THE
HAURAKI REPORT

VOLUME III

WAITANGI TRIBUNAL REPORT 2006

THE

HAURAKI REPORT

THE
HAURAKI REPORT

VOLUME III

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 Māori 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 54321

Set in Adobe Minion Pro and Cronos Pro typefaces

CHAPTER 19
TE AROHA MOUNTAIN, THE HOT SPRINGS, AND THE TOWNSHIP

19.1INTRODUCTION

The Wai 663 claim was lodged by Tanengapuia Mokena and Mapuna Turner on behalf of Ngati Rahiri Tumutumu of the Te Aroha district.¹ These claimants support the broader issues of the Wai 100 claim of the HMTB but have specific grievances concerning Te Aroha. The Crown purchase of the Te Aroha block in 1878, the proclamation of the Te Aroha gold-field in 1880, and the choice of Te Aroha as a township serving the goldfield have already been reviewed in chapter 11. This chapter focuses on concerns about Te Aroha mountain and the hot springs, and land losses in the township of Te Aroha, which was part of the Omahu native reserve (see fig 78).

19.2 TE AROHA MOUNTAIN

Taimoana Turoa described Te Aroha mountain as greatly revered by the Marutuahu people who refer to it as “Te Tatau ki Hauraki whanui’”. He translated this as the ‘portal or doorway to Hauraki widespread’. Te Aroha embodies the prow of a canoe with its stern at Moehau, at the northern end of Coromandel Peninsula. (Others have reversed this image, placing the stern at Te Aroha.) The name ‘Te Aroha, meaning love, yearning, or compassion, is a shortened version of a name which appears in Tainui, Te Arawa, and Mataatua traditions as ‘Te Aroha-ki-tai, Te Aroha-a-uta. The Mataatua version relates that the ancestor, Rahiri, took this canoe from Whakatane to its resting place at Takou in the far north. In old age, he returned south with some of his people, naming features of the land on his way. He ascended Te Aroha mountain, where he viewed the Bay of Plenty and the volcanic island Whakaari (White Island) offshore. He exclaimed, ‘Te Aroha ki tai, Te Aroha a uta’, an expression of his yearning for his coastal homeland (tai) and its inland territories (uta). Rahiri returned to Whakatane but some of his people remained at Te Aroha and became the ancestors of Ngati Rahiri.² Other versions of this story have different ancestors naming Te Aroha but the meaning is the same, an expression of yearning for home.

1.Claim 1.26(b)

2.Taimoana Turoa, Te Takoto o te Whenua o Hauraki: Hauraki Landmarks (Auckland: Reed, 2000), pp 152-153

Figure 78: The Te Aroha district, 1880

An older name for Te Aroha mountain is ‘Puke-kakariki-kaitahi’ which Turoa suggests is ‘probably of early Ngati Hako origin. Although ‘Te Aroha’ is used for the whole mountain, strictly the name refers to ‘two very prominent spurs to the east and west of the lower crater rim’, Te Aroha-ki-tai and Te Aroha-a-uta. Another name for the inland portion of the mountain, Te Aroha-a-uta, was Keteriki, a source of‘the spring-fed waters of the mountain’.³

In their evidence to us, Ngati Rahiri Tumutumu claimants emphasised the significance to them of their maunga tapu, Te Aroha mountain, and the hot springs at its base. Mapuna Turner described the mountain:

Ngati Rahiri Tumutumu and the rest of Hauraki consider Mount Te Aroha to be wahi tapu. We have defined Mt Te Aroha to mean from the summit to the river [Waihou]. This includes Te Aroha Town. Te Aroha is the kei [stern] of the waka. The bow is at Moehau ...

3. Turoa, p 138

The earliest known name for Te Aroha maunga is Puke Kakariki Kaitahi the place where the Kaka parrots flocked to feed. It is symbolic that the mountain supplies an abundance of food and resources.⁴

Tane Mokena, a descendant of Te Mokena Hou, a rangatira of Te Aroha⁵, spoke of the ancestral connections of Ngati Rahiri Tumutumu with the mountain and springs:

The hot springs lie at the base of Te Aroha Mountain, right beneath Whakapipi or Bald Spur. The springs flow out of the heart of the mountain, so I cannot talk about the significance of the springs without first talking about Te Aroha Mountain.

Te Aroha mountain and the Kaimai Ranges are closely associated with our ancestors. Te Aroha mountain itself is traditionally associated with the ancestor Te Ruinga. On one side, Te Ruinga descended from Raukawa, on another side he came from this area. Twin peaks stand atop Te Aroha mountain. The higher one bears the name Te Aroha-a-uta, and the lower one Te Aroha-a-tai.⁶

Tane Mokena described burial caves of ancestors on the mountain and the tapu associated with them:

Associated, as they were, with the ancestors and the tapu state of death, mountains were perceived as eerie, tapu places – spiritual halfway stations between this world and the next. Mountains were places where earth – the realm of mortals – met the sky – the realm of the supernatural. Te Aroha mountain was such a tapu mountain. In a number of traditional stories Patupaiarehe inhabit its misty peaks. Patupaiarehe seemed to slide in and out of this world and the next. They both embodied, and intensified, the tapu nature of the mountain.

Our ancestor Te Ruinga came from the mountain; he descended from the spirits who inhabit its misty peaks. The Hot Springs at Te Aroha, because they flow out of the heart of the mountain, are also part of the mountain, and also partake of the tapu associations of the mountain. The Hot Springs symbolise the giving, caring nature of the mountain and the ancestors.

The hot springs which lie at the foot of Mount Te Aroha were a very special place to our ancestors. They rise out of the base of the tapu mountain, and right underneath Te Ruinga’s pa site at Whakapipi, were considered to be very tapu, and had to be approached with respect and caution.⁷

It is not in dispute that Ngati Rahiri Tumutumu have occupied the Te Aroha district for many generations. When the title to the Te Aroha block was investigated by the Native Land Court in 1869, Ngati Haua’s application was vigorously opposed by Hauraki leaders,

4.Document J20, p 7

5.Tane Mokena’s role in aspects of early Te Aroha township history is described in sections 11.2 to 11.4 below.

6.Document G22, p 3

7.Ibid, pp 7-9

and Ngati Rahiri in particular. (This hearing has been discussed in sections 2.2.6 and 11.1.2.) Te Mokena Hou stated his hapu were Ngati Tumutumu, Ngati Hue, and Ngati Kopirimau, all associated with Ngati Rahiri. He also listed 20 other Hauraki hapu with interests in the block and stated: ‘These tribes held this land from ancient days down to the invasion of Ngapuhi – they afterwards used to come backwards and forwards from Hauraki to Te Aroha’.⁸ He listed 16 names ‘and others’ who are now living at the base of Te Aroha, and refuted Ngati Haua claims to any pa on the mountain. ‘We were driven away by Ngapuhi and took shelter amongst Waikato tribes and then returned to Te Aroha until the time of the war with the Pakeha, we then straggled away and have now returned and are cultivating on the land’. He then suggested, ‘The reason that Ngatihaua lay claim to the land is to take it because their own land is gone’.⁹

In the 1820s, following raids by northern tribes around the Hauraki Gulf, Marutuahu tribes retreated inland to the Waikato district, but after the Taumatawiwi battle about 1830, fought near Maungatautari, Marutuahu moved back to Hauraki (see sec 2.2.3). Ngati Haua claimed they had won this battle and asserted their title to Maungatautari; they also claimed the Te Aroha block, on the grounds of conquest and occupation. This was refuted by Marutuahu witnesses, who conceded that, while their main settlements were near the coast, they periodically came up the Waihou River to get eels, and snare birds in the forests of Te Aroha mountain or the wild fowl of the swamps nearby. Te Mokena Hou stated that when not at Te Aroha he lived at Hikutaia and Puriri. ‘I was there [Puriri] when the Missionaries came there and at the time of the first Governor’s coming I went backwards & forwards to the Aroha’. He returned on 18 August 1868 and ‘took permanent possession of Te Aroha’.¹⁰ Te Mokena Hou and others cultivated crops in clearings at Matauraura and Omahu and ran pigs at Manawaru, and although Ngati Haua may have used ‘Rauwiri’s eel pa’ it did not belong to them: ‘It is not right according to Native custom to take Te Aroha for Taumatawiwi. Maoris claim land from their ancestors’.¹¹

In support of Ngati Rahiri’s claims, Rina Mokena stated, ‘Te Mokena is my husband. I was born at the Aroha, at Pakamako – at the base of the mountain’. She claimed Ngati Tumutumu and Ngati Maru had made the eel weirs there. Although she was related to Ngati Haua, and had lived for a time at Matamata and Waitoa, Ngati Haua were not owners. Ngati Tumutumu lived at Te Aroha, and even at the time of Taumatawiwi, there were a few who remained as kaitiaki or guardians.¹² Erana Ketu corroborated this statement: ‘During times of war there were always kaitiaki at the Aroha’.¹³ There were other witnesses too, who

8.Waikato minute book 2, fols 216-217

9.Ibid, fols 217-218

10.Ibid, fol 219

11.Ibid, fols 220-221

12.Ibid, fols 244-245

13.Ibid, fol 248

described cultivations, and eel weirs, and expeditions from the coast inland up the Waihou River. Uses of the hot springs were not discussed in the court hearing.

In 1869, the Te Aroha block was awarded to Ngati Haua, although it was acknowledged by all parties that, until Taumatawiwi, the block was within the rohe of Marutuahu tribes. The Native Land Court concluded:

The evidence given on both sides is, as usual in cases of tribal disputes, very contradictory, but the Court will follow the rule which it has laid down in similar cases, that those who are found in undisputed possession of land in this country at the time the English Government took formal possession of the Island shall be considered as the real owners of the soil.¹⁴

Marutuahu tribes protested Judge Rogan’s decision and a rehearing was granted. In April 1871, Judges Maning and Rogan concluded that at no time had Marutuahu tribes relinquished their claim to Te Aroha, that any Waikato or Ngati Haua people living there ‘unmolested on the Aroha lands, were there by permission of the Marutuahu people, but who did not concede to them any right of ownership’. Since Taumatawiwi, Marutuahu tribes ‘made use of the land at will ... and as fully and frequently, it would appear, as they chose to do’. The Court awarded the block to ‘the Marutuahu tribes’.¹⁵

Mapuna Turner, in her evidence to Waitangi Tribunal, quoted oral tradition among Ngati Rahiri Tumutumu: ‘It is said that when Marutuahu left Hauraki to go and live in Maungatautari, we refused and chose not to go with the rest. We sought protection from the mountain, the ngahere (bush) and in the swamps. I say protection because we knew the area well.’¹⁶

All Ngati Rahiri Tumutumu witnesses were adamant that they had not relinquished their kaitiaki role over the mountain and the hot springs at its base.

19.3 THE TE AROHA HOT SPRINGS

The geothermal area at Te Aroha consisted originally of more than 20 hot springs, but now fewer than 10 are active. The total flow of hot water has changed little, but the excavation of a tunnel in 1889 to tap water for the baths, and several holes drilled from 1936 for the same purpose, have affected flows in the smaller springs.¹⁷ In the first detailed geological survey

14.Ibid, fol 303

15.Hauraki minute book 4, fols 257-258; Native Land Court, Important Judgements Delivered in the Compensation Court and Native Land Court, 1866-1879 (Auckland: General Steam Printer, 1879), pp 132-133

16.Document J2o, p 7

17.M A Mongillo and L Clelland, Concise Listing of Information on the Thermal Areas and Thermal Springs of New Zealand, Department of Scientific and Industrial Research Geothermal Report 9 (Wellington: Department of Scientific and Industrial Research, 1984), pp 78-79; Evelyn Stokes, The Legacy of Ngatoroirangi: Maori Customary Use of Geothermal Resources (Hamilton: Department of Geography, University of Waikato, 2000), p 230

Figure 79: The flow paths of groundwater at Te Aroha

of Te Aroha the hot springs were recognised as associated with the old volcanic structures and fault lines of Te Aroha mountain:

The Te Aroha group of mineral springs is situated at the base of Te Aroha Mountain the steep wooded face of which, rising abruptly immediately beside the springs is ... a great fault scarp. Through the crushed rock due to this fault-zone arise the springs which occur over an area about 25 chains [580 m] in length, in the northern portion of which the springs are warm, in the southern cold.¹⁸

Figure 79, which is derived from a 1993 study by Woodward Clyde Limited, confirms this interpretation.

Maori tradition ascribes the hot springs to the taniwha, Ureia who left the O-koroire hot springs to gouge out the channel of the Waihou River. He is said to have taken several gourds of hot water from O-koroire to leave at various places, including O-kauia springs and Te Aroha, which lie along the Hauraki fault line.¹⁹

There is little documentation about these springs before 1850, although the Waihou River nearby was the principal travel route in the region. However, few people then lived in this contentious boundary zone between Ngati Haua to the south and Hauraki tribes to the

18.John Henderson and John Bartrum, The Geology of the Aroha Subdivision, Hauraki Auckland, Geological Survey Branch Bulletin 16 (Wellington: Department of Mines, 1913), p30

19.Turoa, p 196

north. On 12 December 1849, George Cooper, travelling with Governor Grey, was taken to one of the springs:

a spring called Te Korokoro o Hura [the throat of Hura], which the natives declared to be boiling and of a salt taste, and that it came from the sea on the East Coast [Bay of Plenty] by a subterraneous passage. It is situated at the foot of Mount Te Aroha, on the Eastern bank of the river. On approaching it, Whakareho who was our guide, instructed me in a Native ceremony for strangers approaching a boiling spring, and my repeating which afterwards afforded much amusement during our stay at Rotomahana. It consists in pulling up some fern or any other weed which may be at hand, and throwing it into the spring, at the same time repeating the words of a karakia of which the following is the translation—

I arrive where an unknown earth is under my feet,

I arrive where a new sky is above me,

I arrive at this land

A resting place for me,

Oh spirit of the earth the stranger humbly offers his heart as food for thee.

The above ceremony which is called ‘Tupuna Whenua’ is used by persons on their first arrival at a strange place, for the purpose of appeasing the spirit of the earth, who would otherwise be angry at this intrusion.²⁰

Cooper also recorded the Maori version of this karakia with notes:

Ka u te Matanuku** Matanuku (synonymous with Nuku, Papa and Papatuanuku) signifies the Earth. It is here used for a place where one arrives for the first time.

Ka u te Matarangi^†† Matarangi signifies the Sky, and is used here for the part of the sky which is over the place at which a stranger arrives, who is therefore said to have a new sky above him.

Ka u ki tenei whenua

^‡ This is a curse according to the old custom, and is applied by the stranger Hei whenuato himself in evidence of his extreme humiliation and perfect submission to the spirit of the place, who could not otherwise be appeased.

Hei kai mau^‡ te ate o te tauhou²¹

Following the karakia, Cooper was able to investigate the spring:

On examining the spring we found that the water was not hot and could hardly be called tepid although it was not quite cold. Neither is it salt at all, but has a strong chalybeate taste, and is highly odiferous of rotten eggs. We found a small quantity of sulphurous deposit in the mud through which the water wells up. The quantity of water emitted is very small, and the place on the whole hardly repays one for the trouble of visiting it, to do which it is necessary to traverse about a quarter of a mile of very broken ground, the greater part of which is a deep quagmire.²²

20.George S Cooper, Journal of an Expedition Overland from Auckland to Taranaki, by way of Rotorua, Taupo, and the West Coast: Undertaken in the Summer of 1849-50 by His Excellency the Governor-in-Chief of New Zealand (Auckland: Williamson and Wilson, 1851), pp 40, 42

21.Ibid, p 41

22.Ibid, p 42

It seems that Cooper was shown only one of the smaller springs, and the ‘quagmire’ discouraged him from exploring further. The area did not appear to be occupied by Maori at this time.

In 1873, Albert Allom described the geothermal area at Te Aroha which he called ‘Waipuia Hot Springs’:

The springs are to be found close under the precipitous ferny spurs which form this part of the mountain base. Numerous irregular bald patches of exposed clay and gravel look down upon you, indicative of water action during winter. Under these the bottom of several little gullies is incrusted with calcareous tufa, over which trickles a warm stream ... But we found three springs only where the water was fairly hot. One, the most utilized, and apparently the best, rises up into a basin 15 to 20 feet long, whose clay walls have been built by Maories. A cold stream also trickles into this and may be dammed back with the greatest ease if the bather wishes to increase the heat of the bath.²³

Allom did not record any Maori settlement in the vicinity of the springs and his small tour party of four, guided by James Nicholls, enjoyed a bath in this pool on their own. Allom did record the Omahu kainga, on the east bank of the Waihou River several kilometres downstream from Te Aroha, where he and his party stayed on their return journey.

Although gold brought Pakeha settlers to Te Aroha in the 1880s, the township evolved as a spa resort in the late nineteenth century. The focus of development was the group of springs in the 20 acres of Crown land named the hot springs reserve (section 16), later known as the Te Aroha Hot Springs Domain. Occasional parties of Pakeha visitors visited in the early 1870s and were received hospitably by the local people, most of whom lived in the kainga at Omahu. As related in section 11.2, in 1874 George Lipsey arrived, and married Ema, daughter of Te Mokena Hou. At this stage, local Maori remained in control of access to the springs, but by the mid-1870s negotiations were under way to sell the large Te Aroha block to the Crown. In August 1878, the Te Aroha block (53,908 acres) was purchased by the Crown (see sec 11.1.2). Certain reserves to be retained for Maori, including the Omahu Reserve (4268 acres) which extended from south of Te Aroha hot springs to the north of the block. It included Omahu kainga, on the eastern bank of the Waihou River. Within this reserve the Crown retained the 20-acre ‘hot springs reserve’. In 1881, subdivisions of Omahu Reserve were defined, when the Mokena whanau were awarded lands around the hot springs reserve. This issue is take up again later in this chapter.

In 1878, Lipsey had built the first Hot Springs Hotel for his father-in-law. The Thames Advertiser commented, ‘The hotel if well conducted will be a great boon for persons seeking these springs for their health-giving properties’. By 1879, the Thames Advertiser recorded three hotels at Te Aroha, ‘the Hot Springs Hotel kept by Mokena, the Waitoa Hotel at the

23.Albert J. Allom, A Holiday Trip to Maungatautari (Grahamstown: Wilkinson and Horton Printers, 1873), p 9

Figure 80: The Hot Springs Hotel, Te Aroha

landing place kept by George S O’Halloran and the Te Aroha Hotel kept by Mr Missen’.²⁴ By 1880, regular river boat services plied between Thames and Paeroa, with a coach service from Hamilton to connect with the train from Auckland. In 1880, gold was discovered on the slopes of Te Aroha mountain and the Te Aroha goldfield was proclaimed in November 1880 (see sec n.3).²⁵ The township of Te Aroha was surveyed on part of the Mokena whanau’s land and the population increased rapidly in the boom conditions of a new mining town.

As Te Aroha township was established by the Crown on Maori land ceded for gold mining, the development of the town proceeded on the basis of leasehold tenures of business and residence sites, provided for in mining legislation. Even when the Crown had purchased all of the Maori land in sections 15 and 17 of the Omahu native reserve, the mining tenures remained in place, but rentals were no longer paid to the Maori owners. Te Aroha residents long chafed against leasehold tenure, whether their landlord was Maori or the Crown, and gold mining in the district faded by the 1890s. In 1914, a royal commission investigated mining tenures in Hauraki mining district and Te Aroha township. In its report on Te Aroha, the commission noted that the Crown had acquired the freehold, but only streets in the original Morgantown and Lipseytown had been proclaimed, that other streets

24.B Goode and A Matthews, Te Aroha Domain Management Plan (Matamata Piako District Council, 1993), p 18 (Stokes, p239); see also Kevin W Wells, A Postcard from Te Aroha (Auckland: Polygraphia, 2003), pp 21-23

25.‘Proclamation of Aroha Gold-Mining Districts Act 1873’, 20 November 1880, New Zealand Gazette 1880, no 110, p1669

in the town outside this area had not and no freehold titles could therefore be granted until they were proclaimed as public roads:

When the township was originally laid out it was anticipated that extensive gold-mining operations would be carried on in the vicinity, but these anticipations have not been realised. The progress of the township was undoubtedly due mainly to the tourist traffic resultant from the proximity of the hot springs, in the development of which a sum of approximately £12,000 has been expended by the Crown. The settlement of the surrounding country, has, however, latterly contributed largely towards enhancing the value of the town property. The whole of Te Aroha town sections are at present held on residential-site and business-site licenses under the Mining Act, for various terms and at rentals ranging from 5s. per annum to £3 per annum.²⁶

The commission recommended that no further mining tenures be issued in Te Aroha, as these were not suitable for the development of a town where there was no likely prospect of gold mining in payable amounts, and strongly recommended allowing leaseholders to purchase the freehold of their properties. The Te Aroha Crown Leases Act 1920 set out provisions for any holder of a residence or business site license in the town to acquire the freehold and the basis for assessing a valuation of such properties, while reserving all mineral rights to the Crown.

In 1881, the hot springs reserve of 20 acres had been gazetted as a recreation ground under section 44 of the Land Act, and the following year gazetted under the Public Domains Act 1881.²⁷ Some of the pressure on Government to develop the amenities of the hot springs reserve had come from George O’Halloran, the former storekeeper at Omahu, who by 1880 had acquired Mokena’s Hot Springs Hotel, put in a road to the springs and a ferry across the Waihou River. A domain board of five members, including George Lipsey, was appointed. In 1886, negotiations began to purchase from the Mokena family another 46 acres to be added to Te Aroha Domain. George Lipsey was directly involved in achieving this purchase, completed in 1894. We examine this transaction in more detail later. The domain was administered by the Hot Springs Domain Board through the 1880s and George Lipsey remained a member until 1892. In 1893, Te Aroha Town Board took over the role of the domain board.²⁸ In 1903, the recently created Department of Tourist and Health Resorts took over the administration of the Te Aroha spa facilities in the domain, which was now a

26.Albert Bruce, ‘Report’, 31 August 1914, AJHR, 1914, c-3, p6

27.‘Lands Temporarily Reserved in the Land Districts of Auckland, Hawke’s Bay, Canterbury, Otago, and Southland’, 5 April 1881, New Zealand Gazette 1881, no 25, p 393; ‘Te Aroha Hot Springs Recreation-ground Brought under “The Public Domains Act 1881”’ 12 December 1882, New Zealand Gazette, 1882, no 107, p 186o

28.‘Power Delegated to the Te Aroha Domain Board under “The Public Domains Act, 1881”’, 31 August 1881, New Zealand Gazette 1893, no 66, pp 1297-1298

Figure 81: Advertisement for the Te Aroha hot springs.

Source: Ceorge Allen, Willis’s Guide Book of New Route for Tourists: Auckland-Wellington, via the Hot Springs, Taupo, the Volcanoes and the Wanganui River (Wanganui: AD Willis, 1894).

Figure 82: The Cadman thermal bathhouse, Te Aroha Domain, circa 1920s. Photograph by Arnold. Reproduced courtesy of the Alexander Turnbull Library, Wellington (F-003354-1/2).

rival to Rotorua for tourists and health seekers.²⁹ In 1978, departmental control was handed over to a joint Piako County Council-Te Aroha Borough Council administration. Since 1989, the Te Aroha Domain has been administered by the Matamata Piako District Council.

The growth of Te Aroha through the 1880s and 1890s, after the gold rush faded, was directly related to the ‘medicinal and therapeutic properties’ of the mineral springs and in particular ‘the efficacy of the waters in skin diseases and in rheumatic ailments’. In 1887, the domain board published a booklet by a Dr Wright, ‘physician to the Thermal Springs Domain, which predicted a future for Te Aroha as ‘the sanatorium of the Southern Hemisphere’ (see fig 81).³⁰ Wright’s analysis of the mineral content of Te Aroha springs suggested similarities with the waters from several French, German, and Austrian spas. The completion of a railway connection to Te Aroha in 1886 meant visitors could travel directly by rail from Auckland. Various contemporary travel guides extolled the virtues of the spa, including Ingram’s 1892 Guide for Invalids which stated that ‘Te Aroha Hot Springs have, within a remarkably short period, gained for themselves, by their wonderful curative powers, a deservedly high reputation among the sanatoria of New Zealand, and their fame is

29.‘Powers Delegated under “The Public Domains Act, 1881” to the Minister in Charge of the Department of Tourist and Health Resorts’, 7 January 1903, New Zealand Gazette, 1903, no 4, p 97

30.Alfred Wright, Te Aroha, New Zealand, A Guide for Invalids and Visitors to the Thermal Springs and Baths (Te Aroha: Hot Springs Domain Board, 1887); see also Wells, pp 28-40

Figure 83: The Te Aroha Domain mineral springs, circa 1910. Source: John Henderson and John Bartrum, The Geology of the Aroha Subdivision, Hauraki, Auckland Geological Survey Branch Bulletin 16 (Wellington: Department of Mines, 1913).

every day extending to the sister colonies’.³¹ Treatment consisted of both drinking the waters and various forms of bathing. In 1907, the Government Balneologist remarked on the therapeutic qualities of Te Aroha mineral waters which, ‘in many respects surpass, the most celebrated alkaline waters of Europe’.³²

By the early 1900s, Te Aroha had become well established as a health resort, an Edwardian spa that has retained much of its character today. In addition to bath houses in the domain, there were tennis courts and other recreational facilities. Several hotels facing on to the domain accommodated visitors, who could enjoy fishing and boating on the Waihou River nearby. Geologists John Henderson and John Bartrum suggested that these features ‘combined to make Te Aroha the most beautiful spa in the North Island, where the invalid may find health, and the general visitor spend a delightful holiday’. The mineral waters were ‘justly famous for their therapeutic properties’ and one of the cold springs provided a

31.J S Ingram, Guide for Invalids to the Thermal Springs and Baths of Te Aroha, New Zealand (Te Aroha: J S Ingram, 1892), p3

32.Herbert A Stanley and A S Wohlmann, The Mineral Waters and Health Resorts of New Zealand (Wellington: Department of Tourist and Health Resorts, 1907), p 6o; see also Ian Rockel, Taking the Waters: Early Spas in New Zealand (Wellington: Government Printing Office, 1986)

product marketed as ‘Waiaroha Mineral Water’.³³ However, by the 1940s the popularity of Te Aroha as a health resort declined. Although the medical field of balneology or hydropathy has been superseded by other medical procedures, the baths remained popular, both for recreation and relief of muscular pain and joints stiffened by arthritis or rheumatism. Many of the old bath houses survive and have been restored. The Cadman Building, formerly the sanatorium, now houses a museum, and there are modern spa baths and a swimming pool complex, and two springs supply water to two drinking fountains.³⁴ But in more than a century of development there has been little direct Maori involvement in the management of the Te Aroha Domain and its hot springs.

19.4NGATI RAHIRI TUMUTUMU CONCERNS

Tane Mokena gave evidence to us expressing his family’s view of Crown acquisition and control of the hot springs:

My ancestor was Te Mokena Hou. After the fights in the land court and the troubles among the various iwi of Hauraki he turned to further affirm his right to live on his lands at Te Aroha. In 1877 he built a hotel right next to the springs as a place for the Pakeha tourists to stay in and those who visited to swim in the health giving springs. The cost for Pakeha was one shilling but for Maori it was free because the springs were a taonga.

This was the means by which our ancestors held the land. They knew that most of their lands had been lost to the government and only a residue remained. That was the reason that this hotel was built, so that the government could not say that these people lacked the initiative to utilise their lands.

Of the lands reserved to Mokena Hou, half was transferred to his daughter Ema Mokena Lipsey... The springs are in the middle of the land which was reserved for Mokena.

But in 1880 at the time in which the goldfields commenced at Te Aroha, the hungry gaze of the government turned to the most sacred of the ancestral treasures, to the springs themselves. The ancestors wanted nothing other than to retain the springs in their ownership but the Crown was stronger and the people agreed that the Crown should administer the springs. In return for the transfer, it was promised that the springs would be administered in such a way as to ensure free access by Maori to them. The Crown agreed and the Pakeha moved in to administer the springs.

The springs are a great treasure. It was a beautiful place to our ancestors, but to the Pakeha they saw only a wild, rough and untamed scene. As so they turned to renovate the springs

33.Henderson and Bartrum, p 30

34.Rockel, pp 55-61; Stokes, p 250

and there by to raise the price. They then said to the (Maori) people, if you wish to swim you will have to pay a price to enter !³⁵

Kaumatua Hutana McCaskill, who had lived most of his life at Tui Pa, Te Aroha, told the Tribunal how he felt about the springs:

In the past our people used the springs for a number of reasons. The cold spring was used for drinking water and the hot springs for bathing and healing. The healing properties of the springs was known throughout Aotearoa.

I believe the springs were gifted to the Crown. However, there were conditions attached to its use as continuing to allow Maori people free access to the springs. I understand, the springs were transferred to the control of the local body and the conditions of the gifting were forgotten.

It saddens me how the spiritual beauty and power of the springs has been destroyed. For example, I believe the tapping of the Mokena Hou geyser has diminished its wairua.

We had many springs, but today lots of them are described as ‘diminished’ or ‘toxic’.

Hutana McCaskill also suggested that the use of Pakeha names, such as Wyborn Swimming Pools, is an ‘erosion of our identity’. He concluded, ‘I believe that the Domain was gifted to the Crown by Mokena Hou for the benefit of the people’.³⁶

Mapuna Turner told the Waitangi Tribunal:

The contributions that have been made to the Te Aroha Township by Maori are many. You [the Tribunal] visited the Domain yesterday, everyone remains under the impression that this was a gift by Mokena Hou to the Crown.

Te Aroha Domain was not gifted according to Uncle Keepa. He reiterated always that it was taken. The information was handed down from his father and grandfather.

I will never forget Uncle Keepa talking about the ‘confiscation’ of the Te Aroha Domain.³⁷

Mapuna Turner contrasted oral tradition of the taking of the hot springs with the statement in the Te Aroha Domain management plan:

The Government of the day wisely determined that the land in which the hot springs were situated should be made a public reserve, and an area of 20 acres was set apart and brought within the provisions of the Public Domains Act on December 1882.³⁸

35.Document J18, pp 4-5

36.Document J19, p 3

37.Document J20, pp 8-9

38.New Zealand Mines Record, 16 March 1900 (Stokes, p 247)

These statements raise two issues: the nature of Mokena’s ‘gift’ and the ‘agreement’ about Maori use of the hot springs. In the claimants’ view, both have implications for current management of the domain and the hot springs.

19.5MOKENA'S ‘GIFTS’ AND THE SALE OF TE AROHA TOWNSHIP LAND

Section 16, which is the hot springs reserve (20 acres or eight hectares), is within the area of section 15 (334 acres) which was the reserve granted to nine members of the Mokena whanau. Section 17 (400 acres) was granted to Ema Lipsey, daughter of Te Mokena Hou and wife of George Lipsey, and their two children, Ani and Akuhata (fig 84). David Alexander, researcher for the Hauraki claimants, stated:

Within the Omahu Reserve, an area of 20 acres around the hot springs seems not to have been granted back to Ngati Rahiri owners as part of the Omahu Reserve. Instead, it seems to have been retained by the Crown, and treated as part of the Te Aroha purchase, with the boundaries of Omahu Reserve adjusted to ensure that Ngati Rahiri received the areas they had been promised. References to the negotiations leading up to this decision have not been located.³⁹

Robyn Anderson, in her report for the Hauraki claimants, also felt that the circumstances of the transaction were ‘not entirely clear’:

Certainly local politicians were concerned that the springs be obtained, the Mayor of Thames requesting Sheehan [Native Minister] to instruct Mackay to reserve the area as public property ... The details of the actual negotiation are unknown but the tradition is that Te Mokena Hou, the head of the whanau, ‘gifted’ the springs to form a ‘recreation reserve’. It was arranged at the same time, that Maori should retain a right of free access to the springs while George Lipsey, son-in-law to Te Mokena Hou, was appointed to the Te Aroha Hot Springs Domain Board.⁴⁰

In Maori terms, Te Mokena Hou’s ‘gift’ consisted in his allowing the Crown to include the hot springs area in their initial purchase. It is probable that this Maori perception of the transaction is the origin of the later belief in a free gift. There is no written record of any discussion of the springs or oral agreement about their use with Mackay in purchase negotiations, but the Crown has conceded that the weight of evidence supports the idea that the 20 acres were the gift of Te Mokena Hou.⁴¹

39.Document A10, pt 3, p 211

40.Document A9, pp31-32

41.Paper 2.550, pp 42-43

Figure 84: Te Aroha township lands

In January 1886, the domain board was anxious to extend the reserve area. Land purchase officer Wilkinson was asked to conduct negotiations and began by getting George Lipsey to use his influence with his in-laws, the Mokena whanau who owned section 15. By April, four of the owners (Ranapia Mokena, Raima Te Hemoata, Rewi Mokena, and Hare Renata) had agreed to sell approximately 46 acres at £5 per acre. In July 1886, a notice of intention was published to remove restrictions on alienation which had been imposed on the block by the Native Land Court in 1878.⁴² By the end of the year, the remaining living owners had agreed to sell.

By this time, both Te Mokena Hou and Rina Mokena, his wife, had died. In October 1886, the Native Land Court determined the successors of Te Mokena Hou to be Rewi Mokena and Ema Ripihia (Lipsey), but could not make a determination for Rina Mokena because she had made a will setting up George Lipsey and his wife Ema as trustees for their daughter, Ani Ripihia (Annie Lipsey), until she could inherit her interests at the age of 21 years. If she did not survive then the property reverted to her siblings and the trust endured until all reached 21 years. The legal complications of this trust prevented the Crown completing the purchase although all other interests had been acquired. This was resolved by statute

42.‘Notice under the Native Land Laws Amendment Act 1883’, New Zealand Gazette, 1886, no 44, p 1021

in section 8 of the 1893 amendment to the Maori Real Estate Management Act 1888 which allowed the trustees of Ani Ripihia’s interests to transfer these to the Crown.⁴³ In February 1894, an additional 46 acres in section 15 were declared Crown land and added to Te Aroha hot springs domain in August 1898.⁴⁴

Through the 1890s, Government land purchase officers sought to acquire the interests in the balance of section 15, Morgantown. In 1889, on the Mokena whanau’s application, the restrictions on alienation of the remaining Maori land in section 15 were removed. By 1902, the last of a series of transactions was completed.⁴⁵ Section 15, which carried a number of goldfield leases in Te Aroha township, was declared Crown land in August 1902.⁴⁶

When section 16 was set aside as a hot springs reserve, it was already Crown land, having been part of the Te Aroha block purchased by James Mackay for the Crown. The deed of transfer specified that reserves be set aside for Maori but these had not been surveyed or the boundaries decided when the deed was signed. Because the hot springs reserve was already Crown land, there was legally no need for Te Mokena Hou to ‘give’ the land to the Crown. He had already ‘given’ it in allowing the initial purchase to include the hot springs. But the additional 46 acres were clearly purchased by the Crown, not given by the Mokena whanau. Another alleged gift’, the land in Herries Memorial Park, was also purchased as part of the balance of section 15 acquired by the Crown in 1902. Nevertheless, the idea of a gift of the hot springs has continued in Te Aroha local history, demonstrating again the different values Maori placed on such transactions and the payment for them:

Certain areas had been made over by the native owners as free gifts: the Domain, with the hot springs, and the area now forming the Herries Memorial Park, by Mokena to the State: by him also was given the original site of the Roman Catholic Church: the site of the Anglican Church and that of the Methodist Church, also the school site, were the gifts of Mrs Lipsey.⁴⁷

In a ‘diamond jubilee’ publication of the Piako County Council, Harris remarked on the purchase of the Te Aroha block and the establishment of the Te Aroha township:

The Native Land Court hearing in the purchase of certain portions of the Aroha Block, with Mr James Mackay representing the Crown, took place at Thames during the latter part of 1877 and the earlier part of the following year. Certain reservations were made for the natives; but it proved a difficult fight to get the Hot Springs reserve. It may be added that

43.Document G1, pp 26-27; doc A10, pt 3, pp 218-224

44.‘Native Lands Acquired by Her Majesty Declared to be Crown Lands’, 30 January 1894, New Zealand Gazette 1894, no 10, p 209; ‘Addition to Te Aroha Hot Springs Domain Brought under “The Public Domains Act 1881”’, 8 August 1898, New Zealand Gazette, 1898, no 61, p 1308

45.Document G1, pp 22-35

46.‘Native Lands Acquired by His Majesty Declared to be Crown Lands’, 25 August 1902, New Zealand Gazette, 1902, no 68, p 1778

47.Te Aroha News, Te Aroha and the Fortunate Valley (Te Aroha: Te Aroha News, 1930), p 283

Messrs Strange and O’Halloran made strong representations to the Government on this matter; and they, supported by the united efforts of others – particularly Mr Mackay – were successful.⁴⁸

(Frederick Strange arrived in the district in 1876 and purchased land west of the Waihou River, near Te Aroha. Captain G S O’Halloran had arrived earlier at Omahu and had settled in Te Aroha by 1880.) Harris noted that the Crown had purchased the title to Morgantown (section 15) and that Lipseytown (section 17) was gradually acquired in a series of purchases, but he still regarded parts of these purchases as gifts’:

The native owners were generous, however. Morgan [Mokena] gave the domain, the hot springs and the area now known as the Herries Memorial Park, as well as the site for the Roman Catholic Church; whilst Mrs Lipsey gave the sites for the Anglican and Methodist churches and that for the school.⁴⁹

In an obituary for George Lipsey, published in Te Aroha News in May 1913, credit for the gift of the domain and other sites is attributed to George and Ema Lipsey:

Mr George Lipsey was the son of Thomas Lipsey Esq, Lipsey Park, Newtown Gore, County Leitrim, Ireland. Born in 1846, he came to this colony when he was 21, and joined the police force in Auckland. On the opening of the Thames Goldfields he made his way there, and for some years he and his brother Frank conducted the Bendigo Hotel. After coming to Te Aroha he married Miss Ema Mokena, and became possessed of a very considerable tract of native land, including what is now the borough of Te Aroha. In true generosity of spirit Mr and Mrs Lipsey made a gift to the New Zealand Government of the present beautiful and picturesque Domain grounds. This gift should ever stand as a monument to the generosity of the givers, and it would at least be an appropriate act on the part of the Government to erect a tablet in the Domain setting forth the fact herein noted.

Among other gifts well worthy of mention are the sites on which St Mark’s Church and the State School now stand. An action by Mr Lipsey that again went to prove his generous spirit was that of his successful effort in getting the extension of 21 years’ lease of town sections to 99 years.⁵⁰

Similar local perceptions, probably from the same local history sources, are repeated in the centennial history’ of Piako county:

Mr George Lipsey, who came from Thames and owned the building later to become the first Hot Springs Hotel, is claimed to be the first European to settle permanently in Te Aroha.

48.C Harris, Diamond Jubilee of the Piako County Council: Settlement and Development of the Upper Thames Valley (Te Aroha: Te Aroha News Printing and Publishing Company, 1937), p 41

49.Ibid, pp 41-42

50.Document J18, app 2

He married the daughter of a Maori named Morgan, or, in Maori, Mokena. The land on which old Te Aroha was built belonged to Mokena, his daughter Ema Lipsey and her children. Morgantown and Lipseytown are named respectively after Morgan and Ema.

‘Mokena’s generosity’ was then described:

He made many valuable gifts to Te Aroha, among them the Domain, the hot springs, the area that became the Herries Memorial Park, the original site of the Catholic Church and the sites of the Anglican and Methodist churches and the school.⁵¹

To commemorate the centenary of Te Aroha Borough, David More wrote:

Now the memory of Mokena is to be perpetuated during the centenary by unveiling a bronze plaque in his honour on a concrete-based cairn in the Domain. And a new set of baths, to be called the Mokena complex, is being built in the Domain. It will replace the old No 1 baths. Nearby boiling water from the Mokena Geyser will be used.⁵²

The ‘Mokena complex’ is the group of spa pools at the site of spring 1.

The local perceptions concerning ‘gifts’ had some basis in fact. The actual gifts George Lipsey made were two blocks given to the Crown for Government buildings, a school, and some church sites on his wife’s land known as Lipseytown. A goldfield had been proclaimed at Te Aroha in November 1880. Lipsey’s motivation seems to have been, at least in part, to ensure that the proposed goldfields township would be on land he controlled. In December 1880, the Waikato Times reported:

During the last two days, says the Aroha Miner of Saturday members of the various religious denominations have been engaged selecting sites for the erection of places of worship on the land kindly granted for church purposes by Messrs Lipsey and Mokena Hou and family. The Anglican Church site is at Lipsey’s paddock; the Wesleyan on the western boundary of the High School Reserve; the Baptist near the creek running past O’Hallorans’ and the Presbyterian and Congregationalist near Stafford’s slaughterhouse. We have not yet heard if our Roman Catholic friends have yet picked out a section, though one is open for them, and we have no doubt that they will not be behind hand.⁵³

The Lipsey family certainly donated to the Crown sites in section 17 for a school (1a 3r 32p) and Government buildings (two acres). Because there was some doubt about the powers of Ema Lipsey to convey land in which interests were held by her two children, Ani and Akuhata, who were still minors, the transfer of these two blocks to the Crown was

51.C W Vennell and David More, Land of the Three Rivers (Auckland: Wilson and Horton Ltd, 1976), p 256

52.New Zealand Herald, 8 November 1880

53.Waikato Times, 25 December 1880 (doc J18, app B)

authorised by section 3 of the Te Aroha Township Act 1882. The school reserve was held by the Auckland District Board of Education until 1954, when it was transferred to the South Auckland Board. During the 1950s, a school for younger children operated there, but in 1960 the classrooms were moved to the school site three blocks to the north where a school for older children had been established in the 1920s. In 1964, about half an acre of the old Church Street site was re-gazetted for pre-school education and is still in use as a kindergarten. The balance of the area was vested in Te Aroha Borough for municipal purposes. This vesting was revoked in 1970 and the area is now in use as a retirement home.⁵⁴ The Government buildings reserve presumably remained Crown land, but we have no information on its subsequent use.

The Lipsey family also provided sites of half an acre each for the Anglican and Methodist churches, but we have no information on whether land later occupied by other denominations were gifts or sales. These were private transactions and did not involve the Crown. In 1886, in a statement supporting the issue of a title to the Anglican Church, the Lipseys set out their reasons for donating reserves. Ema Mokena Lipsey said that, in consultation with warden of the goldfields Kenrick, they had set apart certain sections for church purposes, for a school and for Government public buildings’. She also stated that it was for ‘the benefit of my children that I should give these reserves for these purposes’. George Lipsey stated, ‘All these reserves I consider have fixed the township where it now is upon the property of my children and my wife and have made it certain that the property will always be a valuable one’.⁵⁵

Exactly how the decision was made on where to locate the Te Aroha goldfield township has not been recorded. In 1872, Mackay had recommended the Crown purchase of the Ruakaka block (415 acres), a separate block within the Te Aroha block, as a likely site for a township for the goldfields. This block had been awarded by the Native Land Court in 1869 to four Ngati Haua owners but had been omitted from the rehearing of Te Aroha block in 1871. Mackay noted that it was ‘occupied and cultivated by some of the Ngatimaru of Shortland [Thames], who hold it antagonistically to the Grantees’. In 1877, it was still occupied by Ngati Rahiri ‘and it would be impossible to put the certificated native owners in possession without resort to force’.⁵⁶ This effectively prevented development of a township at Ruakaka.

In February 1880, the Crown purchase of Manawaru reserve (161 acres), south of Te Aroha, from the four owners – Keepa Te Wharau, Piniha Marutuahu, Te Karauna Hou, and Aihe Pepene – was completed, for a payment of £1000. The same month, Reha Aperahama

54.L Priest, Te Aroha Primary and District High School, 1881-1981 (Te Aroha: Te Aroha Primary and District High School Centenary Committee, 1981) (doc GI, p 41)

55.Statements of Ema Mokena Lipsey and George Lipsey, 5 August 1886, MA-MLP13/27 (doc GI, PP43-44)

56.Document A10, pt 3, pp 249-251

Figure 85: Te Aroha, circa 1920

had offered for sale to the Crown Te Kawana reserve (250 acres), which had been awarded to him solely. Aperahama was told that his land was not required by the Government, and in April 1880 he agreed to sell to some Pakeha purchasers for £1200 but had to apply to have the restrictions on sale removed. This was declined, as were further applications in 1881 and 1885, although he was told that the Native Land Disposition Bill, then before Parliament, would enable restrictions to be removed to complete the sale. In 1881, Aperahama was heavily in debt and needed the money. The purchasers had paid £900 but the balance would not be paid until the sale was completed.⁵⁷

In November 1880, Wilkinson opposed the removal of restrictions on alienation of the Te Aroha block reserves because they were intended for Maori use and occupation and he wanted to prevent Pakeha speculators moving in:

the flat land suitable for cultivation owned by the natives is not of large extent, and that as the Goldfield at Te Aroha is but newly opened, it is not possible to tell at present upon which portion of the Block the permanent Township is likely to be, and should this proposed

57.Document A10, pt 3, pp 200-201

leasing of large areas be allowed at once, it is not at all unlikely that one or two people would now lease in one Block what in three months hence would be the chosen site for a Township were it available, in which case the Europeans would then be reaping the benefit instead of the natives.⁵⁸

Wilkinson was also concerned about protecting ‘land which the Natives are now cultivating and residing upon, including also their pah’. He also made the remark quoted above in section 16.3.1(3) that he thought them ‘reckless and improvident’ with ‘no thought for the future’, and recommended that removal of restrictions not be allowed unless there was some obvious real benefit. At that stage, survey of the subdivisions of Omahu reserve had not been completed.

We have already noted that in 1902 the balance of section 15 owned by the Mokena whanau was sold to the Crown. George Lipsey seems to have intended that a continuing income for his family would be received from the rents from business and residence site licences in Lipseytown, the western part of Te Aroha goldfield township on section 17. However, by the early 1900s pressures were mounting to sell. In section 2 of the Te Aroha Township Act 1882, the streets within Lipseytown and Morgantown were ‘declared to have been duly dedicated to the public, and shall hereafter be public highways or streets’. No compensation appears to have been paid, but under the mining legislation proclaiming a goldfield and township the Crown effectively took over control of Maori land ceded for a goldfield. Maori owners received the rents from business and residence site licences in the township and a portion of miner’s rights fees (see ch 11).

Beginning with the Crown acquisition of the railway reserve in 1885,⁵⁹ which seems to have been negotiated by agreement with the Lipseys, there was a piecemeal purchase by the Crown of the freehold of the whole of section 17 (fig 85). In 1893, about six acres of hilly land were leased to the Crown for water supply. In 1900, this area was taken under the Public Works Act 1894 for the construction of waterworks for Te Aroha water supply and compensation of £30 was paid by Te Aroha Borough.⁶⁰ In 1905, Ani and Akuhata Lipsey, who were now of age, sold to the Crown their interests in a number of town blocks in Lipseytown. The restrictions on alienation had already been lifted under section 14 of the Native Land Purchase Act 1892, at the Lipseys’ request. Akuhata received £2500 for his town sections, about £330 per acre, a very high price for that time. Ani’s sections brought her £2000 and she also received £266 for 32 acres of hill country surrounding the water supply reserve.

58.Ibid, p 210

59.‘Native Land Taken for a Portion of Waikato-Thames Railway (Morrinsville-Te Aroha Section)’, 13 October 1885, New Zealand Gazette, 1885, pp 1218-1219. An additional area was taken for water service and for a reservoir for locomotives in the 1890s: New Zealand Gazette, 1896, no 32, pp 715-717; ‘Additional Land to be Taken in Te Aroha Township for the Purposes of the Waikato-Thames Railway’, 25 January 1897, New Zealand Gazette, 1897, no 12, p 336. Compensation was paid for all these takings: see doc GI, pp 85-99.

60.‘Land Taken for Waterworks in Block IX, Aroha Survey District’, 23 October 1900, New Zealand Gazette, 1900, no 92, p 1985

In 1906, Ema Lipsey died and George Lipsey and Ani Edwards (nee Lipsey) became executors and trustees of her estate. In another four transactions, a total of about 98 acres was sold in 1907, some to meet Ema’s debts and some sold by Akuhata to cover his debts. By the end of 1907, of the total 400 acres in section 17, over 167 acres had been purchased by the Crown. From 1910 to 1916, in several separate transactions, the rest of section 17 was sold to the Crown (with the exception of George Lipsey’s homestead and about two acres on which the Edwards homestead was built and was later declared general land). Ema Lipsey had left a will which protected the interests of her younger children and grandchildren. Some doubt arose over whether George Lipsey and Ani Edwards had power to sell when further sales to the Crown were negotiated in 1910. This problem was resolved in section 13 of the Native Land Claims Adjustment Act 1911 which over rode the provisions of Ema’s will and empowered the two trustees, with the consent of other beneficiaries of the will, to transfer the title of the land to the Crown, validated previous transactions and permitted subsequent transfers to the Crown in 1915 and 1916.⁶¹

19.6 THE 'AGREEMENT' ON ACCESS TO THE HOT SPRINGS

No documentation for a specific agreement between Maori and the Crown, nor any Government official’s promise about continuing Maori use of the hot springs after the sale of the Te Aroha block, has been found. However, an early local history suggests that both Maori and Pakeha in Te Aroha believed there was one:

Old settlers say that the springs were highly valued by the Maoris. From every part of the [Thames] Valley, and even from far-away Coromandel they came to bathe, and in the comforting pools old warriors, stiffened with age or rheumatism, might be seen soaking themselves all day long. When at length the Springs were handed over to the State, it was especially provided that a certain valued bath should be reserved for the use of the Maoris.⁶²

There is documentation, however, that Maori were complaining about loss of free access to the springs soon after the establishment of the Te Aroha Hot Springs Domain. On 12 February 1885, Pepene raised the issue of the Te Aroha hot springs with the Native Minister, John Ballance, at a meeting with ‘Hauraki Natives’ at Parawai, Thames. The minutes recorded:

He complains that they are charged when they go to bathe there. If this regulation is allowed to exist it is really overriding the original agreement that they had with the

61.Details of all these transactions are set out in document GI, pp 48-84.

62.Te Aroha News, p 273

Figure 86: Bath house 7 and tea kiosk

Government. This statement about admitting them free was only a verbal one. Messrs. Wilkinson and Mackay conducted the arrangement.⁶³

Ballance responded to Pepene’s complaint:

he referred to the hot springs at Te Aroha, and thinks that the agreement has been broken, on the ground that a small charge is made to the Natives for admission to the springs, but the charge only applies to some of the springs; the others are free to all. Then, in the case where the charge is made, no distinction is made between the Europeans and the Natives. The charge is a very trifling one, and has been put on simply to pay the cost of the improvements which have been made. The springs have been enclosed and made private for those who use and enjoy them. Why should the Natives therefore refuse to pay a small sum when the Europeans are willing? I hope they will look at this matter in a reasonable light, and see that what has been made is only to recoup the cost which has been incurred in improving the springs which attract people to the district and really enhance the value of the land which belongs to the Natives.⁶⁴

Spring 7 had been allocated to Maori use and was described in Dr Wrights guide as ‘a bath-house a distance from the rest which is set apart for the sole use of natives’.⁶⁵ Most of the tourist guides did not mention spring 7 at all, but Ingram stated ‘No 7 is a sulphur bath,

63.Pepene, ‘Notes of a Meeting Held at Parawai, Thames’, 12 February 1885, AJHR, 1885, G-I, p 37

64.Balance, ‘Notes of a Meeting Held at Parawai, Thames’, 12 February 1885, AJHR, 1885, G-I, p 39

65.Wright, p 15

and is solely used for persons suffering from cutaneous [skin] complaints’. There was no mention of Maori use. In the detailed analysis of each spring it was noted that ‘Spring No 7 is tepid and not much used’.⁶⁶ In the early 1900s, the Government Balneologist recorded:

Bath No 7 is a small wooden building containing somewhat primitive baths, one reserved for the free use of the Maoris, and one for skin cases. The latter is partly supplied by Spring No 16, a cold saline water containing a certain amount of sulphuretted hydrogen in solution.⁶⁷

Water to fill the baths in bath-house 7 must have all been piped in, since Wohlmann had already noted that spring 7 no longer existed. Henderson and Bartrum commented, ‘Spring No 7 was at one time connected with a bath which was never popular, and no longer exists.’⁶⁸

A bath house had been constructed over spring 7 in 1886 for Maori use, but the building known as bath-house 7 presently on site was erected in 1892. It contained two bathrooms with timber baths’ – the ‘sulphur bath’ and the ‘Maori bath’. In 1905, the timber sulphur bath was replaced with a large iron enamel bath. In the 1920s, a porcelain bath was installed in the Maori bath. By this time, spring 7 was no longer in existence and water was piped in from spring 16. By 1992, when a conservation report was done, the building was described as being ‘in poor condition, although a number of original damaged and decaying elements exist’. The sulphur bath was being used as workshop and storage and the Maori bath had not been used for many years. The recommendations made in 1992 were as follows:

This building’s use historically was exclusively for both Maori people and those suffering from skin disease and is considered offensive amongst local Maori. The proposal to refurbish this building for their continued exclusive use is not now popular.

It is recommended that the building be conserved and refurbished for use as a two roomed bathhouse with baths to accommodate two people. These could be run as part of the thermal pool complex available for 1/2 or 1 hour periods. Reinstating a supply from the No 16 sulphur spring should be included.⁶⁹

In 1999, the building was restored and a new bath installed (the old bath is now in the museum in the Cadman building). The whole area of Te Aroha Domain is protected under the Historic Places Act 1993. However, the issue of Maori use of bath-house 7 and other management issues have not been fully resolved.

66.Ingram, pp 6, 9

67.Wohlmann, p 65

68.Henderson and Bartrum, p 32

69.Goode and Matthews, app 7, register item 7 (Stokes, p 250)

19.7 CROWN AND CLAIMANT SUBMISSIONS

In a statement in response to factual issues identified by claimants in Wai 100 and Wai 663 concerning the Te Aroha hot springs, Crown counsel acknowledged the following:

►The circumstances of the first transaction by which the Te Aroha block and hot springs was transferred, are not entirely clear.

►The Crown accepts that the weight of evidence supports the claim that 20 acres of the Te Aroha Domain, being the land containing the hot springs, was gifted to the nation by Mokena.

►The available evidence also supports the view that the gift was made on condition that local Maori would have ongoing free access to the hot springs.

►The Crown also accepts that Maori were discriminated against in the administration by the Crown of the hot springs and baths.⁷⁰

Having made these concessions, Crown counsel made no specific comment on Te Aroha township or hot springs in closing submissions, although there was a brief discussion of the Native Land Court investigation of the Te Aroha block.⁷¹

In closing submissions for Wai 100, counsel outlined Crown dealings with Te Aroha hot springs, noting that the closing submissions for Wai 663 would deal with these matters in more detail. Counsel for Wai 100 concluded this section on Te Aroha:

The Crown has rightly accepted the allegations of the claimants that land including the hot springs was gifted to the nation by Te Mokena Hau [sic]. It also accepts that the gift was made on condition that tangata whenua were to continue to have free access to the hot springs, that this was not upheld and that Maori were discriminated against in the administration of the hot springs and domain.

Counsel commented that the perception by Te Mokena Hou of ‘a partnership in the joint-management of the Te Aroha hot springs was ignored by the Crown as it progressively sought to remove Hauraki from management and access to their taonga’. This was, therefore, a breach of the principle of good faith by the Crown.⁷²

Counsel for Wai 663 elaborated the main issues in the Ngati Rahiri Tumutumu claims: the Aroha block purchase, including the loss of Te Aroha mountain and the hot springs, and the loss of lands in Te Aroha township. Counsel noted that the Native Land Court had rejected Ngati Rahiri Tumutumu’s repudiation of the overall transaction and awarded them reserves totalling 7500 acres at the Omahu end of the [Te Aroha] block’.⁷³ Counsel also noted that ‘the actual means by which title to the hot springs was transferred to local authorities is unknown’, whether Te Mokena Hou gave the title to them or whether the

70.Paper 2.550, pp 42-43

71.Document AA1, pp 133-134

72.Document Y1, p 158

73.Document Y5, p 3

springs were ‘simply taken by the Crown’. Furthermore, Ngati Rahiri Tumutumu’s understanding that they would maintain free access to the springs had not been acknowledged by the Crown, they had ‘suffered ongoing discrimination in the management of the hot springs from 1878 to the present day’, and the Crown had thereby breached the Treaty principle of good faith and the duty to remedy past breaches.⁷⁴

In respect of Te Aroha township, counsel submitted that ‘the Mokena whanau tried to encourage settlement on their Te Aroha lands’ and thus assured development on sections 15 and 17:

The growing need for land by settlers and the perception by settlers that the growth of the town was incompatible with the existing Maori ownership led the Crown to progressively erode Maori interests in sections 15 and 17 so that by 1917 the Mokena whanau no longer owned the land on which Te Aroha township stood.⁷⁵

Counsel then outlined the various transactions on these two sections and suggested that the claims ‘illustrate the way in which the individualisation separated iwi from their lands and made those put on the title vulnerable . . . and not accountable to the rest of the iwi’. Counsel also submitted that ‘the Crown took advantage of debts incurred by the individual whanau members and acquired their interests’. The Crown also passed legislation which overrode ‘the wills of Rina Mokena and Ema Lipsey which sought to protect the ownership of the whanau lands’. Counsel concluded that the Crown had failed ‘to meet its duty of active protection towards the Mokena whanau in its attempt to undermine what was a working partnership and thereby breached its Treaty obligation to ‘act with utmost good faith’.⁷⁶

19.8TRIBUNAL COMMENT ON TE AROHA MOUNTAIN, THE HOT SPRINGS, AND THE TOWNSHIP

Although the land was sold to the Crown in 1878, it is clear that Te Aroha mountain has remained a maunga tapu, a sacred mountain, in the minds of Ngati Rahiri Tumutumu and Hauraki people generally. The Crown acquired the Te Aroha block in 1878, including both the western side of the mountain and the hot springs at its base. The eastern portion of the mountain, inside the Tauranga confiscation line, had already been acquired by the Crown in 1864.⁷⁷ However, in the subsequent management of both the mountain and the hot springs

74.Document Y5, pp 4-5

75.Ibid, pp 5-6

76.Ibid, pp 13-14

77.Waitangi Tribunal, Te Raupatu o Tauranga Moana: Report on the Tauranga Confiscation Claims (Wellington: Legislation Direct, 2004), pp 177-192

in the Te Aroha Domain, there has been little participation by Ngati Rahiri Tumutumu or recognition of their values and traditions.

The continuity of tikanga Maori has been lost at Te Aroha. The old names of the springs have gone. Only the name of Te Mokena Hou remains, and that because he and his whanau were awarded the particular piece of land surrounding the Te Aroha hot springs reserve. Other Ngati Rahiri Tumutumu whanau were allocated other pieces of land, most of which were later alienated as they lost collective control of their traditional resource. This occurred through the process of individualisation of title in the Omahu reserve, and because the Crown chose to retain section 16, the hot springs reserve, as a public reserve. Because the Mokena whanau were able to acquire title to the surrounding sections 15 and 17, no doubt aided and abetted by George Lipsey, son-in-law of Te Mokena Hou, this one whanau stood to benefit most from the location of Te Aroha township on their lands. There is no documentation of any discussion about how sections in the Omahu Reserve were allocated.

In legal terms, Te Mokena Hou did not ‘give’ the hot springs reserve to the Crown, because this area in section 16 had already been transferred to the Crown in the Te Aroha block purchase. Crown policy on geothermal areas in the 1870s indicates a firm intention to acquire and retain Crown control of Te Aroha hot springs, as well as all springs used for medicinal and therapeutic purposes. In 1865, the Government established the New Zealand Geological Survey, directed by James Hector, who included the analysis of mineral waters in the work of his scientists which appeared in various published reports.⁷⁸ In 1867, the Government funded the New Zealand Institute, which also published reports in its annual Transactions. There was through the 1870s a strong public interest in mineral springs, hot and cold, and an equally strong demand that where these still remained in Maori hands they should be made accessible to the public. In 1880, an agreement was reached with Ngati Whakaue leaders at Rotorua to ensure public access and Government control of the geothermal areas. In the same year, the Te Aroha goldfield was proclaimed, which resulted in Crown control over Maori lands on Te Aroha mountain, Te Aroha township, and the hot springs. In 1881, the Thermal Springs Districts Act was passed, which empowered Government to exert control over geothermal areas. Te Aroha was never proclaimed a district under this Act because it was already Crown land, gazetted as public recreation ground, and was gazetted again in 1882 under the Public Domains Act 1881 to preserve it for public use. We accept, therefore, that Mapuna Turner’s account of Ngati Rahiri Tumutumu oral tradition that the hot springs land was ‘taken’ by the Crown has some force.

Many Ngati Rahiri Tumutumu would have wanted to retain their traditional association with the hot springs. There is no documentation of any agreement between local Maori and the Crown specifying conditions for free and continuing Maori use of the hot springs, but there is good evidence that they had expected to do so as early as 1885. It is quite possible

78.See W FOX, ‘Hot Springs District of the North Island’, 1 August 1874, AJHR, 1874, H-26

that either Mackay or Wilkinson did make some general comment while negotiating for the area about local Maori being able to continue using the hot springs because they would be in public ownership, but neither thought such a comment significant enough to record. The provision of such a limited facility as a single small bath at spring 7, a tepid spring which was no longer flowing by the early 1900s, is a minimal acknowledgement of traditional Maori possession of a valued geothermal resource. In conclusion, it seems to us that the Crown has failed to ensure that the traditional role of Ngati Rahiri Tumutumu as kaitiaki of Te Aroha mountain and the hot springs is recognised and protected in the management of these resources.

We accept Dion Tuuta’s comment that it is a reasonable assertion that Te Mokena Hou offered his family’s land for occupation in order that he might have Pakeha settlement on his land’.⁷⁹ We also note the significant role of his Pakeha son-in-law, George Lipsey, in securing the Te Aroha goldfield township on Mokena whanau land (Morgantown) and the land awarded to his wife, Ema Lipsey, and their two children, Ani and Akuhata. However, we also note that younger children of this marriage were not awarded any interests in land, except in the wills of Rina Mokena and Ema Lipsey, but these were overridden by special legislation, which we consider below. In the 1880s, however, as Tuuta commented, ‘Giving permission for the miners to settle on his family’s land also proved to be a very sound investment for Mokena’s family, for at least the first 20 years after the discovery of gold in Te Aroha’. Crown officials did ‘treat very fairly with the Maori owners of sections 15 and 17 who received all the rents from business and residence site licenses under mining legislation. ‘This would have placed the Lipsey and Mokena families in a very enviable position by the late nineteenth century’ which ‘did come to be envied, and perhaps resented by the citizens of Te Aroha’.⁸⁰

The claimants were critical of the Crown role in the alienation of Mokena whanau lands. The principal complaint is that all the Maori land in sections 15 and 17 was sold to the Crown by 1917. The pressures to sell were complex, and one factor was agitation by Te Aroha residents to freehold their properties. While they may have resented a Maori landlord, they also resisted Crown leaseholds too, and mining tenures only ended in 1920. The Crown also wanted to prevent private speculation on goldfield lands. George Lipsey’s purchase of some interests in section 15 may have been a factor pushing the Crown purchase in 1902 of the balance area not already acquired as an addition to the hot springs reserve. From 1907 on, the Crown acquired the whole of section 17 in a series of separate transactions. The Crown also acquired two town blocks in section 17 as gifts, the school reserve in Church Road (1a 3r 32p) and the Government buildings reserve (two acres) adjacent to Boundary Street. Other sites were donated to churches, but these were private transactions that did not involve

79.Document G1, p 116; Albert Bruce, ‘Report’, 31 August 1914, AJHR, 1914, c-3, p6

80.Document G1, pp 116-117

the Crown. The Crown also acquired land by negotiation under the Public Works Act for waterworks and railway, and compensation was paid for both. The Crown also acquired the streets of Te Aroha for public use under the Te Aroha Township Act 1882. We have noted the garbled local mythology about ‘gifts’ by the Mokena and Lipsey families, but also note that some did take place. We note that, on George Lipsey’s own statement, he was securing the growth of Te Aroha township on family land, indeed an astute investment.

In the 1900s, control of the Mokena and Lipsey family estate slipped out of their hands and the primary factor appears to be debt. We do not have information about the reasons the owners of the balance area of section 15 sold their interests to the Crown in 1902. We do know that as early as 1901 both Ani and Akuhata Lipsey were trying to raise loans with the Native Land Purchase Office against their land interests. Ani, now Mrs Edwards, said it was for investment in her husband’s drapery business and she was loaned £750. We were told that Akuhata’s debts arose from his gambling problem, and he was twice bankrupted, first in 1903 and again in later years. In early 1902 Ema Lipsey was seeking a loan to support her son after his application was first declined, but in late 1903 he did receive a loan of £750. In 1901, Patrick Sheridan of the Native Land Purchase Department in a file note had recorded that George Lipsey was ‘dead-against’ his family alienating land, but they were ‘getting beyond his control’.⁸¹ Because they were both now of age, he could not prevent them contracting for loans and selling their land interests. The first sales of part of section 17 in 1905 by Ani and Akuhata were to pay off these loans and other debts. In 1906, Ema Lipsey died leaving debts, but we have no information about these. The next group of transactions in 1907 were to settle her debts, and there were more sales too. George Lipsey died in 1913 and the remaining lands in section 17 were sold by 1917.

The claimants have suggested that the Crown failed to protect their interests by purchasing all these lands. Certainly, the Crown was in an ambivalent position as the administrator of Te Aroha township mining tenures and as purchaser of the land. Crown officials were anxious to prevent private speculators acquiring interests and were protective to that extent. Sections 15 and 17 were subject to restrictions on alienation by sale or by lease longer than 21 years. There is evidence that Crown officials did attempt to retain the land for Maori, opposed the removal of restrictions, and debated their role. The early attempts by the Lipseys to seek loans were turned down by the Native Land Purchase Department and only granted in much reduced amounts when it was suggested private lenders, possibly speculators, would step in. Some officials were of the opinion that the Crown should acquire all of Te Aroha township land to keep out private investors, and put this option ahead of protecting the ownership of Maori land for future generations. However, if people get themselves into financial difficulties for whatever reason, and sale of their land is their only option, then we must ask what is the responsibility of the Crown toward Maori, given

81. Ibid, pp 50-53

the provisions of article 3 of the Treaty which extends the rights and privileges of British subjects to Maori. This means that laws on liability for personal debt also apply to Maori. It should be noted that no power existed for a share of undivided tribal land to be taken for personal debt. We need to question to what extent can or should the Crown protect individuals from themselves.

A further grievance of the claimants is that the Crown used special legislation to override the provisions of the wills of Rina Mokena and Ema Lipsey in order to complete certain purchases. In section 8 of the 1893 amendment to the Maori Real Estate Management Act 1888 the interests in section 15 of Ani Lipsey, then a minor, were sold to the Crown. In section 13 of the Native Land Claims Adjustment Act 1911, sales of the interests of minors who were beneficiaries of Ema Lipsey’s will were validated. We note that in both cases the special legislation was used to validate transactions that, but for these interests of minors, had been completed, and which had been consented to by all interested family members. We have no evidence of undue pressure being exerted by the Crown in any of these transactions.

The loss of land and the disinheritance of future generations by sale of ancestral lands is a generic issue which we have reviewed elsewhere in this report. The Te Aroha claim is mainly about Mokena whanau lands but many other Ngati Rahiri Tumutumu families, in other parts of Omahu, and in other reserves in Te Aroha block, also sold their lands. The restrictions on alienation imposed by the Native Land Court had no effect if the owners applied for removal for the purpose of selling to the Crown, although Crown officials did try to prevent such sales by delaying permission and warning of the danger of landlessness.

The Mokena whanau were fortunate in that a township was built on their land and that the income from rents and sales was substantial. Other whanau also lost their land with far less payment. The issue really goes back to the creation, by legislation governing the operation of the Native Land Court, of a system of allocating individual interests in tribal land, a property right which the individual owner could dispose of as he or she pleased, without consultation with anyone else. Even George Lipsey, Pakeha father and businessman, could not prevent his son and daughter, Akuhata and Ani, from selling their inheritance to pay their debts.

In summary, we conclude that the Crown had failed to protect the traditional values and kaitiakitanga of Ngati Rahiri Tumutumu in Te Aroha mountain and the hot springs, and had failed to ensure their participation in the management of these places. We note that in the last 20 years Maori have been given a greater opportunity to participate in discussion and consultation. As for the Te Aroha town sections, the Mokena family, like many other whanau in Hauraki, sold their lands, and their descendants join with other Hauraki claimants in suffering the impacts of land loss.

CHAPTER 20
TAONGA AND WAHI TAPU

20.1INTRODUCTION

Many Hauraki claimants have asserted that the Crown breached article 2 of the Treaty in failing to protect various Hauraki taonga and wahi tapu. We discuss these claims together in this chapter because the same legislation is designed to protect both taonga and wahi tapu; they are intrinsically linked. We set out the relevant laws, followed by Crown and claimant submissions on them. We then give our comments and findings on the legislative framework before investigating several specific claims alleging Treaty breach in the care of taonga and wahi tapu.

We use the definition of taonga set out by claimant counsel and adopted by the Crown. Claimant counsel for Wai 100 gave notice that, though the term ‘taonga’ can refer to a wide range of material, cultural, and spiritual phenomena important to Maori, for the purpose of this inquiry they would be focusing on a distinct category of taonga:

the material treasures of the peoples of Hauraki. These include such objects as mauri (special or tapu objects possessing great powers), toki (adzes of pounamu and other materials), matau (fishhooks of various material) patu and mere (prized weapons), taiaha (a type of wooden weapon), and hei tiki (a type of pounamu pendant) for example . . . Taonga may also include large material things such as pare (door lintels) and even wharenui (such as Hotunui). Hauraki have in the past and continue to assert their ownership over such taonga wherever such are now located. This ownership arises out of the relationship between Hauraki people and their tupuna who fashioned, used, and possessed such taonga. Further, taonga are not just material objects. To Hauraki they hold their own mauri (commonly translated as lifeforce). There is accordingly an important and distinctive difference to the Maori spiritual perception of taonga compared with non-Maori views.¹

The claimants allege that the Crown breached the Treaty in failing to prevent fossicking for taonga, in allowing the export of taonga overseas, and in not regulating the custody and ownership of taonga within museums and other institutions within New Zealand.

1.Document Y1, p 192; doc AA1, p 295

The Crown also allegedly failed to protect wahi tapu in a number of ways. The claimants say the Crown failed to reserve wahi tapu as promised when purchasing Maori land, allowed them to be desecrated by fossickers, or modified and even destroyed by developers. The Crown failed to put in place a protective legislative regime enabling Maori to exercise mana over their wahi tapu.

Claimant counsel said wahi tapu can be literally translated as ‘sacred or tapu place[s]’, which might also be taonga. Types of wahi tapu include urupa, places where whenua (placenta) is buried, battle grounds, pa, kainga, and marae: ‘In summary waahi tapu are those sites and places of significance which are sacred to the tribe for cultural, spiritual and historical reasons.’² This definition was also adopted by the Crown, who noted in submission that the Historic Places Trust has registered many diverse sites as wahi tapu, including pa, springs, trees, swamps, hills, reefs, urupa, and marae.³

Claimants explained to us that in their view, taonga and wahi tapu cannot be separated from the environment in which they were created. Their view of taonga is holistic, incorporating concepts of tapu and the wider environment. For example, Liane Ngamane told us of the importance of Tikapa Moana, ‘our most treasured taonga’, the Hauraki Gulf.⁴ David Nikorima Robson explained that ‘The health and well-being of a people, whanau or hapu is reflected by the health of their ancestral lands, water, sites, wahi tapu and other taonga’.⁵ Tane Mokena explained how the ‘aristocratic dead’ of old were buried in mountain caves, and because of this, the mountains have powerful associations for Hauraki iwi. They become literally ‘wahi tapu’ or sacred places (see sec 19.2). As explained by claimant Liane Ngamane: ‘The continued relationships of iwi with their natural resources, knowledge, traditions and cultural heritage forms the very core of our identity’.⁶

Many claimants stressed to us that, though their claims concerning wahi tapu and taonga might appear less substantial in terms of time devoted to them in preparation for hearings, they were in fact central to their claims and sense of grievance. Counsel for 418 said that the issue of protection of wahi tapu is a core grievance, while counsel for Wai 475 said that ‘Maori have a right to have wahi tapu protected. One of the most outstanding features of tikanga is the high value placed on ancient pa sites and urupa. They are tapu places. They represent the record of history and are of the very existential fibre of Maori culture.’⁷ Claimant Shane Ashby told us of his ‘hurt and disgust at the actions of our Treaty partner’, and that the treatment of their urupa ‘is foremost in all our claims’.⁸ Counsel for the Wai 801

2.Document Y1, p 193

3.Document AA1, pp 301, 304-305; doc R19, p 6

4.Document G24, p 11

5.Document X33, p 13

6.Document G24, p 15

7.Document Y3, p 14; doc L13, pp 31-32

8.Document Y4, p 6

claimants explained that, ‘Of all the concerns that Maori have in Treaty terms, wahi tapu rank at the forefront. Every significant claim has, one way or another, a claim against the Crown about wahi tapu’.⁹ We note that the Tribunal has had the importance of wahi tapu and taonga explained to it in previous inquiries.¹⁰ As counsel for the claimants explained to the Te Roroa Tribunal, wahi tapu are key to the identity of iwi:

The physical presence recalls the name. The name recalls the event. The event recalls the whakapapa. The whakapapa recalls the connection between things past and things present. The connection between things past and things present is the element which gives Te Roroa its pride and identity.¹¹

We are asked to consider how the intertwining worlds of people and their cultural and spiritual environment can be effectively translated into legislation, and how, if ownership of the land has been lost, links with the past and future can be preserved and acknowledged. We are also asked to consider whether the loss of much land containing wahi tapu and taonga puts a greater onus on the Crown to ensure the preservation of those remaining. We believe these broader questions must be acknowledged, together with an acknowledgement of the difficulties that contemporary legal systems face in giving recognition to spiritual concepts. We also must acknowledge that much Hauraki land now in private ownership falls beyond the scope of our ability to make recommendations, though we can still discuss the history of a claim where appropriate.

Bearing these limitations in mind, we focus the following discussion on a definition of taonga as articles appropriately governed by the Antiquities Act 1975. For wahi tapu, we follow the Tribunal’s Manukau Report, which advised that the then New Zealand Forest Service ‘should not accept the whole of the former Maori blocks as wahi tapu, simply on the grounds that they were once so described, but should strive to identify those sites that are strictly wahi tapu through burials or through having a particular sacred significance for the tribe’. However, that Tribunal also considered that neither should the Forest Service be restricted by the Historic Places Trust Act 1980 (since replaced by the Historic Places Act 1993).¹² But, while we limit ourselves to a consideration of the legislation and specific claims, we believe it necessary to bear in mind at all times the wider meanings of taonga and wahi tapu.

9.Document Y9, p 42

10.The Waitangi Tribunal is also currently inquiring into general claims of breaches of Maori intellectual property rights, including taonga and wahi tapu, in the Wai 262 (flora and fauna) inquiry. As this inquiry is still under way, the report is not expected for some time. The Wai 262 Tribunal will be inquiring much more comprehensively into the nature of taonga and wahi tapu, as well as legislative protections for such concepts, than we can hope to in this chapter.

11.Waitangi Tribunal, The Te Roroa Report 1992 (Wellington: Brooker and Friend Ltd, 1992), p 211

12.Waitangi Tribunal, Report of the Waitangi Tribunal on the Manukau Claim, 2nd ed (Wellington: Waitangi Tribunal, 1989), p 93

20.2LEGISLATION AFFECTING SPECIFIC TAONGA AND WAHI TAPU

Many Hauraki claimants allege that legislation enacted by the Crown fails to offer adequate protection even to specific taonga and wahi tapu. The Crown has responded with substantial submissions on the intent and comprehensiveness of the relevant legislation, including the Antiquities Act 1975, the Historic Places Act 1993, and the Resource Management Act 1991.

We turn first to the legislation directly affecting taonga. We discuss the passing of the Maori Antiquities Act 1901 and the Antiquities Act 1975, also setting out what we know of the draft Antiquities Amendment Bill (formerly the Protection of Movable Cultural Property Bill). The Crown hopes this new legislation will address many of the acknowledged inadequacies of the 1975 Act. We then discuss the legislation protecting wahi tapu – the Historic Places Act 1993 and the Resource Management Act 1991 – followed by an outline of Crown and claimant submissions. Finally, we offer some comments on the effectiveness of the legislation in relation to the Treaty.

20.2.1Antiquities legislation from 1901 to 1975

The Maori Antiquities Act 1901, sponsored by James Carroll, was supported in Parliament by both sides of the House including Maori members. The two major aims of the Act were to prevent tourists and overseas collectors from removing valuable antiquities from New Zealand, and to further a national Maori museum, where antiquities could be displayed and preserved.¹³ The Government would actively acquire Maori antiquities for the benefit of all New Zealanders and provide for their safe custody. Carroll believed that Maori would support such a museum, and would donate taonga to it, regarding it as an appropriate storehouse. The Act was ground-breaking: the only British precedent was legislation preventing the export of antiquities from Egypt.¹⁴ Speaking in support of the Act, Tame Parata (the member for Southern Maori) said:

no doubt the House will understand my feelings when I say that nothing would ever induce me to part with them [taonga tuku iho] to any stranger, and that it would hurt me more than I can say to think that under any circumstances such heirlooms should pass out of the possession of my immediate family, much less leave the colony.¹⁵

13.In the current legislation (section 2 of the Antiquities Act 1975), ‘antiquities’ are defined as objects older than 60 years of national, historic, scientific, or artistic importance relating to the discovery, settlement, or development of New Zealand: see Nancy Swarbrick, “‘Conserving to this Land What Properly Belongs to It’: The Cultural Significance of the Maori Antiquities Act 1901’, master of public history research essay, Victoria University of Wellington, February 2003, p 8.

14.Ibid, pp 12-13; see also doc R6, app 1; Waitangi Tribunal, The Te Roroa Report 1992, p 212

15.Parata, NZPD, 1901, vol 119, p 233 (Swarbrick, pp 14-15)

Some leading Maori seemed to support the concept of a national Maori museum. In October 1901, Ngati Kahungunu leader Tamahau Mahupuku wrote to Carroll offering the meeting house, Takitimu to the Government, and endorsing the aim of preserving taonga and preventing their export.¹⁶ The Maori newspaper Te Puke Ki Hikurangi gave its support to the Act on 15 November 1901, and at the February 1902 conference of Te Aute College Students’ Association, Apirana Ngata put a motion favouring the museum. In her thesis on the 1901 Act, Nancy Swarbrick comments that a ‘different cultural concept of ownership may have been behind this Maori support for a national museum ... By granting the state guardianship of some taonga, Maori would not have seen themselves as relinquishing ownership’.¹⁷

The 1901 Act’s effectiveness was limited. The new Maori museum did not eventuate (the existing colonial museum was re-designated as a national museum from December 1903), and no penalties were provided for any breaches of the Act. Revision of the Act was urged from an early date. Revised regulations were gazetted in April 1904, an amendment Act was passed the same year, followed by consolidating legislation in 1908.¹⁸ But despite the amendments, the export of ‘antiquities’ was not significantly halted, and surviving records indicate that between 1904 and 1913, practically no permits for export of antiquities were refused.¹⁹ Swarbrick comments that ‘the technical inadequacies of the Act became clear’. But though the Act was ‘fundamentally flawed’, the Government did not address the inadequacies until 1962.²⁰

By the 1920s, the illegal export of antiquities was viewed as a growing problem. The Board of Maori Ethnological Research (established mainly through the initiative of Apirana Ngata) gave some Maori input into policy on these matters. It supported a resolution to register Maori artefacts held privately, and also recommended that newly found artefacts should become the property of the Crown. Swarbrick surmises that this suggestion arose from Maori dismay at fossicking on tapu sites: Pakeha collectors often would not recognise

16.See Janet Davidson, ‘Wahi Tapu and Portable Taonga of Ngati Hinewaka: Desecration and Loss; Protection and Management’, report commissioned by Ngati Hinewaka Claims Committee, February 2003 (Wai 863 ROI, doc A67), esp p 5

17.Swarbrick, pp 29-30

18.Maori Antiquities Amendment Act 1904; Maori Antiquities Act 1908; doc R6, pp 24-25, app 1

19.Swarbrick, pp 34-36. Swarbrick gives a couple of high-profile examples of the limits of the Act. In February 1902, Mr C E Nelson of Rotorua offered a carved house to the Government for £1200, which the Government refused on the advice of Stephenson Percy Smith. Nelson then applied for permission to export under the Act, having found a buyer overseas, but though permission was refused, the house had left New Zealand by May 1904. The Crown Law Office opined that the Act required the house to be offered to the Government, but the offer having been refused by the Government, the Act did not then require the owner to get permission before exporting. Then, in 1909, the Government’s own Tourist Department exported a carved house for display at an exhibition without first applying for permission. Without amending the Act, little could be done under the regulations to tighten up the requirements for notification of intent to export: Swarbrick, pp 34, 36.

20.Ibid, pp 37, 39

the concept of tapu, or even Maori ownership of artefacts. Not until the 1975 Act was prima facie ownership of newly found artefacts vested in the Crown.

From the 1920s, growing awareness of the need to preserve cultural artefacts and antiquities relating to Pakeha culture and the settlement of the colony increased with the centennials of settlement in the 1930s and 1940s. By the 1950s, this interest led to the Historic Places Act 1954 which also established the Historic Places Trust, the establishment of the New Zealand Archaeological Association in 1955, and the move to bring the National Library Service, the Alexander Turnbull Library and the General Assembly Library together into one collection. A review of the Maori Antiquities Act, and particularly what protection it offered for less clearly defined antiquities (such as manuscripts), was begun in 1961, leading to the repeal of the Maori Antiquities Act and the passing of the Historic Articles Act 1962. Swarbrick comments that this sequence represented ‘an expression of the increased value placed on national heritage’, though some legislative ideas first proposed in the 1920s did not achieve recognition until the 1975 Act.

Many of the fundamental issues behind the 1901 Act and recent legislation remain the same, according to Swarbrick, although changing attitudes will demand different responses in new legislation.²¹ Swarbrick concludes that, although the 1901 Act indirectly supported the Maori aspiration of retaining taonga in the country, it nevertheless:

stopped far short of recognising the desire and right of Maori to have full control over their taonga. Some prominent Maori continued to believe that government intervention was the best way to protect antiquities. The state’s role as ‘guardian’ of the taonga was not apparently challenged seriously until the 1980s, when the Te Maori exhibition exposed clashing cultural understandings of ownership.²²

Louise Furey, an expert archaeologist and witness for several Hauraki claimant groups, says that, though the legislation to 1962 was designed to slow down or prevent the export of treasures from New Zealand, nothing in it prevented the digging up of artefacts. While the Maori Councils Amendment Act 1903 did provide for prosecuting for digging in gazetted burial sites, no heritage legislation before 1962 offered protection against fossicking. We note, however, that the Te Roroa Tribunal considered that section 147(2) of the Criminal Code Act 1893 might have covered the desecration of urupa. It provided that anyone who ‘Improperly or indecently interferes with or offers any indignity to any dead human body or human remains, whether buried or not’, was liable to two years’ imprisonment with hard labour.²³

21.Swarbrick, pp 45-46

22.Ibid, p 50

23.Waitangi Tribunal, The Te Roroa Report 1992, p 215

20.2.2The Antiquities Act 1975 and proposed amending legislation

The single most significant impact of the Antiquities Act 1975 remains the vesting of all newly found artefacts (from 1 April 1976) in the prima facie ownership of the Crown. This is subject to various provisos, including actual or traditional ownership being established by the Maori Land Court. The new Ministry for Culture and Heritage (established in 1999) has responsibility for the administration of the Antiquities Act, previously administered by the Department of Internal Affairs. In practice, the finder of an object notifies the Ministry of the find, and the Ministry has responsibility for deciding who should have custody.

With the vesting of prima facie ownership in the Crown, only custody of objects found since 1 April 1976 can be granted to registered collectors, with the exception of Maori Land Court ratification of Maori ownership of specific taonga. Otherwise, ownership remains with the Crown. Such objects can not be sold. Objects found since April 1976 are assigned a ‘z’ number by the Museum of New Zealand Te Papa Tongarewa. If Maori wish to have either custody or ownership of artefacts, they must be registered collectors. Items found prior to 1 April 1976 remain in the ownership of those in possession prior to 1 April 1976 and can still be sold by licensed dealers to registered collectors, with the permission of the Ministry. Such ‘saleable’ items must have a ‘y’ number from Te Papa. The Act also establishes strict criteria for the export of antiquities from New Zealand.²⁴

Archaeological sites cannot be deliberately disturbed in order to find artefacts, without the prior approval of the Historic Places Trust. The trust has its own policy on consultation with iwi about custody and the final repository of taonga, if found during archaeological investigation of a site.²⁵

While Crown counsel submitted that the 1975 Act is consistent with article 2 of the Treaty and the guarantee to Maori that they can possess their taonga for as long as they wish, counsel stressed that the 1975 Act is undergoing extensive review and will be amended. Along with the establishment of the Ministry for Culture and Heritage, the amendment Act will continue the process of strengthening the Government’s commitment to and effective protection of New Zealand’s culture and heritage’.²⁶

Crown counsel summarised what fields the new antiquities legislation may cover:

improving cultural heritage export regulation, complying with the requirements of international agreements that provide reciprocal arrangements for the seizure and return of cultural objects that have been illegally exported, providing protection against the wilful

24.The Ministry of Culture and Heritage’s website contains a description of the existing Antiquities Act 1975 and the proposed changes to it (as of 2003): http://www.mch.govt.nz.

25.Historic Places Act 1993, S18; doc G8, p 8

26.Document AA1, p 299

damage of nationally significant cultural heritage objects, and ensuring that penalties provide better protection for cultural heritage objects.²⁷

The Bill was introduced into the House in February 2005. Submissions on changes to the 1975 Act were first called for in 2003, and are set out in a paper entitled ‘Proposed Amendments to the Antiquities Act 1975’, available from the Ministry’s website. The new policy has apparently had input from heritage and arts sector working groups, a Maori reference group, Government departments, and Crown agencies with heritage responsibilities.²⁸

The Ministry’s website summary suggests that the Act be amended to address a number of long-standing problems’ by addressing four main areas of improvement: enhanced export regulation; New Zealand participation in international conventions; enhanced Crown protection for Maori cultural heritage objects’; and ‘increased penalties’. Most importantly from this inquiry’s point of view, ‘the Act does not require the Crown to take active steps to establish the actual or traditional ownership of newly found Maori artifacts through the Maori Land Court’.²⁹

It is unnecessary for us to examine every area of improvement in this report, but we do discuss the proposals directly relating to enhanced protection for Maori. Changes here include a new definition of ‘Maori cultural heritage objects [or] Nga Taonga Pumau a te Maori’: taonga will no longer be a subset of ‘antiquities’. ‘Maori will determine which objects are of significance or value to them’, within the criteria that articles to be protected must be at least 60 years old, and have been handed down a descent line of not less than two generations.

It is planned that the chief executive of the Ministry will be required to consult with Maori when taonga are found, giving:

statutory recognition to current operational practice whereby Maori in the area of a find, and others as appropriate, are consulted as to custody and ownership of that find. This requirement will ensure that all the relevant provisions of the Act are made known to Maori when such an object is found and that Maori are fully informed of their statutory right to apply for the object’s ownership through the Maori Land Court.³⁰

We understand this to mean that the Crown will require procedures to be in place, through legislation, that automatically establish a consultation process with tangata whenua when taonga are newly found. Such a process will necessarily include publication of the process so that Maori are fully informed of their rights to claim either custody or ownership (or both) of taonga, and of the choices available to them.

27.Document R19, p 5; doc R6, p2o; doc AA1, p 300

28.Ministry of Culture and Heritage, ‘Proposed Amendments to the Antiquities Act 1975’, May 2003

29.Ibid, pp 4-6

30.Ibid, p 11

The chief executive of the Ministry will have the responsibility of caring for newly found taonga. Prima facie ownership will remain with the Crown, as a protection until actual ownership has been determined by the Maori Land Court, though it seems that there will be no absolute requirement for determination of ownership to be submitted to that court.³¹ Crown prima facie ownership is not meant as an assertion of actual ownership, rather as a protection for Maori ownership ‘by preventing finders or landowners gaining ownership through common law’. The processes available to the Maori Land Court in respect of ownership of taonga will be enhanced through links to sections 30 and 33 of Te Ture Whenua Maori Act 1993, giving the court the power to mediate disputes relating to the representation of Maori in court issues, and providing for the chief judge to appoint additional members with relevant knowledge and experience of the issues.³²

Aside from the publicly available summary discussed in this section, we have not seen any other material on the revision of the Antiquities Act 1975 since the Crown presented evidence to the Hauraki inquiry in 2001.

20.2.3The Historic Places Act 1993 and the Resource Management Act 1991

The legislation protecting wahi tapu was explained by Mark Lindsay and Rick McGovern-Wilson, witnesses for the Crown, as well as set out in some detail by the Crown both in relation to wahi tapu and environmental matters (see ch 24). The Crown submits that adequate procedures exist under the Historic Places Act 1993, combined with the Resource Management Act 1991 to protect wahi tapu and wahi tapu sites. The Historic Places Act provides for the protection of archaeological sites, as well as offering a system for regulating investigations and modifications to archaeological sites monitored by the Historic Places Trust. The Act also establishes the historic places register, ‘an important protection mechanism’, and contains provisions for registering wahi tapu and wahi tapu areas. The Historic Places and Resource Management Acts are designed to work together to provide for the protection of archaeological sites and wahi tapu by way of heritage protection orders in district plans.³³

The legislation is necessarily complex, detailed, and technical in some aspects. In the following paragraphs, we outline some of the more important provisions relating to wahi tapu in order to give some idea of the protections offered under the legislation. According to

31.We note that claimant witness Louise Furey was under the impression that the significant change proposed in the new Bill would be the vesting of ownership in iwi. While we do not in fact understand this to be so on the information we have seen, we note that, at any rate, Ms Furey considered that such a step would not be a simple issue, because she was aware of examples already existing outside of Hauraki ‘where disputes between hapu or iwi have resulted in the Maori Land Court being the adjudicator, and objects placed in a neutral museum for safekeeping’: doc G8, pp 7-8.

32.‘Proposed Amendments to the Antiquities Act 1975’, p 11

33.Paper 2.227, pp 23-25; paper 2.550, p 45; doc R19, p 3; doc AA1, p 295; see also doc R6, pp 4-15

the Crown’s detailed appendix on the relevant legislation, the Resource Management Act requires territorial authorities to prepare district plans, in which provision is made for matters set out in the second schedule to the Act. This includes ‘Natural physical, or cultural heritage sites and values, including landscape, land forms, historic places, and wahi tapu’. In preparing district plans, territorial authorities must have regard to relevant planning documents from affected iwi authorities as well as to relevant entries in the historic places register. Any individual can have input to the creation or amendment of a district plan. A breach of the district plan is punishable by imprisonment of not more than two years, or a maximum fine of $200,000. If the offence continues, a fine of $10,000 for every day of the continuing offence is allowed. For the most effective protection, wahi tapu should be recorded in district plans under section 73(2) of the Resource Management Act. This will alert the consent authority of the existence of the wahi tapu should it have to consider a resource consent application for that area.³⁴ Applications to the Historic Places Trust for authority to modify, damage, or destroy an archaeological site are made on detailed forms to elicit as much information as possible, and include a requirement for all applicants to consult with tangata whenua, even when the site is of European and not Maori origin. The trust does not usually consult directly with tangata whenua, as the onus is on the applicant to do so.³⁵

The historic places register is established under section 2 of the Historic Places Act 1993. Anyone can apply to have registered a wahi tapu (‘a place sacred to Maori in the traditional, spiritual, religious, ritual, or mythological sense) or wahi tapu areas (‘an area of land that contains one or more wahi tapu’). To date, the trust has registered a wide range of wahi tapu, such as pa, springs, marae, trees, swamps, hills, urupa, and reefs. In order that a level of confidentiality can be maintained if desired, the register only requires the general location and nature of the wahi tapu.³⁶

Under the Resource Management Act, district plans must have regard to the historic places register. When wahi tapu are registered, notice is given to the owner of the land on which they are located, as well as to the holder of any interest in them, and to the relevant territorial authorities. The Maori Heritage Council of the Historic Places Trust must give written notice of a registered wahi tapu to the territorial authority in whose area the wahi tapu is located. The Maori Heritage Council can make recommendations as to the appropriate steps a territorial authority should take to assist the conservation and protection of the site. Territorial authorities must have ‘particular regard’ to such recommendations.³⁷

Provision also exists for emergency ‘interim registration’ of wahi tapu under sections 26 to 28 of the Historic Places Act. While under such interim registration, the consent of the

34.Document R19, app; doc AA1, pp 302-303

35.Document R6, pp 9-10

36.Document R19, app; doc AA1, pp 304-305

37.Document R19, app; doc AA1, pp 302-305. We note that, when Taimoana Turoa wrote his invaluable evidence for the Hauraki inquiry Nga Iwi o Hauraki: The Iwi of Hauraki (doc A6), Mr Turoa was a member of the Maori Heritage Council, Pou Here Taonga. This was a position he had held since 1994.

Historic Places Trust is required for, among other things, any modification or damage to the site, subdivision of the land, or any change to the character or use of the land. An interim registration lapses six months after notice is given or on the site becoming fully registered. It is an offence to destroy, damage, or modify any site or thing vested in the trust without its authority (s97) or to destroy, damage, or modify any land subject to a heritage covenant (s98), any archaeological site (s99), or any historic place or wahi tapu that has interim registration (s103). Under section 2, the term archaeological site’ is given a wide definition, including any place in New Zealand that was associated with human activity that occurred before 1900. ‘Archaeological sites’ can therefore include wahi tapu.³⁸

Crown counsel submits that sections 62 and 67 of the Resource Management Act, providing for regional policies and plans, are of some importance in the protection of wahi tapu:

The significance of these statements are [sic] that they seek to achieve the promotion of sustainable management of natural and physical resources (the purpose of the Act as set out in s 5) by providing an overview of resource management issues in a region, and policies and methods to achieve integrated management (see s59 of the [Resource Management Act]).³⁹

In addition to the above procedures, both the Resource Management Act and the Historic Places Act provide for heritage orders. These orders relate to specific pieces of land and are marked on district plans. Under section 193 of the Resource Management Act, if a heritage order is in a district plan:

then, regardless of provisions of any plan or resource consent, no person may, without the prior written consent of the relevant heritage protection authority named in the plan in respect of the order, do anything [including subdivide or change the character of the site] that would wholly or partly nullify the effect of the heritage order.⁴⁰

There are various ways to obtain a heritage order. A heritage protection authority can require a territorial authority to notify a heritage order on a district plan.⁴¹ If a heritage order is breached, then section 9(2) of the Resource Management Act is necessarily breached. Penalties under that Act may result, and a separate penalty under section 105 of the Historic Places Act also applies. In addition to any penalty, a court may make an order suspending for up to five years the exercise of any rights under a resource consent or under the district plan.⁴²

38.Document R6, pp5~6; doc R19, app; doc AA1, pp304-305; doc R33, p 27

39.Document AA1, p 302

40.Ibid, p 306

41.There are four kinds of heritage protection authorities: Ministers of the Crown and local authorities acting either on their own motion or on the recommendation of an iwi authority; the Historic Places Trust; and body corporates approved as heritage protection authorities under section 188 of the Resource Management Act 1991.

42.Document AA1, pp 306-307

20.2.4The claimant case on the legislation protecting taonga and wahi tapu

The importance of taonga and wahi tapu to Hauraki Maori was discussed in the introduction to this chapter. We consider that the Crown is obliged to protect the concepts, objects, and special places which encapsulate the interrelationship between Maori and their environment, and constitute the core of their identity, as described in section 20.1. Claimant submissions suggest that the legislation has not managed to achieve the balance required.

(1) Taonga

Claimant witness Louise Furey argued that in practical terms the Antiquities Act 1975 has not worked well in preventing either the fossicking of sites or the illegal export of taonga from New Zealand. She said that inadequate staff and resources were provided by the Department of Internal Affairs, and from 1999 by the Ministry for Culture and Heritage; neither Ministry has much ability to police the Act. Furey cited the example of the Opito carved canoe prow, which was illegally exported from New Zealand between 1988 and 1994. While Interpol were alerted, it is unlikely the piece will be found and returned to New Zealand, and no attempt has been made within New Zealand to charge the parties involved.⁴³

Furey also discussed the role of museums in caring for taonga, and the developing sense of Maori as partners. Auckland Museum, which has an Iwi Values Manager and a Taumata-a-Iwi group to oversee issues related to taonga, holds the greatest collection of Hauraki taonga. The museum has a process of consultation with tangata whenua, and encourages the Ministry of Culture and Heritage to trace the appropriate iwi if taonga subject to the 1975 Act are brought to the museum. There are specific examples of cooperation between the museum and Hauraki Maori. For example, a 1997 protocol was agreed between the Taipari whanau and the museum over the care of the meeting house, Hotunui, held by the museum (discussed briefly in section 20.3). Similarly, the museum sought the permission of the trustees of Oruarangi Pa (see sec 20.3(1)) before the museums collection from that site was researched and published.⁴⁴ However, there has not always been consistency in how the museum has approached collections, with the archaeology and anthropology departments demonstrating different standards. Sometimes the integrity of collections has not been maintained, with different categories being held by different departments.⁴⁵ Of the Hauraki items held at Auckland museum, only a small number of objects are identified as taonga, rather than ‘everyday’ items. Only two taonga are held subject to the Antiquities Act 1975, the majority being deposited with the museum under earlier legislation.

43.Document G8, pp7-8; doc A7(a); doc R6(c); doc 1133, pp 8-11; doc Y9, p 59

44.The museum holds 2303 out of the known 3264 artefacts found on the site, which was the subject of fossicking by several individuals, as set out above. Artefacts from Oruarangi are widely distributed in museums around the globe.

45.Document G8, pp 9-15

Both overseas and smaller provincial museums also hold Hauraki artifacts. Furey expressed concern that regardless of intent, provincial museums are often unable to take proper care of such artefacts, and do not have consistent standards or collection of information relating to artefacts. An unknown number of Hauraki artefacts also remain in the hands of private collectors.⁴⁶

Furey argues that Maori taonga are really taonga for all New Zealanders, in the sense that they can help us all reach a greater understanding about Maori settlement of Aotearoa. Also, taonga from the past can be used to teach traditional methods of manufacture today, in the absence of the ancestors who made them. This will encourage interest in the arts, and help to keep Maori culture dynamic and changing. ‘Thus, the artefacts become true treasures, speaking across the generations’.⁴⁷ We agree, but also note that specific taonga can have strong local associations and carry important aspects of the identity of particular Maori groups.

Counsel for Wai 100 gave comprehensive submissions on the legislation for taonga and wahi tapu, in addition to submissions on the particular claims they represented. Other claimant counsel gave submissions on behalf of the particular claims they were prosecuting, but relied on the Wai 100 argument for general submissions on the legislation. We set out here the relevant claimant submissions on the legislation for taonga and wahi tapu.

Counsel observed that the Crown did not deny some past Treaty breaches in respect of wahi tapu and taonga, and agreed that the situation had improved since the introduction of the 1975 legislation. But counsel said the Crown was silent as to how past breaches could be rectified. While the legislation could offer some protection today, this ‘is reliant upon adequate resourcing which to date has not been forthcoming’.⁴⁸

With respect to taonga in particular, claimant counsel described some of the different cultural approaches to the protection of precious artefacts. Maori buried taonga in the ground, thereby placing taonga into the care of Papatuanuku. Here, 'under tikanga Maori, the taonga were safe’.⁴⁹ We understand this to imply that when taonga were fossicked from wahi tapu, they were not being discovered so much as taken from the care of Papatuanuku.

Claimant counsel acknowledged that a minority of taonga were traded in the past by those entitled to do so, and ‘it is accepted that in such circumstances there can be no claim against the Crown. But the majority of traded taonga were acquired from the wrong people, through desecration and pillaging of wahi tapu, or were treated as absolutely sold when they had in fact been intended as a symbolic part of a customary exchange, to be returned later. ‘There is simply no evidence that the Crown ever established any form or mechanism

46.For example, the carved Miranda pataka front, purchased in 1891 from a private dealer in Auckland by Sarah Bernhardt. The panels of the pataka were separated at some point, are now in at least three separate museums in New Zealand and Switzerland, and have been altered: doc G8, pp 15-16.

47.Document G8, pp 16-17

48.Document Y1, p 191

49.Ibid, p 193

to distinguish between fair acquisition of taonga and taonga acquired through other means nor was there any mechanism until 1901 by which the export of taonga could be restricted.’ Instead, the common law of ‘trover’ applied (finding and keeping personal property, subject to any later assertion of rights by the ‘true’ owner.) This created two problems for Maori: the first was that, even if Maori were aware that a find had been made, it was hard to prove ownership of an artefact; the second was that Maori were in the position of having to contest every discovery. ‘The law rewarded those engaged in “fossicking” wahi tapu site for taonga’, regardless of the tapu of the sites. The 1975 Act had not much improved matters, because there was no express obligation on the Crown to consult with iwi. In addition, Hauraki kau-matua have to become registered collectors to take custody of their own possessions.⁵⁰

Claimant counsel did not consider the Crown’s prima facie ownership of taonga to be a protection. Counsel stated that ‘it is hard to see how the deeming of a property right can fulfil a protective function ... it is incumbent on the honour of the Crown to develop a better model following full consultation with Maori’. Counsel suggested reversing the presumption by automatically deeming that newly found taonga belong to the tangata whenua of the area in which it is discovered unless it can be proven otherwise, referring the Tribunal to the model for the protection of artefacts agreed upon by the Nisga’a nation of northern British Columbia with the Canadian and provincial British Columbian Governments.⁵¹ Counsel submitted that this would be a more appropriate exercise of the Crown’s protective function.⁵²

In addition, counsel said that the Crown does not adequately police the illegal export of taonga (referring for confirmation to the example of the Opito prow, discussed by Furey above, and in the specific taonga claims below), and only low levels of fines are applicable in any case. Moreover, because the 1975 Act only applies to objects found since that date, the general trade in taonga unearthed before 1976 continues. In addition, the Act does not comply with international conventions. The Crown should work with Hauraki Maori to encourage or negotiate the return of taonga held in overseas museums.⁵³

In summing up their position in regard to taonga, counsel stated: ‘the evidence shows clearly that at no time since the signing of the Treaty has the Crown taken all appropriate measures to actively protect taonga Maori, a failure that has had a particular adverse effect on Hauraki.’ As a consequence of this failure, many Hauraki taonga are now scattered in collections throughout the world: ‘While it is accepted that the Crown has little ability to compel the return of such, it is nonetheless submitted that the Crown has not done enough to obtain the return of least some of these taonga.’⁵⁴

50.Document Y1, pp 193-195

51.Ibid, pp 195-197; doc H9, pp 9-10

52.Document Y1, pp 195-196

53.Ibid, pp 195, 197-198

54.Ibid, p 198

(2) Wahi tapu

Archaeologist Louise Furey provided evidence on wahi tapu, both for several specific Hauraki claimant groups and for the broad Wai 100 claim. She described intense settlement of the coastline and fertile valleys of Hauraki over many generations, evidenced by many pa, urupa, and other wahi tapu. Sand dunes on the eastern side of the Coromandel Peninsula were used as burial areas and many koiwi had been found there. Many sites have been destroyed or modified by farming, exotic forestry and housing development.⁵⁵

The New Zealand Forest Service undertook archaeological surveys in the 1980s before planting in Hauraki, in line with the Historic Places legislation.⁵⁶ Furey comments that such surveys were bound to detect a high number of sites, as burning off vegetation gives good visibility of underlying land uses. As a result of these surveys, the Forest Service excavated and preserved some sites, and over 6000 others were listed with the New Zealand Archaeological Association.⁵⁷ A total of 336 archaeological sites were found in the Whangapoua Peninsula alone. Furey found that these included few specific settlement sites mentioned in nineteenth century Native Land Court records. She assumes that the lack of local knowledge about sites was due to the dislocation of Ngati Huarere from their lands early in the nineteenth century (presumably in reference to pre-Treaty attacks by Nga Puhi), as well as high death rates due to introduced diseases.⁵⁸

Furey acknowledged that the legislation can be effective in protecting wahi tapu sites, though she repeatedly stressed:

the inability of the Historic Places Trust to protect and preserve evidence of past uses of the landscape. This can be attributed directly to a lack of adequate funding from the Crown to the organisation to administer the provisions of the Historic Places Act, and to ensure compliance by landowners and local authorities.⁵⁹

Another expert archaeologist witness for the claimants, Dr Caroline Phillips, gave evidence that 238 sites – perhaps two-thirds of the sites in that area – along the Waihou River have been destroyed or damaged. Claimant counsel stated in reference to this that:

the Crown has not sought to deny its failure to protect waahi tapu in the past, a breach which must be taken to be well founded, but has held up present legislation [ie, the Historic

55.See docs G8, K3, K13

56.In fact, Ms Furey worked as an archaeologist for the New Zealand Forest Service in the early 1980s herself, when the service was mapping sites: doc K13, p 2. In addition to the requirements of the historic places legislation, the Te Roroa Report 1991 noted that the Forests Act 1949 and the 1973 and 1976 amendment Acts, ‘provided for protection of areas of scientific, historical, cultural, educational, recreational, scenic and aesthetic interest in state forests’: Waitangi Tribunal, The Te Roroa Report 1991, p 231.

57.Document B1, p2; doc M25, p 41; doc R33, pp 14, 17, 26

58.Document K3, pp 3-8

59.Ibid, pp 11-12; doc K3(a)

Places and Resource Management Acts] as protecting those waahi tapu that still remain. . . . It is submitted that neither Act provides the type of protection sought.⁶⁰

Claimant counsel argued that the Crown has failed to protect wahi tapu in two significant ways. First, the Crown has failed to protect Hauraki ownership of their wahi tapu or of the land surrounding wahi tapu. Examples of where Hauraki have little control over the desecration of their urupa or are unable to protect their wahi tapu because ‘the ownership of the land is in the hands of others’ is given in the evidence relating to specific claims (see below). Secondly, the Crown has failed to provide appropriate mechanisms to protect wahi tapu from damage and desecration.⁶¹ Counsel noted the salient features of the relevant legislation outlined by the Crown, as above, but argued that the legislation is inconsistent with the Treaty because the statutory bodies are ‘insufficiently funded’ to fulfil their functions and because ‘The Act fails to provide Maori with any power of management or control over their waahi tapu’.⁶²

According to claimant counsel, funding for heritage protection was and is inadequate, remaining at the same level since 1997. The inadequacy of the funding ‘can be seen from the poor recording of the Trust’s register of sites’, with only 79 sites, including nine wahi tapu, registered by the Historic Places Trust out of the 6000 known archaeological sites. Even the registered sites are inadequately protected, as registration does not provide protection per se, rather merely notifies landowners of the existence of the site. These 79 sites are the only ones in Hauraki to which territorial authorities must have regard. Due to the inadequate funding of the trust, counsel claimed that the trust is not able ‘to carry out its functions under the Act’, noting comment by Ms Furey that the trust was no longer able to conduct archaeological surveys. ‘The result is that waahi tapu continue to be destroyed and damaged by building and other activities without either the knowledge of the Trust or the Councils administering resource consents under the Resource Management Act.’

The lack of adequate funding also impacts on the trust’s ability to use heritage orders under section 5 of the Resource Management Act. Heritage orders are strong protection mechanisms, but require considerable financial outlays. ‘Thus, funding may be a determining factor for protection rather than the importance of the waahi tapu or site itself.’ Adequate funds to compensate private landowners of wahi tapu are also lacking.⁶³ Counsel for Wai 475 also stressed the lack of funding, while acknowledging that ‘the [Historic Places Act] attempts to assist Maori in the protection of these places. But this is not enough.’ Counsel referred to the evidence of Ms Furey that sites are being lost due to inadequate funding

60.Document Y1, p 200

61.Ibid, pp 198-199

62.Ibid, pp 200-202

63.Ibid, pp 202-204

to the Historic Places Trust and observed that, ‘once these sites disappear, they are gone forever’.⁶⁴

Claimant counsel noted that only 91 applications to modify Hauraki sites had been processed by the trust from 1993 to December 2001, and only 27 authorities had been issued to modify archaeological sites in eastern Coromandel, mostly with regard to forestry from 1990 to 2000. Only two authorities had been issued for the Whangamata region since 1986, though the region had experienced significant growth. This ‘suggests that numerous sites would have been damaged or destroyed but would have been unreported or undetected in the system’. Moreover, ‘The very fact that the Historic Places Trust has full power to grant authorities for modification of sites or waahi tapu, notwithstanding the objections of local iwi, is also a matter of real concern to Hauraki. Under section 12 of the Act iwi are merely consulted where applicants seek to modify sites. Iwi consent is required only for applications to carry out scientific investigations of sites.⁶⁵

In sum, counsel argued that the legislation cannot address the concerns of Hauraki Maori comprehensively. ‘It is accordingly submitted that neither the Historic Places Act nor the Resource Management Act are appropriate mechanisms for the protection of waahi tapu that comply with the Crown’s duty to actively protect Hauraki and their taonga including waahi tapu.’⁶⁶

20.2.5The Crown case on the legislation protecting taonga and wahi tapu

(1)Taonga

The Crown submits it is acting in accordance with Treaty principles by putting in place statutory systems through the Antiquities Act 1975 and the Historic Places Act 1993 for the protection of taonga. The Antiquities Act is consistent with the Treaty ‘by enabling the Crown to act in a “fiduciary” capacity . . . and by providing a mechanism for Maori to have their interest in an artefact recognised and enforced’.

Crown counsel argues that the vesting of prima facie ownership of newly found artefacts in the Crown (providing they are not recovered from the grave of a known person) ensures that no individual can claim an interest in an artefact merely because of ownership of the land on which it was found. However, any person, including the Minister for Arts, Culture and Heritage may apply to the Maori Land Court for determination of actual or traditional ownership, or rightful possession and custody. Counsel notes that use of the term ‘may’ in section 11(2) of the Act suggests that the Minister has a discretion about whether to apply to the Maori Land Court. ‘Exercise of this discretion is contingent on the existence of a prior claim to ownership, possession or custody.’ The ‘prior claim’ does not have to be formally

64.Document L13, pp 31-32

65.Document Y1, p 204

66.Ibid, pp 204-205

notified, rather the Minister must be aware of the claim. Custody is in ‘most cases’ granted to tangata whenua.⁶⁷

Section 12(1)(e) of the 1975 Act confers jurisdiction on the Maori Land Court to vest an artefact in a person as a trustee for its safekeeping and protection. ‘Thus, a distinction is made between custody and ownership.’ The Crown rejects claims that the vesting of prima facie ownership in the Crown is a breach of the Treaty: ‘The concept of prima facie Crown ownership can in fact facilitate the return of taonga to Maori.’⁶⁸

With regard to the export of artefacts, permission to export must be obtained from the chief executive officer of the Ministry. The chief executive is likely to seek expert advice, and ‘where possible’ would consult with relevant tangata whenua. Exportation will only be allowed in exceptional circumstances. Provision exists for the seizure of artefacts that might be illegally exported. The Crown acknowledges that there are limitations to the effectiveness of the Act in preventing export because of the low level of fines and the high cost of prosecuting. ‘In practical terms it is difficult to prevent people from seeking to illegally export artefacts when there might be a huge monetary return, despite the deterrent of large fines’. The Opito canoe prow provides an example. But the Crown does also use other resources in addition to those on offer by the Ministry, such as the New Zealand Customs Service, shipping agents, and freight forwarders.⁶⁹

Crown counsel also acknowledged that ‘an issue arises in the Antiquities Act as to whether there are sufficient resources for ensuring there has been adherence to the requirements of the legislation and implementation of its provisions’. But Crown witnesses Mark Lindsay and Rick McGovern-Wilson explained that, though extra funding for the Ministry and the Historic Places Trust would be of great assistance, ‘the Ministry and the Trust adequately perform their statutory functions with the current funding provision’. While the Ministry has no authority over museums, it can assist at a general level with Hauraki Maori discussions with museums over return of artefacts. Mr Lindsay noted that protocols agreed though Office of Treaty Settlements have the potential to ‘formalise the policies the Ministry already has in place for consultation and involvement of Maori in the Antiquities Act processes’.⁷⁰

(2) Wahi tapu

The Crown submits that it ‘does provide a framework for the protection of significant sites to Maori. In sum, the primary means of protecting sites is through their identification on district plans, and their registration on the Historic Places Register.’ However, the Crown does not claim that the system is perfect, and acknowledges that adequate funding is an

67.Document AA1, p 297; doc R6, p 16

68.Document AA1, p 297

69.Ibid, pp 298-299; doc R6, pp 17-18

70.Document AA1, p 299; doc R6, pp 21-22; doc R33, pp 2-3, 5-7, 15, 23, 27

issue.⁷¹ Counsel stressed that community participation is required in identifying sites of significance to Maori.⁷²

The Crown reviewed the Historic Places Act 1993 as a result of the Ngai Tahu deed of settlement, resulting in a report on historic heritage that ‘acknowledged that as a whole the system for protection has been performing poorly’. The review also recommended that heritage planning documents recognised by tangata whenua should be given greater weight in law. As a result, the Crown introduced the Resource Management Amendment Bill 2001, aiming to strengthen provisions for local authorities in the exercise of their responsibilities under the Resource Management Act 1991 to ‘take into account’ planning documents recognised by iwi authorities.⁷³ The Crown submits that ‘It is notable that the government in the context of the Resource Management Amendment Bill 2001 has decided to retain the Historic Places Act provisions in separate legislation because they see the independent role of the Historic Places Trust as important.’⁷⁴ We note that the 2001 Bill became the Resource Management Amendment Act 2003. Also in 2003, the Historic Places Act again came under review, with the stated intention of complementing the Resource Management Act to elevate historic heritage protection to a matter of national importance’.⁷⁵

The Crown established the Ministry for Culture and Heritage in 1999, and announced a ‘cultural recovery package’ in 2000, allocating $1.25 million (GST inclusive) to the Historic Places Trust for the development of Maori heritage services. ‘This funding has been devoted by the Trust to developing programmes to enhance the capacity of iwi to protect their land- based heritage.’⁷⁶ In their lengthy submissions on environmental matters and the Resource Management Act, the Crown also noted the role of the Ministry for the Environment in attempting to improve the practice of local authorities and increasing the capacity of iwi and hapu to participate in processes under the Act.⁷⁷ In an appendix, the Crown detailed initiatives taken by the Ministry to improve Maori participation under the Act. Provision is made for funding, on application, from the sustainable management fund for projects ‘for maintaining and enhancing the capacity of tangata whenua to fulfil their responsibilities as kaitiaki’, and under the environmental legal assistance fund for increased participation in cases before the Environment and High Courts. The Ministry publishes guidelines for best practice under the Act, including guidance for iwi and local authorities as to how the key heritage legislation (the Resource Management Act 1991, the Historic Places Act 1993, and

71.Paper 2.227, p 24; paper 2.550, p 46; doc R19, pp 5-6; doc AA1, p 302

72.Document R19, p6; doc AA1, pp 302, 307

73.Paper 2.227, p 24; paper 2.550, p 46. Note also Crown concessions in the foreshore and seabed report that the Resource Management Act has not functioned as intended to give effect to Maori concerns: Waitangi Tribunal, Report on the Crown’s Foreshore and Seabed Policy (Wellington: Legislation Direct, 2004), pp 104-105.

74.Document AA1, pp 306-307

75.Ministry of Culture and Heritage, ‘Proposed Amendments to the Historic Places Act 1993’ June 2003, p 1. We presume this review reflects the Crown’s decision to retain provisions of the Act in separate legislation.

76.Paper 2.550, pp 46-47

77.Document AA1, p 230

the Te Ture Whenua Maori Act 1993) work together to protect Maori historic heritage. The Ministry monitors Maori participation in Resource Management Act processes through biennial surveys of local authorities, it tracks local authorities’ budgetary commitments to Maori participation in the Act, and it aims to hold regional hui with Maori to receive feedback on the implementation of the Act and identify issues and opportunities for improvements and further discussion. In addition to the work of the Ministry for the Environment, Crown counsel stressed that Treaty settlements offer another opportunity for improving, on a case-by-case basis, Maori participation in Resource Management Act processes, ‘and thereby influence the management of resources of particular value to them’.⁷⁸

Crown witnesses Mark Lindsay of the Ministry for Culture and Heritage and Dr Rick McGovern-Wilson of the New Zealand Historic Places Trust gave evidence for the Crown acknowledging that, while the trust had not prosecuted violations of wahi tapu on a single occasion between 1993 and 1999, since 1999 there has been a change in operational focus. This change has heralded a rise in advocacy and education, and increases in the number of authorities declined and prosecutions initiated where warranted, as well as the regionalisation of Maori heritage and archaeological services. The trust also works to facilitate solutions between developers and iwi where possible. The Maori Heritage Division of the trust was restructured and regionalised as a result of review, and Maori heritage adviser positions were created in regional offices. The Coromandel area is serviced by a Tauranga-based archaeologist and Maori heritage adviser. After the review, a Kaihautu Maori position was also created in the national office, with responsibility for overseeing the delivery of Maori heritage services across the organisation.⁷⁹

Dr McGovern-Wilson explained that not all 6000 Hauraki sites identified by the New Zealand Archaeological Association ‘would necessarily be registered on the trusts’ register as some were simply small shell/midden sites’. In cross-examination, Dr McGovern-Wilson agreed that it was ‘somewhat incongruous’ that only 79 sites were recorded, and stressed it was up to interested parties to nominate sites for registration, although he acknowledged that the trust could also nominate sites.⁸⁰ Dr McGovern-Wilson also noted that 89 authorities to modify, damage or destroy archaeological sites (presumably, not all registered) had been granted in the Hauraki area by the Historic Places Trust, 71 since 1993, and 18 before 1993. Collectively, this amounted to some 5 per cent of all authorities issued throughout the country.⁸¹

Evidence was also given by Gregory Martin, Waikato conservator, to explain the role of the Department of Conservation in the protection of heritage sites. Until the creation of the Ministry of Culture and Heritage, the department was responsible for heritage protection

78.Document AA1, pp 232-241, app A

79.Document R6, pp 12-13; doc R33, pp 22-23, 25

80.Document R20, p 2; doc R2o(a); doc R33, pp 13-15, 21-22; doc AA1, p 307

81.Document R2o(a), p 3

under the Conservation Act 1987. However, while it no longer has primary responsibility for cultural heritage, the department continues to manage some key cultural heritage features on departmental lands. The department manages 60 per cent of land on the Coromandel Peninsula, and in addition to the standard conservation work it is known for, the department also undertakes a ‘great deal’ of technical advocacy on issues such as marine farming. Mr Martin observed that the department has limited resources, and therefore tries to advance cases where there is evidence that ‘suggests the environmental effects of development will be significant, and where we consider our prospects of upholding the conservation values at stake are good’.⁸² Mr Martin believed that, in general, relations between Hauraki iwi and the department were sound. Quarterly meetings are held to review ‘business of mutual interest’, and the department has regular consultation and meetings with many Hauraki iwi groups: ‘The Department has received very positive feedback from its workings with these groups to the extent that important conservation initiatives on the Peninsula are making substantial progress’ Representatives from all major iwi groups, including one Hauraki representative, sit on the Waikato Conservation Board.⁸³ Mr Martin provided some examples of where the department and Hauraki iwi have worked together positively.⁸⁴

20.2.6Tribunal comment on the legislation

We offer some comment here on whether the legislation achieves the appropriate balance for protecting taonga and wahi tapu, as well as private property rights. First, if Maori had been able to retain the ownership of much more land, then the Crown would not have needed to provide robust protection for many of the remaining wahi tapu and taonga; Maori would have been able to protect them themselves. But since that is not the case and many wahi tapu and taonga are located on either Crown or private land, the legislation must attempt a balance in protecting the varying claims.

Rather than dwelling further on the already-acknowledged weaknesses in the existing Antiquities Act 1975, we begin this section by offering some brief comment on the proposed new legislation strengthening the protection of taonga. We share the Crown’s hope that new legislation will provide solutions to those acknowledged problems, and offer these comments as a guide only.

We note that, on presenting the Bill to Parliament in February 2005, Associate Minister for Arts, Culture, and Heritage Judith Tizard said that it would improve administrative processes ‘to ensure that ownership can be established for taonga tuturu’. This would accordingly ‘increase the instances of traditional ownership being established for found Maori objects’.⁸⁵

82.Document Q2, pp 3-7

83.Ibid, pp 7-8

84.Ibid, pp 8-10

85.See Judith Tizard, ‘More Protection for Cultural Objects in the New Bill’, speech introducing Antiquities Bill to Parliament, 3 February 2005 (http://www.beehive.govt.nz)

We understand the Crowns position to be that ownership of newly found taonga will, prima facie, remain vested in the Crown through the Ministry of Culture and Heritage. But the Ministry will be increasingly proactive in seeking the determination of traditional ownership of taonga through consultation with tangata whenua, and where necessary, through the Maori Land Court. We consider that in Hauraki, where there are layers of tangata whenua rights through ahi ka, conquest, and then reassertion of ahi ka by earlier groups, there is heightened potential for dispute as to ownership of taonga. The Maori Land Court would be the appropriate place to determine traditional ownership in such situations.

Following on from this, we believe it is proper for the Crown to continue to assert prima facie ownership of newly found taonga. It is important for all to understand that prima facie ownership means ownership limited by the proven claims of the true owner and that, as long as a process is automatically in place to determine the true owners, then prima facie ownership in the Crown is an important protection. While some tangata whenua may be wary of Crown ownership in any sense, we consider it vital to acknowledge the Crowns fiduciary relationship with Maori, which brings with it many responsibilities such as those highlighted in this chapter. This is an example where the Crown can operate to assist Maori actively, and Maori should make use of this assistance.

We agree with the provision in the summary of the proposed Antiquities legislation that Maori should determine which objects are in fact taonga. We consider that this is the only equitable way forward. Similarly, Maori must choose which specific sites are wahi tapu and most in need of protection, and then avail themselves of the provisions that exist under the Resource Management Act 1991 and the Historic Places Act 1993 for the protection of wahi tapu.

We accept the Crowns position that the current regime under the Resource Management and Historic Places Acts have, at least since restructuring in 1999, offered avenues for full protection of sites, as long as the processes set out by legislation are well publicised and adequately funded. We expect the Government to continue its work in publicising the protective provisions available in the legislation, and acknowledge the initiatives of the Ministry for the Environment in this direction. We were not called upon to make a determination as to what constitutes full and adequate funding. But it is clear to us, and we think to the Government as well, that if cultural heritage is to be prioritised, then appropriate resources must be forthcoming. It hardly needs reiterating that once sites are gone, they are gone forever.

Obviously, legislative protections require the participation of Maori to be truly effective, and we think this is appropriate in a Treaty relationship where both sides have duties and privileges. It is vital, for example, that Maori determine which specific sites they wish to be identified as wahi tapu, and which require full protection, and then make full use of available legislative provisions. Where wahi tapu are not on Maori owned land, some ranking of the importance of specific sites will be required. For example, in the Hauraki inquiry,

archaeologists have listed over 6000 sites of interest. These are sites where some physical evidence of previous use exists. But, as explained before the Te Roroa Tribunal in 1992 by Sir Tipene O’Regan (associated with the Historic Places Trust since February 1977), not all such sites would necessarily be of spiritual significance to Maori, as many would be of ‘every day’ use such as middens. Moreover, Maori and archaeologists might have conflicting interests as to what constitutes a special site:

The Maori membership of the Trust’s committees have ... been concerned, and, at times, distressed by the difficulty of securing protection for a huge range of sites of great importance to Maori on grounds of historic, traditional or spiritual association. We have felt that there was well entrenched legislative protection for sites on a grounds of essentially Pakeha academic interest but a gross lack of ability to protect sites on Maori grounds. Put simply it has been easier to protect an ancestral rubbish dump than a tuahu or a waka landing site or a maunga whakatauaki. In the 1970’s and early 1980’s we also experienced considerable resistance from professional archaeologists, including those on the staff of the [Historic Places] Trust at the time, to our attempts to secure a similar standard of protection for sites of Maori value to that enjoyed by sites deemed to have archaeological value.⁸⁶

We note also the observation by archaeologist Louise Furey that ‘archaeology is limited as a tool to interpret the past. Specific events are rarely identifiable and the people who live in a particular place or their tribal affiliations cannot be determined by archaeological methods.’⁸⁷ Therefore, it is Maori who must select which specific sites are the sites they value most highly. As claimant Pauline Clarkin observed in relation to resource management, ‘The value attached to such a taonga is an essential matter for Maori to determine.’⁸⁸ The concomitant is that Maori must nominate these sites if they wish them to enjoy the protection offered by legislation. We strongly encourage Hauraki Maori to be proactive in the use of the legislative provisions already in place to protect wahi tapu. We note that targeted Government funds – through the Ministry for the Environment’s sustainable management fund, as well as the environmental legal assistance fund – are available on application to assist tangata whenua in working with local authorities to understand and use the Resource Management Act in particular, and to assist with appeals to the Environment Court.

We acknowledge that neither central nor local government has the resources to protect thousands of sites in any one area, especially if on private land, and particularly because many more sites undoubtedly remain to be discovered. We repeat the words of the Report on the Manakau Claim that, if specific protection is to be provided, wahi tapu need to be defined as specific sites and not general areas. If the land on which a wahi tapu is located is in Maori ownership, the need to limit the definition of wahi tapu does not apply: ownership

86.Tipene O’Regan (Wai 38 ROI, doc G2), p 2 (Waitangi Tribunal, The Te Roroa Report 1991, p 233)

87.Document A7, p 4; doc B1, pp 2-3; doc J9, p 3

88.Document G21, p 29

of the land is the key in determining how specific wahi tapu should be. We must also acknowledge that some private landowners may have concerns over how much power the Historic Places Trust can wield over their private property, and will want reassurance of the procedures that the trust uses to come to decisions as to what sites require protection. In short, there must be an element of realism and pragmatism to the protection of wahi tapu. Most particularly, we believe that wahi tapu sites that are known to Maori without the need for academic research, are the sites most in need of protection. Such sites provide that vital link with the past and the future that keeps Maori culture vibrant and thriving.

20.3SPECIFIC TAONGA CLAIMS

We see no need for any findings in relation to claimant concerns regarding Hotunui whare or the Marutuahu mauri, both held at Auckland Museum, or Te Korowai o Watana held at the University of Waikato. No particular claim against the Crown was made out in relation to any of these three taonga.

We can offer only brief comment with regard to the illegal export of the Opito canoe prow. Claimant counsel for Wai 110 argued that the prow (of the rare tuere form) was sold overseas ‘at a time when the Crown was on notice of the prow’s existence’, to which the Crown responds that there was not enough evidence to attempt a prosecution.⁸⁹ Claimant counsel further submits that ‘The case against the Crown is that it has failed to improve the impotent provisions of the Antiquities Act 1975 to ensure sufficient statutory protection of Maori taonga’.⁹⁰ Amending this failure is the intention of the Protected Objects Amendment Bill, introduced to Parliament in February 2005. The Amendment Bill replaces the limited fines able to be imposed under the Antiquities Act (ranging from $500 to $2000 only), with maximum fines of up to $100,000 for individuals and $200,000 for bodies corporate. Serious offences can also be penalised by up to five years in prison. We trust, therefore, that the amended legislation will make the reoccurrence of such an event as the theft of the Opito prow unlikely.

20.3.1Oruarangi Pa

We are greatly concerned at the desecration of the Oruarangi pa site and the lack of protection offered to prevent the desecration once the Crown was aware it was taking place. When the ancient pa (visited by Captain Cook in 1769)⁹¹ and used as an urupa in the nineteenth century, was desecrated by fossickers (namely Sonny Hovell, among others) in the early

89.Document Y9, p 59; doc AA1, pp 298-299; doc G8, pp 7-8; doc N1, p 26

90.Document Y9, p 59

91.See Geoff Park, Nga Uruora: The Groves of Life (Wellington; Victoria University Press, 1995), p 51

1930s, little could be done to stop it, and the Auckland Museum purchased many of Hovell’s finds. The Maori trustees of the urupa (gazetted in 1914) were particularly upset by Hovell’s entering the urupa at night, and an injunction was served on him under the Maori Councils Amendment Act 1903 to stay out.⁹² Hovell’s actions were widely condemned. The following letter to the editor reveals some of the concern expressed:

Sir – From time to time we read of the curio hunters having found valuable Maori relics at Matatoki [Oruarangi]. Do we realise that these finds are being systematically probed for amongst the graves (ancient, perhaps, but nevertheless ‘tapu’) of a people still living in the district?... If the police cannot prevent further spoliation of this sacred ground they may at least arrange to relieve the old lady who is guarding the grave of her husband alone day and night.⁹³

20.3.2Other sites fossicked for taonga

Other claimants mentioned wahi tapu that were ‘fossicked’ for taonga. For example, Pani Ru Pahata Hori Keeti told us that ‘our old sites’ in the Thornton Bay area were desecrated when a local, Toss Hammond, acquired a number of taonga from the wahi tapu and started his own museum. ‘When he died we asked his daughter where the artefacts were and she said she took them to the Auckland Museum and that they were all labelled. We always saw them as taputapu and wouldn’t dare touch them. But it would still be good for our people to get control over them again’.⁹⁴ Furey also noted that, in addition to the ‘grand scale’ of collecting from Oruarangi, other places were ‘being turned over’ by fossickers. She lists Waihi Beach, Thornton’s Bay, Kennedy Bay, Whiritoa, and Te Kare. Many claimants also told us of the desecration or loss of their wahi tapu.⁹⁵ Furey adds that:

Little is known of fossicking activities in the 1940s although there were a few energetic locals at work and their enthusiasm continued through until the mid-1950s when the first archaeologist arrived at Auckland University and attempted to channel that enthusiasm into proper recording-based archaeology rather than destructive digging.

While fossicking does still occur, ‘it is usually opportunistic and small scale and it is of course now illegal’.⁹⁶

92.Injunction served on Sonny Hovell, 1933, Maori Land Court file 1638/H (doc U16, doc bank, p 26)

93.Louise Furey, ‘Oruarangi: The Archaeology and Material Culture of a Hauraki Pa’, Bulletin of the Auckland Institute and Museum, 1996, pp 25, 212 (doc G8, pp 13-14; doc U16, doc bank, p 21)

94.Document G16, p 7

95.References to the loss or desecration of wahi tapu are scattered throughout claimant evidence. There are too many examples to give an exhaustive list here, but claimant submissions give some lists of relevant claimant briefs. Also, photocopies of unreferenced material in relation to fossicking by Hovell and Hammond are included in pages 22 to 25 of the supporting documents to document U16.

96.Document G8, pp 11-15

20.3.3 Tribunal comment on Oruarangi and other fossicked sites

It is clear to us that the fossicking of wahi tapu in the search of taonga was and is highly offensive to Maori, as well as to other New Zealanders. In her thesis on the Antiquities legislation, Nancy Swarbrick noted that in discussion of the 1901 Act, both Pakeha and Maori members of Parliament deplored the looting of burial caves.⁹⁷ The Crown has acknowledged that there was no specific legislation preventing fossicking until the Antiquities Act 1975.⁹⁸ We consider that it hardly needs stating that full protection should have always been available to prevent the desecration of wahi tapu and in particular, of burial sites. While we acknowledge that the Crown was not omnipotent and did not always have the means to prevent desecration, we consider that when the Crown was aware that desecration had or was taking place, then full measures should have been taken to prevent it continuing, to prosecute the desecraters, and to track and return any stolen items. Needless to say, we also consider that Maori burial grounds should have always had equal protection from desecration as that enjoyed by cemeteries in general.⁹⁹ We say this with the proviso that for Maori burial grounds to be protected by the Crown, they had to be made known to the Crown, which may not have always been a course Maori wished to pursue.

We consider that the fact that the only practical option available to attempt the prevention of further desecration of Oruarangi was under the Maori Councils Amendment Act 1903, clearly shows that the legislation in regard to the protection of urupa was woefully inadequate. While European members of Parliament may have joined in decrying the desecration of burial grounds, as noted by Swarbrick in relation to the Antiquities Act 1901, we note this decrying did not lead to an acceptable level of protection. Amending legislation after the Maori Antiquities Act 1901 should have explicitly made illegal the fossicking of wahi tapu for taonga.

Fossicking has meant that an unknown number of Hauraki taonga are lost to Hauraki. While we do not hold the Crown directly responsible for the desecration of wahi tapu and the removal of taonga, inadequate legislative protections have led to a sorry state of cultural loss, amounting to a failure of the Crown’s duty of active protection.

20.4SPECIFIC WAHI TAPU CLAIMS

Three key dominant themes emerge from the claimants’ evidence about the fate of specific. wahi tapu. The first theme is that the Crown allegedly failed to set aside specific wahi tapu as

97.Swarbrick, p 17 fn 62; doc G8, p 6. The looting of burial caves was an issue which the Te Roroa Tribunal considered in some depth: see Waitangi Tribunal, The Te Roroa Report 1991, ch 6.

98.Document AA1, p 300

99.Maori burial grounds and public cemeteries have always been administered separately. Maori burial grounds are excluded under the Burial and Cremation Act 1964 and are instead reserved and regulated by section 338 of the Te Ture Whenua Maori Act 1993 and section 439 of the Maori Affairs Act 1953.

reserves when asked to do so. The second theme is the removal, under the Native Land Act 1909, of alienation restrictions originally imposed by the court, and the associated failure by Maori land boards to investigate intended trusts over reserves. The third theme relates to claims that the Crown failed to protect wahi tapu once the general land on which wahi tapu were located was alienated. We discuss examples for each theme, but do not investigate every alleged failure to protect named wahi tapu. We take this approach in part with an eye to a tightly focused discussion, and in part because we were not presented with enough information to enable findings for each of the specific wahi tapu claims.

20.4.1The failure of the Crown to set aside specific wahi tapu

For this first theme, we use as an example the failure of the Crown to reserve from sale the wahi tapu at Te Karaka. We acknowledge that other significant examples were offered by claimants.¹⁰⁰

(1)Te Karaka and Tairua

We have, in sections 14.3.6, 17.4.1(3), and 17.4.1(4), already referred to the Crown purchase of the Tairua block, and the subsequent Parliamentary committee into Mackay’s purchasing activities. In finalising the purchase of Tairua in December 1872, Mackay had agreed, at the last minute, to a reserve of 1000 acres, though the reserve was not set aside for some time. Mackay, writing in 1875, explained subsequent events:

I then [after purchase negotiations] agreed to pay two thousand nine hundred pounds and allow a reserve of one thousand acres which was to be selected within three months, and in not more than two blocks. The site of the larger portion of the reserve was fixed at Pukiore, at the head of the navigation of the Tairua river, and the position of the remainder was not determined, some of the natives being in favour of taking it at Te Karaka burial ground, and others near the mouth of the river.

Mackay then endorsed the arrangement on the back of the deed. However, although the owners applied for the reserves within the three months stipulated, Mackay was busy elsewhere for the next 12 months. Peneamene Tanui wrote to Mackay on 11 May 1875 requesting survey of the reserves, and again on 26 May. Tanui was particularly concerned about the urupa at Te Karaka, which he wished to be included as part of the 1000-acre reserve:

100.Other claims that we were made aware of under the general theme of the Crown failing to reserve wahi tapu when specifically requested to do so include Wai 705, regarding Hukehuke; Wai 705 and Wai 110, regarding Toumuia; Wai 694, regarding Green Point; Wai 466 and Wai 661, regarding two urupa in the Wharekawa East block and urupa and wahi tapu on Manaia lands. This is not an exhaustive list of such claims, rather it represents the claims highlighted in claimant submissions. There are other such claims mentioned in research reports, though not followed up in claimant submissions.

Friend, greetings to you. Friend, we are very much vexed. We do not wish the burial place, known as Te Karaka, at Tairua, to be included within the Government land. We wish twenty acres to be taken there; let it be deducted from the 990 acres at Te Pukiore, leaving there 970 acres. Let there be twenty acres set apart for that burial ground, outside Te Pukiore. All.¹⁰¹

Mackay instructed a surveyor to ‘lay off the reserve’. Mackay continued:

This was done. Nine hundred and ninety acres were surveyed at Pukiore and ten acres at Te Kutakuta, near the mouth of the river. They applied to me on the 29th May to allow them to take twenty acres at Te Karaka burial ground, and reduce the Pukiore reserve to nine hundred and seventy acres ... The latter question has not been arranged.¹⁰²

Claimant counsel for Wai 694 argued that Crown’s failure to reserve Te Karaka as specifically requested was ‘galling’. The Crown, they state, has failed to protect the claimants to the fullest extent practicable in respect of their wahi tapu.

In response to these claims, ‘The Crown accepts, particularly in the context of the large size of the Tairua block that it failed to protect the waahi tapu at Te Karaka – and that it ought to have done so’.¹⁰³

(2)Tribunal comment on Te Karaka and Tairua

We note the Crown concession that the urupa at Te Karaka should have been reserved as requested, and consider this an appropriate acknowledgement. Clearly, the failure to reserve this wahi tapu, and indeed any wahi tapu when specifically requested to do so, was a serious breach of the Treaty, and the claimants have a resulting right of redress. In addition to negotiated redress, we consider surveying and fencing off urupa that should have been reserved from sale and which are still located on Crown or council land a priority, as well as providing for their ongoing maintenance.

20.4.2Removal of alienation restrictions under the Native Land Act 1909 and the alleged failure to investigate intended trusts

We have discussed the Native Land Act 1909, including the removal of alienation restrictions under section 207 of that Act, in section 18.2.2. Here, we discuss the removal of alienation restrictions from wahi tapu that had been expressly excluded from the sale of the land.

101.Document G11(a), doc 33

102.Mackay to Colonial Secretary, 17 July 1875, AJHR, 1875, G-5B, pp 2-4 (doc A10, pt 2, p 92)

103.Document AA1, p 310

(1) Wairotoroto wahi tapu

As an example of the effect of the removal of alienation restrictions over wahi tapu under the 1909 Act the case of Wairotoroto is outlined.¹⁰⁴ Wairotoroto, a wahi tapu, had been reserved from the sale of the Waikawau block to the Crown in August of 1878. That month, the Native Land Court had confirmed an out of court agreement between Preece (for the Crown) and the owners, that Meha Te Moananui, Hata Paka and Takarei Te Putu would be trustees for the land ‘as a burial Reserve for the people of Ngatitamatera’. The court explicitly stated that ‘the persons so named . . . [are] the cestuis que trust in respect of the land immediately preceding their several names’.¹⁰⁵ But the passing of the Native Promises and Contracts Act 1888 changed the status of the three named individuals to absolute owners possessing a freehold interest, although a restriction on the alienation of the land remained except by lease for 21 years or with the assent of the Governor. Then, in August 1916, the Native Land Court approved succession orders for the interests of two of the three owners. The third owner was still living, and had already sold his or her interest. The succession orders were being sought in order that a private sale of the block could be completed. By January 1917, all but an eighteenth share of Wairotoroto tapu had been alienated; this share remained only because its owner was a minor and was therefore represented by a court- appointed trustee.¹⁰⁶

With the exception of the eighteenth share, the sale was soon complete, and confirmed by the Waikato-Maniapoto Maori Land Board as required under section 217 of the 1909 Act. But the land board had been required by legislation to satisfy itself ‘after due inquiry’ that any sale was in accordance with the law. Under section 220 of the Act, legislative provisions included the restriction that ‘the alienation is not in breach of any trust to which the land is subject’. This should have at least required the board to consult the court minutes, as researcher Mathew Russell suggests, which would have shown that a trust had been intended by the court.¹⁰⁷ But, whatever the extent of the land board’s ‘due inquiry’, it did not establish this fact and, contrary to the legislation, the land was sold as the absolute property of the three original trustees.

(2)Tribunal comment on Wairotoroto

Clearly, this example shows a failing by the Waikato-Maniapoto Maori Land Board to fulfil even the most basic requirement that it check for evidence of a trust. While we cannot make a finding on the actions of the Board itself, we do consider that the legislation should have

104.Other examples argued in claimant submissions and evidence include Wai 174, regarding Horahia Opou 5A; Wai 418, regarding Waipatukahu and other wahi tapu; and Wai 177, regarding Te Rereapahau wahi tapu.

105.Order of the Native Land Court, 5 August 1878, BOF C32OW-M, MLC (doc A13, pp 11-12). A cestius que trust is a life tenancy in which the life tenant has the same powers as a legal trustee.

106.Document A13, pp 13-14, 18-19

107.Ibid, pp 19-20

made it an absolute requirement that boards make thorough investigations of the history of a block before confirming sale. Otherwise, the approval of such sales becomes perfunctory rubber-stamping. This wahi tapu had been intended both to be inalienable and to be held in trust for the wider group. Neither intention survived legislative changes made by the Crown. This was a serious failure of the Crowns duty of active protection under the Treaty.

20.4.3The Crown’s failure to protect specific wahi tapu on the alienation of general blocks of land

(1)Discussion

A shared allegation from many claimant groups can be categorised as a failure by the Crown to reserve wahi tapu from sale automatically, resulting in a general loss of wahi tapu without the claimants intending that such sites would be sold along with the surrounding land. For example we note: Wai 714 claims that various wahi tapu are no longer in Ngati Koi ownership; Wai 694 claims regarding the loss of an urupa on Te Kauanga Whenuakite 1; Wai 475 claims in respect of the loss of many wahi tapu around the Whangapoua Harbour; Wai 110 and 177 claims regarding the loss of control over the many wahi tapu on the eastern seaboard of Hauraki; and Wai 355 claims in respect of the loss of many wahi tapu at Hikutaia and Whangamata. Our discussion of this third theme is necessarily general, as few particulars are made out in the claims; rather the core of this issue seems to us to concern the differing cultural presumptions about what would properly follow a sale, in the context of loss of control of land in general.

We note that Tribunal researcher Dougal Ellis in his report on Whitianga suggests that in some instances Maori sold land containing wahi tapu, apparently without specifying their reservation from sale. We agree with Mr Ellis that, aside from the possibility that oral agreements had been made about those wahi tapu, it is unlikely that Maori vendors anticipated that sales of land meant the loss of control of the wahi tapu on the land. Ellis comments that, after sales, Maori tried to protect their wahi tapu on alienated land and ‘felt that they were . . . justified in doing so’. Ellis feels that this may explain why Maori often excluded references to wahi tapu from deeds of transfer: ‘They would have assumed they would continue the role of policing and enforcing their tapu nature.’¹⁰⁸

Researcher Phillip Cleaver discusses a wahi tapu in his research report on Kaiaua township. The Ngati Paoa grantees requested that the Opita wahi tapu be reserved from the sale of Opita block (on which Kaiaua township grew) to private Pakeha purchasers in the mid-1870s. Cleaver suggests that the wahi tapu was excluded from the sale by way of an informal agreement which never became formally recognised on title documents. An 1885 survey, prepared for the purchasers, shows that a small area was excluded from the purchased

108.Document R5, pp 86-88

block, and marked ‘Tapu bush’ on the survey plan. However, there is no mention of this exclusion on an 1886 survey, or in the 1878 award of the court. In 1932 and 1936, petitioners claiming direct descent from tupuna buried in the wahi tapu failed to have the matter reopened through the land court. The wahi tapu has been private land since 1878, despite the informal agreement.¹⁰⁹

(2)Tribunal comment

We are not in a position to make findings on claims included in this section, as the evidence is incomplete in respect of many of the examples cited by claimants, the purchases in the above examples were made by private individuals, not the Crown, and the arguments in submission are of a general nature. However, it is clear to us that not all practical requirements for the protection of taonga and wahi tapu were observed by the Crown. We think it a reasonable assumption by Maori that their sacred sites would be protected, regardless of the actual ownership of the land. Having said that, we also think that, for the Crown to be in a position to offer real protection, it had to be made aware of the sites requiring that protection. The fullest protection that the Crown could have offered would have been the careful vetting of every deed of sale, to ensure that it was always clear what exactly was being sold, and what was being reserved. Important parts of Hauraki heritage were lost through the Crowns omissions to offer active protection.

Counsel for Ngati Koi argued that, ‘In allowing the greater part of Ngati Koi’s tribal estate to be alienated, the claimants say that the Crown breached the principles of the Treaty of Waitangi in a number of ways . . . Because of this, the claimants have also lost ownership and control of their wahi tapu’.¹¹⁰ We agree that the key to the loss of control of wahi tapu, where not expressly reserved by Maori, was the loss of control of the land on which they were situated. Whatever the Maori view of their relationship with wahi tapu once the land was sold, the nature of private property rights under the nineteenth century legal system meant that rights in wahi tapu were lost where the land was sold, unless they were expressly reserved. (We trust that under the Resource Management Act 1991 this would no longer be the case.) Once again, these losses reflect the loss of the great bulk of land in Hauraki. We believe redress is properly provided in concert with redress for the loss of land through the various Native Land Court processes, as these losses were part of the same process. For this third theme, we therefore refer back to our findings in the Native Land Court section.

We stress the difference between ‘archaeological sites’ and specific wahi tapu. Archaeological sites are offered protection by legislation, although the onus is on interested parties to register them. In contrast, wahi tapu are ‘living sites’, known to and valued by claimants today. We see one possible way forward to be the establishment of working groups

109.Document H6, p 10

110.Document Y20, pp 40-41

(for which provision already seems to exist under the Resource Management Act), through which tangata whenua in negotiation with the Crown and local authorities could locate and select those ‘living’ wahi tapu most in need of protection.

20.5OVERALL TRIBUNAL COMMENT ON TAONGA AND WAHI TAPU

We have a final general point to make with regard to taonga and wahi tapu. While acknowledging that the legislative protection on offer today might adequately protect both taonga and wahi tapu, protection was not adequate for much of the nineteenth and twentieth centuries. This resulted in real prejudice to Hauraki Maori. Taonga were lost, modified, or exported illegally. Even if new legislation prevents this happening again, nothing can be done under the law to rectify these past losses. The only hope of return would be purchase on an open market should any of the taonga come up for sale, but most Hauraki Maori will, we fear, find such purchases unaffordable. We would urge Claimants and Crown to pursue closer liaison for the purpose of identification and long-term preservation of taonga.

Similarly, real prejudice has resulted from the desecration, modification, and even destruction of wahi tapu sites. While the Crown may not have been directly responsible for all the loss and destruction, much of which resulted from the loss of control of land and the rise of private, non-Maori landholding, the Crown has itself acknowledged that it was responsible for failings in the legislation. We say these failings allowed the destruction of a cultural legacy to continue without prosecution. Moreover, due to the loss of so much land (mainly though Native Land Court processes and Crown purchasing), protection was especially required from the dominant Treaty partner for the remaining sites. As the Crown has acknowledged, where Maori requested reserves to be set aside for urupa or wahi tapu, its fiduciary obligations required the Crown do so. But often it did not happen.

These failings were in breach of both articles 2 and 3 of the Treaty. Article 2 explicitly promised, in the Maori version, ‘te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa’, that is, in the English version ‘the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties’. Clearly, wahi tapu and taonga are covered by article 2. Article 3 promises to Maori the rights and privileges of all British citizens. A basic tenet of citizenship is the right to protect property and chattels, including items of great personal or cultural significance. But Maori spiritual sites and objects were usually treated as less important than the rights of private property owners. We consider that compensation is due for these breaches and the resulting prejudice, to enable Maori to reclaim lost taonga where possible, to foster the skills to assist the creation of new taonga through a vibrant arts culture, and to assist Maori with consultation procedures on taonga and wahi tapu, both within tangata whenua groups and with local government and Government agencies.

We acknowledge the role of the Resource Management Act in the protection of wahi tapu and taonga, and appreciate that this Act is an attempt by Government to provide a holistic approach to the management of resources and taonga. But we also consider that it should be noted that the legislation is complex, and specialist legal advice is currently required for access to the full range of legislative protections on offer. The various protective options provided by the Act are not used consistently by territorial authorities nationwide. We suggest that, for the Resource Management Act to be a more consistently effective tool for Maori (which the Crown has conceded is not always the case),¹¹¹ the Government, local authorities, and Maori should work together to ensure an understanding of the processes on offer, as well as a consistent approach to their application. We acknowledge that the Resource Management Act already makes provision for these parties to work together, and we encourage the use of these available provisions for protection of wahi tapu to the fullest extent possible. Use of the existing provisions under the Resource Management Act should be carefully monitored, so that the Crown can put in place effective mechanisms should the existing provisions be less than fully adequate. In the Report on the Manukau Claim of almost 20 years ago, the Tribunal observed, and we agree, that wahi tapu protection procedures must be publicised.¹¹² We note that such a step appropriately involves the full participation of both Crown and Maori as Treaty partners.

111.See, for example, the acknowledgement by the Crown of some of the impediments facing Maori in the use of the Resource Management Act 1991 in Crown counsel, ‘Foreshore and Seabed: A Framework’, December 2003 (Wai 1071 R01, doc A21), pp 43-44. See also Waitangi Tribunal, The Report on the Crowns Foreshore and Seabed Policy, p 86, where the Tribunal notes the Crown’s argument from that report that:

Existing legislation (eg the Resource Management Act, the Fisheries legislation and the Local Government Act) already provides mechanisms and processes for the recognition and protection of whanau, hapu and iwi customary rights. As the implementation of these mechanisms and processes has not always been satisfactory, they will be considered to identify and remedy impediments to their effective implementation. [Emphasis added.]

112.Waitangi Tribunal, Report of the Waitangi Tribunal on the Manukau Claim, p 93

CHAPTER 21
RATES AND HAURAKI MAORI LANDS

21.1INTRODUCTION

Various Hauraki claimants allege that they lost land due to the pressure of accumulating rates on non-revenue producing lands. From 1893 until 1988, the sale of Maori freehold land to meet rates arrears was allowed for in the rating legislation; some other categories of Maori-owned land, under various legislative amendments, could also be sold to meet rates arrears. The rating of Maori land has long proved vexatious. Historically, local authorities have pushed for more categories of Maori land to be liable for rates. Conversely, Maori have argued that until and unless their land is revenue producing and services are actually provided, it should be exempt.

The debate over rates before this Tribunal does not focus particularly on whether Maori land should be rated at all, but rather what categories of Maori land should be exempt from rating. Historically, many Maori leaders have recognised that Maori land should be rated if it is revenue producing and receiving services. In his report on rates prepared for this inquiry on behalf of the Crown, Robert Hayes comments that the Maori members of Parliament, ‘by and large, agreed in principle to Maori being liable for rates, though usually at some future date. They differed at times, however, as to which categories of land ought to be liable and when that liability should commence.’¹ The current legislation allows for exemptions for small areas (two hectares) of Maori land that is in use for a marae, meeting house, urupa, crematorium, Maori reservation, or is made exempt by Order in Council. While customary land has always been exempt from rating, and since very little customary land now remains, the vast bulk of Maori land is liable for rates.

Under the 1988 Rating Powers Act, the power to sell Maori freehold land for rating debt, which had existed since 1893, was removed. Accepting, therefore, that Maori land can now no longer be sold to cover rates arrears (although Maori land compulsorily converted to general land can still be sold), the five rating-specific claims in the Hauraki inquiry that we address below raise some general questions. These are, whether Hauraki Maori land should, historically, have been liable for rates; whether any land in Hauraki was liable for rates that should not have been; what the fate of those lands was; and whether the current rating

1. Document R15, p 6

legislation adequately considers the special difficulties facing Maori owners of multiply owned land.

Before turning to investigate five specific claims with regard to the rating of Hauraki Maori land, and then attempting to answer the above questions, we give a brief survey of the relevant legislation and the debates surrounding it. The discussion is drawn mainly from Tom Bennion’s Rangahaua Whanui report, Maori and Rating Law, as well as the evidence that Robert Hayes prepared for this inquiry.² Also helpful was the historical summary on Maori rating in the Turanga Tangata report.³

21.2MAORI AND RATING LAW : A BRIEF BACKGROUND

Except where occupied by non-Maori, unimproved customary Maori land has remained exempt from rates, but most other categories of Maori land have been liable for rates since the late nineteenth century. A high proportion of Maori land has been classed as ‘unimproved’ whether customary or freehold; had rating been based on the improved value, even more of this land would not have been rated. But increasing the rates revenue from Maori land has often motivated the drive to improve Maori land, either within Maori ownership or by removing it from that ownership. With the exception of customary land, Maori have been liable for rates assessed on the value of their unimproved landholdings, without consideration of whether these landholdings were capable of paying the rates assessed on them. If the rates were not paid, then they accrued and became a debt against the land.

Early rating legislation was concerned with raising revenue for the construction of roads. In 1871, the Highways Boards Empowering Bill was introduced, and much of the debate on it focused on whether or not Maori should be rated. Some members of Parliament suggested that, because Maori had Crown grants and used roads, they should pay rates, while others noted that some Maori already paid steep customs and excise duties for which they got little in return. Some speakers urged that Maori land not be rated until it was held individually. One suggestion was that Maori contribute through the provision of labour for the building of the roads; another was that Maori contribute land instead. The Maori members objected to rating Maori for roads, saying Maori landowners had not asked for the roads, were too poor to pay and would lose land for rates, contrary to the protections of the Treaty of Waitangi. The final form of the 1871 Act allowed only that Maori land under a Native Land Court certificate of title, or any Maori land occupied by a non-Maori, would be liable for rates.⁴

2.Tom Bennion, Maori and Rating Law, Rangahaua Whanui Series (Wellington: Waitangi Tribunal, 1997); doc R15

3.Waitangi Tribunal, Turanga Tangata Turanga Whenua: The Report on the Turanganui a Kiwa Claims (Wellington: Legislation Direct, 2004), pp 649-651

4.Bennion, pp 7-8; doc R15, pp 6-7

Also in 1871, Donald McLeans Native Districts Road Boards Act was introduced. Under this Act, half the members of road boards in native districts were to be Maori. But the Act could only operate in an area where a majority of the inhabitants were Maori, and who petitioned for the Act to come into force over their area. Bennion comments that ‘because it was entirely voluntary, Maori groups seem to have been resistant to it, and it did not satisfy the[ir] broader calls for local self-government’. McLean subsequently relied on urging local European road boards to include Maori, and for the time being, regarded the contribution of Maori land and labour as sufficient.⁵

Maori, although using roads to move produce to market, were wary of the rates demands that attached to roads. This became apparent within the Hauraki inquiry district in 1875, over the matter of the survey of the road between Hamilton and Thames. James Mackay wrote to the Native Minister:

The reason the line has not been surveyed over the lands granted to the Natives ... is that they fear if a road is made through their property that they will render themselves liable to highway rates.

I may mention that this is not a solitary instance of this class of objection; it is not confined to one district, and is constantly urged, as a reason for refusing rights-of-way, that conceding a right of road gives the Government power to rate the owner of the land over which the road passes.⁶

Mackay suggested that it was preferable not to rate Maori than to have the construction of roads continuously interrupted, as this was a greater cost to the economy. He urged, therefore, that all Maori land outside of towns, regardless of its status, should be exempt. Native Department under-secretary H T Clarke supported the call for an exemption, noting that Maori concern over rates was affecting Native Land Court progress. Clarke observed that he did not believe many Maori understood the ‘burdens’ implicit in a Crown grant.⁷

With the Crown and Native Land Rating Act 1882 and the Rating Act 1882, the fear that roading would increase the amount of Maori land liable for rates became a reality. Under section 6(15) of the first of these Acts, Maori land within a proclaimed native rating district and within five miles of any public road became liable for rates. Maori land within a borough was also made liable for rates under the 1882 Act. Bennion says that by 1883, this affected 3.5 million acres of Maori land nationally.⁸ But Major Te Wheoro (the member for Western Maori) argued that Maori land ‘should only be rated when the Maori apply to have roads made through their land’, noting that Maori already contributed to settlement by the

5.Alan Ward, A Show of Justice: Racial ‘Amalgamation in Nineteenth Century New Zealand (Auckland: Auckland University Press, 1974), p 269 (Bennion, pp 9-1o)

6.Mackay to Native Minister, AJHR, 1875, G-10, p 1 (Bennion, p 10)

7.Clarke to Native Minister, ‘Highways and Road Board Acts in Native Districts’ 21 June 1875, AJHR, 1875, G-10, p 2 (Bennion, p 11)

8.Bennion, p 20

payment of 10 per cent duty on all dealings in land.⁹ This duty was in fact how the Crown recouped rates on Maori land: under the 1882 Act, rates notices were addressed to the Colonial Treasurer and not to the Maori owners. If the rates remained unpaid after three months, the Colonial Treasurer paid them, recovering the expenditure with a stamp duty whenever the land was leased, sold or exchanged for the first time.

Under the Rating Act 1882, all Maori land occupied by a non-Maori was liable for rates. (Under the 1876 Rating Act, there had been an exemption for customary land in the occupation of non-Maori.¹⁰) Some members of Parliament argued that the 1882 Acts did not go far enough with the rating of Maori land.¹¹ Others acknowledged that Maori did not necessarily receive benefits from rates and often did not want roads across their land. For example, John Stevens, the member for Rangitikei, said:

There could be nothing more unfair than this: that the Native children, who are supposed to inherit the estates of their fathers, should come into possession of them to find that they had been taxed for about ten years ... I cannot see the fairness of insisting upon a section of the community being taxed for that which we may consider to be a benefit to them, but which they look upon as a great injury ... Do they look upon these [building roads, clearing trees, draining swamps] as benefits? By no means; they look upon them as great injuries: and yet we compel them to pay taxation for inflicting that hardship upon them without them having any voice in the matter.¹²

In 1885, in response to Maori concerns over rating, Native Minister Ballance told Maori that he agreed it was unfair to rate land that was not in the condition of being used ... when the land has been leased or sold, then the time will have come for putting on rates; and I infer that no Native will object to pay rates when the land has been leased and is being cultivated’.¹³ In meeting with Hauraki Maori (see sec 21.3.1), he commented that he thought that the Government should be very cautious about rating Maori land that had not yet been through the Native Land Court and that was communally owned.¹⁴

Apart from roading, other rating issues also caused tension. Local authorities were increasingly charged with funding their own local public works, which meant that they were anxious for Maori to contribute rates revenue, especially in areas with significant Maori populations.¹⁵ Local authorities regularly complained to central Government that even when Maori were liable for rates, it was very difficult to get them to pay, especially on

9.Bennion, pp 18-19; doc R15, pp 11, 13. In the Legislative Council, Ngatata expressed similar views: ‘It is perfectly right that those who live in towns or close to them should pay rates; but I do not see those who live in the remote parts of the Island should be called upon to do so’; Ngatata, 8 September 1882, NZPD, v0l 43, p 868 (doc R15, p 13).

10.Bennion, pp 12, 15-17; doc R15, pp 10-11

11.Henry Fish, 30 August 1882, NZPD, 1882, vol 43, p 709 (Bennion, p 17)

12.John Stevens, NZPD, 1882, vol 43, p 717 (Bennion, p 18); doc R15, p 13

13.Ballance, ‘Notes of Native Meetings’, 7 January 1885, AJHR, 1885, G-1, p 17 (Bennion, p 21)

14.Ibid, pp 17, 37 (pp 21-22)

15.Waitangi Tribunal, Turanga Tangata Turanga Whenua, p 649

multiply owned land (ie, land owned by many owners as tenants in common, often with undefined shares).¹⁶

Local authorities pressured Government to spread the burden of rates equally on Maori and non-Maori. Conversely, Maori (and some Pakeha) members of Parliament argued that increasing the categories of Maori land liable for rates from those liable at 1882 was unfair: since they had sold land cheaply to the Crown, Maori had already more than fully contributed to local and national infrastructure. Maori continued to stress, as in 1882, that they had not requested many of the roads and railways said to have increased the value of their land for which they were paying rates.¹⁷

By the Rating Acts Amendment Act 1893, all Maori land was declared subject to rates, except for a number of significant exemptions: Maori land situated more than five miles from a public road; customary land in the occupation of Maori, and land owned by indigent Maori within a borough, if exempted by the Governor in Council. Non-customary Maori land in the occupation of Maori and outside the boundaries of towns or boroughs was liable for half rates only, and was exempt from special rates. All other Maori land was liable for full and special rates.¹⁸

Under the 1893 Act, sales of Crown-granted Maori land for rates arrears were permitted, but required the consent of the Native Minister. Alternatively, land for which rates were in arrears could be placed in receivership and leased to pay the debt. Various amendments to the rating legislation followed the 1893 Act (eg, the Rating Act Amendment Act 1896, which introduced the system of a nominated owner who would be responsible for receiving rates demands on Maori land with more then four owners).

The Native Land Rating Act 1904 was a major initiative undertaken by Native Minister Carroll to increase the rates responsibility borne by Maori, by increasing the categories of Maori land that could be rated. (This policy was a quid pro quo for his Maori land councils scheme set up under his Maori Lands Administration Act 1900.) In addition to the land liable under the 1893 Act, under the 1904 Act all Maori land within 10 miles of a borough was liable, as was any Maori land that had previously paid rates (ie, Maori land that had previously been leased to a European). Half rates were due on all other Maori land where title had been ascertained (ie, land under Native Land Court titles). Customary land remained exempt. The Native Minister could apply to the Native Land Court for a determination of title on land if the Minister suspected the Maori owners were retaining its customary status for the purpose of avoiding rates.¹⁹ Speaking in the Legislative Council, Mahuta Te Wherowhero (the third Maori King) said:

16.Document R15, p 19; see also Waitangi Tribunal, Turanga Tangata Turanga Whenua, p 650

17.See, for example, the speeches of Henare Tomoana, Hone Mohe Tawhai, and Major Te Wheoro, NZPD, 1882, vol 43, pp 703-720, 868; Hone Heke and Mahuta Te Wherowhero, NZPD, 1904, vol 128, pp 610-11, 810; Maui Pomare, NZPD, 1924, vol 204, pp 1057-1059 (doc R15, pp 11, 13, 18, 23)

18.Bennion, pp 25-26; doc R15, pp 16-17

19.Bennion, pp 34-35; doc R15, pp 17-18

Speaking directly for myself and my people, I may say that we do not object to being rated, but if you are going to rate us we demand that you should give us the power to deal with our lands, in order that we may be able to get some return out of the land with which we pay rates.²⁰

Some Pakeha members of Parliament agreed. For example, ALD Fraser (the member for Napier) said, ‘To place the further incubus of rating ... on the Native race, with their hands and feet tied as they are in dealing with their lands, is ungenerous.’²¹

The trend to increase the Maori rate burden continued. The Native Land Settlement Act 1907, for example, provided that freehold Maori land not currently under a Maori land board and ‘not required’ by the owners would be vested in the local Maori land board which could lease half and sell half to pay all outstanding debts, including rates.²² Under the Rating Amendment Act 1910, all half rates on Maori land were abolished. While customary Maori land remained exempt all other Maori land was liable for full rates, although land vested in the Public Trustee or a Maori land board was liable only to the extent that it was revenue producing. The system of using nominated owners for multiply owned land was continued, but the power of the Native Minister to apply for title to be heard on a customary block was dropped. The power of the Native Minister to veto sales of land for rates arrears was also dropped, with the Public Trustee or land boards now taking over this role. Bennion comments that with this Act, ‘The bulk of Maori land had finally been brought within the general rating regime’.²³

Local authorities continued to press for Maori to pay rates owing on their land. The Rating Amendment Act 1913 provided that no alienations of title could be registered against Maori land in rates arrears, but this proved of limited use, as much Maori land did not have a registered title, only a Native Land Court title.²⁴ Hayes notes that this Act did not help local authorities to collect rates from communally owned land, as ‘It seems that the local authorities had practical difficulties in naming an owner as the occupier where that land was not occupied by any of the owners’.²⁵

The ability of Maori to pay rates was limited by title difficulties. Mr Hayes comments for the Crown that Maori faced practical difficulties ‘in the effective utilization of rural land rendered by earlier partitioning of that land into uneconomic units and/or by the fragmentation (ie the fractionation) of interests’.²⁶ For these reasons, Maori could utilise their land and make it productive and rates-producing only with great difficulty. Ngata frequently

20.Mahuta Te Wherowhero, NZPD, 1904, vol 128, p 810 (doc R15, p 18; Bennion, p 31)

21.ALD Fraser, 21 October 1904, NZPD, 1904, vol 131, p 352 (Bennion, p 32)

22.Bennion, p 35

23.Ibid, p 37; doc R15, pp 18-19

24.Bennion, p 38; doc R15, p 19

25.Document R15, p 19

26.Ibid, pp 25, 27

commented that when conditions were the same for Maori and Pakeha, then both should be rated in the same way, but not until then. The Stout-Ngata commission had noted in 1908 that only successful farmers could bear rates demands’.²⁷

In 1918, Native Minister Herries summed up the Government’s past approach to the rating of Maori land:

Native land being held in common by the owners, who in many cases not residing on the land in some cases not residing in the district, has always been treated by the Legislature in a different way to land held in severalty. The owners have no individual rights in the land until their interests are defined and separated. Hence when they cannot individually make use of their land, it has always been considered unfair to treat them as if they were able to get as much enjoyment out of the land as they could if it were held in severalty. It would be unfair by accumulating rates in the shapes of liens on land held in common to deprive innocent holders of interests residing in outside places, perhaps remote from the block and entirely ignorant of any such charges, of their interests in such land. It would be contrary to the universal policy of all New Zealand Governments to allow Native land to be sold for non-payment of rates or to be so charged with liens so as to destroy the equity of redemption, and thus render a Native landless without giving him a chance of occupying the land and getting enough out of it to pay the rates. An owner holding in common is in that position. The remedy for this is individualization and that process is, I am glad to say, proceeding rapidly throughout the North Island.²⁸

Demands from local authorities for more rating of Maori land continued, leading to various Government inquiries after the end of the First World War. Maori at these inquiries stressed that they did not think it fair that unimproved Maori land should be rated. Finally, in 1924, the Government established a committee to consider ‘this most difficult and thorny question’, the ultimate outcome of which was the Native Land Rating Act 1924.²⁹ Under the 1924 Act, aside from customary land, all Maori land was liable for rates, with the specific exceptions of land on which an urupa, a meeting house, or a church was situated (all exceptions not exceeding five acres).³⁰

Rating legislation in the second half of the twentieth century was concerned with bringing Maori land into production, and therefore making it able to bear rates.³¹ The Maori Purposes Act 1950 was intended to promote this purpose. Under section 34, the Maori Land Court could appoint the Maori Trustee to act as agent for the owners of Maori freehold land

27.Bennion, pp 36, 67-68

28.Herries to Minister of Internal Affairs, 24 May 1918, MA20/1/1, vol 1, pt 2, Archives NZ (Bennion, pp 40-41); doc R15, p 20

29.Prime Minister Coates, NZPD, vol 205, p 1050

30.Bennion, pp 46-47; doc R15, pp 21-22

31.See, for example, the recommendations of the Pritchard-Waetford committee and the debate that ensued in Parliament and in the consequent Maori Affairs Amendment Act 1967: Bennion, pp 71-72.

if it met one or more of the following conditions: it was unoccupied; not cleared of noxious weeds; charging orders for unpaid rates had been made; the owners were not farming and managing the land diligently and the land was not being used in the owners’ or the public’s best interest; or if no beneficial owner could be found. These provisions had to be proved before the court and then ratified by the Minister of Maori Affairs. The Maori Trustee could sell the land ‘as a last resort’ if it were incapable of being profitably used.³² Otherwise, alienation was only by lease, the aim being that the beneficial owners would retain title, but not the immediate use of their land. In their book on the Maori Trustee, G and S Butterworth comment that the appointment of the Maori Trustee as a receiver for blocks that had not paid their rates was an ‘unpopular policy considerably pursued during this period’. The authority to use the Native (later, Maori) Trustee had actually existed since 1925, but was not used much until after the 1950 Act. Unpaid rates were becoming an increasing concern ‘as Maori simply left uneconomic land and moved to the towns for work’. By 1961, the Maori Trustee was receiver for 341 blocks totalling 46,000 acres.³³ Bennion comments that evidence he has seen suggests that section 34 of the 1950 Act, and its 1953 successor, was not often used on the basis of rates alone.³⁴

The 1950 Act was followed up with the Maori Affairs Act 1953, under which the Maori Trustee was required to purchase ‘uneconomic’ interests, valued at £25 or below, and resell them to other Maori individuals or incorporations. This was called the ‘conversion programme’, aimed at halting the fragmentation of title caused by a century of native land legislation.³⁵ A significant impact of the conversion programme was that all converted’ land became general land subject to general law, and liable for full rates. The programme was extended to Maori reserved land in 1955, and then ceased with the passing of the Maori Affairs Amendment Act 1974.³⁶ However, any such land that remains as general land in Maori ownership today is still vulnerable to sale for rates arrears.

Under the Rating Act 1967, the Maori Land Court could consider alienation of a block of freehold Maori land in order to promote its ‘effective and profitable use’. This provision was repealed by the Maori Purposes Act 1970. Also in 1967, the Maori Affairs Amendment Act was passed, based on some of the recommendations of the Pritchard-Waetford report. Waetford and Pritchard noted that there were 3,906,565 acres of Maori land left, of which more than a quarter (1,186,096) remained unoccupied and undeveloped. Of that land, 515,026 acres were identified as ‘suitable for development’, 399,844 acres were deemed suitable only for forestry, and 271,226 acres were deemed ‘unsuitable for development’ – that is, 671,070 acres or over half of the remaining unoccupied land were of marginal or no

32.Part III of the Maori Purposes Act, as discussed in G V and S M Butterworth, The Maori Trustee (Wellington: Maori Trustee, 1991), p 82

33.Butterworth and Butterworth, p 83; Bennion, p 70

34.Bennion, p 70

35.Butterworth and Butterworth, p 84

36.Ibid, p 85

potential use except, in the case of some, forestry.³⁷ Waetford and Pritchard were acknowledging that, while the thrust of the legislation of the mid to late twentieth centuries was the development and use of Maori land, a significant portion of that remaining land was marginal or unusable; the best lands had gone. But the remaining land, unless customary, continued to accrue rates debts.³⁸

The Rating Powers Act 1988 was intended to consolidate the rating power of different types of local authorities. The exemptions of up to five acres (2.03 ha) for meeting houses, marae, and urupa were retained. The exemption of customary land from rating also remained, and the power to sell Maori land for rating debt was removed.³⁹

An important new piece of rating legislation was the Local Government (Rating) Act 2002. Because the Act only came into force on 1 July 2003, it is too early to test the effectiveness of any relief provided by the Act, but the Crown made submissions on the Act in its closing submissions for these proceedings, and we set out some points from those submissions. In brief, the Crown submits that the 2002 Act increases the categories of non-rateable Maori land to include burial grounds, crematoria, Maori reservations, and Maori freehold land made non-rateable by Order in Council. All non-rateable categories of Maori land can, however, be charged targeted rates but only in respect of water supply, sewage disposal, or waste collection, while the Act expressly provides that such targeted rates can only be levied if the service in question is actually provided to the land’.⁴⁰

If the land in question is not exempted, rates ‘must be made’. That is, local authorities ‘have no discretion as to whether or not to levy rates and charges on that land’.⁴¹ The Crown notes that rates are not just in return for the provision of services, but are in fact ‘both a general tax on property and a payment for services’.⁴²

The Crown further submits that the effect of the legislation can be softened by the use of differential rating, so that properties which are not exempt from rating, but which are, for example, uneconomic, undeveloped or landlocked – which the Crown acknowledges ‘may be manifestations of the multiple ownership of Maori land’ – can be provided with some relief. However, ‘it is unlikely that such a category could be defined so as to apply only to land in Maori ownership’.⁴³ We understand this to mean that the new legislation offers the possibility of relief for multiply owned Maori land because it tends to be uneconomic or undeveloped, and not because it is Maori land. We note these potential softening provisions have not yet been tested in any submissions or evidence currently before the Tribunal.

37.‘Report of the Committee of Inquiry into Laws Affecting Maori Land and Powers of the Maori Land Court’. 1965, apps C, D (Bennion, pp 70-71)

38.Bennion, p 72

39.Ibid, p 73

40.Document AA1, p 275, app A

41.Ibid

42.Ibid, p 279

43.Ibid, p 275

21.3THE RATING OF HAURAKI MAORI LAND

Rating was raised as an issue in almost every statement of claim in the Hauraki inquiry. However, only the five cases discussed below were substantially argued before us, and we can only make findings or give comments on them. Because the specifics of each case are unique, we set out the submissions on each one in turn; our findings or comments follow each case. At the end of the chapter, we give general comments.

21.3.1The Thames to Hikutaia Road: the 1877 rates exemption agreement

(1)Background

The construction of the Thames to Hikutaia Highway across Maori land was a contentious political issue in the early 1870s. Aside from Maori disquiet over being rated for roads for which the land had been taken without compensation, new roads inevitably crossed Maori lands and opened them to the pressures of the new economy and polity. But Thames Maori held up construction of the Thames-Hikutaia road because they were anxious over its rating implications.⁴⁴ To assuage the anxiety over any rating implications from the construction of the Thames to Hikutaia road, on 19 May 1877 the Thames County Council signed an agreement with Hotereni Taipari, WH Taipari, Hoani Nahe, and Hone Ropiha. The agreement exempted Maori from paying rates ‘now or at any future time’:

This is an agreement entered into by us the Chairman and Members of the County Council in consideration of the conditions upon which the Maoris allow a road to be made over their lands extending from Te Totara to the Matatohi [Makatohi ?] Creek or to Hikutaia. That is the lands of all the Natives who are willing to give up the same for a road or shall at any future time do so. The conditions we hereby agree are as follow:

1.All sacred ground or burial places adjoining or adjacent to the said road we agree to fence with a good substantial fence ...

2.All cultivations by the sides of the said road we agree to fence in ...

3.We agree to purchase and pay for in money the portions of Maori land that are taken up in forming the road ...

4.The Natives are not now or at any future time to pay rates or the generations succeeding them.

5.We who at this time from the Thames County Council hereby make valid the above conditions and enter into them on behalf of ourselves and all who shall succeed us as members of the said Thames County Council and the same shall continue to be in force should the County or the boundaries thereof be altered by this Act of Parliament or by any Government in power in this District.

44.There was also a problem with the Thames to Tauranga county road over public works issues, discussed in chapter 23.

6.In the event of any of the above conditions being broken by us the present Council or by any subsequent Council or any District Government or should any Act be passed by the Assembly which the Maoris are made liable to pay Rates similar to those payable to Road and Highway Boards or should any notice be printed in the New Zealand Gazette by authority of the Legislative Assembly or by an Order in Council whereby the Natives are made liable to pay road rates. Then it shall be lawful for the said Natives or any one of them to close up and fence across the said road to the extent that all traffic on the same shall cease until such time as the Act power or Authority causing the Natives to pay rates shall be rescinded and then and not until then shall the said fence or obstruction erected on the said land be removed. [Emphasis added.]⁴⁵

Mr Bennion comments that this 1877 Agreement between Maori and local authorities appears to be unique.⁴⁶ He observes that its reverberations continued to the 1960s. Anderson notes that for Maori, ‘the agreement had been signed in goodwill, had allowed for the opening of the upper valley and had set a pattern of relations for the future wherein Maori would be consulted’. Claimant John McEnteer also emphasises the importance of the agreement: ‘The agreement was seen by Maori as forming a framework for a relationship which could exist between Maori and local government. It was treated with utmost importance by those Maori who entered into it’.⁴⁷

However, the rates exemption was soon challenged. In 1885, the council sought rates of £421 11d. In response to the levying of rates, the agreement was brought to the attention of Native Minister Ballance when he visited Hauraki the same year. Taipari told Ballance that Maori should not be rated ‘for the country road for the 40 or 50 miles from Tararu into the interior’. Tamati Paetai told Ballance that:

He was the one who threw open his land for the country road. The reason was that a law was made then that the Maoris should not be charged rates. That arrangement extended wherever the road went, up to the end of the Hauraki boundary.⁴⁸

Ballance, however, refused to recognise that any ‘private’ agreement could bind the Crown, and argued that roading improved the value of Maori land and therefore Maori should contribute to roading. But Thames Maori took it that Ballance did ultimately accept the agreement when the 1885 demand for rates was withdrawn.⁴⁹ In additional apparent recognition, in 1886 native agent George Wilkinson asked Hoani Nahe on behalf of the Government for the names of the lands which Maori understood were to be exempted from

45.Copy of 1877 agreement, MA1 20/1/58 (pt 1), Archives NZ (doc A9(a), pp 158-160, 163); doc X39(c)

46.Bennion, p 15

47.Document F21, p 4

48.Tamati Paetai, AJHR, 1885, G-1, p 39 (doc 18, p 135)

49.Document A9, pp 130-131; doc Y1, p 151

rates, and whether or not the council had since demanded rates for this land.⁵⁰ There the matter rested until the 1920s (although in the meantime some of the Maori land involved was bearing rates charges; for example, Hikutaia 1G3 block paid rates of £2 3s 4d for the year ending 31 March 1917.)⁵¹

In 1925, the Thames County Council applied to the Native Land Court for charging orders for rates arrears on some 65 blocks in the district. Maori objected, citing the exemption provided by the 1877 agreement, but the court found that the agreement had ‘no legal force or effect’ since no authority was conferred on the council to free any property from the statutory burden of rates. A local branch of the Young Maori Party movement, the Young Maori Mutual Advancement Association, protested to the Government, reminding it of the 1877 agreement. As a result, by Order in Council (gazetted 20 February 1930), the Government exempted 31 blocks from the Rating Act 1925. Anderson says that some blocks that abutted the road were missed out, as were all partitions of parent blocks that no longer joined the road. Hori Watene therefore also objected, pointing out that the agreement had allowed for the opening of the whole district. Watene stated that the intention of the agreement had been to cover ‘the lands of all the Natives who are willing to give up the same for a road or shall at any future time do so’, and that their provision of land for other roads in the district should be viewed in the light of that expectation.⁵²

Nothing further happened until the 1960s, though the council objected that some Maori who were in a position to pay rates were using the agreement to avoid doing so. Maori continued to seek to have more land recognised as covered by the agreement. On 18 October i960, the county clerk wrote to the Minister of Maori Affairs about the matter, and was advised that the Government would prefer that the council and Maori should come to an independent agreement. Viewing this as an impractical option, the council instead applied to the Maori Land Court for a cancellation of the 1930 Order in Council, but the Maori Land Court dismissed the application, citing lack of jurisdiction. The county council again approached the Minister, who agreed that this was indeed a matter for the Maori Land Court, under section 453 of the Maori Affairs Act 1953. Although Hauraki Maori argued before the court that the original agreement had been made in a ‘spirit of goodwill . . . providing a pattern of relationships for the future’, Judge Prichard recommended that the exemption be phased out over a five-year period. This proposal was endorsed by the chief judge, and gazetted on 16 August 1962, the termination of the agreement to take effect by 1 April 1966.

Thames Maori claim that they should still be covered by the 1877 agreement. David Taipari told us that this remains a live issue for Ngati Maru, and that they have recently

50.Wilkinson to Nahe, 1 July 1886, MA1 20/1/58 (doc J8, p 135)

51.Document J8, p 136

52.Hori Watene to Minister of Maori Affairs, 10 March 1930, MA1 20/1/58 (doc A9, p 134; doc A9(a), pp 177-179)

been embarrassed by the council publishing names of those in rates arrears. ‘Amongst these listed were whanau of Ngati Maru who maintain their ancestral land and are covered by the agreement.’⁵³ Taipari said that he contacted the Mayor on seeing the list and advised him that Ngati Maru considered the 1877 agreement still to be in effect. The mayor was surprised to hear of the agreement, and undertook to investigate further. A series of meetings were held between Ngati Maru and the council, and after hearing Ngati Maru’s position, the council said they would report back. At the time of hearing, Taipari said they were still awaiting the council’s response. McEnteer also talked of their anger at the council’s action in publishing the list of defaulters. He thought the council should have considered the ‘political sensitivities’ flowing from that action, and noted that the land covered by the notice had been compulsorily converted from Maori freehold land to general land following the Maori Affairs Amendment Act 1967.⁵⁴ Sam Napia, the chief executive of the HMTB, made the same point, noting that the council was ‘big enough to admit its mistake’, but should not in the first place have thought it appropriate to humiliate Maori publicly for the council’s mistake in charging unjustified rates. Napia stated that some of Hauraki’s land base had been lost ‘due to the non-payment of rates and local bodies’ demands for land in satisfaction of debts’. Of the remaining Hauraki tribal estate, 75 per cent of blocks do not earn an income, and around 37 per cent are without legal road access. (Presumably, much of this land is still charged rates.) Napia also considers local authorities to be legislative organs of the Crown, and so inseparable from central government.⁵⁵

We note that the council commissioned research to identify rate revenue losses and the lands affected (reproduced as appendices to Taipari’s evidence).⁵⁶

(2)Claimant and Crown submissions

Although the 1877 agreement was clearly intended to be comprehensive, it did not make clear which Maori land was covered, nor what either party meant by ‘rates’. These were matters for submission by counsel in this inquiry.

Claimant counsel interpreted the agreement to mean that Maori owners of land from Te Totara (at Thames) to Hikutaia would be exempt from all rates in perpetuity, as clause 4 seems to indicate.⁵⁷ Claimant counsel noted that the 1877 agreement came about because of Maori apprehensions over the results of the Highways Boards and Empowering Act 1871, and the 5 per cent provisions for roading under the Native Land Acts. Hauraki Maori

53.Document x39, p 16

54.Document F21, pp 6-8, app B

55.Document H44, pp 8, 10, 14

56.Documents X39(a),(b)

57.Document Y1, p 149. Document X39(a) identifies the land covered by the agreement from Te Totara in the north and Hikutaia to the south as falling within 67 parent Maori blocks, which are listed and shown on maps within the document.

‘insisted that they be exempted from rates before they would agree to the construction of the road through their land’.⁵⁸ Their understanding was formalised with the 1877 agreement.

Claimant counsel argued that the Crown has consistendy ‘read down’ the agreement, and has never given permanent effect to any part of it. ‘It is submitted that the 1877 Agreement should have been given an interpretation consistent with its language and applied consistently by both Local and Central Government. To do otherwise was a breach of the duties of utmost good faith and active protection.’⁵⁹

Crown counsel, on the other hand, notes that at 1877, Maori land was liable only for road rates. Crown counsel maintains therefore that ‘the agreement contemplated rates collected for roading, it did not extend to rating for other services. The agreement, if in fact it was legally binding, only applied to the levying of rates that were in contemplation at the time’.⁶⁰ Moreover, the Crown states that, regardless of the merits of the agreement, the council could not bind the Crown to any exemption. However, the Crown considers that the council did waive the payment of all rates (presumably on Thames Maori land, though we note that some Maori were paying rates in the 1920s) until 1933, and then subsequently for 31 properties.⁶¹

The Crown notes that, when Ballance met with Maori at Thames in 1885, the Crown was made aware of the 1877 agreement. Since then, the Crown had acted in a manner consistent with its Treaty obligations. The 1931 settlement was always seen as a temporary measure, and reflected the Crown’s hope that the parties would solve the issue amicably and through negotiation. The Crown also on occasion pointed out the obligations of the county council, while using its Order in Council powers to allow an arrangement to be reached. The matter was then referred to the Maori Land Court for a ‘practical solution’.⁶²

Crown counsel stressed the Crown’s careful approach to the rating of Maori land. Though Crown policy was always that Maori should pay rates, there was also always recognition from the Crown of ‘the special circumstances applying to Maori land which meant special rules and protections had to apply to prevent an unfair burden falling on Maori and resulting in alienation’.⁶³ The Crown acknowledged that ‘the rating burden may not have always been fairly applied to Hauraki Maori’, but submitted that contemporary evidence shows local authorities are now taking ‘particular difficulties relating to Maori land’ into consideration when applying rating policy and legislation.⁶⁴

58.Document Y1, pp 149-150

59.Ibid, p 152; doc AA14, p 54

60.Document R19, p 7; paper 2.227, p 21; paper 2.550, p 41; doc AA1, p261

61.Document R19, p 7; paper 2.227, p21; paper 2.550, p 41

62.Document R19, p 7; doc AA1, pp 264-265

63.Document R19, p 8; doc AA1, p 258

64.Paper 2.550, p 42; paper 2.227, p 21; doc AA1, pp 269-270

(3)Tribunal comment on the 1877 agreement

On the face of it, the Crown position, that the agreement could only have been intended for the categories of rates contemplated at the time of the agreement, seems reasonable. Maori were focused on road rates, and this agreement was made to allow a road through Maori land. Other evidence also tends to support this position. Clause 6 of the agreement, for example, guards against the agreement being broken by making Maori ‘liable to pay Rates similar to those payable to Road or Highways Boards’. We note also Tamati Paetai’s evidence to Ballance that the arrangement not to pay rates extended wherever the road went, up to the end of the Hauraki boundary’. We therefore accept that the agreement covered road rates, rather than all rates. (We can only speculate that Maori would have intended it cover all rates had they realised they would be liable for other than road rates in the future.)

Having accepted that the agreement pertained to road rates, we also accept that the council in signing the agreement could not by that action bind the Crown. Nevertheless, both sides entered into the agreement in good faith. Maori and the council believed this to be a binding agreement and were anxious to make it as comprehensive as possible, taking care to bind future councils and covering any Acts of Parliament. We think that Maori were encouraged to believe that the council then, and any future permutation of local government since, was bound by the agreement. Because of the political context of putting roads through the Thames-Hikutaia district at the time, Maori viewed the council as representing the Crown, and local government as an extension of central government. Both the council and Maori intended the exemption to continue in perpetuity.

We think it unlikely that Maori would have signed the agreement had they known that the council was not, for these purposes, ‘the Crown’, or that the agreement would be for a limited time only. We think Maori should have been exempt indefinitely from road rates for land on which this road runs. For example, having this road constructed across their land should not have brought Maori under the provisions of the legislation that allowed for the rating of Maori land within five miles of a public road. The 1930 Order in Council exempting 31 blocks from the Rating Act seems to us to have tried to give effect to a similar understanding, whether or not it covered all the right blocks of land (we were not presented with sufficient evidence to be able to judge this for ourselves).

We do not have the jurisdiction to re-litigate the 1960 decision of the Maori Land Court, but we do note the Government’s involvement in referring the council to section 453 of the Maori Affairs Act 1953, and consider that the Crown’s good faith is involved in the following respects:

►The 1877 agreement was clearly a reflection of the political reality at the time. Thames Maori owned and controlled entry into this valley, and stipulated recognition of their rights and of that control in return for access. Both sets of signatories to the agreement entered into a relationship voluntarily. Maori stress this aspect of the agreement. The

key in any relationship is ensuring that an equitable balance remains between the parties. We think that the fact that the political reality later changed, with the local authorities gaining most of the power to manage land for public purposes in their respective districts, should not be used against Maori.

►The agreement, like the Treaty itself, was signed in good faith by both parties. It is clear that the exemption from road rates was intended to be permanent. Therefore, under a strict interpretation the council should have waived all rates pertaining to reading over the relevant land in perpetuity. The difficulty today is in knowing just what proportion of rates a road rate is, as well as which particular lands an ongoing exemption should have covered. We note that the council has begun some research into what blocks of land might have been covered by the agreement.⁶⁵

We think it understandable that Maori did not pay rates that were levied by the local authority while they believed themselves exempt by the 1877 agreement. We note that the council is seeking to present its own solution to the issue. We hope there is now the potential in current legislation to achieve the right balance between local authorities and Maori landowners.

We note the concern expressed by claimants over the vulnerability of former Maori land ‘converted’ under the 1967 Act into general land. No protections cover this land. We have found earlier in this report that the ‘conversion programme’ was in breach of the Treaty and did not offer Maori landowners any protection or recognition of Treaty rights (see sec 18.4.6(3)).

21.3.2Thames township

Dr Anderson reports that no land at Thames township was covered by the 1930 settlement, and that outside the 31 blocks exempted from rating, the Thames county and borough councils actively pursued the sale of Maori land for rates arrears.⁶⁶ Mr Hayes agrees that the 1877 agreement did not cover any Thames township lands. He provides evidence that Maori were paying rates in the town by at least the early 1920s, without any apparent evidence of opposition to the rates, or any appeal to the 1877 agreement to exempt them.⁶⁷ With no evidence to assist us as to whether township lands should have been covered by the 1930 settlement, we start from the factual position that Maori land in Thames township was rated. In this section, we explore the fate of Maori land in rates arrears in the township.

65.Documents X39(b), (c)

66.Document A9, p 135

67.Document R15, p 5; doc R33, p 31; see, for example, Mr Hayes’ evidence that collection of rates from Maori township lands averaged around 80 per cent in the early 1920s (doc R15, p 39)

(1)Background

In the late 1920s and early 1930s, Thames township was hit particularly hard by the Depression, because the borough council had borrowed heavily for public works in earlier decades (on the basis of a higher population and an anticipated large revenue from gold). By the early 1930s, the council was defaulting on its loan repayments.⁶⁸ Following an audit by the Department of Internal Affairs, Commissioner C L Grange was appointed to manage the finances of the borough. One of Grange’s main tasks was to increase the rates revenue, by recovering unpaid rates as well as increasing the percentage of rates paid on time.⁶⁹ Many Thames ratepayers were in default at the start of the 1930s: the Internal Affairs audit had noted that judgments for rates arrears of £6458 had been obtained, but of this amount, only £1293 had been collected by September 1931. The audit report noted that there was little point in the council proceeding to the sale of properties in arrears as ‘there is no demand in Thames for business or house property’.⁷⁰ Included among the defaulters were two prominent Maori landholders: E H Taipari and the Stewart whanau.⁷¹

Grange achieved a 60 per cent collection level of rates levied in the 1932 to 1933 year. The Under-Secretary of Internal Affairs and asked Grange for a breakdown of defaulters, and Grange identified eight categories of them. ‘Native land’ was listed seventh, Grange commenting that ‘There is a considerable area of Native Land in the borough and this accounts for a substantial proportion of the 35 percent of unpaid rates.’⁷² In June 1933, Grange also commented that ‘The fact that a large proportion of rates on native land were not paid was an important factor in crippling the Council’s finances. No less a sum than £7,135 is owing for rates on native lands for the past five years.’⁷³

Grange then commented as to his policy for recovery of rates: ‘Equal pressure is being applied to all ratepayers and an efficient follow up system is in operation. The threat of selling the property for satisfaction of rates is of little value in many cases as plenty of ratepayers would be delighted to be relieved of their holdings.’⁷⁴

In his report on the impact of rates on Maori land ownership in the Thames township, Mr Alexander alleges that Grange’s comments reveal a disproportionate emphasis on Maori defaulters when by far the greater number of defaulters were owners of general land.⁷⁵ Dr Anderson supports this, noting that, though much was made of the percentage of arrears

68.Document F1, pp 4-5; doc R15, pp 27-30

69.Document F1, p 5; doc R15, p 32

70.Supervisor Local Bodies Audit to PM Forbes, 28 September 1931, IA64/24, Archives NZ (doc R15, pp 30-31)

71.An important ancestor of the Stewart whanau was Rapana Maunganoa, whose son-in-law was David Stewart.

72.Grange to Under-Secretary, Internal Affairs Department, 1 April 1933 (doc F1(a), B1.3-1.4; doc F1, p 9; doc R15, p 36)

73.Grange to Secretary Native Land Rates Committee, 9 June 1933, MA20/1/14 (doc F1, p 9)

74.Grange to Under-Secretary, Internal Affairs Department, 1 April 1933(doc F1, p 9; doc R15, p 37)

75.Document F1, p 11

owing on Maori land, European-owned land owed ‘triple the amount owed by Maori for the same period’.⁷⁶ Mr Alexander says that, as at September 1933, arrears of £29,528 were owed on township lands. Maori land made up 15.85 per cent of the arrears, or £4679, not £7135 as Grange recorded. However, of the amount owed by Maori, any in arrears for more than two years and not secured by charging order was not collectable. This resulted in the writing off of £1977 of rates owing on Maori land.⁷⁷ Mr Hayes considers that Grange’s description of the significance of the arrears owed on Maori land was reasonable, given the greater difficulty in recovering rates on Maori land’.⁷⁸

(2)Taipari lands

E H Taipari was said to owe £2946 of the amount of rates arrears owed on Maori land. In February 1934, Taipari and the council came to an agreement over the arrears, under which Taipari transferred a number of his town properties to the borough council in return for a ‘complete clearance’ for all rates due to both the council and the harbour board. Grange commented that many of the properties transferred were ‘very desirable ones in good localities. When the properties are realised, they should produce more than the £2361 owing on them. In the meantime, the rents will go a long way towards meeting current rates’.⁷⁹ The question suggests itself to us, why was so much of Taipari’s land transferred, if the rates could have been paid from rents.

In addition to the transfer of Taipari’s land, the Native Land Court made charging orders for four other Maori-owned properties, but refused vesting orders to the Native Trustee for compulsory sale on three of these properties. The court commented that it was not prepared to submit vesting orders to the Native Minister for his consent, but would consider appointing a receiver (as provided for in legislation). Following this decision, Te Hape North 1A was leased under receivership, while the rates owing on Te Roto 1 block were paid by the rent from Rurunui D block, owned by the same person. Mr Alexander comments that this climate of rates charging orders would have disadvantaged Taipari in his negotiations with the council, ‘and almost certainly forced him to make an agreement on unfavourable terms’. There was no indication that Taipari had received independent valuation advice, as to whether the amount of land he parted with was fair for the rates owing. Mr Hayes responds that, because the agreement was made within some five days of the court hearing, ‘it is likely that [solicitor] Poulgrain represented Taipari in these negotiations as he represented Taipari in the court hearings’. Mr Hayes also says that Taipari ‘had a reputation for being savvy in his dealings with local authorities’, but in the absence of any detail on the value of Taipari’s

76.Document A9, p 135

77.Document F1, pp 10-11; doc R15, pp 41, 54 fn 162

78.Document R15, p 36

79.Document F1, pp 10-13; doc R15, p 54

property that was being transferred to the council or on the rates owing, ‘It is difficult to reach an informed view as to the equality of the exchange.’⁸⁰

(3)The devaluing of township land

It seems that Government valuations at the time were considerably higher than prices being achieved on the open market, that is, where a sale could be made at all. In 1933, the nationwide native land rating inquiry heard from solicitor EJ Clendon representing the Thames Borough Council, that most Maori-owned sections in Thames ‘had no great commercial value, no buildings upon them, and no chance of realising a sufficient price to wipe out the rating arrears even if put up for sale’.⁸¹ Clendon noted the rates owed by the Stewart estate – cleared only by the sale of other land – and by Taipari. Clendon blamed the Maori land board for failing to arrange for the sale of other Taipari land to cover the debt, but the board would give approval for sale only if the purchase price met the Government valuation. Clendon said:

The bodies I represent consider that the Native land should be classed as European land ... they consider that if the Rating Act were amended so as to put the Native Land on the same footing as European land it would operate quite well as far as the ... local body is concerned in collecting rates. In this borough the capital value is getting high and the Native is unable to sell his land unless he can prove to the Maori Land Board, which passes the transfer, that he is getting Government value’.⁸²

Clendon continued that he thought a lot of Maori land could be sold ‘if the Native were allowed to take a reasonable price’, and gave the example of Taipari, who by 1933, owed £3000 to the Borough in rates arrears. Taipari had himself suggested that the borough should take some of his land in settlement:

[Taipari] said ‘Take the vacant lands I have here and give me a reasonable price, but do not take the only few buildings from which I get rentals.’ The Native would sell his land at the Government valuation, but the Borough will not take it except the pickings. So on the one hand the borough is unable to collect rates, and the Native on the other hand is unable to sell the land at the price the land is valued at.⁸³

80.Document R15, p 67

81.Evidence of Clendon, 14 June 1933, to Report of Committee on Rating of Native Land, MA20/1/14, pt 2 (doc A9(a), doc 16, pp 395-396; doc A9, p 136)

82.Minutes of submissions made by EJ Clendon, solicitor for Thames Borough Council and Thames Harbour Board, and by D MacKay, county clerk, for Thames County Council, 14 June 1933, MA1 20/1/14, pt 2, pp 390-403, Archives NZ (doc R15, p 68)

83.Evidence of Clendon, 14 June 1933, to Report of Committee on Rating of Native Land, MA20/1/14, pt 2 (doc A9(a), doc 16, p 392; doc A9, p 137; doc R15, pp 67-68)

The chairman of the inquiry asked for an explanation as to why Taipari’s lands were valued so highly if they could not be rented. He suggested that Taipari’s properties might be ‘unduly highly valued’, and wondered why Taipari had not gone to the Valuation Court to have his valuations reduced.⁸⁴ Indeed other landowners in the town had done just that. The deliberate devaluing of their land under section 45 of the Valuation of Land Act 1925 was, according to Mr Hayes, Grange’s ‘bête noire’. In practice, under this Act, landowners could offer land to the Crown at a reduced valuation, and if the Crown declined to purchase at the nominated price, then that price automatically became the new valuation. Grange highlighted one case where the value of a vacant section was reduced from £160 to £1, ‘because the owner had offered the section to the Crown for £1 and the offer was refused’.⁸⁵ Grange considered that section 45 destroyed the equitable basis for rating, noting that many properties were being offered to the Crown at ‘ridiculous’ figures.⁸⁶ Clearly, owners were having their properties revalued to avoid high rates.⁸⁷

Mr Hayes notes that 33 Stewart estate properties were revalued from £8020 to £4414, saving rates liabilities of £450. He says that he has no information as to whether Taipari considered a revaluation of his properties, though later in his report, Mr Hayes states that ‘Taipari does not appear to have bothered to effect a reduction in the value of his properties’, and surmises that this might have been because Taipari perhaps assumed that the council would find it too hard to obtain an order for the sale of his property. Hayes thinks it unlikely that Taipari would not have known of the possibilities for reduction, as his solicitor, Poulgrain was also acting for the Stewart Estate; the Taipari and Stewart whanau are closely related.⁸⁸ We note, however, that Poulgrain had, at the 1934 Native Land Court hearing for charging orders against Taipari, requested unsuccessfully a rates exemption under section 108(b) of the Rating Act.

Clendon could not answer the chairman’s question as to why Government valuations were so high when the land was not producing any rent.⁸⁹ The committee recommended in its final report that a statutory charge for rates should be made against revenue from land, rather than the sale of the land as ‘no Government could stand by and watch Native land generally being compulsorily disposed of for rates liabilities’.⁹⁰ That is, the committee recommended that land should be rated on its improved value. Had such a recommendation been

84.Evidence of Clendon, 14 June 1933, to Report of Committee on Rating of Native Land, MA20/1/14, pt 2 (doc R15, p 69)

85.Document R15, pp 42–43, 50

86.Grange to Under-Secretary Internal Affairs Department, 27 April 1933, IAI, 103/32/6, vol 1, Archives NZ (doc R15. pp 37–38)

87.Grange to Under-Secretary, Internal Affairs Department, 1 April 1933, 1933, IAI, 103/32/6, vol 1, Archives NZ (doc F1, p 9; doc R15, P37); doc R15, p 56

88.Document R15, pp 47, 69, 71

89.Document R15, p 69; doc A9, p 137

90.Report of Committee on Rating of Native Land, 18 April 1933, AJHR, 1933, G-II, p 3 (doc A9, p 137)

followed up, at least for the time of greatest financial strain, it would have assisted owners such as Taipari whose rental income clearly fell below rates demands. We note it would have, conversely, reduced the rates basis for local authorities everywhere. Dr Anderson notes that, as a general rule, the Native Minister continued to refuse to endorse the sale of land for rates arrears.⁹¹

In addition to the Taipari lands, Mr Alexander notes that by April 1935, the council had acquired property with a capital value of £100 (part of the Te Amoriro block) from Tamaiwhiua Ani and Ngamoko in satisfaction of rate arrears of £101. In January 1935, lot 50 Whakaruaki block, owned by Kahu Renshaw, was ‘forcibly sold for non-payment of rates’. Alexander does not say if any of this land was Maori or general land, and through which process, Maori or general, the compulsory sale was effected. Mr Hayes says that the sale was effected through the registrar of the Supreme Court; that is, following the process for general land. Hayes wonders if Renshaw had purchased the land from a European.⁹² Also in 1935, Ira Anihana and Whakamura Watene agreed to the transfer of a section to the council on which they owed £37 2s 9d in rates.⁹³

(4) the Stewart estate

In 1936, Grange reached a settlement with the Stewart estate. The rental income of the Stewart estate had fallen below rates demands since the early 1930s. It seems that the estate had voluntarily sold some land to meet arrears in the early 1930s, including some sold to the council for £200 in 1934, then in 1935, offering seven more sections to the council, which it declined. Also in 1935, the estate offered a business-area property to the council in settlement of rates arrears of £500 but then sold it privately instead for £600 and settled some outstanding rates.⁹⁴ Clearly, the estate was trying to keep abreast of its rates arrears. Applications for Native Land Court charging orders over many Stewart estate sections were made by the borough council in 1936, but before the court came to hear them, agreement was reached. In settlement of outstanding rates of £1100, the council received estate properties valued at £4210, and a cash payment of £340.⁹⁵ Mr Hayes comments that ‘there was plainly no relationship between the Government valuation and the actual market value of the properties’.⁹⁶ He also suggests that the agreement may have settled not only the rates owed by the Stewart estate but also all the rates owing on the Matiu whanau estate, plus any rates owed by all

91.Document A9, p 137

92.Document R15, p 73

93.Document F1, pp 15–16; see also doc R15, pp 51–56, 59–62 for detail as to six periods of takings of lands for rates under Grange.

94.Document F1, pp 16–18; doc R15, pp 71–72

95.Document F1, pp 18–19; doc R15, p 72

96.Document R15, p 62

beneficiaries of both estates on land held in their own right.⁹⁷ Mr Alexander observes that the Stewart whanau, like other Maori landowners, were caught in a squeeze between static high rates charges and declining revenue from their properties ‘which could only be alleviated by the loss of land to the Borough Council’.⁹⁸ In reporting to the Under-Secretary for Internal Affairs in April 1936, Grange noted that to date, property valued at a total of £10,885 had been acquired by the council. Of this total, the value of Maori land acquired amounted to £7895. Grange commented, ‘It is of great future value to the Council to have Native land Europeanised.’⁹⁹

Mr Alexander says that, throughout the late 1930s and into the early 1940s, the council continued to apply for charging orders over a number of sections. The court granted a number of orders, though noting that ‘Charging Orders are never a very successful means of collecting rates’, and suggesting that alternative arrangements would be preferable.¹⁰⁰ In 1943, Taipari again came to such an alternative arrangement with the council over arrears of £102 10s 3d, whereby four properties were transferred to the council. Then, in 1944, the council ‘forced’ a sale of land belonging to Hera Ngahuia Mare, who owed a substantial amount of rates. The council acquired the property at auction at the reserve price of £169 is 7d. Alexander does not say how the council forced the sale. By 1946, Taipari again came to an arrangement with the council over another accumulated rates debt of £722 6d. Another four town sections were transferred to the council, with the council paying Taipari £85 as the properties were valued in excess of the arrears.¹⁰¹

(5)Part Kauaeranga 9 block: the ‘eyesore’

Dr Anderson, Mr Alexander, and Mr Hayes all discuss the treatment of the ‘dilapidated’ house on part Kauaeranga 9 block, owned by the Paraone whanau. The house on this property was apparently used by any Maori person stranded in Thames without accommodation, and was not permanently inhabited, nor habitable. Around 1934, the Health Department declared the property uninhabitable and gave notice to the Paraone whanau to vacate it. On the request of the Native Minister, a Maori welfare officer (Mr Te Anga) investigated and reported that the land was low-lying and often flooded in one area by high spring tides. The

97.Document R15, p 72. This understanding would seem to be supported by the explanation given to the Native Land Court:

It has been agreed between the Borough Commissioner Mr Grange and the beneficiaries that certain properties shall be vested in the Borough Council in full discharge of all rates due by the Stewart family and the Matiu family up to 31 March 1936; and the Borough undertakes to pay all rates due by both these parties in respect of all Thames Borough properties to the Thames Harbour Board up to 30 September 1936.

From Hauraki minute book 70, fols 271–272; doc F1, p 18.

98.Document F1, p 20

99.Grange to Under-Secretary for Internal Affairs, 29 April 1936 (doc F1, p 20)

100.Document F1, pp 21–22

101.Ibid, p 22

large ‘old fashioned’ house was then about 60 or 70 years old, in need of re-roofing, and damp and decayed at its base. There was no drainage or sewerage. Te Anga recommended that the building be raised off the ground by at least two feet, and that all decayed sections be replaced. He commended the borough council for its offer to reconnect the water supply and link the house to town drainage, provided the owners pay seven shillings sixpence or 10 shillings per week. Te Anga thought this offer should be taken advantage of immediately.¹⁰² But the repairs were not made and the council’s offer was not taken up.

In March 1937, the borough council asked the Native Land Court to place the matter before the Minister to see if he would consider vesting the land in the Native Trustee for sale as altogether the position is most unsatisfactory’.¹⁰³ The land owed £35 7s 2d in rates at February 1935.¹⁰⁴ While the Minister was generally opposed to vestings for sale, it was thought he might make an exception if the council were to purchase the land at a reasonable price. The matter was dropped until the early 1940s, when the borough council again pressed for a vesting order for sale.¹⁰⁵ In June 1941, the court inspected the property and decided that the problem was somewhat of a title and subdivision problem, with two oddshaped parcels of land requiring consolidation. One parcel, in European ownership, was a ‘mere strip’, but took almost all the frontage; the other (the Paraone’s land) had almost no frontage. The court adjourned the matter.¹⁰⁶ In September 1943, Commissioner Bell reported on the subject; he thought the land should be vested in the Maori Trustee, and subdivided, with two sections going back to the Maori owners. He had discovered that the land, though presumably still Maori land, was undivided, and was three-quarters owned by Europeans. Bell thought that a vesting order might the best way of getting around the ownership problems.¹⁰⁷ By April 1945, the block owed £122 2s 7d in rates arrears and court costs. The borough council was prepared to take the land in settlement of this amount, to subdivide it, and convey ‘a suitable building section’ back to Mr W[iri] Brown [Paraone]’.¹⁰⁸ At a June 1945 hearing, the court vested the block in the Thames Borough Council under section 113 of the Rating Act 1925, with the requirement that the council subdivide and vest one town section in Queen Street back to the Maori owners.¹⁰⁹

102.Mr Te Anga, Maori welfare officer, to registrar, Native Land Court, 19 December 1934, MAI 20/1/23, Archives NZ (doc R15, pp 74–75)

103.Acting town clerk to under-secretary, Native Affairs, 3 March 1937, MAI 20/1/23, Archives NZ (doc R15, p 75)

104.Document F1, p 23

105.Document A9, pp 137–138; doc F1, p 25

106.Hauraki minute book 71, fols 271–272 (doc F1, p 25)

107.Bell to Judge Beechey, 13 September 1943, Maori Land Court, Hamilton, correspondence file H104 (doc F1, pp 25–26)

108.Town clerk, Thames Borough Council, to registrar, Native Land Court, Auckland, 20 April 1945, Maori Land Court, Hamilton, correspondence file H104 (doc F1, p 27)

109.Hauraki minute book 72, fols 109–110 (doc F1, p 27)

The Hauraki Tribal Executive Committee criticised this vesting in the council, and appealed to the Minister to stay the order. In explaining his decision, Judge Beechey suggested that the tribal committee could have objected much earlier in the process, and noted the lengthy history to get to ‘such a satisfactory settlement’.¹¹⁰ The Minister declined the appeal. Then, in 1947, the section for return to the Paraone whanau was, by agreement, vested only in the name of Iriwata Paraone, as he lived in the area and would be able to build on the section, and it would be ‘useless to bring into the Block all the owners, as they will hold only small interests’.¹¹¹

Mr Alexander criticises this process and suggests that the council wanted to acquire the land because it was a physical and legal eyesore. He notes that at one point in the process, the council had offered two sections, but only one was allocated in the outcome, and this ‘was granted to one owner, while other descendants of the original owners missed out ... Notwithstanding the better placed location of the section provided by the Council, the Maori owners still lost a substantial proportion of their town lands because of unpaid rates.’

Mr Alexander comments that, overall, the actions of the Commissioner Grange reduced Maori land holdings in Thames township by two thirds, reducing the economic stake of Maori in the town.¹¹² Dr Anderson observes that, while Maori land was valued highly for rating purposes, when Maori were compelled to sell land to cover rates arrears, it was acquired for a much smaller amount. This was done ‘without any thought for the value of those properties as a basis for future participation in the commercial development of the town’.¹¹³

(6) Claimant and Crown submissions

The claimants say that Commissioner Grange unduly targeted Maori land: ‘rates not collected on European land were much more important to the overall debt of the Borough and yet it was the unpaid rates by Maori [that] were emphasised by Commissioner Grange. European landowners owed four times as much as Maori.’¹¹⁴

Counsel considers that, following the issuing of charging orders, Maori were forced to sell their lands at low value to the council, mainly through ‘voluntary’ arrangements. There was no provision in the Rating Act that the price paid for Maori land should be at least equal to the Government valuation. Neither was there any consideration given to the potential landlessness caused by such sales, ‘or indeed ensuring that Maori retained a presence in Thames’.¹¹⁵

110.Judge Beechey to registrar, undated, attached to registrar, Native Land Court, Auckland, to under-secretary, Native Department, 8 August 1945, Maori Affairs head office file 20/1/23 (doc F1, p 28)

111.Judge Beechey to Pita Makiri, Thames, and Ripeka Brown, Gisborne, 16 December 1947, Maori Land Court, Hamilton, correspondence file H104 (doc F1, p 28)

112.Document F1, pp 29–30

113.Document A9, pp 138–139

114.Document Y1, p 154

115. Ibid, p 155

Claimant counsel notes the Crown’s acknowledgement (set out in submissions on the 1877 agreement above) that the rating burden may not have always been fairly applied to Hauraki Maori, and asserts further that the acquisition of properties by the council in settlement of rates ‘had a clearly disproportionate effect on Hauraki’. Maori gave up land worth £7895, that is, around 75 per cent of the total £10,885 worth of land acquired in settlement for rates, though they owed only 16 per cent of the outstanding rates. This had the effect of reducing Maori land holdings in Thames township from 163 sections in 1932 to 31 sections by 1947. Taipari alone gave up 29 blocks. Counsel for Wai 100 asserted that the Crown should have taken into account that Taipari, who Grange classed as a wealthy landowner, may have been fulfilling the functions of a rangatira and that his landholdings might reflect those of his iwi. Mr Hayes had acknowledged this possibility in cross-examination.¹¹⁶ Claimant John McEnteer recorded how his grandfather described rent day in Thames in the 1930s. Taipari had one of the first Model T Fords in the area, and he would drive down the main street of Thames stopping to pick up the rent from his rental properties. This was a ‘great festival occasion because Taipari also had a monkey’, which he got from a circus. ‘All the children were given a shilling and a portion of the rent was shared among the different whanau present.’¹¹⁷ Claimant counsel concluded that rates continue to be a burden to Maori landowners today.¹¹⁸

The Crown, however, does not accept that targeting of Maori land occurred under Commissioner Grange’s control. Neither does the Crown accept that Grange placed an undue emphasis on Maori landowners in arrears in comparison with other defaulting ratepayers. Instead, the Crown asserts that the commissioner, facing a very difficult task, was even-handed in his actions and always careful to ensure that no homelessness resulted. The Maori landowners in default were ‘relatively prosperous, were legally represented, and seem not to have objected to the arrangements they entered into’. The size of their landholdings was exceptional in proportion to other landowners. ‘It is submitted the peculiar facts of this situation produced the result rather than targeting’.¹¹⁹ They were in a particularly anomalous situation because much of their land was not generating a sufficient return to cover the rates.¹²⁰ The commissioner made considerable efforts to establish an equitable basis for rating ‘so that the burden would be more fairly spread amongst the ratepayers’. Moreover, it was reasonable for Grange to note the arrears owed by Maori: ‘The commissioner was also alive to the fact that recovering rates on Maori land was difficult.’¹²¹

In reply to the claimants’ contention that voluntary arrangements such as those reached

116. Document R33, p 41; doc Y1, pp 155–156

117.Document F21, p 10

118.Document Y1, pp 155–156

119. Document AA1, pp 267–268; doc R19, p 9

120. Document AA1. p 269

121. Ibid, p 267; doc R19, p 9

between the council and Maori landowners were not subject to the normal protection mechanisms as to price and landlessness, Crown counsel says that the Maori Land Court did in fact vet the voluntary agreements. The various provisions of the Native Land Act 1931 were relevant. The Stewart and Taipari whanau were not rendered landless. The Crown submits that those whanau were likely aware of the protective mechanisms covering their lands, and would have known of the difficulties facing local authorities in obtaining court orders for sale. Neither the court nor the Minister of Maori Affairs was inclined to permit the sale of Maori land for rates. ‘It was open to the Stewart Estate and Taipari to refuse to accommodate the Commissioner and permit only the leasing of their lands’ The commissioner did not exert undue pressure on them to come to the voluntary agreements.¹²² Rather, ‘It is clear that a combination of factors operated together that resulted in a good deal of Maori land passing out of their hands in the 1930s.’¹²³

In the Crown’s view there is no evidence that Kauaeranga 9 was targeted as an ‘eye-sore’. The terms of the settlement with the council does not support the contention that the council saw Maori ownership of borough lands as a problem. Rates were only one of a number of factors leading to the settlement, along with subdivision and frontage problems.¹²⁴

(7) Tribunal comment on Thames township

We accept that Commissioner Grange had a difficult task during a time of great hardship for many New Zealanders. We agree with the Crown that Grange does not appear to have targeted Maori land for any other reason than that it owed rates. However, we also accept the Crown’s acknowledgement that a significant amount of Maori land passed out of Maori ownership under Grange’s commission. Maori landowners (and perhaps other landowners who came to voluntary agreements) were caught with outstanding arrears of rates at a time when Thames property values had fallen dramatically.

We do not accept Mr Hayes’ assertion that Taipari did not ‘bother’ to get his values reduced because, in Mr Hayes’ supposition, he probably thought the council would not be able to obtain an order for the sale of his property. In none of the evidence presented to us was there any suggestion that Taipari or the Stewart whanau avoided payment of rates. They were paying rates on other lands, and came to several voluntary arrangements to settle rates arrears in the township. Neither do we accept the Crown’s implication that a protection mechanism open to Taipari and the Stewart estate was being ignored because of the supposition that the council would face difficulty in getting Ministerial consent for the sale of Maori land. This Crown argument seems to suggest that Maori were responsible for land loss because they did not take advantage of obscure legalities (not open to other citizens) which they may not have known about. Mr Hayes acknowledged in cross-examination that

122.Document AA1, pp 268–269

123.Ibid, p 269

124. Ibid, p 268

Maori tended to honour debt when ‘there was no legal obligation to do so’.¹²⁵ We cannot accept that it is proper for the Crown to offer arcane protections on the basis that if Maori fail to take advantage of them then it is their fault they lose land.

If compulsory sales were the only alternative, then one advantage of voluntary agreements instead of sale was that the owner could rationalise which lands to keep and which to forgo for rates. For example, to some extent Taipari chose which lands he gave up. It seems possible that, because land in the town was so expensive to own at this time due to high valuation for rates, Taipari chose to keep his country farm lands over his town rental lands.

We make a brief observation on Grange’s comment, picked up by Mr Alexander, that ‘It is of great future value to the Council to have Native land Europeanised’.¹²⁶ We suspect that this comment is not as sinister as it may at first sound, and agree with Mr Hayes’ comment in cross-examination that ‘it was purely that he [Grange] wants a simple, cheap regime to cover rates. The European system should apply to Maori land in the borough’.¹²⁷ Clendon, representing the council in 1933, said as much: ‘The bodies I represent consider that the Native land should be classed as European land.’ We believe that Grange and Clendon both meant that having title ‘Europeanised’ (ie, converted legally to the status of general land) from fragmented, multiple-ownership, greatly simplified the levying and collection of rates, rather than meaning that land should be alienated from Maori ownership (even though the two often went hand in hand). We stress, as Mr Hayes did, that rates problems stemmed from the title problems caused by years of experimental native land legislation. That legislation resulted, as we have found in chapters 15, 16, and 18, in fragmented title and multiple ownership leading to an inability to develop land and make it revenue-producing and self- sufficient. The impact of fragmented title and the inability to develop the remaining pockets of Maori land is a cost to our wider society, not just to Maori.

Finally, with regard to the Kauaeranga 9 block, we do not accept Mr Alexander’s assertion that this case illustrates the targeting of Maori land as an eyesore. We think this case shows instead a considerable amount of care being taken to keep some land in Maori ownership and to give that land better access and frontage. We think it reflects well on the Crown that in one of the few instances we were presented with of the Minister being prepared to allow a vesting for sale, this was in large part for the improvement of access for the Maori owners. We accept Mr Alexander’s point that other owners were left off the title after subdivision of the land. But we also think that the most practical solution was adopted in this case. While the subdivision facilitated the collection of rates by the council, the Maori owner also benefited. Again, we think this reveals the long shadows cast by the root problem of fragmented title and fractionated interests.

125.Document R33, p 44

126.Grange to Under-Secretary for Internal Affairs, 29 April 1936, Internal Affairs head office file 103/32/6 (doc F1, p 20)

127. Document R33, p 39

21.3.3 Rating and the relationship with the Thames–Coromandel District Council

(1) Tikouma 3B2

The Wai 806 claim concerns in part the rating of land at Tikouma, in particular Tikouma 3B2 block. Rates of approximately $120,000 were outstanding on this block from 1992 until the time of hearing in August 2002. The claimants object to this block being rated. While claimant Maraea Blomfield accepts in general that they are liable for rates, she does not understand why they should pay rates for this block when no services are received, and considering that they have already lost so much land in the area due to survey liens. The claimants have also constructed a road over the block at their own cost, and have incurred other significant costs in trying to develop and use the block. Meanwhile, the coastal zoning of the block means that the owners cannot construct more than one residence on it. More of them want to live on the block. The rates question has lead to an ongoing dispute with the Thames–Coromandel District Council.¹²⁸

Miss Connolly, a trustee for Tikouma 3B2 and a legal executive with significant experience in trust management, presented evidence on the difficulty of developing the block. The trust’s first hurdle came in 1975 when they spent much time and money opposing the block being designated as coastal reserve. They finally succeeded in removing the designation in 1980, and then began to look at ways to use the land, which had meanwhile reverted to a rural designation. In the early 1980s, marine farming was beginning as an industry in the Coromandel, and the trust believed that Tikouma Harbour was an ideal place to establish facilities for the industry. The trust decided on building a marine farmers ramp, with road access and parking also provided. To that end, they applied under the Town and Country Planning Act 1977 to the district council for planning consent in May 1988. ‘We felt as a Trust that we could take some of the pressure off the council to develop the area and indicated to them that we would build and operate our own ramp on the Harbour, in particular, on the foreshore of the Tikouma 3B2 block’.¹²⁹ By this time, the block was designated coastal, and the proposed ramp came under the 1977 Act’s ‘permitted use’ provisions. However, the council required them to notify the application anyway, and ‘a horrendously expensive planning exercise followed’. Fifty-five objections were received. The application was granted in August 1988, then appealed, and following meetings with the objectors, final approval was obtained in October 1989. This process cost the trust $23,000 in legal expenses. Miss Connolly said they had not yet been able to pay these expenses. Neither had they yet been able to settle all the outstanding costs associated with the building of the ramp and its related infrastructure. These amounted to $260,000, of which they had managed to pay $100,000. The trust had been unable to borrow any money for the project so the trustees and owners had funded it themselves. The trust also bore responsibility for the cost of the

128. Document X26, pp 9–10

129. Document X27, p 3

maintenance of the road, and have never had any assistance from council with this, just as they have never received any of the other community values which normally rate payers take for granted’.¹³⁰

While the coastal zoning of the land might have been appropriate for the ramp activities, it was not suitable for owners who wished to live on the block. The trust unsuccessfully tried to get the designation of the block changed to coastal-residential (which allowed for small clusters of houses) when the district plan was reviewed in 1998. The trust then decided it would have to partition the block amongst whanau groups, since this did not require the consent of the council. Partitioning had not been their preferred option as it further fragmented ownership, but at least it allowed for use of the land for residential purposes, and its ultimate retention as Maori land.¹³¹

Miss Connolly alleges that, while the trustees had discussed rates with the council and at one point offered a lump sum in settlement, they had never once since 1975 received a formal rates demand from the council. But on 15 April 2002, ‘completely out of the blue’, the trust received a copy of an application by the council under section 238 of the Te Ture Whenua Maori Act for the trustees to be investigated by the Maori Land Court for the nonpayment of rates. Rates arrears for a six-year period amounted to $121,473.06, including penalties. Tikouma 3B2 has a rateable land value of $1,123,500. The application suggested that the trust was in receipt of a significant income from the marine ramp.¹³²

At the time of hearing in August 2002, the matter was pending resolution between the two parties. This Tribunal has not been informed of any outcome as yet, but for the claimants, the concern is that even if this matter were to be resolved by agreement, ‘there is still an ability for the Council to rate the land even in a situation where Council policy makes it impossible to use the land without going to the enormous expense of employing planning and other experts to assist in a planning exercise’.¹³³ Miss Connolly asserts that the owners would not object to paying rates as long as they could live on the land and use it for their benefit while enjoying normal services and amenities.¹³⁴

Before setting out the submissions from counsel for the Tikouma 3B2 claimants, and the Crown’s reply, we briefly note here other claimants’ statements about rates and their relationship with the local council. Pongarauhine Renata told the Tribunal about the problems of paying rates on undeveloped land in multiple ownership. Renata said this problem affected everyone in the Manaia Valley. The council put pressure on resident owners to pay the rates: ‘thereby those people become debt collectors against the absentee owners’ Renata said that everyone resented rates, because they got no services in return. ‘For myself I would

130.Ibid, p 4

131.Ibid, p 5; doc X26, p 10

132.Document X27, p 6

133.Ibid

134. Ibid, p 7

be happy to pay rates if the Council actually did anything for us locally such as helping with sewerage schemes and tarsealing roads’ Renata accused the council of lacking understanding of Maori and Treaty issues.¹³⁵ James Hemi Mikaere also told us of problems with the Thames–Coromandel District Council over rates. Mikaere said that everyone in the Manaia Valley is behind on rates payments and they do not think they should have to pay since they get nothing in return, and they think that the council does not understand their needs. While they have reached an agreement with the council to pay the arrears, this was because ‘we don’t wish to lose our lands. All we have done is postpone the problem.’¹³⁶

(2) Claimant and Crown submissions on the rating of Tikouma 3B2

While claimant counsel acknowledged that rating legislation applies to all landowners and similar rating issues arise for Maori and non-Maori alike, he alleged that there are particular Treaty considerations to take into account with the rating of Maori land. First, the relationship between Maori and land is based on cultural imperatives such as whanaunga- tanga, turangawaewae, and ahi ka. These imperatives are especially important considering the enormous loss of land already experienced by Hauraki Maori. Secondly, Maori make different uses of their land, not based only on economics. Thirdly, Maori have a kaitiaki role over their land. Fourthly, owners’ future needs should be considered. And, fifthly, the relative landlessness of Hauraki Maori should be considered by the Crown when enacting legislation affecting and impinging on Maori in the use of their land, ‘more so with respect to Hauraki Maori where the scale and volume of the land and alienation had been enormous’.¹³⁷ Counsel noted that, in the Tikouma 3B2 case, the Local Government (Rating) Act 2002 does allow for the waiving of rates, but counsel did not accept the Crown’s contention that local authorities are currently using these powers to exempt Maori land, nor is there any evidence of the council taking into account the Treaty implications of the Act. And while the 2002 Act may result in the waiver of the outstanding rates on the Tikouma block, ‘the simple point is that whether it’s a successful outcome for the claimants or not, really depends on the goodwill of the Council’.¹³⁸

Crown counsel asserted that the 2002 Act does give due recognition to Treaty principles, including cultural land use values. But the enforcement of rating on Maori land is a legitimate exercise of government, established by article 1 of the Treaty. The 2002 Act, combined with the 1988 Act, offers a number of mechanisms for rating relief for Maori land in use for customary purposes, or which is landlocked or not receiving services. Counsel asserts that under the 2002 Act, a number of claimants have reached agreement with their local

135.Document I18, pp 6–7

136.Document I12, p 8

137.Document Z2, pp 12–13

138. Ibid, pp 13–14

authorities.¹³⁹ With regard to the application by the council to investigate the trustees of the block for the non-payment of rates:

there appears to be some misunderstanding between the parties (and a possible misapprehension by the council as to the income received from the lands). The Crown submits that some initiative taken by the trustees might assist in resolution of this issue. The council ultimately has the power to waive the rates arrears and the Crown would expect these powers to be exercised in a fair and reasonable manner by the council.¹⁴⁰

(3) Tribunal comment on Tikouma 3B2

The above claims all relate to the Local Government Rating Act 2002, the effect of which remains to be tested against the Treaty. On the face of it, the Act does seem to offer local authorities some options in tackling the ever-difficult issue of rating un-serviced or nonrevenue producing Maori land. We hope that the Act might also offer the chance for local authorities and tangata whenua to improve their relationship.

We note and support the Crown’s comments urging the council to act in ‘a fair and reasonable manner’ in considering waiving the outstanding rates for Tikouma 3B2. But we also accept claimant counsel’s argument that any waiver or exemption of rates remains at the council’s discretion. We urge the Crown to monitor the legislation to ensure that it is applied by local authorities with consistency and fairness.

We were provided with no information as to the financial position of the Tikouma 3B2 Trust, the soundness of the marine farms services they provide, or their ability to pay the outstanding rates or indeed bear rates in general.

We can take these claims no further at this stage, as the 2002 legislation remains to be tested. Beyond stating the obvious, that the legislation that empowers local authorities is passed by the Crown and should be consistent with the principles of the Treaty of Waitangi, we do not consider the question of whether local authorities are agents of the Crown. The matter was not argued by counsel in these proceedings.

139. Crown counsel gives the example of Benjamin Karewa (doc F20). Mr Karewa explained the rating problem experienced by his whanau land, the Papakitatahi A block. This block is landlocked, access to it requiring the permission of neighbouring landowners. It is also subject to regular flooding, increased by the clearance of timber from the Kauaeranga River. The flooding makes cultivation of the land impossible. It is unfenced and

used by neighbouring farmers for grazing, though they pay no rental. The owners cannot live on the land but are still charged rates. From 1975, Mr Karewa’s mother had tried to get the rates remitted, and when Mr Karewa took over running the whanau interests in 1996, rates arrears amounted to over $9000. Finally, on 18 October 1998, Mr Karewa received a letter from the Thames–Coromandel District Council informing him that the rates debt on the block would be written off and that no further rates would be charged until the land was being used.

140. Document AA1, pp 272–273

21.3.4 The Maori Trustee and Harataunga 2A (Rangiriri Island)

The Maori Trustees management of the 200-acre island known as Harataunga 2A or Rangiriri Island is closely tied to rating issues. The trustee became involved following a suggestion from one of the owners to subdivide and sell the land to cover past and future rates, while also allowing the owners to retain sections. The subdivision never eventuated due to engineering concerns about access to the island, but costs had accumulated with the Maori Trustee, while rates also continued to accrue. The trustee reclaimed costs on the eventual sale of the island for significantly less than the owners thought they might achieve, and without the retention of any of the land for themselves. During the Maori Trustee administration of the island, no attempt was made by the trustee either to pay the outstanding rates or to come to an agreement with the council for future rates. The rates arrears were finally paid on the sale of the land.

(1) Background

In October 1967, Keita Walker, one of the Ngati Porou owners of Harataunga 2A, wrote to the registrar of Maori Affairs from her Ruatoria home. She said that she was aware of local authority concerns over rates on Maori land, and was anxious for the owners of the block (most of them absentee) to discuss the best utilisation of the land. She had recently inspected the block and thought it might be suitable for development as a seaside holiday area. She rejected an earlier idea from the major shareholder, Pakiriki Harrison, for a housing subdivision scheme because she believed that would require considerable outlay and mean an ongoing rates liability for sections not sold in the early stage of the development. She wrote:

Here the same wearisome problem of multiple ownership appears to be the biggest drawback to full utilisation. The farming possibilities cannot be overlooked on certain blocks but of course sound financial backing is essential as a very concentrated and continual development programme is obviously the only worthwhile venture. Anything else is false economy, a waste of time and man power. However, what did draw my attention there was the apparently useless seaside land, which I consider could hold a great potential in the (tourist) holiday makers trade.

We, the owners in this area are all agreed that we should form a company or the likes under one title and apportion shares according to our present interests, and our intention to sell. We realise that legal and survey costs would have to be met and are toying with the idea of offering shares in the company to a solicitor & surveyor in return for their services.

Because the market is virtually untapped and we are only surmising its potential, it is difficult to know whether it is worth bothering the Maori Trustee about.

This brings me to the point of writing to you and seeking advice on what to do and

Figure 87: Harataunga blocks affected by the Maori Trustee’s purchase of uneconomic interests

what steps one can take to negotiate a profitable sale. This block is owing in rates and it is obviously senseless to remain owners at such a distance and to find it fast becoming a liability with accruing rates.¹⁴¹

The Hamilton Maori Affairs office must have passed the letter over to the Maori Trustee,¹⁴² as the trustee’s district officer Ivan Apperley replied saying that subdivision had been proposed for Kennedy Bay before, but rejected as land there was not regarded as suitable. (Presumably, Apperley was referring to the Harrison’s earlier suggestion of subdivision; however, it is possible he was referring to the 1897 designation of part of Harataunga 2A as Kaimakau native township. The township never eventuated, but the designation remained

141. Walker to registrar, Maori Affairs, Hamilton, 4 October 1967 (doc R16, pp 7–8; doc S8(a), p 162)

142. In general, the department and the trustee worked closely together; see, for example, the Waitangi Tribunal, Te Whanganui a Tara Me Ona Takiwa: Report on the Wellington District (Wellington: Legislation Direct, 2003), pp 370, 377, with regard to the two offices being filled by the same people.

in place at least until the 1940s, when the block was repartitioned.¹⁴³) Apperley thought current demand was for land south of the Kennedy Bay area, but he agreed to reconsider. Shortly after, Apperley visited the block and decided that a large part of it would be suitable for subdivision. He discussed this option with the county engineer, who agreed it seemed a good idea, and noted that the county council would welcome such a move as long as several conditions were met. These were that the whole island would have to be involved in the subdivision, that there be a one-chain reserve around the coast of the island, and that the sub-divider should bear the cost of linking the island to the mainland. It was estimated that the cost of a single lane 40-foot bridge would cost £10,560, though that estimate did not include costs for the approaches to the bridge.¹⁴⁴

In March 1968, the trustee wrote to Pakariki Harrison (the major shareholder with 19 shares out of 52), advising him of the trustees investigation to date, and suggesting that the land ‘may well be suitable for subdivision’, and advising that there was no objection to such a scheme from the Coromandel County Council. He asked if Mr Harrison wanted the trustee to continue investigations into the feasibility of subdivision and sale, and suggested that if so, the owners could vest the block in the trustee. Mr Harrison apparently replied by phone that he would be ‘only too pleased’ for the Maori Trustee to become the section 438 trustee¹⁴⁵ of the block in order to subdivide and sell it.¹⁴⁶

In early April 1968, Jim Rabarts, chairman of the Coromandel County Council Development Committee, wrote to Apperley suggesting a meeting between Apperley and Harrison. He noted that several years earlier, he had discussed with Harrison the possibility of subdividing the island, and had urged Harrison then to use the services of the Maori Trustee. Rabarts wrote that his interest in the matter was ‘to get some useless Maori land doing something’, and thought the trustee was the only one who could achieve this.¹⁴⁷

Also early in April, Harrison’s mother sought information on the proposed subdivision and advising that a prospective purchaser had already offered £38,000 for the land. Mrs Harrison thought this offer should be accepted, but noted that the owners did not. The trust office’s senior estates clerk, Hansen, said that, if the owners wished to sell the land as it was, then the trustee would not ‘stand in the way’, and neither would it seek a section 438 vesting in that case. Hansen then recommended that a circular letter be sent to all owners seeking their consent for the section 438 vesting; however, no letter was sent. The trust office began preparing a plan for subdivision the same month, as well as an estimate of the profitability

143.Document S8(a), pp 253–264; doc R16, pp 6–7

144.Apperley to senior estates clerk, 15 March 1968 (doc R16, pp 9-10; doc R16(a), p 6)

145.That is, section 438 of the Maori Affairs Act 1953, which empowered the Maori Land Court to vest Maori land in the Maori Trustee for lease or sale. The section was widely used for the creation of trusts, a tool in the 1950s and 1960s for managing multiply owned Maori land: see sec 18.4.6.

146.Maori Trustee, Hamilton, to Pakariki Harrison, 28 March 1968 (doc F16(a), p 7); Ivan Hansen, senior estates clerk, filenote, 1 April 1968 (doc F16(a), p 8; doc R16, p 10)

147.Rabarts to district officer, 2 April 1968 (doc F16(a), pp 10–13; doc F16, p 11)

of the proposed subdivision. Under this estimate, it was predicted that a profit of $70,000 would result, but the estimate did not include survey, legal, or land agents’ costs. The cost of preparing the plan of subdivision was estimated at $200.¹⁴⁸

By mid-April, a team from the trust’s and Maori Affairs’ offices, including Apperley, land utilisation officer Lockie, senior surveyor Kerr, and senior estates officer Hansen had visited the block. On 18 April, Apperley and Hansen met with the Coromandel county clerk and his deputy to discuss the proposal, and divide responsibility for various matters. Access to the island was clearly the main issue, as Hansen wrote in a file note. A key question was whether the stream separating the island from the mainland would revert to its original channel; if so, a bridge of 80 to 120 feet in length would be required; however, if this possibility could be ruled out, a bridge of only 40 feet would be required. Hansen wrote that this would have to be ascertained before any idea of the economics of the proposal could be finalised. Aside from this issue, Hansen seemed quite hopeful that subdivision would be feasible: ‘sections at Kennedy’s Bay should sell as well as the sections at Whangapoua.’¹⁴⁹

On 22 May 1968, surveyor Kerr submitted his ‘tentative’ scheme plan for subdivision, noting that the plan was one of several options. He commented that he had included ‘luxurious’ amenities in his plan, in the hope these would assist to sell the sections more readily, as too many previous beach subdivisions had not made enough allowance for services. He thought, overall, that the positive aspects of the land – its safe sandy beach, sheltered harbour, good fishing – would outweigh the poor access to the area. In terms of access to the island itself, he favoured a causeway and small bridge, and after consulting the Ministry of Works, revised down the estimated cost of a bridge to $10,000. He also commented on other general matters such as sewerage, electricity and phone lines. He suggested 147 sections, ranging in size from 28 to 40 perches, with estimated sale prices from $800 to $2500, with an average price of $1631. Hansen estimated that expenditure would come to $122,490, and revenue to $251,000, allowing a gross profit of $128,510, or a return of around 51 per cent. This was significantly higher than the standard return of around 33.3 per cent. However, Kerr cautioned that close settlement of the land might not be ideal, that further erosion around the stream channel was possible, and noted that they must be certain about the permanence of the channel. He closed his report by noting that, while Apperley and other staff were optimistic about the plan, he himself was ‘somewhat hesitant to advise any speedy action in developing these sections’. He urged further investigation.¹⁵⁰

From May to September 1968, Apperley and Hansen discussed the bridge requirements and various options with the county engineer, the Marine Department and the Ministry

148.Document R16, pp 11–12

149.Proposed Harataunga 2A subdivsion, file 12/265, Ivan Hansen, 19 August 1868 (doc R16(a), p 18; doc R16, p 14)

150. Kerr to district officer, Hamilton, 22 May 1968 (doc R16(a), pp 27–38; doc R16, pp 14–17); doc S8(a), p 163

of Works.¹⁵¹ Then, on 20 September, Hansen met with Pakariki Harrison and apprised him of the bridging concerns. Hayes notes that in this discussion, Hansen ‘purposely’ omitted any discussion of Kerr’s preliminary estimate of development costs, rather focusing on the comparison of the offer of $38,000 with the projected profit of double that amount from subdivision. Hayes describes this omission as ‘both curious and inappropriate’. At any rate, as Hayes notes, ‘Harrison was attracted to the prospect of subdividing the land rather than selling the block as a whole, as it would enable the owners to retain sections’.¹⁵² To retain sections, the owners would have to purchase them at current market value from the Maori Trustee, if indeed the block were vested in the trustee for subdivision, which Hansen recommended. Hansen and Harrison then inspected the block. It was the first time Hansen had seen the land, and he recorded that on inspection, his doubts were dispelled as to the sufficient elevation of the island.

While visiting the island, Hansen also met with Pakariki Harrison’s father, who agreed to seek the written consent of the remaining owners (living at Ruatoria) to vesting title in the Maori Trustee. Hansen then sent out consent forms for such a course of action, but the other owners refused to sign, requesting further information as to the cost estimates, and the percentage to be taken by the Maori Trustee. The Maori Trustee replied by way of a circular letter, in which the bridging issue was noted, and a variation of Kerr’s plan was set out. Without explanation for the variation, however, this plan contemplated 162 sections instead of the 147 Kerr had suggested, as well as a camping ground, roads, and the one chain wide reserve above the mean high-water mark, as required by statute. The letter also noted that approval for the Maori Trustee to loan the money for subdivision was required from the Board of Maori Affairs, and that the trustee’s interest rate was 6 per cent. By ‘conservative estimate’, the subdivision was predicted to realise about $200,000, giving a margin of profit of $94,500, or a 90 per cent return. That is, this proposal was more optimistic than that outlined by Kerr, but no explanation was given for this change, and no mention was made of Kerr’s warning notes. In fact, the letter went on to assure the owners that no difficulty was anticipated in gaining consent from the county council, or from the Marine Department for the causeway and bridge. The trustee concluded the letter by setting out a projected timeline of about two years to recoup the cost of subdivision.¹⁵³ Crown witness Mr Hayes comments that ‘It is not clear from the file how the Maori Trustee arrived at his estimate of expenditure or revenue, or, for that matter, the timeline’. Neither is it apparent that the predictions as to timeline and profit were based on any actual market research.¹⁵⁴

Mr Hayes also noted other ‘more serious’ omissions in the letter. First, there was no warning to the owners of Kerr’s caveats as to drainage and water supply and, secondly, the letter

151. Document R16, pp 17–19

152. Ibid, p 19

153. Circular, 23 October 1968 (doc R16(a), pp 61–62; doc R16, pp 21–22)

154. Document R16, p 23

failed to set out liability for the costs of investigations to date, or for the investigations that were still to be undertaken to advance the proposal.¹⁵⁵

The letter did not reassure all the owners. The Ngarimu family remained concerned as to the costs of the Maori Trustee, so Hansen suggested a meeting with all the owners to discuss the proposal. The meeting was held at Ruatoria on 23 January 1969, with all owners attending bar a Mrs Maniapoto and Mr Harrison (he was unavailable due to work commitments, but asked Hansen to represent him). A file note recording the meeting has the Hamilton district officer (presumably Apperley) pointing out to the owners the ‘Very considerable experience’ of the trustee in effecting subdivisions, and noting that ‘this was not land suitable for farming but it was admirably suitable for subdivision’. Apperley also noted that the Coromandel County Council had ‘agreed in principle’ to the proposal. Apperley compared the offer of $39,000 for the whole block with a projected profit from subdivision of $100,000. But, as with the circular letter, the file note does not record any discussion of Kerr’s cautions as to drainage and water supply, or the owners’ liability for the Maori Trustee’s costs to date and the costs yet to come. Mr Hayes surmises that Apperley and Hansen were now assuming the subdivision would proceed, with only the bridge issue to be resolved. No discussion was recorded as to the brustee’s 5 per cent commission, any land agent commissions, interest on a loan from the brustee, or on rates. Kerr’s original draft plan had allowed for each of these.¹⁵⁶

The owners present at the meeting agreed to vest the block in the Maori Trustee for subdivision and sale. On 30 January, the Maori Land Court made the vesting order, noting that eight out of nine owners had agreed.¹⁵⁷ Apperley then applied to the Board of Maori Affairs for loan approval, assuring the board he anticipated no difficulties in selling sections and noting that the Coromandel County Council was supportive of the subdivision. But the Maori Trustee head office sharply reprimanded Apperley for initiating the vesting (now confirmed by the court) without first seeking the permission of the trustee himself: ‘Before considering the loan submission we would like to know on what authority the section 438 trust was accepted, as acceptance in a case of this sort does not fall within the Maori Trustee’s delegations to district officers.’¹⁵⁸

Head office also wanted more information on the period of the intended loan, the value of the sections, and whether the ‘economics’ of the proposal had first been evaluated by the Valuation Department. Apperley advised in response that he had indeed discussed prices with the Valuation Department and the estimates were conservative. He described the popularity of Kennedy’s Bay as a holiday destination and renowned fishing ground. But head

155. Ibid, p 23

156. Filenote, 24 January 1969 (doc R16, pp 24–26; doc R16(a), p 78)

157. ‘Application for Vesting of Land in a Trustee’, 28 January 1969 (doc R16(a), pp 78–80); ‘Order Vesting Freehold Land in a Trustee’, 30 January 1969 (doc R16(a), pp 81–83); doc S8(a), pp 162–163

158. Head office to Apperley, 7 February 1969, AAMK series, file 869/12461, 54/27/263, Archives NZ (doc S8(a), p 164)

office remained unconvinced of the soundness of the project and was ‘reluctant to commit itself to a project of this size’.¹⁵⁹ Head office also questioned the demand for sections, and the stability of the present course of the Harataunga Stream. Hayes thinks Apperley or Hansen must have consulted the Marine Department (orally?) about the stream, and was confident that it was stable.¹⁶⁰ In March 1969, G H Webb of the Hamilton office of the Valuation Department wrote to the Maori Trustee supporting the subdivision, saying he saw great potential in the scheme. He thought the estimated average selling price of $1200 per section to be on the conservative side.¹⁶¹

On 19 March 1969, head office applied to the Board of Maori Affairs for a loan of $85,500, representing the amount required for a first stage subdivision of 90 sections. Mr Hayes comments that ‘There is no evidence on the file of any consultation with the beneficial owners on this variation.’ Neither did Hansen mention the variation to owners when he informed them a loan had been approved.¹⁶²

While the loan application was being compiled, Pakariki Harrisons solicitors advised the Hamilton Trust Office that the Coromandel County Council was seeking charging orders for unpaid rates on the land amounting to $719.30. Harrison could not pay the rates owing. Hansen suggested in reply that the solicitors try to negotiate with the council to delay charging orders by telling the council that they would be able to collect higher rates should the subdivision proceed. Of course, by this time, the land had already been vested in the trustee. Mr Hayes comments that ‘It is extraordinary that the Maori Trustee should assume that the Council would remit the outstanding rates (if that is what Hansen meant)’. However, it appears that Apperley had already discussed rates with the council in early February 1969, as the council advised Harrison’s solicitors that ‘The District Officer [Apperley] advised that the Maori Trustee would not be interested in outstanding rates prior to the date of the order vesting the land in him.’¹⁶³ The council rejected the idea that charging orders would interfere with progress of the subdivision, which Hansen appeared to believe might be the case. Mr Hayes suggests that if the Maori Trustee was confident about the success of the proposal, he should have undertaken to clear all outstanding rates on completion of subdivision, as it appears to Hayes that the council would have accepted this as sufficient protection in lieu of a charging order. Harrison’s solicitors suggested this course also. But, while the council had to protect its position without any such assurances, it was prepared to assist the subdivision where possible, and made what Mr Hayes calls a generous offer to accept land from the subdivision equal in value to the arrears owing.¹⁶⁴

159.Head office to Apperley, 7 February 1969; Apperley in reply, 14 February 1969 (doc R16(a), pp 89–90; doc R16, p 27); doc S8(a), p 164

160.Document R16, p 28

161.Document S8(a), p 165

162.Document R16, p 28

163.County clerk to Cairns Slane and Company, 7 March 1969 (doc R16(a), p 97; doc R16, p30)

164. Document R16, p 31

In the event, the court adjourned the hearing for charging orders to give the parties a chance to negotiate, but they were unable to reach agreement. Then in June, the council asked the trustee if he was in a position to give an undertaking to pay the amount owing when funds became available, but the trustee replied he was unable to give such an undertaking until potential erosion issues on the island were resolved.¹⁶⁵ Erosion had become a discussion point in April 1969, when Apperley met with the county engineer and the chairman of the development committee, Rabarts. The council had been concerned about erosion for sometime; there was already evidence of it at the southern end of the island. The bridge, drainage, and roading were also discussed. A meeting took place on site on 13 May

1969 to further these matters, especially the causeway and bridge. It was noted that the bridge would have to cope with the river’s propensity to flood. Kerr was asked to prepare a new scheme plan, for a two-stage subdivision, but then was then asked to halt work pending negotiation over erosion and what to do about the course of the Harataunga Stream. But negotiations did not progress much from May 1969 until March 1970, though Kerr did suggest to Hansen in August 1969 that returning the stream to its original course would be cheaper than building a causeway and bridge. In June 1969, the council also advised that it approved the preliminary scheme plan in principle, though remained concerned about the potential for erosion.¹⁶⁶

By mid to late 1969, Apperley was beginning to doubt the viability of the subdivision. Progress began to slow considerably in comparison with the first flush of optimism. Around the same time, head office asked for a progress report. In December 1969, Harangi Harrison called at the Hamilton office also inquiring as to progress. Both were told that progress had stalled pending resolution of the stream issue. The request for information spurred Hansen into suggesting to Apperley that the beneficial owners should be informed of the current state of affairs and also that the trustee intended to terminate the trust. However, it appears that no circular letter was sent to the beneficial owners at this time.

In 1970, rates again surfaced as an issue, once more prompting action. In late February 1970, the council applied to the Maori Land Court for charging orders for rates arrears of $356.40. Once again, the council said it would not pursue the charging orders if the trustee would agree to clear all arrears on completion of the project, and once again, the court adjourned the matter sine die. (We note it appears from later correspondence that the charging orders were nevertheless granted; see below.)

Momentum was building to consider reverting the stream to its original course. In April 1970, Hansen met with the Ministry of Works Soil Conservation Engineer Attwood to discuss the possibility. In a file note of this meeting, Hansen records his doubt that the subdivision would proceed, but states that Attwood’s opinion would determine that. Attwood

165. County clerk to Maori Trustee, 20 June 1969; Apperley to county clerk, 1 July 1969 (doc R16(a), pp 147, 149; doc R16, pp 32–33)

166. Document R16, pp 35–36; doc S8(a), pp 166–167

visited the site on 5 May 1970, and gave his preliminary report on 24 July 1970. If subdivision was to proceed, he preferred returning the stream to its original course as he thought the current course only temporary. However, the strong warnings he gave about the potential for storm and tide damage to the island, and the cost of reverting the stream gave little cause for optimism about subdivision. Hansen commented to Attwood in reply: ‘Your forecast that the course of the Harataunga Stream will revert to its old position within the next few years does not fill us with enthusiasm about the idea of spending $100,000 on the development and subdivision of the land.’¹⁶⁷

Nothing further happened until October of 1970, when the county clerk asked as to progress, as the council was of course anxious to know when it might receive settlement of the outstanding rates. Apperley replied that the trustee would take no further steps with subdivision until they had received the final report from the Ministry of Works. A similar inquiry as to when funds might be forthcoming from the subdivision and sale (it seems Dalgety NZ Limited was awaiting payment from one of the owners, E P Kawhia, who was relying on his share to settle ‘long standing accounts’)¹⁶⁸ finally prompted a circular letter from Apperley to all beneficial owners on 10 November 1970. Apperley advised the owners that, though a scheme had been approved in principle, the council wanted confirmation of the course of the stream. Apperley said that he would be in touch again when a decision had been reached.¹⁶⁹ This appears to be the first communication with most of the beneficial owners since January 1969, and as well as there being an almost two-year gap in correspondence with the owners, Crown witness Mr Hayes notes that the letter was lacking in other respects. Apperley did not mention the outstanding rates situation, nor did he fully verse the owners as to the investigations into the stream’s course or of the erosion problem. ‘In short, the Maori Trustee failed to keep the owners fully informed.’¹⁷⁰

Once again, the council applied for charging orders for outstanding rates, this time from $324 for the 1970–71 year. The charging orders appear to have been granted. These rates and those for the 1969–70 year, were both addressed to the Hamilton office of the Maori Trustee. Hayes notes that there is no record of the trustee forwarding the notifications on to the beneficial owners.¹⁷¹ And once again, an inquiry by one of the owners prompted the next contact with the trustee. Mrs Harrison of Ruatoria visited the Hamilton office on 12 March 1971 and asked as to the progress of the subdivision. Apperley replied that the project was still on hold while they waited for confirmation of the stream’s course, saying that it was unlikely that the course would be certain for some years yet. Mrs Harrison apparently said that she now understood the problem and would inform other owners at Ruatoria.¹⁷² In May 1971,

167.Hansen to Attwood, 31 July 1970 (doc R16(a), p 185; doc R16, p 41)

168.Dalgety NZ Ltd to Maori Trustee, 2 November 1970 (doc R16(a), p 190; doc R16, p 42)

169.Apperley to all beneficial owners, 10 November 1970 (doc R16(a), p 193; doc R16, p 42)

170.Document R16, pp 42–43

171. Ibid, p 43

172. Filenote, 17 March 1971 (doc R16(a), p 200; doc R16, pp 43–44)

Pakarikí Harrison’s solicitors also inquired about the progress. The trust office replied that ‘considerable doubts are now being entertained by the Maori Trustee as to the worthiness of the proposal’ and that, as trustee and prospective lender, it was the trustee’s role to ‘ensure that no commitments are entered into ill-advisedly’.¹⁷³

Shortly after, in July 1971, Attwood (the Ministry of Works’ soil engineer) made his final report. He recommended that subdivision not proceed, because there was, in his opinion, insufficient protection for residences from storms (most of the island was only four feet above the mean high-water mark), and there were also erosion and accretion problems. The Maori Trustee therefore decided to end the project, terminate the trust and revest the block in the beneficial owners, advising them of this by letter of 26 August 1971.¹⁷⁴ The trustee also advised the council, adding that, because ‘no funds are received by the Maori Trustee ... it is not possible to make any contribution’ for rates.¹⁷⁵

The county clerk replied straight away, asking the trustee not to revest until the council had had time to resolve the rates issue, and also asking the trustee to consider selling the block as a whole, which the trustee declined to do.¹⁷⁶ Pakariki Harrison’s solicitors also replied immediately, requesting a copy of Attwood’s report, which the trustee declined to release to the owners, saying the report had been ‘made to the trustee’. However, the trustee then set out his estimated costs (of $110), and stated that the Ministry of Works might charge for Attwood’s report; that is, the same report which he would not release to the owners. Mr Hayes comments that the trustee’s decision to refuse a copy to Harrison’s solicitors was ‘extraordinary’, especially as the same day as this reply to the solicitors, the trustee forwarded a copy to the county clerk. Mr Hayes continues that perhaps even more important was that in signalling his intention to pass on the cost for the report to the beneficial owners, the trustee ‘was seemingly oblivious to the fact that he was a trustee for the beneficial owners’.¹⁷⁷

On 18 November 1971, one of the owners (Huingawaea Harrison) wrote to the Hamilton Maori Land Court registrar, seeking clarification of the rates owing and any charging orders. Harrison also wanted clarification as to whether the Coromandel County Council ‘was in a position to ask the Maori Trustee to make provisions for the sale of the Harataunga 2A block if the landowners paid the rates’.¹⁷⁸ The deputy registrar replied that charging orders existed for the periods 1 April 1967 to 31 March 1969 of $712.80, 1 April 1969 to 31 March

1970 of $356.40, and 1 April 1970 to 31 March 1971, also of $356.40. That is, the court had

173.Maori Trustee to Cairns Slane and Company, 21 June 1971 (doc R16(a), p 202; doc R16, p 45)

174.Maori Trustee to beneficial owners, 26 August 1971 (doc R16(a), p 209; doc R16, p 46); see also doc S8(a), pp 168–169

175.Maori Trustee to county clerk, 26 August 1971 (doc R16(a), p 208; doc R16, p 46)

176.County clerk to Maori Trustee, 30 September 1971 (doc R16(a) p 226; doc R16, p 47)

177.Maori Trustee to Cairns, Slane and Company, 10 September 1971 (doc R16(a), p 216; doc R16, p 47)

178.Huingawaea Parearau Harrison to registrar, Maori Land Court, Hamilton, 18 November 1971, BACS series, file A908/2A, C377, Archives NZ (Ak) (doc S8(a), p 170)

been making charging orders for the entire period of the proposed subdivision, from 1967 though to 1971.¹⁷⁹

The application for revesting the block in the beneficial owners and for charging orders for $106.96 for the trustee’s costs went to the Maori Land Court on 30 November 1971. The beneficial owners opposed the application, instead wanting the block sold ‘as is’. Kohn, counsel for eight out of nine of the owners, argued that at the January 1969 meeting at Ruatoria, the trustee had asked the owners to vest the land in the Maori Trustee. He also argued that the question of rates had been addressed by Apperley at that meeting, and that Apperley had assured the owners ‘that they would not have to worry about rates’. Kohn said outstanding rates now stood at about $1900, and the trustee had done nothing about these during his trusteeship.¹⁸⁰ Counsel Randall, representing Pakariki Harrison, asserted that the trustee had ‘not consulted with his beneficiaries in any way whatsoever’, and refused to give Attwood’s report to the owners. This refusal he regarded as a breach of trust. He argued that, because the owners wanted the block sold, the trustee had an obligation to assist them to this end.¹⁸¹ The county council supported a sale, and was ‘waiting in the wings’, in Mr Hayes’ words, with its own application for charging orders (in fact, the county clerk had suggested in September 1971 that the council seek the trusteeship itself ‘to promote development and thus secure payment of the rates on the land’.¹⁸² However, the trustee agreed to remain for the purposes of selling the block as a whole, as long as a charging order was granted for his costs to date and for the sale.¹⁸³ But the court refused the trustee’s application for a charging order for $106.96, as the amount was not supported by ‘particulars’ (and the court was not impressed at charges such as 96 cents for interest.) The court also stated that the evidence did not seem to support the trustee’s claim that the block could not be subdivided. But the court did vary the trust terms so that the block could now be sold as a whole. The trustee’s costs would be revisited at the termination of the trust on sale.¹⁸⁴

The trustee immediately began marketing the block for sale as a whole. Three tenders were received: one from R L Grey for $11,128; another from O and A McKay for $2600; and the final from George W Potae for $6000. But since the Government valuation was $16,500, the trustee wrote to counsel for the owners saying he would decline all three offers, and that it was not an opportune time for sale. The trustee thought the block would increase in value in the next years, and he doubted whether the council ‘could really achieve anything by way

179.ID Bell, Maori Land Court, Hamilton, to Huingawaea Parearau Harrison, 24 November 1971, BACS series, file A908/2A, C377, Archives NZ (Ak) (doc S8(a), p 170). For each charging order, there was an additional $2 in costs.

180.Minutes of hearing (doc R16(a), pp 248–254; doc R16, p 48)

181. Ibid (p 254; p 49)

182. Comments by county clerk to council executive committee, 6 September 1971, SP180, DMA, Kennedy Bay Island, TCDC (doc S8(a), pp 169–170)

183. Document R16, p 49; doc S8(a), pp 170–174

184. Minutes of hearing (doc R16(a), p 261; doc R16, p 50)

of payment of rates in view of the lack of appeal of the property’.¹⁸⁵ He asked the owners to reply within a month, and said that he would ask the court to discharge him from his trust and grant charging orders for his costs to date. Counsel for the owners all suggested that the trustee try marketing the property again, through a reputable land agent, or try and increase the offers. Soon after, Pakariki Harrison’s solicitors advised the trustee that Harrison had been in negotiations with George Potae, and asked if Potae had been one of the tenderers. The trustee responded that he had tried to increase the offers, and confirmed that Potae had been one of the tenderers. Indeed, in the outcome, the trustee did manage after much negotiation to get Grey to increase his offer to the Government valuation of $16,500, subject to the trustee loaning Grey $7500 for a term of five years at 61/2 per cent. Grey was to pay for any survey costs to obtain a land transfer title. Settlement of the sale was effected on 12 December 1972. On 20 December 1972, the trustee informed the beneficial owners that the block was sold and their respective shares of the proceeds would be sent after rates and his costs had been settled. By early 1973, the trustee had paid the outstanding rates of $1902 from the proceeds of sale, and on 5 February 1973, the county council’s chairman wrote to the Maori Land Court advising that the council was discharging the three charging orders over Harataunga 2A.¹⁸⁶

Distribution was not made to the owners until 31 May 1973, though Pakariki Harrison did not receive his share at that time. Harrison wrote to the Minister of Maori Affairs in June 1973 complaining at the lack of distribution. In the letter, he stated:

Several years ago, the Coromandel County Council raised the rates on the [Harataunga 2A block] quite considerably as it was rezoned a Residential property and we were forced to subdivide or sell to meet insistent rate demands. The Maori Trustee suggested that we subdivide and tentative plans were drawn up ...

Since the sale of the property the values have been lowered considerably and rates are now nominal as it has been rezoned Rural – a very bitter pill to swallow indeed as it was through rezoning from Rural to Residential that we were required to sell in the first place.¹⁸⁷

We note Mr Harrison’s complaint that the land had been rezoned residential at some point, which raised the rates liability of the land, and then rezoned rural after its sale to Mr Grey, lowering the rates liability once again. Unfortunately no further information as to the zoning or valuing of the land for rates purposes was presented to this inquiry. At any rate, the Minister replied to Harrison (after first receiving a report from the Hamilton Maori Affairs office), apologising for the delay in distribution, and explaining that costs, fees, and

185.Maori Trustee to Wauchop Kohn and McIntyre and to Miller and Poulgrain (Randall’s firm), 24 March 1972 (doc R16(a), pp 299–302; doc R16, pp 51–52)

186.Document R16, p 53; doc S8(a), p 174

187.Pakariki Harrison to Minister of Maori Affairs, 20 June 1973, AAMK series, file 869/12461, 54/27/263, Archives NZ (doc S8(a), p 175; doc R16, p 55)

outstanding rates had to deducted first.¹⁸⁸ Harrison’s share had mistakenly been held for him at the Hamilton office, rather than sent to his solicitors as instructed. In the outcome, the trustee charged $934.52 for his services, including a fee of $120. The law firm of Wauchop Kohn and McIntyre also invoiced for $350 plus disbursements of $88.50, but the trustee challenged this and managed to get these fees reduced by $75. Mr Hayes comments that ‘the Maori Trustee’s fees and other charges were extraordinarily modest given the significant amount of work undertaken’.¹⁸⁹

(2) Claimant and Crown submissions

Two groups of Ngati Porou Ki Harataunga Ki Mataora made submissions on this issue, and their submissions differed on some key points. The Wai 866 claimants’ position appears to be summed up in the words of claimant John Tamihere, as follows:

Ngati Porou states that the Maori Trustee, in collusion with the Rating Officer of the then Coromandel County Council, applied such duress and pressure as agents of the Crown that Maori owners were left with no option but to sell Harataunga 2A, or Rangiriri Island.¹⁹⁰

Mr Tamihere states that Rangiriri Island is of special significance and character to Ngati Porou. The remains of both Ngati Porou and Hauraki tupuna are buried there, and it was a strategic area. But the owners were, under duress, put in a position such that the land was a forced sale; ‘pressure such as this rather tha[n] Maori consent led to many land “sales’”. The key shareholder (Pakariki) was placed in an invidious position, as rating pressure was being applied by the local authority to ‘either pay up or sell up.’ The owners, who lived away from the land and had large families to support, were ‘under significant hardship at this particular point in time’.¹⁹¹ Counsel John Kahukiwa added that if there had been no rates liabilities, the owners would not have considered selling parts of the island to raise money. The Crown and its agents could have remitted the rates owed, but this does not appear to have been contemplated.¹⁹²

Mr Tamihere considers the Maori Trustee ‘colluded’ with the local authority by accepting unquestioningly the rates liability, and seeking alienation of the land to end his involvement in the matter. The Maori Trustee wanted to recoup his costs. Tamihere also criticised the Maori Trustee for financing the eventual sale to Mr Grey in 1976, alleging that the trustee financed, at the expense of the owners, the alienation of the land. Further, Tamihere says the trustee did so to ‘escape its onerous and fiduciary responsibilities to the Maori owners’.¹⁹³

188.Document S8(a), p 176

189. Document R16, p 58

190. Document D32, p 2

191.Ibid, pp 2–4; doc Y19, pp 12–14

192.Document Y19, pp 14–15, 19–20

193. Document D32, pp 2–4; doc Y19, p 20

The trustee did not consider financing an offer by Mr Potae, a tangata hau kainga, or try to negotiate a better offer from Mr Potae.¹⁹⁴

Tamihere and Kahukiwa both stress that Mr Hayes’ report does not take into account the many phone conversations and informal discussions between the owners and the trustee, which provide a fuller context for the owners’ decisions as to a continuing role for the trustee.¹⁹⁵ (The Wai 866 claimants also drew attention to the Maori Trustee’s compulsory acquisition of ‘uneconomic shares’.¹⁹⁶ This issue is discussed in section 18.4.6.)

The Wai 792 claimants, on the other hand, ‘do not suggest that the Maori Trustee and the Coromandel County Council colluded to sell Harataunga 2A. They do not agree with any suggestion that the Maori Trustee “forced” the owners to sell Harataunga 2A.’ As their researcher Parekura White concluded: ‘The Maori Trustee did not initiate the subdivision and or the sale of the block.’¹⁹⁷ Despite this, the Wai 792 claimants have concerns which arise out of the administration and sale of Harataunga 2A. The concerns are that: multiple ownership, as highlighted by Keita Walker, was a drawback to the utilisation and development of the block; the Maori Trustee had failed to keep the owners informed of increasing rates, when rates were a chief reason why the owners wanted the trustee to continue to administer the land for subdivision; and that the Maori Trustee continued to encourage subdivision while being aware of ‘serious flaws’ associated with it.¹⁹⁸ The accumulation of rates was a ‘significant contributing factor in the sale of Harataunga 2A’. In addition, the Crown insisted on a reserve contribution from all subdivisions. The taking of such reserves nibbled away from the ever-diminishing Maori freehold land base, and, together with the legislation that allowed local authorities to sell land in satisfaction of outstanding rates, can hardly be said to show the Crown actively protecting Maori land to the fullest extent possible.¹⁹⁹

Crown counsel replied to the claims over Harataunga 2A through its submissions on the role of the Maori Trustee. Essentially, Crown counsel endorsed Mr Hayes’ conclusions, denying that the trustee forced the owners to sell, or that he colluded with the county council for settlement of rates. Rather, ‘It was the owners, doubtless concerned by the burden of rates, who insisted upon the Maori Trustee remaining as trustee for the purposes of selling the block. The Maori Trustee reluctantly acquiesced.’ Mr Hayes states that the trustee did not initiate the proposal to subdivide the block, but became involved at the invitation of Keita Walker. Pakariki Harrison had already contemplated a subdivision of the block several years prior to this attempt. ‘In short, the owners contemplated selling the block several years before the Maori Trustee became involved.’ While there were shortcomings in the trustee’s administration of the block, these shortcomings do not, in Mr Hayes’ opinion, support the

194. Document Y19, p 20; doc AA1, p 290

195. Document S35, pp 29–30; doc Y19, pp 16–19

196. Document Y19, pp 11–12; doc AA1, pp 284–293

197. Document S8(a), p 177

198. Document Y18, pp 21–22

199. Ibid, p 25

essence of the claim. While ‘the burden of rates was a problem for the owners several years before the Maori Trustee became involved’, an omission of the trustee’s administration ‘was his failure to have the owners address their responsibility regarding the rates’.²⁰⁰

Crown counsel reiterated that the Maori Trustee did not collude with the county council to force a sale for rates, and neither did the trustee push for a sale of the land to recover his costs. Counsel noted the claimants’ assertion that there was a wider context of ‘gentlemen’s agreements’, but was unable to respond due to lack of evidence.²⁰¹ Further, the Crown argued that it would have been irresponsible to accept the Potae offer, which was well under half the largest amount offered (by Grey) for the island as a whole.²⁰²

(3) Tribunal comment on Harataunga 2A

It seems evident to us that, as the Wai 792 claimants hold, no undue pressure was exerted by the Maori Trustee on the owners of Harataunga 2A to subdivide and then sell the block. It is apparent that the Maori Trustee was, after an initial burst of undue optimism, very reluctant to continue as trustee and sell the land. Neither does it seem to us that the trustee’s costs were particularly significant to the outcome of the block. Moreover, it is clear from Keita Walker’s letter that the owners were aware from the outset that there would be legal costs similar to those charged by the Maori Trustee. Mrs Walker had suggested that the owners might consider giving a solicitor shares in the company they would form for subdivision, in lieu of payment.

But the Maori Trustee should have tried to negotiate some rates agreement with the council, and, as Mr Hayes acknowledged, most definitely should have kept the owners better informed of their rates obligations. It is hardly surprising that, without being advised otherwise, the owners would have assumed the trustee would manage rates during the course of the trusteeship. This would have been especially so as rates were the driving force for having the land vested in the Maori Trustee for subdivision and sale.

We accept that there would undoubtedly have been many informal discussions between the trustee’s office and the beneficial owners, separate from the written record, as is often the case. We are not able to speculate as to what those discussions might have been, and what either side might have informed the other of in such discussions. Regardless, the trustee had a duty to keep the owners informed not only of their rates obligations but also of the lack of progress of the subdivision. That the owners were not notified of the problems for a crucial two-year period clearly shows inadequate consultation and protection by the Maori Trustee. This is compounded by the fact that the owners had been led to believe that, within that same time frame, the next correspondence they could expect to receive would be their share of the sale proceeds. But we do not suggest that the trustee is an agent acting by or on

200.Document R16, p 58

201.Document AA1, p 291

202. Ibid, p 292

behalf of the Crown; this was not argued before us, therefore we rely on the findings of the Waitangi Tribunal’s Te Whanganui A Tam report.²⁰³ This being so, there is a difficulty in seeing how the administrative failings of the trustee can be said to be procedural failings by the Crown. It is easy to understand how the perception might arise, as the Native (later Maori) Trustee was, of course, set up by the Crown, and the work of this office was often carried out by Crown officials in the Department of Maori Affairs. We suspect that the trustee’s actions in this regard would not stand up to the Crown’s expectations of that office either, as Mr Hayes indeed suggests.

We do not accept counsel for Wai 866’s suggestion that the Maori Trustee pressured the owners into subdivision, which was first mooted by Pakariki Harrison and then Keita Walker. The trustee acted on their suggestions, although the office should be admonished for encouraging subdivision unrealistically as a profitable investment before knowing the engineering limitations. We further note that the Maori Trustee’s district staff encouraged the owners to vest the land in the trustee rather than accept a very reasonable offer in hand of $38,000. In hindsight, the owners would obviously have been better off accepting this sum, as they did not retain any sections under the eventual sale of the block for half that amount. The trustee’s staff must bear responsibility for ‘talking up’ the subdivision, with projected returns of 33 per cent to 90 per cent. The beneficial owners were prejudiced by the district office staff’s over-enthusiasm for a costly subdivision.

However, the point here is not whether the trustee is an agent of the Crown, nor whether the trustee or the owners first suggested subdivision. Indeed we have dealt with the Harataunga 2A claims in this chapter rather than in the Native Land Court chapters simply because the ultimate point is that subdivision was an attractive proposition because of the never-ending pressure of rates. Most of the owners were absentee, the land was remote and without good access, and did not provide any revenue. In short, the land was a rates burden to the owners. Without either development or sale (with, hopefully, the retention of some sections), the owners would just get deeper into rates debt until charging orders were granted and the land was either leased or sold. Maori freehold land could still be sold for the non-payment of rates in the late 1960s, so this was a very real threat. It is understandable that the owners would want to do something worthwhile with the land to prevent that from happening. In fact, had they done nothing, we suspect that action might have been taken against them eventually for a lack of development under the provisions of section 34 of the Maori Purposes Act 1950, vesting unoccupied and undeveloped land in the Maori Trustee for sale. As Keita Walker said: ‘This block is owing in rates and it is obviously senseless to remain owners at such a distance and to find it fast becoming a liability with accruing rates’.

Once again, the real issue behind this claim seems to us to be the familiar problem of fragmented title, inability to develop, and accruing debt. We hope that the 2002 legislation

203.Waitangi Tribunal, Te Whanganui a Tara me Ona Takiwa, pp 377–378

will provide a case-by-case solution to these old problems. As above, we urge the Crown to monitor the legislation carefully to see if it is being applied consistently by councils, and to ensure that if it is not assisting with these familiar problems, the legislation should be amended so that it does. We further note that the valuation of the land may once again have affected rates, as with Thames township lands. According to Pakariki Harrison, Harataunga 2A was revalued at a higher basis due to a residential designation. We have no information on when this took place, and wonder if the change provoked Mr Harrison’s original interest in subdividing the block, prior to Mrs Walker’s letter. If the land had been revalued for residential purposes, with the rates liability going up as a result, and then devalued back to a rural designation after the Maori owners had sold it, in large part because of those same high rates, this would indeed have been prejudicial to the former owners. However, we also wonder why the owners had not opposed the designation of the land as residential, with the resulting higher rates liability. We would like to have received more evidence on this particular issue.

We therefore find that the office of the Maori Trustee failed to adequately consult with the owners of Rangiriri Island, or to address the rates obligations of the owners during the time the land was held in trust. We further find that the ongoing pressure of rates was the driving force behind the vesting of the block in the trustee, and the eventual sale of the land.

21.3.5 Te Horete 2C2

This is another claim that touches on rates and the role of the Maori Trustee, though ultimately the trustee played little role in the alienation of this block of land. No submissions were given by counsel specifically on the rating of this block of land, so we deal with it briefly by way of a short narrative, based on Phillip Cleaver’s report, and Tribunal comment.

(1) Background

In July 1935, an application for charging orders for rates arrears of £12 12s 8d for Te Horete 2C2 was granted by the Native Land Court to the Thames County Council. In 1940, the block was one of several put into receivership by the court, following a request from the Native Minister, due to unpaid survey charges. Daniel Mackay, the clerk of the Thames County Council, was appointed receiver. In that capacity, Mackay also recovered unpaid rates, though it is unclear what the amount of outstanding rates was from 1935 until 1940, when the county council was again granted an application for rates charging orders of £15 11s 6d. Mackay arranged for timber on the block to be sold to cover the various survey and rates debts. In July 1947, the court was informed by the chief surveyor that all survey charges and some interest had been paid, and that the remainder of interest should be remitted. It seems that Mackay had also paid rates of £62 17s 2d, though it is not clear what proportion of rates owing this amounted to. The court agreed, remitting the remaining interest, and

discharging Mackay from his receivership in April 1948. Mackay was instructed to take £15 is 5d for his fees.²⁰⁴

Three years later, the Thames County Council again applied for rates charging orders of £16 IS 6d for the 1949–50 year. On 10 September 1951, it was explained to the court that the roll of owners of the block was not in order and there was no nominated owner of the block. The court did not grant the charging orders, but did, at a separate sitting on 11 December, vest the land in the Maori Trustee for alienation (seemingly, preferably by lease rather than by sale) under section 34 of the Maori Purposes, Act 1950 (discussed in section 21.2). This vesting followed the council’s application – after the failure to get charging orders – to have the land alienated, as it was unoccupied and not properly cleared of weeds. It thus met two of the five grounds set out in section 34 for vesting in the Maori Trustee. A local farmer gave evidence that the land was unfenced, with no one living on it, and that there was blackberry and some ragwort on it. There were over 60 owners of the block, and they were widely scattered.²⁰⁵

Separately, Henry Robertson Kennedy, one of the 60 owners, summoned a meeting of owners under part 18 of the Maori Land Act 1931 to discuss an offer of purchase from C C McLoughlin. Kennedy does not seem to have been aware of the vesting in the Maori Trustee. The Government valuation was £960, and the Valuation Department described the land as difficult of access but ‘quite an attractive block of land, fairly well watered and it could be developed to make a good farming unit’.²⁰⁶ The meeting was held at the Magistrate’s Court in Thames on 15 July 1952. Only six owners were present, with another five represented by proxy. The total shares held by these 11 owners amounted to 11/2 out of the 101/4 shares in total. Mr Cleaver comments that it is not clear what efforts the Waikato–Maniapoto Maori Land Board went to notify owners, though they did try to contact those whose addresses were known. One owner returned his notice because he did not understand its contents (which were in Maori), asking for them to be explained to him. However, the lack of notification did not affect progress of the meeting, as under section 416 of the 1931 Act, failure to receive notification could not invalidate resolutions passed at meetings for which notification had not been received. Under section 417 of the same Act, the quorum for meetings of owners was set at only five, either present or represented. It seems that this was regardless of the overall number of owners.²⁰⁷

At the meeting, the owners were told that the land had been vested in the trustee for leasing to recover rates, as well as for weed management. However, the 11 owners unanimously agreed to sell to McLoughlin instead. As McLoughlin was not interested in cutting

204.Document G11, pp 43–45

205.Ibid, pp 45–47

206.District officer, Valuation Department, to registrar, Waikato-Maniapoto Maori Land Board, 12 February 1952, bacs A449/187g, Archives NZ (Ak) (doc G11, p 47)

207. Document G11, pp 47–48

remaining timber from the land, it was not valued in the sale price of £960. In October 1952, the Thames County Council advised the Maori land board that rates had been paid. This does not seem to have come out of the sale price, as the Maori Trustee distributed the full £960 to owners, though it is not clear how the proceeds were divided up to owners. (Although the order vesting the block in the trustee had been cancelled by the court on 11 December, the trustee remained responsible for the distribution of sale proceeds.²⁰⁸)

Mr Cleaver comments that, while having only 11 owners represented met the legislative requirements, ‘it seems improper that the land was sold by such a small proportion of the owners, especially given that the notification procedure meant that it was likely that many of the ‘scattered’ owners of Te Horete 2C2 did not receive notice of the meeting’. Though those represented at the meeting made a unanimous decision, Cleaver asserts that it ‘fell well short of being a unanimous decision of all of the owners of Te Horete 2C2’.²⁰⁹

(2) Tribunal comment

Though we prefer not to make particular findings without the assistance of submissions from counsel, in our view the fate of this block deserves comment as it reveals the impact of the legislation relating to the rating of undeveloped Maori land as well as inadequate notification and quorum procedures (see sec 18.4.1(3)).

Clearly rating arrears led these owners to prefer sale over retention of the block; regardless of their wishes, the council applied for a similar course of action. We must respect the preference of the owners for sale rather than leasing of the block, though in general we maintain that leasing the land allows for its retention. While the role of the Maori Trustee in the management of this land was limited due to its sale, we believe that the legislative provisions that allowed for the block to be alienated (by either lease or sale) through the Maori Trustee did not offer adequate protection to owners. A preferable course would have been for the Government and local authorities to instead support the development of blocks of Maori land, which, like this block, were known to be potentially good farm land. Instead, Maori were often left with sale as the only option to forestall further rates debt, for even had a lease been entered into, without the owners having the means to farm the land themselves on the completion of the lease, rates would have again become a burden.

21.4 TRIBUNAL COMMENT ON RATING OF HAURAKI MAORI LAND

We do not know the overall extent of the rates burden borne by Hauraki Maori. While in many of the examples discussed above, Maori land might not have been compulsorily alienated under charging orders, it is obvious that rates debt (and the prospect of future rates

208. Document G11, pp 48–50

209. Ibid, p 50

debt) created pressure for selling rather than retaining the land. We note that other briefs of evidence than those discussed in this chapter also mentioned rates pressure leading to sale of land, but without further particulars we are unable to follow up these allegations.²¹⁰ However, we do provide a brief overview commentary based on the background and narrative set out above.

First, we note the Crown’s acknowledgements that ‘a good deal’ of Maori land passed out of Hauraki ownership, at least in part due to rates, and that the rating burden might not always have been fairly applied to Hauraki Maori.²¹¹ We note also some positive signs that both the Crown and the Thames–Coromandel County Council are moving towards the rating of Maori land for targeted services only. With all the attendant difficulties faced by Maori in the use of multiply owned land with fragmented title, we welcome and encourage this move. It seems that such a positive move can only aid the fostering of good relations between the parties, and create more equitable operating conditions for Maori landowners.

It is apparent that rates were yet another pressure on Maori owners, already struggling with the costs of partitioning and their corresponding inability to utilise their land. Clearly, it would always prove difficult for the owners to manage small parcels of land efficiently and produce revenue for rates when the ownership of blocks was highly fractionated.

The rates issues highlights the competing and contrasting values that Maori and Pakeha ascribe to land. Native land legislation had created the mess of titles, successions, and increasingly fragmented land ownership of small areas of land that so vexed attempts to rate Maori land successfully. In 1914, a former member of the Tairawhiti Maori Land Board commented to the commissioner of Crown lands about the problems facing Maori landowners:

The great bar to practical settlement is the partition of the land ... This has the effect of allocating perfectly useless sections of land to each Native or group of Natives ... the Natives cannot let or sell them for anything like the price that their share of the block should produce ...

I venture to say that this unpractical subdivision is the fundamental cause of nearly all the evils attendant on the Settlement of Native land. The result is the Native owns an area of land of such a shape and generally without access that it is nearly valueless to him either for sale or settlement.²¹²

210.See, for example, document Y12, p 5, regarding Hikutaia 1G3, which was under charging orders for survey and rates arrears for several years from 1915 to 1917, when the block was sold. ‘No doubt the heavy survey and rates costs contributed to that decision.’ See also document Y9, pp 72–73, document A6, p 15, document A27, p 5, and document A23, p 7, regarding land being valued, and rated, at subdivision potential rather than for revenue produced from the land.

211.Paper 2.550, p 42; paper 2.227, p 21; doc AA1, p 269

212.Broderick to commissioner of Crown lands, ABWN 7611 W5021 1913/231 (Kathryn Rose, ‘Document Banks to Reports by Kathryn Rose in Respect ofTe Aitanga-a Mahaki’, 2000 (Wai 814 ROI, doc A18(a), vol 12, pp 8148–8150); Kathryn Rose, ‘Te Aitanga-a-Mahaki Land, 1890–1970: Alienation and Efforts at Development’, report commissioned by Crown Forestry Rental Trust and Te Aitanga-a-Mahaki Claims Committee, 2000 (Wai 814 ROI, doc A18, pp 348–349))

We note that just three years later, the Native Minister remained insistent that so-called ‘individualisation’ of title (that is, partition of blocks) was the answer to rates arrears, and not one of the main causes.²¹³

In sum, we believe that the many problems associated with the rating of Maori land are symptomatic of the greater underlying ill caused by native and Maori land legislation (see chs 15, 16, 18). Alternatives could have always been considered for the way Maori land was rated. For example, one option might have been to consider rating on improved valuation rather than unimproved, though this would of course have had broad implications for all ratepayers and on the financial base of local authorities. If we accept that rating applies to Maori land, the question really becomes how should rating be applied equitably. We acknowledge that the Crown has wrestled with this question since the mid-nineteenth century, and has approached the rating of Maori land with great caution. The Crown has been inclined to allow the compulsory sale of Maori freehold land for rates arrears in the years 1893 to 1988 only. But much Maori land was sold for rates anyway, because there was no development option for the owners to cover the rates otherwise. If Maori were to be made liable for rates, then the Crown should have been equally careful to ensure that adequate assistance was offered to Maori landowners to develop their land and avoid the problems of fragmented title. The Crown should have also taken into account the considerable, often uncompensated, contribution of land for public works and national and local infrastructure made by Maori, both willingly and compulsorily.

Had this acknowledgement been made, along with active assistance provided for the development of Maori land, then we can see no problem in Treaty terms with the concept of rating of Maori land. The Crown hopes the recent legislation may begin to provide a more equitable basis for the rating of Maori land; we consider that the Crown must monitor the legislation to ensure that this so. The legislation could also provide some opportunity for the relief of outstanding rates for the current generation. But it cannot provide relief for the land that could not possibly have borne the rates it was charged with in past generations. Neither does it provide relief for the Maori land (both Maori freehold land and Maori land converted to general land) that was sold under charging orders. As was argued in the

213. Native Minister Herries to Internal Affairs Minister Russell, 24 May 1918, MA20/1/1, vol 1, pt 2, Archives NZ (doc R15, p 20; Bennion, p 40). In 1940, Michael Joseph Savage was to echo this comment with his own observation with regard to rates:

It is hoped that one important result of facilitating settlement of Native land will be the gradual solution of the vexed problem of local rating. Believing that it is neither equitable nor just to the Maori race that its birthright should be whittled away through non-payment of rates on areas which have in the past lain idle, the Government is reluctant to agree to the enforcement of rating charges by sale until such time as the particular Native has had a reasonable change of obtaining from his land the necessary revenue to meet living-expenses, farm maintenance, and interest and rates – or, in other words, until he has had the opportunity of using his land to good advantage through the provision of financial assistance and expert farming guidance.

From AJHR, 1940, G-10, p 6 (Bennion, p 69).

House, when debating the 1988 Rating Powers Bill, the sale of Maori land for rates arrears would always be contrary to the principles of the Treaty of Waitangi.²¹⁴ We therefore find that the Crown should, in negotiating the settlement quantum for the Hauraki claims, take into account the way Maori were under serious disadvantage in their ability to bear rates by the nature of title created by the Native Land Acts.

214.Jonathan Hunt, 7 June 1988, NZPD, 1988, vol 489, p 4165

CHAPTER 22
FORESHORE AND SEABED ISSUES IN HAURAKI

22.1 INTRODUCTION

Many Hauraki claimants assert that the Crown has breached the Treaty in failing to recognise Hauraki Maori proprietary rights over their foreshore and seabed lands and resources, and in failing to protect these actively.¹ They assert that their claims relating to these issues are of fundamental importance to Hauraki iwi.²

Much evidence presented to us in hearings on these issues concerned the Native Land Court decisions relating to the Thames foreshore and the Crown’s purchase of Maori interests in this land. Consequently, we focus our discussion on a general discussion of customary rights, and then turn to the Native Land Court decisions with regard to the Thames foreshore, Chief Judge Fenton’s Kauaeranga decision in 1870, then Crown foreshore purchases, and the concurrent moves to legislate against the recurrence of this situation. We review continued Maori protest and petitions, and issues relating to the administration and development of the foreshore lands.

In order to avoid any confusion concerning the terms ‘foreshore’ and ‘seabed’, we adopt the terminology of the Tribunal’s Report on the Crown’s Foreshore and Seabed Policy (2004):

First, what is the foreshore? It is the intertidal zone, the land between the high- and low- water mark that is daily wet by the sea when the tide comes in. It does not refer to the beach above the high-water mark. The seabed is the land that extends from the low-water mark, and out to sea.³

1. Paper 2.550, pp 22–24

2. Document Y1, pp 57-58

3. Waitangi Tribunal, Report on the Crown’s Foreshore and Seabed Policy (Wellington: Legislation Direct, 2004), p xi. Section 5 of the Foreshore and Seabed Act 2004 defines ‘foreshore and seabed’ as follows:

‘foreshore and seabed’—

(a) means the marine area that is bounded,—

(i) on the landward side by the line of mean high water springs; and

(ii) on the seaward side, by the outer limits of the territorial sea; and

(b) includes the beds of rivers that are part of the coastal marine area (within the meaning of the Resource Management Act 1991); and

(c) includes the bed of Te Whaanga Lagoon in the Chatham Islands; and

(d) includes the air space and the water space above the areas described in paragraphs (a) to (c); and

(e) includes the subsoil, bedrock, and other matters below the areas described in paragraphs (a) to (c).