori rights. They suggest that the latent prerogative began to be progressively asserted, especially in the later nineteenth century, and that this affected their rights and interests. Crown evidence acknowledges that the prerogative was asserted more strongly in the 1890s but questions whether Maori rights and interests were seriously affected.

Claimant counsel also contend that the Crown did not honour the assurances given by officials that there would be mutual benefit to Maori and Pakeha if Maori opened their land to mining, under the Crown’s control. They submit that, on the contrary, they were disadvantaged and prejudicially affected by the Crown’s policies and laws which (among other things) denied them the opportunity to negotiate freely with miners and mining companies over the rights to gold in their land, or to claim payments related to the value of gold extracted from their land. Instead, the Crown, through its mining legislation and land purchase policies, maintained a monopoly over the negotiation of mining agreements with Maori. From this position the Crown weakened the capacity of tribal groups to withhold consent to access, and diminished the level of payments made to Maori. In the words of witnesses for the Marutuahu claimants, ‘The change in the balance of power meant that by the 1870s the Crown no longer needed to engage in the sort of pragmatic partnership implemented in 1852 to achieve its objectives.’³

We shall now explore aspects of these developments in more detail.

1. Document y1, p 27

2. Document p6, p 8

3. Document v1, pp 194–195

13.2.2 The royal prerogative held in reserve

Following the discovery of gold at Coromandel in 1852, most Crown officials took it as a given that, by virtue of its sovereignty, the British Crown’s prerogative right to gold and silver applied in New Zealand. The problem, as officials saw it, was how to make the new goldfield publicly available for mining purposes, recover some of the costs involved, and yet not antagonise the Maori landowners. It was considered imperative not to abandon the royal prerogative, for in so doing the Crown would lose a means of achieving its goals; yet, any practical assertion of it was sure to be seen by Maori as an infringement of the Treaty of Waitangi and strongly resisted. The Crown escaped this dilemma by negotiating at Patapata for the right to manage the goldfield, thereby achieving its immediate goals, without pressing the issue of whom gold belonged to, or, for that matter, disclosing the existence of the royal prerogative (see ch7).

Over most of the later nineteenth century the Crown continued to seek control over the goldfields, enabling them to be mined by the public, without confronting Maori over ownership rights. Although it did try to bargain Maori down, the Crown was prepared to purchase such lands, foregoing its prerogative right to the gold. When it could not purchase the land in advance of mining, the Crown negotiated the goldfield agreements discussed in preceding chapters. These cession agreements were the principal means by which Maori land in Hauraki was brought under the jurisdiction of mining legislation, and so made available to be worked by miner’s rights, leases, or licences issued under that legislation. These goldfield agreements were reached without the negotiators invoking the royal prerogative. Usually, they secured to Maori the valuable right to receive most, if not all, of the goldfield revenues accruing from their land (not including export duty).

Yet, the Crown kept its prerogative rights more or less intact, and later in the nineteenth century, it asserted them more fully. Gold-mining statutes from 1858 to 1877 contained provisions expressly reserving the prerogative rights of the Crown, and although these provisions were dropped after 1877, no express statutory limitation was put on the royal prerogative. This meant, according to Parcell (the leading academic theorist on the subject) that the Governor in Council retained the authority to control mining on private as well as Crown land.⁴

Government Ministers were thus able to deny that the goldfield agreements made by the Crown with Maori infringed the royal prerogative in any major way. However, the agreements were sometimes construed as concerning rights in gold itself, and as a surrender in favour of Maori of part of the Crown’s entitlements. In a parliamentary debate in 1896 – triggered by the question whether Maori held property rights in gold that they could transfer to private purchasers – a number of members argued that the goldfield agreements

4. JC Parcell, A Thesis on the Prerogative Right of the Crown to Royal Metals (Wellington: Government Printer, 1960), pp 73ff

constituted the recognition of Maori interests in gold. Yet, the agreements were also construed as concerning, not the ownership of gold, but rights of access or easements, and the right to occupy the surface and disturb the soil in order to get out the gold. This was the interpretation espoused by the Crown in 1881-82, and in the debate of 1896.

13.2.3 Statutory limitations to the Crown’s prerogative right of access

As we discussed in chapter 6, there is a doubt in law as to whether the royal prerogative includes the right of entry onto private land where no mine has yet been opened. In his 1940 report, Chief Judge MacCormick considered that even in England the Crown must negotiate for access, but there is little doubt that the Crown has a prerogative right of entry when a mine has been opened. Many nineteenth century officials appear to have believed that the Crown had the right under all circumstances.⁵

The extent of the Crown’s common law right of access which accompanies the Crown’s prerogative ownership of gold was, in practice, not especially important in New Zealand, because it was, by implication, limited by statutes regulating access: under the goldfields legislation, Maori right-owners’ consent was normally required before their land could be proclaimed as a goldfield. This limitation was, however, partly undone in the late nineteenth century, when the Crown gave itself expanded statutory powers to proclaim Maori reserves as goldfields, and to incorporate reserves set aside in previous goldfield agreements into proclaimed goldfields as if they had been ceded, but without further consent.

(1) The requirement for Maori consent recognised in legislation

The powers of goldfield wardens to issue licences to mine could be done only on proclaimed goldfields, and nineteenth century gold-mining legislation provided for the proclamation of Maori land as a goldfield only where Maori consent was obtained, as at Patapata in 1852. The first relevant Act, the Gold Fields Act 1858, set distinct limits to the land over which the warden could authorise mining: while the Governor could proclaim any part of the colony to be a goldfield, the definition of ‘goldfield’ was restricted to waste lands of the Crown. In other words, the legislation protected private land generally from the arbitrary assertion of the Crown’s prerogative right of access. Sections 28 and 29 of the 1858 Act prohibited any person from mining on land belonging to a private individual without the consent of the owner or his agent. If the ‘owner’ as defined had included collective owners, the 1858 Act might have been interpreted as including land in the customary ownership of a tribe. Similar provisions were carried through into later legislation, with the addition in the Gold Fields Act 1862 of the authorisation of the owners of private land to sue for damages against the person mining. But until customary ownership had been determined under the Native

5. ‘Petitions Presented to the House of Representatives’, AJHR, 1869, g-6a

Lands Acts of 1862 and later, Maori could not readily avail themselves of these protections. Maori customary rights as such were not normally liable to legal consideration.

However, as described in section 6.10.1, the Gold Fields Act Amendment Act 1863 redefined the ‘waste lands of the Crown’ to include any lands where the Governor had acquired the right to authorise mining. Thus, Maori land could be included in proclaimed goldfields, brought under the wardens’ jurisdiction, and be made the subject of mining licences. This provision implied a further Crown-imposed restriction on its prerogative right of access: without an agreement with the Maori owners the Crown’s control over mining could not extend to Maori land. By the use of Parliament’s legislative authority, the practical needs of the situation were met, without either the Maori right to refuse access or the Crown’s prerogative right to issue licences being made explicit.

The 1863 definition of Crown waste land was continued in later legislation. The Crown made no statutory provision for issuing miner’s rights except within a proclaimed goldfield and then in respect only of Crown demesne land or land that was deemed Crown land for the purposes of the mining legislation.

The statutory provisions regarding prospecting were somewhat different from those regarding actual mining. Prospecting licences could be issued in respect of land outside proclaimed goldfields but the consent of Maori right-owners was required in all legislation until at least 1898.⁶ But this would change in the twentieth century (see sec 13.7).

(2) The effect of tenure conversion and consequent legislation

During the 1860s, some doubts arose as to the standing in law of the agreements Maori had made for mining on their land. Validating legislation and other statutory provisions were then introduced to make the agreements binding. These included:

(a) The Auckland Goldfields Proclamations Validation Act: The Auckland Goldfields Proclamations Validation Act 1869 was necessary because of doubt about access to Maori land within goldfields when customary tenure was converted under the Native Land Acts. Section 3 of the Gold Fields Act 1866, under which the ‘Auckland gold fields’ had been proclaimed, stated that ‘private lands shall be exempt from the operation of this Act except where especial provision to the contrary is made herein’ (emphasis added). Crown-granted land would fall under the definition of land belonging to a private individual, and section 97 of the Act prohibited mining on land belonging to a private individual without the consent of the owner. Possibly, the especial provision’ of section 3 applied to the widened definition of ‘waste lands of the Crown’ already discussed (ie, that Crown ‘waste lands’ could include Maori land in proclaimed goldfields). However, it was not clear that this could be relied

6. Crown authority to prospect was not required in respect of land alienated by the Crown after 1873 or by Maori after 1888, or (under the 1896 amendment Act), whenever it was alienated. But, in those circumstances, it was no longer Maori land.

upon in respect of land brought under the Native Land Acts; the validity of the gold agreements became questionable because the status of the land covered in them had changed, as had the status of the owners: from right-owners according to tribal custom to private owners under Crown grant.⁷

To settle the doubts, the preamble to the Auckland Goldfields Proclamations Validation Act 1869 stated:

And whereas doubts have been raised whether such agreements so entered into as aforesaid by or on behalf of the Governor have been or will be extinguished or affected by the Native Title being extinguished over such land or by the obtaining of Certificates of Title or Crown Grants of such land. And whereas it is expedient to remove such doubts … Be it therefore enacted...

Section 2 of the Act declared the agreements to be ‘binding on all persons whatsoever according to the true intent and meaning thereof’ (thus including the governor, deemed to have obtained the power to authorise mining in the lands covered by the agreements. Furthermore, the lands described in the agreements would be deemed to be Crown land and not private land for the purposes of the Gold Mining Act.

The agreements validated by the 1869 Act were those negotiated by James Mackay in the late 1860s, namely the deeds of agreement dated 27 July 1867, 9 November 1867, 9 March 1868, and 13 May 1868. Curiously, these agreements did not cover all of the Maori land included by proclamation within the ‘Auckland Goldfields’ as at the date of enactment of the Validation Act; some, but not all of the signatories to the 1864 Coromandel agreement had also signed the 9 November 1867 agreement; section 2 of the Act could not bind those who had not signed the later agreement.⁸

(b) Other 'validating' provisions: Other ‘validating’ provisions are as follows:

► The February 1875 agreement between the Crown and Ngati Tamatera had included the right for the superintendent of Auckland to grant agricultural leases on the land covered by the agreement. The Ohinemuri Gold Fields Agricultural Leases Validation Act 1876 extended part v of the Gold Fields Act 1866 (relating to agricultural leases in goldfields) to allow such leases to be made.⁹

► Similarly to the 1869 Validation Act, section 17 of the Mining Act Amendment Act 1892 confirmed that the issue of a Crown grant did not abate or extinguish the rights of the

7. The issue in law was essentially that later ruled upon in the Wi Parata judgment of 1877; that is, whether a prior agreement could condition a Crown grant: Wi Parata v Bishop of Wellington [1877] NZLR 79 (doc b3, p 4).

8. The consequences of this omission emerged in the Supreme Court in Aitken v Swindley in 1897, which concerned land at Kapanga. The land was private European land and there were no consequences for Maori, but the case revealed the amibiguities surrounding Maori land subject to mining agreements, which the 1869 legislation sought to remove: Aitken v Swindley [1897] 15 NZLR 517.

9. Document p6, pp 80–81

Crown agreed in the 1875 agreement over the Ohinemuri goldfield block (which meant that the Ngati Koi block near Waihi remained under the jurisdiction of the Ohinemuri goldfield warden).

► Some land had escaped the net of the validating legislation of 1869, so section 32 of the Mining Act Amendment Act 1895 stated that all mining rights acquired by the Crown as at 1 January 1890, or which might hereafter be acquired:

shall inure to Her Majesty and remain unaffected, notwithstanding the extinguishments of the Native title, or the issue of a Crown grant or other instruments for title for such lands, or any portion thereof, at any time subsequent to the acquisition of such rights.

This legislation protected the mining agreements, regardless of changes of tenure. It also protected Maori entitlement to the agreed mining revenue, while they retained ownership of the land. However, like much land and mining legislation, the legislation carried with it other unstated consequences for Maori: the capacity of Maori owners to withdraw their land vested in the mining cessions and revest it in others was removed, even though they had received a Crown grant under the Native Land Acts.

(3) Aitken v Swindley, 1897

In the legal case Aitken v Swindley, referred to in note 8 above, the trial judge, Justice Conolly, used the occasion to review all the goldfields legislation from the Gold Fields Act 1858 up to 1896, including that passed in 1873 and 1888 whereby land sold by the Crown or Maori respectively could be resumed for mining purposes (without compensation for auriferous or argentiferous content because the Crown already claimed the gold and silver by prerogative). Conolly’s account summarised the limitations as to access within which the Crown worked. But these statutes did not touch upon Maori land not yet alienated.¹⁰

In sum, Justice Conolly concluded, that, as a result of the legislation in effect until 1896, the Crown, if it had a prerogative right of entry onto private land, had limited it and not reacquired it as at that year. The legal academic, Parcell suggests that Conolly might have erred: he suggests that it was only the power of the goldfields warden to issue licences that was limited, not the prerogative powers of the Crown. But the effect of the legislation was the same as a limitation of the prerogative. In a goldfields district, no one could mine without a licence; a licence could be obtained only from the warden, and the warden had no power to issue a licence for private lands within the district without having obtained the consent of the owners. Parcell suggests that, paradoxically, the prerogative was limited by statute in proclaimed goldfields districts but not limited outside of those districts.¹¹ Parcell

10. See doc p6, pp 76–77, 88–89

11. Parcell, pp 76–77

may be correct, but for most practical purposes the legislation up to 1896 can be regarded as limiting the Crown’s prerogative powers, not only the warden’s authority.

(4) Some increase in the Crown’s statutory powers

In the 1880s and 1890s, the warden’s statutory power to issue mining licences on Maori land was strengthened by extending the provisions by which Maori land could be included in a goldfield, with weaker requirements for Maori consent, and in some cases no additional consent at all:

► The Reserves and Endowments in Mining Districts Act 1882, empowered the governor by regulation to permit mining on any public reserves within a mining district. The Act did not generally apply to native reserves but section 3 gave the governor a discretionary power to bring them under the Act, without express Maori consent.¹²

► The provision was re-enacted by section 205 of the Mining Act 1891, which empowered the governor to proclaim any native reserve under the operation of the Act in the same manner as if it were a public reserve, and to fix the fees payable. Again there was no requirement for express Maori consent. However, sections 94 and 95 still imposed a penalty on prospecting on Maori land without the owners’ consent. It is not clear how the apparent contradiction was resolved in practice.

► The Mining Act Amendment Act 1892 authorised the Native Land Court, on application by the governor ‘with the consent of a majority of native owners’ to declare any Maori customary land to be ceded for mining purposes, on agreed conditions.

► Section 56 of the Mining Act Amendment Act 1896 provided that Maori lands (other than customary land) reserved within mining cessions for residences, cultivations and burial grounds could be declared available for mining purposes, without further consultation with or consent of Maori being required, ‘provided the use for which they were so reserved is not thereby prejudicially affected’.

There is no question that these various amendments did increase the Crown’s power to authorise mining on pockets of Maori land within the goldfields. However, apart from the 1892 provision, they referred to portions of land within areas already ceded for mining, and the original purpose for which they were reserved from mining often no longer obtained. Where that was the case, it was difficult to maintain ‘islands’ of land free of mining within wider mined areas.

To some extent, the amendments were intended to bring the administration of lands already ceded for mining into line with changing circumstances. Administrative convenience would be a poor reason for infringing upon the core principles of the mining agreements system, but the Crown has some ground for arguing that the basic principle of Maori consent being required before opening land to mining had not been seriously infringed,

12. See doc p6, p 83

particularly as there is almost no information on how the various measures were applied, if at all.

With respect to the 1892 amendment, it has been suggested by claimant witnesses and counsel that this weakened the Patapata principle by which the consent of all owners was required to open land to mining. In a strictly legal and technical sense this is so. But the implication of earlier statutes that all right-owners in a given area had to consent is some- what illusory. In practice, as described in chapters 7 to 12, the opening of Maori lands in the 1860s involved a series of decisions over limited areas, reflecting the fact that not all Maori were of one mind at one time; in the 1870s and 1880s Crown officials, having secured the consent of a majority, tended to push through cession agreements or proclamations of a field, making reserves for dissentients or excepting certain lands from the boundaries of the agreed area where necessary. The principle of majority control was, in practice, in place all along. The mood of Parliament in 1892 had been to weaken the consent requirement further; after the committee stage it was amended to read ‘unless a majority of owners object’. But the Maori members in the House resisted this strongly and the original ‘majority consent’ clause was reinstated.¹³

13.2.4 The ownership of gold

As we have indicated in section 7.6.3, the question of the ownership of gold (as distinct from ownership of the land) was not raised in the Patapata hui, but left indeterminate. Some settler politicians and officials, perhaps overlooking the express reserving of the royal prerogative in the Gold Fields Act 1858 and its successors, believed (like JC Richmond) that it did not apply in New Zealand or else had been given up (see Richmonds statement on the point in section 9.6).

However, at seminal points during the later nineteenth century the Crown reasserted the view that the royal prerogative rights to gold did apply in New Zealand and that its agreements with Maori had concerned easements only. Dr Anderson has characterised this trend as a ‘unilateral reinterpretation’ of the mining agreements. In the following sections, we examine the two most relevant events in relation to this issue:

► between 1876 and 1881, in the context of new financial arrangements consequent on the abolition of provincial government, Robert Graham and other private purchasers of Maori land within the Thames goldfield claimed the mining revenues previously paid to Maori;

► in 1896, private European owners brought serious pressure to bear in Parliament to limit the Crown’s prerogative in their own interests.

13. Document p6, pp 91–97

(1) The transferability of rights: the Graham issue

Normally, in common law, the royal prerogative means that gold and silver do not pass with the land when it transfers, but remain with the Crown, which can continue to access them. As discussed, the gold-mining legislation of 1858 and later had explicitly reserved the prerogative, but the 1860s agreements with Maori and accompanying legislation had limited its application, by making access conditional on Maori consent. This left unresolved the question of the consequences to mining revenues when the freehold of Maori land subject to cession agreements was transferred to private hands.

The question was, whether the right to the revenues attached to the land and was transferred to the purchaser of the land, or whether it remained with Maori who were party to the agreements in the first place.

The need to find an answer to this question first arose when Robert Graham, the lessee of the cultivation reserves on which Grahamstown had been laid out, acquired the fee-simple of portions of the Thames goldfield lands.¹⁴ EW Puckey, receiver of revenues and native agent at Thames during the 1870s, was asked by the former Maori owners of the land to continue payment to them of miner’s right fees, claiming that they had sold only the surface to Graham but had sold the land subject to a reservation of the right to receive gold- field revenues. Puckey continued to pay them. In late 1875 or early 1876, Graham (recently returned from England) denied that there was any such reservation in the sale and laid claim to accumulated revenues totalling £740. The warden, Daniel Pollen, referred the matter to Wellington:

Will the Government be justified in paying the Miners Right fees to W Graham under authority of the original agreement - in other words, does the right to the fees follow the possession of the land and is the Government obliged to continue to collect this revenue and to account for it to the present owner of the soil. It is an anomalous position for a Government.¹⁵

The Solicitor-General, Reid, advised that:

In my opinion the right to receive the fees … does not pass with a simple conveyance of the land. The land is Crown land for the purposes of gold mining and not private land, and this is expressly declared by the 2nd section of ‘The Auckland Gold Fields Proclamations Validation Act 1869’ the effect of which is preserved by subsequent legislation. I think the right to receive these fees is attached to the lands in their condition of Crown lands for Gold

14. The file correspondence refers variously to ‘R Graham’ and ‘W Graham’. There was a W A Graham, a prominent public figure in Auckland in the same period as Robert Graham, but almost certainly the latter is meant. He was the active land lessee and purchaser in the Thames district.

15. Pollen to Solicitor-General, 10 February 1876, in ‘Extracts from Treasury File t82/3406’, Audit inwards letters, a1 27/5/1, Archives NZ. All following quotations and references on the Graham case are taken from this file.

Mining purposes, and that this right should be distinctly disposed of by the owners before the Govt can safely deal with Mr Graham. [Emphasis in original.]¹⁶

Reid’s opinion is ambiguous. He did not say that the right to receive revenues attached to the gold itself, and his advice is therefore puzzling. What kind of right is it that attaches to land but does not transfer to a new owner with a conveyance of the land? That is, what kind of right can attach to land and be transferred when it is Crown land, but not when it is Maori land?¹⁷ The answer is an on-going Maori right in gold mining, for the time being conveyed to the Crown, but still available for conveyance to another party. If so, Reid’s advice was consistent with the principle established in the Case of Mines (discussed in section 6.3.1) that rights in the royal metals were distinct from rights in the soil and had to be separately disposed of by ‘apt and precise’ words.

In any event, Pollen was instructed to inform Graham that ‘if the fees were still payable, then they were to be paid to the person with whom the agreement was made in the first place’.¹⁸ This meant the former Maori owners, but they had given Graham a power of attorney to receive the revenues. Puckey later reported that he did make the payments, as instructed.¹⁹ But the resort to the power of attorney was merely an expedient and did not really resolve the question of who was entitled to the revenues after the sale of the freehold.

In any case, the Audit Office blocked the payment because it had wrongly been charged by Pollen and Puckey to the consolidated fund rather than the miner’s rights deposit account for Hauraki, which was within Pollen and Puckey’s control.²⁰ In 1880, Treasury was taking control of the mining revenues and setting up an imprest account in Wellington. In February 1881, CJ Batkin, assistant controller and Auditor-General, wrote to Warden Kenrick and native agent Wilkinson, the incoming co-trustees of the miner’s rights deposit account in Hauraki, informing them that payments of miner’s right fees to Europeans who purchased ceded land were ‘absolutely illegal’, and should cease while the whole question was referred to the Government.²¹ Apart from the issue of who was entitled to the payments, Batkin was no doubt aware of the constraints on the officials’ authority resulting from the Financial Arrangements Act 1876, which provided that mining revenues were to be paid to a separate account for each district (not to the consolidated fund) and were payable either

16. Reid to Colonial-Secretary, 2 March 1876, a1 27/5/1, Archives NZ (doc a8, p 233)

17. In the Mining Act 1866, under which the goldfield was proclaimed, the relevant definition of ‘Crown land’ is ‘land over which the Governor has acquired the right to authorise gold mining’.

18. Pollen, examination before Native Affairs Committee, petition 286, app g3, ‘Papers Brought before Parliament and Select Committees’, Le 1/1876/7 (doc a8(a), pp 615–634)

19. Puckey to under-secretary, Native Department, 31 July 1880, Thames goldfields notes, ma13/35c [ma13/35g], Archives NZ, p 7 (doc a8(a), pp 686–692)

20. J E Fitzgerald, memorandum, 25 August 1881, a1 27/5/1, Archives NZ

21. Batkin to Kenrick and Wilkinson, 14 February 1881, Audit inward letters, a1 27/5/1, Archives NZ (doc a8, p 233)

to the Maori owners or to the local bodies in which the revenue was accrued.²² There was no authority to pay from the district accounts to private purchasers such as Graham, even if they were entitled. Wilkinson was happy to comply with Batkins direction, being quite certain that it was never contemplated [in the leases] that the money should be paid to Europeans’.²³

JE Fitzgerald, the Auditor-General, also responded to Batkin’s concerns, stating in a memorandum of 20 May 1881 that the miner’s right fees were Crown revenue, that the Financial Arrangements Act 1876 did not authorise payment to any but ‘native owners’, and that he could not admit ‘that the natives have any right to dispose of the revenue of the Crown to any other person’. He continued:

Some of the land in question has been sold to the Crown and is it not certain that the Miners fees have not still been paid over to the Natives illegally. It is only recently however that this money has been paid into the Public Account, and so that the Audit Office has any control over the expenditure.²⁴

Dr Anderson cites this memo in support of the statement that, while Graham’s entitlement was being considered, miner’s right and other fees seem to have been paid to the original owners ‘until such monies were claimed by local bodies in the early 1880s’.²⁵ But Fitzgerald’s memo does not support that construction. Fitzgerald did not rule out the possibility that Maori had still been paid the revenues after they had sold land to the Crown, but he does not definitely say that this was the case; he suggests that if local officials had paid them they had done so illegally. The point is important because the MacCormick inquiry of 1939–40 found that the Crown claimed the revenues from the moment they purchased ceded land, and had not seen any evidence that Maori had contested the point (see sec 13.7.3).

This still leaves doubtful the effect of private individuals buying ceded land. On 16 May 1881, TW Lewis, the under-secretary of the Native Department, formally stated a ‘case for opinion of law officers’ on the whole question. He outlined the history of the mining agreements and the passage of ceded land through the court and its subsequent sale to the Crown or to private Europeans, relating that in several instances the Maori vendors gave:

with the conveyance a legal power of Attorney to the purchaser to draw the rights, rents etc which had previously accrued to themselves as owners of the land, though it has been argued that such power of attorney was not necessary to enable the purchaser to receive the rents etc … The question now raised is whether persons purchasing from the Natives the portion of the block to which they have obtained titles through the Native Land Court, become entitled by such purchase to receive the Miners rights fees, or other advantages

22. Document p6, p 80

23. Wilkinson to Treasury, 12 April 1881, a1 27/5/1, Archives NZ (doc a8, p 237)

24. Fitzgerald, memorandum, 20 May 1881, a1 27/5/1, Archives NZ

25. Document a8, p 233

attaching to the land under the agreements referred to previously paid to the Natives from whom the purchases were made.

Lewis attached correspondence between Wilkinson and Kendrick and a Mr Creighton, who had argued that his common law rights were infringed by their withholding the payments.²⁶

In August, assistant law officer W Miller Lewis advised the Government:

The effect of all of them [the mining agreements] seems to be ist that the fees from timber licences and the sale of kauri timber as there prescribed have to be paid to the Natives though in the first instance paid to a Government Officer. 2nd that the Government binds itself to pay £1 for each miners right … In one agreement this payment is prescribed to be made to the Natives signing it (naming them) or their heirs in the other two to the chiefs or people (naming the tribes) and their heirs.

These agreements are in all respects pleasingly vague, but seeing that these payments are really in the nature of rent, or at any rate as an annual payment for the Grant of Easement, I see no reason whatever to doubt that the right to receive such moneys passes to the purchaser of the lands whatever the colour of his skin may be. He buys the land subject to this grant of easement or lease, and unless in his conveyance the right to the payment is reserved I think it passes to him.²⁷

Thus, Graham, Creighton, and other private purchasers would have been entitled to the revenues. It was required only that there should be an appropriate statutory authority to make the payments from the public account.

In September, Miller Lewis wrote to the Minister of Mines confirming his previous opinion, while admitting that ‘the question is a complicated and difficult one’ and saying ‘I shall be very glad if you will relieve me of the responsibility by not acting on my opinion unless endorsed by the other Law Officers’. Discussing the various points of debate, he wrote:

Mr Reid’s [1876 opinion] is only to the effect that he thought in order to pass the right to a share of these Miners Rights fees the conveyance of the land should specially mention them - that they probably could not pass without such special mention. But he clearly by implication admits that they were alienable by the Natives either apart from or in connection with the land...

section 2 of the Validation Act of 1869 … rather confirms my view. The very fact that it is made so clear that the agreement is to hold good notwithstanding extinction of Native title shows that it is to hold good though the land may be alienated by the Natives and if so surely it must hold good as against the Government to the extent of continuing their liability as well as in their favour to the extent of permitting mining.

26. Miller Lewis, ‘Case for Opinion of Law Officers’, 16 May 1881, t82/3406, in a1 27/5/1, Archives NZ

27. Lewis to Native Minister, 26 July 1881, in James Fitzgerald, memorandum, 20 May 1881, a1 27/5/1 (doc a8, p 237)

Next the effect of declaring these lands Crown lands was not to interfere with these payments or royalties in any way but to bring them under all the numerous provisions of the Gold Fields Acts as to mining on Crown Lands from which mining on private lands is exempt.²⁸

Importantly for these proceedings, Miller Lewis’s opinion was that the mining revenue was payable not for the gold as such but for the rent of the land or the right of easement by which the gold might be mined. The essence of his view was upheld by Justice Conolly in 1897, in Aitken v Swindley.²⁹ There is no evidence that this view has since been challenged in law.

In the light of Miller Lewis’s opinions, officials made preparations to include in the Appropriation Act 1182 authority for actually paying the mining revenue to private purchasers.³⁰ Batkin of Audit continued to raise objections, however, and the authority was possibly not secure until section 8 of the 1882 Act authorised the Colonial Treasurer:

to issue and pay out of the Consolidated Fund all moneys lawfully payable to any Natives under and by virtue of the agreements validated by ‘The Auckland Gold Fields Proclamations Validation Act, 1869’, or to any persons lawfully entitled to the lands from which the revenues accrue in virtue of any such agreement.

Dr Anderson interprets this as a marked shift from the provision in the Financial Arrangements Act 1876 from payment to Maori, to payment to settlers and counties. Crown counsel, however, rightly point out that the 1876 Act did not provide for payment to Maori only: rather that they were entitled to be paid first, before the balance went to local bodies; secondly, that the 1882 Appropriation Act did not repeal the 1876 Financial Arrangement Act, but dealt with payments from the consolidated fund (which the 1876 Act did not), the two Acts operating together.³¹ But Dr Anderson and the Crown are in agreement that the 1882 Act provided the necessary authority for payment to private parties who had bought Maori land within goldfields.

Because the Audit Office was still resisting payments to private Europeans in late 1881, Fitzgerald wrote, ‘I am finally of the opinion that an order should be made by the Hon the Colonial Treasurer based upon an opinion by the Hon the Attorney-General, as to who is lawfully entitled to these moneys and that the Audit should be guided thereby.’³²

The issue seems to have still been unresolved in mid-1882, at which point the Thames Borough Council pressed for payment to them of the revenues from Waiotahi a block, which had recently become the property of a European named Comer W Rolleston, the

28. Miller Lewis to Minister of Mines, 14 September 1881, a1 27/5/1, Archives NZ

29. Parcell, p 55

30. See exchange of minutes between Oliver Wakefield, L Rolleston, and J C Gavin, a1 27/5/1, Archives NZ

31. Document p6, pp 83–84

32. Fitzgerald, minute, 29 September 1881, a1 27/5/1, Archives NZ

Minister of Mines, wrote to the Attorney-General, Frederick Whitaker, ‘It seems to me that all the advice to the present time goes in favour of the fees etc passing to the private purchasers. Will you say what you think should be done?’ Whitaker replied, ‘It appears to me that the fees are incident to the Land ceded for mining and are payable to the owners of the soil for the time being.’³³

That settled the issue. Treasury opened a ‘European account’ within the goldfields revenues imprest account, and Ministers and officials distributed the revenue between Maori owners, local bodies, and private Europeans. The opinion given by assistant law officer Lewis in 1881 and sustained by Attorney-General Whitaker in July 1882 was not so much a unilateral ‘reinterpretation’ of the situation (as Dr Anderson suggests) but an authoritative interpretation of what had been unclear, namely the import of the goldfield agreements. The Crown had never recognised Maori ownership of gold, separately from the land. Even Solicitor-General Reid’s opinion had not been posited on any such right.

What is noticeable, however, in the responses of Reid, Batkin, and Wilkinson to the issue, is that these officials had never contemplated that the Crown should act as agent for private Europeans in the collection and payment of the revenues, as it had for Maori. What Reid had apparently been trying to do was to preserve the concept that what Maori had granted to the Crown in the cession agreements was not simply an easement in the ordinary sense, but the right and responsibility of managing access for mining purposes. Reid felt that this right and responsibility still lay with the Crown even though the freehold of the land had been sold to private parties, and the Crown should continue to manage the mining access, collect the revenues and pay them to former Maori owners even after the sale. This view did not survive Miller Lewis’s and Whitaker’s dictum that rights passed with the land.

The whole episode does little to support the view of claimant counsel that the royal prerogative exerted a subtle influence; it was not mentioned by Reid’s 1876 opinion. Rather the episode disclosed a continuing emphasis on the usual common law approach to land, namely that lesser rights such as easements passed with the freehold of the land. Governments continued to keep the prerogative in abeyance, to purchase Hauraki land (often under proclamations of pre-emptive right) and, when they had done so, to pay mining revenues to local bodies rather than to the former Maori owners. The episode also reveals the prevailing confusion among Ministers and officials of the Crown about the effect of purchase of the freehold of ceded land by private parties before 1882. Some officials remained far from happy about the Crown passing on to Europeans the mining revenue it was collecting for access privileges that had been negotiated with Maori. One outcome was a strengthening of the Crown’s determination to buy the freehold of the ceded lands, and forestall Maori selling them to private parties. Field officers such as Wilkinson and Kenrick became zealots for this, constantly urging purchases of Hauraki lands upon their Ministers.

33. Rolleston to Attorney-General, 24 July 1882; Whitaker, minute, 25 July 1882, a1 27/5/1, Archives NZ

The episode also reveals a little of the attitude of Maori owners, and of third parties. In at least some Maori minds the gold revenues were separate from the land and they sold only the latter. For their part, some of the purchasers thought all along that the revenues were part of their common law rights, and that they did not need any separate power of attorney to claim them. But the Thames Council had also chimed in, arguing that the revenues passed to the Crown, not to private purchasers, when Maori sold the land. There was thus a loose perception circulating that the gold revenues were somehow distinguishable from the other rights attaching to the land, though whether the payments were for the gold or for the access was unclear. However, no evidence has emerged of Maori strongly contesting the right to revenues accruing on goldfield land they had sold to private purchasers other than in the case of Graham. The resistance came rather from officials such as Wilkinson, and then on behalf of the Crown’s interests rather than Maori interests (see sections 4.2.2, 7.6.2, 8.1, and 9.6 for Crown purchases targeting land known, or believed, to be auriferous).

It is relevant to this discussion, however, to note the transactions over Pakirarahi 1 (considered above in section 12.3.2). Between March 1882 and August 1884, various shareholders in the title executed deeds of sale over the land with ussc, but on 19 September 1884 the same owners executed a deed of covenant stating that they were conveying only timber- cutting rights, for a maximum term of 99 years, and expressly reserving the mining revenue. It is clear that, under advice, they had come to a better understanding about the effects of selling the freehold and tried to clarify their real intentions, via the covenant. The complex outcomes in the case of Pakirarahi 1 are discussed in detail above.

In our view, the confusion regarding the effect on mining revenues of sale to private purchasers - a confusion which obtained not least among Crown officials - supports the finding of the MacCormick commission in 1940 that Maori may not have been fully aware that the sales would mean they were no longer entitled to receive the mining revenue. They had not been adequately advised by Crown officials.

(2) The 1896 debate: native rights versus easements revisited

The debate on the Mining Act Amendment Act 1896 deserves fuller consideration for the light it throws on the nature of the goldfield agreements: in particular, whether they constituted or were evidence of a limitation that the Crown had accepted on its prerogative rights.

The Bill proposed to extend the powers of the Government to ‘resume’ (ie, acquire compulsorily) auriferous lands for gold-mining purposes, to include all lands within goldfields (including Maori and private settler land). Unlike previous resumption statutes, the consent of landowners would not be required. The largest category of land likely to be affected by the Bill was the auriferous land held by private timber companies. This included land purchased or held under long term or perpetual lease by ktc or its subsidiary, the Kauri Gold Estates