The Crown The Treaty

and The Hauraki Tribes

1800 - 1885

THE HAURAKI TREATY CLAIM

VOLUME 4

Hauraki Maori Trust Board

The Crown, the Treaty,

and the Hauraki Tribes, 1800-1885

ROBYN ANDERSON

HAURAKI MAORI TRUST BOARD

1997

First published in 1997 by
Hauraki Maori Trust Board
PO Box 33, Paeroa
Aotearoa New Zealand

ISBN I-877198-o3-x
© Hauraki Maori Trust Board

This report was commissioned by the Hauraki Maori Trust Board
as part of its Waitangi Tribunal Claim research programme.
Any views expressed and condusions drawn are those of the author.

All rights reserved.
No part of this publication may be reproduced,
stored in a retrieval system, or transmitted in any form or by any means,
electronic, mechanical, induding photocopying, recording or otherwise,
without the prior permission of the publisher.

Typeset by Wordset Enterprises Limited, Wellington
Printed by GP Print, Wellington, New Zealand

FOREWORD

The Hauraki Treaty Claims project has examined the nature and extent of the interaction of Maori with the Crown in the Hauraki tribal territory during the nineteenth and twentieth centuries. The claims, together with the research and supporting evidence are set out in 11 volumes. These are presented to the Waitangi Tribunal to support the Hauraki case.

The history of colonisation in Hauraki—the deliberate policies of the Crown leading to the social and economic deprivation endured by those who have gone before us and their years of responsible protest—has not been told before. These volumes, the foundation of the Hauraki case, will forever rewrite our nation's history books, contributing, only now, a Maori perspective to the history of this region.

We began this project four years ago with a multi-disciplinary team approach. Dr Anderson was part of this team, contributing the historical overview which comprehensively examines the relationship between Maori and the Crown. The overview is in two parts. The first report deals with this relationship in the nineteenth century. The second report discusses the last 20 years of the nineteenth century and most of the twentieth century. Both reports draw on the themes which emerge from the extensive block history analysis carried out by David Alexander which is contained in Volume 8.

Dr Anderson's The Crown, The Treaty, and The Hauraki Tribes, 1800-1885 examines the

material destruction of the Hauraki resource base—the tribal loss of land and the loss of control over minerals, timber, rivers and foreshore. She places this destruction in the context of the disparity between the promises and the actions of the Crown; the calculated nature of Government dealings in Hauraki; and the protests of Hauraki Maori faced with the deliberate undermining of tino rangatiratanga.

The Hauraki treaty claims are a consequence of the Crown's actions after it signed the Treaty of Waitangi. Dr Anderson's report will significantly support the Hauraki case in the debate that will inevitably surround the Hauraki claims. I take this opportunity to thank Dr Robyn Anderson for her contribution to this project.

No reira, noho ora koutou.

T J McEnteer

Claims Manager

Hauraki Maori Trust Board

III

CONTENTS

THE SOCIAL AND ECONOMIC SITUATION OF HAURAKI MAORI AFTER COLONISATION

Contents

The Impact of the Native Land Court in the Hauraki Rohe, 1865-1885   299

Government Public Works and Purchase Policy, 1869-1885   301

The Crown's Purchase of Freehold of Gold Field Lands ..   303

The Government Acquisition of Ohinemuri   304

APPENDICES

1.  History of Objections Arising out of Old Land Claims ..   307

2.  Turton Crown Purchase Deeds pre-1865—from K. Riddell, 'Pre-1865 Crown Purchases—Hauraki/Coromandel.' Waitangi Tribunal Rangahaua

Whanui Series (working paper: first release), 1996   309

3.  The Activities of the Trust Commissioner—by D. Alexander ..   317

4.  Hauraki Petitions, 1869-1900    331 5. Schedule of Rehearings and Appeals into Native Land Court Decisions

in Hauraki District, 1870-1910337 6. Schedule of Blocks acquired by Crown subject to Timber Leases

from Hauraki Gold Fields special block file. MA 13/35(b)   341

BIBLIOGRAPHY   343

INDEX TO VOLUME V: THE CROWN, THE TREATY,

AND THE HAURAKI TRIBES, 1800-1885—Supporting papers   351

LIST OF TABLES

Pre-emption Waiver Claims in Gulf Islands ..   44

2. Disposal of Old Land Claims resulting in Grant ..   52

3.  Estimates of Surplus Lands retained by Crown in Hauraki Rohe ..   63

4.  Private Purchase of Western Firth Blocks ..   174

5- Crown Purchases in Area Outside Gold Field, 1870-1880   .   217

6. Crown Purchases in Gold Field Ceded in 1868-1869   234

Crown Purchases, 1880-1885   238

PHOTOGRAPHS

1.  Early Contact at Mercury Bay   33

2.  The Coromandel Agreement at Patapata, 1852   83

3.  Thames at 1868   148

4.  Thames at 1869-70   149

5- Wirope Hoterini Taipari   187

6.  James Mackay ..   187

7.  Development of Foreshore at Tararu   210

8.  Timber Floating ..   276

9.  Wooden Aqueduct Built to Transport Logs ..   277

MAP S

1. Hauraki Region ..

Dispersal of Hauraki Tribes at 1840   28

3.  Old Land Claims   50

4.  Crown Purchases & Confiscations by 1865   96

5.  The Hauraki Raupatu

6. Proclaimed Thames Gold Fields at 1869   150

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800-1885

7.  Lands proclaimed under negotiation—Immigration and Public Works Act 1870 200

8.  Alienation of Maori Land at 1875 ..   224

9.  Alienation of Maori Land at 1885 ..   .. .. .. 236

10. The Ohinemuri Gold Field .. .. .. ..   .. 268

DOCUMENT REPRODUCTION 1.   Taipari Foreshore Protest, 1869

VIII

PREFACE

My name is Robyn Anderson. I am a Ph.D. graduate from the University of Toronto, Canada. In the past I have written or contributed to the 'Historical Report on Wellington Lands,' a report prepared for the Crown Congress Joint Working Party, 1993; 'Wellington District,' Waitangi Tribunal Rangahaua Whanui Series, 1996; and 'Goldmining: Policy, Legislation, and Administration,' Waitangi Tribunal Rangahaua Whanui Series, 1996.

This report, The Crown, the Treaty, and the Hauraki Tribes, 188o-1885', was commissioned by the Hauraki Maori Trust Board in 1994, and is the result of more than three years of research in which a number of people and organisations have been involved.

A number of researchers have worked on various stages of this project: Liane Ngamane and Jeanette Wikaira, David Taipari, Helen Walter, Suzanne Woodley, Jim McNicolas and Mary Gillingham. This report would not have been possible without the contribution of their work. The same may be said of David Alexander whose block histories have been incorporated into this overview. To them, my many thanks.

My thanks go also to those who provided me with helpful information or commented on earlier versions of this report: to Dinah Steele (sadly, now deceased), Taimoana Turoa, John McEnteer, and Pat MacDonald from among the Hauraki people; to Bill Oliver, David Williams, and Russell Stone who have also been involved in the preparation of the Hauraki claim to go before the Waitangi Tribunal; to other researchers, such as John Hutton and Paul Monin, who have worked on the history of the region and have generously shared sources; and to Grant Phillipson for his advice and encouragement.

Finally, my thanks to the Hauraki Maori Trust Board, and the people whom they represent, for their patience in waiting for the completion of this report.

IX

INTRODUCTION: CHAPTER SUMMARY

Key Themes and Methodological Note

The relationship between Hauraki Maori and the Crown from the 1830s to present day is discussed in two reports. Part One, which is this report, examines the first fifty years of that relationship from 1835 to 1885. Four major themes underlie the following discussion. Three of these themes concern different aspects of the material destruction of the Hauraki resource base: tribal loss of land; of ownership of minerals and of other natural properties of the land, most particularly timber; as well as control of the foreshore and rivers. The fourth theme concerns the declining position of the Hauraki iwi from one in which there were the seeds of a possible ongoing partnership in the usages of the law, the economy, and political structures, to one of the complete domination of tikanga by the common law and British legal precepts, economic impoverishment, and almost complete exclusion from the law-making institutions of the colony. Throughout the report, considerable emphasis is placed on disparity between the promises and the actions of the Crown, the calculated nature of much of the dealing of Governments, and the protests of Hauraki Maori at the deliberate undermining of their rangatiratanga over land, resources, and community.

The relationship between Hauraki Maori and the Crown from the early 1880s to the 1980s is analysed and summarised separately in Part Two. Both reports draw heavily on official published sources and on archival records, most particularly case files for the Old Land Claim Commission, correspondence to the Auckland Provincial Government, the Thames and Coromandel wardens' and resident magistrates' letterbooks held by the Justice Department, Mines Department files, papers tabled before Parliament and Select Committees, and the memoranda, registered and special block files of the Native Affairs Department. In addition, the two reports are intended as an overview and as such, incorporate the extensive work carried out by David Alexander for the Hauraki Maori Trust Board. This research is set out in the block histories contained in volume eight of the Hauraki claim before the Waitangi Tribunal.

Chapter I: Hauraki and the Crown, 1800–1850

The Hauraki robe and iwi

[pp. 29–33] The state of the Hauraki iwi in the years immediately preceding 1840 is described briefly. In the early nineteenth century the Hauraki people comprised the

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

Marutuahu Confederacy at its nucleus, but included diverse groups—both original occupiers and more recent incomers with whom new groups were founded by intermarriage. It is pointed out that the zone of influence exercised by the sea-faring Hauraki iwi extended well beyond the perceptions currently held: to Mahurangi in the north, to Kati Kati in the south, and encompassing lands on the isthmus and on the western shores of the Thames Firth. Considerable dislocation of traditional settlement patterns had occurred as a result of the Ngapuhi invasions from the north in the first two decades of the century, but the Marutuahu Confederacy and associated iwi, along with the Waikato, had regained much of their lost ground by the time Europeans began to arrive in significant numbers at the Gulf Islands and on the Auckland isthmus. The dislocations of the preceding years were, however, a significant element in acceptance of Pakeha and in early land transactions, most particularly the negotiation of the missionary-sponsored `purchase' of South Auckland lands which is discussed more fully in the context of 'old land claims'.

Hauraki at 1840

[pp. 33–40] By the time the Treaty of Waitangi was presented to Hauraki Maori in March to July 1840, those groups based at points of contact—at Coromandel, Thames, Waiheke and Taupo (Orere Point)—were reported to be in a 'flourishing condition'. Reaction to the Treaty was divided, but unified in its concern for the integrity of the promises of the Crown. Some rangatira—more especially, those of Ngati Paoa and Ngati Whanaunga based at Taupo, Waiheke, and Coromandel—were prepared to sign, doubtless influenced by the prospect of continuing prosperity and promises of protection of person, property, and rangatiratanga. Others, most notably Taraia of Ngati Tamatera and Ngati Maru, refused to do so, doubting whether the Crown would respect Maori authority. They had already had a taste of 'gunboat diplomacy', had heard of the recent assertion of the British law against a Maori in the Bay of Islands, and were not prepared to relinquish their authority over their people, although they agreed that the Crown was free to do as it wished with Pakeha. There was no automatic acceptance of British precepts of law and Taraia continued to overtly reject the authority of the British Government. In 1842 he led a Ngati Tamatera raid on Tauranga, committing ritualistic acts of cannibalism and, pointing out that he had not signed the Treaty, argued that the adjustment of Maori affairs lay with Maori and not with the Governor. This was a view for which even the signatories had some sympathy, reflecting their increasing knowledge about past British treatment of indigenous peoples, and concern about the implications of laws issuing from New South Wales.

Old Land Claims Commission

[pp. 46–53] The first overt test of the Crown's integrity in Hauraki was posed by the Old Land Claims Commission. Some 113 cases were examined by the Commission. Thirty of these claims resulted in grants, representing a total of just under 68,000 acres, which was

2

Introduction: Chapter Summary

later augmented, in the 1860s, to some 80,000 acres. This study does not attempt an exhaustive examination of the details of all these claims, but merely an overview of them. Some emphasis is given, however; to particular cases such as Fairburn's at South Auckland and McGaskills' at Hikutaia, which also form the basis of more detailed studies undertaken by independent researchers. Nor is it intended here to revisit the arguments which have been so thoroughly aired in the context of the Muriwhenua claim; rather, it is intended to demonstrate the extent and situation of Hauraki land loss, outline the experience of Hauraki groups with reference to the Commission, identify instances in which the Crown kept surplus lands, and highlight evidence of ongoing Maori dissatisfaction with the Crown's handling of the early claims.

It is argued, that the intentions of the first Commission to enquire into transactions prior to 1840 and the pre-emption waiver 'purchases' (see below) were benign, but that its deliberations were based on, and ultimately entrenched, false assumptions that Maori had intended 'sales' by their endorsement of deeds. It was not appreciated that Maori might have intended to consolidate their own interests, expressing a customary practice of incorporating useful newcomers into their community, by the new means of the written word, rather than a permanent conveyance of property giving exclusive rights to the purchaser. Questions were designed to elicit whether a rightful transaction had taken place in terms of English usage, not what Maori had really meant by their participation in transactions and whether customary practice was still in operation. Thus the Commission responded to Maori complaints about boundaries and failures of payment by adjusting rather than overturning deeds. There was, however, little reason for Maori, numerically dominant and prospering on the trade generated from Auckland, the timber industry, and other early attempts to exploit extractive wealth of the region, to question the nature of the Commission's findings or the value of their own early dealings with the Crown and other 'purchasers'.

The Bell Commission

[pp. 53–62] The failure to survey the boundaries or to use the lands deemed to have been sold by Maori, as well as the administration's immediate tampering with awards, invited continuing misconstruction of the deeds, and of the implications of the first Commission's awards. Maori rejection of British understandings of sale was not revealed until a decade later when they began objecting to the presence of licensed flax-millers and timber-cutters on lands kept by the Crown as 'surplus' (see below), and to attempts to survey boundaries of grants. The grants arising from the first Commission were resubmitted to enquiry in the late 1850s, at a time of greater Government effort to effect land transactions. There was, too, increased suspicion of Government purchase activities amongst Hauraki Maori, more especially those based in the Thames valley, and it was in this region that greatest dissatisfaction was generated by the land claims investigation process.

The immediate function of the Bell Commission was to establish the boundaries of grants and of land to be retained by the Crown, not to review the findings of the earlier

3

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

enquiry. Bell operated on the assumption that the first Commission's findings had established whether a legitimate sale had taken place, and despite continuing evidence that transactions fell well short of standards of informed consent, Maori repudiation of early grants was interpreted as mercenary in nature, or politically-motivated, not as indicative of a different understanding of what they had agreed to, or had intended by such transactions. While Maori objections might have to be appeased by further payment or adjustment of the boundary, the fact of sale stood. Bell's investigation gave rise to a particular sense of grievance at Hikutaia where promises of a full re-examination of the question of grant were not met, and the grantees (the McGaskills) were seen to have been confirmed in their ownership of lands not included in the original transaction, and in which some right-holders had not participated at all.

The issue of surplus lands

[pp. 62–72] The Crown did not generally assert its claim in the Hauraki region to surplus land—the balance of acreage between that 'proved' to have been purchased by the old land claimants and that for which grants were actually issued. There were, however, a number of important exceptions where the question was complicated by subsequent Crown payments. The most notable of these incidences occurred in the western zone of Hauraki influence on the south Tamaki isthmus, deriving from the original Fairburn `purchase' [at pp. 64– 68]; and to the north, at Great Barrier Island, from the Webster, Abercrombie, and Nagle 'old land claim', and pre-emption waiver 'purchases' by Whitaker and du Moulin [at pp. 69–71].

The question of sale had been particularly problematic in the case of the south Tamaki isthmus area where the transaction, with missionary Fairburn, derived directly from tribal peace-making efforts after the dislocations of the 1820s. Intrinsic to the agreement was a promise that one-third of the area would revert to Maori where they would then resettle peacefully. The intention behind that promise was, however, transmuted into the creation of limited reserves for hapu at spots where they were actually cultivating lands, and further payments to others. The Crown acquired the bulk of the area, estimated at over 75,000 acres—the difference between the land awarded to Fairburn as a result of his 'purchase' and the boundaries described in the deed. Leading Hauraki rangatira protested in the early 1850s when it became clear that the Crown considered that land to be within its control. Instead of giving up its claim, or making reserves for the Hauraki people in the increasingly valuable isthmus area, the Government made further limited payments to some, but not all, of the iwi who had participated in the original transaction. Those payments were subsequently considered to have represented the Crown's absolute purchase of the Fairburn lands outside the grant, and thus to remove the area from any subsequent enquiry into the question of 'surplus lands'. In any case, the Myers' Commission appointed in 1948 to look into transactions resulting in Crown retention of surplus lands was limited in its scope, because it assumed the legitimacy of the original transactions, and that these had been fully and properly investigated in the 1840s and early 1860s. [pp. 71–72].

4

Introduction: Chapter Summary

Purchase of Hauraki lands, 1840–1850

[pp. 40–45] Purchases made during the 1840s were little different in character from those which predated the declaration of sovereignty, still being characterised by a divergence in interpretation of their significance. Two transactions are discussed briefly: the acquisition of Mahurangi from Marutuahu chiefs which required several renegotiations over the next decade; and the Kohimaramara block from 24 Ngati Paoa chiefs for a price which poorly reflected the value of that area and without any thought for ensuring their participation in the future development of the capital of the colony.

During negotiations over the Treaty of Waitangi, Maori were told that the Crown would have the exclusive right of purchasing land from them. This measure was represented as intended for their protection and ultimate benefit. But, in practice, that benefit was cast in terms of encouraging 'industrious white men' to the colony by keeping the price of land low. Thus the Crown was prepared to waive its pre-emptive power in response to demands from settlers for direct access to purchase of Maori land, but without taking commensurable protective steps, and exposing tribes who held rights in the isthmus and the gulf islands to pressure and future dispute.

The impact of colonisation on Hauraki, 1840–1860

[pp. 72–75] The interpretation given to Hauraki's involvement in the early transactions—their 'sale' of interests in the gulf islands, their fishing stations at Mahurangi, and 'gifted' lands and cultivation sites on the isthmus—marked the first stage in a profound shift in their character, from being an expansive collection of tribes who gathered resources and cultivated sites within an extensive zone of influence, to individuals who by the 1880s were increasingly tied into a cash economy, and whose interests were confined to small blocks of lands on the peninsula, and to the floodplain of the Waihou and Piako Rivers. That result lay in the future, however. By 1850 there were signs of the developing strain in the relationship between Hauraki Maori and an incoming European population, backed by the Crown's power; but at this early stage, most Hauraki hapu were not reliant on land sales for participation in the new economy, engaging very actively, and apparently successfully, in the commercial opportunities presented by the expansion of settlement at Auckland.

Chapter II: Hauraki and the Crown, 1850–1865

The Coromandel Agreement, 1852

[pp. 77–88] A crucial element in the relationship of Hauraki to the Crown lies in the question of ownership of sub-surface resources of the land. That relationship was defined both by legislation and by negotiation. Although questions of the Crown's prerogative were in the back of the mind of officials in early development of mining policy, explicit assertions of the right to mine land for gold without consent of the Maori owners were not attempted until late in the century, by which time the victory of the common law was

5

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

complete. Despite the demonstration of interest in sub-surface resources of the Hauraki region in the foundation years of the colony, no specific discussion has been found in records of on-the-ground negotiation concerning the royal prerogative over precious metals, nor explanation to Maori of the arcane legal meaning of the Crown which underlay that purported right.

The question of gold, and what to do if it was found on land still held by Maori, was first specifically raised at Coromandel, at a point in 1852 when far more weight was placed on the implications of the Treaty of Waitangi—and the might of Maori numbers—than was to be the case in later years. In their discussions about how to act with reference to gold found in native land, Lieutenant-Governor Wynyard, Governor Grey, and the Executive Council demonstrated a pragmatic recognition of the Treaty and of Maori power. They decided not to attempt a full assertion of the Crown's common law prerogative over gold, but were not prepared to abandon the right altogether and leave Maori in full control of all sub-soil resources. Instead, the Government decided to persuade right-holders to entrust their auriferous lands to the Crown's control, in return for a 'fair proportion' of the administrative revenues.

Again, no explanations of the Crown's claim to 'royal metals', or of the distinction between ownership and access which underlay its policy, appear to have been offered to Maori. Instead, officials emphasised that the Crown would protect Maori in their person and property, and that they would benefit from the opening of their lands to mining. It is argued here, however, that the maintenance of law and order, and the active protection of the right of Maori to control the use of their own lands, as they saw fit, was merely the proper exercise of the Crown's kawanatanga, and should not have been contingent upon Maori surrendering their rangatiratanga over those lands. Furthermore, respect for both the Treaty of Waitangi and for the understandings reached in 1852, should have included active protection of the right of Maori to forbid mining on their land if they so wished. Instead, the Government, whose underlying role was to promote mining, made only limited response to subsequent Maori complaint about trespass on their lands, and was even prepared to force the opening of lands which Maori wished to hold for themselves.

Whereas the Government tended to regard the agreement at Patapata as merely an instrument whereby Maori lands would be opened to mining and brought within its administrative jurisdiction to be defined, ultimately, by statutory mining law, Maori saw the occasion as an event of considerable moment. The terms of their understanding were defined not only by the rudimentary provisions of the agreement, signed by some right-holders in the area, but also by the promises made by Wynyard which suggested an ongoing relationship of respect for Maori rights and support for their continuing ownership of the land. Of equal significance were the reasons for the refusal of Taraia, Paora Te Putu, and others to agree to mining: a combination of an attitude of 'wait and see', desire to retain control of the land and its sub-surface resources for Maori themselves, and expectation that payments for the opening of land to mining would bear a direct relationship to the value of the minerals taken out.

6

Introduction: Chapter Summary

For all its shortcomings, the mining treaty reached between the Hauraki people and the Crown in 1852 set a benchmark for subsequent mining arrangements. As a result, recognition that Maori right-holders had to consent to mining on their land characterised both the legislation and the negotiation regarding gold for the next 30 years, bypassing the issue of who actually owned it. The Crown gradually retreated, however, from the spirit of those early negotiations when the commitments embodied by the Treaty of Waitangi were still relatively fresh in the minds of officials. Promises held out by the Crown, and the expectations which they fostered, continued to focus on consent, partnership, and prosperity for posterity, but the means employed by the Crown fell well short of these standards, involving a mixture of unceasing persuasion, threats, cynical exploitation of Maori custom, deliberate undermining of the principles of tribal authority which underpinned the concept of rangatiratanga, and, at last resort, the use of compulsion.

The other thread of discussion in the report which derives from the original 1852 gold field understandings, concerns the question of what should be seen as a 'fair proportion', and how well the Crown fulfilled its obligations to administer returns owing to Maori. It is argued throughout the report that failures in administration and unfair weighting of miner as against Maori interest, generally characterised the conduct of the Government, and formed the subject of ongoing Hauraki protest. Instead of being treated as an autonomous people exercising rangatiratanga over their lands, Hauraki Maori were consistently cast in the role of supplicants, forced to ask for revenues to be handed over, the reasons for delay in payments, or more information on the working of their land, and to protest legislation which ignored their rights under cession agreements and the Treaty. The initial indication of such problems is discussed at pp 81–4

Crown purchases,1853–1865

[pp. 89–98] Discussion of the 1852 gold mining agreement is followed by an examination of the impact of Crown purchase policy, 1853–1865. This period saw the transfer of 48,000 acres in the core Hauraki region from Maori hands into those of the Crown. The sales to the Crown, in combination with earlier alienations to private parties, meant the loss of some of the best sites within the Hauraki rohe at that time—in particular, their interests on the isthmus, lands around Coromandel Harbour, Mercury Bay, and at Waiheke. The Crown had also begun to turn its eyes to the interior lands of the Hauraki rohe, initiating its first attempts to make large-scale acquisitions within the highly prized valley lands of the Waihou and Piako Rivers.

The pressure on Hauraki ability to keep hold of their lands increased with the growth of demand from Auckland, which was generated by land speculation, increasing interest in pastoralism, the implementation of 'land for passage' immigration schemes, and the desire to emulate the prosperity of the Southern provinces which had been founded on cheap Maori land purchase. The Native Land Purchase Department, established in 1853, began to succumb to the pressure of settler demand, and as a consequence, the standard

7

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

of conduct in its purchases began to decline. The lesson of earlier Crown attempts at purchase demonstrated that the requirement for tribal consent precluded all but limited and painstakingly negotiated transactions. In light of this knowledge, land purchase officers moved towards a practice of actively undermining tribal authority in order to facilitate large-scale alienations. The correspondence of Drummond Hay in the early 1860s clearly foreshadows the policies pursued so fatally by the Crown at Waitara: the readiness to accept individual offers, and the denial of any tribal authority over the individual interest.

Other problems are identified within these transactions; in particular, the preponderance of dealing with a few Ngati Paoa chiefs to achieve purchases which were then tidied up by payments to other interest holders, attempts to obscure the potential mineral value of lands from owners by officers chosen for the trust Maori placed in them, and lack of adequate reserve provision for the future needs of vendor groups even though communities such as Patukirikiri at Coromandel, and Ngati Hei at Mercury Bay were clearly showing stress. It is argued that the perception that reserves were largely unnecessary in Hauraki since there was plenty of 'native land' in the district, had little reality in the context of a continuing purchase policy.

The reopening of the Coromandel gold field, 1861–1862

[pp. 98–101] In 1861–1862 interest revived in the Coromandel gold field, partly stimulated by the provincial Government which saw the development of the field as a solution to its economic woes. The General Government responded to that pressure, sending McLean to negotiate the opening of lands in the north of the peninsula. Crown policy continued in its pragmatic vein. Again, there appears to have been discussion neither of the prerogative, nor of the specific nature of Maori right. Acquisition of the freehold would have been preferred but in light of Hauraki's clear determination to hold onto their territory, a leasing arrangement was acceptable. The weight of Crown policy tended, however, to operate to the detriment of Hauraki's capacity to fully exercise rangatiratanga. The need for Maori consent to mining was recognised, but they were seen as having little choice other than to agree to the exploitation of the sub-surface resources of their lands and acceptance of Crown management. Again, protection of person and property from an influx of diggers was seen as dependent on Maori agreement to allow entry upon their territory for gold to be taken out. At the same time, the underlying assumption was that Maori should somehow contribute financially to the administration of the field and the maintenance of order, although how this was to be done was not explicitly stated.

A more direct recognition of Maori rights over sub-surface resources in the form of the receipt of a proportion of the gold duty was briefly contemplated by Fox but never acted upon. Instead, McLean negotiated a temporary arrangement whereby Pakeha could prospect the area, and the question of payment would be left until gold was found in `considerable quantities'. According to McLean, it was agreed that diggers might take out any gold they found in the interim; but the right of Maori to receive payment for it,

8

Introduction: Chapter Summary

subsequently formed a point of contention between Hauraki and the Government. For Maori, there was an important principle of mineral ownership involved here—one which was only reluctantly acknowledged by the Government in 1865 [see pp. 135–138].

McLean outlined the ideals of the Crown in its policy with regard to mining on Maori land; that 'just consideration' should be given to Maori rights and customs, protective care taken that they not be harmed by the influx of mining population, and that their 'cooperation with the Government should be fully reciprocated'. The tone of negotiation was coloured, again, by the prospect of immediate and ongoing economic prosperity, while Maori were given to understand that they had the right to withhold any lands that they wished from European intrusion. Implementation of those ideals was, however, cursory at the best.

The opening of Tokatea gold field

[pp. 101–106] In particular, the desire of Te Matewaru to retain Tokatea (Koputauaki) block in their own management and for their own development, provoked protest from the mining interest, and was directly countered by Crown action. Instead of respecting and fostering Hauraki aspirations, Government officials pushed for the opening of the block to European miners, and in 1862 Governor Grey intervened directly, and arranged for the lease of the block from one party of right-holders only. Any questions about the integrity of Grey's employment of 'divide and rule tactics' and deliberate disregard of the rights of acknowledged owners, led by Te Hira, who were opposed to the opening, were swept aside by the Government's identification of that group with the 'evil deeds' of the King party.

War

[pp. 109–115] War and raupatu made further incursions on the Hauraki territorial rohe and their self-autonomy. The first step was the imposition of a lengthy naval blockade in the gulf, aimed at preventing supply to the Waikato, but which most strongly affected the Hauraki tribes, even though they were largely uninvolved in the fighting. The blockade interfered with fishing, cut across trade and communications with Auckland, the Bay of Islands, and the East Coast, and along with the bombardment of Whakatiwai, was to underscore the vulnerability of Hauraki to the growing Pakeha economic and naval power.

Confiscation

[pp. 115–121] The Government formulated its confiscation policy with little reference to the actual political predisposition of the North Island tribes, and initially contemplated the taking of all Hauraki lands on the western side of the Firth as part of a sweeping measure which would take in all territory north of the line of redoubts built between the Waikato River and the Hauraki Gulf. Controversy over that intention resulted in a more limited measure, however, and lands were eventually taken in several large blocks instead. Nonetheless, the Government included areas in which Hauraki traditionally claimed

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THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

rights in the East Wairoa, Central Waikato, and Tauranga takings. That Hauraki rights in these areas should be declared forfeit seems all the more unjust because the majority of Hauraki people maintained a position of neutrality during the fighting at both Waikato and Tauranga.

The Compensation Court

[pp. 122–127] There was only the most limited opportunity for Hauraki to regain their former lands. Neutrals within the Hauraki tribes were placed in a position of accepting the Compensation Court's monetary awards at East Wairoa, compulsory sale at Tauranga where the Government made it clear that the Te Puna lands were 'absolutely required' but that they 'should be paid for', and out of court payments for Pukorokoro, and other interests in the Central Waikato raupatu since they could not afford to attend the hearings. 'Rebel' hapu lost out almost entirely—not only lands within the confiscation boundaries, but adjacent areas also, as the Native Land Court quickly followed up on a promise by the Compensation Court, that rebel lands north of the East Wairoa line, would be given to 'loyal' sections of Ngati Paoa and Ngai Tai.

The return of reserves,1865–1900

[pp. 129–134] Limited reserves were finally returned to 'rebel' Hauraki hapu in the 1890s, after a 30 year struggle which reflected the change wrought in their circumstances by the Crown's actions, from an independent people exercising traditional rights in these lands, to petitioners dependent on the goodwill of the Crown for the return of a small portion of them.

Chapter Three: Extension of Government Control over Gold Field Lands, 1865–1870

The adjustment of the Coromandel Agreement, 1865

[pp. 135–143] Government interest in acquiring control of the gold resources of the Hauraki district remained high in the 1860s. Immediately after the war, the Crown reopened the question of the Hauraki gold field, acknowledging the terms of former treaties, but also looking upon them as open to negotiation rather than as strictly binding. Certainly, there seems to have been little of the spirit of mutual advancement in the Government's bargaining down of right-holders at Coromandel to the minimum that they would accept. But from the point of view of many of those based on the Thames coast, after the experience of visible bombardment of nearby communities and the blockade, and in view of apparent opportunities for economic advancement, the best stratagem was to seize what advantages were on offer. In 1867–1868, the Crown managed to arrange the opening of the Thames field, long held closed by Ngati Maru, and followed up with mining agreements for Kennedy Bay with Ngati Porou, with Te Tawera and Ngati Maru at Manaia, and with Ngati Hei and Ngati Pare at Whangapoua.

I0

Introduction: Chapter Summary

The agent for the Crown who effected the opening was James Mackay jnr who pursued a policy of making payments to chiefs, identified as friendly to the Government, on particular blocks within the field. Mackay sought the consent of individuals, occupying hapu, and rangatira, rather than wider tribal agreement. Those opposed to the extension of Government succumbed to the pressure as surrounding territory was opened—a process which Mackay described as 'putting in wedges' and 'letting them draw'. The kingite sections of the Hauraki tribe who had withdrawn into the interior were able to keep the lands south of Omahu Stream closed to mining for the meantime, but their rights within the proclaimed field were put to one side, and not dealt with until well after the fact. Some of the particular tactics employed by Mackay in the pursuit of cession of the gold field were also questionable. He induced agreement by making advances on the fees which would accrue to Maori once their lands were opened, and used the opportunity of the criminal prosecution of the children of one of his major opponents to obtain his consent to mining at gold-rich Waiotahi. Mackay agreed to give money to the chief concerned so that he could pay the fine and obtain the release of his sons, only on the understanding that this sum was to be taken as an advance on mining fees on that block.

By negotiation, promises of prosperity and partnership—that 'if we unite in this way we shall have treasures and riches, become a great people, and everything that the heart can desire'—the application of pressure, and a little sharp practise, Marutuahu right-holders in the peninsula were again induced to entrust their lands to the management of the Crown. The terms of the cession agreements by which the Thames and northern peninsula areas were brought under the Government's jurisdiction have been set out, on pp.140-1. In essence, Mackay brought a model which had been developed with reference to the alluvial fields of the South Island and applied it to the quartz district of Hauraki. The form of payment to Maori right-holders was based on a combination of two ideas—that of an annual lease, but one assessed on the number of miners on the field. As in earlier compacts, no direct relationship was established with the actual value of the gold, and while Maori saw the agreements of this period as signifying a Crown acknowledgment of their rights of ownership of mineral resources, subsequent Governments gave a narrower legal interpretation to the meaning of the deeds of cession, maintaining that only a right of easement had been involved. At the time, however, Hauraki signatories were satisfied by an arrangement, the terms of which seemed to acknowledge their rights over the land, and to ensure that they received returns from the development of the gold field while retaining the freehold.

Terms and implications of Thames gold field cession

[pp. 143-155] As equally significant as the written terms of the cession deeds were the verbal understandings on which Maori consent had been based, and the limitations implicit to that compact. Once again, the Hauraki people were told that realisation of the full value of their lands and long-lasting prosperity, would require 'co-operation, mutual aid, and assistance'. This report argues that the Crown quickly lost this vision of New Zealand society once Maori consent to mining was won, and their lands were locked into

11

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800-1885

the Government's jurisdiction for as long as it wished. Indeed, the Hauraki gold field lands were to remain within the Crown's mining jurisdiction until the passage of the Mining Act 1971, long after mining activity had ceased.1 The cession of mining rights had unexpected implications for Hauraki Maori: the impact of mining on the community at Thames, on cultivations, and on the food sources of the foreshore, and, of Government jurisdiction on the exercise of their rangatiranga over those lands, was considerable. In particular, their lands were now subject to mining legislation and regulation which could be altered at the whim of Government, without referral to Maori interests, or the commitments that had been made by negotiated agreement, such changes often being carried out over Hauraki protest that they transgressed the terms of their consent.

Of particular note, was the Government's introduction of long-term mining leases instead of the system based on annual renewal of miners' rights which had been set out in the 1867-1868 cessions in order to satisfy the purported needs of capital investment which demanded greater security of title. Maori objected that, while they were 'quite willing to render every facility for the outlay of capital, and desire[d] to carry out all arrangements heretofore entered into by them ... the agreements ... did not empower the Governor or his delegate to lease lands for mining purposes.' The main architect of the cession deeds supported Maori in this view. Mackay advised the Government that 'the agreements with the Natives would require amendment, before it would be quite clear that these conferred on the Governor the power to lease lands' for long-term periods, and that the new regulations would reduce the revenues payable to right-holders. Although the Government rejected these complaints, it seems likely that Maori, in this period, were not receiving their full due under the deeds of cession. The more important point was, however, that the introduction of new forms of mining tenure constituted a unilateral change of negotiated arrangements even over Maori objection and the advice of the Government agent in the best position to interpret the understandings reached and the impact of such change on the 'native revenues'.

Thames foreshore

[pp. 156-165] At the same time, Hauraki rights to the foreshore were undermined by court and Government action generated by the imperative to gain control of the mineral resources lying under the surface of the Kauaeranga mudflats. Initially a degree of legislative recognition had been given to Maori rights in foreshore lands. Section 9 of the Gold Fields Act 1868 empowered the Governor in Council to bring land below the high-water mark into the compass of its gold field jurisdiction, but stated that this would be `deemed to be land over which the Native title [had] not been extinguished'. When companies began to apply for licences to mine under the mudflats, both Maori and Mackay agreed that the area was not covered by the Kauaeranga cession. Richmond recognised that Maori would challenge any Crown assertion of ownership of that area,

1 For discussion of twentieth century changes in mining legislation see Part Two, and R. Anderson, Goldmining: Policy, Legislation, and Administration,' Waitangi Tribunal Rangahaua Whanui series (working paper: first release), 1996.

12

Introduction: Chapter Summary

and directed Mackay to follow the guide of the Gold Fields Act 1868 as providing for the negotiation of agreement between the Government and owners of adjacent lands.

Some right-holders at Kauaeranga agreed to the Government taking over management of the mudflats, but others wished to enter into private leasing arrangements for some of the most valuable areas. The Government responded by introducing the Thames Sea Beach Bill. In its initial form, the Bill represented an absolute assertion of the Crown's supposed prerogative over both the foreshore and all precious minerals 'wherever they might be found'. Hauraki Maori protested the Government's intent as transgressing both the Treaty of Waitangi and the negotiated cessions—a view again supported by Mackay who told the Select Committee which was examining the Bill that Maori had agreed to mining on only one part of the mudflat. In Mackay's view, Hauraki would 'take this position: they will say that they are the owners of that land for mining and for every other purpose' and would 'resist any action taken by the Government in the matter.'

In view of this advice, Maori protest, and past acknowledgment of native title in both the passage of legislation and the conduct of negotiation, the Select Committee recommended that the Government delay the passage of legislation until the question of ownership could be clarified. Instead, the legislature pressed on with a law to reimpose Crown pre-emption over the Kauaeranga foreshore, undermining Hauraki ability to deal with these lands as they liked, and to strike the best deals that they could. The Crown's control over the foreshore was further strengthened by Fenton's Native Land Court decision at Kauaeranga, in which rights pertaining to the mudflats—of fishing, in minerals, and of usage versus ownership—were separated out from each other, and those of Maori were sacrificed to the 'great public interest'. Although Hauraki could demonstrate the proofs of ownership demanded by Fenton to establish 'full and exclusive right', he refused to make a court order for the 'absolute property of the soil, at least below the surface'. Instead, he awarded Maori the 'exclusive right of fishing ... the surface of the soil' of the lands between the high and low water marks, stating that he could not `contemplate without uneasiness the evil consequences which might ensue from judicially declaring that the soil of the foreshore of the colony [would] be vested in the natives'.

The Government subsequently interpreted Fenton's judgement as 'proof of the care' with which all arms of the executive dealt with questions concerning the right of Maori, but at the same time moved quickly to take the foreshore out of the jurisdiction of the Native Land Court in the Auckland Province. It is also argued that doubts exist as to how Government agents interpreted the court's decision regarding title, to Maori, when they sought to establish the Crown's absolute control over the Kauaeranga foreshore. Fenton's decision was used not to protect Maori rights in the foreshore, but to smooth the way to Government acquisition. In that process, the status of Maori rights was further downgraded. At first, E.W. Puckey, who had responsibility for the initial conduct of negotiations, talked of 'purchasing' the beach. Fenton insisted, however, that the Government negotiate in accordance with the import of his decision which had established that Maori need not be paid for the foreshore itself. McLean denied that there was any intention to 'forego the right of the Crown to the land below the water

13

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800-1885

mark' and agreed that it was necessary to give Maori compensation only, not payment for either the freehold or the mineral rights. Payment was thus represented as a gesture of goodwill on the part of the Crown for the false impression created by past negotiations, now that Hauraki found themselves 'dispossessed by a law of which they were ignorant'. In subsequent discussion, Fenton's judgement was presented only in terms of fishing rights, while the more extensive rights claimed by Maori were dismissed out of hand.

Even though Maori continued to express a strong preference to lease rather than to sell the foreshore, they were given no option but a complete alienation to the Crown. The Government flatly rejected a proposal that it lease the area, and Dr. Pollen, who took over responsibility for the negotiations, told Maori at Thames that they had little choice but to surrender their claim to exclusive use 'in face of so large a European population' in order to 'avoid the chances of trouble and annoyance to either party'. But whether they agreed or not, Maori control of the now commercially-valuable beach flat was rapidly declining. Even though the foreshore had been removed from the jurisdiction of the Gold Mining District Act, the Superintendent of the Province who had control of the management of the field, had 'tacitly recognise[d] occupation and reclamation of some portion of the foreshore'. No rental had to be paid for the use of these sites until the native claim had been extinguished. In the meantime Maori had lost their use of a formerly important food source, but been given 'compensation' limited by the conception of their rights as being of a secondary nature, unsustainable, and on the Government's sufferance. They were given no chance to participate in the development of the beach area which was anticipated to generate large-scale income, and hence later given to the Thames Harbour Board as an endowment. Common law assumptions regarding the ownership and use of the foreshore increasingly dominated the Government's political thinking after this point. Hauraki Maori continued, however, to petition the loss of their authority over traditional flounder and shell-fishing grounds into the twentieth century.

Maori dissatisfaction with gold field agreements

[pp. 165-167] Nor were promises of ongoing, shared prosperity, that 'your children will be benefited, our children will be benefited', actively promoted by the Crown. It is true that in the first boom years, considerable 'native revenues' in the form of payments for miners' rights and rents were generated by the gold field. These monies went, however, to only 13 persons, further distribution being left to their whim and circumstances, and when questions of title were later examined by the Native Land Court, it was acknowledged that more persons should have participated in them. It is suggested, too, that such revenues were but a poor reflection of the value of their sub-surface resources? Expectations of participation in commercial development were largely frustrated rather than fostered by Government agency. At the same time, highly prized resources of the foreshore and their traditional cultivations had been swallowed up by the expansion of the gold field outside its original boundaries.

2   See ibid., pp. 45-46.

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Introduction: Chapter Summary

Problems in administration of gold field agreements, 1869-1879

[pp. 167-172] The Government's administration of the revenues was plagued by problems of lack of accountability and long delays in paying out the sums which were due. Maori found that sole control was in the hands of the Government, but that the Government did not 'care to watch [their] interests Instead, Maori had to pay much of the cost of administering the payments but without obtaining any real control over that process. `Native gold field revenues' were under intermittent threat throughout the nineteenth-century, either mishandled, ignored, or deliberately undermined by both legislation and administration. The result was that Maori, instead of being treated as partners in the gold field's development, constantly had to defend their entitlements under the cession agreements, or petition for proper payment.

Chapter Four: Policy, Legislation, and Land Purchase, 1865-1885

Chapter Five discusses Crown land purchase policy from 1865 to the 1880s in some detail. In these years an estimated area of at least 330,000 acres of Hauraki core lands was acquired by the Government.

The general impact of the Native Land Court

[pp. 175-184] Underlying this Government success were the changes and stresses caused to tribal tenure by the introduction of the Native Land Court. Not only did the nature of title, derived from the court in the first years of its operation, 'disinherit' the majority by vesting hapu lands in a few individuals, but Maori were entangled in expensive sittings and surveys. In fact, the costs of establishing title were so high that those best able to take a case to court were those who had sold already, or had a backer behind them. That sponsor might be either a Crown agent, or a private party, for after 1865 the Crown gave up its pre-emptive right, and private purchasers also began to make incursions in the Hauraki land holdings. Of particular note in this context, was the acquisition by private parties of the blocks adjoining confiscated lands on the western shores of the Firth where the Native Land Court had quickly followed up on Compensation Court activity; and the purchase by sawmilling concerns of the freehold of a number of large-scale blocks in the Whangapoua and Mercury Bay area, from the handful of grantees named in the title. One prominent sawmiller, C.A. Harris, in the Whangapoua district acquired at least eight blocks comprising over 24,000 acres from fewer than ten grantees in the period 1867-1876.

The Hauraki area did not figure prominently in Government examination of abuses and costs of the Native Land Court system. Nonetheless, there are indications in the record that some sections of Hauraki were soon caught in the spiral of debt engendered by court and survey requirements, and a misuse of the court system in which Government officers sometimes participated. The Haultain Commission, for instance, heard evidence of how

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THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800-1885

land at Thames and Wharekawa which had been awarded to Ngakapa Whanaunga had been auctioned off cheaply to redeem a promissory note which had been witnessed by a Government-licensed interpreter, and signed only as a result of survey debt. Pollen, who had been appointed Trust Commissioner, acknowledged that Hauraki Maori were in debt because of their engagement with the court. In his opinion, they were being 'diddled' out of their lands by unscrupulous Europeans, and licensed interpreters who were the Jackalls' that flushed out such 'game.' Te Aroha provides a notorious example of how Maori were drawn into difficulties by the requirement to defend their title to land in a process over which they had little control. The area was initially awarded to ten persons from a 'friendly' section of Ngati Haua, a neighbouring iwi, and even those amongst the Hauraki people who wished to withhold their lands from the jurisdiction of the Native Land Court were forced into a series of hearings to defend their claim—a process which proved so expensive as to have 'swallowed up the value of the land.'

Requirements for survey, when paid for by advances on the land, could also end up compelling the owners to sell at least part of it—this being a strategy applied with some calculation by the Crown's purchase agents. The sale of Whitipirorua, Wharekawa East and 3, Omahu, and Otama East and West blocks was linked to a £2,000 survey debt, and at Mangakirikiri, the Crown was awarded a sizeable portion of the area left to non-sellers, to pay for their 'share' of laying down the boundaries. It will be seen, in Part Two, that survey debts and court costs continued to play an important role in bringing about the transfer of land, more especially in the Hauraki Plains, during the last quarter of the century. Hauraki Maori demonstrated ongoing concern about the impact of land court and survey; in petitions, negotiations with the Government, and in a variety of political actions over the next forty years, ranging from an attempt to hold lands beyond Hikutaia Stream under the mana of the King, participation in the Native Committees, Kotahitanga, and efforts to bring in a boycott.

The new native and public works policy

[pp. 188-194] The other structure underlying the Government's success in purchasing Hauraki lands in this period was that of public works. Under a series of Immigration and Public Works Acts in the 1870s, considerable monies were authorised for Maori land purchase in the North Island—the Auckland Province being the big winner in the divvy up of this amount. An important aspect of the policy was the active promotion of telegraph, road, and railway construction as well as projects to facilitate the development of the gold field and river navigation. This development was to be funded, ultimately, by the proceeds of on-sale. The needs of Hauraki were little considered, their role being confined to the provision of cheap land and short-term participation in the actual construction of roads and railways over their hapu lands.

There was a wide gap between the statements made by Government agents, and their practice and the ultimate outcome of their actions. Maori were told that they would be benefited by their inclusion in the general progress of the country, but they were excluded from the power structures which controlled the direction and pace of public works. Public

6

Introduction: Chapter Summary

work schemes were directed exclusively towards the development of settlement, extractive industries, and farming, with local politicians, Government officers, and law–makers taking little account of the impact of river clearance, gold field development, and timber extraction on Maori use of foreshore and traditional river and riparian resources. Maori were also told that they would benefit from the rise in value of the lands which they retained, but at the same time, the Government took to itself semi–monopolistic powers by re–introducing a measure of pre–emption over large tracts of Hauraki territory. Maori complained that not only were they prevented by such measures from realising the best price on their land but that they were being denied equal treatment under law. Public works were presented to Maori in terms of benign intent but the underlying imperative was to break the hold of Government opponents in the upper Thames valley. The telegraph and road were deliberately run through the blocks of known opponents of sale who were either categorised by Government agents as ultra–hauhaus, or dismissed as out–dated reactionaries, standing in the way of their own people's progress as well as that of the nation as a whole. This represented an ideological defeat for Maori leaders who wished to control the pace of engagement with European settlement and to retain authority over not only lands but rivers and coastal fisheries; and the western equation of progress with extraction of resources and domination of the natural landscape which was `useless' until the hills were cleared of timber, the rivers freed of snags, the mudflats reclaimed, and the swamps were drained.

Pressure on Ohinemuri

[pp. 194–198] Beyond Omahu Stream, lands were held under the mana of Te Hira and Tukukino and their sections of Ngati Tamatera, supported by Ngati Hako, whose response to war, and to Government and settler pressure, was to attempt to resist any further encroachment. In the eyes of this group, the requirements of their opponents—the Government, European settlers, and those within Hauraki society who wished to attempt to engage in the new economic order on European terms—were met more than adequately by the agreement to allow mining in the Thames and western peninsula. They were now 'perfectly justified' in holding back the rest for themselves–`the surface and the underground as well'. That wish was not respected at all. The Government utterly denied the capacity of non–selling rangatira to withhold their lands from the Crown's jurisdiction, or from settlement, throwing responsibility for maintenance of 'Te Pai o Hauraki' onto their willingness to open up their territory to mining, to roads, and to purchase.

The conduct of Crown purchases

[pp. 199–208; 212–214] The capacity of Hauraki Maori to retain their lands at Ohinemuri, Tairua–Whangamata, Te Aroha, the Whangapoua peninsula, and in the Hauraki Plains was undermined by the activities of Crown agents, who began by making payments to any possible right–holder who was well–disposed to the opening of their territory to mining, timber milling, the jurisdiction of the Native Land Court, and survey. As one of his first steps,

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THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800-1885

Raihana

[pp. 204-208] Mackay made a 'down-payment' on mining fees to those sections within the tribe who were predisposed to opening Ohinemuri to mining, representing this as a payment for 'their lands only' in the face of strong opposition from a large segment of the right-holders. Mackay also encouraged 'non-selling' right-holders to run up debts on their lands within the area already opened, at Waikawau and Moehau, and to then draw on their interests in Ohinemuri. He facilitated this process by issuing orders for storekeepers, or redeeming such debts. Not only did this help to 'break down the barrier of exclusiveness set up by the King party' but the practice encouraged Maori to allow debt to accumulate on their lands, hiding the 'pit yawning' at their feet. Much of this activity was initially hidden undermining the ability of right-holders to exert community controls over others in the tribe. There were doubts whether full value for lands was received, partly because storekeepers inflated the price of goods when dealing with Maori and orders against land purchase. There was also considerable confusion over what interests had been signed away, since down-payments were made for undefined areas in huge blocks of up to 200,000 acres. Once debts were called in, those who had accepted the Government's 'raihana' were placed under pressure to make up outstanding amounts with lands elsewhere if it was found that they had insufficient interests in the blocks under negotiation first. In these years, the Crown deliberately fostered division amongst Maori resident at Hauraki, and took every advantage of the damage inflicted upon the tribal veto by the Native Land Acts to effect the purchase of either the sub-surface rights, or, where possible, the entire freehold. The course of this process has been discussed in detail with reference to Moehau, Waikawua, and Ohinemuri.

Purchase of the foreshore

[pp. 208-212; 215-225] The Crown, dissatisfied with the cession arrangements, and in an increasingly dominant position, shifted its policy in the 1870s, moving further away from acceptance of Maori right to keep the freehold of gold-bearing lands to increased insistence that such lands be purchased outright. The Crown now consistently tried to buy blocks (preferably keeping Maori ignorant of their mineral potential), and then bring them within the compass of mining legislation. The first example of this policy was that of the Kauaeranga foreshore 'purchase', discussed earlier in this summary. The Crown's acquisition of the Hikutaia-Whangamata blocks lying beyond the aukati at Omahu Stream and adjacent to Ohinemuri was considered a breakthrough by its agents, as shaking the position of those who insisted on keeping the interior closed. This was followed by further purchases of blocks on the eastern divide which then were brought within the compass of the Government's jurisdiction. Hauraki Maori were thus deliberately excluded from any ongoing participation in the profits of the mineral exploitation of those areas, while Government agents attempted to keep any discoveries on land still under native title quiet, so as not to push up its price.

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THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800-1885

particularly, the movement towards outright purchase reflected the demands of the mining industry for greater security for capital investment; a general desire on the part of the mining and service community to be able to own the freehold of their businesses and residences, tied into a dislike of having Maori landlords; and a resentment which was shared by the miners who were paying out the fees and rents, and the local bodies who would have otherwise received them, that gold field revenues should be going into Maori hands.

The sale of gold field blocks at Thames briefly raised the question of the status of the 'native gold field revenues' generated by them, and what should happen to those monies. At first, Government officials who administered that account were reluctant to pay those revenues over to Pakeha purchasers. That reluctance seems to have stemmed more from the opinion that the right to receive those fees was attached to the land, in its condition as land officially opened for mining purposes, rather than from any notion that the mining deeds had created a trust in the gold field revenues for Maori. Such a right had to be distinctly disposed of, which had not happened in the sale arrangements in question. Thus, the purchaser of the freehold was not considered entitled to the revenues that had been established by cession. Any tentative connexion between the revenues and a native right expressed in the negotiation of the cession deeds was, in any case, soon dismissed by officials who looked to standard common law interpretations of those documents and saw them as merely conveying a right of easement, payment for which would go to the purchaser of the lands concerned, 'whatever the colour of his skin'.

The Tairua Investigation Committee

[pp. 242-246] Mackay's purchase methods came under increasing attack, both within the Native Land Purchase Department, and by provincial politicians dissatisfied with the General Government's land purchase policy and conduct. Although the acquisition of areas such as Ohinemuri and Te Aroha was considered impossible unless right-holding was broken down into a collection of individual, transferable interests, the purchase of signatures from all persons entered into the memorial of ownership took years to complete and required mounting payments. The focus of criticism was, thus, not on the effects of Mackay's dealings on Hauraki's land and resource base, but on the slow rate of acquisition, the expense, and purported corruption among those involved in purchase operations. The question of the abuse of official powers was examined by the Tairua Investigation Committee, but again, the emphasis was on the loss to the 'public interest' rather than the impact on Maori.

Changes in the administration of land purchase policy

[pp. 246-253] The Government (under Sir George Grey) dispensed with Mackay's services, passed a series of legislation intended to speed up the transfer of title, and reorganised the Native Department. Of particular significance for Hauraki, was the passage of the Government Land Purchases Act 1877 under which large tracts of lands on which downpayments had been made were blocked off from private purchase in order to

20

Introduction: Chapter Summary

assist the new land purchase officer of the district to bring Crown dealings to fruition. The major object of Government policy in Hauraki, in the late 187os, was to complete Mackay's purchases, the log-jam being finally broken by the Native Land Court award of most of Waikawau, Moehau, and Te Aroha to the Crown, in 1879. These events are discussed in some detail at pp. 236-40.

Strong opposition continued in the upper Thames valley to the Government's public works programme and to the land purchase system. Government officers identified two sources of this resistance to the county road and the railway which was drawing near the `trouble spots' in the interior, and rejection of the activities of the land purchase officer, the Native Land Court, and the surveyor: Ngati Hako based at Paeroa who had supported Ngati Tamatera in their efforts to retain Ohinemuri; and the rangatira Tukukino, whose ability to control the fate of the tribal estate at Komata had been undercut by the land court. Although the Crown continued to demonise these groups as law-breakers and kingites, support for their concerns within the Hauraki was wider than it was politic for the Government to acknowledge.

Conflict at Waihou

[pp. 253-260] Frustration exploded at Pukehange in 1879 when members of Ngati Hako shot at a surveyor after years of persistent intrusion on their lands. Sheehan warned that the Government's patience was exhausted, quite illegally threatened the Hauraki people with the confiscation of the land of the 'guilty' parties, and demanded a demonstration of their law-abidingness by allowing public works through without further opposition. He told the gathered tribes: 'Now that they had gone beyond the law he intended to see the matter through. He should take the road, the railway, and the wire through their land, and that was the satisfaction he intended to get from them. The only way that they could show him that they had nothing to do with the matter was to assist him to get this satisfaction from the Natives who had thus committed themselves.'

Maori had a quite different perspective on the incident. Unable to effect an arrest, the Minister of the day (Sheehan) agreed that a runanga might consider the matter but warned that the Government would accept no decision other than one which handed over the culprits. The runanga, however, condemned the land purchase system rather than the men who had pulled the trigger. Although the shooting transgressed the law of Hauraki—of 'Pe Pai o Hauraki'—as well as that of the Pakeha, the runanga decided that there had been 'a reason for shooting the European' in the persistence of Government sponsored survey onto Ngati Hako land. In effect, the runanga found the Government's land purchase system rather than Ngati Hako to be 'guilty'.

In the early 1880s Tukukino's resistance to the road was overcome by a mixture of negotiation and threat. Early assurances that no land would be taken without his consent lasted only so long as the Government was not seriously inconvenienced. Officials engaged in 'consultation' but pushed ahead regardless, when negotiations did not result in Tukukino's immediate submission. He was placed under increasing pressure once construction reached Komata, threatened by the consequences of the Pukehange

21

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800-1885

shooting, and told that 'the road would have to be made whether he agreed to it or not.' Although Government officials acknowledged that Tukukino had cause for complaint in the decision of the Native Land Court which had reduced his power to individual possession of an one-eighth share of one of the two blocks into which tribal land at Komata had been divided, they saw the blame as attaching to his fellow grantees rather than to the title system which had been created, and utterly rejected his capacity to retain the whole of the area for the future of his people. The Government represented itself as demonstrating considerable forbearance in the question of the road, but ultimately used the threat of force to make sure that it went through.

Hopes that the freehold at Ohinemuri (estimated at 132,000 acres) could be retained, and even that the outstanding debt could be repaid and the lands brought out from under the Government's jurisdiction proved transitory. The Government had no intention of allowing Maori to regain control of sub-surface properties or retain freehold rights in Ohinemuri, and clearly considered the cession to be a temporary measure, taken only for the sake of convenience. Within two years, Mackay had resumed purchase of freehold interests in the block, making further 'final payments' to individuals who were likely to be admitted into the title once the Government managed to bring the land through the court.

Although there had been considerable ambiguity in much of its dealing over Ohinemuri, the Government insisted that payments made prior to 1875 be treated as concerning the freehold and not just the sub-surface resources. Questions about the rights of non-debtors to revenues after the cession of Ohinemuri were swept aside; all those monies went against the total amount paid out on the land before the field was opened. Only limited revenues were generated by the Ohinemuri field in the first years of its operation, this fact being largely attributed to the reluctance of mining companies to invest in the land until the Government had acquired complete control of the title. Before right-holders had a chance to pay off their debt, the Government had acquired the final signatures of a majority of right-holders and succeeded in having a large portion of the block brought through the court. It was found, then, that Mackay's payments had little relation to the actual extent of individual interests. Nonetheless the sale went through. Payments were adjusted, the block partitioned, reserves for the vendors bargained down since the whole of the Ohinemuri gold field had not been brought through, and the bulk of the land awarded to the Crown. Rather than being given a real opportunity to pay off the tribal debt, the interests of non-vendors were excised, the lines being drawn to exclude, as far as possible, existing mining claims. Although this decision probably derived from a concern about security of title, this had the effect of depriving Maori of those very lands which were producing income. The lands retained by non-signatories remained subject, however, to the terms of the 1875 mining cession. The nett effect of the Government's dealings at Ohinemuri was to fragment the Hauraki tribes, and to deprive Maori of any chance to participate in the subsequent development of what was shortly to become a valuable gold field which was to greatly boost New Zealand's economy in the late nineteenth century.

22

Introduction: Chapter Summary

Te Aroha and Pakirarahi gold fields

[pp. 272-274] The role of the extractive industries was a key element in the development of the relationship of the Hauraki people to both the colonial economy and the Crown. The final land to be opened to mining in this period—the Te Aroha and Pakirarahi gold fields—is discussed at pp. 2.59-61. The negotiations in the late 1870s were marked by a further retreat from models of partnership and Crown acceptance of the right of Maori to retain control over sub-surface resources. Standards of consent had fallen, while the terms of cession were of declining advantage to Maori right-holders, marking the deterioration of their negotiating position vis a vis the Crown.

The alienation of timber resources

The alienation of timber resources along the eastern divide is discussed briefly in the context of Mackay's purchase operations during the 1870s. The lease of large tracts of lands, giving extensive cutting and water rights for as long as 99 years, was tacitly endorsed by the Government which took advantage of that encumbrance on the title to acquire the freehold for a low price. Not only were Pakeha entrepreneurs and timber companies able to acquire a hugely valuable timber resource very cheaply in this period, but such leases were usually followed within a few years by lessee or Crown purchase of the whole of the land at vastly reduced prices from the few persons entered into the title.

The impact of the timber industry

The question of the impact of the timber industry on Hauraki Maori is picked up again at p. 274. It is argued here, that the Crown passed legislation to foster the interests of timber companies, by again drawing on concepts of 'public' interest while deliberately sacrificing the rights of Maori who had traditionally gathered resources along the banks, and cultivated the adjacent flats. The Timber Floating Act 1873 which facilitated the use of waterways for the transportation of logs to the mills was passed without consultation with Maori, even though it was known that their interests would be effected and that they would oppose the Government's assertion of a power to permit the damming of rivers. All four Maori members spoke against the Bill, but the issue was glossed over in Select Committee. Hauraki right-holders strongly protested when application was subsequently made to bring the Kauaeranga River catchment under the provisions of the Act. They argued that the Government had failed to inform them of its intention, and that: 'this rule of the Europeans to do the work first and then arrange for it and pass an act [was] wrong.' Provision was made for compensation for damage to the banks and cultivated crops, but no account taken of Maori insistence that the 'mana' of the river rested with them and that their customs should apply in these questions. Rather, it was assumed by those with hegemony over the development and application of legislation, that native usages were abolished 'where the law prevail[ed].'4

4 See Notes attached to Stone application. Auckland Provincial Government General Inwards Correspondence. AP 2/72/3512. Doc 33, p. 525.

23

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800-1885

Chapter 5: Conclusion

By 1885 an estimated total by cadastral digitalization of at least 952,615 acres of land in the Hauraki rohe had transferred from Maori into the hands of the Crown or settlers. No single policy or practice of the Crown can be identified as bearing sole responsibility for that course of events. For the Hauraki people, land loss resulted from an accumulation of their experience of dealing with Crown agents on whom they were often dependent for advice but whose primary goal was to acquire cheap lands, with colonial power structures from which they were excluded, and with the institutions that had been created for them without consultation as to their wishes. Their experience spanned the years of divergence in world views that underlay the confusion in the early transactions, and the shortcomings of the old land claims investigations, to the years of complete domination of European concepts of title and the nature of the law, by the last quarter of the century.

In the intervening years the Hauraki land and resource base continued to dwindle. Crown purchases of land between 1840 and 1865 were at first characterised by ignorance of the nature of tenure, and then as the difficulties inherent in the acknowledgment of native ownership were revealed, by the efforts of Crown agents to circumvent 'delay' by reinterpreting native tenure to exclude the right of tribal veto. In these years not only did much of the land around the northern harbours and waterways transfer into the hands of the Crown, but the groundwork was laid for further tampering with tenure and the undermining of the tribal entity in favour of the individual right. At the same time, private parties were able to acquire much of the timber resource of the WhangapouaMercury Bay area with the encouragement of Crown officers, even though such arrangements were supposed to be illegal. The impact on local Hauraki communities to the north was almost total in these years, and completed by the rapid loss of surrounding lands, as the Crown took the first steps towards converting tribal rights into transferable paper by setting up of the Native Land Court, and as purchase was opened up to private parties without considering the need for commensurate protective measures. It is argued, drawing particularly on the notorious Te Aroha case, that the processes and decisions of the court exacerbated tensions within Maori society, while at the same time, entrapping right-holders into debts which could be met only by the sale of land and resources. In the meantime, Hauraki's zone of influence had been severely clipped to the south-east and to the west of the Firth of Thames by confiscations, seen as punishment for the Tauranga and Waikato tribes, but which were also aimed at 'rebels' within the ranks of Ngati Paoa and Ngati Tamatera, and intended to secure Government control of the general district.

When the Crown re-engaged in land purchase operations in the early 1870s, its officers exploited the opportunities presented by the way the court issued title to effect purchases, buying from the ten grantees in the first years of its operation, and leading the way in advancing payments to every 'rag, tag, and bobtail' once it began entering all right-holders onto the title. And, as elsewhere in the country, Maori at Hauraki were caught up in the costs of defending claims, attending hearings, court fees, and survey. The reworking of native title towards individualised tenure set the stage for the Crown's first

24

Introduction: Chapter Summary

great drive to purchase lands in the Hauraki heartland, under the Immigration and Public Works Acts of the 1870s, and the impulse of the huge influx of Pakeha into the Thames which stimulated the demand for more land for settlement, timber, and minerals. Hauraki land holding declined greatly in this decade. W.H. Oliver points out that Maori who had experienced a new economy in the 1850s in which they could participate without loss of independence, 'were now subjugated to a more advanced form of that economy.' While Hauraki Maori continued to participate in that system, they did so, as a 'people whose options had been narrowed to an opportunistic, seizing of short-lived (and, in the event, damaging) benefits.'5

Most of the gold and timber resources of the district were acquired from Maori for a fraction of their value in the late 1860s and early 1870s. Once these sources of income had been exhausted, and locked ever more tightly into a cash economy by the destruction of the traditional economy through Government-supported, commercial development of the foreshore and rivers, Hauraki were left with land sales as the only remaining source of income. Fostering that process, Crown agents exerted constant and heavy pressure on non-sellers, cynically exploiting tangi, arranging for secret payments, and using `raihana'—a practice condemned as 'unfair', by the Waitangi Tribunal, in the context of Te Roroa6—while the Government took on powers of exclusive right to purchase, eliminating competition at the expense of those Maori who were trying to realise the best value for their lands when they sold.

A key element in the history of the developing relationship of the Crown to the Hauraki tribes lay in the importance of the natural resources of the land—and in particular of minerals, as well as timber. In both cases, the Crown furthered goals of extractive development at the expense of native rights, while arguing that such steps were required for the 'public interest'. But at the same time, the actions of the Government ensured that Maori participated less and less in the profits of development even though the loss for them was greater, in terms of the degradation of their natural environment, and the loss of their ability to use its resources. The desire to acquire complete control of such resources meant the acquisition of the freehold as well, and increasingly Government purchase activity resulted in Maori being excluded from any benefits from gold mining at all.

When gold had been first discovered on Hauraki lands, the tribes had been at their most powerful, and the Crown had negotiated accordingly, making no clear assertion of a prerogative, and giving what seemed to be an acknowledgment of Maori rights of ownership. Clearly, in the Hauraki view, the first agreements regarding gold had the status of treaties, recognising their ownership of the land and all its attributes, their authority to open it or to keep it closed, and their willingness to co-operate in the development of their lands with the help of the Government and western technological expertise—but on terms of partnership. But as the position of the Crown strengthened, it

5 W. H. Oliver, The Social and Economic Situation of Hauraki Maori after Colonisation. Report prepared for Hauraki Maori Trust Board, 1997.

6 See Waitangi Tribunal, Te Roroa Report, Wai 38, Wellington, 1992, p. 6o.

25

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

was able to interpret those deeds as mere legal devices referring to a limited grant of easement and holding no wider significance. That interpretation reflected the growing domination of common law precepts which had been previously hidden—a theme which will be explored in more detail in Part Two of this work.

By the beginning of the 1880s political authority, land ownership, and control of resources had shifted decisively in favour of Pakeha. The Crown had purchased over 300,000 acres in the region in the preceding ten years, and Maori were left with only small blocks on the peninsula. Much of Ohinemuri had gone, while many of those areas, apparently remaining within Maori hands, were encumbered by debt, or by mining cession. There was clear warning at the time from one of the Government's own agents that steps should be taken before the Hauraki tribes were rendered completely landless? Part Two of this report will detail how that warning, and Maori efforts to exert greater control over their remaining assets, were largely ignored, and Hauraki's last resources either purchased or appropriated.

It will be argued there that although Government purchase activity generally quietened in the region during the 1880s, consistent efforts were made to complete transactions where debts were outstanding, and to acquire blocks of particular value, for example, those of mineral, agricultural, or tourist potential. In any case, the respite for Hauraki was short–lived. The pace of Government purchase picked up again under the Liberal Government, as the Hauraki Plains area—alienation of which had been long delayed by the complications of tribal tenure, and strength of non–selling sentiment of the communities based around Waitakaruru, Kerepehi, and Hoe–o–Tainui—was finally brought through the Native Land Court. Bitter contest there, the costs in fighting claims based on different colours of right, and expenses of survey, immediately necessitated sales, even by those who had formerly been intransigent opponents to alienation. Throughout the late 1890s and early twentieth century the Government took ruthless advantage of the distressed situation of Hauraki Maori: keeping them to the lowest possible price, removing restrictions on the alienation of reserves, and purchasing out private survey liens against blocks, encouraging the court to award land in lieu of survey debt, and actively acquiring the last large areas in Maori hands (the floodplain) for large–scale drainage schemes made possible by new technology. That purchase and development policy was backed up by utilisation of section 20 of the Maori Land and Settlement Act 1905, and by takings under public works legislation in 1909–1911 for the 'more effective carrying out of drainage works'.

At the same time the Crown further strengthened its control over sub–surface resources, Maori ability to deny Crown access to minerals being severely diminished in the final two decades of the nineteenth century. A series of statutes—the Reserves and Endowments in Mining Districts Act 1882, the Mining Act 1886, the Mining Act (no. 2) 1887, and the Mining Act Amendment Act 1896–all chipped away at their rights under cession

7 See Native Agent to Under Secretary Native Department, 29 May 1880. AJHR, 1880, G–4, p. 5. Doc. 74, p. 1511.

26

Introduction: Chapter Summary

agreement, and their ability to withhold mineral bearing lands from the Government's jurisdiction. These changes were protested by Maori who complained that this legislation clearly was not intended for their benefit, and that 'each succeeding Parliament endeavoured to make the laws worse than those passed by the previous Parliament' without any effort at consultation or respect for former commitments.' Their arguments based on Treaty rights were countered, however, by the Government's strengthened rhetoric of common law and the prerogative right and by appeals to the concept of equal treatment under that law.

Hauraki Maori were denied the opportunity to take advantage of later mining developments in Ohinemuri, or of drainage schemes on the plains, since the success of those ventures was seen as predicated on Crown ownership, while their remaining lands often remained encumbered by leases, and powers given under mining cession, long after gold had petered out. Left with very little resource base, Hauraki Maori were denied any chance of recovery, precluded from even a modest participation in the twentieth century economy, and as Oliver points out, 'relegated to the bottom of the socio-economic heap.'9

A description of the deterioration in the position of the Hauraki people may be left, at this point, to the words of one of their own kaumatua as he sought, unsuccessfully, in 1935, to gain redress for the way in which they had been led into 'bad bargains', and refused any real possibility of entering into full economic and political partnership with Pakeha:

There is a saying in the Good Book, which runs like this. 'Where the carcass is there will the ravens be gathered together'; or, in other words, 'Where the carcass lie, the ravens will fly.' There my good people, humble descendants of our beloved Marutuahu, lay the misfortune of our forefathers. That ugly carcass—gold, laid right there in our very midst. As far back as 1852, the ravens flew to the Coromandel ranges to dig for that carcass of gold. Why! What a curse! ... [T]he first carcass was only partly devoured when the ravens flew to the second carcass ... the rich Hauraki Plains. Rich! Yes! Gold to the eyes of the learned, and of the wise! Whereas to the eyes of the elders, it was just a mere swamp of flax, kahikatea, a place for eels. So the Hauraki Plains was also devoured and traversed by the wheels of industry, and progress. Now it is one of the richest dairy farming in the Dominion. Could we blame our folks for selling their lands. Why, no! They did what they saw was right. ... However, I will not remark upon the Acts governing our Maori lands, but suffice it would be to say, that on top of all these developments, I can safely say that all the Maori farmers operating in the Hauraki District can be counted on the tips of my fingers.10

8 Taipua in n NZPD, 1892, vol. 78, p. 429.

9 Oliver, The Social and Economic Situation of Hauraki Maori After Colonisation.

10 Copy of Minutes Taken for the Representatives of Ngati Maru Present at the Second Hearing of the Petition of Rihitoto Mataia, 6 March 1935. Appendix A in 'Hauraki Gold Fields Native Revenue, Treasury Statement relative to Petitions,' Hauraki Gold Fields Special File. MA 13/35 (c).

27

MAP 2: DISPERSAL OF HAURAKI TRIBES AT 1840

28

Chapter 1

HAURAKI AND THE CROWN, 1800-1850

The Hauraki Rohe and Iwi

The current perception of Hauraki territory tends to focus on the Coromandel peninsula, ignoring the sea-going character of the people who comprised the Hauraki iwi. The zone of influence exercised by these tribes in the early nineteenth century extended out from the Coromandel peninsula, encompassing the western shores of the Firth of Thames, the islands of the gulf; and reached lands as far north as Mahurangi where the Marutuahu people fished for shark, and later participated in 'sales'. The extent of Hauraki interests is described in Taimoana Turoa's account of the iwi of the region:

Their total peripheral boundaries can generally be described as commencing at the sunken reefs of "Nga Kuri-a-Wharei" offshore of Waihi Beach on the eastern coast, progressing West inland to Te Aroha, thence to Hoe-o-Tainui ... north along the range line of Te Hapu-a-Kohe and the Hunua ranges to Momoukai and Papakura. A direct northern boundary continues to include parts of the Tamaki isthmus, Takapuna, Whangaporoa and Mahurangi before terminating at Matakana River estuary south of Rodney. The seaward boundaries continue eastwards to include parts of the island of Aotea, Great Barrier and then southwards to its commencement at "Nga Kuri-a-Wharei". Included in those margins are the inner gulf islands of Tikapa Moana and those, except for Tuhua Island, offshore of the eastern coastline.1

This was a rich area of natural resources which encompassed: the fishing grounds of the Hauraki gulf; the mudflats of the Miranda and Kauaeranga coasts noted for their shellfish, flounder, and birds; the wetlands of Piako containing eels, flax, birds, and cultivation grounds along the alluvial flats; and sites where the highly-prized properties of the earth were utilised, for example, basalt for adzes at Tahanga, siliceous sinter for cutting tools at Great Mercury Island, and obsidian from Tuhua by the Purangi River.2

At 1840 a mixed group of Hauraki iwi occupied the core lands of this region (the shores of the Firth, certain of the islands of the Gulf, the Coromandel peninsula extending into the interior to Te Aroha, and the Hauraki Plains). This group included the alliance known as the Marutuahu confederacy comprising Ngati Maru, Ngati Paoa, Ngati Tamatera, and Ngati Whanaunga (descended from Marutuahu, the son of exiled Tainui chief; Hotonui, who is thought to have led an invasion of the region in the seventeenth century);

1 Tai Turoa, Nga Iwi o Hauraki, The Iwi of Hauraki, report prepared for Hauraki Maori Trust Board, 1997.

2 See A. Salmond, Two Worlds: First Meetings Between Maori and Europeans, 1642-1772, Auckland, 1991,

P. 193.

29

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800-1885

descendants of 'original' peoples such as Patukirikiri, Ngati Hei, and Ngati Hako who were labelled subsequently as 'conquered' but who remained on the ground;3 and peoples such as Ngati Tara and Ngati Koi based in the southern spheres of Hauraki territory, and connected with Ngati Raukawa. Hauraki iwi also included incoming groups such as Ngati Pukenga and Ngati Porou, who were gifted lands for mum in tribal conflicts; Ngati Rahiri descended from early Ngapuhi and Mataatua tupuna; and Whakatohea—former captives and displaced persons who settled in the Ohinemuri region, were eventually emancipated, and developed into a cohesive fighting force.

In the seventeenth century the descendants of Marutuahu, allied eventually with those of Paoa, migrated first to the western coast of Tikapa Moana and conquered the preexisting peoples, known as Ngati Huarere, who occupied the lands surrounding the Firth. From there they expanded outwards, fighting Nga-Iwi-Oho on the Tamaki Isthmus, the Wai-o-hua, and Ngati Wai of Great Barrier. Initially in search of flax, they established settlements within the Hauraki floodplains where they came into conflict and eventually intermarried with Ngati Hako (thought to descend from Toi). This process of mutual incorporation is summed up by Turoa who comments that: All the present tribes of Marutuahu without exception are descended from Ngati Hako.'4 The process was repeated with other peoples who remained on the ground throughout this history of raids and migration; for example, further north, on the eastern divide of the peninsula at Whangamata and Whangapoua, Marutuahu fought intermittently with the Arawa people of Ngati Hei, but these people 'managed to maintain a certain aloofness from the turmoil' and retained settlements in the area.5

The Marutuahu-Paoa confederacy (who tended to be simply described as 'Ngati Paoa') raided as far north as Takapuna and Mahurangi, and left people under Kapetaua (of both Paoa and Patukirikiri descent) in occupation of Waiheke Island from which base they made forays, established marriage alliances (for example, with the people at Kohimaramara), and cultivated parts of the coastal lands and islands of the Waitemata Harbour.6 In the late eighteenth century, Marutuahu came into increasing conflict with Ngati Whatua who were moving into the Tamaki-Waitemata area from the north, and with Ngati Rongo of Kawerau. Clashes occurred after Ngati Paoa killed Tarahawaiki during shark fishing at Mahurangi. This incident was followed by further confrontations, including the sacking of Motukaraka and an attack on Taupo. In spite of these challenges to their predominance here, the Marutuahu-Paoa tribes had established and maintained a strong presence on the isthmus along the Tamaki River—most notably the large village of Mokoia and the pa, Mauinaina, on the west bank near Panmure Basin.7

3    Evidence of Mackay. Le 1 1875/12. A fuller description of the Hauraki tribes may be found in Turoa, Nga Iwi o Hauraki, The Iwi of Hauraki.

4      Ibid.

5      Ibid.

6    See L. Kelly, Tainui: the story of Hoturoa and his descendants, Wellington, 1949, p. 184; P. Monin, The Islands lying between Slipper Island in the South-East, Great Barrier Island in the North and Tiritiri-Matangi in the North-West,' report prepared for the Waitangi Tribunal, Wai 406, 1996, p. 16.

7    Monin, 'Islands lying between Slipper Island,' pp. 17-19.

30

Chapter 1: Hauraki and the Crown, 1800-1850

At the south-eastern zone of Hauraki influence, Ngati Tamatera claimed interests as far south as Motukouru, and held sway over the area inland to Te Aroha where their rights intersected with those of Ngati Maru, Ngati Haua, and others. The Marutuahu clashed regularly with Ngaiterangi, who moved into the Tauranga district in the eighteenth century, the outward bounds of control shifting between the two peoples with the fortune of battle. Immediately prior to the Ngapuhi invasions, in the early nineteenth century, Te Moananui exercised rights in lands from Te Kahakaha to Opeope Swamp to Teroa on the inner side of the Kati Kati Harbour to Motukoura, and into the interior.8 Even during the dislocations consequent on the Ngapuhi invasions (described below), Marutuahu continued to mount raids from their interior refuge into the Tauranga harbour area.9

The tribal status quo was severely disturbed by the raids of Ngapuhi in the early nineteenth century. The acquisition of muskets shifted the balance abruptly, throwing the whole region into a state of considerable flux in the period immediately prior to the declaration of British sovereignty. The Ngapuhi musket raids and the consequent arming of all iwi in the vicinity greatly exacerbated traditional fluctuations of warfare and alliance. Old accommodations and balances were disrupted: temporary departures from the exposed coast, occupations of inland areas, and a reassertion of rights when tribes moved back to their former lands resulted from the struggle to maintain viability within that vortex of power. This recent history of warfare and movement was to add greatly to the complications of claims as native tenure was converted into European title in the first thirty years of the colony. On the one hand, tribes claimed areas occupied during the 1820s and early 1830s, citing battles fought and pa established, and on the other, were anxious to reassert rights to ancestral lands reoccupied since then.10

At first the Marutuahu confederacy held its own, Kelly describes successful counterattacks by Ngati Maru, Ngati Whanaunga, and Ngati Paoa into the Bay of Islands.11 By the 1820s, however, the Hauraki tribes had been forced to withdraw into the interior. Ngati Tamatera departed from the exposed Tauranga coast—neither they nor Ngaiterangi taking up permanent residence in the Te Kahakaha-Moukouru region for many decades thereafter.12 Ngati Paoa also retreated south from their settlements on the Auckland isthmus. Mokoia and Mauinaina were sacked circa November 1820, and the shores of the Tamaki River and Waiheke Island were vacated. Totara pa (Thames) fell two months later. Ngati Paoa and other 'Thames' tribes took up residence in middle Waikato with Ngati Haua and Ngati Raukawa of Te Kaokaoroa-o-Patetere to whom they were closely allied through marriage." Waikato were then drawn into the conflict as Ngapuhi pushed south, attacking through the exposed Hauraki flank. Counterattacks followed from Waikato and the Marutuahu who consolidated their strength by building

8 See Report on Te Moananui's and Ngaiterangi Claims to Lands at Kati Kati. AJHR, 1867, A-20, p. 7.

9 Turoa, Nga Iwi o Hauraki, The Iwi of Hauraki.

10 See Monin on this point with reference to Waiheke Island in, 'Islands lying between Slipper Island,'

PP. 23-25.

11 Kelly, ainui, pp. 272-273.

12 See Report on Te Moananui's and Ngaiterangi Claims to Lands at Kati Kati. AJHR, 1867, A-20, pp. 7-27.

Doc. 58, p. 1340.

13 Turoa, Nga Iwi o Hauraki, The Iwi of Hauraki.

3

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

15 pa in the area, scattered from the Maungatautari foothills to Tauwhere, including Horotiu (located at present day Cambridge), and intermarrying with their hosts. 14

A new balance of power was gradually established. In the mid-1820s, Ngati Paoa, under the leadership of Te Rauroha, made peace with Ngapuhi, and started to return to their settlements at Ponui, Taupo, and Waihopuhopu on the south-west shores of the Firth around Kaiaua. Mauinaina was eventually reoccupied in 1826–1827, although Mokoia village on the Panmure side appears not to have been resettled.15 D'Urville, visiting the Tamaki estuary at this time, was met by two Ngati Paoa chiefs, Te Rangi and Tawhiti, who showed him the access up the river to the portage at Otahuhu. The two Maori named their father as Te Haupa, from near the Thames, who had placed a tapu on their old homes as a result of epidemic sickness, and moved his people further north on the left shore of Hauraki Bay. On their journey to the Manukau, the party of French noted a 'mobile camp' of huts on the Tamaki River, the village of Orouroa, a number of canoes and a 'great many inhabitants' on the eastern bank, and on their return, 'crowds of natives ... looking for shellfish in the muds and the rocks at the entrance ... covered with men fishing.'16 In the peace-making which followed the Waikato and Hauraki counterattacks, Ngapuhi chief, Patuone, married Riria, a high-ranking woman of Ngati Paoa and settled at Putiki, on Waiheke. Many Ngati Paoa returned to Waiheke, Tamaki, and Takapuna, shortly thereafter. Owairoa (Howick) was repossessed by Ngati Tai and Ngati Tamatera, the two groups being connected through Kahawa, from whom the great Ngati Tamatera chief, Te Moananui (also known as Katikati), traced descent.17 Around 1830 the return of the Marutuahu people to the Hauraki lands of the isthmus and peninsula was accelerated by the outbreak of hostilities at Maungatautari with Ngati Haua, led by Te Waharoa, which culminated in the battle of Taumatawiwi.18

The return of the Hauraki tribes to the Auckland region did not go unchallenged, bringing them into direct competition with Waikato peoples for control of the shores of the southern gulf. In the early 1830s the 'Thames tribes' became embroiled in dispute with sections of Waikato and with Apihai over an incident at. Whakatiwai (near Miranda), resulting in an abortive counterattack at Maramarua. A general regional peace-making was, however, brokered by the Church Missionary Society (CMS) and Te Wherowhero, who was anxious to gain access to trade with the Europeans frequenting the Waitemata and Manukau Harbours. This involved the resettlement of the Tamaki isthmus by Ngati Teata, Ngati Tamaoho, Te Akitai, and Ngati Whatua; the occupation of certain sites (Awhitu, Mangere, and 'gifted' lands at Onehunga, Pukapuka, and Remuera) by Te Wherowhero's own people; and the 'sale' of a large disputed territory (Papakura, Otahuhu, and Maraetai) to the missionary, Fairburn. Signatories to that

14 Ibid., p. 28; P. Monin, Waiheke Island: A History, Palmerston North, 1992, p. 36.

15 B. Kayes, 'The Ancestors of Ngati Paoa,' University of Auckland. Cited in Waitangi Tribunal, Report of the Waitangi Tribunal on the Waiheke Island Claim, Wai 10, Wellington, 1989, p. 6.

16 Dumont D'Urville, New Zealand 1826–1827. An English Translation of the Voyage de l'Astrolabe in New Zealand waters with an Introductory Essay by Olive Wright, np, 1950, pp. 217–219.

17 See Mackay report, 23 June 1865. Le 11865/138. Doc. 16, pp. 125–126

18 A. Ward, 'Supplementary Historical Report on Central Auckland Lands.' Report prepared for CCJWP, 1992, pp. 8–9.

32

Chapter 1: Hauraki and the Crown, 1800-1850

agreement included Ngati Paoa, and the other 'Thames' tribes, as well as Te Akitai, and some Ngati Whatua.19

Hauraki at 1840

Despite the depredations of disease and the upheaval of war in the first decades of the nineteenth century, by 1840 Hauraki Maori had managed to re-establish themselves on the peninsula and in the region of Auckland, and to lay the foundations of an advantageous social and economic relationship with Pakeha.20 There had been considerable contact with Pakeha since the 1790s. Cook's description of the Firth of Thames attracted a great number of ships to the region—sealing and whaling ships for repairs at Waiheke, and for spars—which Maori provisioned with potatoes in exchange for iron and goods.21 That economic contact generated by the Hauraki position on the coastal trading routes was abruptly cut off by the tribal turmoil of the 1820s. Nonetheless in the following decade, the Hauraki tribes were able to re-establish themselves along the shores of the gulf; capitalising on the growing European presence in the area.

Early contact at Mercury Bay. William A. Price Collection, Alexander Turnbull Library

19 Ibid., pp. II-I2. For further discussion of Fairburn purchase.

20 For fuller discussion of Hauraki social and economic position in this period see Oliver, The Social and Economic Situation of Hauraki Maori After Colonisation; R.C.J. Stone, The Economic Impoverishment of Hauraki Maori Through Colonisation, 7830-7930, report prepared for Hauraki Maori Trust Board, 1997.

21 B. Kayes, The Ancestors of Ngati Paoa.' Cited in Waitangi Tribunal, Report on the Waiheke Island Claim, p. 3.

33

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

The channel between Waiheke and Coromandel was an important conduit to the Auckland isthmus, the Coromandel Harbour serving as a customs entry point in the 1830s, while the Firth of Thames provided access into the Waikato for missionaries and explorers. A CMS station was established at Puriri in 1833, and then shifted to Thames in 1837, in which year a second station was founded at Maraetai.22 A number of large-scale commercial operations were also set up in the decade before sovereignty was negotiated. A trading station dealing in flax and spars was established at Miranda in 1832. Ranulph Dacre, who set up a mercantile and shipping company with his partner William Wilke in 1834, successfully negotiated with Maori for land at Mangaonui, Mercury Bay, and Mahurangi for timber working, ship-building, trading, and stock raising. Dacre operated two spar stations on the Coromandel peninsula, while his associate, Gordon Browne, installed a water-powered timber mill, and a wharf and slipway at Mercury Bay in 1836.23 The American trade; Webster, who married the daughter of Horeta Te Taniwha, a Ngati Whanaunga chief, set up a station at Coromandel in 1836 for the milling of spars and provisioning of the New South Wales market.

Contemporary comment suggests that Maori at Coromandel were engaging strongly in the commercial opportunities offered by the European presence in these years. John Logan Campbell, who first settled on Whanganui Island at the entrance of Coromandel harbour in 1838–1839, noted that resident Maori were in a 'flourishing condition' as a result of their prosperous trade in timber, flax, maize, and other foods, in exchange for cash, tobacco, spirits, and other European goods.24 By 1840, blankets were such common items in the district that the British treaty negotiator, Bunbury, considered them barely adequate as tokens of official regard, reporting to Hobson, from Coromandel:

It is I conceive much to be regretted that objects of ordinary traffic between the natives and Europeans should have been selected as presents for the tribes on the coast; and I fear, therefore that the blankets, pipes and tobacco with which I have been furnished, must only be employed in payment for messengers. ... At a bivouac of natives which I visited, I observed no less than six double-barrelled guns outside one of their huts ... of a very superior quality.25

Maori signatories to the Treaty of Waitangi at Coromandel refused the tendered gift of a blanket each, stating that they wanted cloaks, and that 'the Queen ought to give them something out of the common way.'26

The Hauraki tribes sought to use the growing European presence in a bid to reclaim old ancestral lands, unoccupied after the dislocations of the preceding years. Dacre, for example, encouraged people from the Thames to settle at Mahurangi. This venture was,

22 Monin, 'Islands lying between Slipper Island,' p. 22.

23 Department of Internal Affairs New Zealand, Dictionary of New Zealand Biography. vol. one, 1769–1869, Wellington, 1990, p. 97.

24 John Logan Campbell, Poenamo: Sketches of the Early Days of New Zealand. 1881, p. 73. Cited in Stone, p. 6.

25 Bunbury to Hobson, 6 May 1840, end. 3 in Hobson to Russell, 15 October 1840. GBPP, 1841 (311), pp. 100–101, Doc. I, pp. 1–2.

26 E.M. Williams, Journal of a Voyage to the Northern and Southern Islands of New Zealand in H.M.S. Herald. 1840, MS Copy micro 210. ATL.

34

Chapter I: Hauraki and the Crown, 1800–1850

however, unsuccessful, the residents being driven out by Ngapuhi opposition and the depredations of a visiting European vessel.27 Many years later, Paraone of Ngati Maru told the Native Land Court that kauri on Waiheke and at Waiau (Coromandel) had been traded with visiting vessels in order 'to obtain powder to enable them to fight Waikato [Ngati Haua].'28 Eventually, however, the European presence helped stabilise tribal warfare in the Auckland region, providing an alternative outlet to internal competition, but also fuelling early years of land and resource selling.

Hauraki's heavy involvement in transactions at Tamaki, Mahurangi, Mercury Bay, and the gulf islands in the late 1830s and early 1840s fits well with the Parsonson thesis of 'sale' as a means of asserting mana over lands for which other groups were in direct competition. Underlying the signing of deeds for lands at Waiheke, Mahurangi, Coromandel, Mercury Bay, Tamaki, and Piako was a desire to affirm authority over those areas, and to cement useful, ongoing relationships with traders and missionaries. The Waitangi Tribunal has recently found in the parallel context of Muriwhenua that early transactions were unlikely to have been seen by the 'vendors' as 'sales' in the European sense, bestowing permanent and exclusive possession to the purchaser.29 Their own ties with the land were not severed. Events at Great Barrier Island serve as an example of the assumption of Hauraki Maori that they retained rights over lands for which they had signed deeds of 'sale'. Months after they had supposedly sold the island to Webster and his partners, Marutuahu fought off a party of Ngati Porou and Ngapuhi who had landed there, and stripped one of their cultivations. Monin points out: 'Demonstrably, this group showed that in its view the transaction had not terminated fully and finally its relationship with that land:30 Comments by C.W. Ligar, as Surveyor General, would also seem to support the view that Maori saw deeds as signalling a social contract whereby the presence of a particular individual was secured, and did not envisage that occupation and use of the land concerned would pass on to strangers or to the Crown. He complained with reference to Katipa's obstruction of the survey of Dalziel's boundary which was being drawn to include the portage, thereby threatening Maori control of 'so important a line of communication', that:

Enough also transpired in the various discussion to convince me that the natives make a great distinction between the claims of an individual European to land and the Crown. The rights of the former would be more cheerfully admitted while the rights of the latter although derived from the same person would be concealed and denied.31

During these years, 'Ngati Paoa' signed deeds covering much of their interest on the isthmus and in the islands of the Waitemata harbour. In 1838 CMS missionary, Hamlin, 'purchased' a block of land, spanning from Waipuna to Otahuhu, from Ngati Paoa said to be 'residing in the district of Thames'. Ten chiefs signed: Ruinga, Herua, Puhi,

27 Dacre to Colonial Secretary, 4 February 1841. OLC 1978–981. Repro 1681. The community was eventually evacuated owing to continued depredations of Ngapuhi and by European vessels.

28 Waiheke Minute Book 1, p. 51. Cited in Monin, Waiheke Island, p. 38.

31 Ligar to Colonial Secretary, 28 October 1851. 1A 11851/2165.

35

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800-1885

Kupenga, Wakarawe, Karamu, Pouroto, Wakaturia, Ngakete, and Ruikakara. The vaguely described boundaries ran from Waipuna, near the Panmure Basin and Tamaki River, west to the Kawarahi Hill, near Mt Smart close to the Manukau to the middle of the Otahuhu canoe portage. Payment comprised 53 blankets, 13 spades, 20 adzes, 20 hose, 16 axes, 12 combs, 12 scissors, 12 knives, eight china pipes, and £8 in cash." Ngati Whatua, who contended for control of the west bank of the Tamaki Rive; received a lesser payment of three blankets, 17 lb of tobacco, one beaver hat and three china pipes, a year later." In 1838 Ruinga, Tuma, and Tohi also 'sold' some 3,000 acres, including timber, on Waiheke to Thomas Maxwell for five sovereigns, 25 Spanish dollars, one and a half casks of tobacco, eight casks of gun powder, two blankets, and a whaleboat. Kahukoti, Ngauranga, and Ruinga sold another 3,000 acres on the island to William Webster for goods, including gun-powder, valued at Lio8. In the following yea; Fairburn purchased 300 acres on Motuihe from Hoete (William Jowett) for £30, on-selling the land to Taylor four months later for £200. Hoete, with other Ngati Paoa, also 'sold' Takapuna lands to Taylor and Spark for £330 of goods and £25 in cash? In 1840 Ngati Paoa participated with other iwi in two further transactions: in Dalziel's purchase of a block from Omaru Creek on the western shore of the Tamaki River, west to Okahu Bay; and in the sale of Motutapu and three other islands to Thomas Maxwell.35

Other Hauraki groups—Ngati Maru, Patukirikiri, Ngati Whanaunga, Ngati Tamatera, and Ngati Hei—signed deeds for lands around the Coromandel harbour, Whitianga, Mercury Bay, and near Thames, cementing bonds with missionary Preece and local entrepreneurs such as Webster, Browne, Dacre, and Kennedy. These transactions, like those outlined above, were generally for goods and a little cash, and, in some cases, comprised relatively large areas. Browne, for example, set out to make as many 'purchases' as he could in the northern peninsula, both on his own behalf, and acting as an agent for Dacre for their sawmilling operations.36 He signed deeds in 1837 with Rahui, Puata, and others, for lands at Mercury Bay (an estimated 2,000 acres), for £16 and goods valued at some Lux) at Sydney prices; and for another estimated 1,200 acres from Maka, Paerata, and others, for £134 in goods. Other agreements were reached with Ngati Paoa for lands at Waipuna, on the isthmus, and Mahurangi.37 Webster also signed a number of deeds with different Maori groups: Tauaroa and Arakuri for land at Coromandel and Wanganui Island; for Mangamangaroa on the River Thames with Te Ngarara and Taharoku; with Hokianga and Pehi for land near Tairua; Pehi, Panei Pae, Pouaka, and others for Big Mercury Island; Kaukoti, Tauaroa, and others for Point Rodney; with Te Ruinga and

32 H.H. Turton, Maori Deeds of Land Purchases in the North Island of New Zealand (copied from the originals) 1877-1888, Wellington, 1888, no. 366, pp. 328-329.

33 The purchase was subsequently affirmed by three witnesses from each iwi before the Land Claims Commission. Hamlin received a grant of 1,100 acres while the Crown claimed 214 acres as surplus.

34 See Bell report, 23 June 1862. Taylor and Spark case file, OLC 1 454.

35 See Turton, Maori Deeds, no. 347, p. 306; no. 350, p. 312; no. 354, p. 34; no. 357, p. 320.

36 Browne to Dacre, 1 February 2836, attached to 61/6z. In OLC I 978-981.

37 See Dacre for Browne to Colonial Secretary, February 2841, in ibid.

36

Chapter I: Hauraki and the Crown, 1800–1850

other Ngati Paoa chiefs for various sites on Waiheke; with Horeta for lands at Great Barrier Island; and with Koenaki and Wareponga at Piako.38

Europeans saw these deeds as constituting the conveyance of property but knew that they were there on Maori sufferance. While commercial venture and land transactions seemed relatively secure at Coromandel, the tenure of European settlers remained particularly precarious on many other parts of the peninsula. Not only were relations at the Thames strained with the neighbouring Waikato tribes, interfering with commercial operations reliant on Hauraki co-operation and labour, but Browne acknowledged that his transactions at Mercury Bay would enable him to establish an uncertain ownership only:

I recommended to you [Dacre] the purchase of Mercury Bay, & I still advise it as the only means of securing the masts. I have a written offer of it from the chiefs, but any one stepping in would take away the greater part. They are all so extremely jealous of one another that they will not be satisfied with one Pakeha amongst them however liberal he may be & whatever influence he may have over them in other respects. I could only get admission to one creek, until this present summer as they were in constant expectation of some newcomer. Now I have their written admission to the whole—but the tenure is very precarious.39

Subsequently, however, the transactions which underwrote the formation of nodes of white settlement and commercial enterprise at the northern bays and near the coast at Thames appeared relatively uncontentious, and gave rise to little complaint from Maori in following years. Questions of boundary or completion of payment might be disputed, but not the fact that a transaction had taken place.40 The question of what Maori had intended by such transactions was not, however, considered by investigating authorities; shortcomings in the conveyance might be exposed but the intention of sale was largely assumed. It seems likely that Maori held their own set of assumptions; that their own tikanga still applied. In the opinion of the Waitangi Tribunal: 'There is no compelling evidence that Maori had bowed to an alternative power when the transactions were entered into'—a point discussed more fully with reference to Hauraki, in the following section. Rather, the 'general principle was that persons were allocated the right to use a particular resource.' In customary terms, the maintenance of that use right over land was contingent on a continuing contribution to the community which expected ongoing benefits to accrue to it from the allocation of such privilege.41 In the prosperous years of the early 1840s, when hapu based around the harbours reaped the benefits of their proximity to Auckland and the presence of local trading stations, that bargain seemed to be fulfilled, and there was little reason for Maori to perceive, feel anxiety at, or challenge the assumptions of 'sale'. Later, the belief that absolute sales had occurred was fully entrenched, and presumed on the basis of the signature of Maori on the deeds, and the endorsement of the first Land Claims Commission.42

38 See J. Salmond, Webster's Claims, Wellington, 1912. Micro 499. ATL.

39 Browne to Dacre, 14 December 1845, attached to 61/62. OLC 1 978–981.

41 Waitangi Tribunal, Muriwhenua Land Report, p. 106.

42 See discussion, pp. 46–52.

37

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

The Signing of the Treaty of Waitangi

Reaction amongst Hauraki to the propositions contained in the Treaty was mixed, reflecting on the one side, the long and prosperous contact with Pakeha, particularly at Waiheke and Coromandel; and on the other, the continuing power of Maori whose leadership saw no reason to relinquish their authority to the British Government. Thus, while Hauraki rangatira signed the Treaty at a number of locations (at Waitemata on 4 March 1840, Coromandel on 4 May, off the Mercury Islands three days later on 7 May, and at Tamaki on 9 July), many others withheld their consent.43

Major Bunbury, to whom responsibility for the extension of British sovereignty over the South Island and the completion of negotiations in the North Island had been delegated, held his first meeting at Coromandel on 4 May 1840. Discussions extended over two days. The interpreter, Edward Williams (who had assisted his father Henry Williams in the translation of the draft text into Maori), explained the reasons for the Treaty: that the influx of European made it desirable and that Maori should be protected in their land rights. Maori were told that the Government wished to 'check their imprudently selling their lands, without sufficiently benefiting themselves or obtaining a fair equivalent.' Preemption was 'intended equally for their benefit'.44 Williams believed that it was better for Maori to sell their lands to the Crown 'at a juster valuation', encouraging 'industrious white men to settle amongst them' to share in their skills and knowledge, than to sell large areas to absentee speculators from which they would benefit little.45

Hauraki Maori did not automatically accept the new power structure behind the offer of the Treaty, nor the new legal usages that flowed from its adoption. After a 'great deal of discussion' and 'a deal of trouble' only four of the six principal chiefs present were prepared to sign. One of the signatories, Te Horeta, was an elderly rangatira, long accustomed to European contact. According to Orange, Te Horeta, like other chiefs based near the northern harbours, had been drawn into a 'direct, personal relationship with the Crown through visiting British naval vessels.' The chief was 'apparently delighted by Bunbury's visit, [and] had satisfied himself about the Treaty and the new governor as soon as the Herald had anchored on 30 April.'46 By contrast, Piko and an unnamed chief (possibly Taraia) refused to sign, apparently influenced against the Treaty by the news of an arrest of a Maori offender in the Bay of Islands; this incident being seen as a practical demonstration of the consequences of the establishment of British sovereignty. Gunboat tactics had been employed already at the Thames in the late 1830s,

43 A total of 29 chiefs signed from the western side of the Hauraki gulf, the islands, and its hinterland. Induded here were, however, non-Hauraki people, for example, Ngati Whatua. See C. Orange, The Treaty of Waitangi, Wellington, 1987, pp. 62, 67.

44 Bunbury to Hobson, 6 May 1840, encl. 3 in Hobson to Russell, 15 October 1840. GBPP, 1841 (311), p. 100. Doc. 1, p. 1.

45 This statement was made to Maori at Tauranga a few days after the Coromandel meeting. See Bunbury to Hobson, 15 May 1840, end. 6 in ibid. p. 103. Doc. I, p. 4.

46 Orange, The Treaty of Waitangi, pp. 11, 87.

38

Chapter I: Hauraki and the Crown, 1800–1850

and Orange points out that it is significant that no signatures were gathered from the tribes resident there.47

The non-signatories at Coromandel stated that the question of a treaty required tribal consideration and refused to make any decision until all the chiefs of the Thames could be assembled and the matter discussed. Piko held out little hope of his eventual consent, being unwilling to yield any of his authority over his people to the British Government—although he acknowledged that the latter could do as it wished with Pakeha:

[H]e could for himself, see no necessity in placing himself under the dominion of any prince or queen, who might govern the white men if she pleased, as he was desirous of continuing to govern his own tribe.48

Two years later Shortland recorded his opinion that Taraia, 'as well as most of them [the chiefs in the general area] have never signed the Treaty of Waitangi and still maintain their independence.'49 When the Government attempted to punish Taraia in 1842 for

leading Ngati Tamatera in an attack on Ngaiterangi at Tauranga, over rights at Kati Kati, the chief pointed out that 'the Governor was no Governor for him or his people and that he had never signed the Treaty'. In his view: 'With the Governor is the adjustment of European affairs and with us is the adjustment of the natives.'50 George Clarke, who was sent to investigate the incident, reported that even chiefs who welcomed the British presence did not necessarily see the Government as having authority in Maori matters. Ngati Paoa chiefs, Kahukoti and Te Ruinga, had accorded him a warm welcome at Orere, where he had broken his journey, but when questioned on the matter, signified their disapproval of the Governor intervening in any role other than one purely of mediation.51

That basic divergence in understanding of the nature of the Crown's authority and the pertinence of the English law, continued to characterise relationships between Hauraki Maori and the Government over the next decade. Recourse to the institutions and personnel of the Government was only one of the options that Hauraki Maori took when problems arose with settlers. Where dispute arose over land and services, Maori might accept the intervention of the protector or the Land Claims Commission, or undertake prosecutions through the court system, but they also continued to strongly assert rights on the ground, imposing their own justice. When, for example, the settler Thorp refused to pay for a fence constructed by Maori, the latter pulled it down; when McGaskill failed to complete a promised payment for land in Piako, Taraia seized the two casks of tobacco rather than applying to the Government for redress, although the case was subsequently brought to its attention.52 Nor was authority and responsibility for matters of community

47 Ibid., p. 87.

48 Ibid., p. 74.

49 Shortland, Diary and Journals 1842–1844, North Island 2. Cited in Monin, Waiheke Island, p. 87.

50 Duplicate despatches to the Secretary of State, G 30/2, p. 896. NA. Cited in Orange, The Treaty of Waitangi, p. 110.

51 Clarke Report, in Gipps to Russell, 7 March 1841. GBPP, 1842 (569), PP. 95–100. Doc. 2, pp. 7–11.

52 For full discussion of this incident see Shortland report, 23 May 1843. 1A 1843/1130; McGaskill to FitzRoy, 20 August 1845. 1A 11845/1471; McGaskill to Grey, 10 October 1847. 1A 11847/1953.

39

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

importance transferred automatically into the exclusive hands of British officials. When, for example, the death of a young girl was reported on Waiheke, local chiefs investigated the case themselves, informing the Chief Police Magistrate that they were 'perfectly satisfied from competent witnesses that it was purely accidental.'53 There was little here to suggest that Hauraki Maori accepted English control of the law and its meanings, whether it was in defining criminal acts, or the principles of land transaction, or in the application of common law prerogatives over foreshore and precious minerals.

Purchase of Hauraki Lands, 1840 –1850

(a) Early Crown purchases

If the uncertain state of tribal interest in the isthmus lands predisposed Maori to participate in land transactions, that engagement was fuelled further by the establishment of the capital at Auckland in 1840. Over the next few years the Crown acquired several important blocks for the extension of settlement, generally from a limited number of chiefs for trade goods which but poorly reflected the potential value of the land and with no provision of reserves for vendors. The Hauraki tribes were involved in a number of these transactions, with Ngati Paoa chiefs based at Waiheke, Whakatiwai, and Taupo (Orere Point) being the major but by no means only participants. In April 1841

Marutuahu led by Ngati Paoa asserted the pre-eminence of their rights over Mahurangi from Waiwera to Kaipana portage, where they had traditionally fished the bays and rivers, by signing a deed purporting to hand over 30,000 acres to the Crown for £200, 400 blankets, and other goods. Hoete received four cows for assisting the Government's 'traffic with the Natives' while Ngati Whatua was also given a small payment the following month. This transaction clearly fell well short of the complete conveyance intended by the Government which had to consolidate its acquisition in the early 1850s by giving Haimona and chiefs, described as Ngati Paoa, including Taraia, further payment for 'the final and unreserved giving up of the land previously purchased'.54

In 1841 the Government also acquired the extremely valuable 6,000 acre Kohimaramara block from 24 Ngati Paoa chiefs, for £l00 in cash, two horses, a boat and sails, 200 blankets, and assorted goods. Again, it seems likely that the conveyance of this block signalled Ngati Paoa's concern to demonstrate the continuation of their authority over this area from which they had withdrawn during the Ngapuhi incursions, and to establish good relationships with the new source of power based at Auckland. The block comprised the western shore of the Tamaki to present-day Mission Bay, inland to Waiatarua, and south to the boundary of Hamlin's purchase at Panmure Basin. The area included the lands on which the tribe had traditionally resided before the upheavals of the 1820s and early 1830s, Tauoma' (gifted by Te Tahuri to the wife of a Ngati Paoa man

53 See J. Nagel (R.M.) report, January 1845. 1A 11845/18.

54 Turton, Maori Deeds, no. 192 & 193, pp. 251–253; no. 198 & 199, pp. 256–257. Doc. 53, pp. 1238–1240,1241–1242.

40

Chapter 1: Hauraki and the Crown, 1800-1850

who then brought some of his kin to live in the area in the late eighteenth century) and the waka landings required by a maritime people.55 Subsequent purchases of adjoining lands tended to be from Ngati Whatua, although Hauauru was a signatory in the sale of Papakura, undertaken primarily by Ngati Tai in 1843.

(b) Pre-emption waiver purchases, 1840-1845

Hauraki land sales also followed upon the Crown's waiving of its pre-emptive powers in 1844-1845. The impact of this may be discussed here, before turning back to an examination of the Old Land Claim Commission which had started its hearings on Hauraki claims in 1843. Pressure was mounting on FitzRoy to allow direct dealing between settlers and Maori. The agitation was largely generated from old settlers denied the chance to speculate on land, but also from new arrivals who found that their needs were not being met by the Government, and purportedly, from Maori who thought they would receive better prices on the open market. In early 1844 the Crown made one of the first of many decisions in which Maori interests took a second place to the demands of settlers. FitzRoy, giving way to what he called 'popular feeling', waived the pre-emptive right of the Crown, previously held up as necessary for Hauraki protection, in order to allow individual settlers to purchase land from Maori, on payment of a tax of 10/- per acre. This tax was reduced to a penny a few months later. FitzRoy attempted to redress the harm which might be caused to Maori by including a commitment, in the same proclamation of 26 March 1844 authorising the waiver, that:

Of all land purchased from the aborigines in consequence of the Crown's right of preemption being waived, one-tenth part of fair average value as to position and quality is to be conveyed by the purchaser to Her Majesty her heirs and successors for public purposes, especially the future benefit of the aborigines.56

He repeated this undertaking to the great hui at Remuera in May 1844 and in the Native Trust Ordinance of July, but this policy was supported neither by the Home Government nor by Grey. The Native Trust Ordinance was not notified and private purchasers were offered, and generally accepted, the option of buying the one-tenth.57

The Government's decision to bow to the demands of a noisy minority of Auckland settlers had adverse results for the Hauraki tribes who possessed rights in Tamaki and the Gulf Islands. George Clarke, as Protector, recorded his objections to the change of policy—he looked upon the measure 'with extreme anxiety', fearing a 'collision growing out of sales of disputed lands'.58 A hint of the sort of pressure under which Maori owning lands near Auckland could be placed is to be found in the instances of Ngati Paoa chiefs, Ruinga and William Jowett (Hoete). Grey, criticising FitzRoy's measure, drew Colonial Office attention to their complaint regarding Adam Chisholm who held a pre-emption

55 Ibid., no. 207, p. 269. Doc. 53, p. 1244.

56 Enclosure in FitzRoy to Stanley, 15 April 1844. Cited in Ward 'Supplementary Historical Report', p. 30.

57 A. Ward, 'Alienation of Ngati Paoa Land', report prepared for CCJWP, 1991, p. 21.

58 Cited in Monin, 'Islands lying between Slipper Island,' p. 53.

41

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

waiver certificate for 850 acres at Waiheke. Ruinga and Hoete complained that Chisholm had met them in the street (on separate occasions), and on their refusal to sell land at Putiki, had abused them as 'slaves' and threatened to send them to gaol.59 Chisholm had then gone on to purchase from rival claimants (Patukirikiri) at Waiheke. Te Ruinga also came under pressure to sell Pakihi and other small islands in the Firth that were thought to be mineral-rich. Webster, Taylor, Campbell, and Browne requested that the Crown waive its pre-emptive right on the islands. In July 1844 FitzRoy agreed to waive all rights to Pahiki and Karamuramu in favour of Taylor who already held a mining lease over them; and gave permission to Campbell and Browne to purchase neighbouring islands (a fact of which Protector of Aborigines, George Clarke, who was assisting Taylor in his purchase, was clearly unaware).6° In August, Webster, who had been refused permission to purchase the same islands, produced a deed for their 21 year lease (including the mineral rights) signed by Ngati Paoa chiefs, Ngatai and Wepiha, on 18 July 1844. Webster protested the purchase by other parties, stating that he had a verbal promise from Maori that he could buy the islands and that he had 'put men to work on [them] a few days after [he] made the agreement where they [had] been ever since.'61 The competing purchasers accused each other of pressuring Maori right-holders to sign deeds. Webster complained:

My agreement was so clearly understood by the Natives at the time, that I am certain there must have been some unfair proceedings taken by the above named parties [Taylor, Browne and Campbell] to induce the Natives to sell the land.62

But a more explicit accusation was levelled against Webster himself. Clarke agreed that 'some unworthy measures must have been resorted to by either one party of Europeans or the other'. He was concerned that the reputation of the Protectorate Department, which had assisted in negotiations, was at stake, and requested that enquiry be made, 'not only on account of the Natives themselves, but also on my own having been in some measure implicated in the purchase, at least such will be the conclusion drawn by the Natives generally.'63 A month later, Clarke sent in a sworn statement from Rangi who had attended a committee at Waiau (near Coromandel) to discuss Pakihi, alleging that Webster had taken advantage of the principal vendor while he was drunk

[M]yself, Ngakete, and Tora, my friend (Ngatai) was intoxicated whilst at Waiau, for which reason Webster requested to have Pakihi; and he (Ngatai) consented not knowing what he said, being in a state of intoxication; Webster made him drunk with liquor, then Webster requested that Ngatai to write his name down, he did not go and sign his name in Webster's book himself, but Webster signed for him.64

59 Copies of the Complaints of Native Chiefs, William Jowett and Ruinga, end. 1 in Despatch from Governor Grey to Earl Grey, 19 April 1947. GBPP, vol. 6, 1847–1850, pp. 30–31.

60 George Clarke memo. 17 August 1844. Attached to Webster to Colonial Secretary, 13 August 1844. Taylor, Campbell & Browne case file, OLC 1 1126.

61 Webster to Colonial Secretary, 13 August 1844. Ibid.

62 Ibid.

63 Clarke to Colonial Secretary, 19 August 1844. In Taylor, Campbell & Browne case file, OLC 1 1126.

64 Rangi statement, 24 August 1844, transl. Forsaith. Attached to Clarke to Colonial Secretary, 9 September 1844. In ibid.

42

Chapter I: Hauraki and the Crown, 1800–1850

Webster's request for a waiver was duly denied. In other cases, however, the Protectorate does not appear to have been particularly active even when native title was known to be complicated. When Whitaker applied to purchase some 700 acres from Ngati Paoa at Waiheke, George Clarke informed the Colonial Secretary:

I do not think it would be safe to purchase any part of Waiheke from the chief Ruinga apart from the chiefs of Ngati Maru and Patukirikiri. The Ngati Maru tribe is living at Hauraki and the Patukirikiri at or near Coromandel Harbour.65

But only the most cursory intervention then followed. Clarke reported a week later, that he had seen Te Ruinga who had assured him that the land was his (Te Ruinga's) and that he, therefore, saw no objection to the sale.66 Monin argues that Clarke's assessment was probably correct, in this instance, since Ruinga's rights were largely unchallenged at Te Patti (the area in question) but that his 'apparent failure in the case of the de Witte purchase at Putiki a week later was quite another matter' since Patukirikiri were known to also have rights there. He points out that the purchase from one tribe (from Ngati Paoa by de Witte, and from Patukirikiri by Chisholm) while ignoring the claims of other right-holders was to cause protracted dispute at Waiheke.67

It may be noted briefly here that the waiving of pre-emption also resulted in the alienation by Ngati Whatua, Ngati Tai, and Ngati Tamaoho of much of the most valuable land on the Tamaki isthmus, particularly between Remuera and the Manukau Harbour foreshore and south at Papakura.68 Some 60 pre-emptive purchases were made in lands across the isthmus (Remuera, Three Kings, One Tree Hill, and Onehunga). Ngati Paoa, however, participated in only one major transaction of this sort: the joint sale with Ngati Whatua of 300 acres at Kawarahi, near Mt Smart, to Joseph Newman.69 Stone comments that it had been supposed that Maori would receive better prices for their land from private settlers than from the Government, but, despite the recent auction of Auckland land at high resale value, payments were made at rates not much greater than those obtaining at 1839–1840. Thus, the payment for Kawarahi comprised only £10 in cash, six trousers, six waistcoats, four coats, and one bag of wheat.70

Large-scale transactions occurred with regard to the gulf islands. Purchases made under waiver certificates which ultimately resulted in either a grant or compensatory payment have been set out in Table 1.

65 See Clarke memo., 9 November 1844. Attached to Whitaker to Colonial Secretary, 7 November 1844. In Whitaker case file, OLC 1 1132 (repro 1672).

66 See Clarke memo., 18 November 1844. In ibid.

67 Monin, 'Islands lying between Slipper Island,' p. 53.

68 R.C.J. Stone, 'Historical Report of the Auckland Metropolitan Area,' report prepared for CCJWP, 1992, p. 18.

69 Turton, Maori Deeds, vol. 4, no. 477, pp. 486–487.

70 Ibid. See also R.C.J. Stone, 'Historical Report of the Auckland Metropolitan Area,' p. 18.

43

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

TABLE 1: PRE–EMPTION WAIVER CLAIMS IN GULF ISLANDS (claims before Bell only)

Source: OLC series 1; AJHR 1863 D–14

44

Chapter I: Hauraki and the Crown, 1800–1850

Governor Grey vigorously attacked FitzRoy's policy as 'contrary to the Treaty of Waitangi, and so injurious to the interests of the natives, that it [was] incumbent upon the Government to discharge the duty it owe[d] to these people by itself taking the initiative in setting aside the unjust claims which have arisen'.71 He then submitted the question to the Supreme Court which found that the waiver of the Crown's right of preemption was illegal and void.72 All the large island claims, for which Grey reserved his greatest ire, were referred to the Attorney General, and subsequently disallowed for failure to comply with regulations under the Land Claims Ordinance 1846, gazetted on 16 June.73 Although Grey couched much of his attack on the waivers in terms of the impact on Maori, those blocks were then treated as belonging to the Crown, with Commissioner Bell making adjustments in the late 1850s out of the land left after on-sale in the interim. The most significant purchase for Hauraki, under the waiver system, was that from Ngati Maru, by Whitaker and du Moulin, at Great Barrier. Although supposedly entitled to 3,500 acres under the waiver certificates, Whitaker and Du Moulin's joint purchase was subsequently surveyed at over 28,000 acres, most of which was treated as Crown 'surplus'. This case will be discussed more fully, in that context, in the following sections.

Summary

The transactions undertaken by the Hauraki people in the first years of contact would seem to fall within the parameters established by the Waitangi Tribunal in its examination of Muriwhenua lands. Maori signed deeds to consolidate their rights over territory and in order to secure the benefits of permanent European presence. The termination of their own rights over those areas was not contemplated, nor were the future implications of the transaction perceived since there was little to signal the European interpretation of the deed as conveying a permanent and exclusive possession.

As a result of these early transactions, Ngati Paoa holdings on the isthmus of the mainland by the late 1840s had been narrowed down in British law, to 'reserves' at Maraetai which were not in their own title.74 The impact of this loss was obscured from both sides at first: from Maori by the absence of immediate Pakeha settlement on lands so acquired, their assumption that the traditional principles of land tenure still applied, and retention of interests in Waiheke and the peninsula; and from the Government by a failure to distinguish clearly between various iwi. Government officers appreciated from early on that tribes near settlement tended to suffer, but from social debilitation rather than land loss. In any case, Protector Clarke saw Ngati Paoa as 'Thames' people distanced from the worst influences:

71 Grey Memo., 20 April 1847, end. 3 in Despatch from Governor Grey to Earl Grey, 19 April 1847. GBPP, vol. 6, 1847–1850, p. 34.

72 Judgment of Justice Chapman, end. in Despatch from Governor Grey to Earl Grey, 5 July 1847. Ibid.,

pp. 64–66.

73 NZ Gazette, 16 June 1846, p. 42.

74 See discussion, in context of Fairburn purchase, pp. 64–68.

45

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

The "Thames", however, is an exception to these remarks; there are many indications of a progressive civilization amongst the Ngati Paoa tribe, who are building better houses and increasing their cultivations, and they being some distance from Auckland, are out of the immediate influence of the contaminating example of low Europeans. ...

Not until the early 1850s, when the Government implemented a new policy of 'tenths' in the Auckland area, was any provision attempted for Ngati Paoa, ironically, in the context of Piako lands, where Government acceptance of offers of sale from chiefs such as Ngatai and Hoete, was raising the ire of other Hauraki tribes.76

The participation in land transactions by other Hauraki tribes whose residence was concentrated on the western shores of the Firth and in the interior, was more marginal at this early stage; the land concerned often of a more 'outlying' character. They had participated, in the person of Katikati of Ngati Tamatera, in the arrangements concerning the 'Fairburn' block between the Wairoa River and Papakura (discussed in a following section), and subsequently asserted their interests with vigour when they grew impatient with the Government's failure to follow through on promises of the return of land, and to properly acknowledge their rights. They signed deeds covering Mahurangi and the gulf islands where they competed strongly both amongst themselves and with other tribal groups (Kawerau, Ngati Wai, and Ngati Whatua). Hauraki continued to assert rights in such lands even after 'sales', on occasion, protecting their ground from intrusion by other tribes, or by Europeans (on-buyers and licensees) with whom they had not entered any contract, and demanding further payments from the Crown and from the original 'purchasers' in recognition of their interests.

Europeans were also accorded rights on the peninsula where they established important enclaves at Coromandel, in the Mercury—Kennedy Bay area, and at the mouth of the Thames. Resident Maori welcomed that presence, and were themselves drawn to these centres of entrepreneurial activity. There was little reason for Maori rangatira such as Taniwha, growing prosperous on trade, to challenge the legitimacy of the original transactions by which such settlers had been incorporated into their community and accorded rights in timber milling and port areas. It will be seen later, however, that European efforts to settle the upper valley areas where customary patterns of land use were particularly intricate, and which more directly threatened Hauraki control of the region, were more hotly contested.

Old Land Claims Commission

(a) Introduction

While Hauraki Maori quickly exploited the economic opportunities offered by the development of the capital in Auckland, there was immediate uneasiness about the

75 Clarke to Colonial Secretary, 4 January 1843. Appendix to Report from Select Committee on New Zealand. GBPP, vol. 2, 1844, p. 122.

76 See discussion below, pp. 92–93

46

Chapter I: Hauraki and the Crown, 1800-1850

implications of the Treaty and the nature of British authority. Kahukoti repeated to George Clarke the arguments of local Pakeha that Maori would be little better than slaves if they had signed the Treaty, whereas those who had withheld their consent would remain independent and keep their land.77 Underlying such fears was concern about the fate of a dependency of New South Wales where Aborigines had been so mistreated.78 The news of Gipps' New Zealand Land Claims Bill, introduced on 28 May 1840, was met with initial suspicion within Hauraki, as elsewhere. George Clarke reported that both the Hauraki and Waikato tribes had rejected the idea, and cited the Whakatiwai people as asking by what right Gipps was determining their affairs.79 The Old Land Claims Commission thus provided the first overt test as to whether the Crown would abide by promises under the Treaty or follow the path set in Australia.

The function of the Old Land Claims Commission was to investigate purchases of land from Maori before New Zealand became a possession of the Crown. It was charged by legislation to inquire whether transactions were equitable or not, and where they were, to recommend the extent of lands to be granted to purchasers. These grants were not to exceed 2,560 acres, and were to be fixed in accordance with a schedule of prices designed to penalise speculators, reward genuine settlers, and enable the Crown to retain 'surplus' land (the difference between the land deemed to have been genuinely sold and the area granted to the purchaser), which could then be sold to settlers in order to promote colonisation and raise revenue.80

Although the intent behind the Commission was relatively benign, Orange suggests that its investigations 'were probably the aspect of government that was most unsettling to both Pakeha and Maori in the early 1840s.'81 The setting up of the Commission seemed to usurp the authority of rangatira who had negotiated early arrangements with pakeha newcomers. There was considerable dissatisfaction, also, with the process itself—in particular, the failure to properly define the grants, and to properly hear the case of all Maori before decisions were made. The most grievous shortcoming of the Commission was not, however, likely to be immediately obvious to the Maori participants: the failure to adequately consider what they had intended when they signed deeds. Although the Commission did not invariably make grants to Pakeha claimants in the Hauraki district, rejection of claims more usually resulted from the non-appearance of applicants, or the transgression of rules set by legislation, than from doubts of the fact of an absolute conveyance. That interpretation of the early deeds as signalling a conveyance of land within terms of the English legal system rather than as a social contract under Maori customary law was entrenched by the investigations and findings of the Commission.82 The Commissioners might doubt whether proper payment had been made to all parties, or that there was consensus on the boundaries of an alienation, but not that a sale had

77 Clarke Report, in Gipps to Russell, 7 March 1841. GBPP, 1842 (569), pp. 94-98. Doc. 2, pp. 8-io.

78 Orange, Treaty of Waitangi, pp. 95-96

79 Clarke Report, Doc. 2, pp. 8-10.

80 See W.H. Oliver, 'The Crown and Muriwhenua Lands: An Overview,' Wai 45. Doc. L 7, p. 5.

81 Orange, Treaty of Waitangi, p. 96.

82 Waitangi Tribunal, Muriwhenua Land Report, p. 109.

47

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

actually taken place. Transactions, if deemed inadequate or somehow questionable, were generally patched up by the imposition of requirements for further payment or redrawing of boundaries before grant would issue rather than being rejected outright. From then on, the fact that such transactions had been scrutinised and approved by the Commission was taken as proof of a 'sale' by later bodies of enquiry.

Confusion about the meaning of these early transactions was exacerbated by lack of physical definition and subsequent alterations of awards on the ground. In fact, the first Commission was able to settle very little. Both FitzRoy and Grey interfered with its recommendations, while a prolonged period of inactivity and uncertainty followed, during which grantees and Government made little attempt to define boundaries. It is of little surprise, then, that Maori should object strongly in the 1850s when efforts were finally made to give practical effect to grants in order to facilitate further Crown purchase of adjacent blocks. They protested the Government's retention and on-sale of 'surplus' lands. Maori argued, for example, in the case of the area between the Tamaki and Wairoa Rivers, that they had sold those lands to Fairburn, not to the Crown.83 The Hauraki tribes strongly challenged the failure to return portions of this area to them throughout the late 1840s and early 1850s, and obstructed survey in other parts of their rohe.84

(b) The first hearings at Hauraki, 1843–1844

From May 1843 to July 1844 Commissioners Godfrey and Richmond heard claims at Coromandel concerning transactions as far north as Mahurangi, around Coromandel Harbour, Mercury and Kennedy Bays, the off-shore peninsula islands, and along the Waihou and Piako River valleys.85 Protection of the 'rights and interests of the natives' fell to a variety of personnel: George Clarke senior, Kemp, William Williams, George Clarke junior, and Edward Shortland—all filled the role of protector and interpreter to the court at some stage.86 The investigation of cases followed a pattern dictated partly by the Act, and partly by assumptions of English models of rightful transaction. Evidence was heard under oath from the claimant of the land, the purported vendors, and a witness to the transaction. That of the claimant generally concerned the location and boundaries of the land alleged to be purchased, the occasion of the transaction, the names of the vendors, details of payment, the nature of following residence, whether any other persons held an interest, and whether the boundaries were disputed. In general, the Commissioner required the claimant to produce the deed and two of the signatories to it, whose evidence was formulated and recorded in terms fitting to the English legal system, but which suggested that they wished these transactions to stand; that the deed had been fully explained before the vendors had affixed their signatures; that they had 'fully understood and were satisfied' with the deed; that they were aware that they were 'parting

83 Testimony of Walter Brodie in Minutes of Evidence taken before the 1844 Select Committee on

New Zealand. GBPP. Cited in P. Husbands & K. Riddell, The Alienation of South Auckland Lands (with a chapter by Professor Alan Ward), Waitangi Tribunal Research Series, 1993 p.13.

84 See Appendix One.

85 See R. Tonk, The First New Zealand Land Commissions, 1840–1845,' M.A. thesis, University of Canterbury, 1986, pp. 77–78.

86 Ibid., pp. 81–83.

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Chapter I: Hauraki and the Crown, 1800–1850

with the land forever'; and that the land was not disputed by others. In some cases, such witnesses admitted a transaction, but stated that they had not received sufficient payment, or, that boundaries were wrongly stated in the deed—although, it might be correctly stated by the claimant before the Commission.87

How far this apparent consensus reflected genuine acceptance of transactions as permanent alienations of land is not clear. There had been a lengthy history of European commercial enterprise in the coastal region, and many Maori were prepared to both attend the hearings and support claims, provided that the original transaction was seen as fair, the boundaries had been agreed upon, and occupation had followed within a reasonable time. Where opposition existed, it tended to centre on questions of payment and boundary, rather than representing a complete repudiation. The Waitangi Tribunal has recently pointed out, however, that the two parties were operating in different worlds and has criticised the inquiry for proceeding on the 'erroneous assumption' that such transactions constituted contracts for the sale of land under English law. There was no examination of the true nature of these transactions or the degree of mutual understanding between the signatory parties, nor consideration of whether 'vendors' would retain sufficient land for their future well-being.88 Furthermore, the Commission had to rely on opponents of claims appearing before them, in order to establish whether all interested parties had agreed to a sale. Chiefs such as Taraia might chose, however, not to attend the court. It is difficult, too, to assess how adequately Maori were informed of the sittings of the Commission. While Maori and Government were in close communication at a political level, tribal interests were widely scattered over the region. Certainly, in a number of cases—McGaskill (no. 287–289), Cormack (no. 143), Fairburn (no. 590) Wilson (no. 583), Foster (no. 801), and Thorpe (no. 832)—Maori made complaint to later investigations that they had not been represented at the Godfrey and Richmond hearings. Te Moananui (Katikati), in protesting the Crown's treatment of the Fairburn transaction; Mohi Te Haerere who appealed to the Bell Commission against the grant to Foster; and Tukukino, petitioning Parliament regarding Thorp's claim at the Waihou River—all, stated that their people had not appeared to oppose sales because they had been unaware of the investigation of those claims.89

(c) The findings of the first Old Land Claims Commission

The results of the Old Land Claims Commission in terms of acres alienated within the Hauraki rohe cannot be stated with absolute precision since the lands claimed were generally poorly defined, the estimates of acreage sometimes wildly inaccurate, and the awards, unaccompanied by survey, and in some cases, immediately tampered with by the Governor. Thus, only the broad parameters of the nett impact of the Commission's findings can be delineated here. A total of 113 cases (excluding those under pre-emption

87 See, for example, evidence of Parata, 4 July 1843, in Browne case file, OLC 1 981, Repro 1681; evidence of Horetu in Prout case file, OLC 1 392. See Appendix One for outline of Maori objections to claims.

88 Waitangi Tribunal, Muriwhenua Land Report, P. 394.

89 See Statement of Katikati, June 1851, Fairburn case file, OLC 1590; statement of Mohi Te Haerere, Foster case file, OLC 1 801, & Thorp case file, OLC 1 831–2.

49

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800-1885

MAP 3: OLD LAND CLAIMS

50

Chapter I: Hauraki and the Crown, 1800–1850

waivers) have been identified as concerning lands where Hauraki held interests. This represented a claim to some 1,204,400 acres, but that total encompassed a number of monster cases which were readily dismissed by investigators. The first Commission found in favour of just over 30 claims, although often reducing the area granted, either because the claim exceeded the maximum of 2,560 acres, or, because it was considered that the claimant had not shown that all the lands in question had been correctly purchased. Grants were initially recommended for a total of some 68,000 acres.90

In most cases, it was clear why the Commission failed to support a claim: most frequently because of the withdrawal or non-appearance of the claimant; because the claimant had already received in excess of 2,560 acres, or had already been heard under different case numbers; and in a handful of instances only, because of deficiencies in the purchase. Maori objections to claims and to subsequent awards and surveys have been noted in 20 cases, detailed in Appendix One. In sixteen instances, Maori dissatisfaction was expressed at the first Land Claim Commission, generally over issues of boundary or payment. The Commission usually concluded that some sort of sale had taken place, but responded favourably to the expression of these more limited concerns, either cutting out disputed areas from the award or requiring further sums to be paid. In Sparke (no. 425), Taylor and Sparke (no. 456), and Robinson (no. 397) claims were disallowed because payment had not been received, or was incomplete; and in case no. 865 (Graham at Waiheke) because the Maori signatory, Ruinga, testified that he had not understood the transaction as a permanent sale. But while only a few grants appear to have been recommended without taking some account of the objections of Maori, these instances resulted in long-term protest which will be discussed more fully below.

Even when there was apparent consent, problems in effecting a land transfer satisfactory to both sides remained largely unresolved. Godfrey himself; admitted that the issue of grant with such boundaries as defined by the Commission, prior to survey or verification, was likely to result in future problems.91 George Clarke's assessment was more harsh. He informed the Colonial Secretary in 1845:

Another pregnant evil is, the absence of any competent authority knowing well the language, habits and usages (ritenga) of the natives, for determining upon disputed titles to land; for, notwithstanding the time, labour and expense which have been bestowed upon the Land Commission, the result of this inquiry has been far from satisfactory; all that has been ascertained is, that various Europeans have made purchases from certain natives; but whether these natives had a right to sell, or how that was acquired, is still in the majority of cases quite a matter of doubt.92

90 See Table 2. These figures have been taken from Appendix to the Report of the Land Claims Commissioner. AJHR, 1863, D–14 & Old Land Claims Database, Rangahaua Whanui project. It is to be noted that the Hauraki district as defined for that project does not encompass the whole of the Hauraki rohe. Figures indude, therefore, certain cases falling within the Auckland and Waikato districts as well as those for Hauraki.

91 Godfrey to Colonial Secretary, 8 June 1844, end. 3 in no. 19, Despatch from Governor Grey to Earl Grey, 18 July 1850. GBPP, vol. 7, 1851, p. 27.

92 Clarke to Colonial Secretary, July 1845. In Correspondence between Lord Stanley ... Gladstone ... FitzRoy ... and Grey, end. in no. 67. GBPP, vol. 5, 1846–1847, pp. 292–293.

51

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

Total   67,892   80,649

Source: Old Land Claims database, Rangahaua Whanui project, AJHR 1863, D–14

52

Chapter I: Hauraki and the Crown, 1800–1850

The credibility of the Crown's early title process was immediately further undermined by the interventions of both FitzRoy and Grey. Particularly controversial was FitzRoy's decision to grant out the whole of Kawau Island to Taylor in order to allow a mining venture. This step was taken even though the original claim, held by James Beattie (who had since transferred his interest to Taylor), had been previously disallowed without compensation because 'no real purchase was made from the natives until the last payment on the 3rd March took place.' Godfrey's report was duly confirmed by Shortland, and notification of disallowance was gazetted on 25 October 1843. Beattie's claim was reopened in the following year, under FitzRoy's governorship, and without any further reference to, or report by, the commission, a Crown grant issued on 15 July 1844 for the whole island.93 Ngati Paoa who had received what they considered to be partial payment, saw their sale as far more limited and immediately applied for redress, first to Taylor and then to Grey:

Here is our letter we now write to you, for our place, for the Kawau, because the payment was not completed at the selling by Kahukoti. Te Wintoa alone was the place sold by him ...; the other places of the Kawau were taken in by the Europeans. We thought this wrong that our places should be taken; rather pay for them than take them. We have been two years talking to Mr. Davis. Mr Davis has spoke to the man of the Kawau; he said, "What is that to me?" wherefore we wish to sell it you, lest it be left as a disturbance for us. If it had been paid for formerly, it would have been alienated altogether.94

Grey again submitted the question of FitzRoy's grant to the Supreme Court for consideration. To his chagrin, the grant stood, the Court finding that it fell within the power and authority of the Governor to execute such, even though the Commission had recommended that no grant should be made.95

(d) The Bell Commission

Rejection of attempts to set boundaries in the 1850s has been outlined in Appendix One. W.H. Oliver points out that 'inconsistency and delay' in settling early questions of title 'invited misconstruction.'96 It is not surprising that efforts to survey should be resisted where they impinged upon the understandings held for the previous decade—more particularly over lands which had been left uncultivated or unoccupied by the settler concerned, or where the Government was attempting to finalise boundaries of purchases in order to facilitate the acquisition of adjacent areas. That opposition grew as Maori questioned the Crown's interpretation of earlier deeds and became more reluctant to enter into new transactions. Ligar noted the fact in 1851:

It ... becomes necessary with as little delay as possible to define permanently the Crown property as the old marks have in most areas become obliterated and the names of the places mentioned in the deeds are not now known except by the older men. As long as the natives

93 See Judgment of Chapman—The Queen v. Taylor, end. i in Governor Grey to Earl Grey, 24 July 1849. Correspondence with Grey, 1850. GBPP, vol. 6, p. 10 Doc. 3 p.12.

94 Ngatipaoa tribe to the Governor, 8 April 1847, encl. 2 in Despatch from Governor Grey to Earl Grey, 17 April 1847. Correspondence with Grey, 1847, p. 29 In ibid.

95 Judgment of Chapman—The Queen v. Taylor, end. i in Governor Grey to Earl Grey, 24 July 1849.

Correspondence with Grey, 1850. In ibid., p. 15. Doc. 3, p.17.

96 See Oliver, The Crown and Muriwhenua Lands: An Overview,' p. 6.

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THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

were anxious to part with land adjoining and surrounding ... Crown lands there was less necessity for having the boundaries marked out as it then was almost a certainty that larger tracts would be acquired which would render a thorough knowledge of the interior boundary less necessary, but as the natives seem little disposed to sell large blocks of land, it would be prudent to secure beyond risk of doubt all that the Crown has hitherto acquired. ... 97

Confusion arising out of the failure of successive administrations to take hold of the problem of how to fully establish Maori consent to permanent alienation of land was greatest in the increasingly disturbed, and much disputed, interior district along the Waihou and Piako Rivers. In the cases of McGaskill and Thorp who claimed lands on the northern bank of the Waihou, and Cormack's and Webster's claims on the west bank of the Piako, Maori protest was endemic although the focus of the grievance shifted over time. No single explanation of the friction demonstrated in these instances will serve. The problem lay not merely in a failure by the commissioners of the 184os to give sufficient heed to Maori objections to the drawing of boundaries, and to questions of payment, and extent of participation in transactions. The first commission set patterns of thinking, but was impotent in the immediate sense: Thorp, for example, stayed on, even though he had not received a grant. Tensions over the years were greatly exacerbated by Thorp and McGaskill themselves, both of whom took a truculent stance vis-a-vis Maori and officialdom, and by the marking out of boundaries beyond those conceded by the various interested parties. The settlement of these claims was greatly complicated, too, by the increasingly politicised stance of many Maori in the region who began to look to the King Movement in the late 1850s. Maori opposition to, or contrarily, endorsement of grants to these settlers, became entangled with issues of tribal and hapu rights, political allegiance, and of the authority of the great chiefs who were King supporters to prevent sales to the Crown in adjacent areas. In the case of the lands claimed by McGaskill, the question of grant was to be further muddied in the 1860s by the presence of a refugee Waikato community, the area's position on the extreme of an aukati declared against further land sale, and its strategic importance as the intersecting point of the route traditionally taken by the Hauraki people to the east coast and into the interior. Later purchaser use of lands, in ways that had not been contemplated at the time of the initial transaction, continued to foment Maori dissatisfaction with grants: for example, in the mid-1860s McGaskill closed the crucial tracks which ran through his property from Coromandel via Thames to Taupo, Waikato, Raglan, etc., and from Thames via Hikutaia to Whangamata; and in the 1880s a ferry landing site was developed on a wahi tapu claimed by Tukukino within Thorp's property.

It was within a charged atmosphere of growing Maori resistance to sale on the one hand, and of a greater Government push to effect further acquisition of land for settlement on the other, that early land claims (both pre-1840 and pre-emption waiver purchases) were resubmitted to enquiry. The Land Claims Settlement Act 1856 was intended to decide any disputes remaining in connexion with the claims by withdrawing all Crown grants

97 Ligar to Colonial Secretary, 28 October 1851. 1A 1 1851/2165.

54

Chapter I: Hauraki and the Crown, 1800–1850

which had issued on the recommendation of the commissioners of 1844. Those whose grants had been withdrawn could also submit their case for re-examination. New grants would be issued on the actual survey of the area conveyed in the old one.

Underlying the effort to settle these matters was the desire to facilitate the Pakeha occupation and use of land.98 The immediate function of Bell, appointed as commissioner under the Act, was to determine the boundaries of the land to be granted to settler claimants and the extent of the surplus to be retained by the Crown, not to enquire into whether an equitable sale had taken place, nor to review the workings of the earlier inquiry. Since the underlying intent of the Commission was to facilitate settlement, Bell was quite willing to expand on original awards, and the Waitangi Tribunal has drawn the conclusion that in order to 'secure the co-operation of settlers, which was needed since no one else knew the boundaries of the original transactions, [he] so arranged the rules as to increase substantially the settler's lands in return for survey of the whole area.'99 Thus, in Abercrombie, Nagle, and Webster (no. 36) at Great Barrier; Maxwell (no. 331 & 332), Taylor and Sparke (no. 455) at Waiheke; Webster at Piako (no. 726); Thorp (no. 831 & 832) at Thames; and Browne or Dacre (no. 980 & 981), Houston (no. 251), Kennedy (no. 273), and Conway (no. 583) in the northern-eastern part of the peninsula, claimants received increases in grant. Only in the cases of Preece in the Coromandel (no. 912 & 913), in McGaskill claims (no. 287–291) at Hikutaia, and Cormack's at Piako (no. 143 & 144) were the awards of the 1840s significantly reduced. Bell's awards resulted in an expansion of acreage granted as a result of pre-Treaty transactions, in the Hauraki rohe, from the 68,000 acres initially recommended by the 1844 Commission, to over 80,600 acres.100 The Government was, however, in some instances obliged to renegotiate with Maori in order to satisfy the terms of Bell's recommendations—as in the derivative Webster and Cormack claims at Piako.

The operation and findings of the Bell Commission in the McGaskill claims gave rise to considerable dissatisfaction at Hikutaia, even though the acreage contained in the resulting awards was reduced. This was partly because expectations of a full reexamination of the original transaction had been disappointed, and partly because the awards were seen to support settler claims to lands which they had left unoccupied at the time of the initial grant, and sale of which continued to be disputed by Maori right-holders (Ngati Pu, Ngati Tamatera, and Ngati Karaua). The first Land Claims Commission had found that a bona fide purchase had occurred, recommending a grant be issued for 1,379 acres south of the Hikutaia Stream, but that no award should be made on the north bank since the claimants already held in excess of 2,560 acres including land on that side at Opukeko. FitzRoy, again anxious to promote economic ventures (in this case, sawmilling), referred the claim back to the Commission, in the person of Fitzgerald, whose recommendations resulted in expanded grants of 3,000 acres in north Hikutaia, and 7,000 acres in south Hikutaia.

98 For discussion of this point, see ibid., p. 15

99 Waitangi Tribunal, Muriwhenua Land Report, p. 171.

100 Figures calculated from Old Land Claims Database, Rangahaua Whanui project.

55

THE CROWN, THE TREATY, AND THE HAURAKI TRIBES, 1800–1885

The failure of the grantees to immediately occupy all the land within the awards issued to them was followed by strong Maori objections when they subsequently attempted to take physical possession of the full extent of their claim. Once the McGaskills had settled a dispute with Taraia over payment, in 1845–1847, they seem to have lived relatively

undisturbed at Hikutaia, until actual survey was attempted.101 M. Russell, in his case study, notes, for instance, that Herewini Te Rangai's people assisted in the building of a dam and did not dismantle McGaskill's sawmill when, in their absence, he shifted it south of the river onto what was to become disputed land.102 The first indication of trouble came in 1852. G. W. Drummond Hay who had been employed by McGaskill to survey the land granted to him south of the stream, was halted in his operation about two-thirds of the distance between the Waihou River and the Paiakarahi Stream.103 When further survey was demanded under the Land Claims Settlement Act 1856 and for the Commission process, the marking of the northern claim went smoothly, but that for the south bank portion was once again stopped by Ngati Pu, and by Tukukino of Ngati Tamatera who disputed the alienation of any land east of the Paiakau ridge. McGaskill resorted to dubious methods. Waiting for the departure of resident Maori for Whangamata, he completed a 'moonlight survey' of the disputed lands which was subsequently found to be 'very erroneous'.104 On the adjoining Opukeko claim, McGaskill was able to complete his survey only on repeated assurances that it was a 'matter of no importance'; that it was 'not final or decisive, as the whole decision was to be left to the decision of the Commissioner'.105

Russell points out that by this stage both sides were anxious for Bell to look into the Hikutaia area: McGaskill because Maori were preventing access to timber on the south bank and on the adjoining Waipaheke block; Maori, in order to defend their possession of land, some challenging the extent of the alienation, and others denying any participation by their people in the transaction at all. In view of the level of complaint about the McGaskill case, Bell decided to hold a special court at Hikutaia. The first claim to be heard, in early 1859, concerning Opukeko, resulted in 'wholesale objections' from Maori. Bell assumed, however, that a sale had taken place and thought subsequent Maori protest to be 'quite unsustained'. Bell recorded later that he had warned objectors that he could not 'entertain the claims of those who were mere children at the time of the sale ... or had failed to bring forward their objections in a valid manner before the investigating Commissioners in 1843'.106 Opposition to the claims on the south bank continued, nonetheless, prompting McGaskill to ask for a postponement of the whole of his case until he could produce other evidence. Bell was critical of McGaskill's lack of preparation, reporting:

101 See McGaskill to FitzRoy, 20 August 1845. 1A 1 1845/1471; Taraia statement, nd, 1A 11847/1953.

102 See M. Russell, 'Case Study: The McGaskills at Hikutaia,' pp. 6–8. In Rigby, Russell & Moore, 'Old Land Claims' (draft report). Waitangi Tribunal Research Series, theme A, 1997.

103 Hay to Bell, 14 May 1862. In Hikutaia Special Block File. MA 13/36, part 4. Cited in ibid., p. 9.

104 W.C. Kensington to Hickson, 5 February 1880. MA 13/36, Part 2. Cited in ibid., p. 11.

105 Hay, Sworn Testimony of Natives at Hikutaia Lands Claims Court, 3 February 1859, MA 13/36, part 4. Cited in Russell, 'Case Study: The McGaskills at Hikutaia,' p. 13.

106 Bell report, 23 June 1862. McGaskill case file, OLC 1 287–291, vol. 1.

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[T]he Court intimated the course which Mr McGaskill had pursued appeared the most suicidal, because up to the present time a mass of hostile evidence had been tendered and not a single favourable testimony given; and that it did not appear that any steps whatever had been taken by him to meet this hostile evidence though he was aware that it would be offered.107

There was, however, no question that McGaskill's request should be denied, Bell recording that he 'of course at once granted the adjournments, and informed the natives accordingly.'108

The Commission never returned to Hikutaia. In May 1862 Drummond Hay (now in the position of land purchase commissioner for the Thames district) appeared before Bell's court in Auckland. He submitted a memorandum regarding the McGaskill survey which downplayed the degree of Maori opposition. He stressed that only Herewini Te Rangai (whose mother, Rangituia, had been party to the original transaction) had interfered in 1851, and argued that the current protest was of recent genesis. Drummond Hay suggested further, that the opposition of Maori could be 'disposed of by payment of a certain sum ... if they were informed that the matter was to be finally disposed of and no further reference to it permitted'.109 On the following day McGaskill appeared before the Commission, and, citing Drummond Hay's memorandum, requested that the four Hikutaia grants be reissued immediately.

Bell complied with this request, recording with reference to the southern portion of the claim that he could not recognise the objections of Herewini since his mother had participated in the sale. Both he and Drummond Hay calculated that there was 'no risk' of Maori 'seriously disturbing McGaskill's possession'.110 It is clear, however, that Maori at Hikutaia were severely disappointed in the way the Commission had operated. They complained that when McGaskill had been allowed an adjournment to produce witnesses from Ngati Karaua, they had been promised that Bell would return for a detailed examination of their case:

We understood Bell was to come back to finish Kakaramea [North Hikutaia]—There was nothing further said about the land on the south side of the Hikutaia Stream ... every one ... supposed it was to be investigated when McGaskill produced the evidence from Ngatikaraua; and Mr Bell returned to hold the Court—McGaskill has never found the witnesses—and we have been waiting for Mr Bell to complete his work and fulfill his promise.111

This sense of grievance continued to colour local Maori opinion during the following decades. Te Rangai and Ngati Pu persevered in their obstruction of McGaskill's milling operations on the south bank, and petitioned the House in 1866, asking that the grants to

107 Bell report, 6 February 1859, MA 13/36, part 4.

108 Bell report, 23 June 1862. McGaskill case file, OLC 1 287–294 vol. 1; 6 February 1859, MA 13/36, part 4.

109 Hay to Bell, 14 May 1862, MA 13/36, part 4. Cited in Russell, 'Case Study: The McGaskills at Hikutaia,' pp. 14–15.

110 Bell, 23 June 1862. McGaskill case file, OLC 1 287–291, vol. 1. Cited in ibid., p. 16.

111 Mackay, Native Statements respecting Lands at Hikutaia Thames granted to Messrs. McGaskill, 5 September 1866, MA 13/36. Cited in ibid., p. 27.

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the disputed lands be annulled and fresh enquiry be made. When the Crown's officer in the district, James Mackay, enquired into their claims later in that year, it was apparent that they were still awaiting the return of the Commission. Maori took up physical occupation of the land which they considered to have been unfairly awarded and the relationship between McGaskill and Maori living on the south bank was punctuated by confrontation in these years. McGaskill closed down the native track in the mid 186os. In 1870, E.W. Puckey, Native Agent for the Thames district, visited Hikutaia when Maori shot some of McGaskill's cattle as `rapu utu' for the slaughtering of their pigs and hobbling of a horse. He reported back with some sympathy for the Maori sense of grievance:

The Natives think and I must say ... that I feel there is some very considerable show of reason for their thinking so, that in making the awards in favour of McGaskill, the Land Claims Commissioner unintentionally did them an act of injustice.... Mr Bell was to have returned in a month to complete the hearing and to give the judgement. It was therefore with much surprise and no small feeling of dissatisfaction that they learnt ... four Crown Grants had been issued. ... "2

In Puckey's view, the dissatisfaction of Maori had been exacerbated by McGaskill's frequent 'petty acts of spite' against his neighbours. Despite this harassment and 'repeated notices for them to leave', Maori continued to 'squat' at Hikutaia, confining McGaskill's operations to 300 acres out of the 3,400 awarded on the south bank.'" Eventually in 1872 an armed incident occurred in which Lachlan McGaskill shot Hoani Pahau, one of a party investigating sounds of dogs disturbing their pigs. The case came before the Supreme Court in Auckland where an all-European jury acquitted McGaskill of the charge of 'discharging a firearm with intent to injure', on the grounds that he had acted in self-defence.114 The decision was met with outrage by Maori at Hikutaia, and the Government advised McGaskill to stay clear of the district."'

In the following year the McGaskill family decided to sell out to Henry Alley. Opposition to the grant continued. Maori planted crops on the disputed ground, and thwarted any attempt by Alley to expand the area under his control by erecting fences or laying drains. Tamati Paetai petitioned the Native Affairs Committee in 1876. Bryce, as Chairman, advised that the Committee was unable to investigate the merits of the petition and referred the matter back to the Government, recommending either enquiry by a local officer, or referral to the Native Land Court.116 In 188o Tamati Paetai again petitioned that land had been wrongfully included in the sale and subsequent grants to McGaskill, that subsequent purchasers had attempted to enter possession of the disputed lands; and that they themselves remained in occupation. This time the Committee heard evidence on the matter from T.W. Lewis (Under Secretary of the Native Department)

112 Puckey memo., 23 November 1870. LE 1/1871/140.

113 Nathan's attorney to McLean, 28 June 1872. McGaskill case file, °Lc I 287-291. Cited in Russell, `Case Study: The McGaskills at Hikutaia,' p. 19.

114 For more detailed discussion, see ibid., pp. 20-22.

115 See ibid., pp. 22-23.

116 Report on Petition of Tamati Paetai and 13 others. AJHR, 1876, 1-4, p. 18.

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who acknowledged that the Government would have to settle the issue. He testified before the Committee that there had been consistent protest and obstruction from 'two classes'—those who admitted that they had participated in the original transaction but disputed the boundary, and those, such as Paetai, who denied any part in the sale at all; and stated that their rejection of the grant had been immediate on realisation that it had been issued by Bell. Lewis informed the Committee that the Native Minister had directed Whitaker to investigate the matter again, and that all parties had consented to a resurvey in order that the Government might be able to take action to settle the claim.117 The Native Affairs Committee endorsed the Government's intention, recommending that in view of the long-standing nature of Maori complaint, an effort be made to finalise the issue as soon as possible.118 Further discussion of the subsequent history of the Hikutaia claims may be found in P. Monin's report on behalf of Ngati Pu.

The process by which land under pre-1840 claims transferred out of Maori hands into those of Pakeha was also particularly tangled at Piako. There the Government found itself obliged to make further payments to put derivative claimants into possession of their land purchases from Webster and Cormack. These huge private claims extended well into the interior, encompassing lands at Te Hoe-a-Tainui which was to become a strong-hold of support for the King Movement. The Government was, however, particularly anxious to facilitate purchase of land, and Bell, to settle claims, within that area. The Commissioner commented on the opportunity presented by the 'settlement' of the Piako cases:

The impression which had always been on my mind that it would be extremely desirable for the interests of the Province that this land should be retained by the Government was very much strengthened. ... Now, the land in question is just in the position which it seemed to me to be most desirable to reserve for the site of a settlement. ... Besides its important relation to the Matamata and Upper Thames District, it is the commanding-point of the east-west water communication between Waikato and Auckland, and present advantages ... [which] should, if possible be secured for the province, especially when it might be expected that the establishment of settlers there would be the first step towards opening a country which has hitherto been shut up against colonisation, and the foundation of more extended purchases from the natives.119

In Webster's Piako claims, the first commission considered that a valid purchase had been made. Its recommendation was limited to the 2,560 acres set by the 1841 Ordinance, although reluctantly so, since this was seen as unduly penalising those who had purchased lands from Webster in the interim. It was in order to meet this type of case that FitzRoy had appointed Robert Fitzgerald as a new Land Claims Commissioner in 1844. The Executive Council, thus, referred Webster's claims for Fitzgerald's scrutiny with the instruction that the 'Commissioner ... should be authorised to recommend an extension of the grant.' Within two weeks Fitzgerald had recommended grants to Webster and

117 Lewis evidence, 16 June 1880. LE 1/1880/6.

118 Petition of Tamati Paitai and 21 others. AJHR, 1880, 1–2,, p. 2.

119 Bell to Superintendent of Auckland, 5 March 1861. Reproduced in Salmond, Webster's Claims, pp. 21–22.

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derivative claimants totalling 17,655 acres-12,674 acres of which fell within the Piako area under claim no. 726.120 Russell points out that this seems a generous award; twice the acreage that purchasers might have expected even if the more generous formula of the proposed 1842 Ordinance, in anticipation of which they had bought lands from Webster, had come into effect.121 That decision took cognisance of the needs of the derivative claimants and recognised Webster's enterprise, but took no account of the nature of the original transaction, although it was clear that Webster's estimations of price paid, acreage purchased, and completion of the agreement were open to serious doubt.122 The problems with the award were revealed subsequently on survey; it being found that Maori acknowledged the alienation of only 7,500 acres of the 18,000 eventually marked off.123 When Drummond Hay was instructed by the Government to survey the Webster claim at Piako in 1857, he found that Maori completely rejected the boundaries claimed and argued that they had not received full payment. In these circumstances, he was obliged to renegotiate the purchase of a portion of the claim on behalf of a Government anxious to make some progress in land acquisition in that region.124

The survey of Cormack's claim (alternatively known as Willis' grant) was also strongly resisted. Commissioner Godfrey considered that Cormack had proved purchases on both banks of the Piako River, again recommending the award maximum of 2,560 acres. Since various protests had been received from Maori that they had not intended any alienation on the east bank, Godfrey directed that it was indispensable that this boundary should be pointed out by them, before any grant issued. This condition was not met and the Government refrained from issuing one. When George Graham, a derivative claimant, attempted to carry out a survey of his intended property in the 1850s, he found Maori in occupation who stated that Governor Grey and McLean had promised them that they would retain the whole of Cormack's claim. According to Graham, they admitted sales to both the Government and Webster but remained in occupation of 'some of the very best water frontages' and seemed to look to the Commission to confirm them in the retention of that land.125 Bell reassured Graham that he would not be excluded from taking up at least a portion of the land purchased by him, on the west bank, but pointed out that his survey lines did not reflect Cormack's claim at all, transecting lands claimed by Webster or by the Government, or which Maori refused to give up. In these circumstances, Bell and Drummond Hay proposed that the only way to make a 'fair settlement' was to take the amount of land within Graham's survey on the west bank, not covered by surveys already undertaken, and make the survey allowance on that quantity. While it was doubtful that Maori would give 'quiet possession of a good deal of the land', Bell suggested that he and Drummond Hay would 'at some convenient opportunity meet the