JUDGE ACHESON, the NATIVE LAND COURT, and the CROWN a Report to the Waitangi Tribunal R P Boast QC October 2016 RECEIVED

Wai 1040, #A64

JUDGE ACHESON, THE NATIVE LAND COURT, AND THE CROWN A report to the Waitangi Tribunal

R P Boast QC October 2016

Contents

1 Introduction ...... 1 1.1 Who is Judge Acheson? ...... 1 1.2 Introductory remarks ...... 1 2 The Native Land Court and the state in the Acheson era ...... 3 2.1 Introduction ...... 3 2.2 The Native Land Court in the Acheson era ...... 3 2.3 The chief judges, 1910-1953 (Jones, Shepherd, and Morison) ...... 4 2.4 Investigations of title after 1909 ...... 8 2.5 The first historical inquiries: reports to the Chief Judge ...... 9 3 F. O. V. Acheson: family background and education ...... 12 3.1 Family background and early career ...... 12 3.2 Writing on Maori customary law ...... 13 3.3 Judge at Whanganui-Tokaanu ...... 16 4 Acheson in Northland ...... 18 4.1 First encounters ...... 18 4.2 Acheson as Tai Tokerau judge ...... 18 4.3 Reports to the Chief Judge ...... 20 4.4 President of the District Maori Land Board and support of Maori farming ...... 25 5 Lakes and the foreshore ...... 26 5.1 Introduction ...... 26 5.2 The Omapere case, 1929 ...... 27 5.3 Lake Tangonge (1933) ...... 36 5.4 Acheson’s foreshore decisions ...... 39 5.5 Orakei and the Orakei foreshore (1941) ...... 40 6 Political leanings and cultural interests ...... 42 6.1 Introduction ...... 42 7 Making a difference? ...... 45 7.1 A man before his time? ...... 45 7.2 Structural and other realities ...... 48 7.3 Epilogue: the Omapere appeal ...... 50

APPENDIX I: Selected Judgments of Judge Acheson ...... 52 LAKE OMAPERE (1929) ...... 53 LAKE TANGONGE (1933) ...... 72 ORAKEI FORESHORE (1941) ...... 77 APPENDIX II: Selected Judgments of the Native Appellate Court 1918-1945 ...... 83 NGAKORORO-WHAKARAPA (1942) ...... 84 LAKE WAIKAREMOANA (1944) (CROWN APPEAL) ...... 90 LAKE OMAPERE APPEAL (1953) ...... 94 Appendix III: Waitangi Tribunal Commission ...... 97

1 Introduction

1.1 Who is Judge Acheson?

This short report is about Frank Oswald Victor Acheson, who was appointed to the Native Land Court bench in 1919 and to the Tai Tokerau division of the Court in 1924. He retired from the Native Land Court bench in 1943. Acheson is a key figure in the history of Maori land in Northland, and in the history of the Native/Maori Land Court generally. He is best known for his innovative judgments relating to title to lakebeds and the foreshore, and his judgment with regard to Lake Omapere, delivered in 1929, has been cited on many occasions by decisions of the Native Land Court and in legal articles and textbooks.

This report is not a full and complete biography of Acheson. The focus, as required by the commission, is on his work as a judge of the Native Land Court. It is argued in the report that it is not possible to form a proper understanding of Acheson without considering the wider context of the operation of the Court in the 1920s and 1930s, a subject which is covered in the first chapter of the report. The report considers closely some of Acheson’s leading judgments and reports, and considers also his relationships with the rest of the Land Court bench, with officials, with the government, and with the Maori people of Northland.

This report was commissioned by the Waitangi Tribunal (see Appendix 3). The commission requires consideration of Judge Acheson’s judicial and administrative practice with particular regard to his understanding of Treaty of Waitangi requirements. It was prepared gratis, and during a very busy period. Although informed by commission questions, it provides only an introduction to the life and times of this remarkable judge. Some sections of this report are more comprehensive and more detailed than others.

1.2 Introductory remarks

I have long been interested in Judge Acheson. I first became aware of Acheson’s life and times when giving evidence in the Wai 45 (Muriwhenua Lands) claim around 1991. My responsibility was to prepare evidence on the legal history of Te Wharo Oneroa a Tohe (‘Ninety Mile Beach’), and while preparing this evidence I became aware of the long history of cases in Northland relating to lakes and the foreshore in which Judge Acheson had been involved. Subsequently I edited a part of Acheson’s research essay on Maori customary law for publication in the Victoria University of Wellington Law Review and collaborated with John Acheson in preparing the entry on Acheson for the Dictionary of New Zealand Biography. In the last two years I have become reacquainted with Judge Acheson through preparing the third volume of my edition of edited judgments of the Native Land Court. My admiration of Judge Acheson remains undiminished, but I hope that I now have a better understanding of the legal and political environment in which Acheson had to operate than I did previously. I had tended to think of Acheson as a kind of lonely hero, out of step with his times. I do not quite see Acheson in this way now. In many ways he was representative of his times and of the Native Land Court of his day. What made him unusual was the depth of his understanding of and academic interest in Maori customary law and in his legal scholarship. His judgment in the Omapere case of 1929 was, and remains, an extraordinary text, and it is this great judgment which is at the heart of this report.

This report is somewhat impressionistic. It makes no claim to originality, and I have had no opportunity to do any archival work on the subject of Judge Acheson. No doubt there is much more to learn about him. Principally this report attempts to set Acheson in the context of the Native Land Court of his day, and focuses very much on Acheson’s judgments. It should be seen as an inquiry into

Acheson’s life and times informed by the commission questions and from the standpoint of a legal historian. I have, however, tried to bring Acheson to life as best I can by also reviewing in some detail contemporary newspapers. Acheson was obviously newsworthy in his day and his name was often seen in the newspapers.

2 The Native Land Court and the state in the Acheson era

2.1 Introduction

It is important to set Acheson in the context of the Native Land Court of his day. The Native Land Court in the period from 1920-1950 is something of a neglected subject, especially when compared to the substantial literature on the Court in the 19th century. It is, however, important to set Acheson’s judicial career in the context of the wider history of the Court at this time. This is necessary to contextualise Acheson’s work as a judge and a legal scholar. In this chapter I will first discuss the two Chief Judges of the Court with whom Acheson had to deal (Chief Judges Jones and Shepherd). Acheson’s relations with both of them seem to have been difficult, perhaps especially with Shepherd. The second part of this chapter will deal with the functioning of the Court in this period, and with the kinds of cases that it heard. Particular attention will be paid to the emerging system of reporting to the Chief Judge on historical claims, as this was a jurisdiction of some importance for Acheson.

2.2 The Native Land Court in the Acheson era

In many respects the Native Land Court did not change very much from its 19th century self. Perhaps to a surprising extent it carried on performing its core functions throughout this period, partitioning blocks, hearing cases concerning relative interests (a very important matter), dealing with successions, and even continuing to investigate titles. The Court continued to hear cases in much the same way: there were no procedural innovations of any significance. Minute books continued to be filled up with handwritten notes of the evidence and cross-examination, and if by the twentieth century it was becoming more common for judgments to be typed, they were still not reported in the New Zealand Law Reports or anywhere else and were pasted into the Minute Books as the primary unit of record. Nothing was done to turn the Appellate Court into a truly separate body with its own premises and resources.1 The judges continued to be an eclectic group, and they continued to pursue the same interests in Maori ethnography and traditional history that the judges of the Court always had.

As a general proposition the Court declined in importance during these years, and was no longer at the centre of public debate. The most important development relating to Maori land in our period was undoubtedly the land development schemes after 1929; this vast project was not wholly unconnected with the Court, but the schemes were essentially a new modernising initiative connecting Maori land to New Zealand’s export economy. On the other hand it would be wrong to see the Court as a moribund institution in the period from 1910-1953. There were a number of new developments and trends. Those that I would emphasise are: (a) the growing use of the Court to carry out special inquiries and investigations into land-related Maori grievances; (b) a noticeable trend towards the systematisation of doctrine; (c) the growing legal and intellectual sophistication of the Court’s judgments; (d) the important relationships between the Court and Maori Land Boards; (e) the effects of new statutory provisions relating to consolidations and incorporations; (f) the growing importance of cases relating to wills and adoptions, the Court becoming rather more than a “Land” court in this period; (g) the connection between the Court, or at least its judges, and land development schemes after 1929; (h) the emergence of a new jurisdiction to establish and supervise land-owning trusts, culminating in the “438 Trust” of the Maori Affairs Act 1953; and (i) the importance of cases relating to riverbeds, lakes, and foreshore (of relatively marginal importance in the 19th century, but pivotal in the 20th). Judge Acheson was involved in many of these developments.

1 And still has not been, come to that.

2.3 The chief judges, 1910-1953 (Jones, Shepherd, and Morison)

Chief Judge Jackson Palmer died in office in 1919.2 His replacement was Robert Noble Jones, born in Ireland in 1864. Jones was a qualified barrister and solicitor and was appointed to the Land Court bench in 1903, after working for some years as a practitioner in Gisborne.3 (Indeed there could have been no better place to gain extensive experience in every aspect of the complexities of Maori land issues.4) In a reorganisation of the Native Land Court in 1914, Jones became the Aotea (i.e. Whanganui-Taranaki) district judge.5 In 1913 Jones was appointed President of the Tairawhiti District Maori Land Board, and he became Chief Judge on August 14, 1919.6 Jones married Martha Lowndes at Gisborne in 1890; and like all too many New Zealand families they were to be left scarred by the First World War with two sons killed overseas.

Soon after Jones’ appointment as Chief Judge, Herries appointed him to chair the Native Land Claims Commission of 1920, known as the Jones Commission, following the practice of naming inquiries after the chairperson. The other commissioners were John Strauchon and John Ormsby. Strauchon was a retired senior Lands official who had served previously as a member of the Land Purchase Board, Surveyor-General, and Under Secretary of Lands.7 John Ormsby (Hone Omipi) is a well- known figure: he was a prominent Ngati Maniapoto leader, King Country farmer, one of King Te Rata’s advisers and a man of considerable experience in Maori land administration. The background to this important inquiry is a little obscure. Presumably Native Department officials had a number of complicated problems that had been building up for a while which they wanted tidied up. The Commission duly inquired into and reported on an array of important but somewhat miscellaneous Maori grievances, including the Kapowai and Puketotara blocks in Northland, the Aorangi and Puketitiri Blocks in Hawke’s Bay, Te Whanganui-a-Orotu (Napier lagoon), the Patutahi block near Gisborne, the confiscation of Whakatohea lands in the Bay of Plenty and the Canterbury purchase (Kemp’s Purchase) of 1848. Jones and his colleagues reported in 1921.8

It is probable that Herries got more than he bargained for with the Jones report on Kemp’s purchase, which recommended the very substantial sum of £354,000 as compensation for Ngai Tahu’s historic grievances. The report had a lot to say about the circumstances of Chief Judge Fenton’s decision in the Kaitorete case of 1868 and the way in which the Crown had introduced an order of reference into the Court relating to the Ngai Tahu reserve allocations while the case was proceeding.9 The Commission also found that the reserves that Ngai Tahu needed had never been established.10 Chief Judge Jones was confronted by the Ngai Tahu claims again in 1925. Following the release of the 1921 report the Reform government enacted legislation requiring the Native Land Court to inquire into the beneficiaries of any possible settlement with Ngai Tahu.11 Any settlement would be based only on Kemp’s purchase, not on any of the other Ngai Tahu deeds, so the issue now arose as to whether Ngati Mamoe, or Ngai Tahu people living on the West Coast or at Kaikoura would be entitled to

2 On Chief Judge Jackson Palmer see DNZB, vol 2, pp 92-93. 3 On Jones see Bryan D. Gilling, “Jones, Robert Noble 1864-1942, Lawyer, public servant, land court judge”, DNZB, vol 4 (1998), pp 259-260. 4 See DNZB, vol 2, ch 8. 5 Whanganui Herald, 1 April 1914, p 2. 6 Obituary, Evening Post (Wellington), 30 June 1942, p 3. 7 Obituary, Evening Post (Wellington), 26 Dec 1934, p 8. 8 1921 AJHR G-5. 9 See ibid, pp 35-36. 10 Ibid, p 37. 11 Native Land Amendment and Native Land Claims Adjustment Act 1923, s 29.

4 participate in a settlement (supposing the government decided to proceed with one). Jones presided over a sequence of hearings at Tuahiwi in early 1925 to deal with these questions. In the first of these cases Jones gives a remarkable synthesis of the basic rules applied by the Native Land Court when carrying out investigations of title. Jones, it appears, played an important role in simplifying and standardising the rules relating to take and the relationship between take and occupation. The government had not actually committed itself to any settlement with Ngai Tahu, however, and after Jones’ 1925 decisions the matter continued to languish.

In terms of his general jurisprudential stance it is difficult to make an assessment of Jones. He seems to have been a reasonably conscientious and able Chief Judge in respect of his Land Court responsibilities. As far as is known Jones was not interested in the amateur ethnography beloved of some of the judges (former and contemporary) and made no contributions to anthropological or legal scholarship, like Judge Acheson or Judge Smith. Ngata seems to have respected Jones, describing him in a letter to Peter Buck in 1928 as “tactful and resourceful”, well able to “oil the machinery”.12 Jones was involved in many Appellate Court decisions, sitting with experienced colleagues such as Judge MacCormick and Judge Rawson. The great crisis of Jones’ career arose not from his judicial, but from his administrative responsibilities.

In 1922 Jones was made under-secretary (i.e. permanent head) of the Native Department. According to Gilling this step was taken as part of Gordon Coates’ plans to more clearly separate the Native Department from the Department of Justice.13 It really was extraordinary for one person to simultaneously head a government department and at the same time to be Chief Judge of a reasonably busy and important Court. It becomes all the more extraordinary when it is considered that an important function for the Court at this time was to carry out inquiries into special blocks arising from legislation deriving in turn from petitions to the Native Affairs Committee at parliament; many of these inquiries, as is discussed in the next section, directly involved the government which would be represented at these special investigations by Crown counsel. The judges’ reports were added to a memorandum from the Chief Judge addressed to the Native Minister. The lack of transparency when the Chief Judge also happened to be the head of the Native Department, no doubt seen by the Minister on most days at the office, are too obvious to require comment. This is not to impugn Jones personally, but the situation should not have been allowed to arise, and the consequences would prove to be severe.

In 1928 Apirana Ngata became Native Minister, and now Ngata’s political destiny and Jones’ career were to be interlinked. Ngata’s legislation providing for Maori land development on a massive scale was enacted at the end of 1929, and it was Jones who had the responsibility of reorganising the Native Department to administer the schemes and to somehow manage the vastly expanded workloads of the department and the herculean efforts of his Minister. Jones assumed yet further responsibilities in 1933, becoming Native Trustee and East Coast Commissioner. This was probably part of the cost- cutting implemented in the public sector as a response to the depression, but it can hardly have helped matters.

In 1933 Jones stepped down as Under Secretary of the Native Department, while retaining his position as Chief Judge. In the following year the Native Department under Jones’ administration was

12 Ngata to Buck, 9 Feb 1928, in M.P.K. Sorrenson (ed.), Na To Hoa Aroha, vol 1 (1986), p 69. Ngata is writing about Jones’s capacity as Under Secretary of the Native Department, rather than as a judge. 13 Gilling, “Jones, Robert Noble 1864-1942, Lawyer, public servant, land court judge”, DNZB, vol 4 (1998), 259-260, at 260.

5 subjected to the harsh spotlight of the Commission on Native Affairs chaired by David Smith.14 Jones did not come out of the investigation at all well. The Commission was very critical of the department’s administration under Jones: the organisation of the department “was so defective that it reached the verge of a breakdown”.15 The key problems – as seen by the Commission - were Ministerial interference in departmental financial administration, and a failure to manage the Native Department to deal adequately with the challenges posed by the land development programme after 1929. It is hard to know what to make of all this without a detailed modern study of the administration of the schemes and of the Smith Commission itself. It does seem to be the case that the department was simply overwhelmed by its vast new responsibilities at a time of retrenchment and cost-cutting caused by the effects of the depression. Jones simply had too much to do. A key problem identified by the Smith Commission was the failure to hire new staff, but whether Ngata or Jones was primarily responsible for that is unclear.

Jones carried on as Chief Judge until 1939. When he retired from the bench in July 1939 there was a large ceremony in Wellington at which many people spoke, including representatives of the Maori community. Of course on occasions of this kind it is standard for people to make pleasant and flattering remarks about a departing colleague, but even so it is notable that a number of politicians, lawyers and members of the Maori community were present and spoke very warmly of Jones’ long service, tact, and skill. Deputy Chief Judge MacCormick said that “no man could have had a more courteous, considerate, and efficient chief judge”. Hapi Love of Te Ati Awa spoke in Maori, saying that “they were bidding farewell to one they admired very much”, and made many flowery compliments. Other Maori leaders spoke in a similar vein. Perhaps the fact that Jones, like Ngata, was a casualty of the Smith investigation of 1934 added to his stature in the Maori community: he had suffered on their behalf.16 Jones died in 1942, and there was an impressive turnout at his funeral, including representation from Tai Tokerau, indeed a roll-call of much of the Maori leadership of the day:17

Among those present were Mr. Fraser, Prime Minister, Mr. Mason, Native Minister, Mr. Paikea, Minister in Charge of Maori War Effort, and Princess Te Puea Herangi (Ngaruawahia). The Native Department was represented by Chief Judge Shepherd and Messrs. O.N. Campbell, N.S. King, and and P.H. Dudson (registrar of Ikaroa District). Others present were Sir Apirana Ngata, Mr. R. Jones (private secretary to Mr. Paikea), P.H. Jones, Mitu Thompson, Whare Hotu, Rore Edwards, Tai Mitchell (Rotorua), Hapi Love (Petone), Lou Parore (Dargaville), J. Prendeville,18 R. Sinel, J.J. McGrath, and J.R. Kirk.

Jones was replaced briefly as Chief Judge by Judge MacCormick, one of the longest-serving and most experienced Land Court judges (he was a judge for 34 years, from 1906-1940). MacCormick took over as Chief Judge in 1939 but retired from the bench the following year. At his retirement ceremony in September 1940 there was again a large turnout from the bar and from the Maori community, who seem to have regarded MacCormick highly.19 G. P. Shepherd, MacCormick’s successor, became a

14 Commission to Inquire into and Report on the Departments Concerned with Administration of Native Affairs, the ‘Smith Commission’, AJHR 1934 G-II. 15 Report of the Commission on Native Affairs, 1934 AJHR G-11, p 47. 16 “Notable Service: Chief Native Judge: Father to the Maoris: Farewell Function” Evening Post Vol CXXVIII, 15 July 1939, p 25. 17 “Late Mr. R.N. Jones: Maoris’ Tribute”, Evening Post, 2 July 1942, p. 6. 18 Crown Law Office. 19 “Long Service: Native Land Court: Mr C.E. MacCormick: Glowing Tributes Paid”, New Zealand Herald, 7 September 1940, p 13.

6 judge of the Native Land Court in October 1938 and was appointed as Chief Judge by the Labour Minister of Native Affairs, F. Langstone, in 1941. While Jones had some experience in legal practice before his appointment to the bench, Shepherd had had a purely administrative career. Shepherd joined the Public Service in June 1906, and spent 16 years working as a clerk for the Justice Department (principally in Court offices in Otago, it appears), before transferring to the Native Department in 1919, at which point he became a Court clerk and clerk of the Native Land Purchase Board based in Wellington.20 From this position he made his way up the Native Department hierarchy, becoming chief clerk in 1922 and departmental research officer in 1938. He studied law part-time (as was standard) at Victoria University College and was admitted as a solicitor in 1926.21 As judge he presided over the Ikaroa court (Wellington and the South Island), becoming Deputy Chief Judge in 1940, on the retirement of Judge MacCormick, and Chief Judge in 1941.22 Why he was preferred by the government over more experienced members of the bench is unclear; then again, perhaps the position was seen as primarily administrative. But Shepherd did not stay as Chief Judge for long. In 1944 Shepherd became departmental under-secretary and at some point also became the Native Trustee. He obviously found this all too much, and asked to be relieved of the Chief Judgeship in 1945.23 By this time the Native Department, soon to become the Department of Native Affairs, was growing rapidly. It was more inappropriate than ever that the same person should be Chief Judge and Departmental head.

It is also very hard to make a proper and fair assessment of Shepherd in the absence of fuller biographical information about him. His relations with Judge Acheson, of which more below, seem to have been fraught – or at least a number of recommendations made by Acheson in favour of Maori groups in Northland were overruled by Shepherd. Yet like the rest of the Native Land Court bench Shepherd found strongly in favour of Maori and against the Crown in the Lake Waikaremoana and Whanganui River appeals in 1944, so there is no reason to believe that he was particularly disposed towards favouring the Crown. His long experience running the Native Department made him very familiar to the Maori community. No evidence has been found of any Maori hostility to or dislike for Shepherd. According to The Evening Post he was in fact known to Maori as “Te Hepara”, the Shepherd (or the “Good Shepherd”), which of course may be nothing more than a reflection of natural Maori courtesy.24 As chief clerk Shepherd must have worked closely with Ngata, but there is no mention of Shepherd in Sorrenson’s edition of the Ngata-Buck correspondence, which is a little puzzling. According to the newspapers Shepherd was chief clerk “during the important years from 1930 when the Native land development and settlement policy was inaugurated, and later the Native housing programme – years when the economic and social rehabilitation of the Maori race through the land was launched under the guidance and inspiration of Sir Apirana Ngata.”25 However Shepherd did not become under-secretary of the Native Department until 1944, a full decade after Ngata’s resignation. Shepherd held this position during the time of the Labour government, working closely with H.G.R. Mason and Peter Fraser. In his study of government Maori policy from 1900-1950

20 “New Chief Judge: Native Land Court: Mr G P Shepherd Chosen”, New Zealand Herald, 20 February 1941, p 9. 21 “Judge Chosen: Native Land Court: Mr George P. Shepherd”, New Zealand Herald, 23 September 1938, p 10. 22 There seems to be some confusion about when Shepherd became Chief Judge. The standard list of the judges of the Court compiled by Paerau Warbrick and T.R. Waititi and available on the Department of Justice website gives his appointment date as August 1940, whereas newspapers quite clearly state that Shepherd was not formally appointed until February 1941. Perhaps he was made acting Chief Judge on MacCormick’s retirement, and then Chief Judge subsequently. 23 “New Chief Judge” Auckland Star, 29 August 1945, p 6. 24 “Native Affairs: New Under-Secretary”, Evening Post, 8 March 1944, p 4. 25 “Native Affairs: New Under-Secretary”, Evening Post, 8 March 1944, p 4.

Richard Hill suggests that Shepherd played an important role in taming and subordinating to departmental control the Maori War Effort organisation led by Paraire Pakea, but otherwise says nothing about him.26 Maybe Shepherd is a deservedly neglected figure, and maybe not. A full assessment will have to wait until someone decides to write a biography, or at least a comprehensive study of the 1935-1949 Labour government and Maori.

Shepherd was succeeded as Chief Judge in 1945 by D. G. B. Morison, a barrister who had accumulated years of experience in representing Maori in the Native Land Court in major cases such as the Whanganui River litigation. As Chief Judge Morison made the first instance finding in favour of Te Rarawa and Te Aupori in the first round of the Ninety Mile Beach litigation in 1957. Morison is however outside our time frame.

2.4 Investigations of title after 1909

In the 19th century the Native Land Court’s principal function was to investigate titles. By the time of the enactment of the Native Land Act 1909 the flood of investigation of title claims had slowed to a trickle, but it had not come to an end, and indeed there were a number of significant title investigations after 1909. Such cases could arise in a variety of ways. Chiefly such cases persisted because there were still some areas, after 1909, that had not been investigated at any time, for example in remote parts of the Taupo region. There were also some areas that, although not particularly remote, were so highly contested that they had been left out of other blocks apparently by common consent but which finally had to be investigated (examples are Mokoia Island in the middle of Lake Rotorua, or the Moerangi block in the Waikato. There were also areas that needed to be investigated as they had fallen outside survey boundaries by mistake (i.e. they were assumed to have been investigated at some stage, but had not been, or just fallen into a state of boundary confusion) or there was confusion about their legal status (whether title had been extinguished or not), an example being the Puketitiri block Hawke’s Bay. There were also cases where the Land Court carried out investigations of title under specific statutory direction, including the Ngai Tahu cases heard in 1925 by Chief Judge Jones. Finally, this being the most important category, there were areas that had not been investigated because there was doubt about whether the Court had general jurisdiction to conduct an investigation in the first place, or where the Court’s process had been delayed or thwarted by the government for jurisdictional reasons. At issue here are lakes, riverbeds, and the foreshore, a complex subject in its own right. Examples of the latter are the Lake Omapere,27 Lake Tangonge, Rangikohu, Orakei Foreshore, Ngakororo-Whakarapa, and Whanganui River investigations. Judge Acheson played an important role in many of these. There are a number of examples of the Court resisting government interference or delaying tactics (one such tactic prolonging appeals for years, or even decades) and proceeding to hear cases and make orders.

The way the Court went about hearing investigations of title in the 20th century does not seem to have differed in any significant way from earlier years, except that the Court was now sitting without an assessor. Cases continued to be grouped into claims and counterclaims, the claimant making a prima face case after which the Court would hear the evidence of the counterclaimants, the claimants going

26 Richard Hill, State Authority, Indigenous Autonomy: Crown-Maori Relations in New Zealand/Aotearoa 1900- 1950, (Victoria University Press, Wellington, 2004), pp 199-200. Michael Bassett and Michael King in their biography of Peter Fraser (Tomorrow Comes the Song: A Life of Peter Fraser, (Penguin Books, Auckland, 2000), do not mention Shepherd at all, even though he headed the Native Department when Fraser was Native Minister. Nor was Shepherd deemed worthy of notice by the editors of the Dictionary of New Zealand Biography. 27 (1929) 11 Bay of Islands MB 253-261 (NLC, per Judge Acheson); (1953) 12 Auckland ACMB 347-9 (MAC).

8 last. At the very end of the hearing the evidence would be summed up by counsel or by the conductors. Procedure did not change significantly. It was in the early 20th century that the Court’s formerly somewhat ad hoc approach to investigations of title was systematised into a clear body of settled doctrine, reducing the number of take to basically just three, and carefully defining the relationship between take and occupation. This process of systematisation and clarification was principally the work of Chief Judges Jackson Palmer and Jones. An important example of this systematisation and simplification of doctrine is seen with the Titi Islands case (1910),28 an investigation of title into the mutton-birding islands in the Fouveaux Strait region. Judge Jackson Palmer identified the three types of take recognised by the Court, and then proposed a remarkable attempt to codify the complex relationships between take and occupation:29

It may be noted there are three classes of title: - (1) “Take Tupuna” (ancestral); (2) “Take Raupatu” (conquest); (3) “Take Tuku” (gifts for or without consideration and either absolute or limited), but all three classes require occupation down to 1840. The Native Land Court has from earliest times laid down legal maxims in regard to “take” and “occupation,” which are as follows: - (a) “Take,” without occupation, gives no title; (b) occupation without “take” gives no title; (c) long occupation before 1840 is conclusive that it is founded upon a “take”; (d) uncontested occupation in 1840 is the strongest evidence of a “take,” but may be rebutted by very strong evidence; (e) occupation since 1840 is presumptive evidence of uncontested occupation in 1840, but such evidence is weighed according to the length and strength of such occupation, and according to the weight given to it, so will require stronger evidence to rebut it.

2.5 The first historical inquiries: reports to the Chief Judge

A very important component of the Land Court’s work in the first half of the 20th century was the reports to the Chief Judge prepared on an ad hoc basis to inquire into specific Maori historic grievances, many arising from events in the 19th century (including ‘old land claims’ in Northland, reserves in pre-emptive Crown purchases, and the effects of the Fenton agreement at Rotorua). In fact it makes sense to speak of the Land Court as having a separate ‘historic grievances’ jurisdiction at this time, arising independently of the Court’s ordinary functions under the Native Lands Acts of 1909 and 1931.

The trigger of these investigations was usually a parliamentary petition from Maori people raising concerns about a particular matter. Such petitions had to run a complex procedural gauntlet of investigation by the Native Affairs Committee at parliament, parliamentary legislation, a special inquiry by the Native Land Court (or occasionally, the Appellate Court), and a review of the Court’s report by the Chief Judge. By no means were the Chief Judges invariably supportive of their colleague’s findings: as will be discussed later, many of Judge Acheson’s findings in Northland were repudiated by the Chief Judge, invariably meaning that no further action would be taken. If the Chief Judge reported favourably, this could mean that further legislation was necessary to give effect to the findings of the Court, and it could also mean that further hearings by the Court might be necessary to fix lists of beneficial owners, finalise compensation, determine to whom compensation should be paid, and so on. The process involved a lot of hearings by various bodies, beginning with the Native Affairs Committee at parliament, at which petitioners were often represented by such specialist counsel as D.G.B. Morison, followed by the hearings before the special tribunal, if one was set up, followed by yet further hearings if the special tribunal decided these were needed. The process was

28 (1910) Titi Islands MB 35; judgments printed in the Southland Times, 21 February 1910, p 7; Timaru Herald, 26 February 1910, p 2. 29 (1910) Titi Islands MB 35.

9 cumbersome, time consuming, and often characterised by amateurish decision-making (especially by the Chief Judges), but nevertheless it did provide a mechanism of a sort for the redress of historic grievances.

The formal pivot of the process was the various annual “washing up” Bills, another dimension of the legislative labyrinth relating to Maori land issues. These statutes, enacted every year, were referred to as Native Land Amendment and Native Land Claims Adjustment Acts, and in later years more simply as Native (or Maori) Purposes Acts. These annual legislative mélanges, no doubt seen by most politicians as routine fare of no political interest or significance, made endless changes and adjustments to boundaries and titles and directed all kinds of investigations and inquiries. An example is the Native Purposes Act 1937. The Act amended various other technical statutes, and gave legal effect to numerous tenurial alterations and adjustments. Section 12, for example, allowed portions of the Hinewhaki West block to be set aside as a Native Reservation, and s 14 extended the time limits for making valuations for renewals of leases under the West Coast Settlement Reserves Act 1882 (the West Coast reserves were a fertile source for legislative tinkerings of this kind). Section 16 allowed the Chief Judge to refer the various petitions listed in the Schedule to the Native Land Court for an inquiry and report, and 9 such petitions were listed, relating to various land blocks scattered the length and breadth of the country. It was these investigations which resulted in the various reports to the Chief Judge.

Some examples of how the procedure worked may help to see how it operated more clearly. In 1935 Hone Rameka and others filed a parliamentary petition concerning the Mokau-Maginaninga block in Northland. The petition received a favourable response from the Native Affairs Committee, and as a result this petition was listed in the Schedule to the Native Purposes Act 1937 (“Petition No. 158 of 1935, of Hone Rameka and others, relating to the Takapau Block”’). Chief Judge Shepherd directed Judge Acheson to conduct an inquiry, which was heard by the Native Land Court at Kaikohe in January 1939 and again at Auckland in June of that year. Chief Judge Shepherd’s report, overruling Judge Acheson’s findings, is dated 15 September 1941. It is not clear whether the delay between the hearing in 1939 and the transmission of the report to the Native Minister in 1941 is attributable primarily to Chief Judge Shepherd or to Judge Acheson, as Acheson’s long report is not dated – it could well be that Acheson reported reasonably promptly and Shepherd took his time about transmitting to the government his own report together with Acheson’s. It can be seen that the Chief Judge did not merely transmit his judicial colleague’s report to the government, but that he also reviewed it – and did not necessarily agree with it. Judge Acheson was particularly unlucky in this respect, as will be seen. Many of his reports, usually strongly supportive of the Maori claimants, were overruled by Chief Judges Jones and Shepherd.

There are many of these “Reports to the Chief Judge”, some of them quite brief, but many which are very substantial. Acheson’s report in the Takapau block inquiry runs to 7 closely-printed pages. The reports were based on evidence given before the Native Land Court at hearings set aside for the purpose, and often the matters in issue were serious enough for the parties to be represented by counsel. The Takapau Block inquiry is again an example: here the two main Maori parties appearing at the Kaikohe and Auckland hearings were represented by counsel. The Crown would also appear at these hearings to oppose the claim, and to call its own specialist evidence. In the Takapau investigation the government certainly went out of its way to oppose the claim, called evidence, and was represented by Vincent Meredith, the Crown solicitor at Auckland. Both sides invested a great deal of time and effort in preparation, and the case was obviously seen by both sides as very significant. The inquiries could generate not only important factual and historical questions, but also important issues of law and policy, including the law relating to Maori customary title, the Act of

State doctrine, and aspects of public and constitutional law. Some of the most important and interesting decisions of the Native Land Court in this period are buried in these long-neglected reports, which well deserve careful and systematic study in their own right.

3 F. O. V. Acheson: family background and education

3.1 Family background and early career30

Frank Oswald Victor Acheson was a Southlander. He was born at Riverton, in western Southland, on 27 June 1887. His parents were Robert Acheson, a merchant, and Annie Sinclair Acheson (née Allan). By 1905 Riverton was a reasonably solid town, connected by railway to Invercargill. According to the Cyclopaedia the main street of Riverton had “a considerable number of places of business, with branches of the Bank of New Zealand and National Bank; and there are seven hotels”. The town boasted Anglican, Presbyterian, Methodist, and Roman Catholic churches and an “Athenaeum” with “a library and a reading room”. It even had its own newspaper, The Western Star.31 Some sources refer to Robert as “Major” Acheson, obviously suggesting a military background, but he spent most of his later life in business. Major Acheson was an Ulsterman, or at least the Achesons were “a well- known North of Ireland family:”32 One of Frank Acheson’s brothers, Percy, likewise spent his life in business in Southland and also in South Canterbury, dying in 1941.33 Another brother, Albert, became a professor of mechanical engineering at Syracuse University, New York. He controlled a large department with 10 professors and about 400 students, and also practised as a consulting engineer, on occasions advising the provincial government of Ontario and the state government of New York. He died in 1941 “as the result of a sudden heart attack brought on by overwork”.34 One sister, Edith, became a teacher. The children of the family thus did very well, and one is tempted to imagine a family background based on Scottish Presbyterian traditions of hard work, self-improvement and commitment to education. They certainly seem to have been a family of over-achievers.

A window into the family’s life in Southland is provided by an obituary of Annie Sinclair Acheson (Frank’s mother) who died at Auckland in 1931 (from this we learn, among other things, that the family was friendly with the local Maori people in Riverton):35

There passed away yesterday at Auckland one of the early pioneers, Mrs Annie Sinclair Acheson, widow of the late Major Robert Acheson, of Southland, aged 83 years. She was of Highland descent, being a Sinclair of Caithness, and daughter of a Scottish officer who died in the Crimean war. Educated at Edinburgh, she came to New Zealand over 70 years ago, in 1859, in the sailing ship Seville, landing in Portobello and seeing the early days of Dunedin and Invercargill. As a young woman she participated in the difficult pioneering work of carving out a home in the Southland bush, and learned to love and respect the friendly Maoris of those parts.

Much-travelled, and of striking personality, Mrs Acheson was always an interesting lady to meet, even in her very old age, and she had a wide circle of friends. She is survived by two daughters, Mrs J.B. Cupples, of Otautau, and Miss Edith C. Acheson, infant mistress at the Island Bay School, Wellington, and by three sons, Mr Percy A. Acheson of Portland Road, Remuera, Mr. Albert R. Acheson, B.Sc., B.Eng., professor-in-charge, Mechanical

30 This introductory section is largely based on John Acheson and R.P. Boast, “Acheson, Frank Oswald Victor 1887-1948”, Dictionary of New Zealand Biography, Vol 4, 1998, pp 1-3. 31 Cyclopaedia of New Zealand: Vol 4: Otago and Southland Provincial Districts, Cyclopaedia Company and Horace Weeks Printers, Christchurch, 1905, p 931. 32 “Personal”, Wanganui Chronicle, 18 October 1919, p 4. 33 Obituary of Percy A. Acheson, New Zealand Herald, 8 August 1941. The same obituary mentions another member of the family, Professor A.R. Acheson, who lived at Syracuse New York, as having also recently died, as had Frank’s sister Mrs J.B. Cupples. 34 Obituary, Professor A.R. Acheson, New Zealand Herald, 5 March 1941, p 11. 35 Obituary, Mrs Annie Sinclair Acheson, Auckland Star, 20 May 1931.

Engineering School, Syracuse University, New York State, and Mr. Frank O.V. Acheson., judge of the Native Land Court at Auckland, and by a number of children and great- grandchildren.

Frank Acheson attended Riverton School and then Southland Boys’ High School in Invercargill. In 1903 he began work as a clerical cadet for the civil service in Wellington. He subsequently went to Wanganui and then to Dunedin, and in 1907 began studying for an LLB at the University of Otago – presumably part-time, as was standard at that time. He must have been living in Wanganui in July 1907 as he took part in a public debate on 1 July of that year (the topic was “Is Monarchy a Better form of Government than Republicanism?”36). On 1 June 1910 Acheson married Flora Catherine McGregor at Wanganui, and in 1912 the couple moved to Wellington. In 1913 he obtained an LLM from Victoria University College. In 1914 Acheson moved to the Native Department and became clerk for the Native Land Purchase Board. In 1919 Acheson was appointed to the position of Native Land Purchase officer, a responsible and highly-paid position at that time. In 1919 he was briefly a Commissioner of the Native Land Court before being appointed as a judge on 8 October 1919.

3.2 Writing on Maori customary law

Acheson must have written some kind of thesis on Maori customary law for his LLM, and he indeed relied on it in his judgment in the Lake Omapere judgment in 1929. He observed in the judgment that “it happens that the Native Land Court Judge who is dealing with this Omapere case has not only a wide experience of Maori Tribes (and their customs) in many parts of New Zealand, but he has also been engaged for years past in a special study of ancient Maori land tenures (for thesis purposes)”.37 In 1913 Acheson wrote a long essay for the Jacob Joseph scholarship in law at Victoria University which was located in 1999 and was published in part in the Victoria University of Wellington Law Review in that year.38 The original essay is 94 pages long, and comprises eight chapters. Ch 1, “The Strong Arm”, is reprinted in the Victoria University of Wellington Law Review. The remaining chapters deal with ohāki, adoptions, captivity, vassalage, and gifts. These chapters rely to a large extent on material gathered from the Minute Books of the Native Land Court.

Acheson does not actually use the term ‘Maori customary law’. In fact he denies that Maori had ‘laws’ at all (‘strictly so called’). In saying this he probably had in mind the formal distinctions in English law of the time, and in which he will have been trained at Victoria University College. Nevertheless Acheson’ principal purpose with this work is to reject any suggestion that Maori land titles rested on nothing more than force (‘the strong arm’). In his view:39

No one will contend, of course, that this system of land tenures was as elaborate and universally adhered to as those of the civilised nations of today. We cannot say that the Natives of New Zealand, in respect of their rights to land, ever obeyed ‘laws’ strictly so called. They did, however, through many generations and under varying conditions, respect and obey many well-recognised customs relating to land, and a perusal of the evidence hereinafter submitted will indicate that these ‘customs’ are well entitled to be considered a definite system of land tenures.

36 Wanganui Chronicle, 1 July 1907. 37 (1929) 11 Bay of Islands MB 260. 38 F.O.V. Acheson, “The Ancient Maori System of Land Tenures (Some New Aspects)”, (1999) 30 VUWLR, p 667. The essay is titled “A Thesis written for the Jacob Joseph University Scholarship 1913, Victoria University College, Wellington”. It might be the same document as his LLM thesis (Acheson already had his LLM when he submitted this essay for the scholarship), or it might be separate. 39 (1999) 30 VUWLR, pp 667-8.

There was a set of customary practices which were observed and respected:40

Doubtless, the Maori had not studied and digested Austin’s Lectures on Jurisprudence, but nevertheless he knew that, if a man’s ancestors had lived on a certain piece of land for many years and had cultivated it, that man had a claim to the land, and claim which the other members of the tribe, from the Chief downwards, would respect. It mattered not to this Maori whether it was binding Native Custom or the power of a mighty Prince which maintained him in his rights in the land. It was sufficient for him to know that for many generations the rights of his fathers had been respected, and that so the rights of his descendants would, in the ordinary course of events, be respected in days to come.

And at the conclusion of the first chapter of this dissertation he writes:41

Summing up, we find that the Maoris of New Zealand did possess a definite system of land tenure, that this system was universally recognised, and almost habitually respected, and that such occasional resistance was offered that did not materially affect those customs, nor did it have any lasting effect on rights in land. We also find that “Force” was somewhat frequently used as a means of commanding respect for rights in land, thus leading many people to imagine that it was “Force” which really constituted the whole “Law” of the Maoris, and that their only Law was the “Law of the Strong Arm”. We trust we have shewn that it was possible for the Maoris, lacking in civilisation as they were, to have had a system of land tenures; it now remains for us to deal with a few of the ordinary customs under which land was actually held, leaving over the great bulk of these customs for future treatment.

The context of this is important. Acheson was writing very much against the grain of contemporary legal thinking. The only law book of more than local importance published by a New Zealand lawyer in the first half of the twentieth century was John Salmond’s Jurisprudence, first published in 1902 while he was a professor at the University of Adelaide.42 The book was widely praised in its day, and F.W. Maitland, no less, regarded it as “liberal and liberating”.43It is, however, characterised by a fixation on technical classifications (supreme and subordinate legislation; declaratory and original precedents; authoritative and persuasive precedents; wrongs, duties, and rights; elements of legal rights; proprietary and personal rights; legal and equitable ownership; possession in law and in fact; corporations aggregate and corporations sole; and so forth). Salmond writes of the logical structure of the Common Law, or more exactly imposes a logical structure upon it. Even at the time not everyone found this satisfactory. In a letter to Oliver Wendell Holmes, Harold Laski remarked that “[i]f you look at Salmond or Holland whose names are repeated in a tone of reverent ecstacy, you read a dull body of formal definitions so made as to evade all the essential problems involved” and Holmes essentially agreed.44

Salmond believed that “it is in and through the state alone that law exists”45 and his discussion of custom as a source of law is mainly focused on the restrictive rules of the courts of common law as to when a custom may be given effect to. Acheson’s approach to custom and customary law is very different. Although entitled Jurisprudence, the book is not a work of legal philosophy and is almost

40 (1999) 30 VUWLR, p 679. 41 (1999) 30 VUWLR, p 688. 42 Salmond, Jurisprudence: or The Theory of the Law (Stevens and Haynes, London, 1902). For the purposes of citation I have relied on the second edition (Stevens and Haynes, London, 1907). See Alex Frame, Salmond: Southern Jurist (Victoria University Press, Wellington, 1995), pp 54-71. 43 H.A.L. Fisher, Collected Papers of Frederick William Maitland, vol 3, (Cambridge University Press, Cambridge, 1911), p 429, cited Frame, Southern Jurist, p 71. 44 Laski to Holmes, 22 December 1924, Mark de Wolfe Howe (ed.), Holmes-Laski Letters 1916-1935, vol 1 (Oxford University Press, Oxford, 1955), 691, cited Frame, Southern Jurist, p 70. 45 Salmond, Jurisprudence (Stevens and Haynes, London, 1907), p 93.

14 wholly focused on English law, with some scattered references to Roman law and German and French legal writing. It is essentially an analytical distillation of the main distinctions of English law: indeed, it can basically be seen as an attempt to create a theory of English law.46 Moreover Salmond wrote Jurisprudence as an English lawyer, not as an Antipodean one, and one searches it in vain for any discussion of New Zealand’s own legal and historical circumstances. Indeed the book is not a historical treatment in any sense. Rather, his approach is formalist and analytical.47 In no sense was Salmond a conduit of the new collectivist ideas gathering force in the early decades of the twentieth century. He was, rather, a supporter of the enlightened state and a product of the “new liberalism” of the late nineteenth century. Anthropology, moreover, was clearly a subject of no interest to Salmond; and it can be assumed that he did not think that anthropology had anything to contribute to the understanding of law. His stance towards Maori issues is something of a piece with this stance. He believed that the enlightened state had responsibilities towards Maori, but this was to be achieved within a framework of well-designed legislation, rather than by means of the common law or a revitalised collectivism.48

But Salmond should not necessarily be seen as merely a reflection of the views of all New Zealand lawyers. Practitioners and judges working in the Maori sphere had other approaches. It is very striking that it was Land Court judges such as Frank Acheson and Norman Smith who studied Maori customary law and wrote books and articles about it, not legal academics.49 Despite New Zealand possessing, with the Native Land and Appellate Courts, specialist tribunals that applied – in a way – Maori customary law, and despite New Zealand exporting similar institutions to the Cook Islands and Niue, Maori customary law and the jurisprudence of the Native Land Court seems to have attracted little interest in the law schools. Partly that was because the Court’s jurisprudence was invisible; another reason was probably because the Native Land Court was not a prestigious body. Judgments of the Native Land Court were not even reported in the New Zealand Law Reports. The impact of new books such as Llewellyn and Hoebel’s The Cheyenne Way on law teaching appears to have been slight.50 On the whole the teaching of law in New Zealand was highly conservative, and firmly oriented towards British models until the 1950s when the presence of such distinguished professors as James Williams and Robert McGechan at Victoria and Julius Stone and Geoffrey Davis at Auckland began to lift New Zealand legal education out of the doldrums. It was not until the 1980s that courses on Maori land law and Maori customary law finally emerged in the country’s law faculties, twenty years after courses on Federal Indian law began to make an appearance in the law schools of the United States. In this respect, then, Acheson was certainly ahead of his time.

46 See A.W.B. Simpson, “The Salmond Lecture” (2008) 38 Victoria University of Wellington Law Review 669. 47 On the relationship between Salmond and Austin see P.G. McHugh, “Sir John Salmond and the Moral Agency of the State” (2008) 38 Victoria University of Wellington, p 743. 48 On Salmond and legal issues relating to Maori see Frame, Southern Jurist, pp 108-132; R P Boast, “Sir John Salmond and Maori Land Tenure” (2008) 38 Victoria University of Wellington Law Review, p 831; Mark Hickford, “John Salmond and Native Title in New Zealand: Developing a Crown Theory on the Treaty of Waitangi, 1910-1920” (2008) 38 Victoria University of Wellington Law Review, p 853. 49 Norman Smith, Native Custom and Law Affecting Native Land (Maori Purposes Fund Board, Wellington, 1942). See Grant Young, “Judge Norman Smith: A Tale of Four ‘Take’” (2004) 21 New Zealand Universities Law Review, p 309. 50 K.N. Llewellyn and E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (University of Oklahoma Press, Norman, 1941).

3.3 Judge at Whanganui-Tokaanu

Acheson became a judge of the Native Land Court in October 1919. He was appointed to the bench at the same time as H.F. Ayson, formerly of the Native Land Court of the Cook Islands. According to the Dominion for 8 October 1919:51

Two appointments to the Native Land Court Bench to fill the vacancies caused by the deaths of Judge Jackson Palmer and Judge Wilson have been approved by Cabinet. Judge H.F. Ayson, formerly of the Cook Islands Court, who has been acting in a temporary capacity for the Wairakei [sic- Waiariki] Native Land District, Rotorua, has had his position made permanent, while the other nominee is Mr F O V Acheson, of the Native Department. Mr. Acheson, who is a Native of Riverton, and holds the degree of LL.M., was last month appointed Commissioner of the Native Land Court for New Zealand, which meant he was authorised to perform many of the duties of a judge. He has now been invested with full authority as a judge of the Court.

Not long after his appointment Judge Acheson became embroiled in a controversy which made it into the newspapers when a New Plymouth lawyer, P.B. Fitzherbert, sued Acheson in defamation for remarks that Acheson had made about him in Court. The incident happened in July 1920 when Acheson was sitting in his capacity of President of the Aotea District Maori Land Board. Fitzherbert made some kind of application to the Board seeking that the Board pay his (Fitzherbert’s) client, one J.S. McKay, £184 out of Board funds.52 Acheson took an extremely dim view of this application, Fitzherbert, and his client, accusing them of cheating a Maori woman named Atamirikura. Acheson further accused Fitzherbert of gross professional misconduct, and later told him that “there are some other matters of yours that will need some explanation, Mr Fitzherbert”.53 The exact rights and wrongs of this matter are unclear. Perhaps it can be seen as an early example of Acheson’s outspokenness and his vigilance in defence of Maori interests as he perceived them. The defamation action was unsuccessful. Acheson made an application in the High Court seeking to have the case struck out on the basis that it was frivolous and vexatious, statements made by a judge in Court being privileged in any case. The case was heard by Salmond J. in September 1920, who ordered that Fitzherbert’s application be struck out and awarding costs against Fitzherbert in the amount of 10 guineas.

While at Whanganui Acheson got to know Pei Te Hurinui Jones. Jones was a descendant of the Maniapoto chief Hauauru Poutama and had been educated at the Wesley Training College in Auckland. In 1920 Jones was appointed to a position in the Native Department as Acheson’s associate at Whanganui, and continued in this role with Judge Brown when Acheson moved to Auckland and the Tokerau division of the Court. Jones, of course, was to become a notable scholar in the fields of literature (English and Maori) and Maori traditional history.54

By the time he became the Tokerau judge in 1924 Acheson had accumulated a wide range of experience as a Native Land Court judge in Whanganui and Tokaanu. The southern Taupo region was one of the few remaining areas where large-scale investigation of title cases were still going on in the 1920s, and Acheson presided over a number of these. Cases in which he was involved included the investigation of title to the Kaitieke blocks,55 a case relating to complex aspects of succession law in

51 “Native Land Court: Two Judges Appointed”, Dominion, 8 October 1919, p 6. 52 “Judge’s Remarks: Lawyer Claims for Slander: Question of Privilege”, Evening Post, 1 September 1920, p 7. 53 Ibid. 54 “Maori By-Election: Independent Candidate: Mr Te Hurinui-Jones”, Auckland Star, 8 September 1930, p 17. 55 Judgment at (1922) 16 Tokaanu MB 144-148.

16 the estate of Hona Kahukaka (Kai Iwi blocks),56 a relative interests case relating to the Ngapuna block in the Tongariro area,57 and the partitions of the Tapapa No 3 and Hauhungaroa blocks.58

56 Judgment at (1922) 78 Whanganui MB 64-67. 57 (1923) 18 Tokaanu MB 63-64. 58 (1924) 14 Tokaanu MB 198-203; (1924) 20 Tokaanu MB 19-25.

4 Acheson in Northland

4.1 First encounters

In December 1925 Acheson made what was described as an “official tour” of Northland along with C.P. Newton of the Auckland registry of the Court. The “tour’ seems to have been a combination of a kind of ethnographic and archaeological excursion to the Far North and a preliminary investigation of the possibility of starting a Tai Tokerau Board dairy scheme at Parengarenga. The trip was reported in the Evening Post and other newspapers. According to the Evening Post:59

Signs of ancient occupation to be seen everywhere in North Auckland greatly impressed Judge Acheson and Mr C.P. Newton, of the Native Land Court, who have just returned to Auckland after an official visit to the Far North. Hundreds of old pas were seen, many of them so extensive that they must have been defended by hundreds of fighting men. Innumerable shell mounds also betokened a large population in former days. The present-day Maori knows nothing about most of these pas and shell mounds, and it is difficult to believe that the descendants of the main Maori migration of 1350 A.D. could possibly have been numerous enough either to construct so many huge fortifications or defend them when made. Everything seems to point to the existence of a large population in New Zealand long before the migration of 1350 A.D. As they were engaged in investigating the conditions of the Natives in the Far North around Parenga [sic] Harbour, with a view to starting the dairying industry among them, Judge Acheson and Mr Newton did not have time to visit North Cape, Tom Bowling Bay, Spirits Bay, Te Reinga, and Cape Maria Van Diemen, but had a good view of them, and of Three Kings Islands from the high hills on their way round. On the return journey the newly- discovered Wahi Tapu, or ancient burial ground, was visited in company with the owner of the property, Mr James Berghan, of Ahipara. The locality is a very interesting one. Judge Acheson entered one of the burial caves and took notes, but did not care to disturb the numerous remains in the cave.

I am not sure if this trip was Acheson’s first encounter with the peoples and landscapes of the Far North, but it must have been one of his first in-depth encounters. This part of Northland always seems to have had a particular significance for Acheson.

4.2 Acheson as Tai Tokerau judge

It is not possible here to give a full review of all of Acheson’s work as the Tai Tokerau judge, and some brief snapshots will have to suffice.

Acheson was involved in a vast array of Northland cases for twenty years. A newspaper search gives some idea of the kinds of cases that busy judges of the Native Land Court had to deal with in the 1920s and 1930s. The ordinary business of the Court included cases relating to public works takings, Councils seeking charging orders for arrears of rates payments, successions and so on. In 1926 the Herald reported Acheson dealing with fixing compensation for a public works taking of Maori freehold land at Kaikohe for a school:60

A claim for compensation to be paid to native owners of an eight-acre piece of land at the Kaikohe township, which was taken by the Education Board for a school site under the Public Works Act, came before Mr F.O.V. Acheson, Judge of the Native Land Court, at Kaikohe. Mr R.P. Towle (Auckland) appeared for the Education Board. Mr. J.J. Sullivan (Auckland) represented the Native owners. After a

59 Evening Post, 12 August 1925, p 4. 60 “Compensation for Land: Area Taken at Kaikohe: Native Owners Awarded £900”, New Zealand Herald, 9 December 1926, p 14.

considerable amount of evidence by European and native witnesses the Court awarded the native owners £900 compensation.

In July 1927 Acheson dealt with a large number of applications by the Whangarei County Council for charging orders. Acheson adjourned all of them:61

The Tokerau Native Land Court, now sitting in Whangarei, again considered 83 applications for liens over Maori lands upon which rates are outstanding to the Whangarei County Council, but Judge Acheson stated that, pending information as to whether the natives concerned were really indigent, and unable to pay, and because of the absence of Mr. Tau Henare, M.P., who would represent the natives’ position, nothing could be done at present. Accordingly the matter would be adjourned till the next sitting of the Court in November.

Acheson adjourned all of these applications again when they came up at the November Whangarei sittings:62 One gets the impression he was in no great hurry to impose these charging orders on the application of the County Council.

At the Court’s sittings in Dargaville in June 1928 there were complex issues relating to successions, public works takings, and title to land:63

The Maori Land Court, Judge Acheson presiding, gave judgment to-day that Oturei Block, of 2300 acres, near Dargaville, is held by Watikena and others in trust. The judgment decides a contentious position affecting the will of Abraham Taonui, drawn 45 years ago. Legislation enacted last session enabled the present inquiry. The judge foreshadowed a scheme to individualise titles on Maori land and encourage them to farm their own lands when the court defines the families interested in the trust. The question of compensating native owners for land taken for Wairua Falls electrical works, also affecting the title of Poor Knights Islands, will come before Judge Acheson in July.

In 1932 we find Acheson sitting at Whangarei dealing with roadlines and public works takings:64

At a sitting of the Tokerau Native Land Court to-day in Whangarei, considerable concern was expressed by Maori landowners regarding the proposed roadline which is now being surveyed in connection with the Whangarei Harbour Board’s reclamation at Kioreroa. It was stated by the natives that the road would pass through some of the best-cultivation areas, which had been their means of sustenance for the last 50 years.

Mr. W.M. Fraser, engineer-secretary to the Harbour Board, explained the board’s scheme, and at the conclusion the Judge, Mr F.O. Acheson, stated that the Maoris would receive heavy compensation if any injustice was done them. He suggested a conference between representatives of the Harbour Board, Court officials and native owners. This course was decided upon.

In 1934 Acheson had a complex probate case to deal with in the Kaipara region:65

Judge Acheson has been holding a sitting of the Native Land Court at Arapatera, in the Kaipara district, for several days, dealing with the estate of Hiria Kingi, deceased. Probate of this will was granted some two years ago, the sole beneficiary being Kupenga Rawhiti, who, however, nominated certain hapus

61 “Unpaid Native Rates: Problem for Land Courts: Another Adjournment”, Auckland Star, 5 July 1927, p 16. 62 “Unpaid Native Rates: Whangarei County Problem: Conference to be Held”, Auckland Star, 18 November 1927, p 16. 63 “Maori Land Titles”, Auckland Star, 12 June 1928, p 5. 64 “Road for Reclamation: Proposal at Whangarei: Maori Landowners’ Concern”, New Zealand Herald, 27 August 1932, p 12. 65 “Native Land Case”, Auckland Star, 12 October 1934, p 8.

who were considered the next of kin to share with him. An appeal to the Native Appellate Court by Raupaki that she was in the direct line was referred back to the Native Land Court for further investigation. Kupenga Rawhiti, for whom Mr. A.G. Quartley appeared, sought part revocation of probate with regard to the gift made by him of the half-share in the estate. Judge Acheson indicated his intention to grant the motion of Kupenga as prayed. Kupenga agreed to grant to various native residents in the area certain interests that he indicated to the Court. The estate is of considerable value, and there was a large gathering of natives.

As well as this routine fare Judge Acheson was involved in a number of much more complex cases and investigations that raised issues relating to customary title, extinguishment of such title, and intricate historical problems arising from the complexities of the tenurial history of Northland. These issues came up mostly with respect to lakebeds and the foreshore (discussed in a separate section of this report) or as reports to the Chief Judge under the special inquiries system discussed above. One such case which does not fit into either of these categories related to Motu Maire (or Motumaire) and Motu Orangi (Motuorangi), two small islands in the Bay of Islands close to Paihia and the Waitangi Inlet. The case raised complex historical issues relating to old land claims and surplus lands. The evidence showed that the two islands were alienated to the Church Mission Society in 1823 (Motu Orangi) and 1828 (Motu Maire). The purchases were negotiated by the Reverend Henry Williams on behalf of the CMS. As old land claims, both islands were investigated by the Land Claims Commission in 1843. Commissioners Godfrey and Richmond concluded that the two purchases were bona fide transactions. They recommended that a Crown grant should issue for Motu Maire, although for some reason this was never taken up. In a decision of 23 February 1942 Judge Acheson found that the islands were Maori customary land and thus could be investigated by the Native Land Court. His decision was appealed to the Native Appellate Court by the Crown. The Appellate Court allowed the appeal and Acheson’s decision was reversed, one of the many frustrations which Acheson had to endure during his time as the Tai Tokerau judge.66

In terms of legal doctrine, Acheson’s most important judgments were those relating to lakes and the foreshore. These decisions were much more than of purely local importance. They have come to be seen as important in New Zealand legal history more generally and are discussed fully in the next section.

4.3 Reports to the Chief Judge

The way the system of reports to the Chief Judge operated has been described above. Acheson was involved in many of these. It is very noticeable that Acheson’s reports typically failed to survive scrutiny by the Chief Judge, leading to no action being taken by the government on behalf of the original petitioners.

Around 1929 Acheson was involved in an inquiry relating to the Poor Knights Islands (Tawhiti Rahi). The Poor Knights Islands lie 22 km offshore from a point about halfway between Bream Head and Cape Brett. There are two main islands, Tawhiti Rahi (151 ha) and Aorangi (101 ha). Tawhiti Rahi is also the name for the group as a whole. The islands have, of course, a rich Maori history. Acheson’s investigation was carried out at some time between the enactment of the empowering legislation in 1925 and the transmission of Acheson’s report by Chief Judge Jones to the Native Minister on 27 September 1929. No date appears on Acheson’s judgment. (As Jones transmitted a sheaf of such reports on 26 and 27 September 1929 written by various judges it rather looks as if the dilatoriness

66 Appellate Court judgment at (1942) 12 Auckland ACMB 134-136.

20 here was principally that of Chief Judge Jones, who seems to have allowed a number of reports to accumulate before finally commenting on them and sending them off to the Minister.) Acheson’s decision was (in effect) that the Maori customary title to the islands had never been validly extinguished, for reasons that he very carefully explains in his report.67 His conclusions were, however, overruled by Chief Judge Jones who had “no recommendation” to make (code for “no action need be taken”). A similar fate was to befall many other such investigations by Judge Acheson.

Around the same time Acheson was also involved in an inquiry into Motukino Island, located to the east of Whangarei harbour.68 In 1924 Mita Wepiha and others had petitioned parliament asking that the island, assumed by the government to be Crown land, be returned to them. The Native Land Court was directed to investigate the matter by legislation enacted in 1925, which resulted in a hearing at Whangarei presided over by Acheson (the date of which is not disclosed in the printed documentation). Acheson found that the Crown’s putative title to the island was dubious in the extreme, but he also found that there was little practical point in vesting title to the island in the claimants, and suggested that their interests in Motukino be recognised in a pending consolidation scheme, and also that their current use of the island for fishing, birding and so on be recognised. However Chief Judge Jones in effect dismissed Acheson’s report by arguing that the island had been legally granted by the Crown to a third party and had then been repurchased for a valuable consideration. Chief Judge Jones did not address the points raised by Judge Acheson as to whether the Maori customary title had been validly extinguished by the Crown in the first place. (It can be added that modern New Zealand law, unlike Australian law, does not regard inconsistent Crown grant as a valid means of extinguishing customary title.)

Another such inquiry, where Acheson’s findings were once more overruled by his Chief Judge, related to the Waimamaku No 2 block in the Hokianga. This inquiry took place pursuant to s 34 of the Native Land Amendment and Native Land Claims Adjustment Act 1930. Acheson conducted the inquiry in the Hokianga, the Court sitting at Opononi. Waimamaku 2 is adjacent to the Waimamaku River. At issue were a number of areas containing burial caves of great importance to the local Maori people, caves which were apparently at risk of desecration. These were obviously places of great significance. Acheson identifies these places carefully in his report:69

The burial places in question were known by the following names:-

(a) Oturaru or Te Moho. Close to the Waimamaku Stream.

(b) Kohikohi, Te Reapouto, and Te Akaterere: These were burial caves in the bush, and the whole area was known as “Kaharau” (the old name for the Wairau Block) because of the carved images or burial chests deposited in the caves. These carvings are now in the War Memorial Museum at Auckland.

(c) Te Taraire was a burial-place, about 60 acres in extent, on the north side of the Waimamaku Stream. It is outside the reserve mentioned above, and was apparently included in the Waimamaku sale by mistake. It was a burial-ground where the dead were placed on trees.

The Waimamaku No 2 block was originally investigated by the Native Land Court (Judge Munro) in 1875, and a memorial of title issued under the Native Land Act 1875.70 It was argued that the burial

67 [1929] AJHR G-6E. 68 [1929] AJHR G-6B. 69 [1932] AJHR G-6B, p 2. 70 (1875) 2 Northern MB 224 (19 June 1875).

21 grounds were always intended to be reserved from the sale of the Waimamaku No 2 block to the Crown in 1876, and Acheson agreed:

It is quite clear to the Native Land Court holding this present inquiry that the five chiefs who signed the conveyance to Her Majesty the Queen on the 10th January, 1876, thought they were selling the land shown in plan 3268 used on investigation proceedings six months or so previously. The sketch endorsed on the conveyance itself, and the description in the conveyance, would in the opinion of the Court have been quite insufficient to warn the Native vendors that the conveyance included their well- known urupas. It is perfectly clear to the Court also that under no circumstances would five such prominent chiefs have sold to the Crown, for a mere pittance (less than 1s. per acre), the burial places of their ancestors. The Court is satisfied also that the urupas in question were purposely cut out as a reserve before the negotiations with the Crown took place, and that the vendors understood the reserve had been cut out before they signed the conveyance to the Queen.

Acheson once again found in favour of the petitioners, but Chief Judge Jones did not think that the claim was meritorious and again overruled him. According to Jones:71

I have ascertained from the records that this matter has been the subject of various petitions and has also been referred to a Royal Commission (see 1907, C.-18, p. 5). The matter came up in 1887, when the land was being prepared for settlement. It would appear that the question then raised referred to a much larger matter, and concerned a suggested reserve of some 2,400 acres, which included the principal burial-caves. It was said that the reserve was shown on all plans, except the formally approved plan. It is, however, quite clear that no reserve of any kind was made on the deed, which has a specially prepared plan 24 in. by 21 in. attached to the conveyance and signed by all the vendors in the presence of the Resident Magistrate as the plan of the land conveyed to the Crown. In 1891 instructions were given to cut out the burial reserves, provided they did not exceed 2 or 3 acres each, but the Natives refused to point out the cemeteries, unless the line of the suggested reserve was followed, which would take 1,000 or 1,200 acres out of the block, and nothing further was done. It is quite possible that the rest of the reserve (if there was one) might be the northern portion of the adjoining Wairau Block, which was expressly excepted on the sale of the latter block to the Crown. It is quite possible that the Natives are referring to negotiations with Mr. Nelson, which were delayed on account of disputes and finally carried out by Captain Preece, in whose handwriting the deed is. That the dispute was really about the large reserve will be seen from Petitions No. 515/1894, No. 495/1907, No. 135/1910, and No. 206/1925. Unfortunately the most [sic] of the land has been disposed of, and cannot now be recovered. It might be possible to have a part of Section 15, Block XIII, Waoku Survey District, with burial-caves on, reserved. No doubt the licensee would require compensation, and the Natives probably would be averse to paying it. Even if the Government paid this for them they would not be satisfied, but would look upon it as an admission which would entitle them to compensation for the larger reserve that they allege they have been deprived of.

In 1941 Acheson was involved in yet another such inquiry, this time relating to the 7,724-acre Takapau/Mokau-Manginanga Block in the Bay of Islands.72 This block was supposedly originally purchased by the Crown from Ngati Whiu in 1859. The circumstances of the original transaction are obscure, and apparently very little documentation remains today. It appears that most local Maori people had no idea that the block had supposedly been sold, and had continued to occupy the area. The inquiry by Acheson arose from a petition by Hone Rameka and others (No 158/1935), who argued that the land known as Takapau had been erroneously included within the boundaries of the Mokau block when it was sold to the Crown.

71 [1932] AJHR G-6B, p 1. 72 [1941] AJHR G-6.

Acheson found the Crown claim to this area entirely lacking in merit, but his efforts were undercut by Chief Judge Shepherd (not for the first or last time) who rejected Acheson’s report on what can only be described as highly over-generalised grounds deriving from the Chief Judge’s personal knowledge and assumptions rather than a dispassionate review of the evidence. Shepherd also used the decision of Chief Justice Prendergast in Wi Parata v The Bishop of Wellington as a reason to take no action over Judge Acheson’s report:

It was laid down in Wi Parata v. The Bishop of Wellington (3 J.R. (N.S.) S.C. 72 at p. 79) that transactions which73 the Natives for the cession of their title to the Crown were to be regarded as acts of State, and, therefore, not examinable by any Court. Unless, in any particular case, it is clear that some mistake or omission has occurred or that some real injustice has been perpetrated, it seems to me that public policy requires that an appeal be made to some such rule to meet any claims which may be made in respect of these old purchases. It is patent that if this old sale can be attacked, many others might, by the same or similar tokens, be impeached – a state of affairs which cannot be contemplated with equanimity. It is neither in the interests of the State nor of the Natives that contracts anciently entered into, whether with the Crown or private persons, should be the subject-matter of endless review, particularly so in the case of the Natives, for their minds are unsettled, and they are easily mislead [sic] by the expectation of great gains, with the result that their substance is consumed in what must prove to be fruitless and abortive proceedings….I have no recommendation to make in the premises.

Given Shepherd’s statement that he had no recommendation to make, officials unsurprisingly took no action over the matter. As a result of further petitioning a royal commission presided over by Sir Michael Myers was established in 1947. The commission reported in 1948, coming to more or less the same conclusions as Chief Judge Shepherd.74

Acheson’s 1941 investigation was an important inquiry into the Crown purchasing system in nineteenth-century Northland. It is also a further instalment in the story of Judge Acheson’s efforts to obtain a degree of redress for the Maori people of Northland. Acheson himself had to concede, however, that the claimants’ case was “weak on technical and legal issues but strong on the moral issues involved”, the Crown’s case being the other way round.75 In rejecting Acheson’s findings, on the other hand, Shepherd’s somewhat tendentious discussion relies on some rather questionable authority, including Chief Judge Prendergast’s decision in Wi Parata and Commissioner Maning’s report written for the Hawke’s Bay Commission. I note that there is a recent detailed study of the history of this block and of the determinations made by Chief Judge Shepherd and Judge Acheson. This is found in Vincent O’Malley’s report on Crown purchasing in Northland (2006), chapter 6 of which is devoted to the Mokau (Manginaninga/Takapau) block as a case study.76 O’Malley comments that:77

The standards of Crown purchasing applied in the Mokau transaction were indeed no worse than in most other purchases completed in the north in the period to 1865. Those standards were rarely better than abysmal.

73 Sic – with? 74 See Report of the Mokau Royal Commission [1948] AJHR G-2. 75 1941 AJHR G-6, p 2. 76 Vincent O’Malley, “Northland Crown Purchases, 1840-1865”, report commissioned by the Crown Forestry Rental Trust, 2006 (Wai 1040 [Northland Inquiry] Doc#A6]. 77 Ibid, p 375.

In 1942 Acheson was involved in another such inquiry, this time relating to the Maunganui Block near Kaihu.78 The petitioners on this occasion were L.W. (Lou) Parore, who Acheson knew well, and one other person. Parore, a de facto Maori barrister, represented the petitioners himself at the Kaihu hearings (the relevant legislation mandating the inquiry was s 23 of the Native Purposes Act 1938). The Crown was represented by heavy artillery in the form of Sir Vincent Meredith, Crown Solicitor at Auckland, and O.A. Darby of the Department of Lands, who often appeared in cases of this kind. At issue were two reserve blocks, Manuwhetai (110 acres) and Whangaiariki (22 acres). The petitioners argued that these two blocks were reserved and set aside for Maori occupation at the time of the sale of the Maunganui Block to the Crown in 1876. The Crown invested much effort in contending, on the contrary, that no reserve had ever been made, employing a battery of technical evidence including the claim that the original survey places had not been properly checked and certified.79 The Crown attempted to rely on a different survey plan (Plan 3253, 17 May 1875) which did not show the reserves, but Acheson found that this was merely a compiled plan and as such “was no guide whatever to what lay inside the boundaries of Maunganui Block”.80

Acheson’s report, upholding the petitioners once more, was very full and careful. He found that there was more than enough documentation to prove the existence of the reserves.81 Moreover he was incredulous at the suggestion that the chiefs Paora Te Awha and Tiopira Kinaki would ever have intended to part with these reserves: “it cannot be supposed that two high chiefs like Parore Te Awha and Tiopira Kinaki would deliberately sell to the Crown two reserves, both occupied and in regular use for important food and residential needs, and one of them containing big and tapu burial- grounds.”82 Rather, “[t]he clear presumption is that they carried out their chieftain duties and protected the occupation rights of their tribesmen within the area to be sold (1876) by first arranging (in 1875) for the two areas to be surveyed off and marked on the plan as reserves”.83 Acheson made strong findings for the petitioners:

In the opinion of this Court the essential need is to uphold at all times the King’s honour and the standard of British justice in dealings between the two races in New Zealand. The circumstances of this case of “Manuwhetai” and “Whangaiariki” cry aloud for redress for the Natives. The two reserves are theirs and should be returned to them, no matter what cost to the Crown this may involve.

Again, Acheson’s report was overruled by Chief Judge Shepherd. Shepherd thought that the evidence “seemed to negate any real and definite intention on the part of the Natives to retain these areas for their use and occupation”.84 Although the reserves were marked out on public record maps, shown in a list of reserves made in 1900, and referred to in the Stout-Ngata Commission Report (all of which Chief Judge Shepherd accepted) he (Shepherd) was “unable to attach any significance to these references”.85 Shepherd found himself “unable to make any recommendation to the effect that the

78 [1942] AJHR G-6A. 79 [1942] AJHR 6-6A, p 2: (“Mr Meredith, for the Crown, contended that Mr J.S. Smith’s Plan 3297-3298 had no status whatever as a survey plan, because it had not been checked and certified to by any one in authority.”) 80 Ibid, p 3. 81 The way the Crown presented this case, it has to be said, seems to have been founded on the assumption that the onus of proof of the existence of the reserves fell on the petitioners. That the Crown would deny the existence of the reserves notwithstanding a considerable amount of documentation pointing to their existence seems very mean-spirited. 82 [1942] AJHR g-6A, p 4. 83 Ibid. 84 Ibid, p 1. 85 Ibid, p 2.

24 areas should be revested in the Natives”.86 The best he could think of was that the Crown should take some efforts to prevent the burial caves from being desecrated; “if that arrangement be not practicable, then perhaps the Natives might be permitted to exhume any human remains and reinter them in some other suitable spot”. Acheson’s efforts were frustrated once more.

All the examples given here thus ended in defeat, not only for Acheson but also for the Maori people that he found in favour of. It may be that to some extent the reasons for these constant overturnings arose from genuine differences of opinion as to the law. There is, on the other hand, definitely a pattern of continual reversal. These examples also show the weaknesses of this process, in that a careful judicial inquiry by Acheson was always at risk of being overturned by the Chief Judge. The system was not one based on proper appeals, argued in open court and with counsel for both sides making contending arguments. The Chief Judge merely read through the papers, we must assume, and made his decision in his judges’ chambers.

4.4 President of the District Maori Land Board and support of Maori farming

As seen, Acheson seems to have intended a dairy scheme for the Far North as early as August 1925. By November 1927 the scheme had progressed significantly. According to the New Zealand Herald:87

The President of the Native Land Court, Mr F.O.V. Acheson, paid a visit to the Karakanui native settlement, Pahi, to elect a committee and explain the workings of the Karakanui dairy scheme. On behalf of the native owners, Mr Bloy welcomed the Judge to the settlement. After inspecting all parts of the settlement and explaining carefully the workings of the scheme to the people, Mr Acheson presided at the meeting which elected the committee. Mr Bloy was appointed to act as manager and Government representative. The work is proceeding immediately.

The Te Kao scheme was eventually to absorb a great deal of money and became the centre of complex disputes. I have not had an opportunity to properly research this matter.

Maori Land Board support for Maori farming in Te Tai Tokerau was not confined to the Te Kao scheme but was far more widespread, as the following article in the New Zealand Herald makes clear:88

Reference to the satisfactory position of the finances of 78 separate farms started in the Kaipara, Bay of Islands, Hokianga and Mangonui districts by the Tokerau Maori Land Board, was made by the president, Mr F.O.V. Acheson, Native Land Court Judge, yesterday.

The advances totalled £23,952, or an average of £307 a loan, he said. All Maori money had been used, none from the Government. Within three years the natives had paid back £10,517, of which £3,291 represented interest…Mr Acheson said these farms were separate from the board’s Te Kao scheme.

86 Ibid. 87 New Zealand Herald, 10 November 1927, p 15. 88 “Loans to Maoris: Tokerau Land Board: Satisfactory Repayments”, New Zealand Herald, 27 April 1934, p 13.

5 Lakes and the foreshore

5.1 Introduction

Cases relating to lakebeds, navigable rivers, and lakes became increasingly important in the twentieth century. Probably the most important and complex of these was the sequence of cases relating to the Whanganui River. This great case began at Whanganui on 3 November 1938, with judgment being given the following September and went on to have a very complicated procedural history ultimately involving two decisions of the Court of Appeal as well as a Royal Commission report.89

Much of the litigation over inland waterbodies, as with the foreshore, was driven by Maori concerns about fisheries, which as a result of expanding European settlement and government policies were coming under various kinds of threats. Freshwater fisheries were of great importance in the Maori customary economy, and remained significant well into the twentieth century.90 The resource was threatened in three different ways: by reckless drainage and destruction of lakes, wetlands, and lake margins in the interest of the great New Zealand idée fixe, the expansion of pastoral farming; by water pollution and the proliferation of exotic plants and weeds; and, finally, by the deliberate introduction of trout and other freshwater species into the country’s waterways and lakes as a recreational resource and as a device to attract so-called “sportsmen” tourists to the country. In many cases, such as the Rotorua lakes, Maori fisheries were threatened by all three. The environmental history of New Zealand’s inland lakes and waterways is on the whole a dismal and embarrassing narrative, redeemed only by the inclusion of many lakes within the boundaries of the nation’s national parks (which even then has not necessarily kept them safe). Until recently, the government did nothing to halt this destructive assault on the nation’s freshwater resources, and indeed was one of the primary culprits. Although the government tenaciously resisted Maori attempts to gain proprietary rights to lakes like Omapere, Tutira, and Waikaremona, the fact is that government stewardship of such waterbodies has often been very poor. The government has been actively involved in draining lakes, lowering them, raising them, stocking them with introduced species, and even in being actively involved in trying to exterminate native birds or eels that were believed to get in the way of the all-important introduced trout fishery.

R.M. McDowall has drawn attention to the ideological impetus lying behind “acclimatisation” and the introduction of fish species from Europe and North America into New Zealand’s lakes and rivers. This was not done simply to provide recreation and promote tourism, although these were certainly important aspirations. Another factor was that of perception and a kind of environmental imaginary: the indigenous fish were not seen as significant or valuable, compared to what could be seen and caught in British waters.91 However introduction of fish stocks from overseas was not easy to do (compared with the all too easy introduction of rabbits, stoats, opossums, and other follies). In the 19th

89 In re the Bed of the Wanganui River [1955] NZLR 247 (CA); In re the Bed of the Wanganui River [1962] NZLR 600 (CA). See also The King v Morison [1950] NZLR 247; Report of the Royal Commission on Claims made in Respect of the Wanganui River 1950 AJHR G-2. 90 There is a large literature on Maori freshwater fisheries. The most detailed and comprehensive study is R.M. McDowall, Ikawai: Freshwater fishes in Māori culture and economy (Canterbury University Press, Christchurch, 2011). (McDowall was a freshwater scientist with a life-long interest in Maori fishing: his massive book is a mine of information on all aspects of the subject). The classic older ethnographic study is Elsdon Best, Fishing Methods and Devices of the Maori (Dominion Museum Bulletin No. 12, Wellington, 1929). There is also much information on Maori freshwater fishing in a number of Waitangi Tribunal reports, and in reports and expert evidence prepared for Waitangi Tribunal inquiries: see especially Waitangi Tribunal, Te Ika Whenua Rivers Report (Wai 212) (GP Publications, Wellington, 1998). 91 McDowall, Ikawai, p 636.

26 century “there was no proven technology to facilitate transport of cold-water fishes from Britain to New Zealand, a trip taking months by sailing ship, and including a passage of some weeks through the tropics”.92 Introducing these fish required real effort and determination, which was largely supplied by the acclimatisation societies which first became established in the 1860s and which grew to become a familiar part of the New Zealand scene. Brown trout were introduced in 1867 from stock shipped to Tasmania, and rainbow trout in the 1880s. Many other species followed. To some extent the societies were funded and supported by the state, which also helped by establishing trout hatcheries in some areas. Rainbow and brown trout were introduced into the Rotorua lakes and Lake Taupo around 1900; Lake Waikaremoana had been stocked with rainbow trout by 1907.93 Maori were not asked whether they wanted the country’s waterways transformed in this way. The ecological transformation was rapid, and was soon causing alarm amongst Maori, who were concerned about the damage done to native species and angry that they now had to pay for fishing licences for the privilege of taking fish from rivers and waterways that they regarded as their own property.

Perhaps one of the more astounding aspects of acclimatisation was the systematic destruction of indigenous species, not accidentally or as a result of predation by introduced trout or the loss of habitat, but deliberately. Acclimatisation Societies, with a degree of government support, undertook large-scale campaigns in some areas to exterminate eels, who supposedly were competitors with introduced trout and salmon. Anglers were encouraged to behead eels with sabres and hoes, and some Acclimatisation Societies hired professional eel catchers. The dead eels were simply tossed on the riverbanks. In western Southland the Wildlife Service of the Department of Internal Affairs was active in culling eels in the Waiau River in order to protect introduced Atlantic salmon as late as the 1970s. These dubious practices have now ended, but the eel population now remains at risk through commercial exploitation.94 Eels were not the only species to be targeted in the interests of the introduced fishery. In 1922 the General Manager of the Department of Tourist and Health Resorts concluded that the trout fishery at Lake Waikaremoana was endangered by the shags that lived around the lakeshore, and steps were taken to have the birds shot, despite the lake having the status of a wildlife sanctuary.95 Whether similar actions occurred in Northland I am unsure.

5.2 The Omapere case, 1929

Introduction

Lake Omapere (Ōmāpere) is a large shallow lake near the town of Kaikohe in the Bay of Islands region, and is the largest lake in Northland. The lake, formed by an ancient lava flow, is about 5 km in length and has a surface area of around 12 km2 (1,231.47 ha). The lake is situated in a volcanic region, close to the Ngawha geothermal field, and there are a number of volcanic cones in the vicinity. There are hot springs in the lake near the south-western shoreline. A number of small streams run into the lake and it is drained by the Utakura river. The lake is apparently named after mapere, a type of native grass (Gahnia xanthocarpa).

92 Ibid, p 637. 93 Ibid, p 638. 94 On the anti-eels campaign see McDowall, Ikawai, pp 700-707. 95 Memorandum, 18 September 1922, FW 3129 IA 52/3, cited Walzl, Waikaremoana, p 115. The lake was not technically a sanctuary as such at this time, but it had been “declared a reserve in which native and imported game, except red deer, shall not be taken or killed”, which Internal Affairs Department staff thought amounted to more or less the same thing.

Lake Omapere, located within the rohe of Nga Puhi, is still in Maori ownership and is managed by the Lake Omapere Trust. The Lake Omapere case of 1929 resulted in a lengthy and complex judgment by Judge Acheson, arguably the most important decision of his judicial career. The principal claimant was Ripi Wihongi of the Te Uri o Hua hapu of Nga Puhi. The title claim by the owners was unsuccessfully opposed by the Crown, (which appealed the decision to the Appellate Court, only to abandon it 24 years later) and the case is an important component of the long legal struggle between Maori and the government over the ownership of lakes, river beds, and the intertidal zone. In this instance Maori were successful, but the history of the lake since the case has not been a happy one and the lake continues to be a source of conflict and controversy to this day. Runoff from dairy farms and other sources have impacted severely on water quality levels (water quality in Lake Omapere is officially rated as “poor”, but there are signs of recent improvements). In 2014 the lake levels rose, flooding parts of some nearby dairy farms, leading to calls from some people for the lake levels to be lowered: a step opposed by the owners who were concerned that this would further reduce water quality levels. There are still significant populations of tuna (eels) in the lake, and a water quality restoration plan has been in operation since 2006.

Events leading to the 1929 decision

The background to the 1929 decision is analysed fully in Ben White’s monograph (1998).96 According to White, throughout the nineteenth century “Maori were tacitly acknowledged as being the exclusive owners of the lake”.97 In the twentieth century, however, efforts by a European settler in the vicinity to have the lake level lowered in order to protect their farms from seasonal floodings resulted in local Maori people taking steps to defend their ownership of the lake. Although this seems at first sight to be a classic case of a resource conflict between Maori and Pakeha, this is not exactly the case. According to White:98

During the winter months the level of Lake Omapere would rise and adjacent farms would be flooded. As in the case of many lakes in the North Island, the owners of such land brought pressure to bear on the Crown to permanently lower the lake’s water level. However, unlike the situation with other lakes where pressure was being exerted by a large number of settler farmers, in the case of Lake Omapere it appears that only one property was seriously affected by the lake rising in winter. Evidence exists that around the turn of the century, the owners of the Omapere estate, being land abutting the south shore of the lake – simply assumed the right to lower the lake. Although this action prompted a deluge of protest, interestingly this was largely from Pakeha.

Lowerings of the lake by the owners of the Omapere estate in order to bring additional land into production appeared to adversely affected the fishery, as did the introduction trout and carp.99 In the first decades of the 20th century the Crown showed no particular interest in the lake, or asserting a Crown title to it; officials were unsure whether or not the lake, or only a part of it, was in Crown title. At the time of the construction of the Okaihau railway line engineers working for the government began to take steps to lower the lake, but as a result of Maori protest this was stopped. It was Maori efforts to seek a title to the lake in the Native Land Court which generated a Crown response: in other words the government’s action was a result of steps taken by Maori, rather than the other way round. Certainly in 1929 the application for investigation for title was strongly opposed by Crown counsel.

96 Ben White, Inland Waterways: Lakes (Rangahaua Whanui National Theme Q) (Waitangi Tribunal, Wellington, 1998), Wai 1200 [Central North Island] Doc#A55; Wai 894 [Urewera] Doc#A113, pp 203-247. 97 White, Inland Waterways, p 203. 98 White, Inland Waterways, p 205. 99 White, Inland Waterways: Lakes, p 209.

This can only be explained as arising not from any concerns about Lake Omapere itself but within the broader context of the Crown’s opposition to lakebed claims generally. Newspapers of the day drew attention to the implications of the Omapere case for Lake Waikaremoana, and noted also that the government had bought land around the perimeter of Lake Omapere perhaps with a view to hydroelectric generation. According to the Otago Daily Times for 20 June 1929:100

The Tokerau Native Land Court now sitting at Auckland is hearing argument in a case involving a settlement of the question whether Lake Oruapere [sic], Bay of Islands, belongs to the Crown or to the sub-tribes of Ngapuhi. The decision is likely to have an important bearing on the claims of the Maoris to the Lake Waikaremoana site of the Government hydro-electric works.

Judge Acheson is presiding. Mr Meredith is representing the Crown, and associated with him is Mr Prenderville (Crown Law Office, Wellington), and Mr Darby (Survey Department).

Important questions such as the effect of the Treaty of Waitangi and the claims of the Crown to all lakes and lake beds are involved in the legal argument.

The wider implications of the case were also addressed in a report in the Press of 21 June 1929 describing the outcome of the proceedings (emphases added):101

The ownership of Lake Omapere, near Kaikohe, which has been in dispute between sub-tribes of the Ngapuhi Tribe and the Crown, was definitely awarded to the Maoris in a decision by Judge F.O.V. Acheson, in the Native Land Court to-day.

Judge Acheson said that the bed of the lake did not belong, nor had it ever belonged, to the Crown. No portion of the lake had been ceded to the Crown by treaty, and it was indisputable that the bed of the lake and its fringe to the level of the waters before the recent draining were carried out was Native “customary” land owned by the Ngapuhi and sub-tribes. In view of this any orders issued affecting the area would have to be amended as they had been made by mistake.

In addition it was held that the Crown in New Zealand had no right whatever to any lake beds

Important issues are involved in the decision for similar claims have been put forward by the Natives in respect of Lakes Rotorua, Taupo, and Waikaremoana.

The Crown has purchased areas of land around Lake Omapere and there was a proposal that the lake should be exploited for hydro-electric purposes. The decision of the Court will have an important bearing on these sales, as it was held that the disposal of tribal land was a tribal right and could not be exercised by individuals.

Procedural history

The application to have title to Lake Omapere investigated was first lodged in 1913, but it was to take 16 years before the investigation finally took place. According to White, the delay was caused by some Crown officials thwarting the case from being heard by refusing to compile a plan of the lake as was required for the investigation.102 In 1922, however, Chief Judge Jones advised the Native

100 “Native Land Court: Ownership of Lake Oruapere” [sic], Otago Daily Times, 20 June 1929, p 13. 101 “Lake Beds: Not Crown Land: Judge’s Important Decision”, Press, 21 June 1929. 102 Commissioner of Crown Lands, North Auckland, to Under-Secretary of Lands, 21 October 1921, LS 1 22/2679, LINZ Wellington, cited White, Inland Waterways: Lakes, p 224. White cites the following passage from this document: “As the ownership of the lakes beds [sic] is still under consideration, I have up until the present refused to compile a plan for investigation purposes in respect of Lake Omapere, and should be glad of your direction as to what attitude I am to adopt in regard to supplying a plan for this purpose” (ibid).

Minister (Coates) that as a result of the Tamihana Korokai case Maori were entitled to have their claims to lakebeds heard in the Native Land Court, and that a plan should made available. Coates heeded this advice and in September 1922 ordered the Survey Department to prepare a plan.103

The Omapere case was heard in two separate hearings, the first at Kaikohe, and the second at Auckland. The Kaikohe hearing was on 5 March 1929, and a great many local Maori people were present. Opening submissions were given by Crown and claimant counsel, and evidence on the traditional history of the lake and on its resources was given by local Maori people, notably by Hemi Wi Hongi of Te Uri o Hua. At the first hearing the Crown was represented by a lawyer from the Crown Law Office at Auckland (Hubble) and by Owen Darby of the Department of Lands; the claimants, who were a coalition of various hapu groups, had a number of counsel. The second hearing was at Auckland on 19th and 20th June, and was devoted mainly to legal argument, although the Crown also obtained leave to present some additional technical evidence on the geology and geomorphology of the lake. For the Auckland hearing the Crown brought out its heavy artillery in the form of V.R. (later Sir Vincent) Meredith, senior Crown Solicitor at Auckland, a very prominent member of the Auckland legal establishment. . Acheson appears to given a preliminary oral judgment in favour of the claimants on 20 June at Auckland, which he followed up with a long written judgment dated 1 August. The lengthy typescript is pasted into folios 253-261 of the Bay of Islands Minute Book.

As noted, the Crown appealed against Acheson’s decision, the appeal being adjourned at various times until its final abandonment in 1953. Both claimant counsel and the Appellate Court were very critical of the long delay, and costs were awarded against the Crown.

“The basis of the claim in this Omapere case arises out of advice given by counsel”: Evidence and legal submissions

After a few adjournments, the case began at Kaikohe on 5 March 1929. The case was quite an occasion, as the Minute Book makes clear:104

Very large gathering of Natives present including nearly all the leaders.

Both sides were represented by counsel, the Crown by Mr Hubble from the Crown Law Office at Auckland, and the claimants by a number of counsel: E.C. Blomfield, a Mr Guy, a Mr Webster, and L.W. (Lou) Parore (himself Nga Puhi),105 of whom Blomfield took the lead, at least in terms of presenting the argument. At the start of the case the Crown outlined its principal contentions:106

The contentions of the Crown summarised are:

103 Addendum (7 September 1922) to Memorandum from the Native Minister from Private Secretary, 6 September 1922, LS 1 22/2679, LINZ, Wellington, cited White, Inland Waterways: Lakes, p 225. 104 (1929) 11 Bay of Islands MB 44 (5 March 1929). 105 L.W. (Lou) Parore, claimant co-counsel, is a key figure in Tokerau Maori history in his own right. Parore, who affiliated to Nga Puhi and Te Roroa, was born in Dargaville in1888, qualified as an interpreter and who devoted his life to seeking redress for the historic grievances of the Maori iwi of Northland and Auckland. He argued a number of cases before Judge Acheson, including the Orakei Foreshore case in 1941. He was closely connected to Sir Apirana Ngata and was a supporter of the development schemes project. Among the many causes that Parore was associated with was the establishment of the Waipoua Forest Sanctuary in 1952. Parore died in March 1953, and thus did not live to see the Crown’s abandonment of its appeal in the Omapere case in October 1953. On Parore see Garry Hooker and Robert Parore, “Parore, Louis Wellington 1888-1953, Nga Puhi and Te Roroa leader, interpreter, land court agent”, DNZB vol 4, 1998, pp 398-400. 106 (1929) 11 Bay of Islands MB 44-45 (5 March 1929).

(1) Native custom does not recognise ownership of lakes.

(2) That being so, the beds of lakes belong to the Crown.

(3) Further the Crown purchased large areas fronting onto the lake, and thus acquired the area in the bed of the adjoining areas acquired. The Crown also acquired riparian rights – i.e. the right to [block?] water and the right to use water and possibly the right to navigation of the lake waters.

Blomfield then opened the claimant case:107

I propose to lead evidence on behalf of all the Natives as against the common enemy the Crown.

This evidence however is not to prejudice claims [47] of Natives as between themselves.

Lake Omapere is a shallow lake of about 3015 acres – not navigable and not used for ordinary purposes of navigation.

The Crown claims referred to by Mr Hubble are mere assertions of right. Something more than mere assertions will be required, and I am not called upon at present to produce evidence in rebuttal of such assertions.

It must be common ground that the title to Omapere Lake has never been investigated.

Even now the Crown is not claiming that it purchased the Lake itself.

There is more onus on the Crown to prove its right to the Lake than there is on the Natives to prove their ownership. However, I shall call evidence to prove use and ownership according to ancient Maori custom.

Blomfield proceeded to call as his first witness Hemi Wi Hongi. He began his evidence by describing his personal connections with the lake and its surrounding landscape, and described some of the changes in land tenure in the region:108

I belong to Te Uriohua hapu. I live at Kaikohe, born there. I am 72 years’ [48] old and have lived all my life of Taraire No. 1 block, not far from this Courthouse. The Courthouse is in Taraire No. 1. Taraire No. 2 fronts Lake Omapere. I am still an owner in both blocks.

My father was Wi Hongi. He was born on the other side of Omapere Lake – right on the edge of the lake. His father lived there also, died there, and was buried there.

From my boyhood I have been very familiar with this Lake and its shores.

I claim this Lake. It belonged to my ancestors.

Mawhekairangi (Okaihau No.1) was the first piece sold, to the Crown. Sold 8 December 1858.

I heard of this sale when I was a boy. It was not really a sale, but was a “muru”, a plundering, a confiscation. At [the] time of that sale, no part of the lake itself was sold.

From that time up to the present the Natives continued to use the lake for fishing purposes.

107 (1929) 11 Bay of Islands MB 46-47 (5 March 1929). 108 (1929) 11 Bay of Islands MB 47-8 (5 March 1929). This is evidence in chief. By 1929 it is likely that claimant witnesses did not speak extemporaneously, but gave their evidence in response to examination questions from counsel. The practice in the Native Land Court, as in all courts, would be to incorporate questions and answers into a continuous narrative.

Other sales took place after 1858 of various areas fronting the lake.

After going through some of the other sales and explaining that none of them were sales of any part of the lake itself, Hemi Wi Hongi turned to the resources of the lake. He said that there were no less than six species of eels living in the lake.109 The eels were caught in different ways according to species, some by means of eel weirs and others in baskets (hinaki) and with spears. The people also took freshwater pipis from the lake.110 Maori dug for kauri gum around the perimeter of the lake, and were apparently still doing so at the time of the case:111

There is also gum to be found along the edge of the water. The lake lowers its level in summer, and the Natives dig for gum.

At no time, said Hemi Wi Hongi, were the local people disturbed in their use of the lake and its resources:112

The Natives have not at any time been disturbed in their use of the lake for fishing and gum-digging purposes.

I was very much surprised to hear of the Crown’s claim to this lake – it is the first time I have ever heard of such a claim.

In his judgment Acheson observes that at the Kaikohe hearing “the Court expressly limited the quantity of evidence by the Natives as to occupation because the facts were so well known and it was understood that they were not being contested by the Crown”.113 The hearing at Kaikohe lasted for only a day (5 March) and the case was then adjourned to Auckland for legal argument. Argument took two days, 19th and 20th June 1929. The claimant case was argued by Blomfield and Parore, and that for the Crown by Vincent (later to be Sir Vincent) Meredith, the Crown solicitor at Auckland, a powerful and imposing personality, tenacious of the Crown’s rights, and something of a foil to Judge Acheson. Meredith claimed that Lake Omapere was navigable, on the basis that navigable means “capable of being used by any craft.”114 Blomfield disagreed, conceding that small craft could and did use the lake but he did not “admit that the lake is ‘navigable’ within the strict meaning of that term”.115

109 (1929) 11 Bay of Islands MB 50 (5 March 1929).On the importance of Lake Omapere as an eel fishery see White, Inland Waterways: Lakes, pp 208-9. White has located a letter from one W.E. Bedggood (“Lowering Lake Omapere: An Old Resident’s Protest”, Northern News, 2 July 1921, cited White, Inland Waterways: Lakes, p 208): At certain times of the year the eels leave the lake by the thousands on their way to the deep sea to breed. The Maoris became acquainted with this fact, and by spreading a funnel-shaped net across the outlet, with an eel pot at the end, were able to catch them by the hundred. One man stood in the water and when the pot was full handed to his mate on the bank, who handed him another to be fastened to the net, the full one being emptied into a pit with upright sides dug for the purpose. 110 (1929) 11 Bay of Islands MB 51 (5 March 1929). 111 (1929) 11 Bay of Islands MB 51 (5 March 1929). Kauri gum workings around Lake Omapere were apparently quite extensive. By 1929 gum digging will have been declining. 112 (1929) 11 Bay of Islands MB 52 (5 March 1929). 113 (1929) 11 Bay of Islands MB 263 – i.e. the real matters in issue were of law, not fact. 114 (1929) 11 Bay of Islands MB 235 (19 June 1929). This is to assume that it was relevant whether the lake was navigable or not, a fundamental point. In New Zealand the Crown owns the beds of “navigable” rivers by statute, but there is no equivalent provision relating to lakes. 115 (1929) 11 Bay of Islands MB 335 (19 June 1929).

Meredith went on to press for a restricted interpretation of the Court of Appeal’s decision in Tamihana Korokai v Solicitor-General,116 and claimed further that if Maori were successful in this case it would a “national disaster”, adding that not only that Maori customary law did not recognise title to lakes but also that the claim had been more or less invented by the claimants’ legal advisers (thus managing to insult both local Maori people and opposing counsel):117

In Tamihana Korokai v Solicitor-General it was decided that the Native Land Court has exclusive jurisdiction to determine whether any block of land is “customary land”.118

If it were to be held to be established law that the Natives are entitled to the beds of all lakes then it follows that they will be entitled to the beds of all inland navigable waters in New Zealand – which would be a national disaster.

It is to be noted that such claims on behalf of the natives have only been raised in recent years.

It is suggested that the basis of the claim in this Omapere case arises out of advice given by counsel for the Natives rather than from any claim made by the Natives themselves based on custom.

I say that there is no evidence whatever to show that in Native Custom the Maori claimed [236] in the beds of lakes.

Acheson’s preliminary judgment (June 1929)

Acheson’s written judgment, pasted into Bay of Islands Minute Book 11, is dated 1 August 1929, but this was preceded by an oral judgment given on 20 June. The earlier judgment was summarised by the Auckland Star on the following day, the Star emphasising Acheson’s remarks on the Treaty of Waitangi:119

The bed of Lake Omapere is still owned by the sub-tribes of the Ngapuhi, according to an important judgment delivered in the Native Land Court at Auckland yesterday by Judge F.O.V. Acheson in the case in which the Crown contested the claim of the natives. The judge held that the Treaty of Waitangi still held good and based some of his finding upon its terms. The judgment may have far-reaching effects, as such lakes as Waikaremoana may be involved.

Judge Acheson said he would give a written decision later, as it was probable the case would go to the Court of Appeal and possibly to the Privy Council. The claim of the Crown that the bed of the lake was Crown land had been supported by no evidence whatever. The Maoris could only be divested of their title by legal procedure and that had not been shown. The judge said that in the Treaty of Waitangi there was a definite article that guaranteed to the natives their rights in their lands, estates, forests and fisheries.

Final judgment: an analysis

Acheson’s judgment is impressive in very many ways, not least in its scholarship and deployment of sources (including a wide range of authority, both English and New Zealand, numerous statutory

116 (1912) 32 NZLR 321, 15 GLR 95 (CA). 117 (1929) 11 Bay of Islands MB 235-6 (19 June 1929). 118 This is by no means all that Tamihana Korokai decided, however. It had been long-standing Crown Law policy to press for a narrow ratio of Tamihana Korokai. Crown Law had tried to do the same thing before the Native Land Court in the Rotorua Lakes case (presumably the submissions in the latter were written by Salmond). 119 “Maoris Own the Lake: Dispute over Omapere: Treaty of Waitangi Still Holds Good: Decision by Judge Acheson”, Auckland Star, 21 June 1929, p 3.

33 provisions, and other sources including material printed in the Appendices to the Journals of the House of Representatives). The judgment was delivered in Auckland, which will have meant that Acheson would have had access to a reasonable law library – something that would not be available anywhere on circuit in Northland. The judgment could not have been crafted without a law library to hand. The judgment is a long one and is very carefully written and set out. Acheson, fully aware of the importance of the case, must have worked very hard on it.

The judgment is clearly structured, beginning with a concise description of the procedural history of the Omapere case and moving into a very careful summary of the respective contentions for each side, set out in such a way that the opposing contentions of fact and law are explained with great clarity. Judge Acheson then describes the geomorphology of the lake itself, and makes a finding that whether the lake was originally a forest or not is basically irrelevant. He next deals with the general status of lakes and lakebeds in English and New Zealand Common Law before providing a remarkable summary of all the principal lake claims and cases in New Zealand (including Lake Wairarapa, Lake Tarawera, Lake Taupo, and the Rotorua lakes cases) He then goes on to deal at length with the substantive matters in issue.

The Native Land Court is often accused by historians of taking an unusually doctrinaire approach to evidence, relying strictly on oral testimony to the exclusion of all other relevant material. Even with regard to the nineteenth century Court this claim is exaggerated, but it is certainly not true of Acheson’s 1929 judgment. For example, he refers to a published bulletin of the New Zealand Geological Survey which describes the geology and geomorphology of the lake. The issue was the date of the formation of the lake, which Acheson concluded was not relevant to the issue of title determination in any event. The Crown called expert evidence from a Professor Bartrum, professor of geology at Auckland University College, but Acheson was sceptical about his evidence (Bartrum had apparently not actually inspected the lake outlet) and refused to be side-tracked into an argument about geological history. Acheson, as noted, gives a very full summary of all the other important Maori claims relating to lakes and lakebeds in New Zealand legal history (“all the precedents of any importance which the Court can trace”120), which seems to have been put together from his own reading of parliamentary papers and other Land Court decisions. Indeed the entire judgment is littered with references to, and long quotations from, parliamentary papers and other extrinsic documents and can be said to be drawn from a much richer range of material than would be the case for decisions of the Supreme Court or the Court of Appeal at this time. Most remarkably, Judge Acheson also refers to his own research “for thesis purposes”:121

He [i.e. Judge Acheson] has perused his own records and more particularly his notes of old Native Land Court judgments and his notes of practically all the old authorities whose views worth having.

Judge Acheson then lists all these authorities in his judgment, and they are a formidable group, including Chief Judge Fenton, Bishop Selwyn, Commissioner Spain, Chief Protector George Clarke, Octavius Hadfield, and the Reverend Richard Taylor. Nothing could be further from the stereotypical picture of the Native Land Court judge confining himself strictly to oral testimony.

In terms of legal doctrine, the most interesting aspects of Acheson’s judgment relate to Native title law and the Treaty of Waitangi. In holding that the Crown had not shown that it had extinguished title to the bed of Lake Omapere, Acheson comes very close to the modern law. There simply was nothing

120 (1929) 11 Bay of Islands MB 258. 121 1929 11 Bay of Islands MB 260.

34 to show that the title had been “extinguished by proclamation, or by confiscation arising out of any act of rebellion, or sale by the Natives, or by any action of the Executive Government, or by any Statute of Parliament, or by the issue of any Crown Grant”.122 Acheson had no hesitation in holding that “the Native title to Omapere has not been extinguished or even derogated from by the operation of any known rule of law, or by the fact that certain sales by individual Natives of freehold land adjoining the lake have taken place.” Even more remarkable was Acheson’s conclusion that he could take “judicial notice” of the Treaty of Waitangi, and that the Supreme Court and the Judicial Committee of the Privy Council had already done so.

The Crown appeal

The Crown strategy seems to have been one of starving Acheson’s judgment of publicity by appealing, but by then dragging its feet over the appeal (which was not finally disposed of until 1953 see the epilogue). In this way not only could the judgment not be given effect to, but also Acheson’s probable strategy of creating a framework of legal issues for debate before the Appellate Court and the ordinary courts was thwarted. Acheson would not have written such a long and complex judgment without assuming that the case would go on appeal, at least to the Native Appellate Court, and in all probability beyond. That this great judgment ended up being relegated to oblivion must have been a bitter disappointment.

An obvious question is whether the long delays in prosecuting the Crown appeals with respect to Omapere and Waikaremoana were part of a coordinated strategy, and it seems almost inconceivable that they could not have been, especially given the interconnections between the two lake cases. A considerable amount of research on the tenurial and environmental history of Lake Waikaremoana was carried out for the Waitangi Tribunal’s Te Urewera (Wai 894) Inquiry. One of the questions considered by the Tribunal was the inordinate length of time it took for the Crown appeal to be heard (26 years). Tony Walzl, who investigated this matter closely, came to the conclusion that there was no evidence that pointed to a deliberate government policy of delaying the hearing of the appeal:123

Although it seems astounding that a delay occurred of more than 25 years between the 1918 decision and the hearing of appeals, there is nothing recorded in files which specifically suggests that such delay was deliberate Crown policy. Instead, a variety of reasons appear to account for the lapse of time from 1918 to 1944. The need to settle title of the Urewera lands through consolidation, which took place during the early 1920s through to 1925, seems to have impacted on the ability of the owners to deal with the Lake appeal at that time. Following this, the non-availability of senior Crown lawyers often featured as the reason for delaying planned appeal hearings. Similarly, at times it was the unavailability of Land Court judges which caused a difficulty in setting a hearing date. There is also evidence that the owners suffered from the difficulty of getting suitable counsel to act on their behalf. From the late 1920s through into the 1930s part of the problem was that the owners could not afford to hire a suitable legal representative. Yet another cause which affected both the Crown and the owners, was that counsel who had been identified to represent the parties would be appointed to the bench and would not therefore be available for the case.

122 (1929) 11 Bay of Islands MB 265. 123 Tony Walzl, “Waikaremoana: Tourism, Conservation and Hydro-Electricity (1870-1970)”, research report commissioned by the Waitangi Tribunal (Wai 894 [Urewera Inquiry], Doc#A73, 2002), p 321. In the Urewera Inquiry I argued in closing submissions that the Crown did indeed deliberately prolong the hearing its appeal in the full knowledge that its appeal lacked any merit and (even more seriously) continued in the interim to act as if it were the owner of the lake by constructing a major hydro-electric scheme which had significant ecological effects (Counsel for Wai 945 Ngati Ruapani, closing submissions, (Wai 894 [Urewera Inquiry], Doc#N13), pp 43-46.)

On the other hand, as Walzl emphasized, processing the appeal was not a high priority for the government, and the complex issues relating to water bodies generally (especially with respect to Lake Taupo and the Rotorua lakes) meant that officials were in no hurry to have the Waikaremoana appeals dealt with.124 Nor was the government prepared to give up its claim to Lake Waikaremoana.

After a careful review of the evidence the Waitangi Tribunal concluded as follows:125

Our conclusion is that the Crown did try to prosecute its appeal between 1921 and 1926, allowing for an agreed break in the middle to accommodate the UCS [Urewera Consolidation Scheme] negotiations and Bell’s126absence from the country. Its attempts failed in this period, through no fault of its own. From 1926 to 1929, the Crown did nothing to prosecute its appeal. This was later blamed on the fact that the Maori owners had not come back to it with the name of a new lawyer. We attribute it more to the successful negotiation of the Rotorua and Taupo lakes cases by 1926, which took the heat out of the need to prove the Crown’s case in Waikaremoana. The Crown’s loss in court in the Lake Omapere case must have served as a further disincentive to prioritise the Waikaremoana appeal. Then, from 1929 to 1932, the Crown acquiesced in a situation where Maori could not afford to participate in litigation during the Depression. Although this was the least punitive approach the Crown could have taken (rather than insisting on its appeal being heard at that time), it did not take any positive steps such as re- evaluating whether it should continue with the appeal in light of the Taupo and Rotorua settlements and the Omapere decision.

From 1934 to 1943, the Crown negated all attempts of the Maori owners and of the Appellate Court to get it to either prosecute or give up its appeal. Whenever those attempts lapsed, as they did from 1940 to 1942, the Crown’s default position was to do nothing and preserve the status quo. Although we can find no evidence of a deliberate policy to continuously delay the appeal, such was the effect. A decision was apparently taken in 1937 to proceed with the appeal but nothing happened. We agree with the Nga Rauru o Nga Potiki claimants that the delay was ‘largely due to vacillation on the part of the Crown’ and its failure to take steps to ensure the case proceeded. Nothing had really changed by 1944. The Crown still sought an adjournment sine die, even when it was forced to show up in Court and prosecute its appeal. Certainly, there were other important priorities for the Crown during the war years. But this long-standing matter, supposedly of great importance to the public interest, had already been left in limbo for 26 years.

In short, if the Crown officials did not have a policy of deliberately delaying the appeal, they did nothing to expedite it either. Perhaps the same is true of Lake Omapere. In the case of the latter, however, when the hearing of the appeal finally took place in 1953 the Crown withdrew its appeal on the grounds that the bed of Lake Omapere was of no value to the Crown after all – much to the ire of both opposing counsel and the Court.

5.3 Lake Tangonge (1933)

Lake Tangonge lies between Kaitaia and Ahipara Bay in the Muriwhenua region of Northland. The lake forms part of a swampy area west of Kaitaia formerly known as the “Kaitaia Swamp”; there was some gum-digging in the area in the early twentieth century. Acheson’s 1933 decision was not the first occasion on which Tangonge had been the subject of a legal inquiry. In 1907 R.M. Houston

124 Walzl, “Waikaremoana”, pp 322, 314. 125 Waitangi Tribunal, Te Urewera: Pre-Publication Text, Part V (Ch 20) (Waitangi Tribunal, 2014), pp 101- 102. 126 The Tribunal is referring to Sir Francis Henry Dillon Bell (1851-1936), Solicitor-General in the Reform Government from 1918-1926 and the country’s first New-Zealand born Prime Minister (in 1925). He was absent representing New Zealand at the League of Nations and at conferences in Genoa and at the Hague.

36 reported to the government that the Tangonge block, including the lake, was not included in the Matthews Old Land Claim: “[i]t, therefore, did not become “surplus land” and was, and should still be, Native land vested in the Native owners”.127 Then in 1924 Judge MacCormick conducted a special inquiry pursuant to legislation enacted in 1924 relating to Tangonge (the Tangonge block adjoins but is distinct from Lake Tangonge). Tangonge was a “surplus lands” block, and as in all ‘surplus lands’ cases, the chain of legal title originated in a pre-Treaty land transaction. In this case the owners in 1835 transferred the land to the Rev. Joseph Matthews, who was the head of the CMS mission at Kaitaia.128 There was some evidence that Matthews promised to return the land, or some of it, and that in 1895 Matthews had told local Maori people to lodge a petition to parliament with respect to the Tangonge block and that he would be willing to give evidence in support. Judge MacCormick believed that it was possible that Matthews did indeed make such a promise, but this was irrelevant: the land was not Matthews’ to return. Following the Treaty of Waitangi the land alienated to Matthews became, in MacCormick’s view, Crown land. Any land not granted to Matthews by the Crown after the accession of British sovereignty thus belonged to the Crown as surplus land. Judge MacCormick’s report was transmitted by Chief Judge Jones to the Native Minister on 14 July 1925. Jones noted that the land became surplus land of the Crown “by being included in a deed of sale to the Rev. Joseph Matthews, although not awarded to that gentleman; that probably Mr Matthews did promise to return part of the land sold to him, but that he had no power to do so; and that the Natives have in law no claim to it”.129 Jones therefore had no recommendation to make, and presumably the matter went no further.

Attention then shifted to Lake Tangonge. At the 1933 investigation of title to the lakebed, the underlying issues were the same as before. Timoti Puhipi of Te Rarawa gave evidence that land at Tangonge, including the lake, had been returned by the Reverend J. Matthews to his father.130 It was clear, however, that the lake was distinct from the area earlier considered by Houston and MacCormick. The lake was an extensive body of water which was a well-known geographical feature near Kaitaia and was an important source of sustenance for local hapu of Te Rarawa. In 1913 the government carried out major land drainage operations in the Tangonge area to reduce flooding as part of a scheme to settle the area with returned soldiers.131 The drainage operations carried out by the government basically destroyed the lake and obliterated the fishery, and is yet another chapter in the dismal story of the effects of European settlement and Crown policy on freshwater wetlands. There are a number of archaeological sites around the lake, and during drainage operations in 1921 the lake

127 Report of R M Houston MP, A Commissioner appointed to Inquire into the Question of North of Auckland Surplus Lands, [1907] AJHR C-18, p 1. 128 The Waitangi Tribunal has stated that the Tangonge block formed part of Matthews’ Otararau transaction of 20 July 1835 (Waitangi Tribunal, Muriwhenua Land Report, Wai 45, 1997, p 161; see also table, at ibid, pp 60- 61). Matthews negotiated this arrangement with the chief Nopera Panakareao of Te Rarawa and four others. The CMS mission at Kaitaia was established in 1833. 129 [1925] AJHR G-6B, p 1. 130 Ibid, p 2: “The land was returned to by the Revd. J Matthews to my father. Mr. Matthews went with me and we saw the boundaries, and they are still extant. The boundaries were located by a raised bank which is now to be seen; it is 6ft. or 8 ft. high. It reaches to the hill here [Pukemiro]. That was the boundary of the land returned by Mr Matthews to my parent. The land was originally sold by my parent to Mr Matthews. A portion of Mr Puckey’s land was returned to us, and our people are now living on it. These were the Church people, Messrs Matthews and Puckey. Mr Matthews suggested to me that we should have the boundaries defined, for fear we might have trouble with the Government. When the gum was discovered in the lake I laid claim to the royalty. I was told by the Europeans that the land belonged to the Government, and I had no right to expect royalty from them. My son went to Auckland and found from the plans that the Government had taken it. It was then I sent a petition to Parliament, and that petition was signed by the Rev. Mr Matthews.” 131 “The Kaitaia Swamp: Drainage Operations”, Auckland Star, 14 July 1919, p 9.

37 yielded a very early carving in Eastern Polynesian style known as the Kaitaia lintel, dating from sometime between the fourteenth and sixteenth centuries. The carving is now in the Auckland War Memorial museum.

The Lake Tangonge case was a consequence of Acheson’s Omapere decision of 1929. The Crown took no role in the case, which was in effect unopposed. A considerable amount of evidence was given about the lake and its resources. Herepita Rapihana described the lake and its history as follows:132

The lake is not tidal, and is not navigable. It is not accessible for boats. I myself have fished for eels in this lake. That was my vocation. I would swim out. The lake is generally shallow. The edge of the lake shifted about. At flood tide the water would rise. We fished for eels with traps at the Waihou outlet and with pots elsewhere.

There were many Maoris at Pukepoto when I was a boy. The lake was used as an eel fishery by the whole settlement.

The people lived on the eels, the pipis and a shellfish called [pipirau?] or kaeo,133 a fresh water mullet called kanaeraukura,134 also a kind of blind or short-sighted duck incapable of flying rapidly. We used to catch the ducks in traps or with dogs. It was possible to go over the swamp with dogs. There was also another duck there, better at flying. We used to trap it in the lagoons.

We relied upon the lake in former times for our food supplies. Our people had their homes along the edge of the lake whilst engaged in fishing or hunting. We also camped on the other side of the lake while gathering food. Puketutu Reserve on the other side of [the] Lake was not included when we sold the strip of land along the coast to the Crown.135

The Natives exercised ownership rights on all sides of the lake and over the lake.

I remember when the arm of the lake was formed, between 1880 and 1890. A heavy wind and [109] a heavy flood came and lifted out a piece of swamp and deposited it on the north side of the lake. The water came from the Kaitaia River through the Mangawhero stream, and got underneath the swamp, lifting it up and shifting it across the Waihou Channel, blocking the outlet. Sometimes this new arm of the lake became separated from the main lake by a strip of swamp.

Maoris swam out and hooked up gum from below.

When willows partly blocked the Kaitaia River, more water was diverted down the Mangawhero Stream into the lake. The Maoris, alarmed at the rise of the lake, then dug a drain to re-open the Waihou Channel on the north side of the lake. It was a drain 5 feet wide, 3½ feet deep and ¾ of a mile long. This work was done by Maoris only, but the Masters family assisted us with food.

The Drainage department have adopted our drain, and deepened it and widened it.

132 (1933) 64 Northern MB 107-110. 133 Kaeo are freshwater mussels, also known as kakahi (Echrydella menziesii): see R.M. McDowall, Ikawai: Freshwater fishes in Māori culture and economy (Canterbury University Press, Christchurch, 2011), pp 371-2. 134 Presumably the same species known elsewhere as upokororo, kanaekura, tirango, rehe, ara and various other names (Prototroctes oxyrhyncus). The species, once abundant and important to Maori, is apparently now extinct: see R.M. McDowall, Ikawai: Freshwater fishes in Māori culture and economy (Canterbury University Press, Christchurch, 2011), pp 237-249. 135 This is probably referring to the sale of what is known generally as the Wairoa block, originally investigated by the Native Land Court on 20 September 1873. From Maori Land Plan 2959 it is clear that this area was a long strip between the Wairoa River and the sea, an area of 256 acres. This area was immediately sold to the Crown.

We also made another drain, 5 feet wide, 2 feet deep and ¾ mile long on [the] southern side of the lake through the Pukepoto Block. Had we wanted to we could have drained the lake for them, but we were afraid of endangering our food supply of eels etc. The Maoris preferred to keep the lake for food supplies.

Since the lake has been drained by the government the Maoris have been using the area for grazing purposes.

Acheson’s decision was primarily concerned with the Court’s jurisdiction. Was the lake Maori customary land? If it was, then the Court had jurisdiction to investigate it and issue a title to it. After hearing evidence relating to fishing and taking other resources from the lake Acheson was left in no doubt that the lake was Maori customary land.

Judge Acheson’s approach to this case is similar to that he took in the Lake Omapere case, and is essentially the same as that applied in modern Native title cases. On the evidence it had been shown, he believed, that local Maori people had an exclusive title to Lake Tangonge. That being so, it had to be shown affirmatively that the title had been extinguished, but “this was not the case with Lake Tangonge, where the title had never been extinguished or ceded to the Crown”. As a result it was undoubtedly Maori customary land. Acheson also found that there was no particular reason why Maori could not own lakebeds, a view which was entirely consistent with the Court of Appeal decision in Tamihana Korokai.136 These are the same kinds of points that Acheson had already made in the Omapere case.

No less interesting are Judge Acheson’s conclusions concerning the Treaty of Waitangi, especially his statement that “it was the duty of the Court to take judicial notice of the Treaty of Waitangi”, a conclusion he had earlier come to in the Omapere case. It has to be remembered that Acheson’s decision dates from over 50 years before the principal decisions of the ordinary courts on native title and the Treaty of Waitangi.137

Final orders relating to Lake Tangonge were made by Judge Acheson at Kaitaia on 27 June 1934, vesting most of the block in various owners’ lists, but also allocating to the Aupouri and Te Rarawa iwi 75 shares each (out of 693) as a kind of endowment for both groups. The remaining owners’ lists were worked out by agreement and were comprised principally of people living in the Pukepoto area around the lake. I assume most of these people will have affiliated to Te Rarawa. The lake today is Maori freehold land under a separate title. As part of its recent Treaty settlement Te Rarawa received additional land around the lake. A lake and ecological restoration programme is now proceeding.

5.4 Acheson’s foreshore decisions

Acheson carried out a long courtroom battle with Sir Vincent Meredith, Crown Solicitor at Auckland, over Maori foreshore claims, Acheson making grants below high- water mark and Meredith appealing the decisions to the Maori Appellate Court. Of these cases the most significant was one over the Ngakororo mudflats on the Hokianga harbour, decided by Acheson in 1941 and dealt with by the Appellate Court in 1944.138 Northland was also an area of high Maori population, had a long coastline relative to its land area, and was a region where Maori dependence on the resources of the foreshore and the sea had always been historically important and continued to be so.

136 (1912) 32 NZLR 321; 15 GLR 95 (CA). 137 Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 (HC) and Maori Council v Attorney-General [1987] 1 NZLR 641 (CA). 138 Ngakororo case (1942) 12 Auckland NAC 137.

The main areas in dispute, with the exception of Orakei (Auckland) were all on the west coast of the Northland peninsula: they comprised the Ngakororo mudflats in the Whakarapa “river” — an arm of the Hokianga harbour — near Panguru; the Herekino harbour; and Ninety-Mile Beach. With the exception of the Ninety-Mile beach litigation all of the Northland cases were complicated by difficult legal and factual problems relating to accretions. Acheson faced many difficulties in dealing with these cases. Maori applicants to his Court were typically unrepresented. On the other hand the cases were opposed by the Crown, represented by the formidable Meredith. Meredith could draw on the resources of the Lands and other government departments to assist with the development of complex legal arguments regarding accretions and the legal position of the foreshore.

In Ngakororo the Appellate Court was unable to see any difference in principle between investigating title to the foreshore and conducting an investigation of title to any other piece of land:139

In terms of what was needed to be proved, it was stressed that the standard was a relatively strict one. Maori use of the locus in quo had to be differentiated from that of the general public. The area claimed needed to be carefully defined; there had to be “reliable” evidence “to suggest the continuous and exclusive use of this land by the claimants and their predecessors from time immemorial”, and the mudflats had to be shown to exist “in 1840 in much the same condition as they appear today”.140

5.5 Orakei and the Orakei foreshore (1941)

The Orakei block, much-partitioned by 1941, is at Auckland. The original Orakei block was first investigated in 1868.141 By 1941, the case was concerned with accretions to the papakainga block at Orakei, Acheson had been involved in cases relating to Orakei for over a decade. In 1928 Hira Pateoro and others had petitioned parliament seeking a return of the Orakei papakainga block.142 In 1930 Acheson had been directed by legislation to inquire into and report on this matter.143 Acheson sat at Orakei on many occasions to deal with the complexities of that troubled place, and his Orakei sittings were often commented on in the newspapers. For example on 17 July 1930 the New Zealand Herald reported:

Mr F.O.V. Acheson will continue hearing the claim by the Orakei Maoris for the return of their papakainga, or homesite, and the site of the church in their settlement. The case, which arose from a petition by 16 Maoris, was commenced at the end of March and is expected to conclude today.

The 1941 case was concerned with the allocation of certain accretions that had occurred since the survey of the Orakei Reserve papakainga block in 1898. Since that time there had been an accretion of 2.5 acres, some which in the Court’s view legally belonged to the Maori owners of various Orakei blocks under the ordinary law of accretions (which form part of the estate of the adjacent landowner, a

139 Ibid. 140 Ngakororo case (1942) 12 Auckland NAC 137. 141 Original judgment at (1868) 2 Orakei MB 355; Fenton, Important Judgments, pp 53-96. 142 “Natives of Orakei: Return of Land Wanted: Court hearing Next Month”, New Zealand Herald, 20 February 1930, p 12. 143 The complex history of the Orakei papakainga block will not be traversed here.

40 rule which applies to Torrens titles and to Maori freehold land interests as much as it does to any form of Crown grant). The accretion had been ignored in various partitions and Crown purchases since that time, meaning that Maori owners had not been allocated their full legal entitlements or been paid the full value of their estates. Acheson was disturbed to learn that the entire accretion had apparently been set aside for recreation purposes under the Land Act 1924, which in Acheson’s view had no application to Maori freehold land interests:

The Court points out however that these statutory provisions apply only to Crown land. What authority have they in respect of the Native Land in the Orakei Foreshore Accretion? If the functions of the Native Land Court, a Court of Record, are to be set aside by Departmental action in this way a serious Constitutional problem will be involved.

The Orakei Foreshore case is another example of the important foreshore and accretion cases heard by Judge Acheson. The Maori litigants were unrepresented, leaving Acheson deprived of the benefit of claimant counsel to assist with the resolution of very difficult and complex legal issues. As Judge Acheson puts it, “[n]o one represented the Orakei Natives, but they were present in full force”; they had stated “that they had received insufficient notice and were without funds to engage a lawyer to represent them”. This was typical in these foreshore cases of the 1940s and 1950s, until finally the claimants in the Ninety Mile Beach litigation of the 1950s and 1960s were able to secure the services of a very capable Kaitaia solicitor to represent them in the Maori Land Court and the superior Courts. (Arguably this explains why that case progressed as far as it did – indeed to the Court of Appeal.) Here Judge Acheson had to deal with the issue alone, and in the face of determined opposition by senior Crown counsel. His judgment is very critical of government actions at Orakei, and demonstrates a strong sense of concern about, and the need to safeguard, Maori property rights: “[t]he equitable and legal rights of the Natives must be respected”. The case shows also Judge Acheson’s robust sense of judicial independence: “[t]he fact that representatives of the Crown are claiming against the Natives makes no difference to the Court”; they are “entitled to the protection of the Court for their legal and equitable rights, no matter who claims against them”.144

144 (1941) 23 Kaipara MB 162-3.

6 Political leanings and cultural interests

6.1 Introduction

Acheson seems to have been a person of many wide and warm enthusiasms: for Maori history, rugby, literature, legal scholarship, the Treaty of Waitangi, Maori culture, and politics. He has developed a reputation of being a radical judge, but politically, at any rate, Acheson was anything but radical. He was politically conservative, an empire loyalist, and no friend of the Labour government that took office in 1935.

There is plenty of evidence that shows that Acheson was highly esteemed in the Maori world. He was formally admitted as a member of a number of iwi in public ceremonies, a very unusual honour as far as I am aware. In May 1938, for example, he was admitted to membership of Waikato, and the occasion was described in the New Zealand Herald:145

The honour of membership of the Waikato tribe was conferred on Judge F.O.V. Acheson, of the Native Land Court and the Native Appellate Court, at Ngaruawahia yesterday. The oldest living descendant of the Maori kings in the female line, Chieftainess Taingia, placed a korowai (ceremonial mat) over the shoulders of the judge and declared him a member of the tribe amid the acclamations of a large crowd of Maoris.

He thought that the Maori “race” would disappear, but he was not uninfluenced by the contemporary Zeitgeist emanating from the United States. Like many others Acheson thought that the Maori and the British (or pakeha) races, as he described them, would eventually amalgamate, creating a new people made up of the best elements of both. This is not the fashionable biculturalism or multiculturalism of the present day, obviously, but Acheson’s vision, shared by many New Zealanders of the time, can hardly be regarded as racist (and certainly not in the 1930s, when, as everyone knows, rather virulent forms of racism were becoming entrenched in other places). Acheson’s ideas are close to the public doctrine of “integration”, presented as a benign and constructive option to the undesirable alternatives of “segregation” and “assimilation”, taught to a generation of New Zealand schoolchildren in the 1950s and 1960s. His vision comes across very clearly in the following article describing an address he made to the Penwomen’s club in Auckland on 26 May 1939146 (note how often the word “refinement” is used in Acheson’s address):

“The welfare of the Maori race is of vital importance to New Zealand,” said Judge F.O.V. Acheson, in a talk given to the Penwomen’s Club yesterday afternoon. “The two races, the pakeha and Maori, must live together,” he continued, “and therefore it is important that each constituent part of the nation should be on a high plane.”

Judge Acheson stressed the point that in 1840 the British had made a solemn promise that the people of New Zealand should be as one race, and he pointed out our moral obligation to fulfil this promise. “From my personal knowledge of the Maori race,” stated Judge Acheson, “I think the amalgamation of the two people would be greatly to our benefit. Already the Maori element in New Zealand is being absorbed, and probably in 200 years’ time this process will have been completed.

“The Maori mind has something which the British mind lacks,” said Judge Acheson. “The qualities of the British race have come through mixed blood, but during recent decades, we have, through lack of

145 “Tribal Membership: Native Land Court Judge: Ceremony at Ngaruawahia”, New Zealand Herald, 10 May 1938. 146 “Maori Element in the Race: Absorption Will Benefit the Nation”, Auckland Star, 27 May 1939.

mixing bloods, become too worldly minded. Mystic and spiritual qualities are something that the Maori can add to our make-up, and I feel that their absorption into our race will be the determining factor in deciding whether the people of New Zealand are to produce great men in the fields of literature, philosophy, and art.”

In describing his personal experiences with the Maori people, Judge Acheson stressed the fact that above all things the Maoris as a race were artistic and refined. He also referred to their traditional art and learning and their high standard of cultural life.

Judge Acheson also made a special mention of the outstanding qualities of Maori women, pointing out that even work of the humblest sort could not lower their dignity and refinement. Refinement and modesty were attributes of the Maori maiden, he said, and he emphasised the fact that a large share of keeping the Maori race on a high level was undertaken by the Maori women of to-day.

In concluding his address, Judge Acheson referred to Princess Te Puea, under whose inspiration the Maori race were reviving much of its traditional art.

Acheson was a passionate rugby supporter, and on at least one occasion went on tour in some kind of administrative or supporting role with the All Blacks. He was also actively involved in the administration of the Tongariro National Park Sports Club and in the club’s projects to building an accommodation house in Tongariro National Park and to have Mt Pihanga and Lake Routopounamu brought within the national park boundaries.147

Acheson was very interested in New Zealand history and seems to have enjoyed presiding at historical celebrations and re-enactments. He was heavily involved in the Waitangi centennial celebrations in 1940, as is well-known, but he was also involved in many other public occasions. In 1926 Acheson, for example, presided over the celebrations at Rawene of the centenary of the Scottish settlement at Herd’s Point on the Hokianga. The occasion was described in the Evening Post:148

A meeting of Rawene residents was held outside the Courthouse on Thursday to celebrate the sale of the township, formerly known as Herd’s Point, which took place one hundred years ago, from Ngapuhi chiefs to Captain Herd, who brought out the first Scotch settlers in the barque Rosanna, in 1826. The descendants of those settlers took place in Thursday’s celebrations. Judge Acheson, of the Native Land Court, presided.

In 1930 Acheson was present at a ceremony at Russell when a plaque was formally unveiled at the flagstaff site on Maiwi hill. It was an important and solemn occasion at which many people were present, including Riri Maihi Kawiti and Hore Tane. Acheson’s role seems to have been one of essentially representing the Crown. It was Acheson and Kawiti who symbolically unveiled the memorial tablet. The occasion was described in the Herald:149

The long-awaited unveiling ceremony of the memorial tablet on Maiwi Hill, at Russell, took place today in warm sunshine. There was a large gathering of Maoris and Europeans presided over by Mr E.G. Hewin, chairman of the Russell Town Board. Among the prominent natives present were Mr. Tau Henare, M.P., Mr Riri Maihi Kawiti, grandson of the famous Kawiti, and Mr Hore Tane, grand-nephew of Hone Heke.

147 “Tongariro Park: Progress of Sports Club”, Auckland Star, 3 August 1928, p 12. 148 Evening Post, 6 November 1926, p 10. 149 “A Red Letter Day at Russell: Unveiling of Memorial Tablet at Base of Famous Flagstaff”, New Zealand Herald, 12 April 1930.

From the flagstaff floated two large flags and a host of signal flags, while two other flags veiled the memorial tablet itself. A speech was delivered by Mr Hewin, in which he eulogised the Maoris and thanked Mr Morpeth for his generous gift. Mr F. Acheson, Judge of the Native Land Court, and Mr Tau Henare also spoke.

Mr Acheson and Mr Kawiti jointly performed the unveiling ceremony, and the people filed past the tablet as they departed. The function ended with a feast, in which the Europeans and Maoris took part.

And in 1935 Acheson was present at Orakei at a public celebration of the landing of William Hobson in Auckland 94 years previously.150 Acheson gave a public address which “stressed the good feeling existing between native and pakeha”.

Acheson was thus involved in a wide range of cultural activities. Acheson even tried his hand as a novelist, publishing Plume of the Arawas in 1930. It received favourable reviews in the newspapers, and can still be found in second-hand bookstores. Plume of the Arawas is a turgid romantic story set in ancient pre-European New Zealand, and is somewhat overburdened by ethnographic detail. As well as being a novelist, Acheson also wrote scholarly articles on Maori law and custom, one of which was published in the Journal of Comparative Legislation and International Law in 1922.151 Judge Acheson was one of a group of Maori studies intellectuals (some of them Maori) who contributed to the special number of the Journal of the Polynesian Society published in 1932 to pay tribute to Elsdon Best. In this Acheson joins a long tradition of writer-judges in the Native Land Court, who include Chief Judge Fenton, Judge Maning, Judge Wilson, and Judge Gudgeon.

150 Auckland Star, 15 March 1935, p 9. 151 F.O.V. Acheson, “Adoption among the Maoris of New Zealand” (1922) 4 Journal of Comparative Legislation and International Law (3rd), p 60.

7 Making a difference?

7.1 A man before his time?

It is easy to say that Judge Acheson was ahead of his time (and in fact John Acheson and I do indeed say exactly that in our biographical essay on Acheson in the Dictionary of New Zealand Biography.) In terms of the legal-doctrinal content of his judgments, particular in his Omapere judgment in 1929, Acheson can certainly be seen as anticipating something resembling the modern law of Native title as has now been constructed in cases such as Te Weehi v Attorney-General, Mabo v Queensland, Ngati Apa v Attorney-General and in the two Paki judgments in the Supreme Court. Does this make him “ahead of his time”?

In fact Acheson’s stance on Native Title law (if it is not anachronistic to use this terminology) was not widely different from the rest of the Native Land Court bench. This is shown by the judgments of the Court in the 1940s on the Lake Waikaremoana and Whanganui River appeals. Within this there were certainly variations, however. Acheson was one of the more forward-looking judges and the best- educated and most creative. Chief Judge Shepherd was definitely much more conservative than Acheson. Intellectually Acheson certainly stood out. None of the other judges of his day crafted a judgment which even came close to Acheson’s Omapere decision. In his intellectual interest in Maori customary law Acheson also certainly stands out. The judges of the Land Court applied Maori customary law and were not unsympathetic towards it, but it was Acheson who wrote a thesis on the subject before he became a judge and who analysed the subject at length in his Omapere judgment. Yet the difficulties that Acheson encountered can also be seen as a component of the wider issue of the relationship between the government and the Native Land Court as a whole, exemplified in the legal battles over Waikaremoana and the Whanganui River.

There were other people like Acheson within the New Zealand legal confraternity at the time. Acheson was arguably unusual, but not unique. A person who was similar to Acheson in many ways was Martin Heywood Hampson of Rotorua, like Acheson something of a conservative and establishment figure but who was nevertheless sympathetic to Maori and who fought many battles on their behalf. Hampson argued the appeals in the New Zealand Court of Appeal and in the Privy Council on behalf of Ngati Tuwharetoa in Council in Te Heuheu Tukino v Aotea District Maori Land Board,152 arguably still the leading case on the legal status of the Treaty of Waitangi. Hampson was a remarkable lawyer who played an important role in many important legal issues affecting Maori people and who was closely connected with many prominent Maori families in Rotorua and Taupo. He is a counterpart to Acheson and also to such other counsel of standing who worked in the field of Maori claims such as D.G.B. Morison (who became Chief Judge of the Maori Land Court) and – less certainly, perhaps, given his role in the 1934 Commission that investigated Ngata and the land development schemes, David Smith.153 Like them, Hampson was a senior lawyer of national standing and a very experienced litigator. He had studied law at Auckland University and had lived and practised in Rotorua since 1908. He was described in 1941 as a “prominent barrister, who was

152 Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308. 153 To myself (as a lawyer) nothing is more tedious and tiresome than the ignorant stereotypes about lawyers displayed by all too many historians, who sometimes seem to assume that all lawyers who had anything to do with Maori issues were shysters and crooks. It is certainly a mystery to me why people like Smith, Morison, and Hampson are completely ignored by mainstream historiography; this is particularly astonishing in the case of Hampson, who, after all, argued the most important 20th century legal case relating to the status of the Treaty of Waitangi at great personal cost to himself.

45 recognised as one of the leading authorities on Maori laws”.154 Like Acheson, Hampson was interested in Maori culture and especially (in Hampson’s case) in Maori music: in 1936 he was listed as one of the principal subscribers to a new company set up at Rotorua to promote and record Maori singing.155 He was involved in many cases in the ordinary courts where he represented Maori plaintiffs or defendants, and frequently gave advice to Maori landowners in Rotorua and Taupo. Hampson also was involved in general civil and criminal law practice. He acted for the Rotorua Borough Council in a number of cases and was defence counsel in many criminal trials, including murder trials in the Supreme Court.156 He was a long-serving member of the Council of the Hamilton District Society, which at that time included Rotorua. Hampson, a committed Roman Catholic, was also involved in local affairs at Rotorua and in improving educational opportunities for Maori children. Tragically he died suddenly at Rotorua in June 1941 at the age of 54 immediately after returning home to New Zealand after being away for ten months arguing the appeal on behalf of Ngati Tuwharetoa and travelling to London and back by sea. Whether Hampson and Acheson were friends I am not sure, but they must have known each other, given that Acheson heard many cases in the Taupo region before moving to Te Tai Tokerau; moreover both of them were friendly with the Te Heu Heu family.

Hampson argued the Te Heuheu case in the Supreme Court and the Court of Appeal by himself, and appeared as junior counsel before the Privy Council in London. His argument was an extremely interesting and creative one and certainly impressed the Court of Appeal judges. Myers C.J., while dismissing the appeal and stating that he agreed entirely with Smith J.’s decision at first instance, nevertheless dealt with Hampson’s arguments fully: “I should be content to leave the matter there, but that I think that something more is due to Mr. Hampson’s able argument, which was more elaborate than that submitted to the Court below, and in which he cited authorities not cited below, and also included a new ground.”157 And on the same occasion Callan J. referred to Hampson’s “full and careful argument”.158 The Privy Council, sitting in war-time London in 1941, was no less impressed. But as in the Supreme Court (i.e. the High Court) and the Court of Appeal, it was the Crown which was successful in the case. Thus to further contextualise Acheson he needs to be sited within a contemporary community of creative and prominent lawyers who were sympathetic to Maori causes and took leading Maori cases in the ordinary courts. There is room for more detailed research on this group I believe.

That the government had become decidedly wary of the Native Land Court is shown by its courtroom strategy of using procedural steps to remove important cases from the Native Land into the ordinary courts if it could. This is obvious in the Whanganui and Ninety-Mile Beach cases. It is ironic that the Native Land Court has become stereotyped as a body that was subservient to the state. Even if that was the case in the nineteenth century (which I doubt) it was certainly not the case in the twentieth. The irony lies in the obvious fact that the government believed that it could get the results it wanted in the ordinary courts much more readily than in the Native Land Court. It was always Crown Law’s strategy to get cases on contentious and politically volatile issues such as Maori claims to the

154 “Mr M.H. Hampson”, Evening Post, 13 June 1941, p 9. 155 “Music of Maoris: Move for Promotion: Public Company Registered”, New Zealand Herald, 8 September 1936. 156 For example, Hampson acted as defence counsel for Hakaraia Te Kahu, tried for murder in Hamilton in September 1921 (Te Kahu was sentenced to death): “Ongoroto Murder: Verdict of Guilty: Death Sentence Passed” Hawera and Normanby Star, 17 September 1921, p 7. 157 [1939] NZLR 107, at 117. 158 Ibid, 122.

46 foreshore and seabed out of the Native/Maori Land Court and into the safer hands – so it was believed – of the Court of Appeal. Until late in the twentieth century, it was the Court of Appeal which much more consistently found for the Crown in key Maori land cases than the Native/Maori Land Court. This is proved not merely by the well-documented history of the government’s procedural manoeuvrings but also by the actual Court of Appeal decisions themselves. (The situation is no longer the case, I must hasten to add: that was then, this is now.) Perhaps the government’s latest attempt to trim the authority and jurisdiction of the Maori Land Court in the current Te Ture Whenua Maori Bill needs to be seen in this context nevertheless.

In many respects Acheson was a man of his time. The revival of interest in customary law was an international phenomenon, as was the repudiation of the individualism, liberalism and positivism of the 19th century in favour of collectivities (whether these be collective farms in the USSR, the kibbutz in Israel, or Ngata’s land development schemes in New Zealand). Acheson’s rejection of legal positivism in his thesis is very telling. This did not so much put Acheson at odds with legal thinking of his day as to link with some of the more forward-looking aspects of it in the United States in elsewhere. It is more a matter of legal education in New Zealand being behind the times than Acheson being ahead of it.

White sees the Omapere decision not as an isolated one-off, but rather as a component of the Native Court’s attempts to protect Maori property rights in the Acheson era, and I agree with this interpretation. White concludes his chapter on Lake Omapere as follows:159

In the case of Omapere, as with Waikaremoana and the Wairarapa and Rotorua Lakes, the Native Land Court can be seen as having defended Maori rights. Apart from the 1929 decision, evidence exists that on at least two occasions the court advised the Government in connection with public works that to interfere with Nga Puhi’s eel weirs would be ‘highly injudicious’. The way in which various Crown officials conspired to prevent the investigation of title to Lake Omapere suggests that the Crown was concerned the land court would make another decision that held lakes to be customary Maori land. And it can be said that the land court’s eventual decision further jeopardised the Crown’s attempts to establish itself as being the owner of lakes in New Zealand.

Even so, within the Native Land Court framework, Acheson continues to stand out. He is definitely the most interesting and intellectually sophisticated Land Court judge of his time. None of the judgments in the Appellate Court’s decisions in the Waikaremoana and Whanganui River cases come close to Acheson’s Omapere judgment, either in terms of length or analytical quality. Acheson was much more of a scholar and an intellectual than any of his judicial colleagues. None of the others had an LLM, published articles on Maori custom in overseas journals, or crafted analytical texts like Omapere the way Acheson did.

As noted, the Native Land Court generally had reached a general legal position regarding Native title law that is not dissimilar from that of contemporary courts. Perhaps to Acheson the future seemed full of possibilities. Where Acheson is different in terms of legal doctrine is not so much the relating to Native title but rather his stance on the Treaty of Waitangi. Acheson was a committed believer in the Treaty and thought it should be embodied into New Zealand law. His most remarkable findings were those he came to in Omapere and Lake Tangonge that he could take “judicial notice” of the Treaty of Waitangi, although it is unclear exactly what Acheson meant by that. His colleagues on the Native Land Court bench, as far as I am aware, were not willing to go that far. There is also the question of

159 Ibid, 247.

47 how Acheson understood the Treaty of Waitangi. Today the Treaty is often seen as a guarantee of tino rangatiratanga, a term which itself has a range of meanings (I am not going to explore this interpretive debate here). Acheson, as has been argued, believed in integration: that Maori and Pakeha would merge into a new people. He was essentially a conservative, who understood the Treaty conservatively by modern standards. Even so, his imaginative and creative approach to legal doctrine deserves recognition.

In the period from around 1944-1965 Acheson’s vision, and to varying degrees that of his judicial colleagues on the Native Land Court bench, was completely undercut by the ordinary courts at the highest level – in the Privy Council and in the New Zealand Court of Appeal. It was the Privy Council which found that the Treaty of Waitangi was legally unenforceable in its 1941 decision in Te Heu Tukino v Aotea District Maori Land Board, notwithstanding the brilliant arguments and legal acumen of Ngati Tuwharetoa’s barrister. The decision was an enormous setback. It was followed by the two pivotal decisions of the Court of Appeal in Re the Bed of the Wanganui River (1962)160 and In re the Ninety-Mile Beach (1963).161 The two latter cases, applying very similar reasoning, found that Maori customary title to river beds and the intertidal zone had been extinguished as a result of the operation of the Native Lands Acts. Only recently has the legal legacy of the period from 1941-1963 been reversed, at least to some degree. Perhaps if the lead of Acheson, his colleagues on the Maori Land Court bench, and creative lawyers such as Martin Heywood Hampson had been followed, the whole legal history of the country might have been different.

7.2 Structural and other realities

What difference, however, could an individual judge make to the socio-economic plight of Maori people in Tai Tokerau? This is in my view the real issue. It has to be said that the answer is – not much. The poverty and underdevelopment in the North, just as in the rest of the Maori world, was on such a scale and was so pervasive and complex that the good will and good intentions of one overworked and under-resourced judge could never have ameliorated it to any significant degree. Acheson, only too familiar with the harsh realities of Maori society and economy in the North, must have realised that himself. Even if he had not been repeatedly thwarted by Chief Judges Jones and Shepherd, and even if the Crown had not gone out of its way to obstruct Acheson’s initiatives at every turn – as it often did – this would not have lifted Tai Tokerau people out of the poverty cycle in which they were enmeshed. There is in my view nothing to be gained by pretending otherwise.

Acheson was judge at a time when the role of the state in Maori life, the land development scheme project after 1929 aside, was still relatively small. The role of the state became much more important during and after the Second World War.162 In the Maori world the particular form this transformation took was the explosive growth in the size and responsibilities of the Department of Maori Affairs after the Second World War. As Aroha Harris puts it, the Department became a “pervasive administrator of the lives and lands of Māori people everywhere”; during the “1950s and 1960s, the hand of Maori

160 [1962] NZLR 600 (CA). 161 [1963] NZLR 461 (CA). 162 This transformation is brilliantly captured in Aroha Harris’ chapters in Anderson, Binney, and Harris, Tangata Whenua: A History (Bridget Williams Books, Wellington, 2015), pp 311-416. Harris’s chapters in this milestone text were written with the aid of Melissa Matutina Williams, author of an outstanding new case study of rural-urban Maori migration, focusing on the Hokianga community of Panguru: Panguru and the City: Kāinga Tahi, Kāinga Rua (Bridget Williams Books, Wellington, 2015). Richard Hill’s Maori and the State: Crown-Maori Relations in New Zealand/Aotearoa 1950-2000 (Victoria University Press, Wellington, 2009) is a comprehensive analytical history of Maori in the postwar era and is a discussion of fundamental importance.

Affairs in Māori lives appears to have been stronger than ever, pervading personal recollections of the era”.163 But Acheson was still operating in an earlier world, before the move to the cities had happened, and at a time when the principal reality for the Maori people was rural poverty. Most Maori people in most parts of the country made a living by working as rural labourers, rather than by farming and developing their own lands. Maori worked on the land of other people, clearing bush, building fences and ditches and drains, or they did seasonal work, harvesting crops or shearing. This kind of work, which generated a certain amount of cash, was supplemented by resource gathering in the forests, fishing, (whether in coastal waters, or in rivers and lakes), growing crops on Maori-owned land (sometimes for sale) and delivering milk on a small scale to dairy factories in some districts. Also important in some areas was gum-digging, important to Maori people in Tauranga, Coromandel, and especially Northland. The gum-digging industry was an important one, with its own complex ethnic politics, and allowed Maori to obtain cash without having to invest in anything more than a gum-spear and shovel.164 It would take more than the efforts of a single and well-meaning Maori Land Court judge to change these realities.

The difficulties of Acheson’s situation in Northland were formidable. Like all the judges of the Native Land Court, Acheson had a demanding workload by having to preside over the Tai Tokerau District Maori Land Board in addition to his judicial responsibilities. The constant flow of special judicial inquiries that Acheson had to deal with in addition to the ordinary caseload of his court cannot have helped matters. Acheson was confronted with another problem which faced (and, no doubt, still faces) Maori Land Court judges of having to deal with extremely difficult and complex cases brought to the Court by Maori groups who were themselves both poor and unrepresented, leaving Acheson to have to deal with complex cases on his own without the benefits of claimant counsel. While I do not want to over-colour the situation in the absence of comprehensive research, it does seem that Sir Vincent Meredith did not help matters either. Meredith was a zealous defender of the interests of the Crown. Meredith was a powerful and able lawyer, able to draw on the resources of the Lands Department and other departments of state. But there does seem to have something more, something somewhat more personal, bordering on an antipathy between the two. There was no spirit of compromise on the part of the Crown in order to find solutions that might perhaps do something to assist with the harsh realities of Northland Maori life. Meredith’s behaviour in Court sometimes seems extraordinary. On one occasion during a case on the Orakei Block, Meredith, annoyed at Acheson raising an issue relating to trusteeship, gathered his papers together and walked out of the Court. The incident was widely reported in the newspapers. According to the Press (19 July 1930):165

Objecting to a question of trusteeship being raised at the enquiry, the Crown solicitor (Mr Meredith), who was appearing in the Native Land Court, gathered up his papers and left the Court while it was hearing a claim by the Orakei natives for the return of certain land.

Judge Acheson expressed great regret and said that the Crown’s withdrawal was made on inadequate grounds. He intended to hear representatives of the Maoris and then make a report to the Department. If

163 Anderson, Binney and Harris, Tangata Whenua, p 334. 164 See generally Senka Božić-Vrbančić, Tarara: Croats and Maori in New Zealand: memory, belonging, identity, (Otago University Press, Dunedin, 2008). This book is a social history of Maori-Croatian interaction on the Northland gumfields (‘Tarara’ is the Maori word for ‘Croatian’ or ‘Dalmatian’.) A significant number of Croatian villagers moved to New Zealand after 1870 and worked alongside Maori in the gumfields of Northland; the Croatian diggers were usually referred to in New Zealand as “Austrians” and were at the receiving end of a considerable amount of ethnic prejudice. Relations with the Maori community were, however, reasonably positive, and there was a certain amount of intermarriage. 165 Press, 19 July 1930, p 2.

the Crown wanted the matter dealt with again, he would strongly object to the case being handled by any judge but himself.

Having to put up with this kind of thing as well as a sequence of reversals of his decisions by the Native Appellate Court or the Chief Judges must have been a sore trial.

7.3 Epilogue: the Omapere appeal

Judge Acheson’s full written decision relating to Lake Omapere, dated 1 August 1929 was nevertheless a significant defeat for the Crown. The Crown appealed Acheson’s decision to the Native Appellate Court, but, just as in the case of its Waikaremoana appeal, was in no hurry to have the appeal heard, and it was repeatedly adjourned at the request of Crown counsel. From time to time the Omapere Crown appeal is referred to in the newspapers. According to the Auckland Star for 25 March 1936:166

The business of the Native Appellate Court, which opens a sitting at Auckland on May 25, will include the hearing of a most unusual action in which the ownership of the bed of Lake Omapere, North Auckland, is in dispute. Situate between Ohaeawai and Okaihau, Lake Omapere is a shallow body of water, and the Maoris claim that the bed of the lake was originally a dry area, but as the result of fires the surface was lowered and became covered with water.

Some years ago, when the matter came before the Native Land Court, Judge F.O.V. Acheson gave judgment in favour of the natives. The Crown is now appealing against this judgment, and the appeal will be heard by a full Bench of Native Land Court judges.

The Crown claims that the area has never been native land, but an area that has always been under water.

In the preliminary stages of the appeal the Chief Judge, Mr. R.N. Jones, expressed the opinion that the questions involved were so important that he would arrange for a full bench of Native Court judges to assemble for the hearing.

But the appeal was merely adjourned at the Crown’s request on this occasion, as well as on numerous others. By 1953, 24 years after the original decision, it had still not been heard. Counsel for the Maori owners moved to have the appeal struck out, but at the hearing Crown counsel (still Sir Vincent Meredith) announced to the Maori Appellate Court that the Crown had decided to abandon the appeal given that it “is not considered that the ownership of the soil under Lake Omapere has any value to the Crown”.167 The appeal was abandoned, however (said Meredith) “entirely without prejudice as to any contentions [the] Crown may desire to raise in relation to any other lakes or rivers in New Zealand”.168

Counsel for the Maori owners (Henderson) responded in the most blistering terms, denying that the Crown had any right to impose conditions as to the abandonment of its appeal, accusing the Crown of acting unconscionably in deliberately prolonging matters, and setting out at length the long history of repeated adjournments and delays. He sought costs against the Crown on the highest scale. The Maori Appellate Court was no less critical of the Crown’s behaviour and awarded costs against the Crown in the amount of £150 plus all disbursements. This was not the first occasion on which the Crown had

166 “Lake Omapere: Ownership of Bed: Claim Made by Crown: Important Appeal Case”, Auckland Star, 25 March 1936, p 10. 167 (1953) 12 Auckland ACMB 338 (28 October 1953). 168 Ibid.

50 taken a very long time to have an appeal relating to Maori issues heard and disposed of. The Waikaremoana Crown appeal (1944) had taken even longer to be heard (26 years), as the Appellate Court will have known only too well. It was presumably the Waikaremoana case that the Appellate Court had in mind when it remarked in this Lake Omapere judgment “[t]his is not the only instance of long delays by the Crown in appeals in similar matters but we hope it will be the last”. (Ironically Judge Harvey, who presided over the Appellate Court on this occasion, had himself taken no less than 14 years to produce a report on Maori claims to Napier Inner Harbour (Te Whanganui-a-Orotu)). Even so the 1953 decision can perhaps be seen in some sense as a kind of belated justification for Judge Acheson.

APPENDIX I: Selected Judgments of Judge Acheson

LAKE OMAPERE (1929)

(1929) 11 Bay of Islands MB 253-278169 Northland Region (Bay of Islands)

Native Land Court, Kaikohe and Auckland

1 August 1929

Judge Acheson

Investigation of Title

Te Uri o Hua, other local hapu of Nga Puhi

Native Land Act 1910

JUDGMENT

[253170] Omapere Lake

Application by Ripi Wi Hongi and other Natives for Investigation of Title

Judgment of Native Land Court dated the 1st August, 1929

F.O.V. Acheson, Judge

Applications 11 to 22

The applications before the Court are for the investigation of Title to Omapere Lake, which the applicants claim to be customary land.

At the preliminary hearing at Kaikohe, on the 5th March 1929, the applicants were represented by Mr Blomfield, assisted by Mr Guy, Mr Webster, and Mr Parore. The Crown was represented by Mr Hubble of the Crown Law Office, Auckland, assisted by Mr Darby of the Lands Department. Formal evidence of occupation of the tribal right was given by the Natives, and the case was then adjourned to Auckland for legal argument on the many legal and other questions involved.

The hearing at Auckland took place on the 19th and 20th June, 1929, the Native applicants being represented by Mr Blomfield, assisted by Mr Parore. The Crown was represented by Mr Meredith of the Crown Law Office, Auckland, and by Mr Prendeville of the Crown Law Office, Wellington, assisted by Mr. Darby of the Lands Department.

The contentions of the Natives and the Crown at the two hearings may be summarised as follows:-

Mr Blomfield contended for the Natives:-

169 Pages 253-268 transcribed. 170 Page 1 of typescript.

1. THAT Lake Omapere had originally been swampy land clothed with forest, and had been occupied and owned by the ancestors of the claimants.

2. THAT since it had become a lake it had been occupied and continuously and extensively used by the Natives as a fishing ground and for other purposes, and was still so occupied and used.

3. THAT the Natives had always asserted their claim to the Lake and taken steps to prevent use adverse to their claim.

4. THAT the Crown at no time had claimed the lake prior to the present proceedings.

5. THAT there was no evidence to show that the Crown ever purchased the lake or acquired it or any rights in it in any proper manner.

6. THAT there was no presumption in law of a right in the Crown to lakes or to the beds of lakes, and that the onus of proof of right was on the Crown.

7. THAT the lake was “customary land” for which the Native Land Court had power to issue an Order on investigation of Title, and that being “customary land” it had not been legally possible for the Crown to obtain rights in it by purchase. [254171]

8. THAT the lake was “customary land” at the time of the Treaty of Waitangi, 1840, and that the Treaty preserved the proprietary rights of the Natives.

9. THAT the Crown only acquired the “right of sovereignty” and the right of “pre- emption” under the Treaty of Waitangi and not property rights over Native lands.

Mr Hubble at the preliminary hearing172 claimed for the Crown:

1. THAT Native custom did not recognise ownership of the beds of lakes.

2. THAT therefore the beds of lakes belonged to the Crown.

3. THAT the Crown purchased large areas fronting the lake, and thus acquired the lakebed adjoining the areas bought.

4. THAT by such purchases the Crown also acquired riparian rights in the lake.

Mr Meredith at the main hearing173 contended for the Crown:

1. THAT all lands in New Zealand were the domain of the Crown until the Native Land Court granted title for such lands as were held to be “customary land”.

2. THAT the Court could not require the Crown to prove that it had acquired Lake Omapere by purchase or otherwise.

171 Page 2 of typescript. 172 That is, the first hearing day at Kaikohe on 5 March 1929. 173 The hearing in Auckland on 19 and 20 June, devoted to legal argument.

3. THAT it was for the Natives to prove that ancient custom and usage recognised proprietary rights in the beds of lakes, and also prove that there had been a particular custom in the particular district around Omapere.

4. THAT there was no evidence to show that in ancient custom and usage Natives ever claimed proprietary rights in the beds of lakes.

5. THAT even if custom had recognised such rights in or to the beds of lakes, there was no legislative authority that gave validity or recognition to such rights.

6. THAT the Native rights in Lake Omapere were limited to the rights of fishery and navigation, and that these rights had always been recognised by the Crown.

7. THAT fishing and navigation rights did not in themselves confer ownership on the Natives, and that no acts of ownership other than fishing had been proved by the Natives.

8. THAT at the time of the Treaty of Waitangi it was not contemplated that exclusive rights of ownership over navigable waters would be claimed by the Natives. [255174]

9. THAT the right of sovereignty necessarily included rights of access over the country and over its navigable waters.

10. THAT Native title was not universal, and that it was not true that the whole of the North Island including both land and water had been owned by Natives.

Before dealing with these contentions of Counsel and with other aspects of the case, the Court holds it to be clear that the prerogative rights of the Crown is not in any way called in question by the present proceedings.

Further, the Court holds that it has ample power, under statute and in its ordinary jurisdiction, to decide practically all the matters that are in issue.

The applications by the Natives are in order, and the Court has before it a sufficient sketch-plan as required by the Court’s rules.

The proceedings are taken under the provisions of Part IV of “The Native Land Act, 1909,” as amended by Section 43 of the “The Native Land Amendment Act, 1913”. Section 90 of the 1909 Act says:

The Native Land Court shall have exclusive jurisdiction to investigate the title to customary land.

Section 91 of the 1909 Act says:

Every title to and interest in customary land shall be determined according to the ancient custom and usage of the Maori people so far as the same can be ascertained.

Section 43 of “The Native Land Amendment Act, 1913”, specially provides for the right of the Natives to have their claim investigated and adjudicated upon even in the face of an adverse claim by the Crown. It also repeals s 100 of the 1909 Act, which gave the Governor in Council power to prohibit the Native Land Court from investigating the title to customary land.

174 Page 3 of typescript.

In the Court of Appeal case, Tamihana Korokai v. Solicitor General Gaz. L.R. 1912-1913, Vol. XV,175 Sir Robert Stout said, at page 106:176

What the customary title to the bed of Lake Rotorua may be must be considered and determined by the only Court in New Zealand that has jurisdiction to deal with Native titles – the Native Land Court.

The Court proposes to deal first with the more simple aspects of the case, so as to clear the way for the more important issues of fact and law.

Lake Omapere is a non-tidal inland lake comprising an area of over 3000 acres; it is 2 ¾ miles long by about 2 miles wide, and is of almost uniform depth, but very shallow at its western end. Formerly its depth was 7 to 9 feet, but the Crown’s draining operations (before they were stopped) reduced the depth and created an [256177] artificial shore which is clearly shown on a sketch-plan before the Court but not yet approved by the Chief Surveyor.

The lake occupies a basin on the plateau about mid-way between the Bay of Islands, one side of the North Auckland peninsula, and Hokianga Harbour on the other side of the peninsula.

Bulletin No. 8 of the Report (1909) of the Geological Survey (Hokianga Division) states that the lake “was formed by the damming of the headwaters of the Waitangi River by a lava-flow. The lake- bottom is covered by five feet or more of soft mud. Submerged stumps of kauri and other trees in situ are exceedingly common. They would appear to be either the remains of the forest which covered the site of the Lake before its formation, or less probably, to indicate that the water of the lake once stood for a long period below its present level.”

The Natives at the Kaikohe hearing gave evidence of a tribal tradition that the site of Omapere was originally forest and swamp, that the forest was burnt in the days of an ancestor named Ngatikoro who lived some four hundred years ago and died in the forest fire, and that after the fire the lake formed. They quoted an old whakatauki or proverb:

When the waves look rough they are the plume feathers of Ngatikoro, the man who was burnt.

On the other hand, Professor Bartrum of Auckland University College giving evidence on behalf of the Crown, estimated that the lake was formed at least 1500 years ago and therefore must have been a lake before the coming of the Maoris to New Zealand.

The Court holds that this question is not material to the decision of the case, as it does not really matter whether the site of Lake Omapere was originally a forest or not.178 The Court will merely remark that Native tradition almost invariably has a substantial foundation in fact while on the other hand it is difficult to see how even an expert of Professor Bartrum’s standing can estimate the length of life as being not less than 1500 years when he has not personally inspected the lake’s outlets at the top (or lake end) of the Utukura Gorge. The Geological Survey Report, however, speaks of a:

175 (1912) 32 NZLR 321 (CA). 176 (1912) 32 NZLR 321, at 345 (per Stout CJ). 177 Page 4 of typescript. 178 Acheson is quite obviously correct about this. Native title does not turn on the geological origins of landforms such as lakes.

waterfall 70 feet in height on the Utakura Stream not far below Omapere Lake, where the new stream is rapidly cutting towards base level.

The Court holds that the fact that Lake Omapere is navigable (to a limited extent) has no adverse effect on the rights of the Natives to the lake or to its bed.179 In Mueller v Taupiri Coal Mines Coy. Gaz. L.R. 1900-1, Vol. III, Sir Robert Stout said, (page 141):180

It has been assumed in England, Scotland, and Ireland, that the mere fact that the river was navigable though non-tidal did not affect the ownership of the bed of the river.

In Halsbury’s Laws of England, Vol. 28 at page 399, appears the following:

As in the case of inland non-tidal waters, so in lakes and pools, there is no common law right of the public to navigate thereon.

In Re Tamihana Korokai v Solicitor General quoted supra, Robert Stout, C.J. said (at page 106):181

At common law there may be an ownership of navigable rivers or lakes that are non-tidal.

There is no need to discuss this aspect further.

In view of the admission by the Crown that it recognises the fishing rights of the Natives, there is no need for a pronouncement by the Court on that subject. It will be shown later, however, that the fishing rights are one of the signs of ownership in support of the Natives’ claims to Lake Omapere.

The Court refrains from making any pronouncement on the subject of Riparian Rights as it has no jurisdiction.

The Court does not feel called upon to express any opinion as to whether the Crown has the right to use the waters of Lake Omapere for a suggested hydro-electric scheme.

The position with regard to other lakes in the North Island is, briefly, as follows:-

179 Judge Acheson is here moving to the important point of the relationship between navigability and Maori proprietary rights. It was long-standing Crown Law practice to lay particular emphasis on navigable lakes, arguing (as Meredith did here) that at the time of the Treaty of Waitangi “it was not contemplated that exclusive rights of ownership over navigable waters would be claimed by the Natives”. But Acheson shows that neither in English nor in New Zealand common law is there any presumptive Crown title to “navigable” lakes on behalf of the public. Presumptive Crown title to navigable waters applies only to tidal waters and the foreshore and seabed. Acheson’s view on this is certainly the modern understanding of the law. According to Professor McNeil’s authoritative text on the law of native title only the foreshore and related waters are deemed to belong to the Crown: “Unlike other lands in the realm, the foreshore and the beds of tidal rivers and coastal waters are presumed to be owned by the Crown by prerogative right”: McNeil, Common Law Aboriginal Title (Clarendon, Oxford, 1989), 103. 180 Mueller v Taupiri Coal Mines Ltd (1900) 20 NZLR 89 (CA). This case was concerned with whether the presumption ad medium filum aquae (“to the mid-line of the river”) was rebutted in the case of a Crown grant bounded by a public navigable waterway (the Waikato River near Huntly). The majority held that the presumption was rebutted, Stout CJ dissenting on this point. This case, and especially Stout CJ’s dissent, was one of the reasons for the enactment of s 14 of the Coal Mines Amendment Act 1903 (now preserved by s 354 of the Resource Management Act 1991) vesting the beds of all “navigable” rivers (i.e. not lakes) in the Crown. 181 Tamihana Korokai v The Solicitor-General (1912) 32 NZLR 321, 345 (CA, per Stout CJ).

1. Wairarapa Lake.182 This lake was purchased by the Crown from the Natives but Mr Prendeville claimed on behalf of the Crown that there were special circumstances justifying this purchase, particularly the “urgent need for removing possibilities of serious trouble with the Natives.”

2. Tarawera Lake. The Court titles included portions of this lake, the dividing line between the blocks being run right across the lake.183

3. Rotokawau Lake. This lake was included in the title for Whakapoungakau 4C block.

4. Rotoma184 and Rotoehu Lakes. Portions were excluded from Court orders for surrounding lands.

5. Rotoaira Lake. Mr Prendeville for the Crown submitted that special circumstances justify the Crown in not claiming this lake.185

6. Poukawa Lake.186

7. Waikaremoana Lake.187 In June, 1918, the Native Land Court made an Order on Investigation of Title in favour of the Natives. Unfortunately the Crown was not represented at the hearing, and the case was not properly argued. The Court’s decision did not give reasons for the finding. The Crown appealed against the decision, but the Native Appellate Court has not yet heard the appeal. [258188]

8. Rotorua and other Arawa Lakes. Subsection (1) of Section 27 of “The Native Land Amendment and Native Land Claims Adjustment Act, 1922,” provides as follows:189

The beds of the lakes mentioned in the Second Schedule to this Act (i.e. Lakes Rotoehu, Rotoma, Rotoiti, Rotorua and ten other lakes) together with the right to use the waters of the said lakes, are hereby declared to be the property of the Crown, freed and discharged from the Native customary title, if any. Provided that there shall be reserved to the Natives all islands situate in any of the said lakes,” (and so on). “Provided further that the Governor-General may reserve any portion of the bed of any such lake for the use of the Natives” (and so on).

182 See vol 2 NLC175. 183 Survey plans of Lake Tarawera show this clearly, as do standard maps of MLC block boundaries in the Rotorua district (see Maps of the Central North Island Inquiry District: A Thematic Map Book to Supplement Stage 1 Waitangi Tribunal Hearings, Crown Forestry Rental Trust, Wellington, 2005). When the government in 1897 began purchasing undivided shares from Ngati Rangitihi in the Ruawahia (vol 2 NLC171) block (investigated in 1892), it was found that Lake Tarawera had been included in the title by the Native Land Court. The other block including part of Lake Tarawera was Rotomahana-Parekarangi (vol 1 NLC98, vol 1 NLC135) (1882, 1887). Rotomahana-Parekarangi was a large block and included a significant number of other lakes apart from a substantial part of Lake Tarawera. 184 Probably Rotoma. The typescript looks as if ‘Rotorua’ has been typed in here and has then been corrected by the typist. Lakes Rotoehu and Rotoma are close to each other, while Lake Rotorua is some distance from Lake Rotoehu. 185 Lake Rotoaira is a large lake in the Taupo region. The Court did not make title orders to this lake until 1949. 186 Lake Poukawa is in Hawke’s Bay. 187 The Omapere decision occurred after the Waikaremoana investigation of title in 1918 but before the Crown appeal was finally determined in 1944 after 26 years. The Crown’s appeal relating to Lake Omapere was not to be disposed of until 1953 (24 years), when the Crown abandoned it). See Magna Carta (1215), cl. 40. 188 p 6 of typescript. 189 I am retaining Judge Acheson’s paraphrase of the section.

Subsection (2) of Section 27 says:-

There shall be paid out of the Consolidated Fund to the (Arawa Trust) Board the annual sum of six thousand pounds.

9. Taupo Lake. Subsection (2) of Section 29 of “The Native Land Amendment and Native Land Claims Adjustment Act, 1924,” authorised the Native Minister to negotiate with the Natives for an agreement in respect of the fishing rights in Taupo waters (which term included Lake Taupo) and in respect of the beds and margins of Taupo waters.

Section 14 of “The Native Land Amendment and Native Land Claims Adjustment Act, 1926,” says:190

The bed of the lake known as Lake Taupo (and) together with the right to use the respective waters, are hereby declared to be the property of the Crown, freed and discharged from the Native Customary title (if any) (and so on, as in the case of the 1922 Act relating to Rotorua and other Arawa lakes).

Section 15 of the 1926 Act provides for the annual payment of three thousand pounds to the Tuwharetoa Trust Board.

These are all the precedents of any importance which the Court can trace, and it will be seen that practically all are in support of Native claims to the ownership of lakes and of the beds of lakes. In the case of the Arawa lakes and Lake Taupo, it is important to note the substantial annual payments to be made by the Crown to the respective Trust Boards are to be used for tribal purposes, and their effect will be to increase the prosperity and maintain the mana or prestige of the Arawa and Ngati- Tuwharetoa191 Tribes. There is, therefore, from a Maori point [259192] of view, no possibility of the arrangements with the Crown being construed into an admission of a Crown right to lakes or to the beds of lakes, or construed into a failure to devote the tribal lakes to a worthy purpose.193

The remaining issues before the Court are of such importance to the Maori people and to the community generally that the Court proposes to deal with them at considerable length. In order to facilitate future reference to its decision on various points, the Court will deal with the issues in the form of specific questions and answers. The questions will be so worded as to meet the contentions put forward by counsel for the parties, but the Court does not wish it to be inferred therefrom that it approves of the form in which many of the contentions were submitted to the Court.

190 Also retaining Judge Acheson’s paraphrase. 191 Hyphenated in original. 192 p 7 of typescript. 193 The legislation relating to the Rotorua lakes and to Lake Taupo expressly did not concede a Maori customary title to the lakes. But as Judge Acheson points out in this sentence, nor can they be read as an admission by Maori conceding Crown title.

Question (1)

Did the ancient custom of the Maoris recognise ownership of the beds of lakes?

Answer (1)

Yes! And this answer necessarily follows from the important fact that Maori custom and usage recognised full ownership of lakes themselves.

The bed of any lake is merely a part of that lake, and no juggling with words will ever make it other than part of that lake. The Maori was and still is a direct thinker, and he would see no more reason for separating a lake from its bed (as to the ownership thereof) than he would see for separating the rocks and the soil that comprise a mountain. In fact, in olden days he would have regarded it as rather a grim joke had any strangers asserted that he did not possess the beds of his own land.

A lake is land covered by water, and it is part of the surface of the country in which it is situated, and in essentials it is as much part of that space and as capable of being occupied as is land covered by forest or land covered by a running stream.

All the old authorities are agreed that the whole surface of the North Island of New Zealand was held in definite ownership, according to ancient Maori custom and usage, by the various tribes and their component parts. The Native Land Court has proved the truth of this time after time and in every district. Sir William Martin, a former Chief Justice, expressed the position thus:-

So far as yet appears, the whole surface of these islands, or as much of it as is of any value to man, has been appropriated by the Natives, and, with the exception of the part which they have sold, is held by them as property. (Parl. Papers 1861, App. A3 – to App. E1.194 See also Judgment of Court of Appeal, N.Z., in Re Tamihana Korokai v Solicitor-General. Gaz. L.R. Vol XV 1912-13, p 103).

Attorney General Swainson has said:

Their territorial claims are not confined to the land they have brought into cultivation. They claim and exercise ownership over the whole surface of the country, and there is no part of it, however lonely, of which they do not know the owners. Land apparently waste is highly valued [260195] by them. Forests are preserved for birds, swamps, and streams for eel weirs and fisheries,” and so on. (App. A10 to App. E1 Parl. Papers year 1861.196)

Now it happens that the Native Land Court Judge who is dealing with this Omapere case197 has not only a wide experience of Maori Tribes (and their customs) in many parts of New Zealand,198 but he has also been engaged for years past in a special study of ancient Maori land tenures (for thesis

194 Judge Acheson is referring to the Appendices to Further Papers Relative to the Native Insurrection: The Taranaki Question 1860 AHJR E-1. Appendix A is a group of “Opinions on Native Tenure”. No A3 (p 4) is that of Sir William Martin, and No A10 (p10) is that of Swainson. There are fifteen opinions in all. The others include Donald McLean (A1), the Bishop of New Zealand (Hadfield) (A2), and Archdeacon Maunsell (A4). 195 p 8 of typescript. 196 i.e. 1860 AJHR E-1, Appendix A (No 10), p 10. 197 He means himself. 198 Before becoming the Tai Tokerau judge Acheson had been based at Whanganui, and had presided over numerous cases at Whanganui and at Tokaanu (part of the Whanganui circuit); at Tokaanu he dealt with many cases in the Taupo-King Country region.

60 purposes). He has perused his own records and more particularly his notes of old Native Land Court judgments and his notes of opinions of practically all the old authorities whose views were worth having, including those of:

Judge Mackay, Chief Judge Fenton, Bishop Selwyn, Commissioner McLean, Sir Wm. Martin C.J., Archdeacon Maunsell, Rev. J. Hamlin, Commissioner Spain, Chief Protector Clarke, Archdeacon Hadfield, Attorney General Swainson, Rev. Buddle, Dr. Shortland, Mr. White, Rev J.A. Wilson, Judge Manning, Mr. McDonnell, Rev. Richard Taylor, Rev. J.W. Stack, Mr T. Heale, and Judge Monro,

And nowhere throughout these judgments or opinions has he found the slightest suggestion by inference or otherwise that the ancient custom and usage of the Maoris did not provide for the full ownership of lakes in exactly the same manner as for the ownership of mountains and forests. But he has found abundant support for the views expressed above that the Maoris claimed and owned the whole surface of the North Island.199

Moreover, in his own personal experience among Tribes in whose territories lakes are situated, he has always noticed that it was taken for granted that the lakes were tribal property. Nor were those lakes regarded merely as sources of food supply or merely as places where fishing rights might be exercised.

To the spiritually-minded and mentally-gifted Maori of every rangatira tribe, a lake was something that stirred the hidden forces in him. It was (and, it is hoped, always will be) something much more grand and noble than a mere sheet of water covering a muddy bed. To him, it was a striking landscape feature possessed of a “mauri” or “indwelling life principle” which bound it closely to the fortunes and destiny of his tribe. Gazed upon from childhood days, it grew into his affections and his whole life until he felt it to be a vital part of himself and his people. This feeling of kinship accounts for famous Maori sayings, such as:-200

Tongariro is the mountain

Taupo is the Lake

Tuwharetoa is the Tribe

And Te Heuheu is the Man. and for laments such as that of the exiled Tuwharetoa chief:

Oh that I might see again

the sparkling water of

Taupo.

199 Why just the North Island? Obviously Judge Acheson is implying that different considerations apply in the case of the South Island. I assume this reflects to some extent views that were current at the time – perhaps an assumption that the Crown’s sovereignty rested on different foundations in the two Islands, or perhaps an assumption that the low Maori population combined with the sheer size of the South Island made it a kind of terra nullius. But these are just guesses. 200 The passages of Maori poetry cited here by Acheson are printed as set out in the original typescript.

61 or the dirge of an Arawa chief:

Sadly the murmuring waters

roll on Rotorua’s shores

crying my death-song to

mine ancestors. [261]201

To the Maori, also, a lake was something that added rank, and dignity, and an intangible mana or prestige, to his tribe and to himself. On that account alone it would be highly prized and defended. Consider the words of Chief Justice Sir Wm. Martin:

The pride of each tribe centres on its power to maintain its own possessions against aggression. This spirit is closely akin to what we we would call patriotism. (Parl. Papers year 1861, App. A3 to App. E1).

People unfamiliar with the true Maori cannot realise with what zest the old-time leaders of the tribes, on taking possession of a territory, literally “takahi’d” or trod the land, and claimed all it enclosed for themselves and their followers. Nor can such people (unless they grasp the spirit of Bracken’s immortal poem, “The Farewell of Ngatitoa to Kawhia”202) realise the depth of the love which the Maori had for his tribal domains, or the care and affection with which he made himself and his children quite familiar with these domains and with their boundaries.

201 p 9 of typescript. 202 Judge Acheson is referring to Bracken’s poem “Farewell of the Ngatitoa to Kawhia”, depicting Ngati Toa’s departure from their ancestral lands at Kawhia around 1820. The poem, a highly romantic piece of Victoriana, is quoted by Acheson in his novel Plume of the Arawas. Bracken’s poem, which, far from being “immortal” is sadly long-forgotten, is as follows: And yet they were but savages who stood On Moeatoa’s Hill, above the scene – Mere savages! They knew not yet the road To reach the standard of their better selves, Yet they were men in all save this – brave men, With patriots’ hearts, for as they stood and gazed O’er fair Kawhia’s bush-clad hills and vales That stretched into the sea, o’er which their sires In ages past sailed from Hawaiki’s shores, The tears ran down their tattooed cheeks and sobs Welled from their bosoms, for they loved the land With all the love intense a Maori feels For childhood’s home. The caverns held the bones Of those from whom they’d sprung. Their legends wild And weird traditions chained them to the place, And ere they burst those links of love they gave A last sad look on each familiar spot And wailed above Kawhia’s lovely vale.

Finally, to all these things was added the value of a lake as permanent source of food supply. The old- time Maori had to work hard indeed to supply all his needs. Chief Judge Fenton dealt with this aspect in his Kauwaerenga Judgment203 (Hauraki Minute Book 4 folio 236) as follows:204

That the use to which the Maoris appropriated this land (shell-fish or pipi beds in tidal waters205) was to them of the highest value no one acquainted with their customs and manner of living can doubt. It is very apparent that a place which afforded at all times, and with little labour and preparation, a large and constant supply of almost the only animal food which they could obtain, was of the greatest possible value to them; indeed of very much greater value and importance to their existence than any equal portion of land on terra firma.

Two examples only of such special food value in a lake need be quoted by this Court. One is Lake Rotoaira in the Taupo district. There the Natives at regular seasons catch vast quantities of the blind fish called “kuaro”,206 a unique species of fish (found nowhere else in the world) that issues from the lake by underground streams from caverns under the Tongariro Mountain. On the opposite side of Rotoaira, the Natives catch large numbers of duck during the moulting season by driving them into caves along the lake shore.207

The other example is Lake Omapere itself, which has been for the Ngapuhis a well-filled and constantly available reservoir of food in the form of the shell-fish and the eels that live in the bed of the lake. With their wonderful engineering skill and unlimited supply of man-power, the Maori could themselves have drained Omapere at any time without great difficulty. But Omapere was of much more value to them as a lake than as dry land.

In view of the above considerations, and from its own knowledge of the real position, the Native Land Court must express its strong dissent from the following opinion of Mr Justice Edwards, in Court of Appeal case, “Tamihana Korokai v Solicitor General” Gaz. L.R. Vol. XV, 1912-13, pp 108-9:208

203 See vol 1 NLC 56 (1870); also Alex Frame (ed), “Kauwaerenga Judgment” (1984) 14 VUWLR 234. (The correct spelling appears to be Kauaeranga). Kauaeranga is in the Firth of Thames and is the name of a kainga belonging to Ngati Maru.) 204 (1870) 4 Hauraki MB 236; also vol 1, 646. 205 The words in brackets are an interpolation by Judge Acheson and are not in the original. 206 The usual spelling today is kōaro (Galaxias brevipinnis). See R.M. McDowall, Ikawai: Freshwater fishes in Māori culture and economy (Canterbury University Press, Christchurch, 2011), p 21. 207 Acheson will have become familiar with Lake Rotoaira while he was the Native Land Court judge at Whanganui, during which time he presided over many cases at Tokaanu. 208 Tamihana Korokai v Solicitor-General (1912) 32 NZLR 321, at 351 (CA). The words ‘right of fishery’, in Acheson’s excerpt, are not in the NZLR text, but are clearly implicit in the text. The full passage from the judgment of Edwards J at (1912) 32 NZLR 350-351 is as follows: In support of his contention that the bed of the lake cannot be the subject of a Native title under Maori customs and usages, the Solicitor-General relies upon the inherent improbability that there was any intention, either by the Treaty of Waitangi or by the statutes relating to Native lands, to recognize any such right. To hold that there is such a right would be, the Solicitor-General contends, to destroy the right of navigation in all non-tidal waters, to the great detriment of the public. Such considerations might well have induced those responsible for the Treaty of Waitangi to have so framed that document as to preclude any claim by Natives to the exclusive possession of land covered by navigable non-tidal waters. It may even be suggested that the words of the treaty which guarantee to the Maoris “the full, exclusive, and undisturbed possession of their lands and estates, forests, fisheries, and other properties” were intended to reserve to the Natives merely the right to fish in non-tidal waters, without recognizing any property in the land covered by such waters. It is quite possible – indeed, not improbable – that

It is quite possible – indeed, not improbable – that there never was any Maori custom or usage which recognised any greater right in land covered by navigable non-tidal waters than this [right of fishery].

The learned Judge, in making that statement, seems to have made no allowance for the tribal spirit which is at the back of all Maori claims, and no allowance for the reverence and affection with which the old-time Maoris regarded prominent natural features in their tribal territory.

One point regarding Native custom requires to be considered. Counsel for the Crown contended that the Natives must prove not only a general custom but also a local custom, a custom of the Ngapuhis in respect of their lake-beds. The Court rejects this contention. It is quite well known that Maori customs with respect to land were universal throughout New Zealand. The Native Land Act, 1909, recognises this, and speaks only of the “customs and usages of the Maori people”.209 It says nothing about the customs of particular tribes or districts. Moreover, as Lake Omapere is the only lake (apart from a small crater lake called Tautoro)210 in the whole Ngapuhi territory, and as its ownership has not heretofore been called in question, how could any “local custom” possibly have arisen with regard to it?

Question (2):

Was Lake Omapere, at the time of the Treaty of Waitangi (1840), effectively occupied and owned by the Ngapuho Tribe in accordance with the requirements of ancient Maori custom and usage?

Answer (2):

Yes! The occupation of Omapere was as effective, continuous, unrestricted and exclusive as it was possible for any lake-occupation to be.

It is not contested that for many hundreds of years the Ngapuhis have been in undisputed possession of this lake, and have lived around or close to its shore. The remains of enormous fighting-pas such as “Te Ahuahu” at the eastern end of the lake bear testimony to the big population which the district must originally have carried.211 Even to this present day it is one of the most thickly-populated Maori districts in New Zealand, and it is still the heart of the Ngapuhi country. Great numbers of the

there never was any Maori custom or usage which recognized any greater right in land covered by navigable non-tidal waters than this. That is a question which neither the Supreme Court nor this Court can determine. If there never was any such custom or usage prior to the Treaty of Waitangi, then the Crown will get the advantage of that when that question has been determined by the Native Land Court, or in the last resort by the Judicial Committee of the Privy Council. 209 Acheson may have had in mind, for example, s 91 of the 1909 Act, which provides that “every title to and interest in customary land shall be determined according to the ancient custom and usage of the Maori people so far as the same can be ascertained”. This language is typical of the investigation of title provisions of the Native Lands Acts. For example, s 23 of the Native Lands Act 1865 provided that the Native Land Court was to ascertain titles and issue a certificate “which certificate shall specify the names of the persons or of the tribe who according to Native custom own or are interested in the land” (emphasis added). Section 45 of the Native Land Act 1873 refers to “Native custom and usage”. Acheson is quite correct in his view that the Native Lands Acts presuppose a general Maori custom relating to title to land. 210 Tautoro is the name of a volcanic cone near Kaikohe. The lake, situated on the mountain, is more usually referred to as Lake Tauanui. 211 For a modern study of the archaeology of the inland Bay of Islands region see Douglas Sutton, Louise Furey and Yvonne Marshall, The Archaeology of Pouerua (Auckland University Press, Auckland, 2003).

Ngapuhi, must have grown up within sight of Omapere’s waters, and have regarded the lake as one of the treasured tribal possessions. By no process of reasoning known to the Native Land Court would it be possible to convince the Ngapuhis that they or their forefathers owned merely the fishing rights and not the whole lake itself.

According to ancient Maori custom and usage, the supreme test of ownership was possession, occupation, the right to perform such acts of ownership as were usual and necessary in respect of each particular portion of the territory possessed.

In the case of a lake the usual signs of ownership would be the unrestricted exercise of fishing rights over it, the setting up of eel-weirs at its outlets, the gathering of raupo or flax along its borders, and the occupation of villages [263212] or fighting-pas on or close to its shores. (See also the views of Chief Justice Sir Wm. Martin, App. A3 to App XI, Parl. Papers year 1861, and the views of Chief Protector Clarke App. 8 of App. XI year 1861.)

At the hearing at Kaikohe, the Court expressly limited the quantity of evidence by the Natives as to occupation as the facts were so well known and it was understood that they were not being contested by the Crown. However the evidence given was quite sufficient to show that all the signs of ownership set out above had been shown effectively and continuously for many generations past in respect of Lake Omapere. Fishing for eels had been carried out all over the lake and not merely in a few defined spots. Eel weirs had been set up in the outlets. Fresh water shell-fish had been gathered. It is quite certain that raupo was gathered from the lake fringe for the thatching of houses, and flax for the making of cloaks and mats. Without doubt also, though no evidence was given along these lines, the old-time Maoris must have snared wild-fowl in the reeds and swamps along the shores and used the lake for the canoeing and other aquatic pleasures and exercises universal among the Maoris of other days.

In short, the Ngapuhis used and occupied Lake Omapere for all purposes for which a lake could be reasonably used and occupied by them, and the Native Land Court says that much less occupation would be ample, according to ancient custom and usage, to prove actual and effective ownership of the lake, bed and all.

Question (3)

Must Native title be extinguished in accordance with law before it can be disregarded by the New Zealand Courts?

Answer (3):

Yes!

The authorities upon this point are most emphatic, and it is difficult to see upon what grounds Counsel for the Crown in this Omapere case has contended that the Native Land Court cannot require the Crown to prove extinguishment of the Native title.

In Reg. v Symonds (Parl. Papers, Dec. 1847, page 67) Mr Justice Chapman held that the Native title cannot be extinguished otherwise than in strict compliance with the provisions of statutes.

212 p. 11 of typescript.

In Nireaha Tamaki v Baker (Law Reports Appeal Cases 1901)213 the Judicial Committee of the Privy Council held that the New Zealand Courts had jurisdiction to decide that the title alleged was in existence and had not been extinguished by the Crown in manner provided by statute, or by any other proceeding legally effective for that purpose. It was held also, in answer to the query as to whether Native title can be extinguished by an exercise of the Crown’s prerogative, that the Native appellant was entitled to sue for an injunction until his title was extinguished according to law, and that the Court had jurisdiction to decide whether the action of the Commissioner of Crown Lands was within his statutory powers.

Lord Davey said, (page 578)214:-

[O]ne is rather at a loss to know what is meant by such expressions “native title,” “native lands,” “owners,” and “proprietors,” or the careful provision against sale of Crown lands until the native title has been extinguished, if there be no such title [264215] cognizable by the law, and no title therefore to be extinguished. Their Lordships think that the Supreme Court are bound to recognise the fact of the “rightful possession and occupation of the natives” until extinguished in accordance with law.

In Tamihana Korokai v Solicitor General, Gaz. L.R. 1912-12, Vol XV, p. 95,216 the Court of Appeal held that the plaintiff had a right to go to the Native Land Court to have the title (to the bed of Lake Rotorua) investigated, and that the Native Land Court could only be prevented from performing its duty under the Native Land Act, 1909, on proof that the lands were Crown lands freed by proclamation or otherwise from the customary title to the bed of the lake, and that the mere statement of the Solicitor General could not be accepted as a true averment without proof.

In delivering Judgment, Sir Robert Stout C.J., said, (page 105217):-

I am of opinion that the Native Land Act recognized that Natives have a right to their customary titles. There are, in my opinion, only three things that can prevent the Native Land Court entering on an inquiry as to such customary title – 1, a Proclamation of the Governor under a statute, [such as has been provided in many Acts, and is so provided in section 85 of the Native Land Act, 1909218]; 2, a prohibition by the Governor under section 100 of the Native Land Act, 1909; [since repealed by Section 43 of the 1913 Act219] 3, proof that the land has been ceded by the true owners, or that a Crown grant has been issued.

Further on in his Judgment, Sir Robert Stout said, page (106220):

[T]he Native Land Court can only be prevented from performing its statutory duty, first, under the Native Land Act; or, second, on proof in that Court that the lands are Crown lands

213 Nireaha Tamaki v Baker [1901] AC 561 (PC). 214 [1901] AC 561, at 578. Acheson’s quotation has been modified slightly to conform with the original text in the Law Reports. 215 p. 12 of typescript. 216 (1912) 32 NZLR 321. 217 (1912) 32 NZLR 321, at 345. The quoted passage has been slightly altered to conform with the original text in the New Zealand Law Reports. 218 Words in square brackets omitted by Acheson. 219 Words in square brackets have been added by Acheson. 220 (1912) 32 NZLR 345-6. Again Acheson’s quotation has been corrected slightly to conform with the original text in the New Zealand law Reports.

freed from the customary title of the Natives; or, third, that there is a Crown title to the bed of the lake.

In the same case, Mr Justice Williams said, (page 107221):

I agree, however, with the conclusion arrived at by His Honour [Stout C.J.222] that rights given to Natives by statute to have their customary titles determined can only be divested in the manner prescribed by statute. The rights given to Natives by sections 90 to 93 inclusive of the Native Land Act, 1909, to have a legal estate in fee-simple vested in the persons found to be entitled, are rights expressly given against the Crown. If these sections do not bind the Crown they are meaningless and inoperative.

In the same case Mr. Justice Edwards said, (page 109223):- [265224]

In my opinion it is clear that, if the Crown desires to set up its title as a bar to the investigation by the Native Land Court in its ordinary jurisdiction of claims by Natives, it must either be prepared to prove its title, or it must be able to rely upon a proclamation in accordance with the terms of the 85th section of the Native Land Act, 1909.

Sections 85 and 87 of “The Native Land Act, 1909” can be taken as statutory authority for the need for ‘lawful extinguishment’ of any Native title to customary land.

Question (4):

In point of fact, has the Native title to Lake Omapere been extinguished in accordance with law?

Answer (4):

No!

It is admitted that it has not been extinguished by proclamation, or by confiscation arising out of any act of rebellion, or by sale by the Natives, or by any action of the Executive Government, or by any Statute of Parliament, or by the issue of any Crown Grant.

The Native Land Court holds that the Native title to Omapere has not been extinguished or even derogated from by the operation of any known rule of law, or by the fact that certain sales by individual Natives of freehold land adjoining the lake have taken place.

The Court holds further that no proof whatever has been given to show any right of the Crown to the lake or to its bed in opposition to the Native title. In fact no evidence has been given to indicate that the Crown ever laid claim to this lake prior to the present proceedings.

Section 87 of “The Native Land Act, 1909” provides for the lawful extinguishment of Native customary title in cases where land has, during the period of ten years immediately preceding the commencement of the 1909 Act, been continuously in the possession of the Crown as being Crown land free from the Native customary title. The Court holds that this Section does not apply in the case of Lake Omapere, for the lake has not at any time been in the possession of the Crown even for ten

221 (1912) 32 NZLR 348 (corrected to conform with the original). 222 Words in square brackets interpolated by Acheson. 223 (1912) 32 NZLR 352. 224 p. 13 of typescript.

67 days. This Section, however, shows that the Legislature appreciated the need for a special statutory provision to extinguish Native title.

It was contended (but not seriously pressed) on behalf of the Crown that sales by Natives to the Crown, of areas adjoining Lake Omapere, gave to the Crown rights in those portions of the bed of the lake fronting on to the portion sold.

This contention has no merit whatever. The sales to the Crown were of particular areas of land well defined as to area and boundaries, and could not possibly have been intended to include portions of the lake-bed adjoining. See also Judgment of Court of Appeal in re Mueller v Taupiri Coal Mines Co., Gaz. L.R. 1900-1, Vol III, p 154.225 [266226]

Also, the mere fact that Lake Omapere was “customary land” was an absolute bar to sales of any portion of it to the Crown. Section 89 of “The Native Land Act, 1909” forbids sales of “customary land” to the Crown, and earlier statutory provisions were to the same effect.

Moreover, Lake Omapere was tribal territory, and therefore, according to established Maori custom and usage, no individual or groups of individuals had the right to alienate any portion of its bed. To hold otherwise would be to give support to that lamentable doctrine which led, in the celebrated Waitara Case, to tragic and unnecessary wars between Pakeha and Maori.

There can thus be no presumption either in law or in fact that the sales of some lands to the Crown adjoining Lake Omapere carried with them portions of the lake or of its bed.

Question 5:

Has the New Zealand Legislature at any time given recognition to Native ownership of lakes?

Answer: (5)

Yes, by inference!

Section 21 of the “Native Lands Act, 1873,” provided for the preparation of general maps “distinguishing the different tracts of country in possession of the various tribes or hapus of the Natives at the time of the signing of the Treaty pf Waitangi, and the nature of the tenure thereof.”227

The maps were to define “the inter-tribal boundaries by their Native names, giving the estimated area of such tribal land, with a description of the course and direction of the principal rivers running through such land, and the names and positions of the various mountains, lakes, and other salient points in the general features of the country.”228

The Court has unfortunately been unable to locate any such plan for the Ngapuhi territory but it is certain that any plan of that territory would have shown Lake Omapere well within the tract belonging to the Tribe at the time of the Treaty of Waitangi.

225 Mueller v Taupiri Coal Mines Ltd (1900) 20 NZLR 89 (CA). This case was concerned with the application of the ad medium filum aquae rule to the bed of the Waikato River. 226 p. 14 of typescript. 227 Emphasis added by Acheson. 228 Emphases added by Acheson.

The Court has already considered the legislative recognition given to the rights of the Natives in the cases of Rotorua, Taupo and Poukawa Lakes.

Question 6.

Is the Native Land Court bound to take judicial notice of the provisions of the Treaty of Waitangi?

Answer (6):

Yes!

The Treaty of Waitangi has been given statutory recognition by the New Zealand Legislature, and that it has been taken judicial notice of by the Supreme Court and by the Privy Council.

The Treaty, which was signed on the 6th February, 1840, has not been amended or abrogated, and its terms are as follows: - [267229] [English-language text of Treaty of Waitangi omitted]

The Treaty was signed by large numbers of prominent Chiefs present at the gathering of Maoris at Waitangi, and afterwards copies of the Treaty were carried through New Zealand by authorised representatives of the Crown and signed by nearly all the remaining chiefs of the various tribes. A few chiefs, notably the powerful Taupo chief Te Heuheu, declined to sign the Treaty, but it may be taken as a fact that the Treaty was very generally approved by practically all the tribes of New Zealand.

New Zealand became a colony in 1840, by virtue of Imperial Statute 3 and 4 Vict. c. 62. The first New Zealand Legislature met in 1841. The very first statute passed by it was “The Land Claims Ordinance No 1” in 1841. Of this statute Lord Davey said in the Privy Council case, Nireaha Tamaki v Baker, Appeal Cases 1901, page 567:230

It declares the title of the Crown to be subject to the rightful and necessary occupation of the aboriginal inhabitants, and was to that extent a legislative recognition of the rights confirmed and guaranteed by the Crown by the second Article of the Treaty of Waitangi. It would not of itself, however, be sufficient to create a right in the Native owners cognizable in a Court of Law.

The Native Lands Act, 1862, expressly referred to the Treaty of Waitangi, and recited the guarantee given therein to the Chiefs and Tribes in respect of their lands and estates. In Tamihana Korokai v Solicitor General, Gaz. L.R. 1912-13, Vol XV, p. 109, Mr Justice Edwards said:231 [268232]

Whatever rights were conserved to the Maoris by the Treaty of Waitangi were fully recognized by the Native Lands Act, 1862, which recited the treaty, and was enacted with the declared object of giving effect to it. All the subsequent Native Land Acts have in turn given to the Maoris the right to invoke the jurisdiction of the Native Land Court for the purpose of

229 p. 15 of typescript. 230 Nireaha Tamaki v Baker [1901] AC 561, 567. In fact the first sentence of this passage states: “No doubt this Act of the Legislature [i.e. the Land Claims Ordinance 1841] did not confer title on the Crown, but it declares the title of the Crown to be subject to the “rightful and necessary occupation” of the aboriginal inhabitants, and was to that extent a legislative recognition of the rights confirmed and guaranteed by the Crown by the second article of the Treaty of Waitangi.” 231 Tamihana Korokai v The Solicitor-General (1912) 32 NZLR 321, 351. 232 p. 16 of typescript.

investigating their claims to lands alleged by them to be owned under Native customs and usages.

In the same case, Mr Justice Chapman said, (page 111):233

From the earliest period of our history the rights of the Natives have been conserved by numerous legislative enactments. Section 10 of 9 & 10 Vict., c. 103, called “An Act to make Further Provision for the Government of the New Zealand Islands” (Imperial, 1846), recognizes the laws, customs, and usages of the Natives, which necessarily includes their customs respecting the holding of land. So also the Imperial Act of 1847. To the same effect is the whole body of Colonial legislation. The various statutory recognitions of the Treaty of Waitangi mean no more, but they certainly mean no less than these recognitions of Native rights.

Further on, he said:234

The due recognition of the (Native) right or title was imposed on the colony as a sacred trust. That duty the Legislature of New Zealand has endeavoured to perform by means of a long series of enactments culminating in “The Native Land Act, 1909. In this series of statutes one of the most important provisions is that which sets up a special Court charged with the duty of investigating Native titles. The creation of that Court shows that Native titles have always been regarded as having an actual existence.

The Native Lands Act, 1873 (Section 21) gave legislative recognition to the Treaty of Waitangi,235 and so did the Fish Protection Act, 1877 (Section 8).

The Native Land Act, 1909, which is the principal Act now in force relating to the lands of the Natives, does not refer to the Treaty by name, but its provisions carry out the guarantee given to the

233 (1912) 32 NZLR 321, 355-56. Acheson has paraphrased to some extent here. The NZLR text is as follows: From the earliest period of our history the rights of the Natives have been conserved by numerous legislative enactments. Section 10 of 9 & 10 Vict., c. 103, called “An Act to make Further Provision for the Government of the New Zealand Islands” (Imperial, 1846), recognizes the laws, customs, and usages of the Natives, which necessarily includes their customs respecting the holding of land. Section 10 & 11 Vict., c. 112, called “An Act to promote Colonization in New Zealand, and to authorize a Loan to the New Zealand Company” (Imperial, 1847), recognizes the claims of the aboriginal inhabitants to the land. To the same effect is the whole body of colonial legislation. The expressions “land over which the Native title has not been extinguished,’ and “land over which the Native title has been extinguished,” familiar expressions in colonial legislation, are both pregnant with the same declaration. In the judgment of the Privy Council in Nireaha Tamaki v. Baker importance is attached to these and similar declarations in considering the effect of colonial legislation. There the whole of the legislation from the date of the constitution is summarized. This summary includes the principal colonial Acts. Referring to section 5 of the Native Rights Act, 1865, their Lordships say, “The legislation both of the Imperial Parliament and of the colonial Legislature is consistent with this view of the constitution of the Native Rights Act, and one is rather at a loss to know what is meant by such expressions as ‘Native title,’ ‘Native lands,’ ‘owners,’ and ‘proprietors,’ or the careful provision against sale of Crown lands until the Native title has been extinguished if there be no such title cognizable by the law and no title therefore to be extinguished.” I might refer to less precise but equally important expressions, such as “tribal lands” in the Native Land Act, 1873, section 21. The various statutory provisions mean no more, but they certainly mean no less, than these recognitions of Native rights. 234 (1912) 32 NZLR 321, 356. The first sentence of the quoted passage in the NZLR reads: “The due recognition of this right or title by some means was imposed on the colony as a solemn duty: Nireaha Tamaki v Baker.” 235 Section 21 of the 1873 Act provided that a District Officer was to prepare a map “distinguishing the different tracts of country in possession of the various tribes or hapus of the Natives at the date of the signing of the Treaty of Waitangi, and the nature of the tenure thereof”.

Natives by the Treaty.236 The 1909 Act was drafted by the Solicitor-General (later Mr. Justice Salmond), and in his Introductory Memorandum attached to the Act contains the following passage:-

Customary land is land in respect of which the ancient customary Native title, as recognised and guaranteed by the Treaty of Waitangi, has not yet been extinguished.

236 At the time of Acheson’s judgment in this case the Native Land Act 1909 was still in force. It was repealed and replaced by the Native Land Act 1931.

LAKE TANGONGE (1933)

New Zealand Herald, 9 March 1933, p 11 (preliminary judgment); (1934) 65 Northern MB 348- 354 (final orders) Northland Region (Muriwhenua)

693 acres

Native Land Court, Ahipara

9 March 1933

Judge Acheson

Investigation of Title (preliminary issue)

Te Rarawa

Native Land Act 1931

JUDGMENT

New Zealand Herald text

[11] LAKE OWNERSHIP

MAORI OCCUPATION

TREATY RIGHTS INVOLVED

NORTH AUCKLAND CLAIM

IMPORTANT POINTS RAISED

[From our own correspondent]

KAITAIA, Wednesday

An interesting case concerning the ownership of the Tangonge Lake bed, better known as the Kaitaia Lake, was heard in the Native Land Court at Roma, Ahipara, before Judge Acheson. The claimants were Wiremu Rapihana, Herepete Rapihana, Wairama Maihi and others. The area in dispute is approximately 693 acres, of a value of probably £4000.

After hearing the evidence His Honour said he would give judgment immediately, but in view of the great importance of the case to the whole of the Maoris of New Zealand, he proposed to give a written judgment as well as a precautionary measure in case an appeal was lodged by the Crown, as had happened in the case concerning Lake Omapere.

No question of the Crown’s prerogative right arose in the case of Lake Tangonge, said His Honour. It was just a case of the Court having to decide all matters at issue apart from any over-riding interests of the Crown. The proceedings were taken under the Native Land Act, 1931, which said that the Court

72 had exclusive jurisdiction to investigate customary lands, in accordance with the ancient customs of the Maori people as far as they could be ascertained. It was specially provided that natives had the right of having the case of customary lands investigated by the Court, irrespective of the rights of the Crown, and the Native Land Court was the only Court in New Zealand that had jurisdiction in these cases.

Ancient Custom Upheld

The question arose, did the ancient custom and usage of the Maori recognise ownership of the beds of lakes? The Court held that they not only owned the beds but the lakes themselves, as a bed was only part of the lake, and if the bed were separated from the lake it would be like separating the soil from the rocks of a mountain. In olden days it would have been regarded as a good joke by the old people if they had been told that they owned the lake, but not the bed of it. Authorities showed that a lake was simply land covered with water, and was as capable of being occupied as land covered with forest.

The Court was well aware of the value of a lake or swamp to the Maoris as a source of food supply, and the fact that Lake Tangonge had been used as such was very strong evidence of occupation. There they got supplies of shellfish, eels etc., and the lake was therefore of great daily value to the Maoris. With little labour or preparation, a constant supply of food was readily available. A lake was sometimes of more value to the Maoris than a similar area of dry land. In the Taupo district was to be found a blind fish, not found anywhere else in the world. Through underground channels they came down in millions from Lake Rotoaira and were caught at the shore. For 400 years families had their own lake outlet where they caught the fish, and this established one of the strongest claims.

Again, in the case of Lake Omapere it has been conclusively proved that natives could occupy lakes and own them. Under the Treaty of Waitangi this Court had no hesitation in holding that this occupation was effectual, continuous, unrestricted and exclusive. The Court was satisfied that for many generations past the natives of this district had been in possession of Lake Tangonge and lands adjoining that lake. They had lived around its shores and treasured it. They had built eel weirs, and gathered raupo and flax, all satisfactory evidences of occupation. The evidence given had been quite conclusive on that point.

Title Never Extinguished

Continuing, His Honour said that the native title to papatupu land must be taken into account unless it could be shown that it was extinguished. This was not the case with Lake Tangonge, where the title had never been extinguished or ceded to the Crown. It was, therefore, native customary land. No proof whatever had been given by the Crown to establish ownership of the lake. The fact that the Crown owned adjacent land did not give it any claim to the bed of the lake. The Crown was not allowed to buy papatupu land, and it was clear that according to ancient Maori custom none of the individual owners was allowed to sell papatupu land.

Was the Native Land Court bound to take cognisance of the Treaty of Waitangi, and had that treaty been given statutory recognition by the Legislature or the Privy Council? His Honour asked. The treaty, he said, was signed in 1840 and had not been set aside. The treaty had been recognised by Imperial Statute, and by the Land Claims Ordinance of 1841. In a former case Mr. Justice Chapman said that the Treaty of Waitangi was imposed on the colony as a sacred trust, and the treaty had culminated in a long series of enactments. That being so, it was the duty of the Court to take judicial notice of the Treaty of Waitangi. It was its duty and privilege to protect the natives not only against themselves, and unscrupulous Europeans, but against the Crown.

Attitude of the Crown

Fortunately, the Crown wished to see justice done to the Maoris of New Zealand, said His Honour. He did not know of a single instance to the contrary. Another question which arose was whether it was contemplated at the signing of the Treaty of Waitangi that Tangonge and other lakes would pass over to the Crown. The Court held that this was not contemplated.

Concluding, His Honour said the Court held that the Maori occupation of Lake Tangonge had been continuous, unrestricted and effective since the signing of the Treaty of Waitangi, and that the rights of the Maoris had never been challenged. The Court held that the carrying out of drainage operations by the Land Drainage Department did not constitute an adverse right against the Maoris.

The Court was satisfied that the requirements of the Native Land Act, 1931, regarding customary lands had been fulfilled, and had no hesitation whatever in ruling that Lake Tangonge was native customary land under the Act of 1931. Finally, the Court directed that a list of owners and claims be submitted to be dealt with later.

Order on Investigation of Title to Lake Tangonge:

(1934) 65 Northern MB 348-354

Northland Region (Muriwhenua)

693 acres

Native Land Court, Kaitaia

27 June 1934

Judge Acheson

Investigation of Title (final orders)

Te Aupouri, Te Rarawa, Te Aupouri

Native Land Act 1931

JUDGMENT [348] Tangonge Lake

All parties are now in full agreement on all points.

Order on Investigation of Title accordingly to issue re Tangonge Lake 693 acres as shown on Plan before Court in favour of:-

(1) The Aupouri Tribe living between Awanui (inclusive) and the North Cape, as in Tribal Reserve – with temporary trustees as shown jointly 75 shares of 693.

(2) The Rarawa Tribe excluding those members included in the Aupouri award above – with temporary trustees as follows:- [list of names omitted]

(3) Herepete Rapihana m.a. or as he shall in writing direct – for 25 shares out of 693 shares to include his special award for services.

(4) The Puhipi list for 222 shares as lodged, amended, panuid and passed, names and shares as follows: [list of names omitted]

(5) The Rapihana list for 221 shares as lodged, amended, panuid, and passed – names and shares as follows: [list of names omitted]

(6) Hohepa Kanara’s list for 75 shares as lodged, amended, panuid and passed – names and shares as follows: [list of names omitted]

Court’s comments on Tangonge Lake Case:

As the lists of names and shares have been fully approved and consented to at a very large and fully representative gathering of interested Natives who have been present in Court daily during the last eight days, and as the fullest notification by Court announcements and telegrams to all sections of the Mangonui County Natives has been made, there is no need for a long judgment on the facts at issue in this case. The Court will therefore confine itself to the following comments for record purposes.

(1) Award of 75 acres as a Reserve for the the Te Aupouri Tribe, free of any charge in respect of legal costs. The Court is satisfied that the Aupouri Tribe have ancestral right, and that any withdrawal from from the district as a result of battles fought with the Rarawa Tribe did not amount to Conquest. This point has already been decided by the Appellate Court in the Ahipara Investigation case. The fact that peace was made between the tribes and intermarriages of leading families took place is strong evidence that there was no Conquest. Further proof is given by the large Aupouri holdings in the Ahipara, Manukau and Paihia blocks and even in the Waimiha block (sold to Crown) on Western side of Tangonge Lake. It is also quite clear to this Court that the Aupouri tribal strength was a material and constant support to the Rarawa Tribe against being being overrun by the warlike Ngapuhis from further South. The Aupouri Tribe is entitled to credit for these rights, but cannot claim too much as its occupation is weak, especially in recent times. No individual occupation, except by Aupori women who married Rarawa chiefs at the peace-making, has been proved. Therefore any award should be a Tribal one for Reserve purposes. As the award is to be limited (by consent of all parties) to the Aupouri Tribe proper i.e. that portion of located from Awanui Northwards to the North Cape, the award of 75 acres clear of costs is adequate. The Court will discuss the fixing of the final list of trustees for this 75 acres on its next visit to Te Kao.

(2) Award of 75 acres to the Te Rarawa Tribe as to Reserve. This is not free of charge as to costs. The award is in recognition of the Tribal claim of the Rarawas apart from the individual claims supported by strong occupation. It is clear that many Rarawas are interested in this Tangonge Lake ancestrally but have little or no occupational right. Their tribal strength has helped to preserve the Lake and district against Ngapuhi aggression. The Tribe badly needs an endowment for community purposes. The list of trustees submitted is not final. The award includes all members of the Te Rarawa Tribe except those who are really Aupouris living in the area from Awanui Northwards.

(3) The remaining awards are largely based on agreement of the parties and on their strong occupational right as resident of Pukepoto. The occupation of Pukepoto was undoubtedly the great saving factor against loss of this Lake to the Natives and Pukepoto Natives are entitled to credit for this in the awards. The numbers in the lists have been restricted principally to heads of families. Ample opportunity has been given for inspection of the lists and for objections thereto.

Court will arrange for partitions and consolidation.

ORAKEI FORESHORE (1941)

(1941) 23 Kaipara MB 159-162 Auckland region

Native Land Court, Auckland

30 September 1941

Judge Acheson

Investigation of Title

Ngati Whatua

Native Land Act 1931

JUDGMENT

[159] Application 6: Orakei Foreshore Case, affecting:

Orakei 1 Reserve Papakainga

Orakei 1 Reserve B

Orakei 1 Reserve A

Orakei 1 Reserve C2A2

Orakei 1 Reserve C2B1

Orakei 1 Reserve C2B2

Orakei 1 Church and Cemetery Reserve

Orakei 1 Reserve C1

Orakei 1 Reserve C2A1

Minute Book References K 23 folios 123 to 154237

Interim Judgment of the Court (Acheson, Judge)

At the hearing at Auckland on the 29th and 30th September 1941.

237 i.e. (1941) 23 Kaipara MB 133-154.

Mr V R Meredith Crown Solicitor, Auckland, represented the Crown, assisted by Mr R.J. Blane of the Native Department, Wellington, and by Mr C.A. Darby and Mr P.B. Wright of the Lands and Survey Office, Auckland.

No one represented the Orakei Natives, but they were present in full force. Through Mr Ngapipi Reweti they intimated that they had received insufficient notice and were without funds to engage a lawyer to represent them. They therefore did not propose to cross-examine any Crown witnesses or call any evidence themselves. However, Ngapipi addressed the Court briefly.

The Court regards this case, together with the Rangikohu and Ngakororo cases which have preceded it, as being of considerable importance both to the Crown and the Maori people. The cases involve the whole subject matter of accretion as applying to the various classes of New Zealand titles to land. Other issues besides Accretion are also involved. Unfortunately, in the particular circumstances of the Court at the moment, it is not possible to give the time and care needed for the preparation of a Full Judgment covering the many points of law in the three cases mentioned.238

Full judgment will follow later, and in the meantime the Court delivers an INTERIM JUDGMENT only, limited to the ORAKEI FORESHORE case, as follows:

(1) The case arose out of a memorandum to the Court dated 12th May 1939 in which the Chief Surveyor Auckland intimated that since the survey of the original 40 acres in the Orakei 1 Reserve (Papakainga) by Mr Foster in 1898 Plan 1338 (1) there had been an accretion of approximately 2 ½ acres. A schedule enclosed showed the Chief Surveyor’s proposed apportionment:-

Orakei Reserve C2B1 Native Land 18p Orakei Reserve C2A1 Native Land 18p Orakei Church/Cemetery Reserve Native Land 12 p Total for Natives = 0a. 1r. 08p. Orakei 1 Reserve C2A2 Crown Land 0a.3r. 3.5p. Orakei 1 Reserve C2B2 Crown Land 1a.1r. 28.0 p. Total for Crown = 2a.0r.31.5 p Combined Total 2a.1.r. 39.5p

Chief Surveyor suggested amendment of boundaries accordingly.

(2) In its reply 13th September 1939 the Court informed the Chief Surveyor that it had no authority to agree ex parte to a pro-rata distribution of the accretion. The Court said also that a suitable application should be lodged with the Court so that the [160] intricate legal questions involved might be dealt with and a decision from which either party could appeal of thought fit.

(3) The Court places on record:

(a) That there is nothing on Orakei Correspondence File No. 25A to show that the Chief Surveyor ever replied to the Court’s communication of the 13the September 1939.

238 It is evident from these comments that it was Judge Acheson’s intention to give a full judgment traversing at length all the complex legal issues arising in the Northland-Auckland foreshore cases. As far as I am aware no such judgment was ever given by Acheson, perhaps because of the intervention of the Native Appellate Court in the matter.

(b) That no application such as had been requested by the Court was lodged.

(c) That instead of answering the Court’s communication referred to, the Chief Surveyor wrote to the Registrar of the Court on the 27th May 1940, forwarding Plan 13011 for the Judge’s approval together with diagrams for attachment to the Court orders. The Chief Surveyor stated again that the excess area had been distributed pro rata between the Native and the Crown subdivisions.

(d) That the Registrar, instead of referring the matter to the judge of the district (Acheson J), conferred on the 3rd June 1940 with the Chief Judge of the Native Land Court. The object of his so conferring is not disclosed on the file. Neither is there any note by the Registrar to show what transpired.239

(e) That upon the following day, 4th June 1940, Messrs Darby and Wright of the Lands and Survey office discussed the matter fully with Chief Judge MacCormick, who quite properly intimated that the matter would need to be placed before the natives in open Court. The Chief Judge said he was not prepared to approve the partition orders or complete the Plan.

(f) That despite the above, neither the Chief Surveyor nor the Registrar took any steps to bring the matter before the Natives in open Court. Consequently, the Court itself, in the interests of Justice, directed the lodging of the present application and insisted upon its inclusion for the panui in this Special sitting.

4. The Court now expresses its surprise and concern at the following facts:

(a) The Chief Surveyor’s memorandum to the Court dated 12th May 1929 stated that since Foster’s survey in 1898 the accretion was approximately 2 ½ acres.

(b) In actual fact the accretion was 2 ¾ acres, which is an immaterial difference. What is material is that the accretion was 2 ¾ acres between 1898 and 1926, the date of Mr King’s survey. Nothing was said about the possibility of additional accretion between 1926 and 1939.

(c) Even more material is the fact, just disclosed at the present hearing, that no less than 1 acre 1 rood 15 perches of the accretion took place between 1898 and 1910, the date of Mr John Dawson’s survey for Sewer purposes. Therefore, that amount of accretion and probably more had occurred prior to the date of commencement of the Crown’s Orakei purchases (1914).

(d) In view of the extreme care with which the Survey Office examines plans the Court is quite unable to understand why the accretion was not discovered at the time of Mr King’s survey in 1926, which fixed a new Mean High Water Mark quite different from that shown in Mr Foster’s base plan 1338(1) in 1898. There might have been some excuse for overlooking Mr John Dawson’s survey showing accretion in 1910, but how the accretion included in various plans escaped notice until 1938 is a mystery to the Court. It must seem strange to the Natives that all the mistakes would have resulted in advantage to the Crown and disadvantage to them if they had been finalised either by the Judge of the District or by the Chief Judge.

5. The Court is even more surprised to find that, subsequent to the Court’s memorandum of the 13th September 1939 to the Chief Surveyor, and also to Chief Judge MacCormick’s intimations of the

239 This is a somewhat extraordinary state of affairs to say the least: i.e. that the Court’s own Registrar, without the knowledge of Judge Acheson, has discussed the issue of the Orakei foreshore lands directly with the Chief Judge in Wellington. Plainly Judge Acheson is not happy with the situation.

4th June 1940 the whole of the accretion was temporarily reserved (Gazettes 10th and 18th July 1940) for recreation purposes under Section 359 of the Land Act 1924. One [161] portion comprising 1 acre 1 rood 30 perches was called Section 24 Block VIII Rangitoto S.D. a description which would have no meaning and which would convey no warning to the Orakei Natives. These temporary reservations for recreation purposes were later made permanent under Section 360 of the Land Act 1924. See Gazette 12 September 1940. The Court points out however that these statutory provisions apply only to Crown Land. What authority have they in respect of the Native Land in the Orakei Foreshore Accretion. If the functions of the Native Land Court, a Court of Record, are to be set aside by Departmental action in this way a serious Constitutional problem will be involved. For the present the Court merely expresses surprise that no reference to these Reservations for recreation purposes was made at this hearing.

6. On the admissions of Counsel for the Crown the Court holds that the following facts have been proved:

(a) That the Survey by Mr Forster in 1898 Plan 1338(1) included a definition of the Mean High Water Mark along the Harbour frontage of Orakei No.1. Reserve Papakainga.

(b) That Mr Dawson’s survey in 1910 for Sewer purposes showed an accretion of 1a. 1r. 15p. since the date of Mr Foster’s survey in 1898.

(c) That such accretion, together with any further accretion after 1910, was not allowed for by the Valuer in fixing the values of the Orakei lands, and was not allowed for in the purchases by the Crown from 1914 onwards, and was not allowed for in the various Court partitions which followed. Nor was it allowed for in the proceedings before the Royal Commission in 1938 as far as the evidence shows. The partitions and the purchases were clearly made on the basis of the 1898 survey, without reference to any accretion since that date.

7. The Court on these proceedings is not prepared to deal with the following further matters which were raised during the hearing:-

(a) Orakei roads, as to whether excess areas were taken by proclamation for roads, or as to whether any roads originally laid off by the Court are not now in use wholly or in part, and as to whether any such unused roads or portions of roads should now be closed and revested in the Natives who provided the roads out of their Orakei Block.

(b) The Water-Front Road known as Tamaki Drive. As to the Proclaiming thereof, and particularly as to the unproclaimed portion of the Waterfront Road fronting the Native Land Orakei 1 Reserve C 2B 1 and the Church and Cemetery Reserve. The questions of Riparian Rights, Access to to the Sea, and Severance would appear to arise again if not covered by the Sewer Award of 1912 (see below).

(c) Bastion Point or Battery Reserve. The Court understands that this is the subject of a Petition to Parliament. However, as Mr. Darby as witness for the Crown made the definite statement that the owners had been paid in full for this land (and presumably for the road leading to it) the Court in justice to the natives stresses the need for the closest investigation of all the facts leading to the matter including:-

(1) The original gift of another area for defence purposes (Orakei No. 5, subsequently bought by the Crown for £1520).

(2) The procedure by which the gift of 9 acres in Orakei No. 5 was apparently changed over to the 11 acres (plus road) on the Bastion Point Battery Reserve.

(3) The condition of the gift, that the land was to be returned to the Natives if not used for defence purposes.

(8) Mr Meredith, as Counsel for the crown quoted Mr Justice Cooper’s compensation award of the 5th December 1912 as proof that the natives in 1912 knew of the accretion and received cash under that award for the accretion and so must have known later that they were selling the accretion to the Crown. The Court is [162] quite unable to accept these assumptions as in any way justified. If, as Mr Meredith and Mr Darby admitted, the Crown representatives with all their plan and survey facilities, themselves did not know about the accretion until 193 it is not reasonable to suggest that the Natives knew about the accretion and knew they were selling it. Apart from that the Sewer award itself completely disproves the assumption of Counsel for the Crown. Thus

(a) The award of £150 for loss of the 1 rood 4 perches on which the sewer was placed. It turns out now that this was part of the accretion, but no mention of accretion was ever made in the award.

(b) Similarly with regard to the £75 award for severance of 1 rood 19 perches. It turns out now to have been a severance between the two portions of the accretion, but no mention of accretion was ever made in the award.

(c) £1750 was awarded as compensation for the Sewer’s interference with Riparian rights and with access to the sea in respect of the Residue of Orakei 1 Reserve. However, this was not a sale to the Drainage Board of the Native land in the accretion. It was merely compensation for interference with use, and was not payment for land taken. No land was taken.

(d) £275 was awarded for depreciation re building and residential sites and for unsightliness. This also had nothing to do with the accretion or with any sale of land.

It will be observed that no specific compensation amount was awarded to the Orakei Natives for deprivation of adequate sanitary outfall from the Papakainga Reserve into the Bay. However, Mr Justice Cooper no doubt considered that the interests of the Natives would be sufficiently protected as to this by the following portion of his Award, namely: - “With respect to that portion of the claim wherein a sum of £250 is claimed for depreciation of building sites through the sewer backing up and collecting stagnant water on land and in creek, the Drainage Board has undertaken through its Counsel that it will, in completing the construction of the sewer across the seaward end of the said block, leave and keep a sufficient opening under the said sewer where it crosses the said creek at the North east end of the block etc.etc.”

It seems to the Court that any responsibility for insanitary conditions (if existing) at Orakei must therefore mainly rest with the Drainage Board which put in the sewer, and with the authorities who put in the high level road, and with the Auckland City Council if it has not yet allowed adequate sanitation facilities to be installed for the houses on the flat. It seems to the Court most unfair and un- British that the Orakei Natives alone should be blamed for the present condition of Orakei which, in the days when their fathers welcolmed Captain Hobson to this Okahu Bay and provided him with land for the new capital of New Zealand, was a delightful and healthy spot beloved by generations of Maoris. It was not the Maoris who contaminated the pipi-beds at Orakei or interfered with the natural resources from the papakainga flat. It is also not generally known that the Maoris still own over two

81 acres on the Orakei flats, and more than ten acres on the adjoining slopes. They are far from being mere “squatters” at Orakei.

One significant fact emerges from Mr Justice Cooper’s compensation award of 1912. In it he recognised the Maori right to the land over which the sewer ran and he awarded compensation against the Drainage Board for its use of that Native land. The Native land was not taken. Can the Crown claim the benefit of that Compensation Award for use only, when that payment was made by the Drainage Board and not by the Crown? Can the Crown take without payment Native land for the mere use of which the Drainage Board paid substantial compensation?

(9) The Native Land Court says no. The equitable and legal rights of the Natives must be respected. The fact that representatives of the Crown are claiming against the Natives makes no difference to the Court. The Natives are entitled to the protection [163] of the Court for their legal and equitable rights, no matter who claims against them.

DECISION: The Court’s decision is that the Orakei Natives as a whole are entitled to whatever accretion has accrued between the time of Mr Foster’s Survey 1898 and Mr Dawson’s Survey 1910, estimated by Crown witness at 1 acre 1 rood 15 perches. They are also entitled as a whole to four- sixteenths of whatever further accretion (estimated at 1 acre 1 rood 27 perches) accrued between the years 1910 and the date after Mr King’s survey 1926. This is to allow for the four years after 1910 before the Crown purchases started in 1914, and is based on the assumption that the yearly rate of accretion remained the same throughout the 16 years. The Court holds over its decision as to the balance of the Native rights in the Accretion, as the intricate and important questions of law involved require more care and time than the Court is able to give at present. Moreover, the Court requires an up-to-date survey of the present Mean High Water Mark, in order to ascertain what further accretion has accrued since the date of the last survey 1926. The Court directs that a Requisition for this Survey issue accordingly. Upon completion of this survey and the ascertainment of the extra area of accretion, the Court will take early steps to deliver its full and final Judgment.

Meantime the Court grants leave to either party to appeal if thought fit against the terms of this interim Judgment. The time for any such appeal is to run from the date when copies of this Judgment are posted to the Crown Solicitor Auckland and to Mr. Nia Hira of Orakei.

______

APPENDIX II: Selected Judgments of the Native Appellate Court 1918- 1945

NGAKORORO-WHAKARAPA (1942)

(1942) 12 Auckland ACMB 137-142 Northland region (Hokianga)

Native Appellate Court, Auckland

10 December1942

Chief Judge Shepherd, Judge Beechey, Judge Dykes

Appeal to NAC (Investigation of title)

Hapu of Hokianga region

Native Land Act 1931

JUDGMENT

NGAKORORO MUDFLATS (WHAKARAPA ESTUARY)

[137] The decision giving rise to the appeal by the Crown in this case is that of the Native Land Court of 30th September, 1941, in which it gives final judgment in favour of the Natives for the whole of the Ngakororo Mudflats area shown on plans before the Court, on the ground that it is papatupu or Native customary land, and further decides that it is also Native land under the Pakeha law of accretion.

Mr Meredith appeared for the Crown and Mr North for the respondents, the Natives, and we are indebted to them for their very interesting and able arguments as to the difficult matters in issue.

It will be of assistance to set out the facts and the questions of law that arise.

The Whakarapa block was investigated by the Native Land Court in 1906. For the purpose of this investigation had before it a sketch plan No. 7266, prepared by the Survey Office in that year. This plan showed the boundary of the Block as running to the tidal waters of the Whakarapa River on the south at the point that is material to the present inquiry. The Waihou Block lying mainly to the west of the Whakarapa Block was investigated by the Native Land Court also in 1906. For this purpose a sketch plan No. 7268 was prepared by the Survey Office in that year. This plan also showed that block bounded by the same tidal waters of that River. The Whakarapa River at this point follows a defined channel in wide mud flats which are covered by the sea at high tide. The tide rises above the river level. These mud flats have been gradually built up over the years by the deposit of silt brought down by the river.

Following the orders on investigation, the land became Native freehold land and was subsequently partitioned so that it was held under individual tides and ceased to be Native customary land. No question was raised on investigation as to where mean high-water mark was as the title would run to that mark wherever it might be and it was unnecessary then to define it. None of the plans produced to us by the Survey Office of the land as it then stood show any land above high-water mark in the

Whakarapa River at the point where land now exists as the result of accretion or reclamation. Had such land existed at the time of the investigation, it should have appeared on the plans and been included in the investigation as part of the land being investigated by the Court. No special surveys were then made for the purpose of defining high-water mark in relation to these mudflats as no claim was made to them.

In 1922 the Marine Department issued to one Robert Holland a license to reclaim land then lying below high-water mark, under a license dated 24th January, 1922 (See N.Z. Gazette No. 5, 212/22 at page 236), in respect of an area of 63 acres shown on Plan No. 5318. This License was issued under Section 39 of the Harbours Amendment Act, 1910 and authorised the licensee for a period of 21 years to occupy the area and execute works for reclamation purposes. The licensee commenced work by erecting stop-banks in the years 1923-24 or thereabouts, and this was the subject of objection by the Native owners, who made some breaches in the banks.

However, as the result of this stopbank work, deposits of a substantial quantity of silt took place and the silt in the reclamation area gradually rose till a considerable part of it was above high-water mark. The deepest deposit of silt took place at the northern end of the reclamation area where Holland had built his stopbank outside the reclamation area by extending it beyond the boundary line so as to reach land above high-water mark on Whakarapa No. 1. This resulted in accretion joining Whakarapa No. 1 with the land in the reclamation area.

To the south of the reclamation area was an area dry at neap tides that was then used as a racecourse and had been so used for many years before 1922. At the southern end of this racecourse area was a small piece of dry land on which had been erected a whare by one Hemi Ru. As [138] the result of silting up, this racecourse and other areas nearby gradually rose above high-water mark and all these lands are now shown on Plan No 12747 prepared by Surveyor Sheratt in 1931. There is no evidence to show how long the land occupied by Hemi Ru has been above high-water mark, though there is evidence that it has been there for many years and that it was used by the Natives for fishing purposes. Had it been in existence on the establishment of English Sovereignty in New Zealand in 1840, then it would admittedly be Native customary land. If, on the other hand, it has risen from the seabed since that time, it would be land belonging to the Crown. The Crown claims all the land above high-water mark shown on Plan No. 12747 and the Natives claim it as Native customary land or alternatively on the ground that it is accretion.

The Crown’s contention is that all this land has either risen from the seabed by natural process or has resulted from the reclamation work done by Holland, and therefore belongs to the Crown. Mr Meredith has quoted authorities in support of this contention. He submits also that the jurisdiction of the Native Land Court is limited to the inquiry in the first place as to whether this land is Crown land or Native customary land and that if it be found it is not Native customary land, the Court has no further jurisdiction to enquire into any question of title.

The submissions supporting these contentions and the authorities quoted in justification are:-

1. That upon the establishment of English Sovereignty in New Zealand in 1840, the common law of England was brought to New Zealand and has since applied Salmond’s Jurisprudence 9th Edition (1937) page 717 and app. 5. Waipapakura v Hempton 33 N.Z.L.R 1071, King v Joyce 25 N.Z.L.R Page 78. 2. That being so, all land in New Zealand vested in the Crown subject to the rights of the Natives recognised by the municipal law, and this land extended to High-water mark.

3. That by the law of England, all land below high-water mark belonged to the Crown - 33 Halsbury 2nd Edition pp. 521 and 525, Waipapakura v Hempton, AttorneyGeneral v Findlay 1919 N.Z.L.R 513 at p. 519. 4. That the Crown owns the land between high-water mark and low-water mark. Coulson on Waters 5th Edition pp. 524 and 584. Harbours Act 1923 Section 5 (Vol. 3 Reprint p. 568). Attorney-General v Findlay supra. 5. That accretion by natural process belongs to the owner of the land to which it accretes: Attorney-General v Findlay supra. Attorney-General of S. Nigeria v Holt 1915 AC. 599. 6. That artificial reclamation of land in tidal waters belongs to the Crown and is different from natural accretion: Attorney-General of S. Nigeria v Holt. Supra. Brighton Gas Co. V. Hove etc. 1924 1 Ch.D. 372. 33 Halsbury 2nd Edition p. 523 and 533. Harbours Amendment Act, 1910 Section 39. 7. That the Treaty of Waitangi is not enforceable in the Municipal Courts of New Zealand except in so far as it has been incorporated in the municipal law of New Zealand. Te Heuheu Tukino v Aotea District Maori Land Board 1941 N.Z.L.R 590. 8. That the land in question is Crown land and never was and is not Native customary land and that the Native Land Court has no jurisdiction as to the title to the land if it finds that it is Crown land. [139]

Mr. North for the respondents has contended that it is competent for the Native Land Court to find a title by custom and usage in the foreshore and/or the bed of tidal navigable waters. Tamihana Korokai v Solicitor-General. He points out that the municipal law of New Zealand specially provides in the Native Land Act, 1931 for the preservation to the Natives of land therein defined as Native customary land.

He submits also that the Natives may acquire a title to Crown land by prescription and alternatively that title may be acquired by accretion. He further submits that the Native Land Court has found that the land in question formed part of the customary lands of the Natives and that that finding should not be disturbed as there was ample evidence to justify such a finding.

We find at the outset of our inquiry that we are faced with a question of jurisdiction.

Mr North for appellants240 submits that this Court has jurisdiction to determine:

(1) That these lands are papatupu or customary lands.

(2) That these lands are accretion to Native land.

(3) Alternatively that the Native respondents have acquired a title against the Crown by prescription.

(4) That the license granted to Holland infringes riparian rights of the owners of land to which accretion has taken place and that the license granted by the Marine Department infringes those rights and is therefore bad and gives the Crown no title to the reclamation area.

Mr Meredith for the Crown contends on the contrary that the Native Land Court has jurisdiction only to determine the matter in para. (1) above.

240 Sic – North was counsel for Maori, the applicants before the Native Land Court and the respondents on the appeal. The Crown is the appellant.

We agree with the Crown’s contention.

It seems to us to be clear that the Native Land Court has only jurisdiction to decide if the land in question is Native customary land and that if it be found that it is not, it has no jurisdiction to decide the other difficult and interesting questions raised on this appeal. The reason for our finding is that the Native Land Court is created by statute and its powers must be found in the statute creating it:- Puhi Maihi v Mackay 33 N.Z.L.R 884. There is power in Part IV of the Native Land Act, 1931 to investigate the title to Native customary land, but there is nothing in Section 27 of that Act, dealing with the jurisdiction of the Court, or elsewhere, that confers on the Court power to investigate the title to or make orders in respect of land resulting from accretion. In so far as any papatupu land may be increased by accretion, the accretion would form part of the land and be included in the scope of the investigation of that papatupu land. But in so far as other Native land, that is Native freehold land, may be increased by accretion, that accretion would, under the common law, attach to and form part of such Native freehold land, and title could be corrected in the ordinary way by application to the Land Transfer Office with evidence by survey of such accretion.

We do not think that Sec. 3 of the Native Purposes Act, 1939, does more than create jurisdiction, if it were not already possessed by the Native Land Court, to determine, in any appropriate proceedings, where a bona fide question is raised, whether land is native or European land.

Nor do we think that the Court has jurisdiction to decide whether a title has been acquired against the Crown by prescription There is nothing that we can find in the Native Land Acts that would justify the Court in entering upon such an inquiry, and it would require a definite provision to extend the jurisdiction of the Court so far.

Similarly our opinion is that the Native Land Court has no power to decide the matters referred to in paragraph (4) above for the reasons already given. [140]

The matters referred to in paragraphs (2) (3) and (4) above are, we think, matters for the Supreme Court, and this Court can only decide the question referred to in paragraph (1) viz. Is the land Native customary land.

This, then, being the only matter we have to consider, we have given careful consideration to Mr North’s submission that this land can properly be held to be papatupu land even though it is land formerly below high water mark. This submission, if sound in law, must of course be based on questions of fact, and unless the facts show that the land could be papatupu land it is unnecessary to enter upon a discussion of the law. It was submitted by Mr. North that there was ample evidence in the Court below to justify the Court in finding as it did that this was papatupu land, and it is here that we find ourselves at variance again with Counsel for the respondents. Native customary land or papatupu land is land held by Natives according to their custom and usages. Now it is accepted by Counsel for the parties, and the authorities show, that upon the establishment of British Sovereignty in 1840, the title to all land in New Zealand and land below high-water mark passed to the Crown. The rights of the Natives provided for in the Treaty of Waitangi as regards Customary land were preserved by the incorporation of statutory provisions therefore in the legislation of New Zealand which now appear in the Native Land Act, 1931. But these rights related to land possessed by them at the date of the Treaty. Clearly any land resulting from accretion between 1840 and the date of investigation of the title would attach to and form part of the Customary land. What this Court has to consider then is whether the evidence before the Lower Court shows that this land was in existence in 1840 in such a

87 condition that it was then occupied by the Natives according to their customs and usages, and has since been so occupied, whether above high-water mark or not.

What the lower Court had to determine was whether:-

1. These mudflats existed in such a condition as to form part of Whakarapa block on its investigation of title; or

2. Whether the mudflats although not raised above mean high-water mark so as to amount to accretion could nevertheless be Native customary land.

The Native Land Court’s decision as to whether these mud flats are papatupu land must rest upon findings of fact. Just as in the investigation of title to customary land, it is necessary for the claimants to establish their right, and this is done by showing that the land has descended to them from a tribal ancestor and has been in the continual occupation of the claimants and their predecessors prior to 1840 and down to the date of investigation. If the proof offered by the claimants in respect of their claim established that these mud flats have been exclusively occupied by a particular hapu or tribe prior to 1840 and since then to the present day, without attempting to decide the matter we should have thought they might have been able to establish title to the land itself, although it may have lain below high-water mark. In England, the fee simple to land below high-water mark has, in certain circumstances, become vested in the proprietor of the foreshore. If, under the circumstances of the English people, title to the sea-bed can be established in this way, we see no reason why title should not just as well be established by the Maori people of New Zealand.

As before mentioned, this must necessarily be a question of fact, and this is referred to in Judge Fenton’s Kauwaerenga judgment of 1870. In that case he was investigating a claim to land somewhat similar to this, and the following is an extract from that judgment:-

In the previous case (Whakaharatau), no proof was given in evidence of the exercise by the Maoris of any easement or right of ownership, and the land was claimed simply as land above high-water mark, and the judgment in that case was that the question of ownership of any portion of the foreshore by a Maori must depend simply on a question of fact, and as the claimants have not proved any facts showing ownership or usufructuary occupation the claim was dismissed. In the case now before the Court, consistent and exclusive use of the locus in quo has been clearly shown from time immemorial.

[141] That passage gives a very good indication of the standard of evidence required to support a claim to customary land. Having in mind the possibility that a satisfactory proof might entitle the claimants to an award of these mudflats as papatupu land, we have made a careful examination and analysis of the evidence that was presented to the Court, and approach the matter upon the basis that if the evidence before the Court was sufficient to justify that Court’s finding, it is not for the Native Appellate Court to decline to accept that finding, because it might have come to a different conclusion from the Judge in the Court below. If, however, the evidence in the Court below is not, in the opinion of this Court, sufficient to justify the Court’s finding, then it must disturb that finding.

We have therefore made a full and careful examination of the evidence given in support of the claim, and find that it is in the most general terms and does not contain that particularity required to support a claim to papatupu land. The only evidence that suggests that any land existed above the high water mark in 1906, the date of investigation, is that relating to a very small piece occupied by Hemi Ru. There is, however, nothing at all to suggest that this land existed as dry land in 1840, and if it was not

88 then in existence it must have risen from the sea bed since that date. If that is so it is in the same position as the mudflats the subject of this judgment. In considering evidence in a case such as this it has to be kept in mind that it cannot be contradicted. The natives alone know their tribal history and the Crown is unable to lead evidence in contradiction. The evidence is not by any means to be rejected on this ground but it can only be accepted as convincing when it is so complete and reliable as to compel the conclusion that it is correct. The evidence to our mind falls far short of what is required to support the claim.

As against the claim put forward the evidence shows that the mud flats have been used at low tides by anyone desiring to cross and there is no indication that the claimants have exercised any proprietary rights in respect of the land or of exclusive rights of fishing or otherwise. There is no attempt at the definition of the area and apart from the general statements made, there is nothing one could feel is reliable in the shape of evidence to suggest the continuous and exclusive use of this land by the claimants and their predecessors from time immemorial. The use of it on the other hand appears to be precisely similar to the use of the foreshore by the general public viz. at low tide it was used for the purposes of fishing, for the gathering of shellfish, for boating and in general in precisely the same way as the foreshore would be used. There is no indication that there were any special shellfish beds over which proprietary rights were exercised by any particular section of the people, nor is there any satisfactory evidence that the mudflats existed in 1840 in much the same condition as they appear today. We find it difficult to believe that if the native claimants thought in 1906 that they were entitled to these mudflats as papatupu land under the same ancestor and by virtue of the same occupation under which the title was awarded in the case of the Whakarapa block, they would not have put forward their claim.

The evidence of the Crown witnesses shows, on the other hand, that the height of these flats has been steadily rising by the process of accretion and we know that the forest on the hinterland has been worked and that the higher land is more or less denuded of its forests. Substantial quantities of silt coming down the river leading into this tidal area have been deposited on these mud flats. The surveyors’ evidence shows that additional accretion has taken place as the result of the stopbank erected by Holland, and that accretion has also taken place further down in areas not affected by the works, and it is a proper conclusion on the evidence that in 1840 the level of these mud flats was below high-water mark. At a later stage in its existence it was used for the purpose of horse racing. The fact that the land was so used seems to be quite largely relied on by the claimants, but we do not think it can be suggested that horse racing can be said to be part of Maori custom or usage, and at the best it relates to modem times, as the Maori had no horses.

After a careful examination of the evidence we are strongly of opinion that it does not by any means satisfy the requirements of proof necessary to justify a claim to customary land, and the finding of the Court to the contrary is in the circumstances not justified. [142]

In our opinion the land above high-water mark is not native customary land. We are of opinion also that any such land was not part of the Whakarapa block on investigation of title. As to whether it is accretion we have already held that the Native Land Court has no jurisdiction to decide this question.

[Appeal allowed]

LAKE WAIKAREMOANA (1944) (CROWN APPEAL)

(1944) 8 Wellington ACMB 18-20; 31-32 Urewera and Wairoa regions

Native Appellate Court, Wellington

9 April 1944 [Jurisdiction], 30 September 1944 [final decision]

Chief Judge Shepherd, Judges Carr, Harvey, Dykes, Beechey, and Whitehead

Appeal to NAC (investigation of title)

Ngati Kahungunu, Ngati Ruapani, Tuhoe

Crown, appellant

Native Lands Act 1931

Historical and Legal Introduction

JUDGMENTS

(1) Jurisdictional point, 9 April 1944241

[18] The Solicitor-General has raised, as a preliminary point in the matter of this appeal, that there is no valid judgment before the Court upon which an appeal may lie, and has directed argument to show that in these circumstances this Court has no authority to hear the appeal. He has submitted that the Order purported to be made by Judge Gilfedder was and is a nullity because a condition precedent to the exercise of jurisdiction by the Court was not complied with. He submits that the Court has jurisdiction to investigate the title to customary land, and customary land alone, and that the Court could only determine whether or not the land the subject of the application was customary land upon proper evidence.

The Solicitor-General offered the opinion that there was no evidence upon which the Court could find that the lake was customary land. The Natives have a right to go to the Native Land Court to have their title investigated and the Native Land Court can only be prevented from performing its statutory duty, first, under the Native Land Act; or, second, on proof in that Court that the lands are Crown lands freed from the customary title of the Natives or, third, that there is a Crown title to the bed of the Lake – Tamihana Korokai v Solicitor-General (1913) N.Z.L.R. 321.

241 This interim judgment dealt with a preliminary point raised by the Solicitor-General (H.H. Cornish), which was that there was insufficient evidence at first instance for the Court to make a finding that the lake was Maori customary land, and thus that the entire proceedings were a nullity – and thus there was nothing for the Crown to appeal against.

The Crown was aware of the application to the Court but for some reason which we are not concerned to discover, its representatives refrained from attending Court or offering any evidence of title in the Crown. Under these circumstances, the Court had before it the uncontradicted evidence of the Natives’ witnesses. Having examined the claims and the uncontradicted evidence adduced at the hearing, and after giving full consideration to the submissions of the Solicitor-General in this matter, we are of opinion that sufficient material was presented to the Court to justify its conclusion that at the time of the signing of the Treaty of Waitangi, Lake Waikaremoana was held by the Natives under their customs and usages and, therefore, that the Court acted within its jurisdiction in making its order. [19]

Chief Judge: You told us this afternoon, Mr Cornish, that should the point go against you, you proposed to move in the Supreme Court for a writ of certiorari. We propose to facilitate your doing that all we can, and for that reason we propose to adjourn the hearing of this appeal until the 21st April, that is a Friday, and by that time we expect you either to have issued your writ, or to have applied to me for further costs.

Mr Cornish [Solicitor-General]: That is perfectly fair, Your Honor. I do not myself commit to certiorari, though – I may go for prohibition.

Chief Judge: We do not say what writ you shall go for.

Mr Cornish: I could have wished that your Honours had condescended to give some particulars as to what constituted the sufficient material – I am not questioning the judgment in any way.

Chief Judge: We were pressed for time, of course.

Mr Cornish: I appreciate that. As the decision to adjourn to the 21st April is perfectly fair to the Crown, I am obliged.

(2) Final decision, 30 September 1944

[30] Lake Waikaremoana – Appeal Continued

After a full and complete discussion of all matters in connection with this Appeal the Court finds itself in the happy position of arriving at a unanimous decision. The absentee Judges having expressed agreement the decision of the Court was read by the Chief Judge. The Solicitor General requested the Court to refrain from entering judgment until he had time to consider the position. He mentioned that when the case was before the Court it was promised that he would be given notice in advance of judgment as to whether or not the Appellate Court would state a case for the opinion of the Supreme Court and that he would like that promise carried out or judgment not entered for at least a fortnight to enable him to consider what action he might feel necessary to take.

Judge Whitehead explained that the procedure in this Court differs from that of the Supreme Court. In this Court judgment is entered at the time of delivery. In reply the Solicitor-General intimated that if the Court felt unable to accede to the request he was prepared to drop the matter. He appreciated that the position did not arise from any unwillingness on the part of the Court to grant his request. Judge

Whitehead further explained that the Court was prepared to leave the matter of costs to be dealt with by the Chief Judge and himself. To this the Solicitor General and Mr Wiren expressed agreement.242

[31] This is an appeal by His Majesty the King against a decision of the Native Land Court delivered on 7th June, 1918, on the investigation of title to Lake Waikaremoana.

The Solicitor-General submits that there was insufficient evidence before the Lower Court to establish that Lake Waikaremoana was held by natives in accordance with their ancient customs and usages, and in addition or alternatively he submits that various dispositions of the lands adjoining the lake have the effect of disposing of the ownership of the bed of Lake Waikaremoana. He challenges the jurisdiction of the Native Land Court to make final orders in respect of the bed of the lake and the jurisdiction of this Court to review the orders so made. It was not explained to the Court why the Crown should file a notice of appeal and then argue that there was no jurisdiction to deal with the matter instead of adopting the usual means of having an invalid order set aside.243

Before a Court can proceed to hear any matter whatsoever it must first be satisfied that it has the necessary jurisdiction to proceed. This applies to the Native Land Court no less than any other Court, and if the question of jurisdiction is raised at any time during the hearing the Court must first determine this preliminary issue. When it is found that a Court has proceeded to make a final order it is deemed to have arrived at the conclusion that it was acting within its jurisdiction.

In the absence of special statutory jurisdiction, the jurisdiction of the Native Land Court is limited to matters which concern native land and native customary land, and in making final orders in respect of Lake Waikaremoana it is clear that the Native Land Court, of necessity, must have considered the lake as being native customary land. At no stage of the proceedings was any contrary opinion expressed to the Lower Court either by the natives concerned or by the representatives of the Crown. If the Native Land Court was in error in assuming jurisdiction the proper course for the Crown was to apply to the Supreme Court for an order restraining the Native Land Court from proceeding further with the matter and nullifying the order already made. Such a course has not been adopted at any time by the Crown during the long space of time which has elapsed since the making of the order. During the present proceedings the attention of the Solicitor General was specifically drawn to this aspect of the matter but no action has been taken. The Solicitor General has been content to make this matter an issue before this Court, and this Court has proceeded to make a determination which affirms that not only did the Native Land Court possess the necessary jurisdiction to make the order, but the quantum of evidence was sufficient to justify the making of such orders. In arriving at this conclusion it is apparent that this Court must necessarily have considered the question as to whether Lake Waikaremoana was or was not native customary land and as such a proper subject matter for the Native Land Court to investigate. The Solicitor-General has raised no ground of appeal which is not satisfactorily dealt with by this preliminary determination. [32]

242 The contents of p 30 are handwritten, and obviously relate to a discussion in Court after the judgment had been read. The actual judgment, which commences at p 31, is typed and has been pasted into the MB. 243 The Appellate Court is here adverting to a basic distinction between appeals and review applications. Appeals relate to the substantive factual and legal issues before a Court; but a review application is concerned with whether the Court subject to review has acted unlawfully. The Crown’s claim that the Native Land Court had acted without jurisdiction is an allegation that the Court had acted outside its jurisdiction; the correct remedy for that would be an application to the Supreme Court (today, the High Court) seeking a determination that the decision of the lower Court be quashed and that it restart its inquiry.

The question of the application of the ad medium filum244 rule, highway of necessity and the effect of conveyances on memorials of ownership are of great interest, but are not applicable to the present case. There is abundance of authority that in New Zealand the rights of natives are safe-guarded without reference whatsoever to the incidents of English law. The natives successfully establish their title to Lake Waikaremoana once they satisfy the Court that it was held by them in accordance with their ancient customs and usages, unless it be shown that this title has been extinguished. This cannot be shown by the mere assertion of title by the Crown but satisfactory proof must be adduced to the Court. In the course of years there are many rules and presumptions which have become incorporated in English law but we are of opinion that in New Zealand these are of no force or effect if it is found that they in any way conflict with the customs and usages of the Maori people. We consider that these rights once established are paramount and freed from any qualification or limitation which would attach to them if the rules and presumptions of English law were given effect to.

In our view the matter before the Court is very simple. We have already decided that Lake Waikaremoana can be considered as native customary land and that sufficient evidence was adduced to the Native Land Court on which it could proceed to make freehold orders. We can find nothing in the submissions of the Solicitor-General to vary this view and the appeal of the Crown must fail.

______

244 Ad medium filum aquae – to the mid-line of the water body.

LAKE OMAPERE APPEAL (1953)

(1953) 12 Auckland ACMB 347-9 Northland region (Bay of Islands)

Maori Appellate Court, Auckland

28 October 1953

Judge Harvey, Judge Beechey, Judge Prichard

Appeal to NAC (Investigation of Title)

Hapu of Nga Puhi

Native Land Act 1931

SUBMISSIONS OF COUNSEL AND JUDGMENT OF APPELLATE COURT

[338]

Meredith (Crown counsel): I am instructed by Solicitor-General – Crown not proposing arguing appeal and is abandoning it.

I am instructed to ask Court to note that the reason for this [is] a practical one as [it] is not considered that the ownership of the soil under Lake Omapere has any value to the Crown. The abandonment is made entirely without prejudice as to any contentions Crown may desire to raise in relation to any other lakes or rivers in New Zealand.

Finally that the abandonment is not to be taken in the future as an admission of the correctness of the decision given in this case.

Henderson (Claimant Counsel): I take it that the effect will be that Maoris obtain fee simple to the [339] bed of Lake Omapere. They have sought this for 25 years. It might be thought that we should accept this without ado. But the suggested conditions are quite unacceptable. I must express most vehement protest at the actions of the Crown over the years and most particularly today.

Very eminent officer of [the] Crown has stated in last month that Crown prerogative is never taken harshly and unjustly, that any private litigant can [express?245] same fairness and equity in dealing with [the] Crown as they would expect in actions with private citizens. That is a very noble sentiment and as far as Maori are concerned there are some noble sentiments expressed in the Treaty of Waitangi and in the Maori Land Act. But these amount to nothing, and actions246 run contrary to them. I feel I must say that the Crown’s actions from the date of the Judgment 24 years ago until this present day can only be [described?] as being [340] quite unconscionable, and such an abuse of the

245 Sic – probably a mistake for ‘expect’. 246 Presumably meaning the Crown’s actions.

94 proceedings of this Court as to lead to a denial of justice. This may appear to be strong words but I say them with a due sense of responsibility and as I believe a serious matter of public interest is involved. I recount briefly the history of these proceedings.

Prior to 1929 an application was made by Ripi Wi Hongi and others for investigation of title of Lake Omapere. They claimed that [the] lake bed was customary land. There was a preliminary hearing in March 1929 when the evidence of the Maoris was taken, adjourned to Auckland for legal argument. At that hearing Crown [was] represented by Sir Vincent Meredith. He is [the] only person concerned who has survived matter.

Legal argument took two days. Judgment given in August 1929.

In that judgment that fills 25 pages of [ ] the Judge exhaustively reviewed all the evidence and the submissions of the Crown and found “the Court is able to say definitely that Lake Omapere is in fact customary land [341] within the meaning of Section 20 of Native Land Act 1909 being land held by natives or descendants of natives under their customary usages of the Maori people and the Court holds accordingly.”

The Crown appealed immediately – before Court in March 1936 when adjourned sine die247 – again in May 1936 when adjourned on application of [the] Crown for the purposes of a conference, again in June 1936 when the Maori leaders expressed great surprise at long delays – gap of 3 years.

In 1939 the Court made this statement: “one of the main principles of British law is that justice shall not be unduly delayed. It has been unduly delayed in this case by non prosecution of an appeal for 10 years”. In July 1940 the Court decided that it had waited for more than a reasonable length of time for the Crown’s appeal to be prosecuted and decided to fix the lists and deal with the claims.

In August 1940 an [342] order was made in favour of the Ngapuhi tribe.

We now come to closing stages – early in 1953 on the instructions of Maori owners I filed notice for Crown’s appeal to be struck out for want of prosecution.

28 October: JUDGMENT (Judge Harvey, Judge Beechey, Judge Prichard)

[347]

The appellant in this case, the Attorney General on behalf of the Crown seeks leave to withdraw the appeal on certain conditions. This he is not entitled to do. [Also?] the point in protracted proceedings such as this where a tardy litigant is brought to a hearing he must realise that he has but two courses open to him, he may either proceed with his case or he may abandon it. The Attorney-General elects not to proceed with the case and the order of the Court is that the appeal is dismissed unconditionally.

The motion to strike out the appeal is now unnecessary and is also dismissed. appropriate proceedings, where a bona fide question is raised.

The Crown will pay the respondent’s costs. These are fixed at £150 to cover all costs hitherto incurred, the costs of the motion, preparation for hearing of the appeal, the attendance of [348]

247 To no particular day.

95 respondent parties in Auckland from time to time for the instruction of Counsel and all disbursements. This amount is to be paid to counsel for the respondent. appropriate proceedings, where a bona fide question is raised, whether land is native or European land.

The application for investigation of title now comes again before the Maori Land Court for settlement of the list of owners and the issue of a freehold order in their favour.

The Court places on record its view of the delay that has occurred in the prosecution of this appeal. If the assigned reason for abandonment i.e. that the land involved is of no value to the Crown, is the real reason, there would appear to be no justification for the appeal or the delay of 25 years before abandonment. It would appear from the course of proceedings that the appeal may have been intended as a lever for negotiation for a settlement of some sort with the Maori owners. If that is so it is reprehensible and an abuse of the process of the Court. The Court looks to the Crown’s advisers in these matters to be meticulous in setting an example to be followed in the use of the Court’s procedure. This has not been done in these [349] proceedings – we record our disapproval of the course followed. This is not the only instance of long delays by the Crown in appeals in similar matters but we hope it will be the last.

______

Appendix III: Waitangi Tribunal Commission

Wai 1040, #2.3.62

Wai 1040

WAITANGI TRIBUNAL

CONCERNING the Treaty of Waitangi Act 1975

AND the Te Paparahi o Te Raki Inquiry

DIRECTION COMMISSIONING RESEARCH

1. Pursuant to clause 5A of the second schedule of the Treaty of Waitangi Act 1975, the Tribunal commissions Professor Richard Boast QC to prepare a research paper on the administration of justice through the Native Land Court and the Māori Land Board in the Te Paparahi o Te Raki inquiry region, as illustrated by the practice of Judge Frank Acheson.

2. The paper will address the following matters:

a) To what extent did the terms and principles of the Treaty feature in Judge Acheson’s practice in the inquiry region as a Māori Land Court judge and President of the Tai Tokerau Māori Land Board? Which cases particularly exemplified this practice and what outcomes were intended and achieved?

b) Did the prevailing law relating to Māori land and the operation of the Native Land Court facilitate or hinder Judge Acheson’s attempts to give effect to his understanding of Treaty principles?

c) To what extent and in what ways did the Crown’s judicial and administrative regime, the actions of its office-holders and the institutional resources provided support or obstruct Judge Acheson’s judicial and administrative practice?

3. The commission commences on 17 July 2016 and ends on 16 September 2016, at which time one copy of the final report must be submitted for filing in unbound form, together with indexed copies of any supporting documents or transcripts. An electronic copy of the report should be provided in Word or Adobe Acrobat PDF format. The report and any accompanying material must be filed through the Registrar.

4. The report may be received as evidence and the author may be cross- examined on it.

5. The Registrar is to send copies of this direction to: Professor Richard Boast QC Page 2

Claimant counsel and unrepresented claimants in the Te Paparahi o Te Raki Inquiry Chief Historian, Waitangi Tribunal Unit Principal Research Analyst, Waitangi Tribunal Unit Manager Research and Inquiry Facilitation, Waitangi Tribunal Unit Inquiry Supervisor, Waitangi Tribunal Unit Inquiry Facilitator(s), Waitangi Tribunal Unit Solicitor General, Crown Law Office Director, Office of Treaty Settlements Chief Executive, Crown Forestry Rental Trust Chief Executive, Te Puni Kōkiri

Dated at Rotorua this 12th day of July 2016.

Judge C Coxhead Presiding Officer WAITANGI TRIBUNAL Wai 1040, #2.3.66

Wai 1040

WAITANGI TRIBUNAL

CONCERNING the Treaty of Waitangi Act 1975

AND the Te Paparahi o Te Raki Inquiry

DIRECTION EXTENDING COMMISSIONED RESEARCH

1. Pursuant to clause 5A of the second schedule of the Treaty of Waitangi Act 1975, Professor Richard Boast QC was commissioned on 12 July 2016 to prepare a research paper on the administration of justice through the Native Land Court and the Māori Land Board in the Te Paparahi o Te Raki inquiry region, as illustrated by the practice of Judge Frank Acheson, the deadline for which was 16 September 2016.

2. Owing to a family bereavement, Professor Boast indicated prior to the deadline that he would not be in a position to complete and file the research paper by the due date. An extension to the deadline is therefore granted.

3. The commission will now end on 28 October 2016, by which date the final report must be presented for filing. The report and any accompanying material must be filed through the Registrar.

4. As Professor Boast will not now be presenting his report at the October hearing, parties may file questions for written response as specified in my memorandum-directions of 23 March 2016 (#2.6.175) by 2 December 2016. Tribunal questions will be filed by 16 December 2016. Professor Boast is to respond to any written questions by 27 January 2017.

5. The Registrar is to send copies of this direction to:

Professor Richard Boast Claimant counsel and unrepresented claimants in the Te Paparahi o Te Raki Inquiry Chief Historian, Waitangi Tribunal Unit Principal Research Analyst, Waitangi Tribunal Unit Manager Research and Inquiry Facilitation, Waitangi Tribunal Unit Inquiry Supervisor, Waitangi Tribunal Unit Inquiry Facilitator(s), Waitangi Tribunal Unit Solicitor General, Crown Law Office Director, Office of Treaty Settlements Chief Executive, Crown Forestry Rental Trust

Chief Executive, Te Puni Kōkiri

th DATED at Wellington this 25 day of October 2016.

Judge C T Coxhead Presiding Officer WAITANGI TRIBUNAL