OFFICIAL
Otawa Scenic Reserve
by Heather Bassett
This report was commissioned by the Waitangi Tribunal for Wai 209 and Wai 21 0 as part of the consolidated Wai 2 15 claim.
August 1996
TABLE OF CONTENTS
Research Commission
1. Introduction
2. Scenic Reserves and the Public Works Act
3. The Compulsory Acquisition of Parts Otawa 2A, 2B, 2C 2D, and 2E
4. Delays in Awarding Compensation 1940-1 96 1
5. The Assessment of Compensation and its Distribution
6. The Establishment of the Otawa Kaiate Trust
7. Summary 1 Issues
List of Maps Map 1 Map 2 Map 3 Map 4
Index to Document Bank
. . WAI 209/210
WAITANGI TRIBUNAL
CONCERNING the Treaty of Waitangi Act 1975
AND CONCERNING .the Otawa Kaiate Trust claim
-. DIRECTION COMMISSIONING RESEARCH
1 Pursuant to clause 5A(1) of the second schedule of the Treaty of waitangi Act 1975, the Tribunal commissions Heather Bassett of Paraparaumu, a member of staff, to complete j. on behalf of the claimants a research report for this claim covering the following matters:
The circumstances surrounding the taking of blocks Otawa 2A, 2B, 2C, 2D and 2E, in the Tauranga region under the Public Works Act. (1928), in September 1940. - The extent to which the owners of the land at that time were consulted before the taking, whether any agreement was reached and if so, with whom.
The circumstances surrounding the payment of compensation in July 1961, whether the amount fixed was a fair one, and whether the several owners received their rightful entitlements of the compensation.
The circumstances surrounding the establishment and subsequent management of the Otawa Kaiate Trust.
2 This commission commences immediately.
3 The commission ends on 31 October at which time one copy of the report will be filed in unbound form together with an indexed document bank and copy of the report on disk.
4 The report may be received as evidence and the commissionee may be cross examined on it.
cont. page 2: 5. The Registrar is etc. Page 2
5 The Registrar is to send copies of this direction to:
Heather Bassett Claimants Counsel for Claimants Solicitor General, Crown Law Office Director, Office of Treaty Settlements Trust Secretary, Crown Forestry Rental Trust
Dated at Wellington this day of August 1995.
Deputy Chief Judge N .Smith Deputy Chairperson WAITANGI TRIBUNAL 1. INTRODUCTION i- \
i , I My name is Heather Bassett. I completed a Bachelor of Arts Honours degree, majoring in History, at Waikato University in 1991. From 1993 to - 1995 I worked as-a researcher for the Crown Forestry Rental Trust, and co-authored the Maori Land Legislation Manual. I have been employed as a researcher by the Waitangi Tribunal since July 1995, and have written a research report for Wai 342 and Wai 370 on the expansion of Tauranga city.
This report examines the events surrounding the taking of parts of Otawa 2A, 2B, 2C, 2D and 2E for a scenic reserve. The main sources used to compile this report have been correspondence files of the Public Works Department, the Lands and Survey Department, and the Maori Affairs Department. Records of the Te Puke Borough Council (now held by the Western Bay of Plenty District Council in Tauranga) were also used. A first version of this report was distributed in November 1995 as A2 on the record of documents for Wai 209 and A1 for Wai 210, but the report has now been amended due to a file held by the Department of Conservation being supplied to the Tribunal. That file, formerly Lands and Survey 419, provided valuable information about, and references relating to, the failure to adequately consult the owners. This report replaces the November 1995 report, which will be removed from the Wai 209 and 210 records of documents. This report will now be part of the Wai 2 15 record of documents.
This report is divided into 5 main sections covering: the relevant legislation; the events leading up to the acquisition of the land; delays in having compensation assessed; the payment of compensation; and the formation of the Otawa Kaiate Trust which now administers the residue of the blocks.
The Claims There have been two claims registered with the Waitangi Tribunal for the Otawa Scenic Reserve. Both of these claims have been consolidated by the Tribunal as part of Wai 2 15, Western Bay of Plenty claims.
Wai 210 was submitted on 27 January 1988 by Keepa Smallman on behalf of Ngati Pukenga. Mr Smallman claims to have been prejudicially affected by the blocks being 'taken under the Public Works Act cont[r]ary to the wishes of the owners'. The claim asks the Tribunal to recommend that the land be returned to the owners or their descendants.
A previous claim, Wai 209, was lodged on 13 April 1987 by W.R.J. Grey for the Otawa Kaiate Trust. That claim asked for the return of the land on the grounds 'that the [original] proclamation was contrary to the spirit and intent of the Public Works act in that the land was not taken for an actual Public Works requirement'. This claim has since been withdrawn, with Mr Grey acknowledging Mr Smallman as the claimant. The Land The land under claim forms part of the Otawa Scenic Reserve, which is located on a range of hills between Te Puke and Welcome Bay, Tauranga (see Maps 1 and 2). The land is covered in native bush, and the majority of the scenic reserve contributes to the Te Puke water catchment. Following the reserve's creation, control was vested in the Te Puke Borough Council.' In 1981 this was revoked and the reserve is now administered by the -. ... . Department of C~nservation.~ . .. __ .
The claim is to 465 acres, 3 roods, 15 perches of the scenic reserve. This was the area of land taken from the Otawa 2A, 2B, 2C, 2D, and 2E blocks, which were in Maori ownership at the time. The land was taken by proclamation in 1940, under the Scenery Preservation Act 1908 and the Public Works Act 1928. Map 3 shows the area taken for the scenic reserve from each block. Compensation for the land taken was not awarded to the former owners of the blocks until 196 1.
During the course of researching this claim it became evident that other areas of land owned by Maori had also been taken for the scenic reserve. These were approximately 30 acres from Otawa Waitaha 1B1 and 1B2. Although these blocks are not the focus of this report (not being part of the claim), the information that was readily available regarding their acquisition has been included. The scenic reserve also includes sections of land that were previously in Pakeha ownership, and one area of crown land. In order to fully cover the establishment of the scenic reserve some details about the acquisition of these sections are also included in this report.
Block History The Otawa Block is situated towards the south-eastern boundary of the land confiscated under the New Zealand Settlements Act 1863 on 18 May 1865. Under the provisions of the Tauranga District Lands Acts of 1867 and 1868 the Otawa block was 'returned' to Maori o~nership.~Otawa No 2, an area of 1580 acres, was investigated by H.W. Brabant, a commissioner appointed under the above Acts, and a certificate for the land was issued, dated 1 July 1885.4
In 1931 the Native Land Court partitioned Otawa No 2 into 5 subdivision^.^ The minutes of the 15 January 193 1 hearing record that Maraea Hori and many other owners were present, but do not contain any discussion, or give the reason why the partition was sought.
1. New Zealand Gazette, 27 August 1942, pp 2 113-2 114; 11 June 1953, p 905; 29 October 1964, p 1966 [pp 154-1 581. Numbers in square brackets [I represent the page numbers of the accompanying document bank.
2. Correspondence fromwestern Bay of Plenty District Council, 26 September 1995 [p 541
3. For a histow of the confiscations at Tauranga and the subsequent return of areas of land see Evelyn Stokes, Te Raupatu o Tauranga Moana: The Confscation of Tauranga Lands, University of Waikato, 1990.
4. Commissioner Brabant, 'Lands Returned to Ngaiterangi Tribe Under Tauranga District Land Acts', Appendices to the Journals of the House of Representatives (AJHR), 1886, G-10, p 4
5. Tauranga Native Land Court minute book 13, 15 January 1931, fols 9-10 [pp 12&121] All those present agreed with the partitions and the Court made orders creating the blocks shown in the following table:
Block Area No of owners (acres, roods, perches)
-... . Otawa 2A 72a.2r.23~ - 4 . _ Otawa 2B 181a.2r.18p 10 Otawa 2C 163a.lr.32~ 9
Otawa 2E 980a.2r.29~ remaining (91)
The Court declared that the divisions should 'be laid off by lines parallel to South boundary and run in sequence fiom south end. No 2A being southerrnost [sic] division. No 2E to be residue' (see Map 3). An existing track was to remain open to ensure that there would be access to all the subdivisions.
The Native Land Court partition orders creating the above divisions formed the title to the separate blocks. The land was not partitioned further, nor was there any alienation, until a portion of each of the blocks was proclaimed as a scenic reserve in 1940.
2. SCENIC RESERVES AND THE PUBLIC WORKS ACT . -/ 1 The land under claim, part Otawa 2A, 2B, 2C, 2D, and 2E, was compulsorily taken as a scenic reserve using the powers of the Public Works Act 1928. This section will examine the relevant legislative provisions relating to the establishment of scenic reserves in New Zealand, and the power to compulsorily acquire land under the Public Works Act 1928 and its amendments.
Scenery Preservation Scenic reserves were first provided for under the Scenery Preservation Act 1903, which established a Commission to inspect and report on lands of scenic or historic interest. Reserves were to be made by proclamation, and the land was to be acquired using the mechanism of the Public Works Act. This meant that compensation for Maori land taken as a scenic reserve would be assessed by the Native Land Court. The Act was passed with the intention of conserving bush areas amid concern at their rate of destruction, with Premier Richard Seddon commenting during the debate on the bill 'and you see your beauty-spots being destroyed, and they can never be re~tored'.~During this debate, Heke, the Member for Northern Maori, supported the principle of creating scenic and historic
6. 23 October 1903, New Zeaiand Parlianzentary Debates (NZPD), vol 126, p 704 reserves but objected to compensation for Maori land being assessed by the Native Land Court:
the Native Land Court, which is the only tribunal for the purpose of assessing the value of Native lands, is not the proper tribunal for that purpose. I would submit to the Government that that part of the Public Works Act should be done away with, and that the same tribunal should assess the value of Native lands that assesses the value of pakeha lan_ds - a tribunal consisting of an Assessor appointed by each side, and presided over by a ~a~istrate6FJudge of the Supreme Court, according to the value of the land.'
The Act was amended in 1906 to establish the Scenery Preservation Board, at which time Maori land was omitted from the definition of private land that might be taken for scenic purposes.' This was because the Bill had not been translated into Maori and, under the parliamentary standing orders, it could not therefore affect Maori land: It was allowed to pass into law without including Maori land because it was thought that there would still be sufficient powers under the Public Works Act to continue to reserve Maori land for scenic purpose^.^ Although the Scenery Preservation Amendment Act 1906 did not apply to Maori land, Ngata (Eastern Maori) used the debate on the Bill to express Maori concerns at the way land had been reserved and compensation assessed. He pointed out to Members of Parliament that there:
was a way of dealing with the Natives, and it would pay the colony if the Natives were approached in a proper way, and in a way that Europeans would be approached. The Maori was not accustomed to give his consent in writing, but from time immemorial he had been accustomed to give it in a meeting in his own way.I0
He also suggested that, when it came to assessing compensation, Maori were disadvantaged because it was generally assumed that Maori land was of a lesser value than European land. Ngata's advice was that if the policy of the legislation was explained to Maori in their own environment, and compensation was assessed without bias, then Maori would not oppose the reservation of land.
The Otawa Scenic Reserve was created under the Scenery Preservation Act 1908, which was a consolidation of the Scenery Preservation Act 1903 and its 1906 Amendment. The long title to this Act was: 'An Act to consolidate certain Enactments of the General Assembly relating to the Acquisition of Lands of Scenic or Historic Interest, or on which there are Thermal Springs'. Under the Act, the Scenery Preservation Board was constituted by section 3 with the responsibility, under section 5, of inspecting any 'lands possessing scenic or historic interest' and recommending which lands should be permanently reserved
7. Ibid, p 71 1, no reply was made to Heke's objection.
8. Scenery Preservation Amendment Act 1906, No 46
9. see 21,23 November 1910, NZPD, vol 153, pp 837-838,890-891
10. 24 October 1906, NZPD, vol 138, p 596 as scenic, thermal or historic reserves. The procedure for making the land a reserve was laid down in section 6, subsection 2 of which provided that private land was to be acquired as a public work and the provisions of the Public Works Act 1908 would apply. Section 13 of the Act allowed control of the reserve to be vested by the Governor in any local
,c --, authority or special board.
The Act of 1908 repeated the definition of private land given in the Scenery-.Preservation Amendment Act 1906. This meant that Maori land continued to be excluded from the Act, with the Crown still relying on the Public Works Act to reserve Maori land for scenic purposes. However, in 1910 the Attorney-General advised that the powers of the Public Works Act were not sufficient, and therefore the Scenery Preservation Amendment Act 1910 was passed to make it possible for Maori land to be taken, as had been the case under the Act of 1903." This was achieved by section 3 of the amending Act which replaced the definition of private land with a definition that included 'Native land', which was defined by section 2 to have the same meaning as in the Native Land Act 1909. That Act defined 'Native land' to include both Maori customary land and Maori freehold land.12 Now that Maori land was to be subject to the Scenery Preservation Act, section 4 of the Amendment Act made the Under-Secretary of the Native Department a member of the Scenery Preservation Board.
In 1953 the legislative provisions relating to scenic reserves were consolidated into the Reserves and Domains Act, and are now in force under the Reserves Act 1977. It is under this Act that the Otawa Scenic Reserve is currently administered, by virtue of a proclamation dated 17 June 1981, whereby the land was declared to be a reserve for scenic purposes subject to section 19(l)(a) of the 1977 Act.13
I - Public Works Act 1928 As has been explained, section 6 of the Scenery Preservation Act 1908 stipulated that the provisions of the Public Works Act were to control the acquisition of land to be reserved for scenic purposes. When the Otawa No 2 blocks were gazetted in 1940 the principal Act was the Public Works Act 1928. This Act was a consolidation of previous enactments and continued what was, by then, an established procedure. For the purposes of this report only those sections of the Act relevant to the claim and the history of Otawa No 2 will be surnmarised.
The Act was divided into 14 Parts, with Maori land to be dealt with under Part IV. However, this Part distinguished between Maori customary lands and land owned by Maori under a title derived from the Crown (Maori freehold land). While Part IV established a separate procedure for the taking of Maori customary land, section 103(b) said that where title was derived from the Crown the provisions of Part I1 would apply. In 1940 the Otawa
1 1. 21,23 November 1910, NZPD, vol 153, pp 837-838,890-891
12. Native Land Act 1909, No 15, s 2
13. New Zealand Gazette, 9 July 1981, p 1922 [p 1581 No 2 blocks were Maori freehold land and, therefore, the taking procedure was the same as that for general land under Part 11, with some important distinctions. Section 22 laid out the procedure to be followed when lands were required for public works. A survey was to be made which showed the names of the owners of the land, and a notice of intention to take land was to be gazetted stating the place where the plan was open for inspection. Forty days were to be given for the receipt of objections, and the notice was to be served upon the owners of the land. However, subsection (3) of-this section stated that3he pvisions requiring the names of owners to be shown on the plan and notices to be served to owners would not apply to any Maori owner 'unless his title to the land is registered under the Land Transfer Act, 1915' with entry on the Provisional Register being insufficient. In the case of unregistered Maori interests, a copy of the notice of intention to take land should be published in the Kahiti. When, however, publication of the Kahiti stopped in 1931, it was provided that publication of the notice in the New Zealand Gazette was s~fficient.'~At this time it was common for title orders made by the Native Land Court to not be recorded on the Land and Deeds Register, either because the registration fees had not been paid or because the land had not been surveyed, which was to be the case for the Otawa No 2 block^'^. After the notification process, if there were no objections and other conditions were met, section 23 provided that the land could be taken by proclamation of the Governor-General.
Both Maori customary land and Maori freehold land were excluded from the Part I11 provisions for compensation for general land. Under section 104 all land owned by Maori, regardless of title, was to have compensation assessed by the Native Land Court, which was given the powers of the Compensation Court established under Part 111, as well as being able to exercise its normal powers. The procedure was that the taking authority (ie. the Public Works Department), not the dispossessed owners, had to apply, within six months of the publication of the taking proclamation, to the Native Land Court for compensation to be assessed. Subsection (d) of section 104 provided that, once compensation had been awarded, it should be paid as soon as possible, with 5% interest payable from one month after the date of the award.
In summary, although 'scenic purposes' was not included in the definition of public works, the Public Works Act did apply to the acquisition of the Otawa Scenic Reserve by virtue of the Scenery Preservation Act. Although a scenic reserve was not a public work in itself, land for scenic reserves was to be acquired in the same way as for a public work. The main provisions of the Public Works Act as it relates to the acquisition of the OtawaNo 2 blocks were that firstly, although the land should have been taken in the same manner as general land, title registration complications meant that, notification procedures could be avoided, and, secondly, it was the responsibility of the Public Works Department to apply to the Native Land Court for compensation to be awarded. The following sections will examine the circumstances surrounding the taking of the land and the assessment of compensation.
14. Finance (No 2) Act 193 1, No 5 s 47
15. see 'The Maori Land Courts: Report of the Royal Commission of Inquiry', AJHR, 1980, H-3, pp 38-47 3. THE COMPULSORY ACQUISITION OF PARTS OF OTAWA 2A, 2B, 2C, 2D, AND 2E
Part Otawa No 2 block was proclaimed as taken for scenic purposes on 26 September
x 1940.16 This section will describe the events leading up to the compulsory alienation under \ , the Scenery Preservation Act 1908 and the Public Works Act 1928 of this land from its Maori owners. It will be seen that land was taken from blocks in Maori ownershipwithout those owners being given adequate notice of the proposed alienation.
It appears that the impetus for the establishment of a scenic reserve came from the Te Puke Borough Council. The minutes of a Council meeting on 8 May 1937 refer to correspondence with the local Member of Parliament, C.H. Burnett, about bringing the matter of 'reservation of Hill Bush area' before the Minister of Lands and Domains .I7 By July 1937 the Mayor reported to the Council on a visit to Wellington, saying that 'the matter of the reservation of this area appears to be going on favourably and there is every prospect of having the bush reserved'.'' He had also made enquiries at the Waiariki Native Land Court (Rotorua) about the likelihood of the land being available for reservation, after a newspaper report that an attempt was to be made to bring the Otawa block under the Maori land development scheme. According to the Mayor, the registrar of the court:
was of opinion that nothing would be done in that direction because the Native Department, in common with all Government Departments, is doing its best to conserve all standing bush.I9
On 3 February 1938 the Minister of Scenery Preservation, Frank Langstone, replied to a query from Burnett about the progress of the Te Puke Borough Council's application to have the watershed area reserved for scenic purposes.*O Langstone forwarded a plan . li showing the area which was considered to be 'an adequate reserve' for water conservation \ / and scenic purposes. He listed the separate blocks (see Map 4), including: those already reserved for water conservation purposes in 1914 and 1922; part section 28 Block I Maketu SD (unoccupied Crown land); various sections of freehold land; 41 acres 3 roods 20 perches of Maori land from Waitaha 1B; and approximately 285 acres from Otawa No 2 block, noting that this 'is Native land which will have to be acquired from the owners'. Langstone then wrote that, as the reservation would meet its water catchment requirements, the Council should be willing to contribute to the cost of acquisition, as provided for by
16. New Zealand Gazette, 3 October 1940, p 2557 [p 1531
17. Minutes of the Te Puke Borough Council, 8 May 1937
18. Minutes of the Te Puke Borough Council, 5 July 1937 [pp 102-1031
19. Ibid
20. Langstone to Burnett, 3 February 1938, Otawa Scenic Reserve, Western Bay of Plenty District Council (WBOPDC) [pp 99-1001 section 5 of the Scenery Preservation Amendment Act 1926.21 He informed the Council that:
while I am most sympathetically disposed towards the acquisition of the Native and freehold lands concerned in this case, I think there would be a much greater chance of Government approval and assistance if I could be assured of some local support.
At the beginning of June 1938 the Mayor responded to Langstone's proposal. Commenting on the plan sent by the Minister, he said that the area proposed to be reserved:
will very nicely conserve not only the bush-clad lands from which the Kirikiri Stream is fed, and from which Stream and its tributaries the Borough of Te Puke at present derives its water- supply; but also a further area lying almost wholly in the Otawa No. 2 (Native) Block that it is highly desirable to reserve from a scenic and forestry point of view but which does not drain into the Kirikiri Stream.22
Thus, the Otawa No 2 blocks were included in the scenic reserve even though they were not part of the Te Puke water catchment that the Council wished to preserve. The Mayor estimated that the total cost of the acquisition of all the land would be £300, of which the Council offered to pay £250. He pressed for the reservation to be proceeded with as quickly as possible as guns were still being taken into the area, and claimed that up until two years previously 'the unauthorised felling of trees was wantonly done for the sake of a length or two for posts out of a whole tree'. He also pointed out that native birds were plentiful in the area, and suggested that a scenic reserve would also 'be a paradise for botanical and ornithological research workers'. He made no mention of Maori interests in the land or its bird life.
The offer to pay £250 was amended on 19 December 1938, as the Council had been informed by Lands and Survey that the owners of some freehold sections required were asking for a higher purchase price than allowed for, and that the area to be acquired was larger than anti~ipated.~~As a result the Council resolved that:
if the Crown will compulsorily acquire the lands required for Scenic Reserve and Water Conservation purposes the Te Puke Borough Council undertakes to pay to the Crown a fair and reasonable proportion of the total cost of acqui~ition.~~
21. Scenery Preservation Amendment Act 1926, No 20 s 5 - local authorities may contribute towards the cost of acquisition of land and improvement or maintenance of reserves.
22. Mayor to Burnett, 2 June 1938, Otawa Scenic Reserve, WBOPDC [pp 94-97]
23. Lands and Survey to Mayor, 6 October 1938, Otawa Scenic Reserve, WBOPDC [p 901. The copy supplied of this letter is missing the last page, but a legal opinion produced in 1961 [pp 62-63] refers to this letter as saying that the area to be acquired was larger than anticipated. It is very likely that this is a reference to the Otawa No 2 blocks, because Langstone's original estimate of the area was only 285 acres.
24. Minutes of the Te Puke Borough Council, 19 December 1938 [p 1041 Two days later the Auckland Land District Scenery Preservation Board recommended that the following areas on Otawa Mountain, Te Puke, should be acquired and reserved for scenic purposes:25
Type of Land Description Area I I (in Maketu Survey District) I (acres, roods, perches) I I Crown land I Part section 28, Block V I 398a.Or.00~ I I Native land I Part Otawa No 2 I 580a.Or.OOp I -- Native land Part Waitaha 1B 41a.3r.20~ Freehold land Sections 3,4, and 9, Block I 56a. 1r.24~ Freehold land Sections 5 and 6, Block I 53a.Or.32~ Freehold land Section 10, Block I 14a.3r.24~ I Freehold land I Section 13, Block I I 87a.2r.32~ I I Freehold land I Section 14, Block I I 74a.3r.08~ 7
Now that the acquisition had been approved, Lands and Survey wrote to the Public Works Department on 23 March 1939, outlining the various areas to be taken.26 The letter explained that the Lands and Survey Department was co-operating with the Te Puke Borough Council, and that the Council had agreed to pay a proportion of the cost. The land . -6' x was described as having 'considerable scenic value', but it was noted that the Council's focus was on water conservation. Details were then given of the various sections of land to be acquired. It was claimed that the areas to be taken from Waitaha 1B 1 and 1B2 blocks (in Maori ownership) would not be prejudicial to the residue of those blocks and that the Native Department had been asked to contact the owners about the proposed acquisition. The land from those blocks was said to be worth approximately £1 per acre. After requesting the Public Works Department to commence proceedings to compulsorily acquire the land from the Waitaha blocks and freehold sections, the letter drew attention to the Otawa No 2 block. The area required from that block was described as being approximately 580 acres, but as this portion had not yet been surveyed the Public Works Department would be asked to take the land when a plan had been prepared.
In the meantime the acquisition of the other sections of freehold and native land went ahead. The Scenery Preservation Commission reported in 1940 that a total of 322 acres of bush near Te Puke had been taken for scenic purposes:
25. 21 December 1938, Scenery Preservation Minute Book 1919-1938, Lands and Survey (LS) 70 4, National Archives (NA) Wellington
26. Under-Secretary Lands and Survey to Permanent Head Public Works, 23 March 1939, Ministry of Works (MOW) 521137 Otawa Scenic Reserve [pp 52-53] The land covers the source of the borough water-supply, and with the addition of an area of adjoining Crown land now in course of reservation and some Native land in the Otawa Block which will be acquired the watershed will be fully protected.27
The areas referred to had been taken under the Public Works Act 1928 and the Scenery Preservation Act 1908 by a proclamation dated 23 August 1939, and were Sections 3,4, 5, 6, 9, 10, 13, 14, in Block I, Maketu Survey District, and Part Waitaha No 1B1,-- 1B2 and 1B3 in Maketu Survey District2*(see Map 4).
Meanwhile, the survey required to determine the area of land to be taken from Otawa No 2 had been completed in May 1939 by E.M. M~rilleau.~~The map drawn up by Morilleau was titled 'Plan of Land to be acquired for Scenic & Water Conservation Purposes being Part of Otawa No 2 Block', and on it the surveyor noted the presence of tawa, puriri, pukatea, rimu, rewarewa, with the undergrowth being made up of 'Supplejack, kiekie, Lawyer, Matipo, Kohekohe, Wineberry'. The area to be taken was identified as 465 acres, 3 roods and 15 perches (the survey of the steep site having revealed that it was less than the 580 acres suggested above).
In January 1938 Lands and Survey had advised the Native Department of the plans for the scenic reserve and had asked that department to inform the owners of the Waitaha On 6 January 1939 Lands and Survey informed the Native Department that the creation of the Otawa Scenic Reserve was going ahead, and requested the Native Department to 'kindly arrange to acquaint the Native owners of the Government's intention to acquire the areas of 580 acres and 41 acres 3 roods 20 perches, and, if possible, obtain their agreement.'31 Head Office then passed on this request to the Registrar at Rotha. Between March and July 1939 there was frequent correspondence between the Under- Secretary of the Native Department and the Registrar of the Waiariki Maori Land Court. The under-secretary wished the registrar to contact the owners and get their views on the taking, but the registrar consistently refused to do so.
The registrar initially advised head office that he had made no attempt to communicate with . the owners because the land to be taken had been inspected by Judge Ayson and Tai Mitchell in 193 8:
27. Department of Lands and Survey, 'Scenery Preservation: Report for year ended 3 1st March, 1940', AJHR, 1940, C-6, p 2 [pp 168-1701
28. New Zealand Gazette, 3 1 August 1939, p 2245 [p 1501
29. The reference for this plan is SO 30418.
30. Note to Under-Secretary Lands and Survey, 1 December 1939, LS 419 Otawa Scenic Reserve, now 13/5/1974, Department of Conservation (DOC)[p 1801
3 1. Under-Secretary Lands and Survey to Under-Secretary Native Department, 6 January 1939, Maori Affairs - Maori Land Purchase (MA-MLP) 1 228 1920132, NA Wellington
32. Under-Secretary Lands and Survey to Under-Secretary Native Department, 16 January 1939, MA-MLP 1 228 1920132, NAWellington [Tlhey were of opinion that the taking of the proposed area would not prejudice the remaining portion of the land. I consider that the owners will have full opportunity of expressing their views when the matter comes before the Court for the assessment of c~mpensation.~~
,, -- - The registrar repeated these points several times in later correspondence. In doing so, he , was making the decision that the land could be taken, without giving the owners a chance of expressing their view. His suggestion that the owners could he heard at the compensation hearing completely ignores the fact that by the time of a heari$g'it%ould be too late to stop the land being taken.
After further instructions to that effect from head oEce, the registrar continued to refuse to contact the owners. He argued that the only power to summon a meeting of owners was as assembled owners to consider an alienation under section 422(c) of the Native Land Act 1931, and that this would require valuations and other information to be provided.34 He also later claimed that there was no legal power to call an informal meeting of owners.35A further excuse was that he did not have enough information to advise the owners:
At the moment I have no information which would be of any assistance to the owners at an informal meeting and if they simply say that they do not wish to sell it will render the position still more involved. I think if the matter proceeds under the Public Works Act the best result will be obtained.36
The registrar was again denying the owners an opportunity to be heard, even though he admitted the possibility that they might not wish the land to be alienated. It would seem that the registrar had decided that the taking was acceptable and was not prepared to take any steps that might result in the land not being acquired. It should be remembered that in - - 1937 the registrar had confirmed to the mayor of Te Puke that the Native Department I - \ ,/ supported scenery preservation.
In June 1939, following repeated instructions from head office, the registrar suggested sending letters to the 'leading owners' and said that if the owners sent in any objections they would be passed on. The registrar's justification for choosing this course of action was: 'There is too much of our own work in arrears to be wasting officers chasing up consents in a matter that does not concern us'.37
A hand written note by a head office official on this letter argues that it was a matter that concerned the department. After pointing out that contacting the owners was an established practice, the writer went on to say:
33. Registrar to Under-Secretary Native Department, 19 April 1939, MA-MLP 1 228 1920132, NA Wellington [p 2101
34. Registrar to Under-Secretmy Native Department, 19 May 1939, MA-MLP 1 228 1920132, NA Wellington [p 2071
35. Registrar to Under-Secretary Native Department, 6 June 1939, MA-MLP 1 228 1920132, NA Wellington [p 2051
36. Registrar to Under-Secretary Native Department, 19 May 1939, MA-MLP 1 228 1920132, NA Wellington [p 2071
37. Registrar to Under-Secretary Native Department, 23 June 1939, MA-MLP 1 228 1920132, NA Wellington [p 2031 The practice should be followed here in view of the Crown's express policy in relation to the alienation of Native lands and the movement on foot in respect of the Treaty of Waitangi. It seems to me that a question of policy is involved, in matters of this kind, which is our definite concern.38[Emphasis in original.]
This quote could be interpreted as a recognition of the Crown's obligation under the Treaty >I" of Waitangi to protect Maori land fiom alienation.
When the registrar first refused to contact the owners, the under-secretary replied that he should consider holding a meeting of owners, or consulting the prinicpal owners because:
The area now proposed to be taken, 580 acres, is a considerable one, and, although it is unsuitable for farming, I wish to avoid action which would cause the Natives to think that the Department is party to seizing lands in a way that could be likened to confi~cation.~~
The under-secretary's concern that the taking should not be interpreted as confiscation was repeated in a later letter to the registrar:
In view of the large portion of the block to be taken, and to avoid any feeling afterwards among the owners that their land has been confiscated - it is most desirable that at least some of the leading owners should have the facts put before them and their consents re~orded.~'
When the registrar again refused to call a meeting of owners, the under-secretary instructed him that no statutory power was needed to call an informal meeting, and reminded the registrar of several other cases where the procedure had been followed.41
However, once the registrar advised head office that he would write to the principal owners, the under-secretary seems to have changed his mind about gaining consents fiom the owners. A hand written note on the registrar's letter, initialed by the under-secretary says:
Judge Ayson & Mr Tai Mitchell inspected both areas and considered they were not suitable for farming. I think we should have accepted that, and advised the Lands Dept to go ahead with the taking: it is in the interests of the Natives that they should quit lands that are of no use to them and put the money into something useful. The Court will see that Natives get just treatment and it invariably happens that our endeavours to get consents results in cornplication~.~~
38. Hand written note, ibid
39. Under-Secretary to Registrar, 12 May 1939, MA-MLP 1 228 1920132, NA Wellington [p 2081
40. Under-Secretary to Registrar, 25 May 1939, MA-MLP 1 228 1920132, NA Wellington [p 2061
41. Under-Secretary to Registrar, 13 June 1939, MA-MLP 1 228 1920132, NA Wellington [p 2041
42. Hand written note by the under-secretary, on Registrar to Under-Secretary Native Department, 23 June 1939, MA- MLP 1 228, 1920132, NA Wellington [p 2031 No explanation was given for this sudden reversal. Accordingly, Lands and Survey were informed in July 1939 that the Native Department considered that the acquisition of land from Otawa No 2 should proceed.43
There is, however, some indication that letters were not sent to the owners of Otawa No 2. While the Land Board wrote to the owners of the Waitaha blocks on 3 August 193g4", when head office inquired in July 1940 whether the registrar had received any objectiens from the owners of Otawa No 2, the registrar replied that when the notice of intention to take the land was received it would be distributed to the owners for their information. He made no mention of having already communicated with the owners on this matter.45
Despite the various opinions that Maori had nothing to lose by the taking of the land, there is a reasonable chance that, had they been consulted, at least some of the owners might have objected to the alienation. This suggestion is based on correspondence fiom 1920. After a meeting of owners had voted by majority to sell the block, Ngarino Tutahi wrote to the Native Minister to protest against the alienati~n.~~Tutahi claimed that several owners who were opposed to selling the block were not given notice of the meeting. Those owners who objected to the sale did so because they valued the timber that was on the block. The possibility of the owners therefore objecting to the land being taken for a scenic reserve was recognised by the Under-Secretary of the Native Department:
It will then [at a compensation hearing], however, be too late for them to sustain any objection, which appears possible in view of the attitude of some owners to the sale of the block to G.W. Brown. (This proposal was apparently dropped). The owners place considerable value on the timber of the
The final plan of the area to be taken fiom Otawa No 2 was not received until May 1940, at which time Lands and Survey informed the Native Department that the Public Works Department would be proceeding with the taking.48The letter also referred to the presumed notification of the owners, and said: 'I take it that no objections have been received'.
However, an objection to the acquistion of the Waitaha blocks was made by one owner, just days before the land was proclaimed as taken. Mr J.A. Asher, living in Tokaanu, had not
43. Under-Secretary Native Department to Under-Secretary Lands and Survey, 18 July 1939, MA-MLP 1 228 1920132, NA Wellington [p 2011
44. Acting Registrar to Mr John Asher, 3 August 1939, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 [p I841
45. Registrar to head office, 15 July 1940, MA-MLP 1 228 1920132, NA Wellington [p 1981
46. Ngarino Tutahi to Native Minister, 6 July 1920, MA-MLP 1 228 1920132, NA Wellington [p 2121
47. Under-Secretary Lands and Survey to Under-Secretary Native Department, 12 May 1939, MA-MLP 1 228 1920132, NA Wellington [p 2081
48. Under-Secretary Lands and Survey to Under-Secretary Native Department, 29 May 1940, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 [p 1821 received notification of the taking until 17 August 1939.49Although the notice of intention to take the land had been gazetted on 25 May 1939, the Waiariki Maori Land Board had not sent letters to the owners until 3 August, as explained above.50 Mr Asher wrote that, while he supported the principle of scenery preservation, in the case of the Waitaha blocks he wanted the taking postponed, because of mineral rights to the land held by his family.51 The mineral rights related to gold reefs know as Muir's Reef. - -- Lands and Survey replied to Mr Asher by claiming that, as they had asked the Native Department to inform the owners of the Government's intention, they had done all that was necessary.52In response Mr Asher pointed out that he had been given insufficient notice of the taking, and had had no opportunity to have his objections heard.53 He therefore asked that the matter be reopened.
Lands and Survey sought more information on the gold reefs in the area, even though they had been informed that 'the prospects of successful gold-mining in the locality are very remote'.54 A report from the Geological Survey Office revealed that:
Muir's Reef was discovered in 1914, and between 1918 and 1923 produced £164,776 worth of gold and silver. In 1922-24 a shaft 515ft deep was sunk across and cross cuts east and west explored the Muir and Massey Reefs in depth, with disappointing results. A good deal of prospecting was done and in 1928 the diamond drill failed to get anything at still greater depth.55
A Lands and Survey officer then recorded: 'I am afraid we are getting into deep water in this case.'56 There were two grounds for his concern: firstly, he admitted that Mr Asher had a genuine grievance as far as notice was concerned (this would also apply to the owners of the Otawa No 2 Blocks); and secondly, the existence of mineral rights raised the possibility
49. Under-Secretary Lands and Survey to Under-Secretary Native Department, 17 October 1939, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 [p 1781
50. Note to Under-Secretary Lands and Survey, 1 December 1939, LS 419'0tawa Scenic Reserve, now DOC 13/5/1974 [P 1801
51. Under-Secretary Lands and Survey to Commissioner of Crown Lands, 22 September 1939, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 [p 1761
52. Under-Secretary Lands and Survey to J.A. Asher, 22 September 1939, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 [p 1771
53. Under-Secretary Lands and Survey to Under-Secretary Native Department, 17 October 1939, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 [p 1781
54. Ibid
55. Director, Geological Survey Office, to Under-Secretary Lands and Survey, 24 October 1939, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 [p 1791
56. Note to Under-Secretary Lands and Survey, 1 December 1939,419 Otawa Scenic Reserve, now DOC 13/5/1974 [P 1801 of higher compensation awards than anticipated for both the Maori and general land taken. He concluded: 'it seems to me that the prospects of profitable goldmining are exceedingly remote, but nevertheless the whole case of the taking of the scenic areas has interesting possibilities.'
8 --- . \ Y The Native Department, following a request for mher information from Lands and Survey, pointed out that an inspection of the land by Judge Ayson aiid-.Tai-Mitchell indicated that the 'Value of Waitaha is only £1 per acre and apart fiom any minerals the land is of little value for other than scenic or water shed purposes.'57 In regard to the question of paying compensation for minerals in the land, the Native Department suggested that section 19 of the Public Works Act 1928 would cover the situation. Section 19 provided that when land was taken for a public work, minerals or mineral rights to the land would be deemed to be excepted from the taking proclamation. Thus, only the surface of the land was acquired by the Crown.
Not long after the Waitaha blocks had been proclaimed under the Public Works Act, compensation was promptly awarded. On 1 May 1940 Judge Harvey of the Native Land Court awarded compensation for the areas taken fiom Waitaha 1B1 and lB2.58 The minutes record that the Maori owners were not represented at the hearing. The Public Works Department was represented by Voice, a land purchase officer, who submitted that the land taken was particularly inaccessible, with no valuable bush, and the sections had not been occupied by the Maori owners. No mention was made of mineral rights or the gold reefs. For the 11 acres 0 roods 27 perches taken from Waitaha 1B1 Judge Harvey awarded £1 1 compensation, and for the 18 acres 3 roods 2 1 perches taken fiom Waitaha 1B2, £1 0 compensation was awarded.59 These sums were to be paid to the Waiariki Maori Land Board under section 552 of the Maori Affairs Act 193 1.60
Asher wrote again on 3 1 July 1941, asking what action had been taken as a result of his objection.'jl In response, the Under-Secretary for Lands and Survey pointed out that the public works taking only affected the surface of the land and did not take any minerals under the land. He also repeated his previous claim that by contacting the Native Department, Lands and Survey had fullfilled their notification obligations:
57. Under-Secretary Native Department to Under-Secretary Lands and Survey, 2 February 1940, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 [p 1811
58. Tauranga MI3 14, 1 May 1940, fols 135-136 [pp 122-1231. Note that the minutes refer to the blocks as 'Otawa or Waitaha'.
59. This can be compared with: £100 compensation awarded for 50a.lr.24~.taken from sections 3,4, and 9; £30 for 53a.Or.32~.taken from sections 5 and 6; £10 for 14a.3r.24~.taken from section 10; and £42 for 74a.3r.8~.taken from section 14. Commissioner of Crown Lands to Te Puke Town Clerk, 10 August 1956, Otawa Scenic Reserve, WBOPDC [p 721
60. Native Land Act 193 1, No 3 1, s 552 - Maori Land Board may retain compensation money as a trust fund for the beneficiaries
61. J.A. Asher to Under-Secretary Lands and Survey, 31 July 1941, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 I am very sorry if you have been put to any trouble over this matter, but as explained in previous letters this Department took in plenty of time what steps were open to it to ensure that the owners were advised of the Government's intention to acquire the land.62pmphasisadded]
The claim that advising the Native Department was the only step open to Lands and Survey is incorrect. It would have been possible for Lands and Survey to obtain a list of owners from the Native Land Court and then notify the owners directly, but Governpent. -- officials tended to assume that the complications of Maori land ownership meant that it would be best handled by the Native Department. Marr has noted that 'in many instances Works appears to have used a routine contact with Maori Affairs as a replacement for trying to contact the actual owners'.63 The Native Department itself was not under any legal requirement to lllfill the role assigned to it by Lands and Survey, and, as in this case, may have thought that notifying owners of public works takings was a low priority in relation to other duties.
Once the survey and plan were complete, on 10 June 1940 the Lands and Survey Department requested the Public Works Department to take the land for scenic purposes.64 On 19 June 1940 the Public Works Department was sent the result of a title search on Otawa No 2 from the Auckland District Land Regi~trar.~'The reference for the 465 acres 3 roods 15 perches to be taken was given as Part Certificate of Title 4415, and the registered proprietor was simply recorded as 'Natives'. The block was not subject to any encumbrances, but it was noted that the land was subject to Part XVI of the Native Land Act 1931. This Part set aside 'Native Land for Native Settlement' and made the land inalienable, except by lease to Maori owners. However, the protection of Maori land ownership under this Part was overridden, in this case, by section 9 of the Scenery Preservation Act 1908, which provided that reservations made under any other Act would no longer apply. Therefore, the reservation of land for scenic or historic purposes was seen by Government to be more important than the reservation of Maori land in Maori ownership.
It should be noted that the title, as recorded by the Lands and Deeds Registry, did not show that the land had been partitioned in 1931. This would have been because the partitions had not been surveyed, and so the Native Land Court partition orders could not be registered under the Land Transfer Act. As has been shown, under section 22(3) of the Public Works Act 1928, the Public Works Department was only required to consult the registered title. However, the department was made aware that the land had been partitioned by the Registrar of the Waiariki Native Land Court, who wrote (20 June 1940) to advise the
62. Under-Secretary Lands and Survey to J.A. Asher, 13 August 1941, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 [p 1871
63. Cathy Marr, 'Public Works Takings of Maori Land', Report for the Treaty of Waitangi Policy Unit, December 1994, p 174
64. Under-Secretary Lands and Survey to Permanent Head Public Works, 10 June 1940, MOW 521137 Otawa Scenic Reserve [p 5 11
65. District Land Registrar to Permanent Head Public Works, 19 June 1940, MOW 521137 Otawa Scenic Reserve [p 481 Public Works Department of the partitions. The registrar did not know whether the subdivisions had been surveyed but he warned the Public Works Department that 'it will be necessary to enable the Court to assess the respective compensation for each subdivision, to ascertain what area will be taken from each'.66 This was to become very important when
f -s, the Native Land Court first heard the application to award compensation, as will be shown ., J in the next section. The Lands and Survey Department also knew that the block had been subdivided, as shown by a New Zealand Gazette notice dated 21 JunZ 1948,-67 This proclaimed the reservation of the area of Crown land to be included in the scenic reserve (part section 28, Block V). The description of the boundaries of that area, as given in the Schedule to the proclamation, make reference to 'Otawa No 2 No 2A, No 2 No 2B, No 2 No 2C, No 2 No 2D, and No 2 No 2E Blocks', clearly showing that the Lands and Survey Department knew the correct title description for the Otawa No 2 blocks.
On 18 July 1940 a notice of intention to take land was published in.the New Zealand Gazette, and also published in the Te Puke Times on 26 July 1940.68 The notice said that it was intended to take 465 acres 3 roods 15 perches from Otawa No 2 Block for scenic purposes. A plan of the area to be taken was to be displayed at the Te Puke Post OEce, and 40 days were allowed for the receipt of written objections. It should be noted that, although the Public Works Department had been advised that Otawa No 2 had-been partitioned, the Gazette notice simply refers to 'Part Otawa No 2'. After giving notice of intention, it was proclaimed on 26 September 1940, under the Public Works Act 1928 and the Scenery Preservation Act 1908, that 465 acres 3 roods 15 perches, being Part Otawa No 2 Block, were taken for scenic purposes.69 This Proclamation was published in the Gazette on 29 September 1940, and took effect from 7 October 1940.
As from 7 October 1940, therefore, a sizable area from Otawa 2A, 2B, 2C, 2D, and 2E i \ I - blocks was no longer in Maori ownership, but was instead vested in the Crown as a scenic reserve. It was now up to the Crown to arrange for compensation for the land taken to be assessed and paid to the former owners.
66. Rotorua Registrar to Permanent Head Public Works, 20 June 1940, MOW 521137 Otawa Scenic Reserve [p 491
67. New Zealand Gazette, 27 June 1940, p 1575 [p 15 11
68. New Zealand Gazette, 18 July 1940, p 1724 [p 1521
69. New Zealand Gazette, 3 October 1940, p 2557 [p 1531. It was also published in the Te Puke Times 15 October 1940, [P 351.
20 4. DELAYS IN AWARDING COMPENSATION 1940-1961
As has been shown, under the Public Works Act 1928 the onus was on the Public Works Department to apply to the Native Land Court for compensation to be assessed for the land taken. While it was not unusual during the Second World War for compensation applications to be delayed2O it seemed, at first, that in the case of the Otawa No 2 blocks the application for compensation to be assessed by the Native Land €hurt would be prosecuted promptly. On 9 October 1940, merely ten days after the proclamation was published in the New Zealand Gazette, the Public Works Department submitted an application for the assessment of compensation, under section 104 of the Public Works Act 1928, to the Waiariki Native Land Court, and also requested the Valuer-General to provide a valuation of the land taken.71
The application was expected to be heard by the Native Land Court on the 12 November 1940 but the case was not proceeded with at that time, and the Registrar had advised the Commissioner for Crown Lands that 'the Court would probably refuse to assess compensation on a remote title'.72 This meant that the court was not going to make a compensation award based on the title 'Part Otawa No 2 Block' when the current title to the land was based on the partition orders of 1931 creating Otawa 2A, 2B, 2C, 2D, and 2E.
Lands and Survey was not advised of the delay until the commissioner reported on 13 December 1940, and had in the meantime been finalising arrangements with the Te Puke Borough Council. Referring to the Council's commitment to pay a 'fair and reasonable proportion', the Under-Secretary advised the Council that compensation still had to be assessed for some of the freehold land taken, and for the area taken from Otawa No 2.73 He estimated that the total cost would be £657, and suggested that the Council's contribution should be 60%, to which the Council agreed. The Council was later advised that it could pay its share of the compensation when the full amount had been assessed by the Native Land
By March 1941 Lands and Survey wanted the matter cleared up so that the Te Puke Borough Council could include its liability in the budget. On 20 March 1941 Macmorran, Under-Secretary for Lands and Survey, wrote to Works asking if compensation had yet
70. Marr, p 184
71. Public Works to Waiariki Native Land Court, 9 October 1940, MOW 521137 Otawa Scenic Reserve [p 391, Public Works to Valuer-General, 9 October 1940, MOW 521137 Otawa Scenic Reserve [p 381
72. Under-Secretary Lands and Survey to Permanent Head Public Works, 20 March 1941, MOW 521137 Otawa Scenic Reserve [p 341
73. Under-Secretary Lands and Survey to Te Puke Town Clerk, 24 October 1940, Otawa Scenic Reserve, WBOPDC [PP 80-811
74. Minutes of the Te Puke Borough Council, 16 December 1940 [p 1061 been decided for Part Otawa No 2.75 Macmorran pointed out that two days before the land was proclaimed as taken, he had received a memorandum from the Native Department, which enclosed correspondence from the registrar at Rotorua saying that Otawa No 2 had been partitioned in 1931 and that the Court would need to know the area taken from each subdivision. It seems likely that this was a copy of the memorandum that was sent directly from the registrar to the Public Works Department on 20 June 1940 (see page 20 of previous section for discussion). Macmorran claimed that 'the position was' discwed with your officers at the time, and it was understood that a memorandum was to be sent to this office on the matter.' This shows once again that both departments realised the Native Land Court would require to see the area of land taken from each subdivision, but the Public Works Department did not follow up on this requirement. Macmorran now wanted the matter to be resolved as soon as possible.
The Public Works Department replied in April, but their file does not contain a copy of this letter. However, it would seem that Works had told Lands and Survey that there was no progress to report, because on 29 July 1941 Macmorran (Lands and Survey) again wrote to see if there was anything definite to report on the compensation appli~ation.~~In reply, 13 August 1941, Works said that they expected the case to be dealt with at the next sitting of the Native Land Court at Ta~ranga.~~The matter had not been prosecuted before this because the land purchase officer had not been able to attend a hearing due to conflicting court fixture^.^'
The court sitting took place on 12 November 1941, where, as both the Public Works and Lands and Survey departments had been warned, the Court refbed to make a compensation award based on the description of the land being 'Part Otawa No 2 Block'. The application for assessment of compensation was heard before Judge Harvey, and the court minutes do I - \ I not record any of the Maori owners being present or repre~ented.~'The Public Works Department was represented by Voice.
At the hearing the Judge noted that the block had been partitioned and that government departments had been aware of this, and went on to make very strong remarks against the practice of the Public Works Department. The minutes of this hearing merit being quoted in full as they clearly demonstrate the opinion of the Native Land Court that it was the fault of the Public Works Department that no compensation award could be made at that time:
75. Under-Secretary Lands and Survey to Permanent Head Public Works, 20 March 1941,MoW 521137 Otawa Scenic Reserve [p 341
76. Under-Secretary Lands and Survey to Permanent Head Public Works, 29 July 1941, MOW 521137 Otawa Scenic Reserve [p 321
77. Assistant Under-Secretary Public Works to Under-Secretary Lands and Survey, 13 August 1941, MOW 521137 Otawa Scenic Reserve Ip 3 11
78. Under-Secretary Lands and Survey to Commissioner of Crown Lands, 29 July, 1941, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 [p 1861
79. Tauranga MI3 14, 12 November 1941, fols 122-123 [pp 126-1271 The Court: This block was partitioned in 193 1 and the Chief Surveyor had full knowledge of such partitions as had all other officials whose duty took them to the Native Land Court records in order that they could determine the title of those they sought to dispossess of their lands. Proper notice of intention to take has obviously not been given and the proclamation refis to a remote title. It may or may not be that the proclamation is bad but this Court cannot assess the compensation payable to the owners of each separate title on the material now before it. The Court[']s duty is to award compensation to the owners of each blcck of land and it cannot do so unless evidence of the area lost to each division and the value of each snch area can be adduced. Mr Voice: I cannot give the area taken from each division and naturally cannot fix value. Divisions are not surveyed and I submit that the fault is with the Native owners in not having their divisions surveyed. The Court considers that the practice of ignoring the Native Land Court title, in proclamations taking land for the Crown should be stopped - in fact it should never have been started. There is no insuperable difficulty in the way of having proclamations done in a normal straightforward manner. As the Court cannot come to a decision on the evidence that the Crown's representative has to submit the application will be stood down until either a new proclamation is issued or the measure of loss sustained by each title is revealed. [Emphasis added.Is0
Voice reported on the hearing to the Under Secretary of Public Works on 1 December 194 1, informing him that because the partitions had not been surveyed the amount of land taken from each subdivision could not be shown as the Judge had required, and that the case had therefore been stood down.81 In his memorandum, Voice made reference to his correspondence on a similar case. This was in regard to the Paeroa-Whakatane State Highway deviation near Otamarakau, and Voice had written that 'Judge Harvey of the Native Land Court has, on a number of occasions, taken strong exception to the fact that these partitions are not shown on the plan'.82 Voice included a transcript of the Court minutes, in which Judge Harvey stated:
The Court feels, however, that the P.W.D. [Public Works Department] must take the blame for departing from the terms of the title order of this Court in favour of obvious misdescriptions supplied by some Government Official. Mr Voice is asked to draw the attention of the Permanent Head to the many cases of misdescription that have come before the Court re~ently.'~
Voice suggested that the matter should be discussed with the Surveyor-General with a view to developing a policy that would be acceptable to the Native Land Court.
80. Ibid
81. Voice to Under-Secretary Public Works, 1 December 1941, MOW 531137 Otawa Scenic Reserve [p 303, (letter appears to be missing last page)
82. Voice to Under-Secretary, 1 December 1941, Works (W) 1 70/3/16/0/1, NA Wellington [p 1591
83. Cited ibid, the original minute book reference is not given. Although Voice stresses in his memoranda that the problem was with maps prepared for compensation hearings which did not show that the land had been partitioned, the real problem was the manner in which the Public Works Department refused to acknowledge the Native Land Court title records. This is evident in a memorandum fiom the Assistant
F, Under-Secretary of Works to the Auckland District Land Registrar dated 19 June 1940:
I would explain that the only natives the Department serves are those of the present Wners as named by the Native Land Court whose interests are registered under the Land Transfer Act. The Department is not interested in names appearing on Provisional Registers or on superseded Land Transfer Titles or on obsolete or unregistered Native Land Court Orders, nor does it expect from your office any attempts to identify persons whose names appear either on the title or on the Native Land Court records.84
Judging fiom the number of initials signed on the department's copy of this letter, it was circulated for the information of staff in the Public Works Department, and could be taken as an indication of departmental policy. It also reflects the provisions of section 22(3) of the Public Works Act, which allowed a lesser standard of notice for Maori land owners who were not registered under the Land Transfer Act. There were various reasons why the Land Transfer Register did not include Native Land Court orders, and in the case of Otawa No 2 it was because, although the partition order described the physical boundaries of the subdivisions, a survey had not been completed and the order could not, therefore, be registered. Nevertheless, the Public Works Department had been informed by the Native Land Court of the partition orders but still chose only to regard the title on the Land Transfer Register. However, the 1980 McCarthy Commission on Maori Land Courts pointed out that the Court of Appeal, in The King v. Waiariki District Maori Land Board ([I 9221 N.Z.L.R. 4 17), and re Hinewaki No 3 Block (1922 G.L.R. 591), had:
I / \ held that a partition order of the Maori Land Court created a legal estate and not merely an equitable interest until registration. Thus we have legal recognition of the existence of two registers or records affecting title.85
It would seem that the Public Works Department had chosen not to follow the decisions of the Court of Appeal, and the Public Works Act 1928 was not amended to give Maori whose interests in fieehold land were only recorded in the Native Land Court the same notification rights as Europeans.
On 6 May 1942 Lands and Survey wrote to the Te Puke Borough Council to inform them that a plan was being prepared, presumably showing the subdivisions, so that compensation could be assessed in a month or However, that estimate proved to be very optimistic as the Otawa No 2 block was included in a table, dated 27 July 1947, of outstanding
84. Assistant Under-Secretary to Auckland District Land Registrar, 19 June 1940, W 1 70/3/16/0/1, NAWellington [P 1601
85. 'The Maori Land Courts: Report of the Royal Commission of Inquiry' AJHR, 1980, H-3, p 40
86. Under-Secretary Lands and Survey to Te Puke Town Clerk, 6 May 1942, Otawa Scenic Reserve, WBOPDC [p 771 applications for compensation under the Public Works The only reason given on the table as to why the case still had not been settled was that the application only referred to a remote title, meaning 'Part Otawa No 2'. Later, Lands and Survey explained that the application had been delayed during this period because 'apparently during the war [the application] was overlooked because of staff diffic~lties'.~~ , i Nevertheless, there was some progress in 1947, as a completed sketch pla6~asforwarded to the Surveyor-General, who approved it on 3 1 October 1947, for the purpose of assessing compensation (see Map 3).89 The map shows the entire block, with the 5 subdivisions marked, and the area of land taken is outlined. The map contains a schedule of the areas taken from each block as follows:
Block Area Taken (acres, roods, perches) Otawa 2A la.3r.00~. Otawa 2B 9a.2r.00~. Otawa 2C 33a.lr.00~. Otawa 2D 61a.lr.00~. Otawa 2E 359a.Or. 15p.
Despite an acceptable plan being ready, by 1955 there had been no new developments, and on 15 February that year Lands and Survey wrote to the Commissioner of Works enquiring when the case was likely to be settled, so that arrangements for payment could be made with the Te Puke Borough C~uncil.~'In the letter it was claimed that 'a photostat of the compiled plan showing the areas taken from the subdivisions of the Otawa No 2 Block' had been sent to the Public Works Department in July 1942 (1 3 years previously), but Lands and Survey had not had a reply on whether the map would meet the requirements of the Native Land C~urt.~'The commissioner passed the query onto the district commissioner in Hamilton, who sent the vague (and uninformative) reply that the application 'appears to
87. Registrar to Under-Secretary Native Department, 22 July 1947, Maori Affairs (MA) 1 W2490 381111, NA Wellington
88. File Note, Compensation Payable For Otawa No 2 Block, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 [pp 194-1951
89. The reference for this plan is ML 16262.
90. Director-General Lands and Survey to Commissioner of Works, 15 February 1955, MOW 521137 Otawa Scenic Reserve [p 251
91. This is probably a reference to the map that the Te Puke Borough Council was advised of in 1942. have been lost sight of .92 No other explanation is given for what was, by then, a 15 year delay.
By October 1955 some progress towards holding a hearing was made. The district /--I commissioner was able to inform head ofice that the Valuation Department had provided \ ,J values for the land taken from the individual partitions of Otawa No 2, and when the Forestry Department provided a report on the value of the timber, an application-would be made for a Maori Land Court hearing?3 However, a year later the commissioner reported:
This matter has been brought before the Maori Land Court for determination of compensation on numerous occasions but no finality has been reached. The last hearing was adjourned until timber valuations were made by the Forest Service. These were made but a re-survey necessitated a revision this year.94
During 1956 the Te Puke Borough Council had been advised twice by Lands and Survey that a hearing was expected in the near future.95However, in September 1957 the district commissioner reported that it was now unlikely that the case would be heard before February 1958. This was because: 'the appointment of solicitors for the Maori owners, made by the previous Judge appears not to have been properly f~rmalised.'~~
The application for the assessment of compensation was then delayed until 1961 because the solicitor for the owners was seriously unwell, and the owners were unwilling to be represented by another solicitor.97The Court hearings and compensation awards made in 1961 will be outlined in the next section.
92. District Commissioner to Commissioner of Works, 14 March 1955, MOW 521137 Otawa Scenic Reserve [p 271
93. Commissioner of Crown Lands to Director-General Lands and Survey, 27 October 1955, LS 4/9 Otawa Scenic Reserve, now DOC 13/5/1974 [p 1891
94. Commissioner of Crown Lands to Director-General Lands and Survey, 2 November 1956, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 [p 1901
95. Commissioner of Crown Lands to Te Puke Town Clerk, 10 August 1956 [p 72],2 November 1956, Otawa Scenic Reserve, WBOPDC [p 671
96. Commissioner of Crown Lands to Director-General Lands and Survey, 25 September 1957, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 [p 1911
97. Note for file, 2 February 1962, LS 419 Otawa Scenic Reserve, now DOC 13/5/1974 5. THE ASSESSMENT OF COMPENSATION AND ITS DISTRIBUTION
It was to be more than 20 years after the compulsory acquisition of Part Otawa No 2 was gazetted, that the Maori Land Court made an award for compensation, payable to the former Maori owners of the land, on 18 May 1961. Unfortunately, because of an error, the final award was not made until 24 July 1961, and because of the mechanism for distributing payment, some owners did not receive their compensation money until May 1965.
The application to assess compensation for the land taken from Part Otawa No 2 was finally heard by the Maori Land Court on 18 May 1961 .98 The case was heard by Chief Judge Ivor Prichard, with J Cooney representing the former owners of the land and Morris appearing for the Ministry of Works. There is no record of any of the former owners being present at the hearing. Cooney said that he had gone as close as possible to the land to inspect it, and that the Ministry of Works' valuations had been made available to him. He said that there had been no milling on the Otawa block since 1925 and that any timber taken out then would have been rimu. Although the minutes of this hearing are not very clear, it seems Cooney said that a valuation (as at 1940) of the timber on the whole block was £1,758 for mixed timber species, which gave £866.19.3 for the timber on the area of land taken fiom the block for the scenic reserve. He confirmed this estimate of the 1940 value by referring to a State Forest Service valuation as at 1956 of £15 16. Cooney went on to argue that the existence of a clay track meant there was no need to make a large deduction fiom the value to take into account the inaccessibility of the block, and then requested £3 1.10.0 for his costs.
The Chief Judge stated that it was difficult to assess compensation at that time as no real inspection of the block had been made in 1940, and there were no comparable sales that could give an indication of the value of the land taken in 1940. From the experience of the Chief Judge, it was his opinion that if the whole of the blocks had been offered for sale in 1940 there would have been buyers, taking into account the timber for cutting. It was also the Chief Judge's view that the valuation given by the State Forest Service would be lower than the selling price, so he said he would 'add something because of this and something for cut over value'. The total value of the timber taken from Otawa No 2 was to be distributed over the five subdivisions using the same timber proportions as those supplied by the State Forest Service. The Chief Judge went on to say that he would add 20% to the land values, as supplied by the Valuation Department, because they too would be less than the likely selling price.
Therefore, it was the Court's opinion that the fair 1940 values for the land and timber taken would be as follows:
98. Tauranga MB 23, 18 May 1961, fols 188-190 [p 128-1301 Block Land Timber Total Otawa 2A £2 £14 £16 Otawa 2B £6 £48 £54 Otawa 2C Otawa 2D £227 Otawa 2E £216 £730 £946
(It should be noted that the Chief Judge added £267 to the total timber value, or approximately 30%.)
Having established the value as at 1940 when the land was taken, allowance then had to be made for the intervening 21 years, and although Morris asked for less than 5% interest, the Court decided to double the above amounts to take inflation into account. The total compensation awarded was as follows (the table shows that the Chief Judge made an error and only doubled the 1940 values for Otawa 2A, this was corrected as explained below):
Block Total Otawa 2A £32 Otawa 2B £54 Otawa 2C £168 Otawa 2D £227 I Otawa 2E 1 £946 1 Total £1927
An award was also made for £3 1.10.0 costs to be paid to Cooney. The Court directed that the compensation should be paid to the Maori Trustee for distribution to the former owners according to their proportionate shares.
On 19 June 1961 Chief Judge Prichard wrote to the registrar at Rotorua saying that he realised he may have awarded compensation on the wrong basis, and had failed to award interest to all the bl0cks.9~Voice, the land purchase officer, had informed the Chief Judge that he may have misunderstood the valuations presented at the hearing in May. The State Forest Service valuation supplied was £1516, which the Chief Judge had assumed was based on the value as at 1956 because it was dated 1956. However, although the valuation
99. Chief Judge to Registrar, 19 June 1961, MOW 521137 Otawa Scenic Reserve [p 201 - had been supplied in 1956, it was actually based on 1940 values. The Chief Judge informed the Registrar that Voice had no objections to the case being reopened if the compensation award was found to have been based on a misunderstanding of the dates of the valuation. The compensation awards made in May were therefore vacated on 6 July -, 1961, with the Court undertaking to make new awards at a sitting in Tauranga if Morris and ; Cooney wished to be present. loo - -- This sitting took place on 24 July 1961, with Chief Judge Prichard again presiding, and Cooney and Morris appearing on behalf of the owners and the Crown respectively.lo1 Again the minutes do not record any of the former owners being present. Morris explained the misunderstanding over the date which the State Forest Service valuations applied to, and said he was prepared for the Court to proceed on the basis of the valuation supplied being that of the 1940 value. Cooney said he had not been aware that the valuation was for the 1940 value, and explained that the Valuation Department believed that the £866.19.0 figure was as at 1940 values. The State Forest Service, however, had reported in 1950 that that figure was being checked, after which it was raised to £1516. As the Ministry of Works was happy to accept that figure as the 1940 value, he asked for an award to be made on that basis.
The Court then laid out that fair compensation in 1940 for the land and timber combined would have been as follows:
I Block I Total 1 Otawa 2A Otawa 2B Otawa 2C £272 Otawa2D £342 Otawa 2E £1 384
(Note that a comparison with the land values as laid out in the May hearing reveals that the Chief Judge added £314 to the timber valuation of £1516, being approximately a 20% increase, in comparison to the 30% extra allowed in the May award.)
The following amounts were therefore awarded as compensation, being double the 1940 values to reflect inflation:
100. Tauranga MB 23,6 July 1961, fol207 [p 1311
101. TaurangaMB 23,24 July 1961, fols 21 1-212 [pp 132-1331 - 29 Block Total Otawa 2A
Again Cooney was awarded costs, now £36.15.0., and the court directed that the compensation should be paid to the Maori Trustee for distribution to the former owners in accordance with their proportionate shares.
Following the award, Morris reported on the hearing and recommended that payment should be made to the Maori Trustee.lo2 However, there was now to be a further delay while payment was sought fiom Lands and Survey and the Te Puke Borough Council.
When the Ministry of Works received the recommendation fiom Morris that payment should be made it was noted that the Lands and Survey Department was responsible for paying the compensation. On 9 August 1961, therefore, Works wrote to Lands and Survey asking for confirmation that the latter Department would be making the compensation payment direct to the Maori Trustee in Rotorua.lo3 Lands and Survey replied that they . -'i would do so, but expected there would be a delay, saying: 'It may be some little time before \- 1 the payment is available'. lo4
The anticipated delay may have been due to the necessity to seek the 60% contribution fiom the Te Puke Borough Council. On 5 September 1961 the Commissioner for Crown Lands wrote to advise the Council that compensation for Otawa No 2 had been awarded.lo5 He asked the Council to make payment for £255 1.13.0, being 60% of the total, to the Lands and Survey Department who would arrange for payment to be made to the Maori Trustee. The Council referred the letter to the borough solicitor for advice, and this decision was reported in the Daily Post (Rotorua). Under the [incorrect] heading '30 Year Wait for Settlement' the article said: 'The Te Puke Borough Council considers that as it has waited
102. Land Purchase Offker to District Commissioner of Works, 26 July 1961, MOW 521137 Otawa Scenic Reserve CPP 2 1-24
103. Commissioner of Works to Director-General Lands and Survey, 9 August 1961, MOW 521137 Otawa Scenic Reserve [p 241
104. Director-General Lands and Survey to Commissioner of Works, 25 August 1961, MOW 521137 Otawa Scenic Reserve [p 181
105. Commissioner of Crown Lands to Te Puke Town Clerk, 5 September 1961, Otawa Scenic Reserve, WBOPDC [P 701
30 30 years for a land issue to be dealt with by the Maori Land Court another few weeks will not hurt'.lo6 The report said that the matter had been handed to the borough solicitor because the original estimate of the cost of acquisition was £300 and the cost was now £2500 because 'as the years went on without a final settlement from the court the acquisition price soared'.
The Registrar of the Waiariki Maori Land Court wrote to the Council to pfotest the way in which the Daily Post article implied that the Maori Land Court was responsible for the delay.lo7 The registrar claimed that the delay started after a hearing in 1944 when the court had requested valuations for the timber on the block. According to the registrar, the request had to be referred to the State Forest Service, and so the hearing was adjourned. This researcher was unable to find record of a hearing on the Otawa No 2 block in 1944, and has seen no other reference to a hearing in that year. Although this part of the registrar's account cannot be verified, it would seem that the registrar was correct when he pointed out that:
A considerable period elapsed before anything was done and in spite of letters to the District Commissioner of Works at Hamilton to bring the matter to hearing, it was not until the 18 May 1961 that the Land Purchase Officer of the Ministry of Works was able to supply to the Court all the information that it required to enable it to make an award in connection with the taking of the land.
The borough solicitor's legal opinion on the request for payment was not submitted to the Council until 22 August 1962, 11 months after payment had been requested.lo8 The solicitor sumrnarised the correspondence between the Council and Lands and Survey Department. He argued that, although the Council had agreed to pay 60%, this was in response to the Under-Secretary's estimate, of 24 October 1940, that the total cost of acquisition would be £657. According to the solicitor, the Council, on 24 November 1961, objected strongly to the request to pay the awarded figure, in reply to which the Commissioner of Crown Lands had conceded that the Council should not have to pay the interest component of the compensation award, leaving a liability of £1300. The solicitor wrote:
Adverse comment appears to be called for on the handling of the matter by the Crown Lands Department, firstly because of the length of time taken and secondly because of the failure to keep the Council, an interested party, fairly advised of the proceeding^.'^^
106. Daily Post, 26 September 1961, p 7
107. Registrar to Te Puke Town Clerk, 26 October 1961, Otawa Scenic Reserve, WBOPDC [pp 68-69]
108. 'Opinion for Te Puke Borough Council re Otawa Water Shed Area', 22 August 1962, Otawa Scenic Reserve, WBOPDC [pp 62-66]
109. Ibid, p 3 [p 641 The opinion concluded that the Council was excused Erom its contract with the Crown to pay 60% by reason of the Lands and Survey Department's innocent misrepresentation of the amount of compensation that would be awarded. The recommendation made to the Council was that it should pay only 60% of £657 and resist any claim for more. This was f-x agreed to by the Council's Finance and Legal Committee on 17 September 1962.'1° \ B On 12 July 1963 the Commissioner of Crown Lands replied with the Cram'-s..p&pective on the history of the agreement between the Council and the Lands and Survey Department."' He pointed out that the Crown had spent over £3000 on the acquisition of the entire scenic reserve (including the value of an area of crown land given in exchange for one of the fieehold sections), while Council's contribution so far had been £124.8.6. Under these circumstances he thought it was not unreasonable for the Council to pay the £1300 outstanding, given its earlier undertaking to bear a 'fair proportion' of the costs if the Lands and Survey Department would compulsorily acquire the land. Evidently the Council agreed to pay the £1300 as the commissioner wrote again on 11 September 1963 to thank the Council and to inform it that payment could be made in installments over six years.l12
In the interim, Lands and Survey had made payment to the Maori Trustee on 26 March 1962.'13 This was in accordance with section 47 of the Maori Trustee Act 1953 which gave the Maori Land Court the power to direct that compensation be paid to the Maori Trustee. The intention was that the office of the Maori Trustee would be best equipped to deal with the problems created by there being multiple owners of a block and would be able to distribute funds to the numerous owners of blocks. However, the Maori Trustee was not particularly prompt in its distribution of compensation payments to the owners of Otawa 2A, 2B, 2C, 2D and 2E. Further research of Maori Trustee records would be required to see m ii \ I if this delay was unusual.
The first task for the office of the Maori Trustee was to allot the compensation money to the ledger accounts of the various blocks. While this was done relatively quickly for Otawa 2C and 2A, the other block accounts were not allocated their funds until mid 1965. The dates of payment for each block and the amount paid are laid out in the table on the next page:
110. Minutes of the Te Puke Borough Council, 17 September 1962
111. Comissioner of Crown Lands to Te Puke Town Clerk, 12 July 1963, Otawa Scenic Reserve, WBOPDC [PP 56-57]
112. Comissioner of Crown Lands to Te Puke Town Clerk, 11 September 1963, Otawa Scenic Reserve, WBOPDC [P 551
1 13. Copy of ledger account supplied by Hamilton Office of the Maori Trustee [pp 163-1641 - 3 2 Block Distributed Amount Otawa 2A 2 July 1962 £52.00 Otawa 2B 17 May 1965 £168.00 Otawa 2C 29 June 1962 £544.00 Otawa 2D 17 May 1965 £684.00 Otawa 2E 29 April 1965 £2767.19
It should be noted that the amounts credited to each account are the same as that awarded by the Court in 1961, without additional allowance for intere~t."~It would appear, then, that, after waiting more than 20 years to have compensation assessed, the Maori owners of the blocks were to receive no compensation in the form of interest for the delay caused by the Lands and Survey Department taking eight months to make payment to the Maori Trustee, as well as the further delay from the time of payment to the time of distribution. A check of some of the individual beneficiary cards carried out by the Office of the Maori Trustee confirmed that payments to the various former owners were made on the same date as the money was credited to the block a~count."~
The next section will look at the recent administration of the land in the Otawa No 2 blocks that remained in Maori ownership after more than 465 acres had been compulsorily acquired by the Crown.
6. THE ESTABLISHMENT OF THE OTAWA KAIATE TRUST
The first claim lodged for the Otawa No 2 lands in the Otawa Scenic reserve, Wai 209 (since withdrawn), was made on behalf of the Otawa Kaiate Trust. This Trust was establised in 1985 with the aim of making various blocks in the Otawa area profitable, and therefore more able to meet rate payments. The Trust lands include the residue of Otawa 2A, 2B, 2D, and 2E, that is the land left in those blocks afier parts were taken for the Otawa Scenic Reserve. Otawa 2C has separate trustees.
The first moves towards establishing the Trust took place in 1981, at which time applications were lodged by Tauranga County Council charging lands in the Otawa No 1 and No 2 blocks with outstanding rates under the Rating Act 1967. The blocks affected and the amount of outstanding rates are given in the table on the next page:"6
114. Note that the amount credited to Otawa 2E is listed in the letter from the Maori Trustee Office as £2767.19.0., rather that £2768 awarded by the Court. As far as I can ascertain the ledger account does not explain this discrepancy.
1 15. Correspondence from Head Office of the Maori Trustee, 12 October 1995 [pp 165-1 661
116. Rauputu to Judge Cull, 22 May 1985, in Tauranga MB 45,24 May 1985, fol 119 [p 1371 Block Rate Arrears
Otawa 1C5 Sect 1 $34.60 Otawa 2E $454.68 I Otawa 2D I Otawa 2c
At a Maori Land Court hearing on 10 November 1981 the Court adjourned the applications and directed that amalgamation of the blocks and possible hture uses should be investigated by the Maori Affairs Departrnent.'17 During the hearing, the Court heard that the land had a steep gully running through it, and that the amalgamation of titles would benefit those blocks which were landlocked. The Court was also advised that afforestation of the land would be required. The minutes record several of the owners agreeing with a proposed feasibility study to be undertaken by the Maori Affairs Department. The Council was also willing for the applications for charging orders to be postponed.
John Rauputu, a land titles improvement officer, later reported that it was decided to include in the feasibility study other blocks in the area that were found to be unoccupied and unproductive. 'I8
A meeting of the owners of these blocks was held on 5 April 1982 in Tauranga, which resulted in a steering committee being appointed. The next meeting was held on 19 , \ I - November 1982, when the steering committee reported that, after approaching several \, timber companies only one showed any interest and the committee therefore felt it had no recommendations to make. After this meeting one of the owners updated the address lists so that a 111meeting of owners could be called.' lg
This took place on 4 March 1985 at Whetu Marae in Welcome Bay, Tauranga. The following table gives the percentage of ownership of the Otawa No 2 blocks represented at the meeting, and the amount of rates owing to the Tauranga County C~uncil:'~~
117. Tauranga MB 42, 10 November 1981, fols 139-141 [pp 134-1361
118. The other blocks were listed as Otawa lClA, IClB, 1C5 Sec 2, 1C6, 1C7,Part 2B, and Part 2A.
119. Rauputu to Judge Cull, 22 May 1985, in Tauranga MB 45,24 May 1985, fols 119-120 [pp 137-1381
120. Ibid. The percentage of ownership represented at the meeting for the other blocks was as follows: Otawa lClA - 5 1.58%; lClB - 11.09%; lClC - 3 1.25%; 1C5 Sec 1 - 28.33%; 1C5 Sec 2 - 45.66%; 1C6 - 0.25%; and 1C7 - 23.68%. Block % of shares Rates represented outstanding Otawa 2E Part 9.76% $490.38 Otawa 2D Part 5.40% $348.42
Otawa 2C Part 10.50% - Paid I Otawa 2B Part 1 26.17% 1 $766.99 1 Otawa 2A Part 32.08% $3330.59
At this meeting Bill Ohia of the steering committee stated that the purpose of the meeting was 'that bush area largely is the catchment for the water supply by which we all live and that it should not be totally lost to forestry. Part of the proposal is that when anyone applies for water right that a levy be applied on that application and that the money be used to offset Rate Demands which is what this is all about.'121 Mr Ohia put forward several suggestions for various uses of the bush area, such as selective milling, the construction of hostels on the land, bush walks, education, picnic areas with 'the general aim . . . considered to be the establishment of bush resources here that might meet some employment needs for the Otawa people and provide an enriched lifestyle'. Details were given by a solictor, M.D. Malloy, of a proposed Joint Venture Scheme under the Forestry Rights Registration Act 1983. He said that such a scheme would allow for small owners to retain the ownership of the land while entering into contracts with investors for forestry purposes. 122
After hearing the details of what was proposed, the owners of individual blocks voted. The result was a unanimous vote against the title of the blocks being amalgamated, with the preference being for the titles to be aggregated so that ownership of the individual areas would still be defined. The owners of the blocks which did not have rates owing voted not to be part of the aggregation, which meant that Otawa 2C was withdrawn from the scheme.123 The owners of the remaining blocks agreed to appoint trustees under section 438 of the Maori Affairs Act 1953 and seven trustees were nominated.
The application to vest the various Otawa blocks in the nominated trustees was heard by the Maori Land Court, before Judge Cull, on 24 May 1985.'" Sixteen owners were present at the hearing, represented by Malloy, who said that a letter advising of the hearing had been sent on 6 May 1985 to all owners whose addresses were known. Turi Te Kani (one
121. 'Minutes of a meeting of owners held at Te Whetu Marae, Welcome Bay, Tauranga on Monday, 4 March 1985', p 7 (held at Hamilton Maori Land Court)
122. Ibid, p 11
123. Trustees for Otawa 2C were appointed under s 438 Maori Affairs Act 1953 on 21 November 1986. The trustees are different from those appointed for the other blocks.
124. Tauranga MB 45,24 May 1985, fols 121-125 [pp 139-1431 of the proposed trustees) said that the proposal to grow selective species of timber represented a new approach to land development. He also said that he had been involved in the initial investigation, and approved of the idea of attracting outside capital 'without any tie to the land' to develop the block. The court then granted the application and made
/--- B an order under section 438 of the Maori Affairs Act 1953. The order vested the blocks J (listed in the table below) in John Warehu Steadman, John Manning, Wahiao Raymond James Grey, Donald Shaw, Lawrence John Carkeek, and George Haywood-.astrustees.
trustees (hectares) Otawa lClC Otawa 1C5 Sec 1 Otawa 1C6 I Otawa 1C7 I 82.0 I Otawa 2E Part 25 1.5 Otawa 2D Part I Otawa 2B Part 1 69.7 1
Total 529.3
/ \
I - \ >+ On 25 August 1986 an application under section 454 of the Maori Affairs Act was heard by the Maori Land Section 454 provided for the creation of 'joint farming undertakings' allowing for blocks held under separate titles by different owners to be jointly used. In support of the application, W.R.J. Grey (trustee) said that the blocks were not economically viable individually and the order would allow them to be worked together for the benefit of all owners. Grey informed the Court that all the blocks had the same trustees and that a deed of trust had been entered into. The Court granted the application, although it would seem there was some doubt whether the proposed venture came within the scope of section 454, as the Judge referred to a letter from a senior tutor in Farm Forestry and Tree Crops that discussed whether tree growing came within the meaning of 'farming purposes' in section 454.
Now that the trustees had the power to administer the blocks as a whole, arrangements were made with Development Finance Corporation. The Schedules of Memorials to Otawa 2A, 2B, 2D, 2E and 2C (even though the last block has different trustees) record that a Deed of Forestry Right and a Deed of Mortgage were entered into between the trustees and the Development Finance Corporation for the extraction and plantation of timber on the land.
125. Tauranga MB 46,25 August 1986, fols 19-20 [pp 144-1451 Mr Grey has explained that Development Finance Corporation provided a loan using the Forestry Rights Agreement as security.126 The Trust is currently earning an income by leasing 20 acres of land.
7. SUMMARY / ISSUES - , -- The Otawa Scenic Reserve was created primarily for the purpose of water conservation to protect the Te Puke water catchment. The Otawa No 2 blocks, while not directly draining into the Kirikiri Stream, were included by the Department of Lands and Survey in the scenic reserve. While the land under claim was acknowledged to have value as a scenic reserve, it is to be wondered whether a scenic reserve would have been created on Otawa Mountain if it were not for the water catchment concerns of the Te Puke Borough Council, and why Lands and Survey added the Otawa No 2 blocks to the area proposed to be reserved by the Council. The comments of the Waiariki Native Land Court Registrar that the Native Department supported bush conservation would indicate that it was happy for the area to be acquired as a reserve.
The notification process laid down by the Public Works Act 1928 was less stringent for Maori owned land held under unregistered title orders, and meant that the Public Works Department was not required to give personal notification to the Maori owners. Despite this, the Lands and Survey Department recognised that an attempt should be made to get the consent of the owners to the alienation. However, Lands and Survey, instead of contacting the owners itself, passed the responsibility on to the Native Department. This was not unusual, and the Native Department had procedures that were normally followed in such cases. However, in regards to Otawa No 2, the registrar of the Waiariki Maori Land Court stubbornly refused to attempt to either inform or consult some or all of the owners. His reasons were that the land had already been inspected and, in the opinion of certain officials, the owners would not be prejudiced by losing the land. The registrar's attitude, as well as contradicting instructions fiom head office, denied the Maori owners of the blocks the chance of having their views on the taking heard. It also meant that if the owners objected to the acquisition of the land (which would seem to have been likely), they were unable to do so until the land had already been alienated from them.
There has been a suggestion that Maori owning the blocks were concerned about preserving its bush cover. Mr Monty Ohia of Ngati Pukenga has told me he recalls when he was a boy that his grandfather imposed a rahui on taking timber from the block. Mr Ohia is unsure what year that was, but during the May 1961 hearing Cooney said that milling on the block had stopped in 1925, 13 years before the area was proposed to be reserved. Even if the Maori owners at the time agreed with the aim of bush conservation, it would not necessarily follow that they would support the land being compulsorily alienated fiom their ownership. Nevertheless, it would not have been unusual for Pakeha officials of the time to assume that because Maori were not 'using' the land in a productive manner they would not object to losing ownership. Officials of the Waiariki Maori Land Court expressed the view that as
126. Correspondence from Mr Grey, 20 October 1995 the land was not suitable for farming the owners would not be disadvantaged by losing the land.
Although the owners did eventually receive compensation monies for the land taken, there was an extraordinary delay between the time the land was taken and the time at which the compensation award was made. Judge Harvey made it quite clear that the reason an award could not be made at the earliest opportunity in 194 1 was due to the practlce of $he Public Works Department. As that department continued to refer to the land as 'Otawa No 2', rather Ulan the correct title descriptions fiom the 193 1 partition orders (creating Otawa 2A, 2B, 2C, 2D and 2E), the court could not assess compensation for the amount of land taken from each block. Judge Harvey's comments on this should be recalled: 'The Court considers that the practice of ignoring the Native Land Court title, in proclamations taking land for the Crown should be stopped - in fact it should never have been started'. This report has also shown that Otawa No 2 was not the only compensation case to be affected by partitions not being acknowledged or shown on plans. The Crown created the Native Land Court title system, but it seems that the Public Works Department assumed that it was too complicated to be consulted. The Royal Commission on the Maori Land Courts explained:
there has developed . . . a system of recording the details, including ownership, of Maori land within the records of the Maori Land Court. This has led to large areas of Maori land not being brought under the land transfer system; or if it has been, the records relating to it are deficient or out of date. The result is that the benefits of the land transfer system are replaced by a cumbersome, inefficient system of records of Maori land and its ownership which puts the Maori people in their land dealings at a considerable disadvantage compared with Europeans. 12'
In this case, the owners of the Otawa No 2 blocks were considerably disadvantaged by the situation described above, in that it resulted in a delay of more than 20 years before compensation for the land taken was received.
The application to have compensation assessed was somehow 'lost sight of by the Public Works Department, with no regard for the interests of the owners who had, at that time, been dispossessed without compensation. Lands and Survey did occasionally inquire as to the progress of the case and request that it should be completed, however the department's motivation was to satisfy the arrangement made with the Te Puke Borough Council. Once Works had been reminded about the case, it still could not be prosecuted for some years as valuations of the land and the timber had still to be obtained. The Council criticised the government departments for failing to keep it informed of the compensation hearings, and it could be assumed that if the Council, a party with financial liability, was inadequately consulted, then the Maori owners too were not advised of the delay and the reasons for it. Although the delay between 1958 and 1961 was due to the solicitor being ill, the 18 year period before that had provided plenty of opportunity for Works to have had compensation assessed.
127. 'The Maori Land Courts: Report of the Royal Commission of Inquiry' AmR, 1980, H-3, p 38 - 3 8 The compensation award that was finally made was double the estimated value of the land and timber in 1940. This represents an addition of 5% per annum interest over 20 years. The Chief Judge also allowed for underestimates in the valuations supplied, by adding 20% to them. There was a delay of just under four years between the time the award was made and the date when payment had been distributed to all former owners. No interest was paid for this period, despite the provisions of section 104(d) of the Public Works Act 1928. Preliminary information indicates that the payments to individual owners Could have been relatively small, and it is to be wondered whether the beneficiaries were aware of what the payment was for, coming more than 21 years after the land had been taken. It would have been easy for the owners of the Otawa No 2 blocks, during the 1940s and 1%Os, to assume that the land had been taken without any entitlement to compensation payments. The Under-Secretary of the Native Department admitted that if the owners were not consulted about the taking, then it could easily be perceived by them as a confiscation.
The claimant, Mr Smallrnan on behalf of Ngati Pukenga, has asked the Waitangi Tribunal to recommend that the land be returned to those from whom it was compulsorily taken. LIST OF MAPS
Map 1 - 'Location of area under claim'
Map 2 - 'Contours of Land'
Map 3 - 'Otawa No 2 showing partitions and area taken for Otawa Scenic Reserve' This map is taken from ML 16262.
Map 4 - 'Blocks in the Otawa Scenic Reserve and Water Conservation Reserve' This map was supplied by the Western Bay of Plenty District Council. fi Map I : Location of area undpr claim I 1 Map 2 : Contours of land I 1 Blk VIII 1 VIlI SO. 15136
Not 'to be used for Endorsement of Partition Orders.
l~a~3 : Otawa No.2 showing partitions and area aken for-Otawa Scenic Reserve I Ikm I /I I -.. I Rmile I I
OTAWA BLI
water Conservation I aMgori land =crown land
~reeholdland
I Map 4 : Blocks in the Otawa Scenic Reserve and Water Conservation Reserve 1 OTAWA SCENIC RESERVE - DOCUMENT BANK
Legislation [pp 0-161 * Scenery Preservation Act 1903 * Scenery Preservation Act 1908 * Scenery Preservation Amendment Act 19 10 * Public Works Act 1928, ss 22,23, 102-106
MOW 521137 Otawa Scenic Reserve [pp 17-53] * Correspondence file supplied by the Ministry of Works to the Tribunal in 1987
Te Puke Borough Council Records [pp 54-1071 * File relating to Otawa Scenic Reserves, supplied by the Western Bay of Plenty District Council * Minutes of Te Puke Borough Council Meetings, now held by the Western Bay of Plenty District Council
Maori Land Court Records [pp 108-1471 * Partition Orders, 15 January 1931 * Minutes, 15 January 193 1 * Minutes, 1 May 1940 * Compensation Orders, 1 May 1940 * Minutes, 1 1 November 1941 . * Minutes, 18 May 1961 * Minutes, 6 July 1961 * Minutes, 24 July 1961 * Minutes, 10 November 1981 * Minutes, 24 May 1985 * Minutes, 25 August 1986 * s 43811953 Order, 24 May 1985 * s 45411953 Order, 25 August 1986
Gazette Notices [pp 148-1581 * 1914,p4268 * 1922, p 2402 * 1939, p 2248 * 1940, pp 1575,1724,2557 * 1942, pp 21 12-21 14 * 1953,p905 * 1964, p 1966 * 1981, pp 1335,1992 W 1 70131161011 [pp 159-1621 * Correspondence from Ministry of Works file, National Archives Wellington
Maori Trustee [pp 163-1671 'I * Letter from Office of Maori Trustee Hamilton ' v * Letter from Office of the Maori Trustee, Wellington - . - -- Appendices to the Journals of the House of Representatives [pp 168-1731 * 1940, C-6 * 1941,C-6
LS 419 Otawa Scenic Reserve [pp 174-1951 * Correspondence from Lands and Survey file, now held by the Department of Conservation as 13/5/1974
MA-MLP 1 228 1920132 [pp 196-2131 * Correspondence from Maori Land Purchase file, National Archives Wellington