Ngati Pikiao Lands: Loss of Tribal Ownership and Control

NGATI PIKIAO LANDS: LOSS OF TRIBAL OWNERSHIP AND CONTROL Alan Ward Newcastle, N.S.W 21 October 2001 A report for the Waitangi Tribunal Synopsis In customary Maori society, different kinds of land rights were held at different levels of the society - individual, whanau, hapu, and iwi. The advent of the commercial economy led Maori to seek clearer definition oftheir rights, at each of those levels, as do modern South Pacific societies. But there was no widespread demand among Maori to abrogate totally the 'tribal' level- certainly not among Ngati Pikiao. British and colonial govemments, however, purported to transmute the allegedly communal 'tribal' rights into individual rights, through the operation of the Native Land Acts. In fact, they elevated customary individual use rights into the right of each individual to severally alienate his or her interests in the new titles, while rarely facilitating the development of individual farms on the ground. In reaction against the debilitating effect of this process, Maori, for more than a century, have demanded a restoration of 'tribal' authority over the land. This would appear to be in contradiction to the trend in other South Pacific societies, where the drive for individual or family enterprises is strong. In fact, however, most South Pacific societies are opposed to widespread 'land registration' or 'conversion' or 'titling'ofcustomary tenure. Instead, there is a great deal of infOlmal demarcation of individual and family farms, internal migration of small groups, and informal trading in land rights to accommodate these trends. Formalisation of the arrangements is sometimes sought to accommodate internal migration, especially to the towns, but still with limited modification of customary tenure. In other words, Pacific peoples tend to distinguish between ownership and control of enterprises on the land (which are typically individual, or small-group, and commercial in nature) and ownership and control ofland (where a 'tribal' level of interest and ultimate control persists). The nexus between the two is commonly, in effect, a form of lease or acknowledged right of occupation. It would appear that Maori aspirations were, and are, not dissimilar. The land law relating to Maori land has been modified significantly to accommodate them, but still carries legacies of its unfortunate beginnings in the colonial period. 2 Preface This has not been a particularly easy report to compile. The tenns of the commission were open-ended and whole books could have been written about each of them. But from discussion with Tribunal staff and with the Chairperson (September 2000), it was clear that what was wanted was a discussion paper which drew together many of the key issues raised by the pressures of modernity on customary land tenure, and to reflect on the New Zealand experience in the light of the experience of other nations, especially others in the South Pacific. It was necessary to be very selective but, even so, the text has run to rather more than a discussion paper. Part of the reason is that it seemed to be important not only to outline the legal or administrative arrangements made in various South Pacific states but also to try to try to appraise the outcomes. But this too is potentially a very large field of enquiry. There is an enonnous variety of experience in the South Pacific and only some of the developments in land tenure are apparent even to the governments of those states, or to university researchers. Indeed I was recently infonned by researchers at the Australian National University that a major new research programme is being plarmed to stndy land issues in Melanesia, notably by the National Centre for Development Stndies and the Resource Management Asia-Pacific programme. It may be considered of value for New Zealand to tap into that research. On the other hand, it is evident that home-grown solutions to many problems have recently been addressed by Maori people and the government, most notably in the preparation ofTe Ture Whenua Maori 1993, and that changes to that act must now depend upon reflection on the working of that act. Problems of choice abound in all land use and land tenure planning, and of course it is for Maori themselves to decide upon their preferences and priorities. It is hoped that this paper will make some contribution towards clarifYing the problems and possible options. But as regards history it is very apparent, in my view, that colonial governments in New Zealand changed Maori land tenure far too much far too soon, and mainly for their own convenience. South Pacific experience suggests that more economic development of land by Maori people would have been achieved by an evolutionary rather than revolutionary approach to customary land tenure - an approach which 3 retained an overarching 'tribal' tenure, with defined rights for individuals and groups beneath it. Not all would have been able to make an economic living from the land, but many more than was in fact the case. And, although such a tenure system would not have been maximally efficient for the purposes of capital investment, and ease of transactions on the open market, it would have involved much less social disruption. I should like to acknowledge especially the assistance given in the preparation of this report by Eileen Barrett-Whitehead, Waitangi Tribunal, who located relevant source material in Wellington and commented in detail on the draft report; and Mathew Ward, Melbourne, who analysed the Maori Land Acts from 1967 and drafted Chapter Four. A.W. 21 October 2001 4 Table of Contents Page Chapter One: Introduction 5 Section I : Customary land tenure and the meaning of 'tribal' Section II: The pressures of modernity and the making of the Native Land Acts Chapter Two: 'The Te Arawa response to the land tenure reforms of the 1860s' 30 Chapter Three: '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' 51 Section I: 'Native Committees' Section II: The Native Lands Administration Act 1886 Section III: Subdivisions ofNgati Pikiao land Section IV: Succession to Maori freehold land Section V: Incorporations, trusts and other strategies Section VI: The Ngati Pikiao blocks to 1960 Section VII: 'Tribal' arrangements in respect of the Lakes and scenic reserves Section VIII: Land development schemes Section IX: Legislation ofthe 1950s Chapter Four: 'The laws enacted from 1967 to the present day dealing with the fragmentation of Maori land titles 93 Chapter Five: 'The present day impact of these laws' 112 Chapter Six: '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' 125 Section I: Papua New Guinea Section II: Fiji Section III: Vanuatu Section IV: Overview of South Pacific experience Section V: A comment on Africa Chapter Seven: Conclusions 162 Bibliography 183 5 CHAPTER ONE Introdnction Section I: Customary land tenure and the meaning of 'tribal' 1.1 This report is directed to focus upon the following matters: (a) The Te Arawa response to the land tenure refonns of the 1860s. (b) The subsequent historical impact ofl1ative 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. (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. Chapters II to VI of the report will focus on each of these issues in turn, but before turtling to them, a number of preliminary matters need to be clarified, including the possible meanings of the tenn 'tribal' and the emerging needs of Maori (and settler) society which the Native Land Acts were supposed to address. 1.2 The comnlission arose from concern expressed by N gati Pikiao claimants, notably Mr Joe Malcolm, that the bulk of their customary lands were sold between 1870 and 1900 under the Native Land Acts, and that although they retained some 60,000 acres around Rotoiti, Rotoehu and Rotoma, that land too is not in 'tribal' ownership or control. Similar concerns had been voiced by other claimant groups in other parts of the country. What exactly is meant by 'tribal' requires consideration. Over time, the English tenn 'tribe' (and the adjective 'tribal') has been used of both iwi and of hapu. (It applied to the latter in the Treaty itself). Mr Malcolm's initial claim, Wai 165 of 4 October 1990, on behalf of the trustees of Rotoma Incorporation 6 and Matawhaura Development Scheme, alleges a failure of the Crown to acknowledge and protect the 'iwi' right to the use and development of geothermal resources in the lands of those bodies. Mr Malcolm's second claim (with Ben Hohepa), of II October 1995, registered as Wai 550, was on behalf of 'Ngati Pikiao who are the tangata whenua' who' exercised rangatiratanga as the owners of all the land from the Bay of Plenty coast at Maketu down to Lakes Rotoiti, Rotoehu and Rotoma'. The claim further stated that 'N gati Pikiao comprise of [sic] the following hapu: (a) Ngati Te Takinga (b) Ngati Hinekura (c) Ngati Rongomai (d) Ngati Te Rangiunuora (e) Ngati Tamateatutahi (f) Ngati Kawiti (g) Ngati Makino'. It went on to complain ofthe manner in which the Crown acquired the Tahunaroa, Waitahanui and Whakarewa blocks, in the face of strong opposition from Ngati Pikiao to the sale of the land.

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