The Rotoiti 15 Trust
Eileen Barrett-Whitehead
21 October 2001 (Wai 550 - Rotoehu Forest claim) Contents
1. The Commission ...... 1 2. Existing research ...... 1 3. Research for this report ...... 2 4. General background ...... 3 4.1 The Creation ofRotoiti 14 ...... 3 4.1.1 Government policy ...... 5 4.1.2 Rating issues ...... 13 4.1.3 Uneconomic shares ...... 15 4.1.4 Notification ...... 16 4.1.5 Dissent...... 18 4.2 The Creation ofRotoiti 15 ...... 20 5. Terms of the Trusts ...... 24 5.1 The Rotoiti 14 Trust Orders ...... 24 5.2 The Rotoiti 15 Trust Orders ...... 27 5.3 Post-1993, under Te Ture Whenua Maori Act...... 30 6. Fragmentation oftitle ...... 32 7. Fragmentation of ownership ...... 33 7.1 Small and uneconomic interests ...... 36 8. Absenteeship ownership ...... 38 9. Returns to owners ...... 42 9.1 Returns from 1971 to 1992 ...... 43 9.2 Returns after 1992 ...... 46 10. Distribution of returns ...... 52 10.1 Dividend payments to individuals ...... 53 10.2 Other forms of financial benefit...... 55 11. Issues of control...... 57 12. Conclusions ...... 61
Bibliography ...... 64 Figures 1. Number of section 438 trusts formed in the Waiariki District each year, 1957-1971...... 10 2. Geographic distribution of shareholders in the Rotoiti 15 Trust, as atJanuary 2001...... 38 3. Unclaimed dividends (cumulative total), 1978-2000 ...... 55 4. Amount paid out in grants and scholarships by the Rotoiti 15 Trust ...... 57
Tables I. Dividend payments by the Rotoiti 15 Trust, 1978-1998 ...... 53 2. Returns on share value, 1978-1998 ...... 54
Appendices The Wai 550 statement of claim (Wai 550 record of inquiry, doc 1.17) The Waitangi Tribunal memorandum of 18 April 2000 (Wai 550, doc 2.4) Direction commissioning research by Professor Alan Ward, 22 August 2000 (Wai 550, doc 3.1) Extension to Direction commissioning research by Professor Alan Ward, 27 February 2001 (Wai 550, doc 3.5) Direction commissioning research by Eileen Barrett, 27 March 2001 (Wai 550, doc 3.6)
Maps Map 1: Location of land currently administered by the Rotoiti 15 Trust Map 2: Rotoiti 14, showing contributing subdivisions, 17 March 1970 Map 3: Crown forest licences and other exotic forests in the RotorualBay of Plenty area Map 4: Area covered by Rotoiti 14 and Okataina 12, December 1970 Map 5: Rotoiti 15, 19 July 1971 Map 6: Area administered by Rotoiti 15 Trust, since 24 July 1983 Map 7: Area treated as 'local', for the purposes of statistical analysis of shareholder list The Author
Eileen Barrett-Whitehead is a Research Officer at the Waitangi Tribunal. She was born in the United Kingdom and qualified as a librarian before moving to New Zealand. She has also spent extensive periods oftime in France, New Caledonia, Tonga and the Solomon Islands. She has a Bachelor of Arts in French, and Master of Arts in History which she was awarded with first class honours. Both degrees are from Massey University. Before taking up employment with the Waitangi Tribunal, she worked at the Crown Forestry Rental Trust where she carried out research into land issues in the Gisborne and Wairarapa areas. 1. The Commission On 17 April 2000, a conference was held to discuss how Ngati Pikiao claims might be progressed. Included among such claims are Wai 550 (The Rotoehu Forest (Ngati Pikiao) claim), Wai 675 (Lake Okataina and Surrounding Lands claim) and Wai 749 (The Rotoiti Native Township claim). As a result of that conference, the Waitangi Tribunal issued a memorandwn outlining a proposed course of action and making recommendations with regard to further research. I The present report has been commissioned by the Tribunal in the context of those recommendations.2
The report is intended to serve as a case study of the impact of certain aspects of Maori land legislation on Ngati Pikiao, and also contributes to Professor Alan Ward's investigation into the loss of tribal ownership and control in the Ngati Pikiao rohe. 3 In particular, the aim has been to examine fragmentation of ownership, fragmentation of title, absentee ownership and wldistributed dividends in the Rotoiti 15 Trust, since its creation creation in 1971.
The Rotoiti IS Trust is not typical of trusts in the Rotorua area, being considerably larger than most. It administers some 8404 hectares ofland, and has over 8700 names on its current list of owners. Precisely because of its size, however, it is likely that any problems associated with land tenure legislation will be magnified and highlighted. One concern of the research, for example, is to assess to what extent such a large nwnber of individual owners might be able, and likely, to retain an active link with their tribal estate, and to derive benefit from it.
The report begins with an examination ofthe circwnstances surrounding the creation ofthe Rotoiti 15 Trust, and continues with an investigation of its composition and operation, in terms of all the above-mentioned concerns, up to the present time.
2. Existing research Peter McBurney and Donald Loveridge have already provided some background on the lands comprised in the Rotoiti 15 Trust, in their report 'Ngati Pikiao Lands ca. 1881-1960: Block Histories'. However, these short histories draw principally on information from Maori Land
I Tribunal Memorandum, 18 April 2000 (Wai 550 record of inquiry, doc 2.4) 2 Direction Commissioning Research, 27 March 2001 (Wai 550 record of inquiry, doc 3.6) 3 Direction Commissioning Research, 22 August 2000 (Wai 550 record of inquiry, doc 3.1)
1 Court files and are designed largely to 'sunnnarise the available title and alienations records' .4
There is also reference to the lands in Dr Loveridge's report "'The Most Valuable of the Rotorua Lands": Alienation and Development in the Ngati Pikiao Blocks, 1881-1960', but the report's emphasis is mostly on the earlier part of the period covered.5 Land Court minutes, for example, have not been examined beyond 1910, and little of the primary source material relevant to land in the Rotoiti 15 block extends into the period beyond 1950. As the Rotoiti 15 Trust was not created until 1971 , the report has limitations for the purposes of the current research.
In addition to the above, the' Report of Connnittee ofInquiry into the Laws affecting Maori Land and the Jurisdiction and Powers of the Maori Land Court', by Ivor Prichard and Hemi Waetford, makes reference to some of the lands now in the Rotoiti 15 block, in its chapter on fragmentation.6 Again, however, the material relates to the period before the creation of the Rotoiti 15 Trust.
There appears to be no secondary material relating to the Rotoiti 15 block per se.
3. Research for this report In preparing this report, the main sources have been the records of the Waiariki Maori Land Court (notably block files, court correspondence files, and Land Court minutes) and files held by Hulton Patchell Chartered Accountants, the registered office of the Rotoiti 15 Trust- both located in Rotorua. Also consulted were records of the Department of Maori Affairs (particularly in relation to land utilisation and afforestation), and evidence submitted to the 1980 Royal Commission ofInquiry into the Maori Land Courts. Both these latter sets of records are held at the National Archives in Wellington. Some discussion was also held with Mr lTP Malcolm and Mr WRJ Gray, each of whom has served on the board of trustees of
4 Peter McBurney and Donald Loveridge, 'Ngati Pikiao Lands ca. 1881-1960: Block Histories', report commissioned by the Waitangi Tribunal, August 1998 (Wai 46 record of inquiry, doc M22), p 6 5 Donald Loveridge, '''The Most Valuable of the Rotorna Lands": Alienation and Development in the Ngati Pikiao Blocks, 1881-1960', report commissioned by the Waitangi Tribunal, August 1998 (Wai 46 record of inquiry, doc M21) 6 Prichard, Ivor and Hemi Tono Waelford, 'Report to Hon JR Hanan, Minister of Maori Affairs, of Committee ofInquiry into the Laws Affecting Maori Land and the Jurisdiction and Powers of the Maori Land Court', 15 December 1965, pp 19-35
2 Rotoiti 15. More consultation with owners and trustees would have been helpful but, given the time constraints, the main focus of the research has had to be the written record.
4. General background The lands administered by the Rotoiti 15 Trust are situated to the southeast of Lake Rotoiti, and are currently divided between three separate locations (see map 1, appended). The largest area, immediately southeast of Lake Rotoiti, stretches almost to Lake Tarawera in the south. A second, much smaller, area is situated on the south-eastern side of the Tarawera Forest. The remainder is a piece of land leased from the Crown, and situated immediately to the south of the Tarawera Forest. The lease was negotiated in exchange for an area of Rotoiti 15 land which the Crown now leases as scenic reserve.
4.1 The creation of Rotoiti 14 Germane to Rotoiti 15 are the issues surrounding the creation of Rotoiti 14, one of its main constituent blocks.
Rotoiti 14 was created in March 1970, barely a year before Rotoiti 15. Its constituent blocks were Pukearuhe and Hingarae, together with some 30 subdivisions of the Haroharo, Haumingi, Okataina and Waione blocks (see map 2). The original titles to these lands had all been investigated by 1908, but some of the blocks were not surveyed until after that date. Subdivision of the blocks had occurred largely in the period 1920 to 1950.7 Okataina 3B, the largest of the subdivisions to be included in Rotoiti 14, covered nearly 3289 acres, but Hingarae, the smallest block, was only 4 acres 3 roods 2.5 perches. The median size of the areas amalgamated was just under 229 acres (or about 92 hectares). From the available evidence, it appears that most blocks were not being 'profitably exploited' at the time, but it is difficult to determine to what extent the land was owner-occupied. (Owners of one block, however, specifically requested that part of their lands be subdivided out and excluded from the amalgamation, to protect their future occupation rights. 8)
7 Rotorua Maori Land Court minute book 150, 17 March 1970, fol 260-264 8 Rotorua Maori Land Court minute book 150, 17 March 1970, fol 240
3 The application for this amalgamation was submitted by the Deputy Registrar, with 11 owners listed in support.9 It observed that:
the lands ... are idle and unproductive and not revenue producing (with the exception of Okataina No.8 which is subject to a grant of Timber Cutting rights expiring 25.11.73) and ... the said lands could be more conveniently worked or dealt with ifheld in common ownership under one title.lo
The latter part of this statement is taken from section 435 of the Maori Affairs Act 1953 (amended in 1967). That clause of the Act also clarifies what the Crown intended by the term 'amalgamation' :
Where the Court is satisfied that any land ... which comprises two or more areas held under separate titles can be more conveniently worked or dealt with as if it were held in common ownership under one title, the Court may cancel the several titles under which the land is held and make an order (hereinafter referred to as an amalgamation order) substituting therefor one
title to the whole ofthe land. I I
The Land Court minutes note that both Court and owners were satisfied that these conditions had been met for the lands in question. They further record that' a large and informed body of owners' had discussed the proposal and spent' a great deal oftime' over it (although there is no indication what percentage of the more than 3700 owners' large body' might have
represented). 12 In addition, it is specified that the amalgamation was to be effected because 'the lands are contiguous and are so located one to the other as to constitute a compact single
area capable of being the more profitably exploited in the owners' interests.' 13
9 The names of those supporting the application were given as: Kepa Ehau, AR Wikiriwhi, Pokiha Hemana, Heta Waretini, Michael Tutere Hohepa, Wirihana Waaka, Te Mapu 0 te Rangi Morehu, Richard Vercoe, Rangi Hunuhunu, Maruao Takuia, Ikatapu Kingi. The application does not give their hapu affiliations or indicate in which blocks they had interests. (Court application dated 19 January 1970, Rotoiti court correspondence file, vol 3, Waiariki Maori Land Court) 10 Court application dated 19 January 1970, Rotoiti court correspondence file, vol 3, Waiariki Maori Land Court 11 Section 434 (3), Maori Affairs Act 1953, as amended by section 141, Maori Affairs Amendment Act 1967 12 Rotorua Maori Land Court minute book 150, 4 March 1970, fol 188 13 Rotorua Maori Land Court minute book 150, 17 March 1970, fo1238, 240
4 In sum, it was acknowledged by the Court, as well as the owners, that the lands could be better worked as a single unit under common ownership. This is ironic given that, under traditional tribal ownership, the land would have effectively remained a single unit under common ownership from the first, and the cost and effort of subdivision and subsequent re amalgamation could have been entirely avoided.
Regarding the owners' shares in the new block, the minutes record that they would be 'calculated upon the capital value in $NZ', and further note:
The Court has adopted the values $NZ in the schedule as appropriate only for amalgamation purposes inter beneficial owners since in them there is an overall common denominator, but that denominator, in the experience of this Court, does not represent the value of those lands for forestry purposes and dealings
with third parties such as here contemplated. 14
Again, this is in line with the Act, which specified that:
Any amalgamation order shall set forth the relative interests of the several owners of the land which ... shall be calculated by reference to the relative values ofthe interests to which they were entitled under the cancelled titles.15
As long as the basis for that calculation was, in the opinion of the Court, 'fair and equitable' it could be in accordance with any 'understanding or arrangement' agreed by the groups of owners involved. 16 The aim was that, while individual owners substituted a shareholding in a block or block for a smaller shareholding in a larger single unit, the value ofthat holding, relative to other interests, remained the same.
4.1.1 Government policy The close adherence of Land Court records to the wording of Government legislation is a reminder of the need to situate the creation of Rotoiti 14 within the context of contemporary Government policy.
14 Rotorua Maori Land Court minute book 150, 17 March 1970, fo1238, 240 15 Section 435 (4), Maori Affairs Act 1953, as amended by section 141, Maori Affairs Amendment Act 1967 16 Section 435 (5), Maori Affairs Act 1953, as amended by section 141, Maori Affairs Amendment Act 1967
5 Files of the Department of Maori Affairs indicate that the idea of afforesting Maori land first began to attract serious attention in the early 1960s. A memorandum of 20 August 1962 noted that land in the Bay of Plenty area would be particularly suitable:
This area ... is the one that offers the greatest scope for afforestation. The Forest Service officials advise that any suitable land within reasonable distance from the existing Kaingaroa Forest, the Tasman Pulp Mill, or the Whakatane Board Mill Factory is an economic certainty for forestry development. They are interested and anxions to acquire Maori land in this area for afforestation purposes and have themselves carried out a detailed survey of blocks which would be suitable. This shows a total of over 200,000 acres of Maori land in the Bay of Plenty area at present in scrub which is potentially suitable for developing.17
The Department was not slow to follow up on the idea. By November of the same year, approaches were already being made to owners in the Rotorua area, to discover ways in which their land might be obtained for forestry purposes:
It is fairly clear from meetings of owners held to date that the owners will not sell the land. We have discussed the question ofleases for afforestation with owners and the general opinion is that they will favourably consider long term leases if legislation is brought down enabling say 99 year leases."
A Bill to this effect was in fact introduced the same month, and the resulting Maori Affairs Amendment Act 1962 added a proviso to the earlier legislation that had prohibited leases of longer than 50 years. It stipulated that subsection 235(1) of the 1953 Act would be modified to the effect that 'nothing in this subsection shall apply to a lease of any Maori freehold land that is to be used by the lessee exclusively or principally for afforestation purposes' .19
17 R Law to Secretary of Maori Affairs, 20 August 1962, MA 58/1 part 1 (Afforestation of Maori land 1961- 1973), NA Wellington Note: map 3 shows the current extent offorestry in the RotorualBay of Plenty area, relative to the location of lands that were to become Rotoiti 14. 18 JE Cater, Assistant District Officer, to Head Office, 8 November 1962, MA 5811 part 1 (Afforestation of Maori land 1961-1973), NA Wellington 19 Section 19, Maori Affairs Amendment Act 1962
6 Two years later, in November 1964, the govemment instituted a committee of inquiry into the laws affecting Maori land and the powers of the Maori Land Court. Those serving on the committee were Ivor Prichard, a former Chief Judge of the Maori Land Court, and Berni Waetford, a Special Titles Officer of the Department of Maori Affairs, Whangarei. They issued their report in December 1965 and particularly underlined the problems caused by fragmentation - both of interests and of title. Indeed, the very first item in their list of conclusions and recommendations was the statement that:
Fragmentation and unsatisfactory partitions are evils which hinder or prevent absolutely the proper use of Maori lands. Fragmentation will become progressively worse unless urgent remedial action is undertaken.'o
As is evident from the statement, there was also concern about' unsatisfactory partitions' , and the report recommended that there should be no appeal against the amalgamation of blocks, the partitioning of blocks, or the amalgamation and re-partitioning of blocks. They further recommended that all interests below the value of £ 100 should be taken over by the Crown.21
Overall, the report promoted the view that Maori needed to disencumber themselves of small uneconomic rural holdings so they could use the proceeds to establish themselves in an urban environment. There should then, it was argued, be a rationalisation of remaining rural Maori land. The implication was that urbanisation meant Maori no longer needed their traditional lands and these could now be developed for the economic benefit of the nation as a whole.
The report engendered considerable discussion and criticism.22 Nevertheless, the bulk of its recommendations were incorporated into the Maori Affairs Amendment Bill which was introduced to Parliament two years later, in 1967. In promoting the Bill, the Minister of Maori Affairs stated that the new legislation would, among other things, address the problem of 'Maori land ... owned in common by a number of owners in varying and often very small
20 Prichard, Ivor and Hemi Tono Waetford, 'Report to Hon JR Hanan, Minister of Maori Affairs, of Committee of Inquiry into the Laws Affecting Maori Land and the Jurisdiction and Powers of the Maori Land Court', 15 December 1965, p 6 21 Prichard, Ivor and Hemi Tono Waelford, 'Report to Hon JR Hanan, Minister of Maori Affairs, of Committee of Inquiry into the Laws Affecting Maori Land and the Jurisdiction and Powers of the Maori Land Court', 15 December 1965, pp 6, 8,41-43 22 Kawharu, IH, Maori Land Tenure, Oxford, Clarendon Press, 1977, pp 255-272; Parere, T, 'Maori Land', Dip Public Administration research essay, Victoria University, 1970, p 9
7 shares'. He also mentioned 'the awkward and impracticable size and shapes into which Maori land over the years has become divided'. He confirmed another Member's suggestion that the legislation was designed to increase the further utilisation of Maori land, particularly 'idle
Maori land' ,23 and, in debating the second reading of the Tarawera Forest Bill later the same year, he specifically referred to 'the Government's policy of bringing Maori land into use at an accelerated rate,?4
Significantly, in the legislation as originally framed, the clause introducing Part II stated that the main purpose of that particular part of the Act would be:
'to promote the effective and profitable use and the efficient administration of Maori land in the interests of the owners and in the public interest,25 [emphasis added].
In the event, the words 'and in the public interest' were deleted before the Act was passed, and it has been claimed that this indicated Maori interests would thus be allowed to take priority.26 However, the actual provisions of Part II underwent very little modification. In effect, therefore, one of the Government's main intentions remained but was no longer overtly stated.
Tasked with the 'nut and bolts' of promoting 'effective and profitable use and ... efficient administration' were to be the new Improvement Officers. While being Officers of the Department of Maori Affairs, they would be attached to the Maori Land Courts, and they were to:
examine in respect of each parcel of land ... the following matters: Ca) The situation, area, dimensions, and topography of the land, and the practical and legal access thereto: Cb) The extent to which the boundaries are or should be surveyed: Cc) The occupation and current use of the land: Cd) The use to which the land is best fitted:
2l PT Watene and JR Hanan, 3 May 1967, NZPD, 1967, vol 350, pp 46, 47 24 JR Hanan, 8 November 1967, NZPD, 1967, vol 354, p 4096 25 Maori Affairs Amendment Bill 1967, Part II, section 14(1) 2G Parare, T, 'Maori Land', Dip Public Administration research essay, Victoria University, 1970, p 24
8 (e) The number of owners of the land and the extent of their several interests: (f) The extent to which rates levied on the land are paid: (g) The existence of any charge or encumbrance on the land.
They were then to determine what action should be taken. Significantly, in terms of the present research, such action could include 'the amalgamation of the title to the land with the title to any other land. ,27 As first presented in the Bill (and as recommended by Prichard and Waetford) such measures were to be compulsory, with no right of appeal from owners. In the event, the compulsory element was removed before the legislation was passed. Nevertheless, following the 1967 Act, there was a marked effort towards encouraging owners into amalgamating blocks (for which provision in fact already existed under section 435 of the Maori Affairs Act 1953). This promotion of amalgamation was despite the fact that many owners apparently showed a reluctance to having their lands amalgamated. According to a later observation by Judge Russell:
Owners feel that the people who want them to agree to an amalgamation are seeking to take something away from them. It requires careful explanation and adequate time to bring owners around to accepting that it is in fact in their own best interests to agree to amalgamation."
The Improvement Officers' sphere of action also included 'the vesting of the land in trustees upon trust to alienate', which facilitated leasing. In particular, it enabled Maori land to be rented out for commercial exploitation. Again, a ready vehicle existed, under section 438 of the 1953 legislation. The marked increase in numbers of section 438 trusts created in the Waiariki District in the years after 1967 (and especially from 1969 onwards) are graphic evidence of the Improvement Officers' success at carrying out the Government's policy in this area (see figure 1, overleaf).
27 Maori Affairs Amendment Act 1967, part 11, sections 16 (2) aad 17 (2) 28 re an Appeal by the Ngaitahu Maori Trust Board Maori Appellate Court [1982] per Judge Russell, p 14, quoted in PG McHugh, 'Trusts for the Utilisation of Maori Laad in Multiple Ownership', New Zealand University Law Review, vallO, December 1983, p 350
9 Fig.1 Number of section 438 trusts formed in the Waiariki District each year, 1957-1971 29
1957 1958 1959 1960 1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971
In promoting the formation of trusts, the Department of Maori Affairs and its Improvement Officers had the active backing and encouragement of the Maori Land Court. As noted by the Royal Commission onnquiry into the Maori Land Courts (1980), the Court was 'in a powerful position in being able to influence the form and extent of corporate land management' and Judge Durie, before the same Royal Commission, went so far as to describe the Court as 'largely responsible' for promoting trust formation. It was a state of affairs about which the Commission sounded a note of warning:
Once a court involves itself substantially in administrative action .... it runs a real and substantial risk of being not only interfering, but of being partisan in its rulings, not consciously but by allowing itself to become a promoter of its own opinions about the use ofthe land to the exclnsion of those ofthe litigants
before it. 30
29 Figures taken from Royal Commission on the Maori Land Courts, Evidence given in cross-examination, Gillanders Scott, 1980, COM 48 Box 1, P 452, NA Wellington 30 'The Maori Land Courts: Report of the Royal Commission of Inquiry', 1980, AJHR, H-3, pp 27, 81
10 Admittedly, others have since claimed that there are various safeguards against this happening, at least with regard to the formation oftrustS.31 However, the Royal Commission's findings indicate that any evidence of the Land Court being a promoter of Government policy, as opposed to an interpreter oflegislation, should be viewed with concern.
The fact that Government policy played such a strong part in encouraging the formation of trusts is not to deny that Maori saw any benefit in the move. Nor does it deny that Maori were interested in exploiting their land usefully. Indeed, some of those involved in the active promotion of the new Government policy were themselves Maori. In the case of the Rotoiti 14 scheme, for example, one reads in the Land Court minutes:
The Court wishes to commend Mr A.T. Bennett and his working committee, the Rotorua County Council and Mr Tupinia Puriri for their initiative, drive and energy in bringing to fruition a scheme of land utilisation which is clearly in 3 both the private and the public interests '
Tupinia Puriri was the Maori Rating Clerk for the Rotorua County Council and Albert Bennett was chairman of the Rotoiti Riding Land Committee. This latter body had originally been established to 'advise the owners on the future use of substantial areas of land on the west side of Lake Okataina'. Among other things, it had been 'instructed to approach various forest companies and attempt to have the land utilised' .33 Both Puriri and Bennett were later to become advisory trustees ofthe Rotoiti 14 Trust and may themselves have been owners in 34 the block.
31 PO McHugh, 'Trusts for the Utilisation of Maori Land in Multiple Ownership', New Zealand University Law Review, vol 10, December 1983, pp 344-350 32 Rotorua Maori Land Court minute book 150, 17 March 1970, fol 264. Note: Of further significance in this statement is the reference to 'the public interest': despite the phrase concerning public interest having been removed from the 1967 legislation (see earlier, p 8), it was patently still an important factor. 33 Rotorua Maori Land Court minute book 150, 17 March 1970, foI244; Turley to Hamilton Office [Lands and Survey Department], 20 February 1970, MAl Box 332 191114 pt 6, NA Wellington; Rotorua Maori Land Court minute book 150, 4 March 1970, fol 189; 'Tasman Lease East of Okataina', Rotorua Daily Post, 24 December 1969. Evidence has not been located to clarify who was responsible for establishing the Rotoiti Riding Land Committee. 34 There was no requirement for advisory trustees to be beneficial owners (see section 5.1, below) but it is likely that most were.
11 Another significant factor is that the Tarawera Forest Act 1967 had made possible the creation of a huge exotic forest on lands immediately adjacent to those being proposed for amalgamation (see map 3). It is doubtless also relevant that the joint venture partner secured by the Government for the exploitation of the Tarawera Forest, the Tasman Pulp and Paper Company, was the same company identified for participation in the 'scheme ofland utilisation' planned for the new Rotoiti 14 block. It was a company in which the Government itself held 25 percent of the shares,35 and the Government therefore stood to benefit financially from an expansion of the Tarawera operations into adjacent lands. Furthermore, a memorandum from the Commissioner of Lands, dated 20 February 1970, states that 'an offer' from the company had been expected by the Rotoiti Riding Land Cornmittee as early as January 1969.36 To judge from a subsequent paragraph ofthat memorandum, the offer plainly concerned the commercial afforestation of the Rotoiti land.
Indeed, the Government's proactive role in promoting forestry, and particularly in assisting Tasman Pulp and Paper, is made explicit in a later speech by the Hon Duncan MacIntyre to the Tauranga Branch of the National Party:
I also want to reiterate that it is the Forest Service and the Government's continuing intention to make sure the Tasman Pulp and Paper Co. has enough raw material to expand its annual production to 340,000 tons of newsprint and 160,000 tons of market kraft pulp and to keep sawmill production at more than 80 million board feet a year - the company's announced targets.37
As Minister of Forests and Land and Maori Affairs, he was well-placed to achieve this goal, and he went on to state that he was 'strongly supporting the leasing of Maori land for afforestation by the Forest Service or industry' .38
Again, it is not suggested that the owners were unwilling partners. Indeed, the previously mentioned memorandum from the Commissioner of Lands makes it clear that, if the land was
35 John Third, Wai 411 Tarawera Forests: summary of evidence, May 2000 (Wai 411 record of inquiry, doc A11),p1 36 Turley to Hamilton Office [Lands and Survey Department], 20 February 1970, MAl Box 332 191114 pt 6, NA Wellington 37 Notes for speech by [Han D Macintyre], Minister afForests, to Tauranga Branch of National Party, 9 February 1971, MA 581l part 1 (Afforestation of Maori land 1961-1973), NA Wellington 3S See again map 3 for the location of Crown forest licences and other exotic forests established in the wider Rotorua area.
12 to be afforested, then the owners were keen to plant as large an area of it as possible. However, reading Land Court records in isolation often conveys the impression that all the impetus towards amalgation and afforestation came from Maori?9 The foregoing examination of Government policy reveals that this is to overstate the situation. Rather, when viewed in the context of the preceeding decade or so, it can be seen that much of the original impetus came from the Crown, as part of its drive to bring 'idle' Maori land into production and to boost the national economy.
4.1.2 Rating issues Other factors also encouraged the amalgamation and corporate management of land. Among them were rating charges. In this particular case, the Land Court minutes note that the plan to create the amalgamated Rotoiti 14 block had 'its genesis in a worthwhile working arrangement struck by the Rotorua County Council with the Maori owners of thirty-three blocks of Maori freehold land all now lying idle and unproductive. ,40 Significantly, Tupinia Puriri, who had been active in promoting the Rotoiti 14 amalgamation scheme, was the Maori Rating Clerk for the Council.
There is nothing on the Rotoiti 14 block files to indicate that rates had not been paid on its constituent blocks, but a former trustee ofRotoiti 15 has intimated that rates were a problem, and that there was a fear that land would be taken to cover o~tstanding charges.41 Furthermore, a passing reference in the Prichard-Waetford report reveals that at least one constituent block of Rotoiti 14, namely Waione lB, was in 1965 'totally undeveloped and pay[ing] no rates'. This block covered some 991 acres, had 583 owners, and was valued at £1940.42
Besides any past problems, it was doubtless recognised by the County Council that there were potential efficiencies to be made in levying rates on one corporate body rather than numerous small owners. Certainly, in neighbouring Whakatane County it was felt that if
39 In the case of Rotoiti 14, for example, the Rotorua Deputy Registrar recorded that 'the application ... was lodged by me as Deputy Registrar even though the proposals were initiated by the owners themselves'. [HP Martin (Deputy Registrar, Rotorua) to Chief Surveyor, 13 February 1970, MAl Box 332 19/1/4 pt 6, NA Wellington] 40 Rotorua Maori Land Court minute book 150, 17 March 1970, fol 238 41 Personal communication from WRJ Gray, 16 September 2001 42 Prichard, Ivor and Hemi Tono Waetford, 'Report to Hon JR Hanan, Minister of Maori Affairs, of Committee ofInquiry into the Laws Affecting Maori Land and the Jurisdiction and Powers of the Maori Land Court', 15 December 1965, p 25
13 the land areas could be combined and profitably exploited, then rates could be collected more readily and efficiently. In particular, they recommended forestry. As early as 1962, a deputation from the Whakatane County Council had met with the Minister of Maori Affairs to encourage the idea of afforesting Maori land:
With regard to non productive Maori lands in their County, they were still trying to get something done but so far nothing had been accomplished. The County was interested in this land because it not only should be paying rates to the Council but a lot of the land should also be put into trees~3
The extent ofthe rate-collection problem in Rotorua County is indicated by an article in the New Zealand Herald of 11 September 1962. The article stated that 'only 52.9 percent of the rate struck was collected from Maori ratepayers', compared to 94.4 percent of the rates due on European-owned property in the county - and this despite a slight improvement in the situation over the years immediately prior to 1962. The county clerk was quoted as saying that there were many large tracts of Maori land in the county, some of which had high value, that were undeveloped because of multiple ownership or the owners' lack of capital. 44
Five years later, in 1967, a memorandum from the Department of Maori Affairs to its Rotorua office indicated that rates were still a problem in the district and that there was to be a tightening of policy. Noting that 'the whole question of exempting Maori lands from rates has been recently reviewed by the Minister', the memorandum went on:
Future policy will be along the lines that the Crown will make an offer in most cases to buy land which a local body has asked to be exempted from rates. If the owners decline a reasonable offer from the Crown, they should then be prepared to pay rates. In cases where the Crown is not interested in buying, an exemption from rates, if clearly warranted, will be considered by the Minister for a period of up to two years.45
4J 'Notes of Deputation [from Whakatane County Council] held in Hon Mr Hanan's Rooms', 18 September 1962, MA 58/1 part I (Afforestation of Maori land 1961-1973), NA Wellington 44 'Steady progress in collection of Maori rates', New Zealand Herald, 11 September 1962, p 9 45 Memorandum ITom Head Office, Department of Maori Affairs, to Rotorua office, 21 August 1967, ABJZ 869 Box 59 20/1/48 pt 1, NA Wellington
14 In this climate of greater stringency, and given the specific instruction (mentioned above) for the newly-created Improvement Officers to investigate rating matters, it is not surprising that the County Council was seeking to strike a 'worthwhile working arrangement' with the owners of the various blocks that were to compose Rotoiti 14.
4.1.3 Uneconomic shares
There is also evidence to suggest that the amalgamation and land utilisation scheme may have been mooted in part to avoid uneconomic shares being compulsorily converted by the Maori Trustee under the provisions of the Maori Affairs Act 1953 46 Under this legislation, any share worth less than £25 could be compulsorily acquired by the Maori Trustee and these provisions were retained in the 1967 Act.47 While it is true that this latter Act kept the threshold at $50 (£25), and did not raise it to $200 (£100) as proposed in the Prichard Waetford report, it did not make the measure any more popular with many Maori.48 The legislation on compulsory conversion was not repealed until 1974.49
Chief Judge Gillanders Scott, in response to cross-examination on his submissions to the Royal Commission on the Maori Land Courts (1980), stated that 'in Rotoiti 15[sic]5o .... The Maori Trustee gave the assurance in court that there would be no conversion, provided the
scheme went ahead' . 51 [Emphasis added]
Uneconomic shares, as they relate to fragmentation of interests, will be further discussed in section 7 of this report. At issue here, however, is the likelihood that unpopular Government legislation concerning such shares was an additional factor in encouraging the owners to
46 Maori Affairs Act 1953, Part Xll section 137 and Part XXVlll section 445 (8) 47 Maori Affairs Amendment Act 1967, Part VII section 124 48 Prichard, Ivor and Hemi Tono Waetford, 'Report to Hon JR Hanan, Minister of Maori Affairs, of Committee oflnquiry into the Laws Affecting Maori Land and the Jurisdiction and Powers of the Maori Land Court', IS December 1965, pp 8, 79-81 49 Maori Affairs Amendment Act 1974, Part VI section 23 50 The reference to uneconomic interests and the Maori Trustee in fact occurs in the minutes of the hearing for Rotoiti 14. [Rotorua Maori Land Court minute book 150,4 March 1970, fo1189]. As Rotoiti 14 was largely subsumed into Rotoiti IS only a year after its creation, it is likely that the Chief Judge chose to use the more recent name for the entity when making his submission to the Royal Commission. Sl Royal Commission on the Maori Land Courts, Evidence given in cross-examination, Gillanders Scott, 1980, COM 48 Box I, p 411, NA Wellington Note: The minutes of the hearing in question (see fn 50) simply state: 'No intention on part ofMT to apply section ISlA. On contrary I have declined uneconomic interests'.
15 support the proposed scheme for amalgamation and land development. As noted in Tom Bennion and Judi Boyd's report 'Succession to Maori land, 1900-52':
Measures introduced in 1953 (conversion of uneconomic interests), 1957 (vesting in a single owner) and 1967 (aggressive 'live buying' by the Maori Trustee) to force Maori to give up these fragmented interests were fiercely resisted.52
4.1.4 Notification Regarding the amalgamation and land utilisation proposals for the blocks in Rotoiti 14, the Land Court minutes note that 'it is significant that after more than usual notification of the matters in hand no Maori owner is in opposition to the general nature of the reliefsought,.53
The phrase 'more than usual notification' tends to imply there were established norms in regard to notifying owners of matters that concerned them. Nowhere in the Maori Affairs Act 1953 or the amending Act of 1967, however, was there any mention ofa requirement to notify owners of impending court cases concerning their land - either under the general instructions relating to the conduct of Land Court business, or in the specific provisions relating to amalgamations and trusts. On the other hand, there was a clause which gave the Land Court Registrar responsibility for summoning meeting of assembled owners to discuss matters such as proposed alienations, if someone had made application to the Court for such a meeting to be called. 54 It is therefore not always clear who had responsibility for notifying the parties concerned, and nor do there appear to have been any written guidelines on how that notification should have been given. Nevertheless, in the interests of justice, one would have expected it to be a duty of the Court to verify that such notification had indeed occurred and that owners were aware of not only of meetings of assembled owners but also of impending court cases.
From later Court records, it can be determined that 'more than usual notification' in the case of the proposals being made for Rotoiti 14 consisted of:
52 Tom Bennion and Judi Boyd, 'Succession to Maori Laod, 1900-52', Waitangi Tribunal Raogahaua Wbaoui series, National theme P, (first release), May 1997, p 42 53 Rotorua Maori Land Court minute book 150, 17 March 1970, fol 238 54 Section 307, Maori Affairs Act 1953
16 • newspaper advertisements for a meeting of owners on 21 December 1969, these advertisements appearing in five different newspapers, once a week, for three consecutive weeks prior to the meeting; • public notice of the Court application in the Rotorua Daily Post and at local Post Offices, and also notice to rating bodies and to owners of affected blocks (where addresses were known)55; and
• public notice of a special hearing on 4 March 1970, posted at three local Post Offices and published for three successive weeks, prior to the hearing, in the Rotorua Daily Post.56
The ownership list for Rotoiti 14 comprised 156,700 shares, divided among 3783 owners. The degree of notification may indeed have been 'more than usual' in this case but, given the scope of the proposal and the large number of owners, there is no certainty that it was either adequate or sufficient. In particular, the form the notification took appears more designed for ease of execution than for ease of consumption. From the above list, it would appear that only one attempt was made to contact owners individually, with notice of the impending court hearing of the application. For the rest, notification relied entirely on advertisements put up at local Post Offices, and on items appearing in newspapers. Such notices, for the most part, were confined to the Public Notice columns - not the most widely read section of a newspaper. The New Zealand Herald advertisement of 8 December 1969, for example, read:
PUBLIC NOTICES A MEETING OF MAORI OWNERS in Haroharo, Haumingi, Waione and Okataina blocks will be held at Wai-iti Marae, Rotoiti, on Sunday, December 21, 1969, commencing 10 a.m. to consider recommendations put forward by the steering committee regarding afforestation proposals, Tasman Pulp and Paper and other matters relating to the above blocks. A.T. BENNETT Chairman Rotoiti Riding Land Committee57
55 A contemporary list of owners, with addresses, has not been located, so it is not known what proportion of the total might have been contactable by mail. "Chief Judge's minute book, 4 July 1990, fol 86-87 57 New Zealand Herald, 8 December 1969, p 6. (Layout reproduced here as nearly as possible.)
17 Dissemination of the information would thus have been left, in the first instance, to that doubtless small percentage of owners who saw and read such notices.
Judge Russell, it is true, suggested in his submission to the Royal Commission on the Maori Land Courts (1980) that even for notices of hearing:
Where there is a large number of owners with small shares[,j written notice to the major and representative owners[,j and notice by newspaper advertisement to the rest[,jmay be appropriate."
However, he failed to indicate how the Land Court might be able to defend such discrimination. If the land legislation itself engenders small shareholdings, natural justice would seem to dictate that responsibility towards those small shareholders cannot then be abrogated simply for reasons of expediency.
4.1.5 Dissent In the case of Rotoiti 14, one group, at least, subsequently claimed that notification was insufficient and, in 1990, they brought a case before the Chief Judge of the Maori Land Court, under section 452 of the Maori Affairs Act 1953. This clause of the legislation provided for an order to be amended or cancelled if it was' erroneous in fact or in law by reason of a mistake, error, or omission on the part of the Court, or in the presentation of the facts of the case to the Court.' The Waione C2D owners said that they 'were not notified of the application to have their interests amalgamated with others', and they maintained that this
had given them 'no opportunity to object' .59 However, the Deputy Chief Judge dismissed their case. He reiterated the original assertion that there had been 'more than usual notification' and focused, rather, on the rights of the forestry company now leasing the block, stating:
even if the Chief Judge ... was after due inquiry and report satisfied that there had been an error there would be nO way in which the present lease could be disturbed. This means the land remains subject to the lease which I note from
58 Royal Commission on the Maori Land Courts, no 24, Russell, 1980, COM 48 Box 2, pp 14-15, NA Wellington " 1990 Chief Judge's minute book, 4 July 1990, fol 86, Waiariki Maori Land Court
18 the file may run to 2070 and most probably beyond the life expectancy of the applicant. 60
He further went on to observe that the owners could in reality have been little interested in their land, given the length oftime it had taken them to bring the action:
As the lease was entered into in 1972 there has no doubt been a good deal of activity taking place in connection with these lands and I would be surprised if there has not been a series of annual meetings and reports and activities on local Marae near the land which relate to the operation of this large Section 438 Trust. I cannot believe that the owners ofWaione C2D Block could not have been aware of the fact that their block was included in the scheme. Ifthey were not so aware then it speaks little for their interest in the welfare of their land that they have not taken some action before now in enquiring into what has taken place.61
Other landowners chose not to be included in the amalgamation in the first place. The owners ofHaumingi 18, for instance, (itself an amalgamation of several subdivisions, including Haumingi 5B and Haumingi 12) did not participate in the scheme. Looking at the map showing the subdivisions contributing to Rotoiti 14 (map 2), one would logically expect these 289 hectares to have been amalgamated along with the other lands, yet they remain a separate island in the middle. The records consulted are silent on the reasons for this, yet the owners clearly chose not to become part of Rotoiti 14, and the subdivisions now forming Haumingi 18 were not included in the schedule oflands attached to the application.62
The owners ofWaione B2B5 and Waione C4, for their part, specifically requested that part of their lands be excluded from the amalgamation. In the case ofWaione B2B5, they clearly indicated that this was because they wished to retain the option ofliving on their land.63
In sum, although a large number of owners in the area may indeed have been in favour of amalgamation, there are indications that support for the proposal, as conveyed by the phrase
60 1990 Chief Judge's minute book, 4 July 1990, fol 88, Waiariki Maori Land Court 61 1990 Chief Judge's minute book, 4 July 1990, fol 89, Waiariki Maori Land Court 62 Notice of application, dated 19 January 1970, Rotoiti court correspondence file, vol 3, Waiariki Maori Land Court 63 Rotorua Maori Land Court minute book 150, 17 March 1970, fol240
19 'no Maori owner is in opposition to the general nature of the relief sought', might be slightly overstated. It seems that, despite the much-vaunted economic advantages of amalgamation, there may have been those who perhaps wished to retain a more immediate control of, and relationship with, their individual subdivisions.
4.2 The creation ofRotoiti 15 Simultaneously with the creation of Rotoiti 14, and the Rotoiti 14 Trust, the Court made provision for the Responsible Trustee 'if so approached by H.M. the Queen (Lands and Survey Department)' to conclude an exchange 'of anyone or more of the lands in the second schedule hereto' for lands offered by the Crown. 64 The lands in the second schedule were all those parts of Rotoiti 14 which bordered the eastern side ofthe Okataina Scenic Reserve.
The terms of the Rotoiti 14 Trust will be examined in more detail in section 5.1, but it should be noted here that the 'Responsible Trustee' was the Trust Department of the New Zealand Insurance Company. There were also twelve Advisory Trustees who appear to have been drawn from among the owners. However, there was no statutory obligation to consult them and the extent of their influence in decision-making is not clear from the records.
A memorandum dated 20 February 1970, written by the Commissioner of Crown Lands, indicates that an approach from the Crown, concerning the acquisition of the lands in schedule two, had in fact already been made. It notes that, by mid-1967, the Lands and Survey Department had received representations from both the Forest and Bird Protection Society and the owners of the Okataina Tourist Lodge about 'the preservation of scenery on the lakes'. The Commissioner then clearly states that 'the first formal approach to the Maori owners was made in November 1968', when the Rotoiti Riding Land Committee was advised ofthe Crown's wish to extend the Scenic Reserve bordering Lake Okataina.65
The Land Court minutes likewise record that the Crown had indicated, two weeks prior to the amalgamation hearing for Rotoiti 14, that it wanted to obtain these listed lands 'for public
64 Rotorua Maori Land Court minute book 150, 17 March 1970, fo1244, 246 65 Turley to Hamilton Office [Lands and Survey Department], 20 February 1970, MAl Box 332 19/1/4 pt 6, NA Wellington. (Note: On map 4, at the end of this research report, the Scenic Reserve is the narrow strip running between Lake Okataina and the two marked land blocks.)
20 purposes as a Scenic Reserve, by acquisition of the fee simple' .66 However, the owners made it plain that they were not interested in selling:
The leading owners flatly refused [to sell] saying that the owners in general were completely opposed to any disposition of the fee simple, particularly for reserves. They reminded [the Deputy Registrar of the Maori Land Court] that it is on record in Lands Department that Ngati-Pikiao and the sub-tribes owning the lands surrounding Rotoiti, Okataina and adjoining lakes would not be asked for further reserves because of the generous donations for reserves made in earlier years.67
The Commissioner of Crown Lands therefore instructed that all other possible means of acquisition be investigated:
it would be advantageous for the Crown's attitude to be made known to the Court when the Trustee order is being considered, and at the same time for all available avenues of possible acquisition to be known to the Department's officers attending the hearing.68
Thus, when the Rotoiti 14 case came before the Court, the Department of Lands and Survey, on behalf of the Crown, filed a notice requesting that the proposed terms of the Trust be amended to allow for an exchange of lands. It asserted that 'the exchange of Crown land for lands of the trust could be beneficial to the Maori owners as being more suitable for afforestation purposes'. However, the Counsel appearing for the Department of Lands and Survey was able to give no indication what Crown lands might be offered (and thus, presunnably, to indicate in precisely what way they might be more suitable for forestry):
Counsel appearing in support of the amended Notice, not having been instructed on the point, was unable to inform the Court what Crown lands might be available for exchange or even their locality.6'
66 Rotorua Maori Land Court minute book 150, 17 March 1970, fol 240, 242 67 Martin to Chief Surveyor, 12 February 1970, MAl Box 3321911/4 pt 6, NA Wellington 68 Turley to Hamilton Office [Lands and Survey Department], 20 February 1970, MA I Box 332 19/1/4 pt 6, NA Wellington 69 Rotorua Maori Land Court minute book 150, 17 March 1970, fols 240, 242
21 In the event, the Judge decided that 'there will be inserted in the Trust Order a term generally along the lines suggested by counsel for the Lands Department', but he also stipulated that negotiations for any such exchange oflands must be concluded by 30 November 1970, 'time being strictly of the essence' 70
Further negotiations evidently did ensue between the Responsible Trustee and the Crown. Barely a year after the creation of Rotoiti 14, all the listed lands bordering the Okataina Scenic Reserve to the east (comprising some 2670 acres), plus all of Okataina 12 to the west and north of the Reserve (another 5282 acres), were transferred to the Crown (see maps 4 and 5).
In exchange, the owners of Okataina 12 and Rotoiti 14 were given Ruawahia I 0 (otherwise known as Matakite or, now more commonly, the Makatiti Dome), and Matahina 10 (see map 5). Under a new order issued on 19 July 1971, these two areas, totalling some 7000 acres, were amalgamated with the remainder of Rotoiti 14, and Rotoiti 15 came into being. The exchange thus appears to have resulted in a loss of some 900 acres on the part of the owners.
The Rotoiti 15 Trust was formed on the same date, and vested in the New Zealand Insurance Company as Responsible Trustee, under section 438 of the Maori Affairs Act 1953. 71 As had earlier been the case with Rotoiti 14, it was again the Responsible Trustee who had effective control of the affairs of the Trust - again with no statutory obligation to consult the Advisory Trustees.
As far as can be ascertained, there was no dissent to the creation ofthe Rotoiti 15 block, although it should be noted that only ten owners were present in the Court for the hearing. As for the Judge, his opinion was that 'the relief sought is clearly in the interests of all concerned
and the protagonists are to be congratulated on their bargain' 72
At this juncture, it is worth exploring what those interests were.
70 Rotorua Maori Land Court minute book 150, 17 March 1970, fols 242, 244, 246 71 The New Zealand Insurance Company subsequently became New Zealand Guardian Trust. However, because it is the nature and terms of the various trusts which are at issue in this report, not the identity of the Responsible Trustee, future reference will usually be to 'the insurance company', and not to either specific name. 72 Rotorua Maori Land Court minute book 158, 19 July 1971, fol 158
22 Looking at maps 4 and 5, it can be seen that the Tasman Pulp and Paper Company which would lease Rotoiti 15, and which was already exploiting the Tarawera Forest, acquired a much more compact area of operations by adding Makatiti Dome and the former Matahina 10, than it would have done ifthe afforestation area stretched westward into Okataina 12. With its processing plant being situated at Kawerau, the new block configuration was patently more convenient for Tasman, who would thus stand to improve profits by trimming costs.73
The Crown, likewise, was able to add substantially to the Okataina Scenic Reserve under the new arrangement, satisfying lobby groups such as the Forest and Bird Protection Society and the tourism sector. And one could argue a further, if indirect, benefit to the Crown from the likely increased profit to the forestry company. In effect, the bigger and more successful the forestry company, the more the Government stood to increase its tax revenue, and also to reap a benefit from the shares it owned in the company.
The benefit to the owners of the former Okataina 12 and Rotoiti 14, however, is not as immediately obvious. As indicated above, their land area had diminished by some 900 acres under the new arrangement. Any benefit, therefore, must presumably have rested largely in the terms of the lease. This document will be discussed in greater detail in the section that examines returns to owners (section 9), but the essential points are that it provided for a flat rental to the owners for the first 18 years and thereafter a rental plus a percentage of the gross stumpage on any logs harvested.74 One assumes that the exchange oflands did not result in any potential increase in the flat rental, given that a smaller area of land was involved. The only possibility for higher income, therefore, was if the exchange land could give a higher stumpage yield than the land lost - bearing in mind, however, that any such benefit would not begin to accrue to the owners until at least 18 years later. From correspondence on file, there is indeed evidence that the forestry company had been intending to plant only a small part of the 2670 acres on the eastern side of Lake Okataina - that is, the land that the Crown wanted for scenic reserve.75 To this extent, therefore, it may have been beneficial to the owners to
73 The forestry company underwent several changes of identity and is cited variously in the source documentation as Tasman Pulp and Paper, Tasman Forestry, and Fletcher Challenge Forests. To avoid confusion, it will be referred to in this report simply as 'the forestry company'. 74 'Stumpage' is money paid by the forestry company as a percentage of its profits, after all costs have been deducted, on any logs harvested. Owners can opt for a flat rental, stumpage, or a combination of the two. 75 HP Martin (Deputy Registrar, Rotorua) to Chief Surveyor, 13 February 1970, MAl Box 33219/1/4 pt 6, NA Wellington
23 obtain other land it could lease out instead. However, no information has been located on the relative merits of the remaining areas ofland involved, and the matter may warrant further investigation.
It must further be borne in mind that there may even have been a degree of detriment to the owners. Of concern is the scattering of the new Trust's landholding. While the arrangements concluded in the creation of Rotoiti 15 may have consolidated the forestry company's interests into a more compact geographic area, they did not consolidate the owners' interests in a similar fashion - a point that will be further examined in the section on fragmentation of title (section 6). Furthermore, while the Crown gained a bigger scenic reserve and consolidated its landholding into one block, the owners of Okataina 12, in particular, appear to have lost part of their tribal patrimony. This possible loss of traditional lands will resurface later, in the section dealing with issues of control (section 11).76
5. Terms of the Trusts At this point it is perhaps appropriate to examine the terms of the various orders under which the Rotoiti 14 and 15 Trusts have operated.
5.1 The Rotoiti 14 Trust Orders As noted earlier, the Rotoiti 14 Trust was set up under section 438 ofthe 1953 Maori Affairs Act. Two orders were involved. The first, under clause 1 of that section, vested Rotoiti 14 in the Trust Department of the New Zealand Insurance Company as Responsible Trustee, and named 12 individuals as Advisory Trustees -the latter all being owners, and predominantly Ngati Pikiao.77 The second, under clause 5 of the same section, described the terms of the Trust. These terms make it clear that the Responsible Trustee was regarded as the prime decision-maker. The order states, for example:
The revenues derived from the operations of the trust by the responsible trustee may be applied in furtherance of the objects of the trust or otherwise in
76 The records consulted have revealed little about the views of the Responsible Trustee, the Advisory Trustees or the owners themselves with respect to this exchange of land with the Crown. It is a point that would perhaps merit further exploration via oral evidence at hearings. 77 Discussion with RWJ Gray, II September 2001
24 defraying the cost of the administration of the affairs of the trust.78 [Emphasis added]
There is no indication of the precise role expected of the Advisory Trustees, nor of the Responsible Trustee's duties towards them. In contrast to this, fourteen clauses are devoted to provisions for their appointment and retirement. Many of these clauses underline the Court's ultimate control of the process. For example, there are provisions for the Court to veto the appointment of any Advisory Trustee elected by the beneficial owners, provided sufficient cause can be shown, or to appoint a qualified person to the position 'notwithstanding that that person has not been elected'. The Court also had the power to remove any Advisory Trustee from office, if it saw fit to do so. Also of note is the clause specifying that there was no requirement for an Advisory Trustee to be a beneficial owner.79
In sum, the controlling powers in the Rotoiti 14 Trust were effectively the Maori Land Court and the Responsible Trustee. (There will be further consideration of the general issue of control in section 11 ofthis report.)
The main purpose of the Trust was to 'utilize exploit and manage the land vested in the responsible trustee and to that end to do all or any of the things which it would be entitled to do ifit were the beneficial owner of the land'.so This did not include selling. Rather, the attention ofthe Responsible Trustee was specifically directed towards forestry contracts:
the responsible trustee may enter into such contracts as shall in its opinion be necessary or desirable in the interests of the beneficiaries including the power to use the land or any part or parts thereoffor the growing of timber, to engage in the felling and marketing of timber, to establish and carry on timber mills, to grant licenses to cut and remove timber, or to engage in any other operations by itself or in conjunction with any other person or persons upon such terms covenants conditions and restrictions as the responsible trustee may deem meet for the production, utilization, or sale of timber or timber products~1
78 Rotorna Maori Land Court minute book 150, 17 March 1970, fo1 246 79 Rotorna Maori Land Court minute book 150, 17 March 1970, fo1s 250, 252 80 Rotorna Maori Land Court minute book 150, 17 March 1970, fo1244 81 Rotorna Maori Land Court minute book 150, 17 March 1970, fo1246
25 Any revenue was to be 'applied in furtherance of the objects of the trust' or directed towards defraying rates and administrative costs. Approved uses of funds included buying or leasing land, and paying dividends to beneficial owners or 'such other persons as may legally be entitled thereto'. A further clause permitted, in certain circumstances, investment in securities. It allowed:
If expressly authorised so to do by resolution passed at a general meeting of the beneficial owners, the investment in or purchase of any securities in which trust funds may be invested by trustees in accordance with the Trustee Act 1956 or in accordance with any other Statutory authority."
However, loans to beneficial owners or other individuals were specifically excluded.
Audited accounts were to be submitted annually to a General Meeting of beneficial owners, and also to the Land Court. The intention was obviously that the Land Court should monitor the performance of the Responsible Trustee, but there is no written evidence, at least during the life of the Rotoiti 14 Trust, to show how thoroughly such monitoring was carried out.
All General Meetings were to be called by the Responsible Trustee in such a manner as to 'clearly bring to the notice of all beneficiaries the extent and substance of all matters and business to be discussed and attended to'. The quorum for such meetings was to be 20 beneficial owners, although there was provision for that number to be varied by the Court. (This was in line with the provisions set for Incorporations in the 1953 legislation, which stated that, unless otherwise stipulated by the Court, a quorum should be regarded as either 83 20 people or two-thirds of the total number of members, whichever was the less. ) These beneficial owners were to be personally present throughout the meeting, but voting by proxy was also permitted, as long as the proxy were not an advisory trustee or a person nominated for that role.
The Responsible Trustee was also charged with maintaining a roll of beneficial owners.
82 Rotorua Maori Land Court minute book 150, 17 March 1970, fols 246, 248 83 Maori Affairs Act 1953, section 300 (8)
26 5.2 The Rotoiti 15 Trust Orders The Rotoiti 14 Trust orders were terminated on 19 July 1971, and new orders for Rotoiti 15 were substituted on the same date. The terms of the new orders were exactly the same as those they replaced, except for the addition of a provision giving 'power to acquire shares of Maori Trustee for benefit ofthe general body of owners', so that the Trust could buy back shares that had been compulsorily acquired by the Maori Trustee.84
These terms remained basically unchanged until 3 September 1984 when the clause concerning investment was amended to permit investment in Maori International Limited, a company launched by Maori to promote Maori-owned enterprise, particularly in the tourism sector and particulary in rural areas. 85 Following a resolution in favour ofthe investment, passed by the owners at the Trust's annual general meeting the previous month, an order was made authorising the Responsible Trustee 'to invest up to $20,000 or such additional sum as the beneficial owners may at any future date resolve to invest in Maori International Limited' .86 (As an example of the type of benefit the Rotoiti 15 trustees may have hoped to derive from their investment - over and above any dividend - a 1987 report from the Director of Maori International mentions the impending completion of a campervan site at Rotoiti, under the auspices ofTe Maori Kohanga, one of the company's subsidiaries.)87
Then, in February 1989, several Ngati Pikiao Trusts, including Rotoiti 15, approached the Court to have their Trust deeds varied so that they could invest in the Okawa Bay Complex, a venture being launched by the owners of the Mourea Papakainga 3D block in an endeavour to hold on to their land. As the judge noted at the time:
We have a situation, as I see it, where the equity that the owners of Moure a Papakainga 3D have in the land is somewhat intangible. They are the owners of the land, the land is heavily encnmbered and it appears that only with the assistance ofNgati Pikiao in the wider sense will they continue to own the land.
84 Rotorua Maori Land Court minute book 158, 19 July 1971, fol 158 85 Latimer, Graham, 'Directors Report to the Members of Maori International Holdings Limited', 16 September 1987, P 2 [filed as Annual report (Maori International Holdings) 1986-87 in the Serials Collection of the National Library, Wellington] 86 Rotorua Maori Land Court minute book 210, 3 September 1984, fol 368 87 Latimer, Graham, 'Directors Report to the Members of Maori International Holdings Limited', 16 September 1987, p 2
27 IfNgati Pikiao does not come to the party, it appears as though the present owners will end up not owning anything I think.88
The plan was that the Trusts be allowed to invest directly in the venture, or to offer a proportion of their future forestry income as security for bridging finance, pending the identification of a long-term investor. Judge Hingston approved the idea and agreed to vary the Trusts, noting that 'not many iwi have a chance that Ngati Pikiao has got to effectively bailout one of their own hapu who have been unfortunate in the commercial world'. Nevertheless, he also noted that he was not instructing the Trusts to invest in the venture, but merely empowering them to do so if they wished. 89 Support for the idea was strong among those Rotoiti 15 owners who voiced an opinion at the February hearing. However, no Rotoiti 15 Trust minutes or accounts have been located for 1989 or 1990 so it has not been possible to establish what further action was taken, if any. If any such investment was made it must have been short-term only, as Okawa Bay does not feature among investments held by the Rotoiti 15 Trust in 1996.90
The next hearing involving the terms of Rotoiti 15's Trust deed was in December 1991, when it was indicated that the New Zealand Guardian Trust (formerly New Zealand Insurance Company) would be 'prepared to step down' as Responsible Trustee. Its trusteeship would be terminated as at 1 November 1992, and the land vested 'in the persons beneficially entitled'. The Court minutes do not give any background on the reason for the proposed change, but they note that new trustees were to be decided upon at the Trust's next annual general meeting and that appropriate orders would then be made. 91 (There will be further discussion ofthe circumstances surrounding this change of trusteeship later in the report, in sections 9 and 11.) In the event, the new Trust order was made on 7 October 1992 and five Responsible Trustees were appointed from among the shareholders, as approved by the beneficial owners at their annual general meeting.
The objects of the Trust were now identified as being:
88 Rotorua Maori Land Court minute book 224,9 February 1989, fo145 89 Rotorua Maori Land Court minute book 224,9 February 1989, fols 51,36 90 Rotoiti 15: Trust Annual Reports and Financial Statements/or the Year Ended 31 March 1996, p 13, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua 91 Rotorua Maori Land Court minute book 230, 2 December 1991, fols 72-73
28 to provide for the use management and alienation of the land to best advantage of the beneficial owners or the better habitation or use by beneficial owners, to ensure the retention ofthe land for the present Maori beneficial owners as a family group or groups, and to represent the beneficial owners on all matters relating to the land and to the use and enjoyment of the facilities associated therewith:'
To this end, they could buy or lease land 'by any ... means as shall ensure that the land so acquired can be vested in the appropriate beneficiaries as Maori freehold land and be made subject to the trusts thereof. They were also empowered to subdivide the Trust's land so as to allocate portions, if desired, amongst the owners 'in accordance with their entitlement'. Other clauses allowed them to improve the land, promote title improvement projects, farm it themselves (with or without farms managers), borrow money, employ staff or advisers, or even lend money on first or second mortgage. The deed also made provision for beneficial owners to 'personally occupy use or otherwise enjoy' any part of the land, or lease part of the land to any owner, or to his or her blood relative, at a below-market rent.
Certainly, many of these provisions required approval by resolution at a meeting of beneficial owners, but it nevertheless gave the trustees, and owners, a much wider range of options than had been allowed under previous Trust orders.
As regards income, the trustees could distribute to beneficial owners the whole of any net profits, in proportion to shares held, or 'retain in an accumulated profit account any portion of the profits which the Trustees think it prudent not to distribute to the beneficial owners'. Where an owner's dividend would be less than a set minimum distribution figure, 'being not more than the sum of $1 0', the trustees were authorised to withhold that person's money and pay it into an account to be known as a putea account. In that event, the trustees were also to deduct a sum equal to the minimum distribution figure from the amount paid to all those owners who were over the threshold. In the case of owners for whom no current address was held, their dividends were likewise to be paid into the putea account.
Moneys in the putea account could be invested 'in any manner in which the Trustees may effect investments by this Trust order'. This included the furtherance of any of the objects of
92 Trust Order dated 7 October 1992, file 45/1520, vol I, Waiariki Maori Land Court
29 the Trust; assistance to the elderly or needy amongst the shareholders or their descendants; assistance, likewise, with tangi expenses; educational grants or scholarships; or assistance with marae or tribal projects 'where in the opinion of the Trustees there is a sufficient connection between the beneficial owners or any section of them and the particular marae or tribal project'. Again this gave a wider range of options than before. A further clause stated that the trustees could establish a Council of Elders or Whanau Representatives to 'express a view on the application of any moneys for any of the aforesaid purposes' .
As before, accounts were required to be submitted annually. In addition, any Trustee could be required to file a written report to the Maori Land Court at any time, on any matter relating to the Trust. General meetings of beneficial owners were to be held at least once every three years, and the quorum for a meeting was again set at 20 beneficial owners, who were to be personally present throughout.
It might be noted here that, although 20 beneficial owners appears to have been the standard number provided for in the legislation regarding Maori corporate bodies, it does seem very low, given the large number of shareholders on the Rotoiti 15 Trust's list.93 However, there is no evidence that either the Court or the beneficial owners sought to have the number increased.
5.3 Post-1993, under Te Ture Whenua Maori Act In April 1994, a letter was sent out advising trustees that, because of 'rather extensive changes' to Maori land legislation, all trusts constituted under section 438 of the Maori Affairs Act 1953 were to apply to the Land Court for a review. Attached to the letter was a schedule which particularly drew trustees' attention to the new provisions allowing income to be applied to 'Maori community purposes' , such as the promotion of health, social, cultural and economic welfare, and to 'charitable purposes'. Also specifically mentioned were clauses requiring regular reviews of the Trust order and permitting trustees to act by majority - although any modification here was presumably in detail only, as neither requirement was
new in itself. 94
93 The provisions in the Rotoiti 15 Trust order appear to be modelled on section 300 (8) of the Maori Affairs Act 1953, which related to the quorum required for general meetings of owners in Incorporations. The Maori Affairs Amendment Act 1967 made no modification to this clause of the legislation. 94 Draft letter, Registrar to trustees, 7 April 1994, ref 8/240, file 4511520 vol I, Waiariki Maori Land Court
30 Presumably as a result of this letter, an application for a review of the Rotoiti 15 Trust was duly lodged with the Waiariki Land Court by the Trust's chartered accountant. At the review hearing, in August 1996, it was indicated that the trustees sought amendments to the Trust order, clarifying the Trust's powers to invest unclaimed dividends. The only other adjustment requested was for the Trust to be reviewed every ten years (compared with the previous Trust order, which had stipulated a review after five years, and the maximum interval allowable under Te Ture Whenua Maori, which was 20 years).95 The Court itself apparently saw no need to order any additional amendments. The new Trust order issued on that same date therefore confirmed virtually all the terms of the previous Trust, and set the next review date as 8 August 2006. Among the few modifications introduced were:
• the addition of a clause indicating the necessity of declaring that income was held as a charitable trust; • a clause permitting the erection of dwellings by beneficial owners without the need to partition their interests; • provision for Trustees' meeting fees to be increased; and
• a clause on investment.
This last clause permitted the trustees to:
invest Trust surplus funds including funds held as unclaimed dividends in furtherance ofthe objects of the Trust provided that the investment of unclaimed dividends funds is to be held separate from general Trust funds and the income is disbursed for charitable purposes only?6
A final clause declared that the whole or any part of Trust income could be applied to Maori community purposes, in accordance with section 218 ofTe Ture Whenua Maori Act 1993. (This latter specified a range of community purposes of a type sununarised by the earlier letter to the trustees.) The clause replaced one in the previous order which had covered the operation of the putea account.
95 Rotorua Maori Land Court minute book 244, 8 August 1996, fol 224; Trust Order dated 7 October 1992, p6, file 4511520 vol I, Waiariki Maori Land Court; Te Ture Whenua Maori 1993, section 351 96 Trust Order dated 8 August 1996, file 4511520, vol 1, Waiariki Maori Land Court
31 This 1996 Trust order remained in place until December 2000 when a new order was issued. The latest order is, however, virtually identical except that it provides for seven trustees rather than five.
6 Fragmentation of title As indicated earlier, when Rotoiti 15 came into being it was made up of Ruawahia JO (around 4210 acres), Matahina 10 (around 2790 acres), and some 13,760 acres ofRotoiti 14. It thus contained some 20,760 acres (or about 8400 hectares). This was approximately 900 acres less than the owners' former holdings in Rotoiti 14 and Okataina 12, and their holdings were now split between two geographically disparate locations. Although both areas formed part of the same title, this geographic dispersal meant their land had effectively become fragmented.
The situation has since been exacerbated by a further exchange of lands. Since July 1983, the Makatiti Dome area has been leased to the Crown for reserve purposes, in return for the Crown leasing the Rerewhakaaitu block to the Trust for forestry purposes (see map 6).97 That this further exchange was at the instigation of the Crown, and not of the Maori owners, is evident from a letter written by the Director General of the Department of Lands and Survey to the Minister of Lands. He stated:
the Department has sought 2470 ha of Maori land (Makatiti Dome) for reserve purposes. To equate[,J the Department has offered 2491 ha of Crown land
(Rerewhakaaitu) to the Maoris in exchange. 98
Furthermore, it is evident that the Crown had in fact endeavoured, unsuccessfully, to obtain the outright freehold of the land, because he wrote: 'the Maori owners would not agree to a freehold exchange and the exchange of leases is the most satisfactory compromise'. This refusal to enter into a freehold exchange suggests dissatisfaction, at least in retrospect, with the earlier deal that had led to the loss of Okataina 12 and parts of Rotoiti 14 in 1971.
97 Rotoiti 15 Trust: Annual Reports and Financial Statements for the Year ended 31 March 1997, p 9, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua 98 Letter from Director General of Department of Lands and Survey to Minister of Lands, 27 October 1982, Rerewhakaaitu court correspondence file, Waiariki Maori Land Court
32 The owners were also insistent upon having representation on some sort of governing or advisory body, to maintain an involvement with the leased land, and drew a parallel with the Scenic Reserve Boards at Rotoiti and Okataina. In response to this, the Director General noted that 'subject to further negotiation a Committee to advise the Commissioner may be acceptable to the owners'.
Once an exchange of leases had been achieved by the Crown, the land area managed by the Rotoiti 15 Trust became divided between three locations - the two most southerly areas being some 15 kilometres distant from each other, and lying about 30 to 35 kilometres from the main part of the Rotoiti 15 block.
As long as all three areas continue to be exploited by a forestry company which also exploits the area connecting them, this situation may not be a problem. However, should the forestry company not renew all or part of its lease, or should the owners of Rotoiti 15 ever be in a position where they need to use the lands themselves, the situation could be much less viable - even allowing for a possible termination of the cross-leasing arrangements with the Crown.
Indeed, it is difficult to see how the advantages of a 'compact single area' , so lauded by the Court during the creation of Rotoiti 14,99 could have weighed so lightly with it only a few years later. The interests of the owners of the former Rotoiti 14 and Okataina 12 blocks are now spread over some 875 square kilometres. Furthermore, nearly halfthe area currently managed under the Trust is not the shareholders' original land. 100
7 Fragmentation of ownership As noted in the report of the Royal Commission on the Maori Land Courts (1980):
Fragmentation of interests in Maori land had never worried Maoris before the coming of Europeans. All land was tribally held without any individual
ownership, and was acquired by occupation, conquest, or gift. 101
99 Rotorua Maori Land Court minute book 150, 17 March 1970, fol 240 100 Whether it is their customary land is a different matter, and one which may need further investigation during hearing. 101 'The Maori Land Courts: Report of the Royal Commission of Inquiry', 1980, AJHR, H-3, P 29
33 However, with the introduction of individualis at ion of title and laws governing succession, the picture changed:
the number of owners in a block of land normally increased rapidly. The individual shares become smaller and smaller. This process of fragmentation has inevitably brought about serious consequences for the administrative management and economic utilisation oflands for the benefit of the owners!02
At the time of its creation, the Rotoiti 15 block had 5377 owners. The current Maori Land Court list records some 5500 owners, but this figure is widely acknowledged to be out of date by a considerable margin: numerous succession orders have been made by the Court, but the work of entering successors on the list of shareholders lags far behind. The list held by Hulton Patchell Chartered Accountants (the Trust's registered office in Rotorua), would appear to be considerably more reliable. It does take into account many ofthe succession orders, and shows over 8720 owners. 103 That represents an increase of 62.25 percent in the 30 years of the Trust's existence. 104
However, the increase in sheer number is not the only factor to be considered. Some account also needs to be taken of the pattern of shareholding among these owners.
An analysis of the size of individual shareholdings shows that, at one extreme, there are currently 26 owners with holdings of more than 500 shares each (of whom seven hold more than 1000 shares). With a total holding of over 31,000 shares between them, these 26 owners control nearly 16 percent of the shares.
At the other extreme, 250 owners have less than one-hundredth of a share each (with seven of these not even managing one-thousandth of a share). Perhaps the most significant figure, however, is that 13.33 percent, or more than one in eight, of the total number of owners now hold less than one-tenth of a share. As Judge Russell noted in his submission to the Royal
102 'The Maori Land Courts: Report of the Royal Commission of Inquiry', 1980, AJHR, H-3, P 29 103 The Maori Land Court list is dated 20 September 2000 and the Hulton Patchell list 10 January 200 I. 104 Two comments need to be made in connection with the most recent lists of owners. Firstly, both lists appear to contain significant duplication of names. This means that the true number of individual shareholders may be smaller. However, it should also be noted that there is an increasing tendency towards the amalgamation of shareholdings into family trusts. In such cases, one listed name may represent the interests of many unnamed individuals. Thus, to a certain extent, the two phenomena cancel each other out.
34 Commission on the Maori Land Courts (1980), such owners are unlikely to feel they have any real control over their lands:
Under tribal ownership the tribe controlled its own land. While the original owners were few in number and lived in the same locality they might still have had some measure of control.
As the number of owners increased, and particularly after the post World War II migration of Maori people to the cities the owners lost such practical control over their lands. 'os
The data on absentee ownership (see section 8) further support this contention with regard to Rotoiti 15.
Judge Russell goes on to assert that 'the only effective way in which their land can be
continuously administered is to have it vested in trustees or to form a Maori incorporation' .106 However, as will be seen (at the end of section 8), this practical solution to the problem of management is not likely lead to any greater sense of involvement and control on the part of many of the owners. Nor does it solve many administrative problems. Among those that come first to mind are keeping the list of owners up to date, and issues of notification such as those raised earlier in this report. As the chairperson of the Rotoiti 15 Trust commented in his 1996 annual report:
Currently the number of shareholders in Rotoiti 15 is in excess of 8,000 many of whom hold very small shares. If this shareholding continues to increase, it
will become an administrative nightmare. 107
By the same token, however, the Rotoiti 15 trustees recognised the necessity of developing a strategy to increase successions in order to try and reduce the level of unclaimed dividends - the reason being that, if an owner dies and his or her shareholding has no successor, the money simply remains in the putea fund. The question of unclaimed dividends will be
105 Royal Commission on the Maori Land Courts, no 24, Russell, 1980, COM 48 Box 2, P 12, NA Wellington 106 Royal Commission on the Maori Land Courts, no 24, Russell, 1980, COM 48 Box 2, P 13, NA Wellington 107 Rotoiti 15 Trust: Annual Reports and Financial Statements for the Year Ended 31 March 1996, p 14, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua
35 discussed further in section 10, but at issue here is the tension between individualised ownership and practicality. If individual ownership and equal succession rights of all descendants are taken to their logical conclusion then administration becomes unworkable through sheer weight of numbers.
7.1 Small and uneconomic interests In an effort to overcome the problems introduced by individualisation of title and the laws on succession, the Government has, over the years, tried various strategies for dealing with small and uneconomic interests. As mentioned earlier, the 1953 legislation introduced a scheme of compulsory conversion, whereby shareholdings worth less than £25 were compulsorily acquired by the Maori Trustee. Although these shares were held in a common pool, and income from them was made available for 'various Maori purposes as provided for under the Maori Trustee Act 1953,108, it was not a popular scheme with Maori. Thus, on being advised in July 1972, at their first annual general meeting, that the Maori Trustee held 3579.68 shares in various ofRotoiti 15's constituent blocks (being around 1.81 percent of the total shareholding), the assembled owners passed a resolution that every effort should be made to buy them back.109 Correspondence on file at the Waiariki Maori Land Court indicates that the shares in question had been acquired by the Maori Trustee prior to the amalgamation proceedings for Rotoiti 15, probably by compulsory conversion, at a price of around $1 each. 110
However, it was not a straightforward matter for the Trust to regain control of these shares. A letter from the Trust's manager, two days after the annual general meeting, indicates that he thought 'there could be certain problems to overcome relating to the current legislation before this transaction can be completed' .111 He does not indicate what the anticipated problems were, but there was certainly an issue over price. The original notification on the matter of the shares had apparently indicated that they were' available for purchase by the responsible
lOS Rata to Hingston and Charters, 5 June 1973, Rotoiti court correspondence file, vol 4, Waiariki Maori Land Court 109 Burrell [Rotoiti 15 Trust Manager] to Registrar, Maori Land Court, Rotorua, 4 July 1972, Rotoiti court correspondence file, vol 4, Waiariki Maori Land Court. Note: The figure is elsewhere quoted as 3310.13 shares. (Hingston to Rata, 5 February 1973, Rotoiti court correspondence file, vol 4, Waiariki Maori Land Court) 110 Martin to Schmidt, 29 July 1970, Rotoiti court correspondence file, vol 3, Waiariki Maori Land Court; Hingston to Rata, 5 February 1973, Rotoiti court correspondence file, vol 4, Waiariki Maori Land Court III Burrell to Registrar, Maori Land Court, Rotorua, 4 July 1972, Rotoiti court correspondence file, vol 4, Waiariki Maori Land Court
36 trustee at $1 per share' . 112 The manager had then been informed by the Maori Land Court that this information was incorrect:
'the purchase price for these shares will probably be something in excess of $1 per share. The minimum which they can be sold for is the amount ofthe purchase price plus 10%, this plusage not to exceed $100 in anyone transaction.,113
However, in November 1972 the Maori Trustee advised that the calculation for the price of the shares would be based on the July 1972 Government valuation of the block, and that the price for the shares was now $6,772.32. As the Trust's solicitor pointed out, in a letter of complaint to the Minister of Maori Affairs, this was 'something like $1.89 per share' and represented a profit 'in the nature of $3,000 over and above what was paid out of the Maori
Trustee's funds' . 114 Responding, the Minister of Maori Affairs defended the Maori Trustee, stating that' [The shares1 were purchased with public money and the Maori Trustee is under
an obligation to see that a reasonable price is obtained for them' .115 Despite the Trust's protest, however, an entry in the accounts for the year ending March 1974 indicates that a price in the region of$1.89 was indeed paid in order to regain the shares for the benefit of the Trust.
Another, more recent, strategy to overcome the problem of small and uneconomic shares was introduced by the Ture Whenua Maori Act 1993 that permits the formation of whanau trusts within the main trust. This strategy has had the backing of the Rotoiti 15 trustees in that it reduces the administrative work associated with share fragmentation, but in some respects it merely shifts the problem to the next level. As the booklet put out by Te Puni Kokiri notes:
'It will be prudent for trustees [of whanau trusts1 to keep whakapapa records' 116 - which is to acknowledge that the burden of maintaining a record of interested parties still remains.
112 Burrell to Registrar, Maori Land Court, Rotorua, 4 July 1972, Rotoiti court correspondence file, vol 4, Waiariki Maori Land Court 113 Martin [Deputy Registrar] to Trust Manager, 6 July 1972, Rotoiti court correspondence file, vol4, Waiariki Maori Land Court 114 Hingston to Rata, 5 February 1973, Rotoiti court correspondence file, vol4, Waiariki Maori Land Court 115 Faulkner (for Minister of Maori Affairs) to Hingston, 10 July 1973, Rotoiti court correspondence file, vol 4, Waiariki Maori Land Court 116 Te Ture Whenua Maori AC11993: A Working Guide 10 Ihe Acl, Wellington, Te Puni Kokiri, 1993, p 30
37 Furthermore, the strategy has not yet had as much success as it was hoped. As the chairperson of the Rotoiti 15 Trust observed in his 1996 report:
While the creation ofwhanau trusts is an obvious solution in terms of collectivising shares, for various reasons the uptake by beneficiaries of this option is slower than the build up of fragmented sharesIl7
In passing, it is worth bearing in mind that the fastest-growing hapu are the ones most likely to suffer as shares fragment. If (as seems likely) many small shareholders feel marginalised and lose interest in Trust affairs, and if no generally acceptable way can be found of collectivising their shares, then the hapu that are expanding at the fastest rate risk having less and less involvement and influence in the Trust as their members' individual shareholdings diminish.
8 Absentee ownership In compiling their list of owners, Hulton Patchell have endeavoured to ascertain a postal address for each owner. An analysis of this list has produced the following results:-
Fig.2 Geographic distribution of sbareholders in the Rotoiti 15 Trust, as at Jannary 2001
RotoruafTaupolBayof Plenty area 21%
Other parts of North Island 10%
Address unknown South Island (including deceased)- 1% 66% Overseas 2%
117 Rotoiti /5 Trust: Annual Reports and Financial Statements/or the Year Ended 3/ March 1996, p 14, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua
38 Even allowing that some whose addresses are unknown may in fact reside locally, one can assume that a considerable proportion of shareholders are now absentee owners. I 18 This bears out Judge Durie's comments in his submission to the Royal Commission on the Maori Land Courts:
With the passing of those early Acts [promoting individualisation of title and the awarding of defined shares] it became unnecessary to live on the land to keep warm a claim to an interest in it. The possibility of absentee ownership was first introduced and today, it has become the norm rather than the exception for Maori Land holdings.1l9
More recently, the problem of absentee ownership has also been highlighted in the Waitangi Tribunal report on the Chatham Islands, where it is noted that 'most owners are scattered beyond the wide seas' .120
If one analyses the above figures on geographic location in terms of the number of shares held by each group, a definite pattern emerges. Highest average shareholding, at just over 38 shares a head, rests with the 1811 owners who are listed as having a local address. Some way behind, at an average 30 shares a head, are those who live in other parts ofthe North Island, while owners who live in the South Island average only around 24 shares a head. At a considerable distance behind that, with little more than 16 shares a head, come the 5836 owners for whom no address has been given (or who are deceased).
The sole anomaly is the group of 145 owners living overseas who, at a little over 33 shares a head, are second only to the local group in the size of their average shareholding. This overseas group aside, however, there seems to be a clear correlation between size of shareholding and geographic proximity. Those with small shareholdings are more likely to be geographically remote, or uncontactable due to lack of an address. Those living closer to their tribal lands tend to have, on average, noticeably larger shareholdings.
118 The term 'local' has been interpreted fairly liberally. It covers the area within the boundaries shown on map 7, which is the area described as 'Rotorua/Taupo/Bay of Plenty' in the above chart. Places have been regarded as 'local' if considered close enough to permit attendance at shareholders' meetings without a journey of more than an hour or so by car. II' Royal Commission on the Maori Land Courts, no II, Durie, 1980, COM 48 Box 2, p 17, NA Wellington 120 Waitangi Tribunal, Rekohu: A Report on Moriori and Ngati Mutunga Claims in the Chatham Islands, Wellington, Legislation Direct, 2001, p 287
39 One could argue that this result is fortuitous. Local people and larger shareholders are the two groups most likely to be able and willing to play an active role in the affairs of any entity. Since the two groups tend to coincide in the case ofRotoiti 15, one could argue that decision making is concentrated in the most appropriate sector of the ownership.
On the other hand, this group of owners accounts for only 21 percent of the shareholders, and one needs to take some account ofthe remaining 79 percent. Those who live at greater distances, for example, are not necessarily uninterested in the Trust and its affairs. While the following describes the experience of a Rotoiti lOB owner living in Australia, it may not be atypical of absentee Rotoiti 15 owners. A letter from the owner's daughter, written in 1999, states:
I write on behalf of my father asking for all financial reports since 1970 ..... My Dad has been living in Australia [forl20 yrs and knowledge of the role that the Trustees have seems very complex for him, so he feels left in the dark as to what is involved. '2l
The Rotoiti lOB Trust, while not as large as Rotoiti 15, still has over 1,000 owners and this owner's sense of remoteness from the Trust and its activities is all too evident. It illustrates clearly that, while the formation of a trust may, as Judge Russell suggested, be an effective administrative solution to the problem of managing tribal land, it is not always a satisfying and satisfactory solution for many of the owners. People may become marginalised without wishing it.
Likewise, one needs to take some account of the uncontactable group. Excluding those who are deceased, the remainder are presumably made up of those who are either unaware they are on the list or who have made no effort to supply a current address.
For those owners who are unaware that their names are on the list, the most likely reason is that they have been included on a succession order without their knowledge.
121 S. Cae to [Court Registrar], 23 November 1999, File 45/187, vol 2, Waiariki Maori Land Court
40 Reasons for not supplying a current address may be many and varied. For example, the owners concerned may have a very small shareholding that would yield little economic benefit, and so they take little interest in Trust affairs. Alternatively, they may not realise they have any active role to play and are simply content to be 'in', and named on the list. Yet again, they may not have a strong spiritual link with the lands now administered by the Trust.
An example of the sort of situation that could lead to a lack of spiritual link is provided by the former Okataina 12 block. Not only did the owners ofthis block lose their land in the 1971 exchange with the Crown, when Rotoiti 15 was formed, but some of them appear to have different tribal affiliations from the majority of other Rotoiti 15 owners. McBurney and Loveridge state that in 1885 the original Okataina block was awarded to Ngati Tarawai [TarawhaiJ, but then in 1908 the northern part was awarded to Ngati Pikiao, at a re hearing. I22 The former Okataina 12 block, a subdivision of that large original block, included lands from both sides of this divide and thus had owners from both tribal groupings. The current list of shareholders in the Rotoiti 15 Trust therefore includes owners ofNgati Tarawhai descent who may have no hereditary link with the lands now administered. Further, according to WRJ Gray even the Ngati Pikiao owners have no strong connection with the areas of land that were received from the Crown: both Matahina 10 and Rerewhakaaitu are some distance from the main Pikiao rohe and are more closely linked to Tuhourangi, for example, than to Pikiao. I23 The question of traditional landholding is, however, one on which the author pretends no specialised knowledge and it may merit further investigation via oral examination at hearing.
Of particular significance in terms of the effects of Maori land legislation is the fact that, overall, the uncontactable group has a combined shareholding of a little over 48 percent of the total number of shares and represents around 66 percent of the total number of owners. That is to say, around two-thirds of the owners, holding nearly half the total number of shares, now have no discernible input into the control and management of their land - and it is impossible to know for how many that is by desire, and for how many by accident or lack of knowledge.
122 Peter McBurney and Donald Loveridge, 'Ngati Pikiao Lands ca. 1881-1960: Block Histories', report commissioned by the Waitangi Tribunal, August 1998 (Wai 46 record of inquiry, doc M22), pp 220, 234 123 Discussion with WRJ Gray, 11 September 2001.
41 As regards shareholder attendance at meetings, figures are not easy to find, but attendance at annual general meetings has averaged around 140 for the four years for which figures are available. 124 While this admittedly takes no account of any proxy votes, it nevertheless represents a participation rate of less than two percent. 125 Unless those two percent of participants could be regarded as speaking for a significant proportion of shareholders (for example, because they are whanau heads or hapu leaders), it is difficult to see how decisions taken at such meetings could in any way be regarded as reflecting of the needs of the collective Rotoiti 15 ownership.
9. Returns to owners When Rotoiti 14 was created, the Land Court minutes noted that the previous restricted use of the land could not be blamed on the owners:
At the very outset it is as well to say that there is no evidence that the owners of the land have neglected to farm all or anyone or any combination of the lands or otherwise manage the same with due diligence and [there is no evidence] that in consequence of their neglect the lands have not been used to proper advantagel26
Rather, any difficulties were felt to stem from the poor quality of the land:
the lands are not and never have been capable by ordinary and reasonable standards of being used with advantage for agricultural or pastoral or horticultural purposes. It is clear, on the other hand that their profitable future, happily both in the private and the public interest, lies in their utilization for long-term forestry purposes~27
The same could be said of Rotoiti 15. The lands are largely made up of volcanic ash soils which are cobalt-deficient and unsuitable for most types of agriculture and horticulture. However, such soils have excellent structure for tree root development, offering not only
124 Rotoili 15 Trust: Annual Reports & Statement ofAccounts for the Year Ended 31 March 1994, p 2; file 45/1520, vall, Waiariki Maori Land Court; Rotoili 15 Trust: Annual Reports andjinancial Statementsfor the Year Ended 31 March 1996, p 6, Rotoiti IS Trust file, Hulton Patchell Chartered Accountants, Rotorua; Rotoiti 15 Trust: Annual Reports and Financial Statements for the Year Ended 31 March 1997, p 2, file 4511520, vol I, Waiariki Maori Land Court; Rotoiti 15 Trust: Annual Reports and Financial Statements for the Year Ended 31 March 1998, p 2, Rotoiti IS Trust file, Hulton Patchell Chartered Accountants, Rotorua 125 No information about the extent of proxy voting has been located. 126 Rotorua Maori Land Court minute book 150, 17 March 1970, fol 238 127 Rotorua Maori Land Court minute book 150, 17 March 1970, fol238
42 good drainage but also good moisture retention. The climate of the area is likewise well suited to forestry. In addition, Rotoiti 15 is situated within 100 kilometres of the port of Tauranga, meaning that cartage costs are not excessive.128 Forestry is thus an ideal form of land use for the block, and by far the bulk of money earned by the Trust since 1971 has come from that source. Only a little additional income has come from other forms ofland use such as grazing rights and hunting club levies.
At issue, however, is whether the Trust has been able to maximise the returns on the lands it administers, or whether Government legislation and departmental policies and practices have hampered that.
9.1 Returns from 1971 to 1992 When the Rotoiti 15 Trust was first set up it was vested in New Zealand Insurance Company as Responsible Trustee and, for the next twenty years or so, it was this company that took care of the Trust's financial affairs. According to the statements of accounts, the value of the lands owned by the Trust rose in that time from $40 I ,805 to $6,570,000 - an increase of over 1535 percent. Even discounting the value of improvements, the assets still increased in value by over 1169 percent.129 In the same period, income received from the forest company increased from $11,620 a year to $72,725 a year - an increase of only 525.86 percent. 130
The first lease agreement with the forestry company was signed on 12 July 1972. The lease was deemed to have started on I November 1971 and was to run until 31 October 2070. The owners were to retain hunting and fishing rights on the land, and the agreement provided for an armual rental of$II,620 up until 30 October 1989. This represents a little under 3 percent of Government valuation and seems snrprisingly low. According to a 1962 memorandum to the Secretary of Maori Affairs, 5 percent of valuation was normal in the case of 'agricultural enterprises'. Furthermore, the same memorandum indicates that the New Zealand Forest Service might even be prepared to offer in excess of that figure, to obtain growing rights on suitable Maori land in the Bay of Plenty region. l31 Admittedly the Rotoiti 15 lease was being
128 A recent article in the Dominion (,Plant carefully', 22 March 2001, p 14) states 'The additional cost of cartage between 50km and 150km on current rates is estimated at about $6700 per hectare.' 129 Unimproved values taken from Government valuations for 1989 and 1990, as given on Memorial Schedule, file 4511520, vol 1, Waiariki Maori Land Court 130 Annual reports for Rotoiti 15 Trust, File 45/1520, vol 1, Waiariki Maori Land Court 131 R Law to Secretary of Maori Affairs, 20 August 1962, file MA 58/1 part 1 (Afforestation of Maori land, 1961-1973), NA Welliogton
43 signed some 10 years later, but it seems surprising that the Responsible Trustee could not secure a better rate than 3 percent. There is no indication, however, that the Land Court (which had oversight of the Trust) queried the agreement in any way.
From I November 1989 until 31 October 1991, the agreement provided for a choice. The Trust could continue to receive the same flat rental, or opt to receive stumpage payments as all or part of its income. The minimum gross stumpage value was set at 9.6 percent. After 1 November 1991, the agreement states that annual payments would be based on gross stumpage value, with the minimum rate again being set at 9.6 percent. A further clause indicated that the latter payment would normally be at least $40,000 a year for the first ten years, 'except where losses of forest produce have occurred due to circumstances beyond the control of the lessee'.
Once the agreement had been signed, there was of course little that could be done to alter the terms. However, with the exchange oflands that took place in 1983, new leasing and subleasing agreements were signed, and this might have been an opportunity to re-examine the adequacy of the returns. As the only Trust documents on public record for this whole period appear to be the statements of accounts, there is no way of knowing whether the Responsible Trustee did in fact make any representations to the forest company to try and negotiate a better rate of return. There is nothing on file, either, to indicate that the Maori Land Court showed any concern over the situation. When the new leasing and subleasing agreements were signed, the terms remained unchanged, with total annual rental set at $11,620, and stumpage at a minimum of9.6 percent each year after 1989. 132
133 In 1989, however, the lease and sublease were replaced with two Forestry Rights , which were to run for 55 years from 1 July 1989 to 30 June 2044, with provision for a period of renewal up until 31 October 2070. The basic rent was at last adjusted and, up until 2004, was to be tied to a base fee. That base fee was set at $51,100 for the Rotoiti 15 land and $21,625 for the Rerewhakaaitu block. Thereafter, the rental would be 6 percent of the land value, with a review every five years. Stumpage payments were to remain unchanged at a minimum of
132 Memorandum of Lease and Sublease, Rotoiti IS Trust file, Hulton Patchell Chartered Accountant, Rotorua 133 A Forestry Right effectively creates a joint venture, with the landowner and the investor entering into 'a mutual contract covering any or all of the rights to establish, manage and harvest a forest on the landowner's land'. (Maori Foresliy in Tai Tokerau: Ma Te Rakau e Kakahu Te Koraha, Wellington, Ministry of Forestry and Te Puni Kokiri, 1995, p 24)
44 9.6 percent of gross stumpage value, and the owners continued to retain exclusive hunting and fishing rights. 134
However, in 1989, the combined base fee of $72,725 represented nowhere near 6 percent of unimproved land value and, at least for the years 1991 and 1992, there is no indication of any stumpage or other money being paid. 135 The reasons for this latter situation are not clear as annual repOlis have not been located for 1991 and 1992, but the forest company noted in a later annual report that stumpage returns from immature forests could be very unpredictable:
The stumpage from extraction thinning and pulpwood clearfell is very sensitive to the costs incurred and the sales price achieved. Small movements in either value can drastically alter the amount earned as stumpage.l36
Indeed, the picture for the whole of the period 1971 to 1992 is not good. In its earliest years, the Trust was earning a gross return on its assets of 2.89 percent. By 1992 it was earning only 1.43 percent on the unimproved value of those same assets (or even less - 1.11 percent - if
one relates the income to capital value). I37 Its rate of retum had thus fallen by more than half, and by any standards was not large in the first place.
As noted earlier in section 5, the insurance company had offered, in December 1991, to step down as Responsible Trustee and it was agreed that this should take place in November 1992. In July 1992, however, Judge Hingston, ofthe Maori Land Court in Rotorua, received the Trust's accounts for the year ended 31 March. He immediately issued a direction for a representative of the company to attend Chambers 'to discuss the fact that it is costing
$40,000 to operate the Trust with an income of $87,000, i.e. almost 50%' .138 This compared
with costs of only $26,000 for the previous year. 139 It is not known what explanation the
134 Memorandum of Transfer and Grant of Forestry Right, 24 May[?] 1990, Title Notice no 18848, TN box 148, Waiariki Maori Land Court; Rotoiti 15 Trust: Annual Reports and Financial Statementsfor the Year Ended 31 March 1997, p 9, file 4511520, vol 2, Waiariki Maori Land Court 135 Rental for 1991 and 1992 as shown in Financial Statementsfor the Year Ended 31 March 1992, p I, file 4511520 vall, Waiariki Maori Land Court 136 Rotoiti 15 Trust: Annual Reports & Statements ofAccounts for the Year Ended 31 March 1994, p 17, file 4511520 vol I, Waiariki Maori Land Court 137 Based on Govenunent valuations as given on Memorial schedule and Financial Statements for the Year Ended 31 March 1992, p 6, file 4511520, vall, Waiariki Maori Land Court 138 Waiwai to Cass, 7 August 1992, file 4511520 vol I, Waiariki Maori Land Court 139 Financial Statements for the Year Ended 31 March 1992, p 6, file 4511520, vol I, Waiariki Maori Land Court
45 Responsible Trustee gave for the huge increase but, on 7 October, the Court made a new Trust order and trusteeship was vested in five of the owners themselves. 14o
9.2 Returns after 1992 The new trustees immediately appointed a firm of Rotorua chartered accountants, Hulton Patchell, as a first step towards improving control of the Trust's finances. In his first annual report, in August ofthe following year, the chairperson of the new board of trustees was able to report:
All systems were transferred across from NZ Guardian Trust [formerly New Zealand Insurance 1including a substantial share register of some 6,000 beneficiaries. Despite this and the associated transitional costs, financial/administrative expenditure to date already appears to be some $8,000 less than last year under the previous administrators which in my personal view does not say much for the previous Responsible Trustee.l41
They also took rapid steps to establish a direct relationship with the forestry company and to investigate its' current operations, future markets and the implications for Rotoiti 15'. Although they realised they were bound by the terms of the existing legal agreement, which had been put in place under the trusteeship of the insurance company, they expressed a determination to 'work with it "warts and all" and make the most of any opportunities that arise.' 142 Negotiations were thus begun with the forestry company to set up education grants and increase employment opportunities for shareholders. Other initiatives included the drawing up of protocols for the use of the afforested area by tourist operators. 143
In a wider context, negotiations had evidently been underway with Rotoma and Matawhaura about sharing in the development of a geothermal field that lay under all three blocks, for which Rotoma had already entered into a joint venture arrangement with the Thames Valley
140 File 4511520 vol I, Waiariki Maori Land Court; Rotorua Maori Land Court minute book 232, [0187-89 141 Rotoiti 15 Trust: Annual Reports & Statement ofAccounts for the Year Ended 31 March 1993, p 9, file 45/1520 vol I, Waiariki Maori Land Court 142 Rotoiti 15 Trust: Annual Reports & Statement ofAccountsfor the Year Ended 31 March 1993, p II, file 4511520 vol I, Waiariki Maori Land Court 143 Rotoiti 15 Trust: Annual Reports & Statement ofAccountsfor the Year Ended 31 March 1993, pp 9-10, file 4511520 vol I, Waiariki Maori Land Court; Tasman Forestry Limited Rotoiti Forest Recreational Management Plan, October 1992, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua
46 Power Authority. 144 The trustees also decided an investment portfolio should be started, and $100,000 was put into a joint venture bid for the new Auckland casino. (In the following year's annual report it was noted that the bid failed, but the Trust recouped its investment in full along with the accrued bank interest.)
A fuliher indication that the trustees were determined to see improved returns is the chairperson's statement, in his 1993 report, that:
With respect to the future, the Trustees are adamant that they will need to develop short and longer terms [sic1 plans (3-1 0 years) to reflect a transition from what is still effectively administration oflease monies and minor income of around $100,000 per annum, to investment portfolios of perhaps several million dollars per annum particularly when the first real clear-felling operations commence in approximately 10 years time. This will challenge the Trustees to develop the skill levels necessary to make appropriate business decisions to ensure maximum returns to you as beneficiaries and the protection and responsible development of our assets l45
The ensuing years saw the establishment of management, education, employment and economic development targets, and the development of a 10-year strategic plan. Under this plan, a concerted effort was made to improve the skill-base of shareholders and their families, and three tertiary scholarships were set up jointly with the forestry company. Likewise, several students were sponsored on a solid wood processing course run jointly by the Forestry
Research Institute and the Waiariki Polytechnic. 146
In the area of employment, increased benefits for shareholders were harder to achieve. For example, an effort was made to investigate opportunities for beneficiaries to diversify into wood processing work, as opposed to forestry, and the Trust envisaged that it would
'44 Rotaiti 15 Trust: Annual Reports & Statement ofAccounts for the Year Ended 3 I March 1993, P 11, file 45/1520 vol I, Waiariki Maori Land Court 145 Rotaiti 15 Trust: Annual Reports & Statement ofAccountsfor the Year Ended 31 March 1993, p 12, file 45/1520 vol I, Waiariki Maori Land Court 146 Rotaiti 15 Trust: Annual Reports & Statement ofAccounts for the Year Ended 31 March 1994, pp 9-10, file 45/1520 vol 1, Waiariki Maori Land Court; Rotaiti 15 Trust: Annual Reports and Financial Statements for the Year Ended 31 March 1996, p 12, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua; Rotoiti 15 Trust: Annual Reports and Financial Statements for the Year Ended 31 March 1997, p 15, file 4511520, vol 2, Waiariki Maori Land Court
47 eventually set up its own ventures in this area. However, in 1998, it was not yet in a position to do that. 147 Similarly, although there is occasional mention of access for tourist operators on 48 Trust lands/ there is no indication that this activity was significant in size or scope and the companies involved are unlikely to have represented a huge employment opportunity for Trust shareholders. The main source of employment therefore remained the forestry company, where results since 1992 have been mixed. Although two beneficiaries had reached management or supervisory level by 1998 (compared with none in 1992), a restructuring of the forestry company resulted in numerous contractors being laid off. 149
In other areas, benefits were maintained, with owners retaining their rights to hunt, fish and gather firewood on Trust lands, and to take out ponga and native timber. Benefits realised under the latter provision have included access to some sizeable totara logs, for use in marae construction and renovation. Priority has been given to marae in the Rotoiti Lake area, and no charge has been made by the Trust for the logS.150
Following the negotiations over exploitation of the geothermaI field, mentioned earlier, a legal agreement was signed with the Rotoma Incorporation in 1993. Under the terms ofthis agreement, the Trust was to provide 'access, easement and licence rights for the purposes of the venture and support for all resource consents and applications relating to the geothermal power station development' in return for a 20 percent dividend share. 151 There is no indication, to date, that the agreement has yielded any income, but nor has it been a drain on the Trust's financial resources, and the potential for income still remains.
147 Rotaiti 15 Trust: Annual Reports and Financial Statements for the Year Ended 31 March 1998, p 9, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua 148For example, Rotaiti 15 Trust: Annual Reports & Statement ofAccountsfor the Year Ended 31 March 1993, pp 10-11, file 45/1520 vol I, Waiariki Maori Land Court; Rotoiti 15 Trust: Minutes ofa meeting of Trustees with Tasman Forestry representatives at Tasman Forestry Headquarters Kawerau, 23 June 1993, p 3, file 4511520 vol I, Waiariki Maori Land Court 149 Rotoiti 15 Trust: Annual Reports and Financial Statements for the Year Ended 3 I March 1998, pp 9-10, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua 150 Rotoiti 15 Trust: Annual Reports & Statement ofAccounts for the Year Ended 3 I March 1994, P 14, file 4511520 vol I, Waiariki Maori Land Court; Rotaiti 15 Trust: Annual Reports and Financial Statements for the Year Ended 31 March 1996, pp 8,15, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua 151 Rotoiti 15 Trust: Annual Reports & Statement ofAccountsfor the Year Ended 31 March 1994, p 13, file 4511520 vol I, Waiariki Maori Land Court
48 The Trust was also able to realise some returns on grazing rights, although income from this source has been erratic and has averaged only a little over $2,300 a year in the period from 1993 to 2000. 152
Up until 1999, the main benefit for the owners was, as it had been since the Trust's first creation, the rental received from the forestry company. Annual income from that source rose from $72,725 in the year ended 31 March 1993 to $96,797 in the year ended 31 March 1999. In the following year, ending March 2000, it rose to $97,621. This was the first year when rental income was exceeded by stumpage.
Benefits from stumpage first flowed though in 1993, when thinnings and prunings could start to yield income, and the Trust earned $16,095 from this source in that year. Revenue levels have fluctuated since then, with only $5,707 being earned in the year to 31 March 1997 and nothing at all the following year. 153 However, the year ended 31 March 2000 showed the first really big returns, now that the earliest plantings were starting to mature, and stumpage income for that year was recorded at $265,407. 154
In the years since 1992, maximising returns from stumpage has been a continuing concern of the trustees, and the annual reports show they have been engaged in ongoing negotiations with the forestry company to secure more than the minimum 9.6 percent provided for in the legal agreements. In 1996, for example, the chairperson reported that 'the current 9.7% [sic1 stumpage share while perhaps adequate at the time it was originally negotiated, is well short of what the Trustees believe is a fair and equitable arrangement'. Strategies under investigation include consolidating lease arrangements into a single lease with other forest Trusts in the area, so as to have more bargaining power, and purchasing equity in the forests
themselves. ISS
Overall, in the period 1993 to 2000, revenue from rental and stumpage, combined, has risen (albeit with fluctuations) from $88,820 to $363,028 - an increase of around 308.7 percent. In
152 Figures drawn from annual reports for the period. 153 Rotoiti 15 Trust: Annual Reports and Financial StatementsJor the Year Ended 31 March 1998, p 25, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua 154 Rotoiti 15 Trust: Trustees Report and Financial StatementsJor the Year Ended 31st March 2000, p 10, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua 155 Rotoiti 15 Trust: Annual Reports and Financial Statements Jor the Year Ended 31 March 1998, pp 5, II, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua
49 the same period, the unimproved value of the land has risen from $5,505,000 to $14,005,000 - an increase of 154.41 percent. 156 Admittedly, the high revenue figure for the year ended 31 March 2000 is in large part due to the considerable increase in stumpage during that year, and figures for the intervening years have fluctuated markedly. However, the Trust's gross return on assets in the year to 31 March 2000 stood at 2.59 percent, compared with 1.61 percent in the year ended 31 March 1993. Given that the earliest crops are now maturing, and that stumpage could be expected to continue at a higher level, there is the possibility that this level might now be maintained.
Nevertheless, the Trustees have been aware of the need to diversifY income sources, in order to hedge against the possibility of a downturn in the forestry sector. For some years now, they have therefore been looking at investing some of the Trust's revenue on the share market and as venture capital. To date, results in this area have been very mixed. The Auckland Casino bid failed and, although it did not engender any financial loss, Judge Savage indicated that he thought it had been imprudent:
No external advice was taken other than the blandishments of the promoter ... The trustees relied on their own judgement! That decision was all the more questionable with the sorry history of Maori international still extant [in] the
books of account. I 57
A $75,000 investment in Infratil, made in 1994, was considerably more successful. Infratil or Infastructure and Utilities NZ Limited - is a company with strategic interests in power, port and transport utilities, and the Trust's investment resulted in realised gains of around 43
percent. 158 A similar-sized investment in Rotorua Electricity Limited was also being
considered in September of the same year, but it is not clear that it ever eventuated. 159 Then,
156 Figures taken from annual reports. Examples of valuations in Memorial Binder 177 pt II [Waiariki Maori Land Court] show that the figures quoted in reports from 1993 onwards are land value, not capital (that is, improved) value. 157 Rotorua Maori Land Court minute book 237, I March 1995, fol 141 158 Rotaiti 15 Trust: Annual Reports & Statement 0/ Accounts/or the Year Ended 31 March 1994, p 12, file 45!l520 vol I, Waiariki Maori Land Court; Rotoiti 15 Trust: Annual Reports and Financial Statements/or the Year Ended 31 March 1998, pp 11-12, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua 159 Minutes of a Meeting of the Trustees held ... on Thursday 1" of September 1994, pp 1-1, 5, file 4511520 vol 1, Waiariki Maori Land Court; Chairman's Report, dated 18 September 1994, in Rotoiti 15 Trust: Annual Reports & Statement 0/Accounts/or the Year Ended 31 March 1994, p 12, file 4511520 vol 1, Waiariki Maori Land Court; Rotoiti 15 Trust: Annual Reports and Financial Statements /01' the Year Ended 31 March 1996, pp 13, 24, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua
50 in the year ended 31 March 1998, a short-term investment in smartcard technology, involving a sum of$250,000, realised 12 percent interest and seems to have emboldened the trustees to try a much larger investment in the same area. Later that same year $2,000,000 was borrowed from Westpac, with future income as security, and invested in a venture by the name of Epic
Card, which subsequently failed. 160 TIns resulted in an intervention by the Maori Land Court, and new trustees were put in place in December 2000. 161
While some of the forays into financial investment (and particularly into the casino and the information technology sector) might have seemed rash, and quite clearly did to the Maori Land Court, the trustees' concerns over the narrow base of their assets are nonetheless legitimate. The end result of individualisation and succession laws is that there is an ever growing list of owners, and the Trust needs continually to increase its revenue if it is even to maintain the level of benefit to them, let alone improve their situation. Income from stumpage has just begun to increase significantly now that the first crops of trees are maturing, but increasing that level still further, or even maintaining it, is entirely dependent on conditions in the forestry sector and on the world market. A shareholder at the 1996 annual general meeting, for example, indicated that the trustees should 'pursue with Fletchers, its divestment of its Ngati Porou forests, as he said this could also happen to Rotoiti 15 in the future'. 162 And likewise at the 1997 annual general meeting, the forestry company representative who was in attendance warned that exports to Australia would fall as Australia's pine forests mature. 163 The annual report for the year ended 31 March 2000 also referred to a down-turn in the forest sector. 164 More recently, a former trustee has pointed to a trend on the part of some forestry companies to move away from growing and into processing, where returns are higher. 165 Should the forestry company that is currently exploiting Rotoiti 15 decide to follow this example, the Trust would be in a very difficult position. Given the geographically discrete nature ofthe lands in Rotoiti 15, noted earlier in section 4, its viability as a production unit rests almost entirely on it being exploited as an extension of the Tarawera Forest. It is
160 Epic Card was a Wellington-based venture owned partly by the National Te Kohanga Reo Trust. (Maori in the New Zealand Economy, Wellington, Te Puni Kokiri, 1999, p 20) 161 Rotorua Maori Land Court minute book 256, 15 December 2000, fols 148-157 162 Rotoiti 15 Trust: Annual Reports and Financial Statements/or the Year Ended 31 March 1997, p 4, file 4511520, part 2, Waiariki Maori Land Court 163 Rotaiti 15 Trust: Annual Reports and Financial Statements/or the Year Ended 31 March 1998, p 2, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua 164 Rotaiti 15 Trust: Trustees Report and Financial Statements for the Year Ended 31" March 2000, p 8, Rotoiti 15 file, Hulton Patchell Chartered Accountants, Rotorua 165 Personal interview with WRJ Gray, 5 April 200 I
51 therefore difficult to see how any company could be found who would be willing to exploit Rotoiti 15 on its own, and even supposing the trustees were willing and able to manage the area themselves, it is difficult to see how they could make a success of it, for the same reasons.
Other options for the land are limited. As mentioned at the beginning of this section, it is not well suited to farming or horticulture and, although some interest was expressed at one point in mineral exploration, nothing seems to have eventuated. 166 Likewise, there is no evidence that its geothermal potential has yielded any income to date. At present, it would seem that the economic security of the Trust and its shareholders is tied to the forestry company. Diverting a portion of income into other investments would seem wise, if such an investment programme were undertaken prudently - and indeed would merely be following the kind of advice the Government regularly gives to citizens with regard to providing for their own individual superannuation.
10. Distribution of returns Under the terms of the trust deed, the trustees have a duty to:
distribute to the beneficial owners in accordance with their shares the whole or such part of the net proceeds as the Trustees shall at their sale discretion from time to time determine with power to pay moneys to the Maori Trustee for the purpose of effecting a distribution to the beneficial owners.16?
It will be noted that the emphasis here is on returns to individuals although, as one of the objects of the Trust is defined as being 'to make provision for any special needs of the owners as a family group or groups', using income for collective purposes is obviously not precluded. Nevertheless, until around 1992 the expectation seems to have been that, in line with individualisation of title, the Trust would generally distribute benefits on an individual basis. One might note in passing that it has been an expectation common to Maori trusts in general, and it sits uneasily with any tribal aspirations that Maori (in this case Ngati Pikiao) might have. Since 1992, administration of the Trust has been put in the hands of owner-
166 Drummond to Te Aruhi Rangiotea and others, 16 March 1989, Rotoiti court correspondence file, vol5, Waiariki Maori Land Court 167 Trust Orders dated 7 October 1992 and 15 December 2000, file 45/1520, vo1s 1 and 2, Waiariki Maori Land Court
52 trustees, and there has been the introduction ofTe Ture Whenua Maori 1993, with its provision for directing income toward 'Maori community purposes'. This has enabled a wider variety of options to be considered.
10.1 Dividend payments to individuals As regards returns to individuals, there are no figures for dividends paid out to shareholders before 1978. Thereafter, there are figures for most years but it is not always clear whether the sum noted in the accounts is the dividend actually paid out or the dividend declared. It is therefore not easy to make comparisons between years, or to produce any meaningful performance graph. The following table gives the most likely scenario from the information available, based on the premise that the sums shown for the years 1982 to 1991 are too small to be divided meaningfully between 197,370 shares and are therefore unlikely to be the total dividend declared.
Table 1: Dividend payments by the Rotoiti 15 Trust, 1978-1998 Dividend declared Total sum Qaid out Dividend Qer share 1978 $38,760 20c [1979 figures missing] 1980 $30,000 $12,067.97 15.5c [1981 figures missing] 1982 $549.57 1983 $513.64 [1984 figures missing] 1985 $3,346.93 1986 $1,419.16 1987 $294.26 [1988 to 1990 figures missing] 1991 $354 1992 $70,000 $31,797 35c 1993 to 1998 (inclusive) $70,000 per year 35c (All data drawn from annual reports of the Rotoiti 15 Trust)
As can be seen, amounts have fluctuated considerably. One must also bear in mind that the figures are given in dollar values ofthe time, which further complicates any effort to make a
53 comparison between years. However, some such attempt can be made if dividends on each share (where known) are compared to share value. Using this methodology, the following results have been obtained:
Table 2: Returns on share value, 1978-1998 Year Return on share value 1978 2.58% 1980 1.77% 1992 1.05% 1993 1.25% 1994 .92% 1995 .92% 1996 .7% 1997, 1998 .49%
In looking at the above figures, it should be noted that, because the base data available in the armual reports changes slightly after 1992, the results in fact fall into two series. The first series, for the years 1978, 1980 and 1992, uses a share value based on the capital value of assets, whereas the second, for all years thereafter, uses a share value based on the
unimproved value of assets. 168 However, this does not negate the fact that the obvious trend is downwards in both cases. Add to this the reducing size of the median shareholding (which currently stands at a little under 3.5 shares), and one can see that paying dividends to individual shareholders does not, in many cases, result in improving their financial wellbeing and that, on present trends, the situation is only likely to deteriorate.
Obviously, where the Trust does not know a shareholder's address, or where he or she is deceased, no payment can be made. Likewise, no payment is made if the sum would be uneconomic to distribute (that is, less than a nominated figure that has generally been set at around $5 to $10). Given the large number ofuncontactable or deceased shareholders, and the large number of shareholders with very small holdings, the result is a considerable pool of 'unclaimed dividends'. A list of the amounts held for each individual is available for consultation at the Trust's office but, as mentioned earlier in section 7, the growing size of
168 Unimproved value is the value of the land alone; capital value is the value of the land plus improvements.
54 this putea fund has been a cause of concern to the trustees. Efforts to address the situation over the last two or three years seem to have had some small effect, but the unclaimed amount is still high, as the following graph shOWS. 169
Fig.3 Unclaimed dividends (cumulative total), 1978-2000
$140,000
$120,000
$100,000
Nz ~ .E $80,000 , "0 ~ $60,000 ~
$40,000
$20,000
so 1978 1980 1982 1983 1985 1986 1987 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000
Note: Where a year is omitted, no figure has been found.
10.2 Other forms of financial benefit Apart from payment of dividends to individuals, there have also been other types of financial benefit to shareholders. These have largely consisted of grants to marae, grants to kaumatua, and educational scholarships.
There is no evidence of any of these types of payment occurring before 1982, but it would seem this was not unusual for section 438 land utilisation trusts. An article published in 1983, in the New Zealand Universities Law Review, indicates that using accumulated unpaid
dividends for 'community purposes' was, at that date, a fairly recent innovation. 170
In 1982, there was a distribution of $30,500 from moneys that had accumulated in the putea fund. This distribution took the form of grants to 19 named marae in the area. Further grants
169 All information used for the graph has been drawn from annual reports of the Rotoiti 15 Trust. 170 PO McHugh, 'Trusts for the Utilisation of Maori Land in Multiple Ownership', pp 350-351, New Zealand Universities Law Review, vol 10, December 1983
55 were paid in subsequent years but total annual distributions averaged only $5550 a year in the period 1983 to 1995.
The change of pattern in 1996, evident from the next graph (figure 4), is likely to have resulted from several factors. Firstly, from November 1992, the Trust became vested in the owners themselves, as opposed to an outside 'responsible trustee' (see section 5.2). Secondly, as illustrated by the previous graph, the pool of unclaimed dividends had begun to increase quite steadily and steeply. Thus, there was a growing amount of money available for distribution. A third factor of significance is the change in legislation which took place in 1993. As has been mentioned, Te Ture Whenua Maori Act 1993 included specific provision for 'Maori Community Purposes', and required that existing trusts be reviewed in light ofthe new Act. The Rotoiti 15 Trust was reviewed accordingly and, since August 1996, Trust deeds have had an extra clause covering the distribution of funds for community purposes:
The Trustees may apply the whole or any part of any specified portion of the Trust income for Maori community purposes or for such Maori Community Purposes as the Court may specify, and, in such a case, the Trustees may apply any part of such specified portion of the Trust income in accordance with section 218 ofTe Ture Whenua Maori Act 1993.
The specified section of the Act stipulates that trust income may be used 'for the benefit of any specified beneficiary or class of beneficiaries, or the interests of any hapu associated with any land belonging to the trust'. Subclauses in this section indicate that such money will generally be used for the promotion of health, and social, cultural and economic welfare, and for education and vocational training for these groups or individuals.
The net result of the above changes is that, since 1996, the total amount paid out to groups and individuals, over and above shareholder dividends, has risen to an average $19,059 a year. These payments have largely been in the form of grants to marae and educational scholarships of various types.
56 The following graph shows annual totals for grants and scholarships (where known) for the 171 entire period from 1982 to 2000 :
Fig.4 Amount paid out in grants and scholarships by the Rotoiti 15 Trust
Nz $25,000 '"oS .:.. ,., $20,000 .c'" ..u C'" $15,000 ~ 0 ..E ...~ $10,000 $5,000 $- 1982 1983 1985 1986 1992 1993 1994 1995 1996 1997 1998 1999 2000 Note: I. Where a year is omitted, there are no figures available. 2. The figure for 1983 does not include an amount of $6,000 paid to 'Ngati Tarawhai Work Skills Centre temporary work scheme', which was listed as an interest~free, on-demand, 'advance', rather than a grant. 172 To sum up, the diminishing worth of the dividends paid to individual shareholders has already been demonstrated, as has the likelihood of this trend continuing as the shareholder list expands still further. Under the 1993 legislation, the trustees have been somewhat better able to provide other forms of benefit, while still maintaining a basic level of dividend distribution. However, under a system of individualised title, the problem still remains of bringing meaningful benefit to greater and greater numbers of people. 11. Issues of control As has already been mentioned, it would appear that the land currently administered by the Rotoiti 15 Trust is not all traditional Ngati Pikiao land, and that nor are the current 171 All information drawn from annual reports. 172 Statement ofAssets and Liabilities as at 31 March 1983, file 4511520, vol I, Waiariki Maori Land Court 57 shareholders all ofNgati Pikao descent. 173 This raises issues ofkaitiakitanga: who controls what resources and for whose benefit? To give one example: the land given to the Rotoiti 15 Trust by the Crown in exchange for Okataina 12 and part ofRotoiti 14 was predominantly Tuhourangi. The Makatiti Dome area was then further exchanged (under the cross-leasing arrangement) for Rerewhakaaitu, another block with strong Tuhourangi links. These exchanges thus give the Rotoiti 15 shareholders administrative control over lands that were not traditionally theirs. Legally, it can be argued, they have no obligation to the traditional owners, since the lands were obtained from the Crown. Nevertheless, it is evident that some shareholders, at least, do feel a certain obligation, and one of the annual reports notes that 'it had been intended that the early revenues from the Rerewhakaitu block were to have been directed to Tuhourangi' .174 (There is, however, no further reference to the matter and it is unclear whether the intention was put into effect.) Or, again, there is the position of the Trust's Ngati Tarawhai shareholders, who have lost much of their traditional land in the exchanges with the Crown. Certainly, the Rotoiti 15 Trust has tried to make sure that Ngati Tarawhai have not been overlooked in the distribution of resources. A 1983 financial report, for instance, records a $6000 interest-free, on-demand advance to aNgati Tarawhai Work Skills Centre temporary work scheme, and the 1998 annual report indicates that the trustees were to consider further ways in which the Trust could assist Ngati Tarawhai. 175 However, the latter document also records comments about Ngati Tarawhai's 'loss of control over their lake and lands, particularly those under reserve to the Department of Conservation', their' diminishing economic base', and their desire to put money into a Ngati Tarawhai Trust Board. 176 Taken together, these comments indicate a strong sense both ofhapu identity and of collective loss as regards their traditional land and resources. They receive a degree of income from the Trust, but their autonomy is circumscribed. 173 The author again underlines the need to explore these issues more fully with the claimants themselves. 174 Rotoiti 15 Trust: Annual Reports & Statement 0/Accounts/or the Year Ended 31 March 1994, p 3, file 4511520 vol I, Waiariki Maori Land Court 175 Statement 0/Assets and Liabilities as at 31 March 1983, file 4511520, vol I, Waiariki Maori Land Court Hulton Patchell Chartered Accountants, Rotorua; Rotoiti 15 Trust: Annual Reports and Financial Statements for the Year Ended 31 March 1998, p 6, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua 176 Rotoiti 15 Trust: Annual Reports and Financial Statements/or the Year Ended 31 March 1998, p 6, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua 58 There are other control-related issues, too. Unlike the adjacent Tarawera Forest area, where owners gave up their land in exchange for equity in a new joint-venture afforestation company, the owners ofRotoiti 15 have, it is true, retained the freehold ofthe lands in the Trust. Nevertheless, they have, to a greater or lesser extent over the years, lost the practical, day to day, control of that resource and, instead, have been put in the position of being largely passive onlookers to its commercial exploitation. Certainly, they have received, and continue to receive, an income from their land's utilisation. However, as will be shown, the actual management of their land and resources has had to be mediated through other parties whose priorities are likely to differ from their own. The result is a diminished sense of autonomy and self-determination. As stated earlier, when the Rotoiti 15 Trust was first set up, control was vested in the New Zealand Insurance Company, as Responsible Trustee. In addition to this, there was a group of Advisory Trustees, largely drawn from among the owners. No minutes of any meetings have been located for this period so it is difficult to know much influence the Advisory Trustees may have had in decision-making. However, the accounts show grants to marae, which likely necessitated recommendations from the Advisory Trustees, and they probably also had an input to the decision to purchase 20,000 shares in Maori International Holdings, in September1984. 177 There is also a letter from the Trust manager to the Registrar of the Maori Land Court, concerning the earlier buyback of shares held by the Maori Trustee. This mentions a resolution passed at the annual general meeting of owners, recommending that 'the Responsible Trustee working in conjunction with the Advisory Trustees be authorised to take all steps necessary to effect the purchase of all shares ... ' [emphasis added].178 A subsequent letter from the Trust's solicitor to the Minister of Maori Affairs comments that the high price demanded for those shares had 'caused some consternation, particularly amongst the owner 177 Rotoiti 15 Trust: Statement ofAssets and Liabilities as at 28 March 1985, file 4511520, vol I, Waiariki Maori Land Court. [Note: Maori International became insolvent and, in the year ended March 1992, the investment was written down to nil.] 178 Burrell to Registrar, Maori Land Court, Rotorua, 4 July 1972, Rotoiti court correspondence file, vo14, Waiariki Maori Land Court 59 advisory trustee[sJ and the N.z. Insurance Co ... ', which implies that the Advisory Trustees were indeed involved in discussions on the matter. 179 Overall, however, there is very little reference to the Advisory Trustees in the documentation available. The impression is that, while they may have been consulted, there was little room (or encouragement) for them to be proactive and take a lead, and it was the Responsible Trustee who was regarded as the ultimate decision-maker. From both a legal and practical point of view, the Advisory Trustees were indeed only advisors. In August 1992, as already noted, the Maori Land Court had occasion to query the Responsible Trustee's management of the Trust. 180 There is no record on file of what transpired during the interview between Judge Hingston and the Responsible Trustee, but at the next annual general meeting of the Trust, held the following month, a letter from the Trust's solicitor was apparently read out, advising on 'the requirements and wishes of the Court'. There is no indication, in the minutes, of what those 'requirements and wishes' may have been, but the meeting then proceeded to elect new Responsible Trustees from among the owners themselves. 181 Under the new regime there is no Responsible Trustee. All trustees are on an equal footing, and there has thus been more opportunity for them to be proactive in directing the affairs of the Trust and, particularly, in deciding on the allocation of its income. Nevertheless, the Trust is still effectively hostage to the fortunes of a second party, namely the forestry company, and the owners are still in the position of being a passive partner as concerns the actual control and use of their lands. The Trust is still also subject to oversight by the Maori Land Court. While the Crown may regard this as a necessary safeguard, the paternalistic overtones of the situation have sometimes rankled with the trustees. As the chairperson of the Trust noted in his 1998 annual 179 Hingston to Rata, 5 February 1973, Rotoiti court correspondence file, vol 4, Waiariki Maori Land Court ISO Waiwai to Cass, 7 August 1992, file 4511520, vol I, Waiariki Maori Land Court lSI Rotoiti 15 Trust: Annual Reports & Statements ofAccountsfor the Year Ended 31 March 1993, p 6, file 4511520, vol I, Waiariki Maori Land Court 60 report: 'we are forever under the very watchful eye of the Maori landcourt who seem ever ready to pounce upon us at the slightest provocation' .182 Even the introduction of Te Ture Whenua Maori 1993 has not resolved the basic tension between individualisation oftitle and tribal control ofland and resources. As has recently been noted in the the Waitangi Tribunal report on the Chatham Islands: Under the hapu system, resource access for food, clothing, and shelter llntimately depended upon adherence to the hapu and hapu ethics. The hapu in turn determined appropriate conduct and the sanctions against unacceptable behaviour. When control of the tribal economic base - the land - was transferred to individuals and the Native Land Court, support for the hapu was no longer required, and the social fabric (ethical standards, customs, leadership, and institutions) was necessarily strained .... Through land reform or tenure conversion, Maori lost the right to decide for themselves how their society should evolve.183 12. Conclusions From the evidence examined in section 4, it has been shown that Government policy in the 1960s and early 1970s became strongly focllsed towards bringing 'idle' Maori land into production through afforestation schemes. Particularly targeted was the Bay of Plenty area. The preferred method of achieving the goal was the amalgation of blocks and the creation of trusts, in order to permit large-scale planting of exotic trees. County Councils in the region were also active promoters of the Government's policy, to increase their rates takings from Maori land. The Maori Land Court, if not actually a promoter of the policy (which itself is open to debate), was certainly an enthusiastic supporter of it. Maori owners, for their part, were also largely in favour of the opportunity to earn revenue from their lands, but may have been less happy with some aspects of the process and the outcome. It is doubtful, for example, whether notification of the proposed scheme for Rotoiti 14 was adequate, given the large number of owners involved and their geographic dispersion. 182 Rotoiti 15 Trust: Annual Reports & Financial Statements/or the Year Ended 31 March 1998, p 7, Rotoiti 15 Trust file, Hulton Patchell Chartered Accountants, Rotorua 183 Waitangi Tribunal, Rekohu: A Report on Moriori and Ngati Mutunga Claims in the Chatham Islands, Wellington, Legislation Direct, 2001, pp 190-191 61 Furthermore, it is clear that owners lost a considerable proportion of their original lands during the creation ofthe Rotoiti 15 block. Certainly they acquired other areas, but that does not negate the loss of what was likely part oftheir traditional patrimony. In addition, the lands they currently hold are spread disproportionately over the rohe, being scattered over an area of some 875 square kilometres. It should be emphasised that this latter situation is in direct contradiction to one of the Crown's own arguments for the original amalgamation that is, that the owners' lands were contiguous and, if unified under one title, would make a compact single area ideally suited to commercial exploitation. Owners had no real control of Trust management and administration prior to 1992. Their role was merely advisory, through the advisory trustee positions. Provision for owner participation has improved since 1992, but still relates more to control of financial resources than control of the land itself. And even in the area of financial management, they are limited by the power of the Maori Land Court which can intervene if it sees fit. Apart fi'om any effects the above may have had, and continue to have, on the owners' feelings of control and self-determination, the arrangement cannot, in the event, be claimed to have been to the owners' great economic benefit. As has been shown, the past 30 years have yielded fluctuating rates of return which, even at their best, could have been bettered by a similar amount being invested in a Postbank savings account. However, the effect of Maori land legislation is such that the Trust must constantly increase its income merely to maintain the same level of return to its rising numbers of beneficiaries. The net result of poor returns and an ever-increasing pool of beneficiaries is that owners are falling further and further behind in the struggle to gain any meaningful economic benefit from their assets. (Meanwhile, the Crown and local government suffer no erosion of the economic benefit they have gained from the arrangement, and variations in the fortunes of the forestry company, if any, must be laid at the door of market forces - the terms of agreement between the company and the owners having remained unchanged.) The previously-mentioned fragmentation of ownership also means that increasing numbers of owners are being marginalised from any involvement with their land. As has been demonstrated, some 66 percent of the shareholders on the Rotoiti 15 list are uncontactable. On average, they are the group with the lowest individual shareholdings. Of the ownership overall, approximately one in eight holds less than a tenth of a share. Many people have 62 moved away. Only one in five owners is known to be still living in the geater Taupo/Rotorua/Bay of Plenty region (although there may be others among the group for whom no address is available). Those still living in the immediate Rotoiti area would be far fewer. For the few years for which figures can be found, attendance at annual general meetings has averaged less than two percent of shareholders. An additional problem is the large pool of undistributed dividends, which has resulted from the burgeoning of uneconomic shares, and increasing difficulties - through sheer weight of numbers - in maintaining an up-to-date list of shareholder addresses. In sum, the overall situation is not too dissimilar to the Chatham Islands, where the Waitangi Tribunal found that: Most owners are scattered beyond the wide seas. Rents that conld best be spent in rebuilding the cultural base at home, for everyone's benefit, are also scattered abroad, sometimes in cheques worth little more than the postage stamp!84 184 Waitangi Tribunal, Rekohu: A Report on Moriori and Ngati Mutunga Claims in the Chatham Islands, Wellington, Legislation Direct, 2001, p 287 63 BIBLIOGRAPHY UNPUBLISHED Official Waiariki Maori Land Court, Rotorua Chief Judge's minute book, 1990 File 45/187, vol 2 File 4511520, vols 1,2 Memorandum of Transfer and Grant of Forestry Right, 1990, Title Notice no 18848, TN box 148 Memorial Binder 177, part 11 Minute books 150, 158, 210, 224, 230, 237,244,256 Rerewhakaaitu court correspondence file , . Rotoiti court correspondence file, vols 3-5 National Archives, Wellington ABJZ 869 Box 59 2011148 part 1 MA 58/1 part 1 (Afforestation of Maori land 1961-1973) MAl Box 332 191114 part 6 Royal Commission on the Maori Land Courts, Evidence given in cross-examination, GiIIanders Scott, 1980, COM 48 Box 1 Royal Commission on the Maori Land Courts, Submission no 11, Durie, 1980, COM 48 Box 2 Royal Commission on the Maori Land Courts, Submission no 24, Russell, 1980, COM 48 Box 2 Private Hulton Patchell Chartered Accountants, Rotorua Rotoiti 15 Trust files Rotoiti 15 Trust: list of shareholders NationqlLibrary, Wellington Latimer;~Graham, 'Directors Report to the Members of Maori International Holdings Limited': 16 September 1987 [filed as Annual report (Maori International Holdings) 1986- 87, in the Serials Collection] Reports commissioned for the Waitangi Tribunal Bennion, Tom and Judi Boyd, 'Succession to Maori Land, 1900-52', Waitangi Tribunal Rangahaua Whanui series, National theme P, (first release), May 1997 Loveridge, Donald, '''The Most Valuable of the Rotorua Lands": Alienation and Development in the Ngati Pikiao Blocks, 1881-1960', August 1998, Wai 46 record of inquiry, document M21 McBurney, Peter and Donald Loveridge, 'Ngati Pikiao Lands ca. 1881-1960: Block Histories', August 1998, Wai 46 record of inquiry, document M22 Records of other inquiries '.- Third, John, Wai 411 Tarawera Forests: summary of evidence, May 2000, Wai 411 record of inquiry, document All 64 University research essay Parore, T, 'Maori Land', Diploma of Public Administration research essay, Victoria University, 1970 PUBLISHED Books Kawharu, ill, Maori Land Tenure, Oxford, Clarendon Press, 1977 Journal articles McHugh, PO, 'Trusts for the Utilisation of Maori Land in Multiple Ownership', New Zealand University Law Review, vol 10, D~cember 1983, pp 341-361 Newspape~ articles 'Plant Carefully', Dominion, 22 March 2001, p 14 'Tasman Lease East of Okataina', Rotorua Daily Post, 24 December 1969 'Steady Progress in Collection of Maori Rates', New Zealand Herald, 11 September 1962, p 9 Public Notices, New Zealand Herald, 8 December 1969, p 6 Official Legislation Maori Affairs Act 1953 Maori Affairs Amendment Act 1962 Maori Affairs Amendment Act 1967 Maori Affairs Amendment Act 1974 Te Ture Whenua Maori 1993 Other 'The Maori Land Courts: Report of the Royal Commission of Inquiry' , Appendices to the Journals of the House of Representatives, 1980, H-3 New Zealand Parliamentary Debates, 1967, vols 350, 354 Prichard, Ivor and Hemi Tono Waetford, 'Report to Hon JR Hanan, Minister of Maori Affairs, of Committee of Inquiry into the Laws Affecting Maori Land and the Jurisdiction and Powers of the Maori Land Court', 15 December 1965 Pamphlets Te Ture Whenua Maori Act 1993: A Working Guide to the Act, Wellington, Te Puni Kokiri, 1993 Maori in the New Zealand Economy, Wellington, Te Puni Kokiri, 1999 Maori Forestry in Tai Tokerau: Ma Te Rakau e Kakahu Te Koraha, Wellington, Ministry of Forestry and Te Puni Kokiri, 1995 Waitangi Tribunal reports Rekohu: A Report on Moriori and Ngati Mutunga Claims in the Chatham Islands, Wellington, Legislation Direct, 2001 65 ~ /·'7 IN THE WAITANGI TRIBUNAL WAI46 CONCERNING the Treaty ofWaitangi Act 1975 Ngati Awa and other claimants of the Eastern Bay of Plenty the interests ofNgiiti Pikiao in the Rotoehu Forest \ .. :;" ..- STATEMENT OF CLAIM Dated llih October 1995 BUDDLE FINDLAY Carrie Wainwright SOLICITORS Telephone: 04-499 4242 WELLINGTON Facsimile: 04-4994141 POBox 2694 DX SP20201 .. ~...... ~ ...... ·"1 2 RECITALS Whereas A. At 1840 the claimants exercised rangatiratanga as the owners of all the .. land from the Bay of Plenty coast at Maketu down to the Lakes Rotoiti, Rotoehu and Rotoma; B. This area now includes the Rotoehu Forest, a Crown licensed forest; Ownership and management rights over these lands have been wrongfully acquired by the Crown; D. The claimants continue to exercise or wish to exercise kaitfakitanga over the land. THE CLAIMANTS 1. THIS claim is lodged by Joe Malcolm and Ben Hohepa. The claim is made on behalf of the claimants themselves and on behalf of Ngiiti Pikiao who are tangata whenua of the area described in recital A above. 2. NGATI Pikiao comprise of the following hapil: (a) Ngiiti Te Takinga; (b) Ngiiti Hinekura; (c) Ngiiti Rongomai; (d) Ngiiti Te Rangiunuora (e) Ngiiti Tameteatutahi; (t) Ngiiti Kawiti; (g) Ngiiti Makino. I:\RMS'.006S274.01 .) 3 THE CLAIM ",,3:... _-"",T""H""E,.. claimants are or are likely to be prejudicially affected by the following acts, omissions, policies and practices of the Crown that are inconsistent with the principles of the Treaty ofWaitangi: (a) The manner in which the Crown acquired the Tahunaroa, Waitahanui and Whakarewa Blocks; (b) The Crown's failQre to investigate the decisions of the Native Land Court which awarded titles to the Tahunaroa, Waitahanui and \ Whakarewa Blocks; (c) The undervaluation of the land blocks and timber on the blocks meaning the price paid by the Crown did not represent fair market value; (d) The failure to provide appropriate reserves to the owners of the land blocks as had been agreed; (e) The act of the Crown in continuing with its land purchase programme in the Ngiti Pikiao rqhe faced with strong opposition from Ngati Pikiao to the sale of the land. 4. THE said acts, omissions, policies and practices constitute a prejudice to the claimants in that they: (a) Amounting to an attack on the mana and rangatiratanga of the claimants; (b) Have resulted in small portions of the lands originally owned by the claimants remaining in their hands; (c) Have resulted in the portions of the lands which remain in the hands of the claimants being spread disproportionately over the rohe; (d) Have led to the inability of the claimants to gain any economic benefit from the forestry resource situated within their rohe. ".-- 1:IRMS\006S274.0 I .':~I 4 RELIEF 5. THE claimants seek recommendations from the Tribunal that: (a) The land in which the Rotoehu Forest stands be returned to the claimants in a manner which appropriately recognises those Ngiiti Pikiao hapu that have direct interest in the area; (b) Monetary compensation be paid to the claimants for the undervaluation of the land and the'timber on the land; Any other recommendations the Tribunal thinks fit. '<~:f;; THE PARTIES 6. THE claimants recommend that the Tribunal notifY the following parties o(this claim: (a) The Minister of State Owned Enterprises; (b) The Minister of Conservation; (c) The General Manager of Forestry Corporation ofNew Zealand; (d) Ngiiti Awa; .. : . (e) Tuwharetoa ki Kawerau; •..... : .. . - (t) Tuhoe; (g) Ngiiti Makino. THIS STATEMENT OF CLAIM is filed by CAROLYN MARY WAINWRIGHT of the firm of BuddIe Findlay, solicitor for the plaintiffs and whose address for service is at the offices of BuddIe Findlay, Level 17, BNZ Centre, 1 Willis Street, Wellington. Documents for service on the plaintiffs may be left at the address for service or may be 1:\RMS\006S274.01 ® 5 (a) Posted to POBox 2694, Wellington; or (b) Left at Document Exchange for directions to DX SP20201, Wellington; or (c) Sent by facsimile to Fax (04) 499 4141. \ i:IRMS'0065274.0 I Wai 46, 2.190; Wai 90, 2.11; Wai 275, 2.7; Wai 550, 2.4; Wai 675; 2.3; Wai 749, 2.3; Wai 791, 2.11 WAITANGI TRIBUNAL Wai 550 IN THE MATTER of the Treaty ofWaitangi Act 1975 AND IN THE MATTER ofa claim by Joe Malcolm and Ben Hohepa for Ngati Pikiao TRIBUNAL MEMORANDUM Attendance This memorandum follows a conference of 17 April to consider how the Ngati Pikiao claims might be progressed. It was attended by D Mathieson, counsel for Ngati Pikiao (with J. Malcolm), and H Carrad, Crown counsel. No notice was given to others but the conference was also·attended by JFergusson, counsel for NgatiAwa (with HMead and KBarge). Background In their claims, which have already been substantially inquired into, Ngati Awa, Tuwharetoa ki Kawerau and Ngati Makino, a hapu ofNgati Pikiao, made claims to the RotoeIui forest In support of their respective claims, each brought evidence that they have customary ~sociations with the forest lands and that the Crown acted contrary to the principles of the Treaty of Waitangi in various ways leading to the alienation of the forest lands and other lands in their respective districts. Thus each has two legs to their claims to Rotoehu forest, a direct claim in respect of the forest land, and an indirect claim for losses alleged, or now proven, elsewhere in their districts. The district to which Ngati Makino referred, which may be called Otamarakau, extended ,from the coast to lakes Rotoiti, Rotoehu and Rotoma. Preliminary reports have been completed for Ngati Awa and Tuwharetoa. The Ngati Makino claim has yet to be reported on. This is because in the course of hearing Ngati Makino, Mr Malcolm contended that several Ngati Pikiao hapu generally have an interest in the forest and in the Otamarakau lands. He had made a claim to Rotoehu Forest as early as 1992. A consequential impasse between Ngati Makino and the remaining Pikiao hapu was referred to mediation but without resolution. While Ngati Makino have been heard, Ngati Pikiao have not. The Tribunal agreed that to maintain parity with others, Ngati Pikiao should be heard not only on Otamarakau and customary associations with Rotoehu forest, but also in relation to compensation for alleged losses throughout the balance of the claimed Ngati Pikiao district. This involves the lands surrounding the lakes described. Reference will therefore be made to the two parts of the Ngati Pikiao claim (a) Otamarakau lands and (b) Central Lakes lands, that is, the balance of the I·ands claimed as Ngati Pikiao land. 2 Dr Loveridge was commissioned by the Crown Forestry Renta[ Trust to report on the Central Lakes Lands. Loveridge's reports, 'The Most Valuable Lands': Alienation and Development () in the Ngati Pikiao Blocks 1881 - 1960' and 'Ngati Pikiao Lands ca. 1881 - 1960: Block Histories' are dated August 1998. The purpose of this conference was to consider how the Ngati Pikiao claim should be managed now that those reports are to hand. Not knowing whether Ngati Pikiao considered that research to be sufficient, the Tribuna[ did not insist that an amended claim be filed beforehand. Central Lakes Lands The Loveridge reports provide a history of the alienation and development of the Ngati Pikiao lands surrounding the lakes oescribed. It does not define the issues. Me Malcolm submitted that it was not completed in consultation with Ngati Pikiao. That seems to me appropriate as the reports were intended to do no more than provide a neutral background. \ However, Me Malco[m was able to describe, at considerable length, the substance of the Ngati Pikiao claim.' The reports state that Ngati Pikiao retained some 90% of their [and. However, the Ngati Pikiao concern is that none of it is held for Ngati Pikiao. Me Malco[m . submitted that originally a1[ the [and was tribal [and held collective[y and the chief was a real chief. As a result of Crown action the mana over the [and was taken from Ngati Pikiao, he submitted. The [and was taken from the tribe, which customarily maintained a tribal control over use and distribution, and was vested iii individuals, which broke the tribal rangatiratanga. He said that thereafter, not only the tribe but the individuals lost control of their land as a result of further Crown action. Today, none of it is held for the tribe, the land ,.r- .'l,• .' does not support the tribe, and it does not provide a base for preferred tribal policy whether in .... ~ terms of land use, education, health, or social, economic and cultural development. Instead, ownership has been dissipated amongst scattered individuals. The duty of land managers today, he said, is not to the tribe but these individual beneficiaries. He claimed that today the state and the Native Land Court continue to exercise an inordinate control of their land and land management arrangements. A tribal base is now sought in lieu of that said to have been taken away. . Me Malcolm referred to the policy of the Crown as expressed in certain Native Lands Acts to change the hapu ownership of land and to substitute individual ownership of defined land parcels. The Loveridge reports indicate that this took place without Ngati Pikiao consent. As -the reports begin from 1881 they do not explore the introduction of the Native Land Court - system in depth, but Me Malcolm advised that it is amply covered, specific to Te Arawa, in V OUalley ''Agents of Autonomy" (1997) CFRT and nationally in DV Williams "Te Kooti Tango Whenua" (1999) Huia Publishers. These also cover the later operations of Land Boards and the Native Land Court. Subsequent to the conference staff drew to my attention similar coverage in the Tribunal's Rangahaua Whanui National Overview Report and the Rangahaua Whanui National Theme K: Maori Land Councils. and Maori Land Boards Report. The Loveridge reports refer to particular land alienations and [and takings. If, however, the general claim that Mr Malcolm described is proven, then for the most part, it may be unnecessary to go into them in more detail than that given by Me Loveridge. These matters would be included in any general compensation insofar as they in fact show the impact of the alleged loss of tribal control. Further particulars may be needed on some lands as hereafter referred to. 3 It appears to me that the-Loveridge reports go a long way to describing the historic fmpact of the new tenure system. They trace the Native Land Court division of the land amongst the hapu, the vesting in individuals and subsequent further partitions. It is not clear whether the initial ownership lists included all ofNgati Pikiao or whether only the heads of families were put in but Mr Malcolm thought that the ownership lists were generally complete. The reports then describe the subsequent control of the land not by the hapu but by various statutory bodies. The report refers to the Thermal Springs Districts Act 1881 and contends that this vested control in the Crown, apparently without Ngati Pikiao consent. Reference is then made to the management of the land, again, not by tribal councils of the hapu, but through statutory Land Councils and BQards for each of the Native Land Court districts. The report indicates some pressure to place land under those councils and refers to the proposals of the Stout Ngata commission, though without much elaboration on the commission's purpose or the1political exigencies under which it operated. ' Mr Malcolm also submitted that through the legislation and the consequential orders of the Native Land Court, perpetual leaseholds were provided for that would end up in the sale of land. The report traces the development of incorporations, but does not address Mr Malcolm's claim that that the incorporations exist for the owners or shareholders and are not agents for tnoal autonomy. As mentioned, land alienations are covered and the point is made that lands could be sold or leased by the individuals concerned (presumably without tribal sanction but with the sanction of a government Board), and through the Assembled Owners procedure which permitted of minimum quorums. Mr Malcolm claimed ruso that land was sold without owner approval through the appointment of trustees to sell. Sales by meetings of owners and through trustees, it may be argued, illustrate the consequences of the individual owner system. I have not had the opportunity to study whether the extent of alienation by those procedures, especially by sale, and the number of owners involved in each case, has been quantified in the Block Histories. Nor· is there much information on whether the best land was sold and the more rugged lands retained but reference to topograhical maps covering the blocks concerned may provide an indication. Reference is made to survey costs and liens with some resulting land loss. There is an -inference that 'individualisation' led to small groups cutting out lands for themselves wherever they could. Perhaps few things were more traditionally within the control of tribal leaders but this was done without tribal planning or approval. In any event this began the process of title fragmentation. According to the Loveridge report the financial cost of that appears to have been futile. At further cost, it had all to be undone in later amalgamations and consolidations for effective land utilisation. It would assist if the extent of partitioning and consolidation could be quantified or illustrated. If that task is too large, case examples may do. From the size of the consolidations it appears that several hapu were joined. All became shareholders in the whole with votes according to share values. Nationally, this is known to have had the effect of diminishing the voice of minority hapu. Mr Malcolm thought that Ngati Tarawhai was so affected in the Rotoiti 15 Trust. , . - - 4 The report suggests that the control by Land Councils and Boards and later, Crown control of land development schemes, meant that the owners were mostly without control of tli.eir lands until the middle of the 20th century. It seems the hapu had no control of policy as throughout all that time the land was 'individualised'. It is not clear from the report whether Ngati Pikiao land was used in development schemes to provide for Ngati Porou or Waikato lessees, or whether land was acquired for that purpose out ofNgati Pikiao money or out of funds that might otherwise have been used to assist Ngati Pikiao into farming. Mr Malcolm considered that it would assist to trace the eventual disposal of the 'Waikato' land. There is a question of whether lessees were assisted to buyout the owners of the freehold, especially while the land was controlled by government agencies under development schemes. c<.' \ The Loveridge report do not extend to the present day. Mr Malcolm thought that that was probably unnecessary though he would need to liase further with the hapu. However the laws for managing the subsequent fragmentation of title and ownership would need to be reviewed. That brings matters to the current day where the question concerns the extent that the introduced system continues to impact. It was thought that this could be handled by a sampling of title fragmentation in selected areas and a sampling of the ownership in selected blocks, as to the number of owners, the value of shares, the number of missing owners and the extent to which owners are scattered. It would be too large a task to try and cover the lot. Al; to ownership lists,Mr Malcolm suggested Matawhaura No 3 Trust, Rotoiti 15 Trust and Rotoma No I Incorporation would be appropriate case studies. Some work was currently being done on the ownership list of one of the Rotoma No 1 Incorporation of which he is the Chairperson. The Treaty basis of the claims was examined at the conference. The claim is along the lines that the Tre;lty guaranteed Maori the possession and control of their lands according to their own preferred system, that the Crown imposed a system that did not meet with their preferred system for.,tribal control and that they were and remain prejudiced as a result. Further, other legislation vested control in statutory bodies until the middle of the 20th century. , Otamarakau lands Mr Malcolm submitted that although a recent Tribunal review considered it necessary to provide research on Otamarakau lands from the Ngati Pikiao view, no funding was available to them for that purpose from the Crown Forest Rental Trust. He was inclined to agree with the Trust that further research was not needed. Mr Mathieson submitted that such research was unnecessary. The current reports describe what happened. In illustration he referred to losses for survey costs, the under valuation of land, the treatment of trustees as absolute owners, leasing practices leading to later purchases at under valuation and 'white anting'. The only matter in contention is whether these were also Ngati Pikiao lands. He thought that the historical reference in the existing reports to these lands as Ngati Pikiao lands was enough .. It is only the current day comments of some researchers that posit these as Ngati Makino lands. The research was therefore as much for Ngati Pikiao as Ngati Makino. 5 The purpose of this meeting was not to go into the substance of matters, as Mr Mathieson appreciated, but to consider whether more research was needed and it was submitted that it was not. I am inclined to agree. The facts are out. The question is whether Ngati Pikiao has an interest in the Otamarakau lands or whether these should be seen as the lands of Ngati Makino alone. Customary evidence would be important and also the original determinations of the Native Land Court and Compensation Court in extinguishing customary title. The question then is whether the Ngati Pikiao claim in respect of Otamaraku lands should be severed and should be heard now. Mr Mathieson urged that it should be, pointing to the unfairness to Ngati Makino, Ngati Awa and Tuwharetoa in leaving this matter in limbo while Ngati Pikiao prepares its claim. Mr Meade referred to the Ngati Awa contention that Ngati Makino were also as much Ngati Awa as Ngati Pikiao and that persons identifying as Ngati Awa had been excluded from the ownership Iis~ on account of their perceived status. ' The presentation of the Ngati Pikiao case on Otarnarakau lands is something on which Ngati Makino and Tuwharetoa ki Kawerau may also to be heard but I am not aware of any pressure from them on that matter. Subject to what Ngati Makino may wish to say, and looking at it only on the basis of the Ngati Pikiao submission at the conference, I am not convinced that to proceed with this matter at this stage would be fair to all concerned, including Ngati Pikiao although they have asked for that. If the general Ngati Pikiao claim, as outlined by Mr Malcolm, were established, so that there is an alternative basis for the Ngati Pikiao claim, an Otarnarakau hearing, which is likely to lead to strong tribal confrontation, may in fact be unnecessary. There is also a cost issue and the Tribunal is unable to award costs. Accordingly no directions are proposed on that matter at this time. If there is need to review this position, through the failure of negotiations, an award proposed to the exclusion of Ngati Pikiao, or simply on the application of one group, then the position would be reviewed at that point. Other claims It was settled: (1) In this inquiry, the Tribunal will not deal with Ngati Pikiao claims relating to the lakes and geothermal resou·rces. (2) The claim by Mr Malcolm for Ngati Tarawhai (Wai 675) will be heard along with the Ngati Pikiao inquiry. (3) On Mr Malcolm's advice, his claim concerning compulsory acquisitions in Rotoma No 1 (Wai 90) can be treated as lapsed. (4) The claim by Mr Malcolm for Waitangi No 3 against Rotoehu Forest (as amended on 18.7.92) can be incorporated into Wai 550. (5) The claim by M Meha for Te Tahuna Trust in respect of Rotoiti Township and Scenic Reserve (Wai 749) will be heard at the same time as the Ngati Pikiao inquiry. (6) Mr Malcolm advised that the Volcanic Plateau claim (Wai 791), in which he is also involved, does not prevent this claim from being heard. 6 Conclusion J;.:'~ :; Further information required It appears that the Ngati Pikiao claim can be disposed of with minimum further research, that it can be managed within the Tribunal's budget, and that a minimal hearing time will be required. A suggested procedure was discussed at the conference and this is now set out with some further detail added. (1) This first point that I now mention was not discussed at the conference but occurs to me now. There is a need to idetJtify with some certainty the ambit of the 'Ngati Pikiao lands' for the purposes of the claim. Mr Loveridge presumed to do this, but I understood Mr Malcolm to say that he did not consult with Ngati p'ikiao. Ngati Pikiao (. c1aim~,nts should file, as soon as practicable, a cadastral map with an outline of the Ir affected Ngati Pikiao blocks. It is appreciated that history and genealogy allows tribes to claim interests far and wide. However, what is sought is a depiction that is likely to minimise conflict with other tribal groups. (2) To draw together the threads of existing research, and to focus matters to the claim as outlined by Mr Malcolm, the Tribunal refers to its Director the need for a report on the impact of land tenure reform on Ngati Pikiao in the Cental Lakes Lands. This would especially focus on the loss ofcontro~ of land, and of the tribal base. It would cover, in addition to such other matters as the cornmissionee thought fit: (a) the Te Arawa response to the land tenure reform proposals of the 1860's (b) the subsequent historical impact over the period covered in the Loveridge reports (c) the present day impact. Very little new research appears to be necessary for (a) and (b) owing to the available resource material as referred to above. However the Director will need to arrange further particulars on the disposal of Okataina lands where not covered in the Block Histories, according to the commissionee's requirements, with particular attention given to the method by which lands surrounding Lake Okataina were sold for residential purposes. There may be .further particulars on other matters that the commissionee may require after a close study of • the Block Histories. I have mentioned some of the concerns that were expressed. As to (c), there appears to be sufficient existing literature on the problems of title and ownership fragmentation. If necessary, recourse may be had' to the Prichard - Waetford Report, Hunn Report, McCarthy Royal Commission on the Maori Courts and the NZ Maori Council paper that was a prelude to Te Ture Whenua Maori Act 1993. I presume that DV Williams compiled. the pertinent legislation on the acquisition of uneconomic shares and on title improvement schemes, in the review of Maori Land legislation for the Crown Forestry Rental Trust. The Crown, through the Department servicing the Maori Land Court, should be able to provide case examples of title and ownership fragmentation, with approximate share values of selected shares, from Court records of current Ngati Pikiao blocks. It may be possible to assess the number of , missing owners' and the extent of owner dispersal from address lists. In 7 the first instance the Director should approach the Chief Registrar of the Maori 4nd Court for assistance. Mr Malcolm should provide similar information from the ownership records of the Rotoma no 1 Incorporation, and any other trusts or incorporation where he is able. (3) A report may be needed on the acquisition of lands for scenic and other reserves. The Director will review the evidence to consider whether such a report is considered. (4) T.he Director should consult with Mr Meha on the information he has compiled on the Rotoiti Native Township. His claim is so detailed that I presume he has only to file a report thereon for auditing. If this is not the case, the Tribunal will consider the need for a specific research commission . • Subsequent procedure Following coinpletion and dissemination of the above reports; Ngati Pikiao' should file any further research evidence considered necessary together with a final statement of claim. Thereafter, the Crown will file a written response with any research evidence. The claimants may file any further evidence in reply. It would be premature to set timetilbles now. A short hearing is anticipated of say, one week, limited to oral evidence from tribal members, cross examination on research reports and legal argument on the issues as identified at a preceding issues conference. . Dated at Wellington this 1% thof April 2000. Chairperson Copy to Crown, Mathieson, Fergusson, Meha, CFRT. Wai 46, 2.190; Wai 90, 2.11; Wai 275, 2.7; Wai 550, 2.4; Wai 675; 2.3; Wai 749, 2.3; Wai 791, 2.11 WAITANGI TRIBUNAL Wai550 IN THE MATIER of the Treaty of Waitangi Act 1975 AND IN THE MATIER of a claim by Joe Malcolm and Ben Hohepa for Ngati Pikiao TRmUNALMEMORANDUM , Attendanc~ This memorandum follows a conference of 17 April to consider how the Ngati Pikiao claims might be progressed. It was attended by D Mathieson, counsel for Ngati Pikiao (with J. Malcolm), and H Carrad, Crown counsel. No notice was given to others but the conference was also·attended by J Fergusson, counsel for Ngati Awa (with H Mead and K Barge). Background In their claims, which have already been substantially inquired into, Ngati Awa, Tuwharetoa ki Kawerau and Ngati Makino, a hapu ofNgati Pikiao, made claims to the Rotoehu forest. In support of their respective claims, each brought evidence that they have customary associations with the forest lands and that the Crown acted contrary to the principles of the Treaty of Waitangi in various ways leading to the alienation of the forest lands and other lands in their respective districts. Thus each has two legs to their claims to Rotoehu forest, a direct claim in respect of the forest land, and an indirect claim for losses alleged, or now proven, el!l~where in their districts. '" The distriQtto which Ngati Makino referred, which may be called Otamarakau, extended ,from the coast to lakes Rotoiti, Rotoehu and Rotoma. Preliminary reports have been completed for Ngati Awa and Tuwharetoa. The Ngati Makino claim has yet to be reported on. This is because in the course of hearing Ngati Makino, Mr Malcolm contended that several Ngati Pikiao hapu generally have an interest in the forest and in the Otamarakau lands. He had made a claim to Rotoehu Forest as early as 1992. A consequential impasse between Ngati Makino and the remaining Pikiao hapu was referred to mediation but without resolution. While Ngati Makino have been heard, Ngati Pikiao have not. The Tribunal agreed that to maintain parity with others, Ngati Pikiao should be heard not only on Otamarakau and customary associations with Rotoehu forest, but also in relation to compensation for alleged losses throughout the balance of the claimed Ngati Pikiao district. This involves the lands surrounding the lakes described. Reference will therefore be made to the two parts of the Ngati Pikiao claim (a) Otamarakau lands and (b) Central Lakes lands, that is, the balance of the lands claimed as Ngati Pikiao land. 2 Dr Loveridge was commissioned by the Crown Forestry Rental Trust to report on the Central Lakes Lands. Loveridge's reports, 'The Most Valuable Lands': Alienation and Development in the Ngati Pikiao Blocks 1881 - 1960' and 'Ngati Pikiao Lands ca. 1881 - 1960: Block Histories' are dated August 1998. The purpose of this conference was to consider how the Ngati Pikiao claim should be managed now that those reports are to hand. Not knowing whether Ngati Pikiao considered that research to be sufficient, the Tribunal did not insist that an amended claim be filed beforehand. Central Lakes Lands The Loveridge reports provide a history of the alienation and development of the Ngati Pikiao lands surrounding the lakes tlescribed. It does not define the issues. Mr Malcolm submitted that it was not completed in consultation with Ngati Pikiao. That seems to me appropriate as the reports were intended to do no more than provide a neutral background. \ , However, Mr Malcolm was able to describe, at considerable length, the substance of the Ngati Pikiao claim. The reports state that Ngati Pikiao retained some 90% of their land. However, the Ngati Pikiao concern is that none of it is held for Ngati Pikiao. Mr Malcolm . submitted that originally all the land was tribal land held collectively and the chief was a real chief. As a result of Crown action the mana over the land was taken from Ngati Pikiao, he submitted. The land was taken from the tribe, which customarily maintained a tribal control over use and distribution, and was vested in individuals, which broke the tribal rangatiratanga. He said that thereafter, not only the tribe but the individuals lost control of their land as a result of further Crown action. Today, none of it is held for the tribe, the land does not support the tribe, and it does not provide a base for preferred tribal policy whether in terms of land use, education, health, or social, economic and cultural development. Instead, ownership has been dissipated amongst scattered individuals. The duty of land managers today, he said, is not to the tribe but these individual beneficiaries. He claimed that today the state and the Native Land Court continue to exercise an inordinate control of their land and land management arrangements. A tribal base is now sought in lieu of that said to have been taken away. Mr Malcolm referred to the policy of the Crown as expressed in. certain Native Lands Acts to change the hapu ownership of land and to substitute individual ownership of defined land parcels. The Loveridge reports indicate that this took place without Ngati Pikiao consent. As -the reports begin from 1881 they do not explore the introduction of the Native Land Court -system in depth, but Mr Malcolm advised that it is amply covered, specific to Te Arawa, in V O'Malley "Agents of Autonomy" (1997) CFRT and nationally in DV Williams "Te Kooti Tango Whenua" (1999) Huia Publishers. These also cover the later operations of Land Boards and the Native Land Court. Subsequent to the conference staff drew to my attention similar coverage in the Tribunal's Rangahaua Whanui National Overview Report and the Rangahaua Whanui National Theme K: Maori Land Councils and Maori Land Boards Report. The Loveridge reports refer to particular land alienations and land takings. If, however, the general claim that Mr Malcolm described is proven, then for the most part, it may be unnecessary to go into them in more detail than that given by Mr Loveridge. These matters would be included in any general compensation insofar as they in fact show the impact of the alleged loss of tribal controL Further particulars may be needed on some lands as hereafter referred to. 3 It appears to me that the Loveridge reports go a long way to describing the historic-i"mpact of the new tenure system. They trace the Native Land Court division of the land amongst the () hapu, the vesting in individuals and subsequent further partitions. It is not clear whether the initial ownership lists included all ofNgati Pikiao or whether only the heads of families were put in but Mr Malcolm thought that the ownership lists were generally complete. The reports then describe the subsequent control of the land not by the hapu but by various statutory bodies. The report refers to the Thermal Springs Districts Act 1881 and contends that this vested control in the Crown, apparently without Ngati Pikiao consent. Reference is then made to the management of the land, again, not by tribal councils of the hapu, but through statutory Land Councils and.Boards for each of the Native Land Court districts. The report indicates some pressure to place land under those councils and refers to the proposals of the Stout Ngata commission, though without much elaboration on the commission's purpose or tl).e political exigencies under which it operated. ' Mr Malcolm also submitted that through the legislation and the consequential orders of the Native Land Court, perpetual hiaseholds were provided for that would end up in the sale of land. The report traces the development of incorporations, but does not address Mr Malcolm's claim that that the incorporations exist for the owners or shareholders and are not agents for tribal autonomy. As mentioned, land alienations are covered and the point is made that lands could be sold or leased by the individuals concerned (presumably without tribal sanction but with the sanction of a government Board), and through the Assembled Owners procedure ./ which permitted of minimum quorums. Mr Malcolm claimed ruso that land was sold without owner approval through the appointment of trustees to sell. Sales by meetings of owners and through trustees, it may be argued, illustrate the consequences of the individual owner system. I have not had the opportunity to study whether the extent of alienation by those procedures, especially by sale, and the number of owners involved in each case, has been quantified in the Block Histories. Nor is there much information on whether the best land was sold and the more rugged lands retained but reference to topograhical maps covering the blocks concerned may provide an indication. Reference:.is made to survey costs and liens with some resulting land loss. There is an .inference that 'individualisation' led to small groups cutting out lands for themselves wherever they could. Perhaps few things were more traditionally within the control of tribal leaders but this was done without tribal planning or approval. In any event this began the process of title fragmentation. According to the Loveridge report the financial cost of that appears to have been futile. At further cost, it had all to be undone in later amalgamations and consolidations for effective land utilisation. It would assist if the extent of partitioning and consolidation could be quantified or illustrated. If that task is too large, case examples may do. From the size of the consolidations it appears that several hapu were joined. All became shareholders in the whole with votes according to share values. Nationally, this is known to have had the effect of diminishing the voice of minority hapu. Mr Malcolm thought that Ngati Tarawhai was so affected in the Rotoiti IS Trust.--' -,_ .. ~.I,..,,.. 4 The report suggests that the control by Land Councils and Boards and later, Crown control of land development schemes, meant that the owners were mostly without control oftheir lands until the middle of the 20th century. It seems the hapu had no control of policy as throughout all that time the land was 'individualised'. It is not clear from the report whether Ngati Pikiao land was used in development schemes to provide for Ngati Porou or Waikato lessees, or whether land was acquired for that purpose out ofNgati Pikiao money or out of funds that might otherwise have been used to assist Ngati Pikiao into farming. Mr Malcolm considered that it would assist to trace the eventual disposal of the 'Waikato' land. There is a question of whether lessees were assisted to buyout the owners of the freehold, especially while the land was controlled by government agencies under development schemes. \ ,. The Loveridge report do not extend to the present day. Mr Malcolm thought that that was probably unnecessary though he would need to Iiase further with the hapu. However the laws for managing the subsequent fragmentation of title and ownership would need to be reviewed. That brings matters to the current day where the question concerns the extent that the introduced system continues to impact. It was thought that this could be handled by a sampling of title fragmentation in selected areas and a sampling of the ownership in selected blocks, as to the number of owners, the value of shares, the number of missing owners and the extent to which owners are scattered. It would be too large a task to try and cover the lot. As to ownership lists, Mr Malcolm suggested Matawhaura No 3 Trust, Rotoiti 15 Trust and Rotoma No 1 Incorporation would be appropriate case studies. Some work was currently being done on the ownership list of one of the Rotoma No 1 Incorporation of which he is the. Chairperson. The Treaty basis of the claims was examined at the conference. The claim is along the lines that the Treaty guaranteed Maori the possession and control of their lands according to their own preferred system, that the Crown imposed a system that did not meet with their preferred system for tribal control and that they were and remain prejudiced as a result. Further, other legislation vested control in statutory bodies until the middle ofthe20th century . • Otamarakau lands Mr Malcolm submitted that although a recent Tribunal review considered it necessary to provide research on Otamarakau lands from the Ngati Pikiao view, no funding was available to them for that purpose from the Crown Forest Rental Trust. He was inclined to agree with the Trust that further research was not needed. Mr Mathieson submitted that such research was unnecessary. The current reports describe what happened. In illustration he referred to losses for survey costs, the under valuation of land, the treatment of trustees as absolute owners, leasing practices leading to later purchases at under valuation and 'white anting'. The only matter in contention is whether these were also Ngati Pikiao lands. He thought that the historical reference in the existing reports to these lands as Ngati Pikiao lands was enough. It is only the current day comments of some researchers that posit these as Ngati Makino lands. The research was therefore as much for Ngati Pikiao as Ngati Makino. . - - - j - _. / 1-. 5 The purpose of this meeting was not to go into the substance of matters, as Mr Mathieson appreciated, but to consider whether more research was needed and it was submitted that it ~< was not. I am inclined to agree. The facts are out. The question is whether Ngati Pikiao has' : an interest in the Otamarakau lands or whether these should be seen as the lands of Ngati Makino alone. Customary evidence would be important and also the original determinations of the Native Land Court and Compensation Court in extinguishing customary title. The question then is whether the Ngati Pikiao claim in respect of Otamaraku lands should be severed and should be heard now. Mr Mathieson urged that it should be, pointing to the unfairness to Ngati Makino, Ngati Awa and Tuwharetoa in leaving this matter in limbo while Ngati Pikiao prepares its claim. Mr Meade referred to the Ngati Awa contention that Ngati Makino were also as much Ngati Awa as Ngati Pikiao and that persons identifying as Ngati Awa had been excluded from the ownership; Ii~ts on account of their perceived status. The presentation of the Ngati Pikiao case on Otamarakau lands is something on which Ngati Makino and Tuwharetoa ki Kawerau may also to be heard but I am not aware of any pressure from them on that matter. Subject to what Ngati Makino may wish to say, and looking at it only on the basis of the Ngati Pikiao submission at the conference,. I am not convinced that to proceed with this matter at this stage would be fair to all concerned, including Ngati Pikiao although they have asked for that. If the general Ngati Pikiao claim, as outlined by Mr Malcoltn, were established, so that there is an alternative basis for the Ngati Pikiao claim, an Otamarakau hearing, which is likely to lead to strong tribal confrontation, may in fact be unnecessary. There is also a cost issue and the Tribunal is unable to award costs. Accordingly -- .no directions are proposed on that matter at this time. If there is need to review this position, through the failure of negotiations; an award proposed to the exclusion of Ngati Pikiao, or simply on the application of one group, then the position would be reviewed at that point. Other claims It was settled: (1) lrt1!this inquiry, the Tribunal will notdeal with Ngati Pikiaoclaims relating to the lakes aria ·geothermal resources. (2) The claim by Mr Malcolm for Ngati Tarawhai (Wai 675) will be heard along with the Ngati Pikiao inquiry. (3) OnMr Malcolm's advice, his claim concerning compulsory acquisitions in Rotoma No I (Wai 90) can be treated as lapsed. (4) The claim by Mr Malcolm for Waitangi No 3 against Rotoehu Forest (as amended on 18.7.92) can be incorporated into Wai 550. (5) The claim by M Meha for Te Tahuna Trust in respect of Rotoiti Township and Scenic ./ Reserve (Wai 749) will be heard at the same time as the Ngati Pikiao inquiry. (6) Mr Malcolm advised that the Volcanic Plateau claim (Wai 791), in which he is also involved, does not prevent this claim from being heard. 6 Conclusion Further information required It appears that the Ngati Pikiao claim can be disposed of with minimum further research, that it can be managed within the Tribunal's budget, and that a minimal hearing time will be required. A suggested procedure was discussed at the conference and this is now set out with some further detail added. (1) This first point that I now mention was not discussed at the conference but occurs to me now. There is a need to identify with some certainty the ambit of the 'Ngati Pikiao lands' for the purposes of the claim. Mr Loveridge presumed to do this, but I understood Mr Malcolm to say that he did not consult with Ngati Pikiao. Ngati Pikiao r c1aim~nts should file, as soon as practicable, a cadastral map with an outline of the ~. affected Ngati Pikiao blocks. It is appreciated that history and genealogy allows tribes to claim interests far and wide. However, what is sought is a depiction that is likely to minimise conflict with other tribal groups. (2) To draw together the threads of existing research, and to focus matters to the claim as outlined by Mr Malcolm, the Tribunal refers to its Director the need for a report on the impact of land tenure reform on Ngati Pikiao in the Cental Lakes Lands. This would especially focus on the loss of control, ofland, and of the tribal base. It would cover, in addition to such other matters as the commissionee thought fit: (a) the Te Arawa response to the land tenure reform proposals of the 1860's (b) the subsequent historical impact over the period covered in the Loveridge reports (c) the present day impact. Very little new research appears to be necessary for (a) and (b) owing to the available resource material as referred to above. However the Director will need to arrange further particulars on the disposal of Okataina lands where not covered in the Block Histories, according to the commissionee's requirements, with particular attention given to the method by which lands surrounding Lake Okataina were sold for residential. purposes. There may be .further particulars on other matters that the eommissionee may require after a close study of • the Block Histories. I have mentioned some of the concerns that were expressed. As to ( c), there appears to be sufficient existing literature on the problems of title and ownership fragmentation. If necessary, recourse may be had to the Prichard - Waetford Report, Hunn Report, McCarthy Royal Commission on the Maori Courts and the NZ Maori Council paper that was a prelude to Te Ture Whenua Maori Act 1993. I presume that DV Williams compiled the pertinent legislation on the acquisition of uneconomic shares and on title improvement schemes, in the review of Maori Land legislation for the Crown Forestry Rental Trust. The Crown, through the Department servicing the Maori Land Court, should be able to provide case examples of title and ownership fragmentation, with approximate share values of selected shares, from Court records of current Ngati Pikiao blocks. It may be possible to assess the number of' missing owners' and the extent of owner dispersal from address lists. In 7 the first instance the Director should approach the Chief Registrar of the Maori Land Court for assistance. Mr Malcolm should provide similar information from the ownership -records of the Rotoma no I Incorporation, and any other trusts or incorporation where he is able. (3) A report may be needed on the acquisition of lands for scenic and other reserves. The Director will review the evidence to consider whether such a report is considered. (4) T.he Director should consult with Mr Meha on the information he has compiled on the . Rotoiti Native Township. His claim is so detailed that I presume he has only to file a report thereon for auditing. If this is not the case, the Tribunal will consider the need for a specific research commission. Subsequent procedure Following t?mpletion and dissemination of the above reports, Ngati Pikiao should file any , further re~earch evidence considered necessary together with a final statement of claim. Thereafter, the Crown will file a written response with any research evidence. The claimants may file any further evidence in reply. It would be premature to set timetables now. A short hearing is anticipated of say, one week, limited to oral evidence from tribal members, cross examination on research reports and legal argument on the issues as identified at a preceding issues conference. . loth Dated at Wellington this i 0 of April 2000. Chairperson Copy to .Crown, Mathieson, Fergusson, Meha, CFRT. - / - .. ~. / 11k 1<6/ 4",5. , WAI 550, ...... 3, I WAITANGI TRlBUNAL CONCERNING the Treaty of Waitangi Act 1975 AND CONCERNING the Rotoehu forest claim '.- MEMORANDUM-DIRECTION OF CHAIRPERSON \ , I, ' Pursuant to clause'5A(I) of the second schedule of the Treaty of Waitangi Act 1975, the Tribunal commissions Dr Alan Ward of Newcastle, NSW, Australia, to prepare a report concerning the impact of land tenure reform on Ngati Pikiao in the Central Lakes lands, and the loss of control by Ngati Pikiao of it's land base. The report is to focus on the loss of land and the loss of control by Ngati Pikiao. The report is to take.the form of an analysis and snmmary of published research and other sources. The report will deal in particular with the following matters: (a) The Te Arawa response to the land tenure reforms of the 1860s; (b) The subsequent historical impact of native land laws on Ngati Pikiao, with a particular emphasis on their ability to manage and control their lands as a tribe between 1881 and 1960. (c) The laws enacted from 1967 to the present day dealing with the fragmentation of Maori land titles; (d) The present day impact of these laws; \. I (e) Investigate whether it was economically feasible to have kept Maori land in tribal ownership, with reference to policies and laws that have prevailed in other countries 2 This COmmISSion commences on receipt of written confirmation of the commissionee's acceptance of the tenus and conditions of the commission. 3 The commission ends on I February 2001 at which time one copy of the report will be filed in unbound form together with an indexed docurnynt bank and a copy of the report on disk. 4 The report may be received as evidence and the author may be cross-exiunined.on ~ . 2 Wai 550, Ward. 5 The Registrar is to send copies of this direction to: . Dr Alan Ward ~olicitor General, Crown Law Office Director, Office of Treaty Settlements Secretary, CroWn Forestry Rental Trust . _ Chief Executive, Te Puni Kokiri CoUnsel for Claimants Wai550 ] 2,..: Hon Justice E T J Chairperson W AITANGI TRIBUNAL :". " ( 000 0 .~ ___ .. ___/7.0 a ..fIlS• _.r ff. _WAl550 :ii3.5 WAITANGITRIBUNAL CONCERNING the Treaty ofWaitangi Act 1975 AND the Rotoehu forest claim EXTENSION TO DIRECTION COMMISSIONING RESEARCH 1 Pursuant to clause 5A(I) of the second schedule of the Treaty ofWaitangi Act 1975, Dr Alan Ward, of Newcastle, NSW Australia, was commissioned on 22 August 2000 to prepare a research report for Wai 550, the deadline for which was 1 February 2001. 2 An extension to the deadline has been agreed to and the new completion date is 31 July 2001. 3 The Registrar is to send copies of this direction to: Dr Alan Ward Solicitor General, Crown Law Office Director, Office. of Treaty Settlements Secretary, Crown Forestry Rental Trust Chief Executive, Te Puni Kokiri Claimant Counsel Wai 550 \t . Dated at Wellington, this &7 day of February 2001 Hon Justice ET urie Chairperson WAITANGI TRIBUNAL ~000 / 0 001 / 1/ R O~OOllo3!06:5 WAl550 WAITANGI TRIBUNAL #3'0 CONCERNING The Treaty of Waitangi Act 1975 AND CONCERNING The Rotoehu Forest claim DIRECTION COMMISSIONING RESEARCH \ , 1 Pursuant to clause 5A(I) of the second schedule of the Treaty of Wait;!ngi Act 1975, the Tribunal commissions Eileen Barrett, a member of staff, to complete a research report on the Rotoiti No 15 Trust and the lands it administers. The report is to serve as a case study of the impact of Native land tenure reform on Ngati Pikiao and is to examine the extent to which the Rotoiti No 15 Trust has been affected by fragmentation of ownership, fragmentation of title, absentee ownership, and undistributed dividends. 2 This commission commenced on 3 January 2001. 3 A first draft of the report will be submitted by 11 May 2001. 4 The second draft is due on 8 June 2001. 5 The commission ends on 22 June 2001, at which time one copy of the final report will be filed in unboimd form together with an indexed document bank of any associated documents and a copy of the report on disk. 6 The Registrar is to send copies of this direction to: . Eileen Barrett Solicitor General, Crown Law Office Director, Office of Treaty Settlements . Secretary, Crown Forestry Rental Trust. Chief Executive, Te Puni Kokiri Counsel for Claimants, Wai 550, Wai 675, Wai 749 f<.'. Dated at ~:~l~;n 2...7 day of March 2001. Hon Justice ETJ Durie Chairperson WAITANGI TRIBUNAL .;l.ooo /";)..00 I / 1'3 R OFFICIAL DUPLICATE WAI 550 W AITANGI TRIBUNAL CONCERNING the Treaty ofWaitangi Act 1975 AND The Rotoehu Forest claim \ " EXTENSION TO DIRECTION COMMISSIONING RESEARCH 1 Pursuant to clause 5ACl) of the second schedule of the Treaty ofWaitangi Act 1975, Eileen Barrett, a member of staff, was commissioned on 27 March 2001 to prepare a research report for Wai 550 the deadline for which was 22 June 2001. 2 Extensions to the deadline has been agreed to and the new completion dates are now: First Draft, due 11 June, Second Draft, due 9 July, Commission ends, 23 July. 3 The Registrar is to send copies of this direction to: Eileen Barrett Solicitor General, Crown Law Office Director, Office ofTreatiSettlements Secretary, Crown Forestry Rental Trust Chief Executive, Te Puni Kokiri Claimant Counsel Wai 550, Wai 675, Wai 749. Dated at Wellington, this J... 9f1.... day of May 2001 Chairperson WAITANGI TRIBUNAL Bay of Plenty Map 1: Location of land currently administered by the Rotoiti 15 Trust 0 10 ~o ~km N 0 10 """'. WEB, s Bay o ( Pie n t y .Te Puke , Edgecumbe ~u &h{ Te Teko ...... Putauakl (MI Edgecumbej Lnkitapu~ 9l0""hI LR%mahBna~ Pukearuhe Block • Reporoa Source: subdivisions as indicated On cadastral map filed at MA 1 Box 332, file 19/1/4 pt 6. National Archives Map 2: Rotoiti 14, showing contributing subdivisions, 17 March 1970 Bay o f Pie n t y KEY LL::J:J Crown forest licences • Te Puke I.r- -- _ ...I Other exotic forests -----'\ , \\ , \ " \ ,\ , '\ \ , , , \', t - 1 , -...... _----, , Edgecumbe ...... "'i , 1 Pufauaki...... -' (MI Edgecumbe), , , , , I' • I, , Tarawera Forest - I . \ '"t' > , 1 I 1 1 Map 3: Crown forest licences and other exotic forests in the Rotorua/Bay of Plenty area to JOkm o 10 2Omi!es 8 • y o f P fen t y • Te Puke \ , ...... "'i, ... '...,_, - - PutauakJ...... -' (M! Edgecumbej, , , , , Tarawera Forest " . I, , .... \ ., "',,' I L1ikitapuli1 ,I ,, 9lf " , \ , ...... -' L.Rolokakahi , , , , ~ ~- L.Rolomahana ~ eWaiohau ~ L.Rerewhakasi/u Kaingaroa• Village • Reporoa 'T;".;,;;,s,hape and location of Okataina 12, Rotoiti 14, and I Forest aU as shown on maps filed with 1970 Hulton Patchell, Rotorua Map 4: Area covered by Rotoiti 14 and Okataina 12, December 1970 o 10 20 ~km o 10 2{lmiles Bay o f Pie n t y • Te Puke \ Edgecumbe ., -. Kawerau ,'''''', I ... ,- .... Pit!aki' J .- (Uf Edg~cumbaJ , , , , Tarawera Forest r' ~ r, , , Ruawahia 10 I ... <#' rMakatiti Dome") L 1ikitaj)U ITI1 Matahina 10 9TIf ~ LRofok8kahi " eWaiohau Kaingaroa• Village • Reporoa Source: shape and of Rotoiti 15 taken from map attached to 1972 amalgamation , Memorial Schedule Binder, in/part 11, Waiariki Maori Land source for Tarawera Forest as for 4. Figure 5: Rotoiti 15, 19 July 1971 0 \0 ~o N 0 10 '""" 20miles w$' 'I Bay o f Pie n I y Makatiti Dome L Tikitapu fl1, • ~ ~LRcuokakahi , , " ~ ~• ~ eWaiohau • ~ '" Kaingaroa• Village • Reporoa I:li~~aCh~~I!~1?!f3,;;~~~~~~o:,f,gR:~O:~tO:~it~~i ~~ :1~5\~ andBlock Rerewhakaaitu Order file 1286A laken (Rotoiti from maps 15), Tarawera Forest as for map 4. Figure 6: Area administered by Rotoiti 15 Trust, since 24 July 1983 ------ 20 40 60 80 1'o0km 40 60mlles 20 N WEB, {)"';_:':' S () Bay of Plenty Map 7: Area treated as 'local', for the purposes of statistical analysis of shareholder list )