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Crown Acquisition and Desecration ofNga Potiki Land

A Report Commissioned by the Waitangi Tribunal

. - by

HEATHER BASSETT RICHARD KAY

Bassett Kay Research May 1999 Table of Contents

Introduction 2 The Authors 2 The Commission 3 Structure and Sources 3

Executive Summary 4

Part One: Alienation and Individualisation 9 1.1 Raupatu and the removal of customaiy tenure 9 1.2 Papamoa 1 12 1.3 Papamoa 2 19 (a) Legal Process of Alienation 21 (b) Development Scheme 23 (c) Changing the Legal Status ofNga Potiki Land 26 (d) Block History ofPapamoa 2 27 (e) Papamoa 2 Residue - Burial Ground 39 1.4 Papamoa 3 42 1.5 Mangatawa 43 1.6 Summary 52

Part Two: Public Works 56 2.1 The 'Lethal Weapon' ofthe Public Works Act 56 2.2 Quarry and Water Reservoir (Maungamana) 63 2.3 Rubbish Dump 65 2.4 Oxidation Ponds 71 2.5 Telecommunications Tower (Kopukairoa) 87 2.6 Other Takings 89 ( a) Gas Pipeline 89 (b) East Coast Main Trunk Line and Associated Takings 93 (c) Rifle Range - Land Taken for Defence Purposes 97 2.7 Summary 100

Conclusion 105

Bibliography 111

1 Introduction

The Authors

Heather Bassett has a Bachelor of Arts Honours degree, majoring in history, from Waikato University. She is also studying for a law degree. From 1993 to 1995 she worked as a researcher for the Crown Forestry Rental Trust, during which time she co-authored the Maori Land Legislation Manual. Heather was a staff member at the Waitangi Tribunal from June 1995 to October 1996. She is now working as a contract historian based in Auckland.

Richard Kay has a Bachelor of Arts degree, maJonng in history, from Otago University and a Master of Arts Honours degree, majoring in history, from Waikato University. He has a Diploma of Teaching (secondary) from the Auckland College of Education. He is based in Auckland as a contract historian.

Together, we have written the following reports:

• 'Otawa Scenic Reserve' (Wai 210)~ • 'Aspects of the Urbanisation of Maungatapu and Hairini, Tauranga' (Wai 342 and

Wai 370)~ • 'Case Studies of Crown Administration in Welcome Bay' (Wai 603);

• 'Mangatawa' (Wai 47)~

• 'Otawhiwhi Reserve and Bowentown Domain' (Wai 47)~

• 'Huharua, Pukewhanake and Nga Kuri a Wharei' (Wai 47)~ • 'Ngaiterangi and the Crown' (Wai 215); • 'Matamataharakeke' (Wai 693);

• 'Manaia IB & 2B Survey Charges' (Wai 285)~

• 'Kaiaua School Site' (Wai 563)~ • 'Ngati Pukenga and Ngapeke Block' (Wai 47); and • 'Ngati Koata'(Wai 566).

2 The Commission

This report has been commissioned by the Waitangi Tribunal for Bassett Kay Research to prepare an historical report on the issues surrounding the Crown's acquisition ofNga Potiki lands.

The overriding theme of the report has been identified by representatives of Nga Potiki. Heather Bassett and Richard Kay also attended a meeting with Nga Potiki claims committee on 29 January 1999 at Tamapahore Marae at Papamoa. The meeting was a general discussion on the nature of the research that should be undertaken. At this meeting it was strongly felt that the formal confiscation of land which destroyed Nga Potiki's customary tenure, and subsequent Treaty of Waitangi breaches, have meant that today Nga Potiki are alienated from their whenua and denied control (or tino rangatiratanga) of sacred areas of Tauranga Moana. A further meeting at the marae was attended by Heather Bassett on 1 May where a draft report was presented to the Nga Potiki claims committee and their counsel.

This report has been researched and written over a four month period which commenced in January 1999.

Structure and Sources

This report follows a thematic structure, and is divided into two parts that deal with the issues within a chronological framework that encompasses the period 1840 to 1999. The first part of the report deals with the theme of alienation and individualisation of Nga Potiki lands by examining how the raupatu resulted in Nga Potiki losing customary ownership of their lands, and the subsequent partitioning and alienations of various blocks. The second part of the report looks at the impact of public works taking on Nga Potiki by examining the construction of a quarry, water reservoir, telecommunications tower, rubbish dump, oxidation ponds and other man­ made features on or near their lands.

3 The sources used to prepare this report are primary and secondary written material supplied by Waitangi Tribunal research staff from National Archives in Wellington and by Bassett Kay Research from National Archives in Auckland and the University of Auckland Library. The principle written sources used for this project have been reports from the Waitangi Tribunal, Crown Forestry Rental Trust, local histories, general histories, Native Land Court records, and papers from the Appendices to the Journals o/the House o/Representatives.

Executive Summary

Part One Following the confiscation of 1865, commissioners appointed under the Tauranga District Lands Act were made responsible for officially deciding who owned Nga Potiki's land. In 1877 and 1878 Crown grants were issued for the Mangatawa (1,295 acres) and Papamoa (12,753 acres) blocks in favour oflisted Nga Potiki individuals. The issue of Crown grants took away Nga Potiki's customary tenure over these lands.

Between 1886 and 1893 the Crown purchased individual shares in the Papamoa block representing a total of 7,910 acres ofland The Crown paid a total of £3,263, at a rate of 8 shillings 3 pence per acre. In 1893 the Papamoa block was partitioned by the Native Land Court: Papamoa 1 (7,910 acres) was awarded to the Crown; Papamoa 2 (4,265 acres) was awarded to the non-sellers; and Papamoa 3 (480 acres) was awarded to four minors as part of the sale conditions requested by one owner. The Crown purchase represented the acquisition of 57 percent ofNga Potiki's land at that time.

In 1908 the Stout-Ngata commission recommended that the Mangatawa and Papamoa blocks should be reserved for Maori settlement. This resulted in the blocks being administered by the Waiariki District Maori Land Board The aim of the Board was supposed to be to arrange for the land to be leased to one of the owners, and thus used for the benefit of the local people. However, exemptions were readily granted, and 25 leases were made to Pakeha, as opposed to 4 leases to Maori.

4 Since 1896 the Papamoa and Mangatawa blocks have been subdivided many times and a large proportion of the land has been sold. In 1886 Nga Potiki possessed 13,892 acres of land in the Mangatawa and Papamoa blocks. Today only 2,644 acres are still Maori freehold land. This represents only 19 percent of the land they had in 1886. As a result of Crown land purchase, private sales and public works acquisitions Nga Potiki have lost over 80 percent of the land which was awarded to them after the raupatu.

When the Papamoa 2 block was partitioned in 1896 38 acres along the sand dunes were left as a burial ground. In 1962 Nga Potiki applied to the Maori Land Court for the area to be legally gazetted as a burial ground reserve. This would have made the land inalienable and not liable for rates. However, the court refused to reserve the land on the grounds that the area was 'far too large' for a burial reserve. This was despite there being no restrictions on size in legislation. Instead of granting Nga Potiki's request to protect their land the court created a section 438 trust to protect

/ .~ and maintain the graves and lease the land. In 1972 the trust was given the power to \ ,; sell off part of the block in order to meet rates charges. An area of only one acre was reserved as a burial ground to serve as a repository for exposed bones. Circumstances meant that none of the land was sold and today the current trustees wish the whole area to be given the legal status and protection of a wahi tapu reserve. This is in accordance with the stated wishes ofNga Potiki since 1896.

Part Two of this report examines what a Nga Potiki elder has described as the 'lethal weapon' of the Public Works Act. Consultation requirements under the Act were less stringent for unregistered Maori freehold land. As a result there was very little consultation with Nga Potiki about public works takings. The procedure for settling compensation often resulted in delays of several years before compensation was paid, and the amount of compensation was often much less than the amount requested by the owners. Valuation criteria did not take into account the special significance of the land to Nga Potiki.

5 The sacred site, Maungamana, an ancient burial ground, was the site of extensive quarrying and is the location of a large water reservoir tank. The quarry was first acquired under the Public Works Act in 1946, after which, when the Ministry of Works wanted to expand the quarry, the Mangatawa-Papamoa Incorporation insisted on only leasing the land. In 1963 a 33 year lease was signed which, while protecting their ownership, still resulted in the physical removal of their maunga, and desecration of their ancestral burial ground. The reservoir was built in 1973 and the council then started to negotiate to buy the site. However, the Mangatawa-Papamoa Incorporation refused, and after being threatened with compulsory acquisition under the Public Works Act negotiated a 999 year lease for the site. Although the site is leased, full compensation was paid for the land which has effectively been lost from Nga Potiki, as well as the visual impact ofthe reservoir.

In 1966 the council established a rubbish dump on Papamoa A12 and paid a deposit. The land was formally acquired in 1967 when 32 acres ofPapamoa A12 was acquired under the Public Works Act. In 1968 the council paid the Mangatawa-Papamoa ..,;""",;;,. Incorporation a total compensation of $2,545, plus interest, for the 32 acres. In 1984 \ ) the council negotiated with the owners ofPapamoa 2 Section 10A2C5 to purchase ten acres to expand the rubbish dump. The purchase price was $190,000 although there was later a dispute as to how much interest should be paid.

In the late 1960s the Mount Maunganui Borough Council decided on reclaiming 75 acres of mudflats adjacent to the Papamoa block as a site for sewerage treatment ponds. The choice of site was determined by its cost and proximity to the dump. It was envisaged that the retaining wall for the pond would have a dual purposes as a deterrent for potential waste escaping from the dump. Nine groups were opposed to the site (including five government departments), largely on the grounds of the impact it would have on the environment. The Mangatawa-Papamoa Incorporation and Tauranga Maori Executive argued that the proposed site had strong cultural and historical significance for Nga Potiki. They also argued that the pond would have an adverse impact economically, as well as potentially causing a health risk to those living nearby or gathering shellfish. They also said that alternative sites and the views

6 of those opposed to the council's plan had been 'glossed over.' The Commission for the Environment undertook an impact report that accepted submissions from the various interest group and government departs. Twelve of these fourteen submissions opposed the site. The commission found in favour of the objectors. Despite this widespread opposition Parliament passed the Mount Maunganui Borough Reclaiming and Empowering Act 1975, accepting the council's argument that high land prices in the area made reclamation the most suitable option.

Other works on Nga Potiki land include a telecommunications transmitter on the summit of Kopukairoa. The site was sold by the individual owner to the Crown. A natural gas pipeline cuts under many Mangatawa and Papamoa blocks. Compensation was negotiated between the Maori Trustee (on behalf of the owners) and Natural Gas, and the main point of dispute was over the way that restrictions on planting over the pipeline impacted on the potential use of the land for horticultural purposes. In 1984 a compromise was reached over compensation and the restrictions on planting were relaxed. In 1913 and 1915 152 acres were taken from the Mangatawa and Papamoa

~ blocks for the railway line and associated purposes. Compensation was awarded by the Native Land Court. There was a wide gap between the amount offered by the Crown and the amount claimed by the owners. The court generally made awards in line with the values submitted by the Crown. In 1941 approximately 139 acres of Papamoa 2 Section 7A was acquired by the Crown for defence purposes, although since then the block was only used for grazing. In 1989 descendants of the owners were able to buy back the block on the grounds that it was not being used for the purposes for which it had been taken. The rifle range case illustrates that it was common practise for the Valuation Department and the Public Works Department to seek a low compensation award to Maori.

The following table outlines the total Nga Potiki land used for public works for the benefit of the Tauranga region:

7 Purpose Area Taken Quarry 20a lr 11.6p Reservoir 2a lr 26.0p Rubbish Dump 91a 3r 01.0p Telecommunications Tower 6a Or 39.7p Railway 152a 3r 07.4p School Sa Or O.OOp Rifle rangel 139a 2r IS.0p Total 421a Or 23.7p

1 The rifle range taking has now been returned to Nga Potiki ownership but it has been included in the table because Nga Potiki were deprived of its use for more than fifty years.

S Part One: Alienation and Individualisation

1.1 Raupatu and Removal of Customary Tenure

Before 1865 Tauranga was a Maori district where, apart from a small portion sold to the Church Missionary Society, the land was controlled by the iwi and hapu of the district in the same customary manner that had been followed since their arrival in the Bay of Plenty. Nga Potiki lived along the Papamoa coast and around the eastern arm of the Rangataua Harbour and into the hills behind, and occupied and controlled their land in accordance with tikanga Maori. This report does not cover the traditional history of Nga Potiki, and kaumatua will present evidence to the Tribunal relating to their traditional rohe and customary land ownership.

This centuries old system of land tenure was dramatically curtailed in the 1860s when conflict occurred between the Crown and Tauranga Maori. Following the battles of Pukehinahina and Te Ranga the entire Tauranga district was confiscated by the Crown under the New Zealand Settlements Act. l The boundary of the confiscation included Nga Potiki's traditional lands with the eastern boundary being the Wairakei Stream, the traditional boundary ofNga Potiki's land. Subsequent meetings were held between Crown officials and some Tauranga chiefs, which resulted in Governor Grey declaring that 50,000 acres would be retained by the Crown and the rest of the land would be returned to its Maori owners. These issues have been discussed in other research, and readers requiring further information on this sequence of events, and their consequences, should consult 'Ngaiterangi and the Crown' by Richard Kay and Heather Bassett. 2

Under the Tauranga District Lands Act 1867 special commissioners were appointed to investigate the ownership of the land to be returned. The commissioners could then issue Crown grants for defined blocks of land to those people who were found to be

1 New Zealand Gazette, 1865, p 187 2 Richard Kay & Heather Bassett, 'Ngaiterangi and the Crown', Waitangi Tribunal, June 1998, [Wai 215 Cl]

9 entitled. Although most of the records of the hearings held by the commissioners are missing, it appears that they operated in a similar way to the Native Land Court. However, unlike the Native Land Court, the traditional owners of the land did not have the choice of whether or not to place their lands before the court. Instead, they were forced to appear before the commissioners' court in order to protect their traditional rights.

The result for Nga Potiki was that although their traditional lands were outside the 50,000 acre confiscated block, the ownership of their land was now to be determined by Pakeha commissioners who would create legal blocks and vest the ownership of those blocks in listed individuals. Nga Potiki's ·land may not have been taken away from them in the raupatu, but the process of confiscation and the return of land took away Nga Potiki's customary ownership and control over their lands and replaced it with a British common law system of land ownership which emphasised the rights of individuals over the collective. Section 1.3 of this report gives some examples of the way that the operation of the Maori freehold land system and the Native Land Court ...... ,;;;,. led to increasing individualisation and alienation ofNga Potiki land. \, J

There are two main blocks of land which are identified as having been awarded by the commissioners to Nga Potiki. The Papamoa block and the Mangatawa block. Certain individual members of Nga Potiki were also included in the ownership lists of other blocks such as Otawa, but this report focuses on the two blocks which are identified as having· been awarded to Nga Potiki. The minutes of the hearings held by the commissioners are missing, so there is little information on the claims made to Papamoa and Mangatawa, and the proceedings of the hearing. However, evidence given at later Native Land Court hearings does provide some information on how the matter proceeded. This evidence suggests that after the boundaries of the land to be awarded to Nga Potiki were decided, the list of owners was largely determined by a committee of Nga Potiki, whose submissions were confirmed by the commissioners. According to Pake Te Rakaherea the case was first heard by commissioner Brabant, and then commissioners Clarke and Wilson dealt with the lists of owners.3

3 TaurangaMB 5, fol117, 28 October 1901; NgaPotiki typed transcript ofTMB, p 38

10 The hearings for the block took place around 1877 and 1878, and the area covered by the Mangatawa and Papamoa blocks was originally brought before the commissioners as one block, referred to as Papamoa. This apparently took place as part of the investigation into the ownership of the wider Rangataua area. Ruku Pakuru who conducted the case for Ngati Pukenga before the commissioners later recalled: 'At same time he [Clarke] heard the. Rangataua Block - He divided it between N'He,

N'Pukenga & Ngapotiki. ,4 According to Pake Te Rakaherea the boundary between Nga Potiki and Ngati He was the Waitao Stream - the current boundary between the Papamoa and Ngapeke blocks.5 Ngati He had gifted the Ngapeke block to Ngati Pukenga.

In 1901 Matene Ropa told the Native Land Court that Nga Potiki's case before the commissioners was conducted by Rota Wharehuia, Eru Tamapahore, and Keremeta.6 After it had been decided that the Papamoa area was to be awarded to Nga Potiki, the elders then decided to cut off the Mangatawa block as a reserve for Nga Potiki: 'His ...... ;;,. reason being that he knew if it was left in one block, the whole would be sold'. 7 '< )' According to Pake Te Rakaherea, it was himself, Awanui Pine, Eru Tamapahore, Keremetea and Wi Paroa that cut off the Mangatawa block as a reserve, after the wider Papamoa block had been awarded to Nga Potiki by Brabant. 8 It appears that when it came to deciding the owners of each block the decision was made that the Mangatawa block was purely for Nga Potiki, while people from other hapu who had links to the area, either through occupation or marriage, were included in the ownership list for Papamoa. In 1896 Hirama Mokopapaki told the court that:

Nga Mangatawa was a strictly Ngapotiki Reserve - Papamoa land is also Ngapotiki land, but connections are admitted there not with Ngamangatawa.9

4 Judge Johnson's Minute Book 6, fo151, 27 September 1897 S Tauranga MB 5, fo1142, 30 October 1901; Nga Potiki typed transcript ofTMB, p 52. The witness's reference to the Rangataua block refers to the Rangataua area before it was divided into the Kaitemako, Ngapeke, Papamoa and Mangatawa blocks. 6 Tauranga MB 5, fo194, 24 October 1901; Nga Potiki typed transcript ofTMB, p 27 7 ibid 8 Tauranga MB 5, fo1121, 28 October 1901; Nga Potiki typed transcript ofTMB, p 41 9 Judge Wtlson's MB 9, fot 72, 12 June 1896

11 As a result of the commissioners' investigations a certificate was issued for the 1,295 acre Mangatawa block in August 1878.10 The Crown grant was issued to 102 owners.ll The certificate for the 12,763 acre Papamoa block was issued in june 1880. 12 The Crown grant was issued to 60 owners.13

As stated above the eastern boundary of the area confiscated under the New Zealand Settlements Act matched the boundary of Nga Potiki at Wairakei. The boundary of the Papamoa block runs inland along the same line as the confiscated block. Between the Papamoa and Otawa Waitaha blocks lie the Hikutawatawa (1,092 acres) and Karamuramu (300 acres) blocks. These two blocks are enclosed on three sides by the Papamoa block, and appear to have been cut out·from Papamoa. Nga Potiki argue that the blocks lie within Nga Potiki's traditional rohe, but were awarded to outsiders by the Tauranga commissioners. 14 The ownership of both blocks was investigated by commissioner Wilson, but no records remain of the hearing. Later Native Land Court minutes for the blocks do not reveal any information about how the ownership was decided. The certificates for the blocks were issued in the same week as that for the

~ Papamoa block. In the absence of information about the ownership investigation no )' conclusions can be drawn by the authors about whether the land should have been awarded to Nga Potiki. Members ofNga Potiki may be able to use their knowledge of the whakapapa to give evidence on the origins of the owners of the Hikutawatawa and Karamuramu blocks.

1.2 Papamoa 1

In 1886 the Crown began negotiating to purchase the Papamoa block. When commissioner Brabant reported on the state of the Tauranga lands in 1886, he noted

that the Papamoa block was under purchase by the government. IS The method used by

10 AJHR, 1886, G-I0, P 2 11 Evelyn Stokes, 'The Allocation of Reserves for Maori in the Tauranga Confiscated Lands', University ofWaikato, 1997, Volume 2, p 43 12 AJHR, 1886, G-lO, P 2 13 Evelyn Stokes, 'The Allocation of Reserves for Maori in the Tauranga Confiscated Lands', University ofWaikato, 1997, Volume 2, p 65 14 Nga Potiki amended statement of claim, draft copy, May 1998 IS AJHR, 1886, G-I0, P 5

12 the Crown to purchase Maori land was to approach the individuals listed as owners and try to purchase their share of the block. Thus, by vesting the Papamoa blocks in listed individuals Nga Potiki as a whole were not consulted about selling the block and allowed to make a decision in accordance with their own tikanga. Instead the Crown, over a period of years, convinced individual owners to sell and waited until either all the shares were acquired, or sufficient shares had been acquired to seek to have the interests bought by the Crown partitioned out to become Crown land. This method also had the effect that once some owners had agreed to sell it became easier to convince other owners to sell, and the Crown paid local Maori to help convince owners to sell.

In 1886 only £80 had been paid for shares in the Papamoa block, totalling an estimated share of 245 acres. 16 By the end of 1887 the Crown had paid out £705 for

14 shares in the block, with a further 90 unsold. 17 However, there is some evidence to suggest that despite Brabant's report, arrangements were being made to purchase some of the Papamoa block at the time the land was before the commissioners court in the 1870s. In 1901 Te Hirata told the Native Land Court that: 'When they were selling the land to the Government, they cut off this Mangatawa piece.' 18 Other witnesses also said that the reason Mangatawa was created as a reserve for Nga Potiki was to protect it from sale. It therefore appears that the Crown was discussing a possible sale of the Papamoa block in the late 1870s even if no formal transaction took place until after the title to the block was issued.

Unfortunately the correspondence records of the Native Land Purchase officers involved in acquiring Papamoa 1 are no longer in existence. The only remaining record of the various transactions made between Crown land purchase officers and the owners of the Papamoa block are entries made in register books which summarised incoming correspondence. While the summaries remain, the actual letters themselves do not. This means that while the deed of sale is a record of the transaction, there is no information on the background to the various transactions

16 AJHR, 1886, C-S, P 5 17 AJHR, 1888, G-2, P 4

13 made between Crown land purchase officers and individual owners of the Papamoa block.

The following table, compiled by Rachael Willan at the Waitangi Tribunal, details the register references to the Papamoa block purchase. Attempts are still being made at National Archives in Wellington to track down further information, but it is unlikely that a departmental file will be located.

Reference Date of letter Writer Comment 89/191 25 June 1889 Wi Pauete Whareaitu Applying for shares of (writing from minors in Papamoa Whakarewarewa) block. 89/233 3 July 1889 RSBush Suggesting that he should be authorised to I pay Hone Makarauri 110/- and 5/- for signatures obtained by him in Papamoa and Otawa respectively. 90/62 5 March 1890 TeMaihara Asks why £40 was paid for some shares in Papamoa and £50 in I others. 90/124 23 April 1890 Minister of Lands Chairman of county council recommends the employment of John McLeod [Hone Makarauri] in negotiating the purchase ofPapamoa. 90/240 16 July 1890 M P Te Wharuatiu I Urging purchase of I I shares of children I admitted into the title of Papamoa Block. 91120 Paki Pini Pointing out that Hone :Makarauri's daughter whose interest is being sold is an infant. 91121 26 January 1891 R SBush Judge Wilson says that it is against the law to sell minors shares even I I I I I though a:Q:Qroved.

18 Tauranga MB 5, foll00, 25 October 1901; Nga Potiki typed transcript, TMB p 31

14 Reference Date of letter Writer Comment 91199 2 April 1891 Hurini Ngahowhatu Has been appointed successor to Ihimena Hernia in Papamoa I Block and has signed the deed of sale to her Majesty. I Consideration of £40 to make good the amount formerly obtained by him through fraud. 91/129 31 May 1891 Hugh Curtly, Crown Returning Papamoa Solicitor deed with the approval I of the Chief Justice to I I sale of shares of I I mmors. 911134 30 April 1891 Bush Bank receipt for £49.13.0 recovered from Pine Awanui on account of amount formerly obtained by I him one account of Papamoa Block I I through conspiracy and fraud. 911225 30 July 1891 Bush Mere Parata is the same person as Mere I Tikawa. [Relates to subdivision of Papamoa number 2]. 93/81 27 April 1891 I Thompson £17 from Pine Aranui for fraud 94/14 22 Jan 1894 Registrar NLC Order vesting Papamoa No.1 7910 acres in her Majesty.

Although the lack of sources means that· no conclusions can be drawn about whether the Crown breached its obligations to Nga Potiki when purchasing the Papamoa block, some points can be made from the above table: • the Crown paid one owner, Hone Makarauri, to assist it in convincing other

owners to sell~ • some of the shares sold belonged to minors, which was in breach of the law, but a

special exemption was granted~

15 • there was some confusion over the price being paid; • purchases were made of the shares of deceased owners without their successors having been formally appointed by the court which meant the Crown may not necessarily have been buying from the correct successor; and • there was an allegation of fraud against Pine Awanui, but the amount was repaid.

In 1888 the Native Land Court heard an application for the partition of the Papamoa block by Tiria and others. Hone Makarauri told the court that the people who had applied for the partition were not present and requested an adjournment. The court responded by stating that the case had already been adjourned a number of times. The adjournment was opposed by Captain Mair on behalf of the Crown who said further delay would prejudice the Crown which had already purchased a number of interests in land in the area. One of the owners present asked whether the partition was to cut off a piece of land for sale, and Ern Tamapahore expressed the opinion that the land should be subdivided before any was sold. The court said that 'as Capt Mair applies and the only applicant here does not object that the case should be put off to another

/' \ case. The court then dismissed the current application for partition. ' 19 -\ }

Following the March 1888 case, new applications were made to the court in accordance with the judge's suggestion. In October 1888 a request for a certificate of title defining the Crown's interest in the Papamoa block was made to the Native Land Court?O And a new partition application was made by Hipirini Te Whetu and Tiria te Uruiria. 21 In 1889 an application for partition was also made by the Asher whanau.22 Both partitions were later dismissed in October 1893.

By 1891, while the Crown had managed to purchase nearly half of the block, it seems to have realised that some owners were not going to sell. A return for 1891 notes that the 'shares of dissentients awaiting partition,?3 A further application to partition the Crown's interest in Papamoa was made to the court in 189l. However, when it came

19 Tauranga MB 3, fols 112-113, 17 March 1888; Judge Brabant's MB 3, fol 51, 17 March 1888 20 Application for definition of Crown interest, 16 October 1888, BACS A622120 1f, NAA 21 Application for partition, Hipirini Te Whetu and others, 26 March 1888, BACS A6221201f, NAA 22 Application for partition, Te Rongakahuia and others, IS October 1889, BACS A6221201f, NAA

16 to the hearing the court was told by Bush that because a land transfer title certificate had not been issued the case was unable to proceed. The judge infonned the owners that he had been infonned by the chief judge that the Native Land Court 'could not deal with this land (it having been heard by Commissioners Court) until a Land

Transfer Certificate had been issued. ,24 Asher told the court that he had always supported the government but:

this case has been repeatedly adjourned - a Court sat here March 1888 and the application for partition then and opposed by GOY: does the GOY: wish with this delay to swallow up all the land with taxes - Why when Gazette was issued did not the GOY: know that this certificate had not issued - or was necessary that it must be issued.25

In April 1892 a further request for a certificate of title defining the Crown's interest in the Papamoa block was made to the Native Land COurt?6 The case was eventually heard in 1893 and Asher told the court that they had been waiting some time for the block to be subdivided.27 However, Asher was referring to his own partition application, which would mean a lengthy hearing as the various groups of owners discussed how the block should be divided. The court said it could not hold such a hearing at that time because of its schedule, and it was decided to partition the Crown's share in the block and allow the owners to arrange a partition of the remainder of the block at a later date. 28

Bush, the land purchase officer, applied to have the interests of the Crown in the block defined, producing for the court a deed of conveyance that showed the Crown had purchased 69 shares out of the 104 identified.29 The Crown had paid a total of £3,263, at a rate of 8 shillings 3 pence per acre. 30 According to Bush these shares represented 8,390 acres of the block which Bush claimed for the Crown, the remainder of the land being 4,265 acres belonged to the non~selling owners in the block. Bush proposed that the non-sellers portion of the block be cut off at the north

23 AJHR, 1891, G-I0, P 5 24 Tauranga MB 4, fols 263-264,29 April 1891 2S ibid 26 Application for definition of Crown interest, 21 April 1892, BACS A622/201f, NAA 27 Maketu MB 8, fol100, 12 May 1893 28 Maketu MB 8, fol100, 12 May 1893 29 see Crown land purchase deed 1821, LINZ, Hamilton 30 AJHR, 1894, G-3, P 2

17 west part of the block. After some discussion out of court, Bush established the boundaries with the non-sellers and said there were no objections. 31

The court met again on 13 May and Bush declared that since the previous

adjournment he had purchased a further five shares on behalf of the Crown. 32 Following a number of succession orders, Bush requested that the court cut out of the land to be awarded to the Crown an area of 480 acres for the children of Ngatai Te Hirata. Te Hirata had sold his share to the Crown on the condition that his four children all gained equal shares in the 480 acre parcel of land. 33 The part of the . Papamoa block awarded to the Crown was to be known as Papamoa I and the part

awarded to the non-sellers as Papamoa 2.34 Papamoa 3 was awarded to Te Hirata's children. The Papamoa 1 block was declared Crown land in February 1894.35

After the purchase had been confirmed by the court a discrepancy was found in the amount of land awarded to the Crown. Two minors had inherited one and a half shares in the Papamoa block. The shares had been administered by a trustee who sold .;;;....;;. a half share to the Crown.36 However, when the block was partitioned the Crown was awarded the full one and a half shares, and the names of the two minors were not included in the list of owners ofPapamoa 2. 37 When investigating the matter Sheridan from the Native Department said that he recalled that the land purchase officer 'distinctly advised me that the trustee declined to part with it [one share]; otherwise it

would have been paid for as in all other similar cases. ,38 It seems that the way the sale deed was written did not make it clear that the trustee had only sold a half share, and that was why the court awarded the full one and a half shares to the Crown.

The one share was equivalent to 120 acres in land, and at the price of 8 shillings 3 pence per acre was worth over £49. Once the Crown realised that a mistake had been

31 Maketu MB 8, fol 101, 12 May 1893 32 Maketu MB 8, fol102, 13 May 1893 33 Maketu MB 8, fo1104, 13 May 1893 34 Maketu MB 8, fo1105, 13 May 1893 35 New Zealand Gazette, 1892, p 210 36 Sheridan to Scannell,10 December 1894, BACS A622/201f, NAA 37 Scannell to Sheridan, 3 January 1895, BACS A622/201f, NAA 38 Sheridan to Scannell, 15 January 1895, BACS A622/201f, NAA

18 made the proposed solution was to include the names of the two minors in the residue order for Papamoa 2. However, it was also necessary to adjust the amount of land awarded to the Crown and the non-sellers, but because the Crown still hoped to purchase more interests in Papamoa 2 the areas of land were not adjusted at that time. Instead Sheridan recommended to Judge Scannell that while the names of the minors should be included in Papamoa 2, the areas of land should remain as they were until a later date when the Crown sought a further partition order, at which time the correct proportions could be included. 39 Scannell agreed. saying that the list of owners for

Papamoa 2 would be amended and 'the matter can be arranged as you suggest'. 40 The Crown did not purchase any further interests in Papamoa nor seek a later partition order. There is also nothing on the title records to indicate that the size of either Papamoa 1 or Papamoa 2 was altered, and it may be that the owner was persuaded to accept payment for the shares the Crown had assumed ownership of.

1.3 Papamoa 2

There were 49 people identified as owners or 'non-sellers' in Papamoa 2 which was 4~265 acres in size and consisted of 34 shares.41 In 1896 the Native Land Court heard a partition application for Papamoa 2 from David Asher as trustee for his six children and his wife's uncle.42 Asher wanted a partition of 736 acres made for these seven people.43 The partition was objected to by Hiriama Mokopapaki who appeared on behalf of his wife, Rawinia Toro, an owner in the block. He objected:

because this land is in two blocks one block is good land the other is inferior land. Mr Asher is claiming his partition on the good land only - He ought not to be exempted from the inferior land, which is swamp land - but should take his fair share of swamp with the rest of us - I also ask that a Reserve be made for a cemetery of 20 acres at the sea beach for all our tribe are buried there.44

Mokopapaki was distinguishing between the 'inferior' land on the coast, which was very swampy at the time, and the 'good' land on the other side of Mangatawa which

39 Sheridan to Scannell, 15 January 1895, BACS A622/201f, NAA 40 Scannell to Sheridan, 6 February 1895, BACS A622/201f, NAA 41 Maketu MB 8, fols 113-114, 13 May 1893 42 Judge Wilson's MB 9, fo168, 12 June 1896 43 Judge Wilson's MB 9, fo169, 12 June 1896

19 was more suitable for farming. Ironically, the coastal land, once the swamp was drained, has become far more valuable in the last 30 years for its residential attractions.

Mokopapaki also requested the court to set aside a burial reserve: 'the cemetery reserve should be 5 chains wide running lengthwise along the shore,.45 He concluded by reiterating that the only objection to Asher's claim was that Asher had only taken good quality land while the 'bad part of the land on the beach block is all alike in

quality. ,46

The case was adjourned to give the court the opportunity to view the land. The court then divided the land so that each group of owners received a section in the good land and a section in the swampy land. This meant that although eleven divisions were created, they were vested in six groups of owners. The court ordered that a partition of the block be made as follows, and the minutes do not record whether or not this 47 was done in accordance with the agreement of the wishes of the owners:

~ \" )' Name of Block Owners Area section 1 10 720 acres I i section 2 8 575 acres I section 3 6 432 acres section 4 4 271 acres section 5 4 472 acres section 6 5 130 acres section 7 5 460 acres section 8 4 100 acres section 9 6 276 acres section 10 8 369 acres section 11 10 460 acres

44 Judge Wdson's MB 9, fol 71, 12 June 1896 45 ibid 46 Judge Wdson's MB 9, fol 72, 12 June 1896 47 Judge Wilson'sMB 9, fols 81-85,15 June 1896

20 In 1908 Papamoa 2 was described as occupied by the Papamoa settlement and consisted of dairy fanns, milking 400 cows with a creamery on the block, and cultivations of maize, wheat, and oats.48

1.3(a) The Legal Process of Alienation In 1908 the status ofPapamoa 2 and Mangatawa as land reserved for Nga Potiki was reaffinned as a result of the investigation of the Royal Commission on Native Lands and Native Land Tenure, known as the Stout-Ngata Commission.49 The government's aim for the commission was that land owned by Maori, which was judged to be surplus to their requirements, or 'idle', would be identified and.then made available for Pakeha settlement, either through sale or lease. However, the commission also identified which land was needed for Maori settlement and occupation and should not be alienated. In the case of the Tauranga lands the commission did not recommend that any ofNga Potiki's lands were surplus to requirements, and recommended that all the Mangatawa and Papamoa blocks should be reserved for Maori occupation.

The Native Land Settlement Act 1907 was passed to provide for the administration of the blocks reported on by the Royal Commission. Following the commission's recommendations the Papamoa 2 and Mangatawa blocks were gazetted as subject to Part II of the Native Land Settlement Act 1907.50 That Part of the Act was then consolidated into Part XVI of the Native Land Act 1909, and then Part XVI of the Native Land Act 1931. The Part contained provisions giving the Maori Land Board authority to lease the land to a Maori owner, in accordance with the stated objective of developing land for Maori. The provision for the administration of the land was made in section 366 of the Native Land Act 1931, which declared the Maori Land Board:

shall be deemed to be the agent of the owners for the purpose of granting leases of that land under the provisions of this Part of this Act, and may without further

48 AJHR, 1908, G-IK, P 4 49 More information on the Stout-Ngata commission can be found in Richard Kay & Heather Bassett, 'Case Studies of Crown Administration in Welcome Bay: A Report on the Papakanui Trust Claim', April 1997, [Wai 215, ASl], pp 5-7. 50 New Zealand Gazette, 1909, pp 3245-3247

21 authority than this Act lease the land or any part thereof accordingly.51 It should be noted that this section gave the board blanket authority to decide to lease the land, without any requirement to consult with the owners. The rental received by the board was to be used to pay for administration and outstanding charges on the block, before the remainder was distributed to the owners. S2

Although the Act contained detailed provisions for the leasing of the blocks it is more relevant to examine how the restrictions imposed by Part XVI could be avoided. In the following analysis of the various Papamoa blocks, only a few were leased to Maori. In most cases the owners applied to have their land exempted from Part XVI so that it could be leased or sold to a European. .

To exempt land the gazette notice had to be revoked by the Governor-General, or the Native .Land Court could exempt land from the operation of Part XVI. The relevant sections do not specify under what circumstances such exemptions could be made. S3 However, section 364 allowed for the land to be alienated with the consent of the Native Minister, following a recommendation of the Maori Land Board. In this case the other requirements of the Native Land Act regarding the confirmation of alienations had to be followed.

This meant that, as well as being exempted from Part XVI, the sale or lease had to be confirmed by the Maori Land Board. Certain conditions relating to equity had to be met before confrrmation was granted, and the most important one was that the board had to be satisfied:

That no Native will by reason of the alienation become landless within the meaning of this Act, unless the land which is the subject of alienation is not, having regard to all the circumstances, likely to be a material means of support to such Native, or that the Native alienating is qualified to pursue some avocation, trade, or profession, or is otherwise sufficiently provided with a means of livelihood. 54 This meant that as long as the land was considered unsuitable for producing an income for the vendor, or if the vendor had other means of support, then the block

51 Native Land Act 1931, section 366 52 Native Land Act 1931, section 378 S3 Native Land Act 1931, sections 361,363 S4 Native Land Act 1931, section 273

22 could be sold, even if it left the vendor landless. This section only gave consideration to the needs and rights of the individual Maori vendor, and there was no requirement to ensure that Nga Potiki as a whole had sufficient land for their support.

During the period covered by this report, the administration of Part XVI lands was changed. The Maori Land Amendment Act 1952 abolished Maori Land Boards, and divided their functions between the Maori Land Court and the Maori Trustee. As a result leasing of the blocks was now the responsibility of the Maori Trustee, which assumed the role of agent of the owners. The Maori Land Court was given the role of confinning alienations made by the owners.

Although Papamoa 2 and Mangatawa were supposedly reserved for Maori occupation under Part XVI of the Native Land Act 1909, in reality the Act put in place a process to allow the land to be leased or sold to Pakeha. The process required a statement that the Maori vendors did not need the land for their own support, and alienations were usually confirmed in those circumstances if the price was considered adequate. The - '\ Crown's policy of defining Maori land ownership failed to recognise the difference between land owned by Nga Potiki as a whole, and land owned by every individual member of Nga Potiki. By applying a legal system of ownership which vested shares of the land in each individual, the ownership rights of the collective iwi were undennined.

1.3(b) Development Scheme The general Crown policy relating to the schemes to develop Maori land has been examined by Tony Nightingale in his report 'Tauranga Land Development Schemes 1929-1955,.55 .. Readers wanting more information about the policy and its implementation in Tauranga should consult Nightingale's report. The proposals for the Maori Affairs Department to finance and oversee the clearing and stocking of large areas of Maori land grew out of concern about noxious weeds problems on Maori land, and unpaid rates. Many of these problems had grown out of the

55 Tony Nightingale, 'Tauranga Land Development Schemes 1929-1955', November 1996, [Wai 215 A31]

23 difficulties Maori faced in raising finance to develop their lands themselves. Under the development scheme, the Crown advanced the necessary money, and paid for a supervisor to oversee the development planning and work. All the money advanced became a charge on the land, which had to be repaid out of the scheme's profits before the land could be handed back to the owners for Maori occupation.

In February 1937 the local member of parliament, C. Burnett, attended a meeting at Papamoa to discuss a development scheme for the area. The meeting was attended by people from the Mangatawa, Ngapeke and Papamoa blocks. Although it was at this meeting that the department sought the owners' consent, the file does not contain formal minutes of the meeting. The only account available of just what the owners were told about the scheme is a later memorandum written by the Native Land Court registrar who attended the meeting. Without the full minutes it is not possible to draw any firm conclusions as to what undertakings were given to Nga Potiki, and whether the Crown failed to meet those undertakings.

It would appear that there was a great deal of reluctance amongst those present to have their land included in the scheme:

There is still a feeling with these people that if the land is handed over to a scheme that they virtually handed it over for all time. However it was explained that the land had to be gazetted in the Scheme before land development funds could be expended and that as soon as charges against [ sic] were repaid that they could again have the land excluded from the scheme if they so desired. They were averse to having expenditure charged against their lands and seemed to prefer that work undertaken should be limited to assistance from unemployment funds principally in the way of clearing noxious weeds and drainage. S6 This quote shows that Ngapotiki and Ngati Pukenga were unwilling to hand over control of their land to a Crown agency, and feared that it would mean they would lose control over it themselves. However, it was made clear to the owners at the time that if they wanted access to finance to develop their land then that would mean surrendering control.

Their fears about debts being charged to the block were apparently allayed by Burnett telling them that the labour costs would be covered:

56 Registrar to Under Secretary, 3 March 1937, AAMK 869/829b, NA, Wellington

24 Mr Burnett M.P. has done much to get the people interested in the scheme and it was mainly through his telling the people that all labour would be free and fully subsidised from Unemployment Funds that they were willing to let some of their lands be brought under the scheme. 57

Nga Potiki were presented with no other option if they wanted to improve the state of their lands but to agree to placing some Mangatawa and Papamoa blocks in a development scheme. The outcome of the meeting was that the owners agreed to 6 Mangatawa and 3 Papamoa blocks being placed under the administration of the Board of Maori Affairs. The following blocks were proclaimed as part of the Tauranga development scheme in 1937 and 1938:58 Part Mangatawa 1 Part Mangatawa 2 Mangatawa3 Mangatawa 4C Mangatawa 4D Part Mangatawa 4A Part Mangatawa 4F Part Papamoa 2 Section 7A Part Papamoa 2 Section 8 Part Papamoa 2 Section 9B. Mangatawa 4E was later included in the scheme as a result of the need to control a noxious weeds problem.

According to Nightingale the Mangatawa scheme was the most successful development scheme in Tauranga, and started returning a profit in 1945. By 1952 it was decided that the land had been developed sufficiently to establish six diary farms to be run by selected owners. Nightingale has shown how there was conflict between the owners and the Board of Maori Affairs over who should be occupying the farms. 59 The farms were leased to the occupiers for 30 years. In 1956 it was agreed that the owners regain control over the scheme by creating an Incorporation to administer the blocks. This later developed into the current Mangatawa Papamoa Incorporation, when eleven blocks were amalgamated into the Mangatawa Papamoa block. 60

57 Registrar to Under Secretary, 23 April 1937, AAMK 869/829b, NA, Wellington 58 Nightingale, p 44 59 Nightingale, pp 45-46 60 Nightingale, p 48

25 1.3( c) Changing the Legal Status of Nga Potiki Land The Maori Affairs Amendment Act 1967 impacted on Nga Potiki's ownership of Papamoa 2 and Mangatawa through its provisions to change the status of Maori land with less than four owners. This was the natural conclusion of individualisation, and demonstrates that individualisation was designed to end Maori tribal ownership. If a block had less than four owners then the registrar of the Maori Land Court could declare that the land no longer had the status of Maori land.61 This was an administrative procedure that did not require confirmation by a judge, or an application by the owners. The court title records were to be checked and blocks were to have their status automatically changed. The result was that these blocks became general or European land, and therefore no longer subject to the laws governing the ownership, administration and alienation of Maori land. General land was not under the jurisdiction of the Maori Land Court.

While there may have been some advantages to a Maori owning general land as opposed to Maori land (easier access to finance for example), the policy failed to ~, .• ~ recognise the turangawaewae aspect of Maori land ownership, and made no provision for even consulting with Maori about whether they wished their land to be 'Europeanised'. The policy was widely unpopular with Maori and was repealed in 1973.

However, while the legislation was in force 18 sections of the Mangatawa block (totalling 59 acres), and 42 sections ofthePapamoa block (totalling 585 acres) were declared to have the status of European land. Many, but not all, of these were small sections of 1 or 2 roods which were presumably created as house sites. However blocks as large as 99 acres were 'Europeanised'. The result is that today none of those . sections are administered by the Maori Land Court, and the court's records do not show whether they remain in Maori ownership, or if they have been sold.

61 Maori Affairs Amendment Act 1967, section 6

26 1.3(d) Block History of Papamoa 2 The following flow charts are designed to demonstrate how each partition of the Nga Potiki blocks have been subdivided, and to show which divisions of the block are still Maori Freehold land in 1999, as indicated by bold type. Blocks shown in bold and italic type have been included in the Mangatawa-Papamoa Incorporation and so have been included in the calculations ofNga Potiki's current land holding. Blocks which have been given the status of European land have been treated as if they are no longer in Nga Potiki ownership. This is because the records of the Maori Land Court do not indicate whether the blocks are still owned by Maori, and because they are no longer defined as Maori freehold land, and therefore not under Nga Potiki ownership.

Papamoa 2 Section 1 (731a Or 23p) 1 11 April 1910 1 1 1 1 1 I 1 lA IB lC ID IE IF

1 1 (85a 2r 03p) 1 14 July 1955 10 February 1970 28 July 1937 1____ _ 1 I I I 1 I I I lAI lA2 ICI le2 lEI lE2 1 1 (48a lr) (3a Or 8p Marae) I 28 July 1967 22 August 1959 18 May 1961 I 1'--___ I I I 1 1 I 1 IAIA IAIB lA2A lA2B IE2A, 2B, 2E, 2F, 2G lE2C lE2D IE2H (la) (35a lr Bp) 1 1 (la) urupa 31 August 1959 19 May 1965 ------_1 ______1______I 1 I I I I I IA2Al lA2A2 lE2A lE2B lE2E lE2F IE2G (2a Ir 24p) I I 10 June 1981 I Al4 (2Ba 2r 15p)

Today there is just over 390 acres of Papamoa 2 Section 1 left in Maori ownership. Many of the other sections were declared to have the status of European land. Section

27 1B was sold in 1957 to A. Hirama (Newman) for £1,244. Section 1A1 was leased to Gibson for ten years from 1957 for £1 00 per annum and 1C2 was leased to Sellars for 21 years from 1967.

The harbour portion of 1D, being a 63 acre area was leased to Tanner for 21 years from 1921. It was then leased to Mackay for ten years from 1940 at 25 shillings per acre, and later leased to Percy for ten years from 1965. After the lease expired Percy purchased the 63 acre portion in 1966, leaving the inland 86 acre portion in Maori ownership. Both Sections IE and the inland portion of 1D were leased to Riddell and Fitch for 15 years from the late 1920s, but the leases were abandoned during the depression. Section 1E2F was later leased for 21 years from 1959 at £137:13:0 per annum. Section 1E2B was sold to Woodhouse in 1970, and apart from the blocks which were amalgamated into A14, the other sections have been declared to have the status of European land .

...... \. Y

28 Papamoa 2 Section 2 (575a) I 1 July 1897 I I I 2A 2B I 6 February 1904 I I I I 2B1 2B2 2B3 I I I 9 September 1965 15 February 1950 24 April 1910 I I I I I I I I I 2BIA 2BIB 2B2A 2B2B 2B3A 2B3B 2B3C (37a 2r 5p) (59a 3r) I I 1 August 1969 23 August 1939 I I I I I, I I I 2B3Al 2B3A2 2B3A3 2B3Cl 2B3C2 2B3C3 2B3C4 2B3C5 (61a 3r 30p) (12a 2r 22p) I I I (32a 3r 03p)

" '\ 21 Nov 1994 24 May 1945 13 Nov 1997 -\.'- / \ L I I I I I I 2B3C2A 2B3C2B 2B3C3A 2B3C3B 2B3C4A 2B3C4B (I1a) (la) (2a 1r 24p) I (Ir 6p) (50a 18p) 3 May 1962 I I I 2B3C3Bl 2B3C3B2 (9a) I 31 October 1967 I I I 2B3C3B2A 2B3C3B2B (9a 3r 32p)

Today there are just over 288 acres of Papamoa 2 Section 2 left in Maori ownership. The purpose of the first partition in 1897 was to provide a site for a school. Section 2A of four acres was vested in the Crown for the Otepou school, at which time the owners were represented in the Native Land Court by Paki Pine.62 In 1939 the site of the school had to be moved because of subsidence. As a result, the original four acres

29 was revested in Ana Maria, and four acres were taken from Papamoa 2 Section 2B lA

63 instead. The 2A area was revested in Ana Maria as general land. 64 Compensation for the land taken from 2BIA was assessed by the Native Land Court in 1941.65 The owner was represented by Cooney, who told the court it had been agreed to take £70 for the four acres.

Section 2B2B was sold, while Section 2B2A was declared to have the status of European land. Section 2B3A and 2B2B were leased to Hudson for 21 years from 1962. In 1993 41 acres of2B2B was sold for $100,000 and the remainder of the block (23 acres) was declared to be general land.

Sections 2B3A3 and 2B3C5 have been leased since 1960, when they were leased to Hudson for 21 years. Although the lessee has changed a few times, when the leases expired in 1981 they were renewed for a further 21 years. Section 2B3Cl was leased to Evans for 21 years from 1957 and Section 2B3C2 was leased to two Nga Potiki farmers, K. McLeod and W. Paraire for 21 years from 1 July 1947 at a rate of 18 ,) shillings 4 pence per acre. Section 2B3B has been sold, and the rest of the divisions have been declared to have the status of European land.

Papamoa 2 Section 3 (425a Or OOp) I 13 February 1904 I I I I I 3A 3B 3C 3D I 13 March 1912 I I I 3Dl 3D2

None ofPapamoa 2 Section 3 remains as Maori freehold land today. Section 3Dl was sold to Trigg in 1913, and Section 3D2 was sold to Lees in 1914. A member of the

62 Tauranga MB 4, fols 357-258, 1 July 1897 63 New Zealand Gazette, 1939, p 2244 64 Memorial Schedule, Papamoa 2 Section 2BIB, Maori Land Court, Hamilton

30 Lees family also purchased 32 acres of Section 3B in 1933 and the rest of the block was purchased by W. McLeod in 1937. Sections 3A and 3C were declared to have the status of European land.

Papamoa 2 Section 4 (267a lr IIp) I 6 February1904 \

1 1 4A 4B I 7 October 1919 ______1 __ I I 4Bl 4B2 4B3 (104a 2r 21p)

Only Papamoa 2 Section 4B2 remains in Maori ownership. In the 1950s Section 4Bl was sold to stock agents for £3,300, and Deryk Werohia purchased 4B3 for £3,000. Section 4B2 was leased to Dawe for 21 years from 1951, and the lease was renewed .....J for a further 21 years from 1972 with a $954 rental. In 1970 the Maori Trustee sold \,'~ ,j" Section 4A (six acres) to Addison for £2,400.

Papamoa 2 Section 5 (459a 2r 32p) I 11 August 1916 \ I 1 I I SA SB 5C 5D

(84a 7p) (llOa lr 28p) I 1 10 August 1967 6 February 1964 I ___I_- I I I I SCt SC2 5Dl 5D2 (26a 25p) (84a30p)

This leaves nearly 305 acres of Papamoa 2 Section 5 in Maori ownership today. The Papamoa 2 Section 5A block was originally 110 acres, but in 1920 26 acres were sold by Harawira Hohepa to W. McLeod. A 40 acre part of Section 5A was later leased to

65 Tauranga MB 14, fo1265, 12 November 1941

31 Gilmore for 21 years from 1956 at £34:10:0 per annum. The block is still leased today by a trust made up of the owners.

In 1931 part of Section 5C (later 5C 1) was sold to R. T. McLeod, a member of N ga Potiki, and Section 5D was leased to McLeod for 21 years from 1939 for 12 shillings 6 pence per acre. After Section 5D was partitioned 5D 1 was declared to be European land, and 25 acres of 5D2 was sold to Morton. The remainder of 5D2 was declared to have the status of European land.

Papamoa 2 Section 6 (l26a Or lOp) I . 6 November 1901 _____1 ____ _ I \ 6A 6B I 6 August 1914 I

, \ I I -"'., j' 6Bl 6B2 I I 6 August 1914 6 August 1914

1 I I I \ \ 6BIA 6BIB 6B2A 6B2B

All ofPapamoa 2 Section 6 has been alienated Section 6Awas sold to McNaughton. In 1942 four acres was taken from Section 6BIA for a public schooL Full details about this acquisition can be found in Rachael Willan's, 'Papamoa School Site' report.66 The remainder of Section 6BIA was leased to Tanner for 21 years from 1945. The section was then sold to McNaughton for £2,971 in 1964. Section 6BIB was also sold to the Tanner Brothers and McNaughton. Section 6B2A was sold by Hopepi Rota to Dunlop in 1960 for £1,300, and Section 6B2B was sold to Collins.

There was later a complaint about the sale of Section 6BIA. In 1974 the wife of one owner wrote to enquire about her husband's interests in the Papamoa block. She was

66 Rachael Willan, 'Papamoa School Site', Waitangi Tribunal, June 1997, [Wai 215 A52]

32 informed that her husband had received his share of the proceeds from the sale of Section 6BIA about eight years previously. She then protested that her husband had not consented to the sale and did not even know that the block had been sold. 67 In response the registrar explained that the sale had gone ahead under Part XXIII of the Maori Affairs Act 1953, which meant a meeting of owners was called to discuss the proposed sale.68 Letters were sent to the 15 owners of the block informing them of the meeting, but in this case it had gone to an incorrect address. The meeting of owners was held on 2 April 1964 and was attended by three owners, Tahuriwaka Makarauri, Tarawhata Makarauri, and Toi Hikurangi Makarauri. These three owners owned a

total of .37500 shares out of the 1.00000 shares in the block. 69 Under the Maori Affairs Act 1953 only three owners were required to form a quorum, which meant that those three owners could decide to sell the block, even though they only owned a one-third share in the block. There was at that time no requirement for even a 50 percent majority to approve a sale. The Maori Land Court then confirmed the three owners' decision to sell to McNaughton in June 1964. The fact that three individual owners were able to sell without consulting the other 12 owners in the block is an

" .~ example of the way the Maori freehold system took away Nga Potiki's ability to control the ownership of their land as a collective. On one level the full fifteen owners of the block did not have to give their agreement, and, on a wider level there was no forum for Nga Potiki opinion as a collective to be represented.

67 K. Tipiwai to Registrar, 20 September 1974, BACS A908 15a, NAA 68 Registrar to K. Tipiwai, 1 October 1974, BACS A908 15a, NAA 69 ibid

33 Papamoa 2 Section 7 ( 460a Or OOp)

1 16 June 1913

1

1 1 1 1 7A 7B 7C 7D

1 20 February 1968

___ 1______

1 1 7A1 (rifle range) 7A2 1 (41a 1r 22p) revested in owners 9 November 1989 as 1------1 Papamoa4 Papamoa 5 1 1 6 December 1990 6 December 1990 1 I I I 1 I 1 I I I 4A 4B 5A 5B 5C 5D 5E 5F (63a 3r) (60a 2r) (6a 3r) (3r -reserve) "- ./ - Although over 139 acres of Papamoa 2 Section 7 A were lost from Nga Potiki for nearly 50 years, today 173 acres remains in Maori ownership. The majority of Section 7A was acquired by the Crown for defence purposes (see 2.6(d) but was revested in the descendants of the owners in 1989. At this time the block was renamed and split into two sections. Section 5A has been declared to have the status of general land, and Sections 5C, 5E and 5F (each about 3 roods) were vested in the council as reserves.

Section 7B had been worked as part of the development scheme by the sole owner. This left a large development debt, and the block was then leased to Evans for 21 years from 1946 at £1:10:0 per acre.70 The rent was used to pay off the debt, but there was still £659 owing in 1958. At this time the sole owner planned to subdivide and sell 15 acres of the block. The money from the sale of the sections was to be used to payoff the development debt. Around 1960 ten acres of the block was subdivided and

70 District Officer to Board of Maori Affairs, 19 March 1958, BBHW 4958 1469d, NAA

34 sold as residential sections and the remainder of the block was declared to have the status of European land.

One acre of Section 7C was sold to Evans in 1958. It appears that Evans was only able to purchase a share of the block, but she leased the remaining 78 acres for a 21 year period from 1950. In the 1960s ten acres of 7C were subdivided into residential housing sections and sold. In 1966 the remainder of the block was sold, five acres to Elder, and 73 acres to Athol and Evans.

Ten acres of Section 7D was subdivided into sections under a section 438 trust set up in 1961, and the rest of the block was declared to be general land.

Pa12amoa 2 Section 8 (lOOa Or OOp) I 7 November 1950 I '\ I I ~ '" / SA 8B (2r) I 21 February 1951 I I I 8B1 8B2 I 14 February 1957 I I I I I 8B2A 8B2B 8B2C 8B2D I (37a23p) l3 August 1957 I I I I 8B2B1 8B2B2 8B2B3

Today 37 acres ofPapamoa 2 Section 8 remains in Maori ownership. Section 8B2B3 was vested in trustees in 1975, and then sold to Beazley Homes Ltd in 1976. The other sections of the block were all declared to have the status of European land.

35 Papamoa 2 Section 9 (369a Or OOp) I 14 March 1912 I I I 9A 9B

All ofPapamoa 2 Section 9 was alienated from Nga Potiki. At first 9A was leased to Paterson for 21 years from 1921, but before the lease expired it was sold to Dacres in 1934. Section 9B was partially gifted and partially sold to John Atirau Asher in 1923, and has since been sold out ofNga Potiki ownership.

Papamoa 2 Section 10 369aOr OOp

1 20 February 1941 ______1 ______I I lOA lOB 1 I 6 August 1952 19 February 1954 1 I I I 1 1 lOA 1 1OA2 lOBI lOB2

1 I 22 February 1960 12 November 1954 I I I I I I I I 10A2A 10A2B 10A2C 10B2A 10B2B 10B2C I I 9 May 1967 24 May 1955 I I 1 1 1 1 I I I IOA2C1 1OA2C2 IOA2C3 1OA2C4 1OA2C5 1OB2C 1 10B2C2

1 27 May 1958 ______-- ______L- I I I I I I I I I I I I Al A2 A3 A4 A5 A6 A7 A8 A9 A10 All Al2 I (14a 2r) 9 September 1966

------______1 __ - I I I A11&A(3rd Residue) A All&A(3nl Residue) B A11&A(3rd Residue) C (5a 3r 20p)

36 In 1965 a sale of the northern portion of lOA2C (87 acres) was negotiated with Papamoa Holdings Ltd, but the sale was rescinded in 1966. Section lOA2C1 has been leased to the Bay of Plenty Motor Racing Association (Baypark Speedway) for 50 years from 1966. Sections lOA2C2 and 10A2C3 were sold in 1967 and lOA2C4 was sold to Lloyd in 1968. Section 10A2C5 was taken by the Crown for refuse treatment and disposal (see 2.3)

In 1958 the lOB2C2 block was subdivided into housing sections, and renamed the Papamoa A block. Sections Al-AlO were vested in individual owners, and were subsequently declared to have the status of European land. Part of Papamoa rd All&A(3 Residue) Section A was sold in 1973~ and the remainder ofthe block was sold in 1975 to Ormaglade Ltd. Papamoa All&A (3rd Residue) Section C was also sold to Ormaglade, as well as 3 acres 3 roods 12 perches of Section B. The proceeds of the sale of Section C were paid to the Papamoa 2 burial reserve trust.

In 1959 Papamoa A12 was included in the Mangatawa Papamoa Incorporation. At ~.•• ~ this time the block was over 154 acres. In 1967 32 acres of A12 were acquired under the Public Works Act for a rubbish dump (see 2.3). In the 1970s the incorporation sold the majority of the block on the ocean side of the road for residential subdivision. This was the result of the boundaries of the Mount Maunganui Borough Council being extended to include the A12 block which made the area more valuable for residential rather than farming purposes.71 This left nearly 13 hectares of A12, between the railway and the rubbish dump. Since 1990 a further seven. hectares of this has been sold, leaving nearly six hectares as part of the Mangatawa Papamoa block.

This leaves only six acres of All&A(3rd Residue) Section B, and 14 acres of A12 in Maori freehold ownership. The other sections of the block have been declared to have the status of European land.

th 71 Report of the Committee of Management for the year ended 30 June 1976, Records of the Mangatawa Papamoa Incorporation

37 Papamoa 2 Section 11 ( 460a Or OOp) I 20 July 1920 I I 1 lIA lIB

1 25 May 1965 _____1 __ _ I I llAI 11A2 I 8 November 1960

1

1 1 llA2A l1A2B

1 5 November 1965 _____1_- 1 I 11A2Bl llA2B2 1 30 October 1970 <' > I " ./ 1 1 I l1A2B2A llA2B2B 11A2B2C

No land inPapamoa 2 Section 11 remains as Maori land. In 1923 the 300 acre Section lIB was sold to T Paterson.

In 1949 Section 11A was vested in the Waiariki District Maori Land Board under section 8 Maori Purposes Act 1943, for the purposes of administering and subdividing the land in 1949. It seems likely that this was as a result of unpaid rates. In 1958 115 acres were excluded from the vesting order, leaving 14 acres under the control of the Maori Trustee. The portion of the 11A2 block between the road and the harbour (53 acres) owed rates to the Tauranga County Council, which applied to the Maori Land Court for a charging order against the block in 1959. The amount owed at that time was over £76 for the period 1957 to 1959. The court was also told that noxious weeds were a problem and that no one was farming the land, although it was sometimes

38 grazed by an adjoining farmer. 72 The council recommended that the block should be leased, and one of the owners, Kito Kahotea, requested that it be leased to Monty Ohia for 30 shillings an acre. The court appointed a receiver, and agreed with Kahotea's recommendations about the lessee and level of rental. The receiver was discharged in 1964. A further rates charging order was made in 1965, when over £340 was owed to the Mount Maunganui Borough Council. In 1965 this charge was apportioned solely to the llA2B2 block.

The llA2Bl block was sold in 1967 to Beazley Homes Ltd, and remaining divisions of the block have been declared to have the status of European land.

1.3(e) Papamoa 2 Residue - Burial Ground

When the Papamoa 2 block was first partitioned in 1896 ,Mokopapaki had told the court that the owners desired to set aside a 20 acre cemetery reserve along the ocean beach. He said among those buried there were Atirau, Arameta te Tiki, and Paurini. He stressed the wa:hi tapu nature of the urupa area by saying that 'No crop will grow

~ on this part of the land'. 73

Although the court agreed with the proposal for the burial ground, when the partition orders were made, the court laid out the boundaries of Papamoa 2 Sections 1 to 11, which were vested in their various owners. Although the burial reserve area was marked off on the map, it was not given a new legal title, such as Papamoa 2 Section 12,. Instead, it was left as the residue of Papamoa. 2, and vested in all ,the owners of Papamoa 2. This was a 38 acre area along the sand dunes, between Papamoa 9A and the beach.

In the 1960s Nga Potiki kaumatua took steps to protect the urupa. At this time residential expansion, and the high value of coastal sections in Papamoa, meant that the kaumatua were concerned that their burial ground might be subdivided and sold in the future. In 1962 Riini Paraire applied to the Maori Land Court for the 38 acres to

72 Tauranga MB 22 fols 147-148, 26 August 1949 73 Judge Wilson's MB 9, fol 72, 12 June 1896

39 be set aside as a Maori reservation for a cemetery 'for the common use and benefit of the Ngapotiki tribe' .74 The court was told by Hone Rameka that tupuna ofNga Potiki, Ngati Pukenga and Ngati He were all buried there, and that the last burial was in 1911. 75 He also said that sand was being removed from the sand hills and that they wanted that stopped.

However, the court refused to give the area the legal status of a burial reserve, saying that 38 acres was 'far too large' for such a reservation.76 At that time it was usual that Maori reserves were for only a few acres, being marae sites, or smaller burial grounds. This reflected the European concept of cemeteries as discreet small areas,

and did not recognise Maori practices of burial ~n wider areas such as sand dunes or mudflats. However, the legislation governing the operation of the Maori Land Court did not impose any limit on the size of reserves. Section 439 of the Maori Affairs Act 1953 gave the Governor General the power to issue an order in council, following a recommendation by the court declaring 'any Maori freehold land' reserved as a burial site. The section does not include any restriction on the size of 'any' land to be reserved. Refusing to meet Nga Potiki's request to give the entire urupa the legal protection that would follow from reserve status, the Crown failed to adequately protect a very significant part ofNga Potiki's land. This was despite the fact that legal provisions existed which could have been used to grant Nga Potiki's request.

Instead of creating a legal reserve the court made an order under section 438 of the Maori Affairs Act vesting the land in trustees. The trustees were given the power to subdivide the land into sections and to lease the sections, and to locate and maintain any graves. Any proceeds from the leasing of the block were to be used by the trustees for locating and caring for grave sites, and for other tribal purposes, which would have to be approved by the court.77

74 Registrar Maori Land Court to K. Tipiwai, 1 October 1974, BACS A908115a, NAA 7S Tauranga MB 24, fols 188-190,23 August 1962 76 ibid 77 Tauranga MB 24, fols 188-190,23 August 1962

40 By the early 1970s the trustees had reluctantly decided to sell off some of the block in order to meet rates charges. 78 This was one result of the failure to reserve the whole block. If the urupa had legal reserve status it would not have been liable for rating. An agreement was reached to sell off 15 acres of the block, and plans were made to set aside an area of one acre which could be given the legal status of a reserve. This area would be used as a depository for bones in the eventuality of land being sold or developed. In 1973 the trustees were given the power to: subdivide and sell 15 acres of the block~ investigate the establishment of a camping ground on the remainder of the land~ and borrow sufficient money to complete such a project. 79

However, the planned sale of the 15 acres fell through. According to Colin Reeder, a current trustee, the trustees at that time (including his grandfather) had been very reluctant to sell, as they realised the importance of their duty under tikanga to protect the area. However, the pressures of rising land values, and rates charges meant that the trustees felt it was inevitable that parts of the block would be sold off, in the same way as other parts of the Papamoa block were being turned into residential subdivisions at that time. It was for this reason that one acre was given official Maori reserve status, as the trustees felt that was their only option given that the court had refused to reserve the entire block. 80

Since that time the trustees, and owners, have been more confident in their ability to protect the entire urupa area, and have refused to sell. The camping ground option was abandoned because the owners felt it would be wrong for land containing the bones of their ancestors to be used for commercial gain.81 The trustees have prepared a management plan for the 38 acre block which includes requesting the Maori Land Court to uplift the reserve status of the one acre area, and apply it to the entire 38 acres. They have also planned to have the block vested in the name of the tupuna Tamapahore, rather than the current list of over 600 individual owners. Reeder has stated that the concept of a burial ground having 'owners' is not in accordance with

78 Personal communication from Colin Reeder, trustee for the burial ground, 5 May 1999 79 Registrar Maori Land Court to K. Tipiwai, 1 October 1974, BACS A908I1Sa, NAA 80 Personal communication from Colin Reeder, trustee for the burial ground, 5 May 1999 81 Personal communication from Colin Reeder, trustee for the burial ground, 5 May 1999

41 tikanga. This is one outcome of the imposition of legal title to Nga Potiki's land. The wahi tapu is now owned by over 600 descendants of the owners of the Papamoa 2 block, who were those owners which refused to sell to the Crown. Those who did sell their shares in the Papamoa block (and their descendants) are not included in the ownerships list for the urupa area. Nga Potiki would argue that the 38 acre block, as a wahi tapu, belongs to all Nga Potiki.

Because the entire 38 acres has not been gazetted as a Maori reservation, any of the current owners has the ability to apply for a partition of the block, just as with other Maori land. By refusing to reserve the entire area in 1962 the court has left it open for this area to be partitioned and sold. Recently so.me owners have obtained a partition order through the Maori Land Court, which the current trustees are considering appealing against. The fact that some owners are able to contemplate selling their interests in the land is a result of the urupa being vested in individual owners and not being granted legal reserve protection.

,;;,.,.;;,. 1.4 Papamoa 3 "-.- -}

The Papamoa 3 block was created for the children of Ngatai Te Hirata, who had sold his share to the Crown on the condition that his four children all gain equal shares in the 480 acre parcel of land to be known as Papamoa 3.82 On 18 December 1901 an application was made to the Native Land Court in Rotorua for the removal of the restriction against alienating Papamoa 3. The applicants wereTeHirataNgatai, Pare Tuawatea, Harawira and Hohepa Patara. Te Horiata had signed as trustee for the owners in 1893 when they had been minors. The case was dismissed by the court because the majority of the owners had not applied. 83

In April 1910 an application for the partition of Papamoa 3 was made to the court. Hohepa Patara told the court that the owners had come to an arrangement regarding the partition of the block. They wanted it divided into two equal parts with the

82 Maketu MB 8, fol104, 13 May 1893 83 Rotorua MB 44, fo176, 18 December 1901

42 northern part to be called Papamoa 3A which was in favour of Hohepa Patara and Te Harawira in equal shares and the southern part to be called Papamoa 3B in favour of Te Hirata Ngatai and Maraiti in equal shares. He went on to say that his mother's house was on the 3A portion, which he and Harawira had arranged to sell, but his mother had agreed to leave her house on the condition that she received £200 of the purchase money.84 In this case the reason for partitioning was to facilitate the sale of half of the block. Papamoa3 ( 480a Or OOp) I 26 April 1910 I 1 1 3A 3B 1 24 August 1914 _____1 __ _ 1 I 3Bl 3B2 (1l4a 2r 12p)

...... " ", \.. / The sale of Papamoa 3A was then confirmed. The 240 acre block was sold to Westlake in 1911. Section 3Bl was leased to MacFarlane for 21 years from 1955 for £200 per annum and 3B2 has been given the status of European land.

1.5 Mangatawa On 15 October 1901 the Native Land Court heard a partition application for Mangatawa from Te Pake Pini and others. The hearing went for a number of days with a number of objections over the division of the land.85 The objectors were Hikurangi Te Whetu, Taipari Makarauri, Matene Rota and Te Hirata who represented various owners.86 Their arguments concerned those who were identified as owners in the land, the division of the land and the criteria used by a committee of Nga Potiki leaders to decide who had an interest and the extent of that interest. Most of the

84 Tauranga MB 6, 25 April 1910, P 356 8S Tauranga MB 5, fols 42-49, 15-18 October 1901; Nga Potiki typed transcript ofTMB, pp 1-2 86 Tauranga MB 5, fo11157, 1 November 1901; Nga Potiki typed transcript ofTMB, p 61

43 argument centred around the questions of distinguishing the rights of resident versus non-resident owners, and the rights of people who had married into Nga Potiki.

On 18 October Hipirini Te Whetu presented his case for himself and his children for 1,195 acres. Te Whetu told the court that the first hearing into the block was around 1877 when the leaders were Ern Tamapahore, Wi Parera and Taipari and that the main pa on the land from Tamapahore's time had been Mangatawa where Nga Potiki people had been living prior to the arrival of christianity.87 Later during the hearing Pake Te Kahaerea said that originally Mangatawa had been part of Papamoa and that the original list of owners 102, of whom 52 were permanent occupiers had been chosen by a committee ofNga Potiki elders Wi Parera, Keremeta, Te Awanui Pine, Ern Tamapahore, Hipirini Te Whetu, his brother, Wiremu Pauro, Rota Wharehuia and himself. According to Pake the other 50 people who had been included in the land as owners had been included as 'an act of friendship.' He went onto say that these owners were included as an act of'aroha,.88

/., '-"\ Te Whetu said that at the time of fighting between Ngaiterangi and Te Arawa a -''' .. ~) number ofNga Potiki 'took shelter at Maungatapu.' A Nga Potiki chiefWerohia and some ofthe hapu under his control were killed when Te Tumu fell. Te Whetu told the court that following his father's death he had gone to Mangatawa pa to live with his mother before they moved to Tarawera. In 1860 following the death of Nga Potiki chief Tawha at Mangatawa he was asked by Tareha, Taipari and others to return to the area to attend the tangi. He was asked by Nga Potiki elders Ern Tamapahore, Te Uatuku, Werahiko, Wi Parera and two other unnamed elders to stay in the area because of his descent. At first he lived with them and Taipari at Oruamatua before moving to Karikari following an illness.89

Te Whetu then told the court about the conquest of the land. He began by saying that at one time all Nga Potiki land belonged to Te Arawa but 'Tamapahore and the other sons of Rangihouriri took this' land in battle:

F:1 Tauranga MB 5, fo153, 18 October 1901; Nga Potiki typed transcript ofTMB, pp 4-5 88 Tauranga MB 5, fo1145, 31 October 1901; Nga Potiki typed transcript ofTMB, p 55

44 This land and all the Tauranga lands belonged at one time to Te Arawa. Tarnapahore and the other sons of Rangihouhiri took this. Tarnapahore, Tarnapinaki and Tarnaumuroa were brothers of Rangihouhiri. The descendants of these three lived on this land and outside. This land was occupied for six generations down to the time of Turumakina and then trouble arose between Ngati Pukenga and Ngapotiki.90

Nga Potiki, with the assistance of Ngaiterangi, finally forced Ngati Pukenga from the area after a number of battles that had seen both sides successful. Ngati Pukenga lived at Maketu for two years before attempting a return which was unsuccessful- and

resulted in Nga Potiki taking all the land 'including Papamoa. ,91

As well as recounting their turbulent relationship with Ngati Pukenga, some witnesses also distinguished between Nga Potiki and Ngaiterangi. Taipari, when questioned about the origin of a claimant's mother said that she was not Nga Potiki, but a 'Ngai te Rangi,.92 Te Rakaherea also described a Nga Potiki woman as not being from Ngaiterangi: 'Werohia's mother was Ngapotiki. If you say she was a Ngai Te Rangi of

Ngati Hei, you are wrong. She was a Ngapotiki. ,93 He also listed six hapu of Nga Potiki; Kiriwera, Ngati Patukiri, Ngati Kahu, Ngati Puapua, Ngati Tahuora and Ngati r , 94 -\~ ~) Homai.

As well as their land at Papamoa and Mangatawa Nga Potiki had also lived in other areas around the Rangtaua Harbour and inland from Mangatawa. Pake Te Rakaherea told the court that Nga Potiki 'as a body' lived at Oruamatua 'sometime after the Gate Pa and Te Ranga fights (1864). Ngapotiki had a large settlement there.,95 Other witnesses also testified that they had been living at Oruamatua and people had been born there.

In its judgment the court decided that although it believed that on the whole the committee had acted 'reasonably and fairly' it had in certain instances 'been swayed by motives not in accordance with such native custom.' The court said that:

89 Tauranga MB 5, fols 53-54, 18 October 1901; Nga Potoo typed transcript ofTMB, p 5 90 Tauranga MB 5, fol 54, 18 October 1901; Nga Potoo typed transcript of TMB, p 5 91 Tauranga MB 5, fol 55, 18 October 1901; Nga Potoo typed transcript ofTMB, p 6 92 Tauranga MB 5, fo187, 23 October 1901; Nga Potiki typed transcript ofTMB, p 23 93 Tauranga MB 5, foI 128,29 October 1901; Nga Potoo typed transcript ofTMB, p 45 94 Tauranga MB 5, foll23, 28 October 1901; Nga Potiki typed transcript ofTMB, p 42

45 In certain cases brought to our notice, the awards to individual members having a similar right are not consistent, they have given persons, who on their own admission, have no right, or a very small one, full shares either because their successors are members of the tribe or they have married into the tribe, or, for other reasons, whilst in other cases, members of the same family are put down - some for large rights and some for small ones on personal grounds only.96 The court told the owners that they had gone through the list of owners name by name and decided to divide 'the whole interests into 1,295 shares, each share representing one acre', and laid out how the shares were to be divided among the owners.97 After the proportion of land each group was entitled to had been decided the owners met to discuss how the block should be divided. A few days later Hirama Mokopapaki told the court that although they had agreed on a division of the block, there was still one matter which was under dispute:

We have settled about the subdivision ofMangatawa but there is a matter incomplete, that is intended to cut off some eight acres at Karikari as a residence for the Ngapotiki and Taipari and Hipirini have some objections.98 The minutes do not record the nature of the objections, and the matter was settled out of court. The following 11 divisions were then created:99

Block Name Area (acres roods perches) Mangatawa I 24aOrOOp Mangatawa2 55a Ir 18p Mangatawa3 I24a2rOOp Mangatawa4 298a2r20p Mangatawa5 4aOrOOp Mangatawa6 56aOrOOp Mangatawa 7 197aOrOOp Mangatawa8 313a Ir I5p Mangatawa9 133a Ir 20p Mangatawa 10 44aOrOOp Mangatawa 11 44aOrOOp Total 1,295a Or 33p

95 Tauranga MB 5, fo1120, 28 October 1901; Nga Potiki typed transcript ofTMB, p 40 96 Tauranga MB 5, fo1152, 1 November 1901; Nga Potiki typed transcript ofTMB, p 61 97 Tauranga MB 5, fo1152, 1 November 1901; Nga Potiki typed transcript ofTMB, p 61 98 Tauranga MB 5, fo1166, 6 November 1901; Nga Potiki typed transcript ofTMB, p 63 99 Areas taken from ML 8133, LINZ, Hamilton

46 By 1908 there were 175 owners in the above blocks who were living on the land in

'kaingas' and occupied in cultivating maize, wheat and oats. 100

The following flow charts are designed to demonstrate how each partition of the Nga Potiki blocks have been subdivided, and to show which divisions of the block are still Maori freehold land in 1999, as indicated by bold type. Blocks shown in bold and italic type have been included in the Mangatawa-Papamoa Incorporation and so have been included in the calculations ofNga Potiki's current land holding. Blocks which have been given the status of European land have been treated as if they are no longer in Nga Potiki ownership. The records of the . Maori Land Court do not indicate whether the blocks are still owned by Maori, but they are no longer Maori freehold land, and therefore not under Nga Potiki ownership.

Mangatawa 1. The entire 24 acre block was incorporated into the Mangatawa Papamoa block. Mangatawa2 (55a 1r 18p) I 21 May 1946 I I I 2A 2B 1 I 30 April 1963 13 February 1957 1, ______I I I I I I I 2A1 2A2 2A3 2A4 2B1 2B2 I 8 February 1961 I I I 2B2A 2B2B (la 3r - marae) (4Sa 2r 21p)

Today there are more than 46 acres of Mangatawa 2 which are still Maori freehold land. The other sections of the block were all small (lor 2 roods) sections which

100 AJHR, 1908, G~lK, p 3

47 were declared to be European land. It may be that some of these divisions are still Maori owned, as they appear to have been created as housing sites.

Mangatawa3 (l24a 2r OOp) 1 7 July 1947 1

1 1 3A 3B

(2r) 1 25 May 1954 _____1 ____ _

I 1 3Bt 3B2 (la lr 22p) (122a 2r 18p)

All of Mangatawa 3 remains in Maori ownership, with the majority of the block now part of the Mangatawa-Papamoa Incorporati?n.

Mangatawa4 (298a 2r 20p)

~ 1 \''- -) 21 January 1929 ------______1 ______------I 1 1 I I 4A 4B 4C 4D 4E 4F I I (75a 3r 06p) (51a If 37p) (66a 3r 28p) (50a lr 27p) 20 February 1968 27 October 1971 I I I 1 1 4Al (urupa) 4A2 4Bl (reserve) 4B2 (3r 39p) (l5a 2r 26p) (2r) (34a lr 06p)

All ofMangatawa 4 remains in Maori ownership today, with more than half the block included in the Mangatawa-Papamoa Incorporation.

Mangatawa 5 is a four acre block which is still owned by Nga Potiki today.

Mangatawa 6, an area of 56 acres, has remained Maori freehold land and has not been partitioned. It was part of the Mangatawa development scheme, and was leased to Monty Ohia from 1953. It has been administered by the Maori Land Board, and is now administered by trustees.

48 Mangatawa 7 (l97a Or OOp)

1 13 April 1910 1 1 1 1 7A 78 7C 1 1 1 10 September 1926 1 ______1 ______

1 1 1 1 1 7Bl 782 7B3 I (5a3r) 1 (55a 36p) 1 1 1'--__6 February 1961 __1

1 7D (81a 3r OOp)

Today 142 acres 2 roods 36 perches of Mangatawa 7 remains in Maori ownership. The 54 acre Mangatawa 7C block, being the only non-Maori freehold area, was declared to have the status of European land under Part 1 of the Maori Affairs ~ , } Amendment Act 1967. Both 7A and 783 were leased to the Webster family from 1941 to 1965 after which the lease was renewed for a further 21 years.

49 Mangatawa8 (313a lr 15p)

1 25 April 1917 1

1 1 1 8A 8B (now Z) 8C

(20a) (40a) 1 30 October 1929

______1

1 1 8Cl 8C2 (38a 2r 12p) 1 24 February 1939 1

1 1 1 8C2A 8C2B(nowZ) 8C2C

1 (Ila) 1 23 August 1939 9 November 1949 ------1 --___-- __1 I 1 1 1 8C2Al 8C2A2 8C2Cl 8C2C2 I (25a 2r) 1 17 February 1953 25 May 1955 I 1 1 1 1 I 8C2AlA 8C2AIB 8C2C2A 8C2C2B

(lr 4p) 1 (7a) 1 18 July 1954 24 July 1963

1 --_____--1 I I I I 8C2AlBl 8C2A1B2 8C2C2Bl 8C2C2B2 (laOr 36p) 1 I 9 May 1962 25 August 1965 I I

1 1 1 1 8C2A1B2A 8C2AlB2B 8C2C2B2A 8C2C2B2B

(22a 3r 36p) 1 23 July 1969 ----_____--1 I 1 8C2C2B2Bl 8C2C2B2B2 1 29 March 1979 --_____--1 I 1 Mangatawa 12 Mangatawa 13 (l45a lr)

50 Surprisingly, despite the number of partitions, nearly all 311 acres 3 roods 8 perches of Mangatawa 8 is still Maori freehold land. Most of the partitions were 1 or 2 rood sections, probably for housing sites, and those which are no longer Maori land were declared to have the status of European land.

Mangatawa9 (133a lr20p) 1 17 May 1917 \

1 1 9A 9B

1 1 11 October 1957 7 November 1950 I ______1 __ 1 1 I I 1 9Al 9A2 9Bl (now Z) 9B2 9B3 I (8a) 1 27 October 1967 2 May 1962 I I I I I I 9A2A 9A2B 9B3A 9B3B / ..,,, - (20a Or 32p) I 27 July 1967 ______1 I 1 9B3Bl 9B3B2 (95a 3r 14p)

The amount of land in Mangatawa 9 that is still Maori owned is 124 acres 0 roods 6 perches. All of those sections which are no longer Maori freehold were declared to have the status of European land.

Mangatawa 10 is a 38 acre block which was declared to have the status of European land, but the owners have since successfully applied to have its status reverted to Maori freehold land. The whole block remains in Nga Potiki ownership.

Mangatawa 11 is the only division of the Mangatawa block to have been entirely alienated. It was sold to C. McNaughton.

51 Mangatawa Z was created in August 1966 by amalgamating the Mangatawa 8B, 9B 1, and 8C2B blocks. This created a total area of 59 acres, which was vested in a single owner. Most of the block was leased for ten years from 1966.

1.6 Summary

• Following the confiscation of 1865, commissioners appointed under the Tauranga District Lands Act were made responsible for officially deciding who owned Nga Potiki's land. • As a result of hearings before the commissioners in 1877 and 1878 Crown grants were issued for the Mangatawa (1,295 acres) and Papamoa (12,753 acres) blocks in favour of listed Nga Potiki individuals. The issue of Crown grants took away Nga Potiki's customary tenure over these lands. • Between 1886 and 1893 the Crown purchased individual shares in the Papamoa block representing a total of 7,910 acres of land. The Crown paid a total of £3,263, at a rate of 8 shillings 3 pence per acre. '\ • In 1893 the Papamoa block was partitioned by the Native Land Court: Papamoa 1 -\ ) (7,910 acres) was awarded to the Crown; Papamoa 2 (4,265 acres) was awarded to the non-sellers; and Papamoa 3 (480 acres) was awarded to four minors as part of the sale conditions requested by one owner. • The Crown purchase represented the acquisition of 57 percent of Nga Potiki's land. So that 30 years after the raupatu, the. Crown. had obtained a significant proportion ofNga Potiki's land. • In 1896 the Native Land Court partitioned the Papamoa 2 block into 11 divisions for six groups of owners. • In 1908 the Stout-Ngata commission recommended that the Mangatawa and Papamoa blocks should be reserved for Maori settlement. This resulted in the blocks being administered by the Waiariki District Maori Land Board. • The aim of the Board was supposed to be to arrange for the land to be leased to one of the owners, and thus used for the benefit of the local people. However, exemptions were readily granted, and 25 leases were made to Pakeha, as opposed to 4 leases to Maori.

52 • Since 1896 the Papamoa and Mangatawa blocks have been subdivided many times and a large proportion of the land has been sold. The following table compares the amount ofland owned by Nga Potiki in 1886 with that which is still Maori freehold land today: Name of Block Original Area Maori Land 1999 % Remaining Papamoa 1 7,91Oa Or OOp nil 0.0% Papamoa 2 section 1 73IaOr 23p 390aOr 23p 53.4% Papamoa 2 section 2 533a Or 39p 288a 1r 20p 54.1% Papamoa 2 section 3 425a Or OOp nil 0.0% Papamoa 2 section 4 267a Ir IIp 104a2r 2Ip 38.9% Papamoa 2 section 5 459a2r 32p 304a 3r lOp 66.3% Papamoa 2 section 6 I26aOr lOp nil 0.0% Papamoa 2 section 7 460aOr OOp I73aOr 22p 37.6% Papamoa 2 section 8 100aOr OOp 37a2r 23p 37.0% Papamoa 2 section 9 276a OrOOp nil 0.0% Papamoa 2 section 10 369aOrOOp 20a Ir20p 5.5% Papamoa 2 section 11 460aOrOOp nil 0.0% Papamoa 2 Residue 38a2r29p 38a2r 29p 100.0% Papamoa3 480a Or OOp 114a2r I2p 23.7% Mangatawa 1 24aOr OOp 24aOr OOp 100.0% Mangatawa2 55a Ir 18p 46a3r21p 83.6% Mangatawa3 I24a2rOOp I24a2rOOp 100.0% Mangatawa4 298a2r20p 298a2r20p 100.0% Mangatawa5 4aOr OOp 4aOr OOp 100.0% Mangatawa6 56aOr OOp 56aOrOOp 100.0% Mangatawa 7 I97aOr OOp I42a2r 36p 72.3% Mangatawa8 313a Ir I5p 3lIa3r08p 99.5% Mangatawa9 133a lr 20p I24aOr 06p 93.0% Mangatawa 10 44aOr OOp 38aOr 27p 86.3% Mangatawa 11 44aOrOOp nil 0.0% Total 13,892a lr 17p 2,644a Or 18p 19.0%

53 • This shows that as a result of Crown land purchase, private sales and public works acquisitions Nga Potiki have lost over 80 percent of the land which was awarded to them after the raupatu. • There is a much higher rate of land retention in the Mangatawa block than the Papamoa block. This reflects the intention of the tupuna in 1878 to keep Mangatawa as a reserve for Nga Potiki. One factor in this success may have been the Mangatawa development scheme and the subsequent formation of the Mangatawa Papamoa Incorporation. • The Papamoa blocks which have lost the most land are largely those on the coast closest to Mount Maunganui. Rising residential land 'values and rates meant that during the last 30 years much of the land has been sold for residential subdivisions. • Sixty divisions of the Mangatawa and Papamoa blocks were effected by the Maori Affairs Act 1967, which compulsorily changed their status from Maori freehold land to general land. In most cases this was done to sections which had been created as house sites but larger blocks were also effected. The total amount of /'. "& Nga Potiki land effected by this legislation was 644 acres. The result is that the -\"., )' land became easier to alienate, and shows the logical outcome of the process of individualisation: once a block had four or less owners it ceased to be Maori land. • In 1896 when the Papamoa 2 block was partitioned 38 acres along the sand dunes were left as a burial ground. In 1962 Nga Potiki applied to the Maori Land Court for the area to be legally gazetted as a burial ground reserve. This would have made the land inalienable and not liable for rates. • The court refused to reserve the 38 acres on the grounds that the area was 'far too large' for a burial reserve. This was despite there being no restrictions on size in the legislation. Instead of granting Nga Potiki's request to protect their land the court created a section 438 trust to protect and maintain the graves and lease the land. • In 1972 the trust was given the power to sell off part of the block in order to meet rates charges. An area of only one acre was reserved as a burial ground to serve as a repository for exposed bones.

54 • Circumstances meant that none of the land was sold and the current trustees wish the whole area to be given the legal status and protection of a wahi tapu reserve. This is in accordance with the stated wishes ofNga Potiki since at least 1896.

.....,// ""'\ \" ,.)'

55 Part Two: Public Works

2.1 The 'Lethal Weapon' of the Public Works Act This part of the report examines the operations of the Public Works Act and the Crown policy on the acquisition of Nga Potiki land. Research into public works takings of Maori land in Tauranga shows that Crown agencies, in particular the Public Works Department, showed little regard for the interests of local iwi, and little regard for ensuring that sufficient land remained for the support and maintenance of these people. For a wider discussion on the impact of the Act and the lands taken from Ngaiterangi as a whole the reader should refer to the authors' 'Ngaiterangi and the Crown' report.! The Waitangi Tribunal has found that 'the compulsory acquisition of Maori land by the Crown cuts right across the guarantee of tino rangatiratanga in article 2 of the Treaty of Waitangi'? Nga Potiki were no exception to the heavy handed methods that Works employed to obtain Maori lands.

The bulk of the land that is discussed below was taken under either the Public Works Act 1908 or 1928. As will be explained, both of these Acts created different procedures for the taking of general (European) and Maori land. The result of this legislation was that Maori were given less protection than other land owners.

However, it was not just the Act itself that detrimentally affected Maori, but rather the way that it was applied by Crown agencies, particularly the .Ministty of Works. The policies, or unofficial practices, of government departments tended to have the result of discriminating against Maori interests. The attitude of Crown officials was to protect the position of the Crown, rather than to carry out the Crown's fiduciary duty to Maori as expressed in the Treaty ofWaitangi.

From a Nga Potiki perspective this was a seen as a deliberately racist policy that saw any detrimental affects of Crown activity placed at their backdoor or on Maori land.

1 Richard Kay & Heather Bassett, 'Ngaiterangi and the Crown', Waitangi Tribunal, June 1998, [Wai 215 Cl] 2 Waitangi Tribunal, Te Maunga Railways Report, Brookers Ltd, Wellington, 1994, p 4

56 This particularly seems the case for Nga Potiki who were unfortunate enough to have a quarry site and reservoir above their marae, and pipelines, telephone towers, oxidation ponds and a rubbish dump on, or traversing their land. Whether or not this was a deliberate policy may be difficult to establish, however there is abundant visual evidence of undesirable man-made features being placed on, or near, Maori land throughout the country to suggest that if this was not a consciously racist action by the Crown, it was at the very least an unconscious act that detrimentally affected Maori people and their land. The following points concerning public works should be stressed: • the Public Works Act had the same result as confiscation; • physical access to, and use of, the land stopped or was hindered when Works entered the block; • it could be years before compensation was paid; • during this period there was little, if any, contact made by government departments to inform the owners of the progress of compensation agreements; • failure to consult often meant that the former owners of the block could easily /" '\ } assume that the land had been taken from them without payment; and • when compensation was eventually paid, it was not usually what the former owners considered the land to be worth.

Consultation with Owners The Public Works Act contained requirements for consulting with the owners of land before it was taken. 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 customruy land, section 103(b) said that where title was derived from the Crown the provisions of Part n would apply. As all the Nga Potiki blocks derived their title from the Tauranga District Lands Acts, they were all Maori freehold land and, therefore, the taking procedure was the same as that for general land under Part n, with some important distinctions.

57 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 that the provisions 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 p~ovided that publication of the notice in the New Zealand Gazette was sufficient. 3 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. 4 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. r'" \ -, j

Often that the Public Works Department made little effort to consult with owners. The general assumption seems to have been that the nature of Maori land ownership made it too difficult for the owners to be consulted. Multiple ownership, unregistered successions, and unreliable address lists meant that Public Works officials considered it more expedient to notify the Maori Affairs·Department and let them.notify owners. However, Maori land ownership had only been complicated by those factors as a result of the land court system imposed on Maori by New Zealand law. This failure to consult usually meant that most owners had no say in what happened to their land, or any understanding of how and why it was taken from them.

Most of the Nga Potiki cases which have already been researched reveal that very little, if any, consultation took place with Maori owners. Any consultation that did

3 Finance (No 2) Act 1931, No 5 s 47 4 'The Maori Land Courts: Report of the Royal Commission of Inquiry', AJHR, 1980, H-3,

58 occur was usually only with 'leading owners', as identified by Maori Affairs, and took the fonn of notification rather than consultation. When meetings were held between Public Works officials and owners, these were usually the result of the Maori owners requesting infonnation from officials rather than the departments trying to keep the owners informed. At a meeting with the Nga Potiki claims committee the Ministry of Works was variously described as 'the invaders' who 'raped Mangatawa' and who when requested to rectify damage to sacred sites made insincere and broken promises

to 'please these natives. ,5 This strength of feeling can perhaps be better understood by Pakeha if they recognised that a number of the sites used by the Crown for public works projects were cemeteries. The sacred Maungamana that was quarried away is one example of a urupa site that was destroyed by the Crown. Further insult was added by the fact that debris from the dynamiting of the maunga rained down on the site of Nga Potiki's Tamapahore Marae. Part of this debris were the bones of Nga Potiki ancestors, such a situation would be considered intolerable if in the unlikely event the Crown decided to use the Tauranga public cemetery as a quarry site and began dynamiting the area. One would presume that Pakeha people having the bones

~ of their ancestors raining down on their backyards would cause considerable distress. } Members of the Nga Potiki claims committee at a recent meeting mentioned how they remember how Nga Potiki would collect exposed bones from the quarry, so that they could be reburied. 6

Compensation Under the Public Works Act both Maori customary land and.Maori.freehold land were excluded from the Part III provisions for compensation that applied to 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 III, 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

pp 38-47 S Meeting of Nga Potiki claims committee, attended by the authors, 29 January 1999, Tamapahore Marae 6 ibid

59 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 five percent interest payable from one month after the date of the award.

Despite the legislative requirement that an application for the assessment of compensation should be made within six months, the reality was that it was often years after the proclamation before compensation was awarded. This was because, although the Public Works Department might first apply to the court within the specified time, that did not necessarily mean that the application was prosecuted straight away. There are numerous examples in other reports of it being up to 20 years before compensation was paid. 7 It should also be noted that compensation proceedings could not even start until after the proclamation taking the land had been issued. In most cases the proclamation was made some years after work had started, usually because the exact areas of land needed were not known until construction was complete.

The Public Works Act 1962 changed the procedure for assessing compensation. Under section 6 the Maori Trustee was appointed statutory negotiator for Maori land with multiple owners, and the practice of having compensation assessed by the Maori Land Court was discontinued. The 1962 amendment allowed for compensation for Maori land taken for public works to be sought in the same manner as for general land. This included using the procedure under section 46 of the Public Works Act 1928, which allowed the Minister to offer a sum of compensation, and if that offer was not accepted then the Compensation Court (later the Land Valuation Court) would ascertain the amount to be paid. The result of the 1962 amendment for Maori was that, in most cases negotiations for compensation were taken out of their hands, and conducted by the Hamilton staff of the Maori Trustee and the staff of the Ministry of Works in Hamilton.

7 See Heather Bassett 'Otawa Scenic Reserve', Waitangi Tribunal, August 1996, (Wai 215 A2]

60 This change in procedure did nothing to speed up the process. In fact, it became easier for Works to stretch out negotiations and delay payments. This was clearly illustrated during compensation negotiations for Maungatapu land taken for the Tauranga-Te Maunga motorway. In these cases Maori Trustee staff frequently expressed their frustration at the seeming unwillingness of Works staff to reach a settlement. Comments such as 'I feel that for the past 12 months or so, we have been given the run around by the Ministry of Works' are common in the correspondence. 8 This quote illustrates two important aspects of the compensation negotiations: the Public Works Department was reluctant to make a settlement; and the interests of the owners of the land were not being protected.

Throughout the official records of Tauranga compensation negotiations the voice of Maori is missing because the 1962 amendment took away all input Maori could have into the compensation process. Instead compensation was decided by two government departments, often resulting in lengthy delays before compensation was paid. This action contributed to a perception that the acquisition of land for public works was .;;;....;;;. little different from confiscation. This perception was enhanced by the amount of '" ) compensation that Nga Potiki were paid for their land. Evidence is presented below which shows that it was generally expected that the valuations prepared by the Valuation and Works Departments were lower than the actual price the land could have sold for on the open market. This was not just a Maori perception, but was a view shared by judges, lawyers and valuers.

The legal interpretations of the way land should be valued were inflexible and did not take into account the value of the land in Maori terms. Crown valuations were usually based on the value of the block as farm land. This was detrimental to Nga Potiki for two reasons: frrstly, it did not take into account other possible uses of the land, such as the value as a quarry or residential housing, and; secondly, the value of the land to Nga Potiki was in its special significance as ancestral land rather than a matter of whether it was 'first' or 'second' class farming land. There is a consistent pattern of

8 Cited Heather Bassett, 'Aspects of the Urbanisation of Maungatapu and Hairini, Tauranga', Waitangi Tribunal, July 1996, [Wai 215 A26], P 18

61 Nga Potiki requesting compensation that was much higher than 'official' valuations, which indicates that the land was worth far more to Nga Potiki than the valuation criteria indicated. In later years there have also been occasions when Nga Potiki have refused to appoint a valuer because they have been unwilling to sell and appointing a valuer was seen as indicating a willingness to sell.

All of these factors combined to give Nga Potiki the valid impression that the Public Works Act had the same effect as confiscation. Physical access to and use of the land stopped when Works entered the block, but it could be years before compensation was paid. During this period there was little, if any ,contact made by government departments to inform Nga Potiki of the progre·ss of compensation agreements. This means that the former owners of the block could easily assume that it had been taken from them without payment. Often compensation was paid to the District Maori Land Board or to the Maori Trustee to be distributed. However, the distribution process was dependent on having up to date information on the owners, which could mean that compensation money was held by the trustee as 'unclaimed'. When compensation

/' '.., \j was paid, it was not usually what the former owners considered the land to be worth.

Land No Longer Required for Public Purposes Under the Public Works Act 1928 there was no legal requirement for the Crown to offer land back to the original owners if it was no longer needed for a public purpose. This was changed in the Public Works Act 1981, whereby the land must fIrst be offered to those from whom it was taken. However, because compensation was paid at the time of taking, the original owners are usually required to pay current market value for the land. This often makes buying back the land out of reach for most Maori. The implications of the policy in terms of the Treaty of Waitangi were discussed in the Te Maunga Railways Land Report by the Waitangi Tribunal.9 The Tribunal found that the Crown had failed in its duty to Maori by requiring market value to be paid for the block. The Te Maunga railway land is the one example of Nga Potiki land taken for public works that has been considered by the Waitangi Tribunal to date.

9 Waitangi Tribunal, Te Maunga Railways Land Report, Brookers Ltd, Wellington, 1994

62 The following section of this report seeks to briefly outline a raft of grievances that N ga Potiki have experienced at the hands of the Crown and the local body since the tum of the century. This feeling of being used by the Crown is succinctly expressed by Kaupapa McLeod, a member of the committee of management for the incorporation, who recently prepared the following report on the land alienations in the Mangatawa-Papamoa area:

Successive local body administrations have justified this alienation as being in the interests of the wider community. Certainly if one were to view things as a civic minded citizen, then one would have to be proud of the way that Mangatawa has served the wider community. Land has been taken for roads, railways, rubbish dumps, water pipelines, sewerage pipelines, gas pipelines, reservoirs, and of course-the most pieasingcivic contribution ofall, the quarry. And again, one would have to be proud of the way the authorities ignored our pleas to site the sewerage ponds elsewhere but chose to put them right on our doorstep thus ensuring that Mangatawa should continue to do their bit for the 'good of the community' .10 [Emphasis in original.]

2.2 Quarry and Water Reservoir (Maungamana)

~ Previous reports by the Waitangi Tribunal on public works takings have criticised the \. } Crown for acquiring the freehold of blocks without allowing for the possibility of leasing the land from Maori. 11 This could provide land for the public good and also retain the freehold in Maori ownership, which would be a preferable outcome for Maori. It would also protect Maori land holdings under article 2 of the Treaty of Waitangi. However, two public works on the sacred maunga Mangatawa show that despite Maori insisting on leasehold agreements, the land has still been effectively alienated from its owners, whose interests were not actively protected. The full history of public works on Mangatawa can be found in Heather Bassett's report,

'Mangatawa' .12

10 'The Reservoirs - More Alienation', Kaupapa McLeod, Committee of Management, Mangatawa­ Papamoa Incorporation II For example see, Waitangi Tribunal, Turangi Township Report 1995, Brookers Ltd, Wellington, 1995, p 312. 12 Heather Bassett,

63 Mangatawa was used as a quarry to build the Port of Tauranga, and a large part of the roading infrastructure. The Crown acquired under the Public Works Act the freehold of a small area for the quarry in 1946. As the Public Works Department wished to enlarge the quarry the Mangatawa-Papamoa Incorporation, which now administered the land, insisted on retaining the freehold, and negotiated an agreement granting quarry rights for 33 years. The Mangatawa-Papamoa Incorporation was fortunate in being able to retain the freehold of land on Mangatawa. However, while the quarry rights were for a 33 year period, the very activity of quarrying has meant that the land itself has been physically removed, even if a freehold title on the map remains. The maunga, with its extensive fortifications, and urupa site has been destroyed, which is an insult to all Bay of Plenty iwi and especially Nga Potiki. The destruction of the urupa site on Maungamana has clearly, and understandably distressed Nga Potiki people. At a recent meeting with the Nga Potiki claims committee Colin Reeder made the observation that the Crown would never dig up the Tauranga public cemetery. Another claims committee member recalled how when the quarry was operating, Nga Potiki people had collected the exposed bones of their ancestors and stored these

/ .. ~ remains for reinterment. 13 \. /

In 1973 the Mount Maunganui Borough Council built a large water reservoir on Mangatawa, above Tamapahore Marae. After it was built the council started negotiations with the incorporation to buy the site. The incorporation again insisted on retaining the freehold, and in 1980, after much negotiation, and many threats from the council, a 999 year lease was signed The lease to the Tauranga District Council still has 980 years to run, and the fact that the council paid the full value of the land in return for the lease illustrates that the true nature of the transaction was a sale. The incorporation, when insisting on a lease, were asking for a fair annual rental to be paid, and it was only after a Notice of Intention to acquire the land was issued that the incorporation agreed to leasing the land for a peppercorn rental. This also demonstrates how land supposedly taken under section 32 of the Public Works Act, which provided for agreements rather than compulsory acquisition, was still in effect

13 Meeting of Nga Potiki claims committee, attended by the authors, 29 January 1999, Tamapahore Marae

64 a compulsory agreement. The following table shows the various public works acquisitions on Maungamana: Area Title Sa lr 11.6 6a Or 00.0 9aOrOO.0 Oa3r 19.9 Reservoir Site ro la2r06.1 Total Area Used 22a 2r 37.6

Recent developments regarding this proposed site suggest that the council has abandoned its plans. Evidence on these developments will by given to the Tribunal by NgaPotiki.

2.3 Rubbish Dump

In 1966 the council's temporary rubbish dump on the south side of the airport was closed by contractors working on the site. This forced the council to look for 'emergency tip sites'. The council was annoyed with the contractors because they had caused the council 'very considerable expense and inconvenience' because 'emergency tip sites had to be created in situations·andcircumstances which received .adverse publicity in the local press.' The council were also annoyed that they were unable to undertake their normal tidying up operations of the site because the contractors had closed the access to the dump. However, the town clerk V. Bruce Cunningham, was able to report 'that in the intervening time growth has become established on the tip' and that this growth 'effectively meets the situation.'14 The council wanted to fmd an alternative site that would not be too expensive or cause adverse public opinion.

In August 1966 the council applied to the Town and Country Planning Appeal Board for departure from the district scheme that zoned the land they wanted to use as rural. The council wanted to use 32 acres of part Papamoa A12 block for the dump and paid

14 Town Clerk to City Engineer, 22 March 1967, Mount Maunganui Borough Council [MMBC], Engineering file 8/4, Tauranga District Council [IDC]

65 15 a deposit of $300 for acquiring the land in 1966 . The board was satisfied by the j council 'that it is urgently necessary, in the public interest' that this departure be granted. At this hearing no fonnal objections to the proposed site were presented, although the board was infonned that objections had previously been made to the council and 'that the main concern of those people was to ensure that suitable

conditions, designed to avoid the creation of a nuisance, were imposed' .16 The board imposed conditions on the council that required that the council ensure that: organic refuse was to be covered and treated to prevent the breeding of flies, rats and other vermin; no offensive odours were to emanate; refuse unsuitable for compo sting to be separated; all roadways and access-ways to dump to be surfaced and maintained; all areas where dumping permissible to be clearly' sign posted; and the council would 'plant and maintain a screen belt of suitable trees by all boundaries of the said

property' . 17

By 1967 the council was under increasing pressure to meet the borough's dumping needs and in February 1967 the Mount Maunganui borough engineer requested that o/ ''\ the district commissioner of the Ministry of Works urgently approve the composting of town rubbish because the council 'was in the unfortunate position that it had to vacate its previous refuse disposal site'. The council's engineer infonned Works that originally the council had heard five objections to their new site but decided to passed a resolution that it was in the public interest for the local body to have a refuse site and the fact that it was urgently required called for action immediately, and furthennore the chosen site was considered most suitable because 'an industrial complex in the fonn of the New Zealand Railways marshalling yards already

exists.' 18

By August 1967 Cunningham was able to report to the council that the proposed compensation for 32 acres ofPapamoa A12 had been discussed with C.L. Hickey and

IS Cunningham to Owen, 29 September 1967, MMBC Engineering file 8/4, IDC 16 Hearing before the Town and Country Planning Appeal Board, 23 August 1966, AATE AI002/563a National Archives, Auckland [NAA] 17 Hearing before the Town and Country Planning Appeal Board, 23 August 1966, AATE Al002l563a, NAA 18 Borough Engineer to District Commissioner of Works, 28 February 1967, AATE Al002/563a NAA

66 lH. Evans who were representing the owners and that the negotiated amount was £100 per acre for about two thirds of the area and £10 per acre for land effected by the tide which equated to approximately £1500. The agreement provided for the payment of five percent interest commencing from the date of possession to the date of payment. Cunningham also informed the councillors that the final agreement might be subject to the direction of the Maori Land Court, although provision in the expenditure had been made for a payment of £1500. 19

In October 1967 32 acres ofPapamoa A12 was officially declared as taken under the Public Works Act for the purposes of rubbish disposal.2o The block was to be vested

in the Mount Maunganui Borough Council fro~ 13 November 1967 and it consisted of approximately ten acres of 'dry land' and 22 acres of 'wet land' which was in 'a swampy condition' being effected 'by tidal waters.,21

In accordance with the agreement made between the council and Hickey and Simpson acting for the incorporation the council paid $2063.28 in February 1968?2 This

~ amount was made up as follows: \~ ) 10Yz acres @ $200 $2100 22'14 acres @ $20 445 $2545.00 less deposit paid 600.00 1945.00 5% interest 12.12.66 - 29.2.68 118.28 $2063.28

However, shortly thereafter the incorporation sought to have the amount of compensation_ increased. Although the previous agreement had been made with the firm of Hickey and Simpson, in April 1968, the law firm of Cooney Lees & Morgan, acting on behalf of the incorporation, told the council that compensation should be paid at the 1968 government valuation of the land which was a capital value of

19 Town Clerk Report to Your Worsbips and Councillors, August 1967, MMBC, Engineering file 8/4, IDC 20 New Zealand Gazette, 1967, p 1926 21 Town Clerk to Hickey & Simpson, 18 December 1967, MMBC, Engineering file 8/4, TDC

67 $3,000.23 The council's position was that since it had taken possession of this land in December 1966 a number of capital improvements had been made in the form of fencing, metal road access, levelling, drainage and the building of a shed and reclaiming of three acres of land. The council believed that some if not all of these improvements were included in this 1968 government valuation and that these improvements would account for the higher value given to the land at that time. The request for $3,000 was left for the solicitors to handle, but it appears likely that the council informed Cooney, Lees and Morgan that an agreement had already been reached and compensation paid on that basis.

By the 1970s there were some concerns about the council's operation at the dump, and in 1973 in response to a query from the Marine Division of the Ministry of Transport the town clerk said that to the best of his 'knowledge and belief, no refuse had been deposited on the tidal portion of the beach.,24 He informed the ministry that the council was in the process of attempting to 'promote legislation to allow it to reclaim a small portion of the adjoining foreshore for the purpose of siting oxidation

~\ J ponds' and if this was successful then the ponds retaining walls would 'provide an effective barrier to prevent seepage of any sort between the refuse tip and the tidal

waters of the Bay. ,25 This was seen as providing a dual purpose for the sewerage pond By using the wall of the sewerage pond to prevent seepage from the dump the council were able to save money. Unfortunately such a policy would mean that Nga Potiki land owners would be inconvenienced by a sewerage pond as well as a rubbish dump [see 2.4].

By the late 1970s with an increasing population there were growing demands on the area to support the region's infrastructure needs. In July 1977 the Tauranga Electric Power Board purchased 23 acres 3 roods 37 perches of Papamoa 2 Section 9A from George Attrill a Te Puke golf professional for a depot site. The block had been privately sold by its Maori owners in 1934. The council had also been interested in

22 Town Clerk to Hickey & Simpson, 28 February 1968, MMBC, Engineering file 8/4, IDC 23 Cooney Lees & Morgan, to Town Clerk, 5 April 1968, MMBC, Engineering file 8/4, IDC 24 Town Clerk to Director of Marine Division, Ministry of Transport, 12 December 1973, MMBC, Engineering file 8/4, TDC 25 ibid

68 this land since March 1967 when the town clerk had requested further information on 25 acres of Papamoa 9A which 'might be available for purchase at about £100 per acre.'26 In 1977 the power board agreed to pay Attrill $100,000 for the land. They leased part of the land with a house on it back to Attrill and the remaining land the board used for' electricity works' .27

This land was adjacent to the council's dump and the sewerage ponds and the borough council was also interested in acquiring the land for its own use, however when it heard that the power board were negotiating with Attrill for the land it withdrew from entering into negotiations and instead made an agreement with the power board to purchase the southern portion after the land had been acquired from Attrill.28 In May 1984 the council entered into an agreement with the Tauranga Electric Power Board to acquire 2.6850 hectares ofPapamoa 2 Section 9A from the power board 'for refuse collection and disposal' for $9,000?9 A proclamation was issued in August 1984 which declared that by agreement 2.6850 hectares ofPapamoa 2 Section 9A were acquired for refuse collection and disposa1. 30 The land was to be

/ >"\. ~ '. /l vested in the council from 6 September 1984. Although this land had already been acquired for public purposes it meant that more Nga Potiki land was to be a dump, and that adjoining Nga Potiki land owners were to be further affected by the dump. Although this land was owned by a Pakeha, its purchase by the power board still had an effect on Nga Potiki land ownership because of its proximity to the dump and pond, and therefore adjoining Nga Potiki land owners.

By the 1980s the council were looking for more land on which the dump could expand and in 1983 the town clerk informed the owner of Papamoa 2 Section 1OA2C5, G. Paraire, that the district valuer had valued the section and that the council would be interested in purchasing about ten hectares.31 The council wanted the land

26 Town Clerk to F. H. Willoughby, 23 March 1967, MMBC, Engineering file 8/4, me 27 New Zealand Gazette, 1977, p 3144 28 Ministry of Works and Development to District Commissioner of Works, 23 August 1977, LINZ, Hamilton 43/1/0 Pt 1 box 2386 (Records Centre), NAA 29 Agreement between Tauranga Power Board and Mount Maunganui Borough Council, 14 May 1984, LINZ Hamilton 43/7/0/13 Pt1, box 1074 (Records Centre), NAA 30 New Zealand Gazette, 1984, p 3620 31 Town Clerk to G. Paraire, 22 December 1983, MMBC, Engineering file 8/4, IDC

69 for an extension to the growing rubbish dump, so in 1984 the town clerk instructed valuers Groothuis, Stewart, Middleton & Pratt to again value the land. The land was described as partly adjoining 'the Councils oxidation ponds and refuse tip. ' Presumably this was mentioned because it would influence the value they placed on the land. They also noted that 'Te Maunga is known for its important rail and road ,junction' and was near the main post office and a power board depot was situated in the area. The land was described as being 'partly undulating and flat' and 'extremely run down and offers few prospects in its existing state.' Presumably the land was not run down to the extent that it would have been unsuitable for the dumping of refuse. They valued the land at $165,000 on the basis of its location and condition.32 The implication being that it was not in a good location for other uses because of the dump and pond.

By November 1984 Cunningham was able to inform the solicitor Willoughby who acted for both the council and the owners Riini Paraire and William Te Kani of part Papamoa 2 Section 1OA2C5 that the council had concluded arrangements for the ('j" \ purchase of 24 hectares. They had arranged to make a deposit of $70,000 in December 1984 with the balance of$120,000 to be paid in April 1985.33 In December 1984 Willoughby acknowledged the receipt of $70,000.34 By September 1985 the balance had not been paid to the owners which meant that the rubbish dump extension into Papamoa 2 Section 10A2C5 had not been completed, according to the lawyers due to inaction by the Ministry of Works. Willoughby suggested that 'perhaps

the balance of the purchase price should be invested for the benefit of the owners. ,35 This would indicate that although a deal had been made the owners had yet to receive full payment and someone else was therefore making interest on their money. In January 1986 Willoughby informed the council that the land had been vested in the borough in November 1985 and a balance of $20,000 had yet to be paid to the owners. Willoughby requested that interest be paid on this sum stating that the 'delay . in completion was not that of the vendors nor the Council but due to the inordinately

32 Groothuis, Stewart, Middleton & Pratt to Town Clerk, 7 November 1984, MMBC, Engineering file 8/4, IDC 33 Town Clerk to Maltby Hare & Willoughby, 22 November 1984, MMBC, Engineering file 8/4, IDC 34 Maltby Hare & Willoughby to Town Clerk, 17 December 1984, MMBC, Engineering file 8/4, IDC

70 long time it took for Ministry of Works to take necessary action.' 36 Cunningham responded by enclosing a cheque for $20,000 and saying that 'no allowance has been made for interest' and the council 'have been ready and able to pay at any time the

amount was called for. ,37 Willoughby responded that twelve to thirteen thousand dollars was still owing and concluded by saying 'we are agreed that the Council was not at fault but it did get the benefit of retaining the money or of not having to borrow

it and we ask that this aspect be looked at again with a view to a payment. ,38 There is no record on the council file of how this matter was resolved as it appears to have been dealt with by the solicitors.

These types of disputes concerning delays in p~yments and whether or not interest should be paid on this money to the owners were common and invariably resulted in the Maori owners not receiving their money for a considerable time after the agreement had been made, and when this money was finally paid there was no payment of interest. This interim interest on what was rightfully the owners' money was enjoyed by the local body.

/'- '\. -\'- } 2.4 Oxidation Ponds

In the 1960s the Mount Maunganui Borough Council began to investigate the need for improved sewerage treatment for the area. Initially they considered Maori land at Mangatawa to be best suited for the disposal of sewerage, particularly considering that there was a rubbish dump and quarry already on Nga Potiki land. The proposal to use Maori land was vigorously opposed by the owners and so the council decided to look at alternative sites. Although the council wanted to avoid unpopular public opinion for the scheme they were also motivated by fmding a fmancially affordable scheme. In 1968 they employed engineers Steven & Fitzmaurice to provide a report that would identify the feasibility of a sewerage scheme for the borough. A number of possible sites were examined by the engineers who recommended the reclaiming of land in Rangataua Harbour for an oxidation pond The area chosen was 130 acres of

35 Maltby Hare & Willoughby to Town Clerk, 12 September 1984, MMBC, Engineering file 8/4, IDC 36 Maltby Hare & Willoughby to Town Clerk, 15 January 1986, MMBC, Engineering file 8/4, IDC 37 Town Clerk to Maltby Hare & Willoughby, 17 January 1986, MMBC, Engineering file 8/4, TOC

71 mudflats near the rubbish dump. Initially the idea was that the oxidation pond would be of a temporary nature until an ocean outfall was built. A number of sites for the pond were considered but the site near the rubbish dump was, from the council,' s perspective, most cost effective because it would serve the double purpose of providing a retaining wall for waste from both the dump and pond escaping into the sea [see 2.3].

As mentioned earlier in the section on the dump by the 1970s there were some concerns about the council's operation at the dump, and in 1973 the town clerk said that to the best of his 'knowledge and belief, no refuse had been deposited on the tidal portion of the beach' nevertheless the council was in .the process of attempting to 'promote legislation to allow it to reclaim a small portion of the adjoining foreshore for the purpose of siting oxidation ponds' and if this was successful then the ponds' retaining walls would 'provide an effective barrier to prevent seepage of any sort

between the refuse tip and the tidal waters of Bay. ,39 This suggests that although the council were taking submissions on the possible sites for the pond in 1974 they had in "/ "J 1973 clearly identified their own preferred site for the pond which would appear to be largely determined by the fact that the walls of the pond would serve a dual purpose for both the dump and the sewerage pond. In short, their main imperative was cost. The council were also committed to implementing some type of sewerage scheme because their government subsidy of approximately $700,000 for sewerage disposal lapsed ifnot used by November 1975.40 Unfortunately for the Nga Potiki owners the dump was already on their land and the oxidation pond was soon to be on the adjoining mudflats, despite their own protests and those of other interested parties. Fortunately for the council the consulting engineers they employed were in agreement on three vital points: 1. Reclamation of land was necessary. 2. Reclamation should take place next to the dump. 3. A sewerage pond was preferable to any other scheme.

38 Maltby Hare & Willoughby, 6 March 1986, MMBC, Engineering file 8/4, IDC 39 Town Clerk to Director of Marine Division, Ministry of Transport, 12 December 1973, MMBC, Engineering file 8/4, TDC 40 Division of Public Health to Town Clerk, 22 November 1972, AATE A10021 S63b

72 Not surprisingly the Nga Potiki land owners adjoining the proposed reclamation site were unhappy with this proposal. Not just because this scheme would have a further detrimental effect on their own land value, but also because they had a close affinity with the bay as a source of food and associated mana as well as acknowledging a role ofkaitiaki for the area. In April 1974 Maori residents of Mangatawa, Papamoa and .Welcome Bay mounted a protest at the ponds' location, arguing that it would 'cause environmental, financial and historical hardship to the people of the area.,41 At a meeting of the Mangatawa-Papamoa Incorporation William Ohia told those present that, as well as concerns about possible offensive smells, 'it will also mean a marked depreciation in the value of land in the area - and with the rapid spread of development, the slopes of Mangatawa will soon become prime residential blocks. ,42

·Mangatawa-Papamoa Incorporation member, Riini Paraire said that the area had strong cultural significance for local Maori and:

it was time people in the area voiced objections and became the spearhead of the fight to stop the ponds at Welcome Bay.... it was a gathering place of hundreds of people during summer, and the shellfish in the Bay were considered a delicacy by local and hinterland Maoris. All these things will be affected if we allow the oxidation ponds at Rangataua-Welcome Bay. The pipeline will be through tapu land, and if there are other possible solutions why destroy beautiful Tauranga?43

Ormsby of the Hairini Marae Committee gave his support to the 'people of Tamapahore Marae' who had joined 'the fight against the ponds.' He believed that Nga Potiki had 'become the victims of bureaucracy here - the rubbish tip established at Te Maunga was supposed to be a re-cycling depot. The same problem would come with the ponds - once the council gets a foot in there is no stopping them. ,44

An environmental impact report was undertaken and submissions on this report were taken from government departments and public interest groups. This report made little mention of Maori interests which is somewhat curious considering that they

41 Bay ofPlenty Times, 2 April 1974, ATTE A1002/563b, NAA 42 ibid 43 ibid 44 ibid

73 were the adjoining land owners and the majority of the community living in the vicinity of the proposed sewerage pond. Although this is perhaps curious it is not surprising when the emphasis of the report was on the 'flourishing ecosystem' rather than the people living nearby. The report concluded that the reclamation would have only minor effects on the environment. A number of interest groups felt that the report had a predetermined agenda in favour of the council's proposed plans for a sewerage scheme and therefore placed these groups in the position of researching and fmding alternative sites:

They feel the onus should not be on them to mount a fact~finding study of the scheme, but they have no alternative they say other' than to present a hard-hitting case supported by facts.

Maori people have launched a particularly vigorous campaign' of opposition to the scheme because Welcome Bay is their main source of shellfish in the area, as well as being a traditional source. The chairman of the Tauranga Executive of Maori Committees, Mr W. Ohia, says the Treaty ofWaitangi, for what it is worth, provides Maoris with the right to harvest shellfish from traditional sources. This scheme, he says will pollute our traditional source of fish and a popular swimming area, and will flout the treaty.45

~ However, these groups were able to voice their concerns through the Commission for \, ) the Environment which had called for submissions from local interest groups. These submissions indicated that there was strong public resistance to the report and the location of the site. There was a general feeling amongst many of those who presented submissions that the report had a predetermined agenda instigated by the council as a means of confirming their plans. Fourteen submissions on the impact report were received, with five of these being from govemmentdepartments. Of these fourteen submissions, twelve opposed the pond being situated in a tidal area. 46 A wide range of submissions were received from: • T.O. Mills on behalf of nine organisations; • Tauranga District Maori Executive; • Tauranga Acclimatization Society; • Tauranga County Council; • Tauranga Jaycee Incorporated;

4S New Zealand Herald, 14 May 1974, BAHT 4122/51d, NAA 46 Commission for the Environment, Mount Maunganui Oxidation Pond Reclamation Environmental Impact Audit, 15 October 1974, ABKK W4357 501579 pt 2, National Archives, Wellington [NAW]

74 • Bay of Plenty Harbour Board; • Bay of Plenty Catchment Commission; • Dr c.L. McLay and C. Hay of Canterbury University; • Nature Conservation Council; • Department of Health; • Department of Scientific and Industrial Research; • Ministry of Agriculture and Fisheries; • Marine Division, Ministry of Transport; and • Ministry of Works and Development.

The Tauranga District Maori Executive stressed their traditional association with Rangataua Harbour and Mangatawa and submitted the comments of an engineer who felt that because of population growth Welcome Bay was not a suitable location for long term sewerage disposal. Nga Potiki land owners argued that just because the council had decided against using Maori land for the pond it was not acceptable to now propose the harbour site which was also a significant area for Maori:

The letter from the Town Clerk. .. indicates that the present reclamation is proposed "so as to avoid alienation of the opinions of the shareholders in the Incorporation numbering some 300 persons of Maori descent". The present proposals are alienating the opinions of some 3000 persons of Maori descent. 47 The point that is being made here is that although the council had to a degree acknowledged theconcems of some of the land owners it had failed to recognise the wider cultural significance of the area and the fact that it was predominantly Maori people who would find themselves living next door to the borough's sewerage treatment area. Other groups shared similar concerns, the Tauranga Acclimatization Society argued that:

The use of this part of the barbour are dismissed as merely game shooting and other occasional acquatic [sic] 'past times'. This indicates a grave lack of knowledge of the area. It is probably the major water skiing area in the Tauranga Harbour, is used to a very great degree for gathering shellfish by the Maori people, and is also used for swimming and boating.48

47 Mandeno Chitty & Bell to Ngapotiki Executives, 6 August 1974, ABKK W4357 50/579 pt 2, NAW 48 Cooney Lees & Morgan for Acclimatization Society to Commission for the Environment, 9 August 1974, ABKK. W4357 50/579 pt 2, NAW

75 The chairman of the Maori executive, William Ohia felt that the environmental impact report on the oxidation pond reclamation failed to adequately address the fundamental issue of 'offensive smells that most people associate with oxidation

ponds. ,49 The executive found it unsatisfactory that the only solution to this problem that the report presented was the further taking of Nga Potiki land either side of the pond as a 'buffer zone.' Qhia felt that a 'substantial acreage' of culturally significant ·land had already been taken for public works purposes, particularly Mangatawa Hill and the rifle range land, and felt that 'enough Maori land has been acquired for these purposes without the acquisition of this further area merely to facilitate establishment

of this purely parochial piecemeal scheme. ,50 He was not alone in this opinion, the law fum of Cooney Lees & Morgan, acting on behalf of the Tauranga Acclimatization Society stated:

Here and elsewhere considerable reference is made to the refuse tip with the apparent intention of implying that since the environment has been badly affected by this action of the Mount Maunganui Borough Council, further detrimental effects are of little importance. In other words, one wrong is being used as lever to introduce another. 51

!: From a Nga Potiki perspective this last sentence is probably the crux of the matter. They have experienced a continued sense of grievance at the hands of local bodies who have used and abused their land under the pretext that because a quarry site already existed then it was of little consequence that a rubbish dump was situated nearby, and it was only therefore logical that the area would be suitable for a sewerage treatment pond.

The above quote also suggests that it was common knowledge in Tauranga that when the council wanted to do something that might be unpopular they tended to look towards using Maori land for this purpose. The council's two main considerations when looking for suitable sites was price and the need to avoid adverse public opinion. Locating their development projects on or near Maori land generally was seen as acceptable by the wider community who saw this land as unproductive and

49 Wtlliam Ohia, Chairman of Tauranga District Maori Executive to Commission for the Environment, 7 August 1974, ABKK W4357 50/579 pt 2, NAW 50 ibid 51 Cooney Lees & Morgan for Tauranga Acclimatization Society to Commission of the Environment, 9 August 1974, ABKK W4357 50/579 pt 2, NAW

76 already the location of various adverse man-made features. In the case of reclaiming land from Rangataua Harbour, however, other groups such as environmentalists, and recreational water users had a vested interest in the harbour which saw them willing to argue against the proposed site. Ohia argued that the people most adversely affected were Maori because:

They own all the land that borders along the proposed site and, therefore, will suffer through depressed land values. The area to be reclaimed contains the marshes which are an important part of the regeneration cycle of shellfish. Most important, however, is if the reclamation and siting of the above becomes a reality the reclassification of the western harbour waters will inevitably follow and the present proposed S.N. classification in part of this area will be reduced to suit the scheme. The result would be a loss of yet another traditional source of seafood to our Maori people. A public petition against the whole scheme has, so far, gained support from over 6,000 signatures, surely an indication the public are not in agreement with. the Borough Council's intention. 52

This quote indicates that the executive believed that Nga Potiki would be detrimentally affected fmancially by the loss of land value and by the stigma and potential smell of living next to a sewerage pond; by the loss of the marshes, which would damage the shellfish population; and such a loss would affect their mana and

/ ''\ kaitiakitanga. ~ "- ,)~

Other groups within the area were also aware that Maori were usually the people most adversely affected by council schemes. T. O. Mills the representative of nine Tauranga organisations stated that Maori should have the same rights as Pakeha in determining what happened to their land:

It is clear that [residential] development will extend around Welcome Bay and the Maori owners should have the same rights as others in deciding whether or not their land should be taken as a reserve or they can subdivide for housing. By allowing the ponds to be constructed this clearly takes the choice out of their hands. 53 This opinion was shared by the engineers working for the Nga Potiki executive who stated that the only reason that the council wanted to situate the pond on reclaimed land was out of economic considerations which failed to recognise the economic

52 William Ohia, Chairman of Tauranga District Maori Executive to Commission for the Environment, 7 August 1974, ABKK W4357 501579 pt 2, NAW 53 T.O. Mills authorised representative of nine Tauranga organisations to Commission of the Environment, 16 August 1974, ABKK W4357 501579 pt 2, NAW

77 costs to Maori owners.54 There were others however, who believed that Maori land was unproductive and therefore that it was right for Maori land to be used:

The stated difficulty of obtaining land from the Maori owners appears to be based on approaches by the Borough Council to the Maori owners in early 1971. Since that time, and more particularly in recent months, the Maoris living in the district have voiced their concern that the proposed reclamation will destroy shell fish beds in the area. It is not unreasonable to assume that given the unproductive nature of the land and the Maori owners objection to proposed reclamation, they may now be prepared to agree to this acquisition or leasing of land for the construction of oxidation ponds. Surely an approach to the Maori owners late in 1971, without any further attempt by the Borough to discuss any further alternative to the reclamation with them, cannot be used as a justification for siting the ponds on reclaimed land some years later. 55

This quote probably accurately reflects public opinion towards Maori land at this time. Three points should be stressed about this quote: 1. There was a common public misconception that it was difficult for the Crown to get hold of Maori land when the opposite was in fact the case. 2. Because Maori had voiced concern about the reclamation they should be prepared to offer their land as an alternative site. 3. Maori land was believed to be unproductive, therefore available for public use,

/- '-" ~ whereas the Mangatawa Papamoa block was (and is) a successful agricultural unit. "'-- )

The idea that it was difficult for the Crown to obtain Maori land was patently wrong, particularly in this case when land had already been taken from these same owners for a rubbish dump and quarry. The implication that can be drawn from this quote is that it was the fault of Maori owners that the reclamation was even being considered in the first place and so they should be willing to have the sewerage pond on their land. One thing we can be certain of is that if this land had been owned by the Jaycees they would not have been so ready to offer it up for a sewerage pond. The Department of Agriculture and Fisheries expressed a similar opinion to that of the Jaycees:

One of the most vocal groups objecting to any possible loss or reduction in shellfish beds are the local Maori executives and committees. Perhaps the local Maoris, who own the land proposed as alternatives ... could see the way open to the siting of the ponds here thus safeguarding the shellfish populations they utilise. 56

54 Mandeno Chitty & Bell to Ngapotiki Executives, 6 August 1974, ABKK W4357 50/579 pt 2, NAW 55 Tauranga Jaycees Incorporated to Commission for the Environment, 16 August 1974, ABKK W4357 50/579 pt 2, NAW 56 Ministry of Agriculture and Fisheries to Commission for the Environment, 9 August 1974, ABKK W4357 50/579 pt 2, NAW

78 The Department of Works believed that from a cost and technical point of view the

\ area chosen for the pond and outfall was suitable 'because the area is generally of poor quality undeveloped peat land, it is adjacent to the refuse tip site and it is

separated by the railway reserve from the areas of likely residential development. ,57 This position would appear to be the exact point that Cooney Lees & Morgan had made on behalf of the Acclimatization Society when they said that 'one wrong is

being used as lever to introduce another. ,58

Ohia argued that the report was woefully inadequate in acknowledging the 'traditional and cultural significance' of the area to Maori. Qhia tried to explain the history, mana and kaitiakitanga that Nga Potiki in particular felt about the harbour by reciting a waiata:

Rangataua harbour and its foreshores is steeped in our early history. Traditional quotations recognised throughout Maoridom refer specifically to that ann of the Tauranga harbour. For example this exalting: He aha ano Kia Kia Rangataua He paruparu nga Kui / '\ He Taniwha nga tangata -"-, } meaning No wonder they say of Rangat au a The people demigods They thrive on their Titoko (mud snails) and another Whahatauki:

Nga Wai 0 Rangataua He whaka rara mai nei Kei aheaano Takahia ai ano Takahia ai e ahau meaning The waters of Rangat au a That glitters ahead When do I tread o'ver you to battle. this latter quotation was made by Te Rangihouhiri to his grandfather Tamapohore asking when he was to be allowed to transverse the Tahuna, to battle. 59

57 Commissioner of Works to Commission for the Environment, 20 September 1974, ABKK W4357 50/579 pt 2, NAW 58 Cooney Lees & Morgan for Tauranga Acclimatization Society to Commission of the Environment, 9 August 1974, ABKK W4357 50/579 pt 2, NAW 59 William Ohia, Chairman ofTauranga District Maori Executive to Commission for the Environment, 7 August 1974, ABKK W4357 50/579 pt 2, NAW

79 The implication was that the harbour was considered a source of mana that deserved and required protection. Ghia went to considerable lengths to stress the traditional and customary relationship of Nga Potiki with the harbour and how this had been threatened by the proposed sewerage pond. He concluded that the Maori attitude to the sewerage ponds was that 'come hell or high water we are not going to give it our support'. The executive were also concerned that the opinions of objectors were not included in the report. With this failure in mind Ghia said that the executive wanted future reports prepared by an independent body:

We feel that it is high time that independent bodies were engaged to prepare them as an authority with a vested interest in a particular project cannot, even with the best will in the world, be expected to be totally unbiased in preparing the report. Evidence supporting this scheme appears to get greater emphasis than evidence to the contrary.6/)

He argued that alternative schemes had been 'glossed over'. This would appear to be a particularly valid point when the opinion of the Treasury is considered. Treasury, like Works, believed the site was suitable. They were of the opinion that 'although the

~ public outcry does not seem to have emanated from the borough' the environmental \" ) report was nevertheless useful because it indicated 'that the proposal for the

reclamation ... is environmentally acceptable. ,61 The fact that Treasury were incorrectly suggesting that the 'public outcry' was not local lends credence to the view that the opinions of those opposed to the proposal were excluded from the various reports sent to government.

Another area that Ghia stressed was the loss of a traditional source of seafood. As the above waiata indicates Nga Potiki were known to value the harbour as a valuable source of titiko (snails). A number of interest groups provided submissions concerning the environmental impact of reclaiming the mudflats for the sewerage pond, the examination of this aspect of these submissions will restrict itself to how building the ponds would effect Maori and their food gathering ability. The engineers Stevens & Fitzmaurice were of the opinion that 'there is no known way of

60 ibid 61 The Treasury to Minister of Finance, 1974, ABKK W4357 50/579 pt 2, NAW

80 determining in advance the rate of die-off of bacteria in the sea water at a specific site if the actual sewage in question is not available. ,62 The engineers also stated that 'although the proposed sites are reasonably isolated it would not be realistic to claim that that there is no risk of an odd upset causing difficult conditions. ,63 The medical officer for the Department of Health expressed the opinion that effluent in the sea would not harm the shellfish but would in fact 'likely to be beneficial because of the nutrients it contains.,64 The health officer did not say whether or not these nutrients were beneficial for the Maori people eating this seafood, nor does he mention whether or not he would be prepared to eat these sewerage enhanced shellfish. Others however, were less positive about the benefits of sewerage as a food source for the shellfish and fish population of the harbour. Dr C. L. McLay of Canterbury University took exception to the medical officer's remarks and said 'a well stocked community of shellfish already exists and therefore, obviously does not require any additional growth stimulation.'65 Ironically, what both opinions fail to acknowledge is the possible health risks to the public. They stressed that the shellfish population would survive and perhaps flourish on the sewerage but failed to consider the human impact : 'y of eating such shellfish. The Department of Health for their part was perhaps, because of ignorance of how local Maori used the area, able to dismiss the impact on people because they believed that although 'the area is one of high natural productivity, particularly of one species of snail ... the snail population in the area under consideration is apparently unexploited' and therefore there was no problem.66 The Ministry of Agriculture and Fisheries, however, were of the opinion that the snail population in the bay was harvested by local Maori people:

Measurement of the mud snail revealed that the population adjacent to the tip site had extended eastwards to the Mangatawa stream is not heavily exploited but that the area to the West of the tip site and the Asher Road area are heavily fished. No samples were taken from the Maungatapu section of the complex which is fished regularly by

62 Stevens & Fitzmaurice, Borough of Mount Maunganui Sewage Collection and Disposal Report, 1969, p 7, AATE A1002/563b, NAA 63 ibid, P 9 64 Dr C.L. McLay and C. Hay, Department of Zoology University of Canterbury to Commission for the Environment, 22 July 1974, ABKK W4357 501579 pt 2, NAW 65 ibid 66 Department of Health to Commission for the Environment, 12 August 1974, ABKK W4357 501579 pt2,NAW

81 local and inland maoris [sic].67

Unlike the health officer, Fisheries had found that sewerage had not been beneficial in the growth of the snail. They believed that the snail population 'may be suspect as a food because of the high bacterial content of the gut. ,68 Fisheries concluded by saying that the ponds should be located on land 'rather than reclaim the mudflats and remove a source of food from the Maoris on an important section of the systems ecology. ,69 The Jaycees also used the argument that the bay was an important food source to local Maori in their own submission:

It is an important future source of Titiko for the increasing Maori population of the area ....From our knowledge of the area, it is clear that the demand will increase and that the area, if reclaimed, will deprive the Maoris of an important future source of Titiko?O

The council's lawyer, Willoughby 'accepted that reclamation would completely eliminate aquatic life in that particular area. But it was not a serious intrusion into the harbour. which covered acres alive with fish. ,71 What Willoughby correctly identifies is that the pond itself would take up an area once the home of marine life. This also indicates that those most greatly affected apart from the fish life would be the Nga Potiki land owners who owned the adjoining land.

Upon receiving these submissions the Commission for the Environment presented its environmental impact audit which brought together the concerns of the various parties within one document. The commission had doubts about the site, particularly because of the detrimental financial impact it would have on the price of nearby land, and the effect it would have on the environment:

it is clear that locating the ponds at Te Maunga as proposed will prevent the full development of the surrounding land and will severely reduce the value ofMangatawa Hill as a regional reserve ....Because of the attractiveness of the beach at Mt Maunganui and the ranges behind, any other reserve which is not equally attractive

67 Ministry of Agriculture and Fisheries to Commission for the Environment, 9 August 1974, ABKK W4357 50/579 pt 2, NAW 68 ibid 69 Ministry of Agriculture and Fisheries to Commission for the Environment. 9 August 1974. ABKK W4357 501579 pt 2, NAW 70 Tauranga Jaycees to Commission for the Environment, 19 August 1974, ABKK W4357 501579 pt 2, NAW 71 Bay ofPlenty Times, 10 April 1975, BAIIT 4122/51d, NAA

82 would not be fully used.72

The commission concluded that the proposed reclamation was not justifiable because of its impact on the area and the fact that there were better alternative sites available. The various parties and departments who made submissions had their own departmental imperatives to convey to the commission. The Department of Health for example, responded to the audit negatively and the commissioner replied to the departments issues. The Department of Health was unhappy that the commission had not endorsed the preferred site. In a letter concerning the commission's preferred site from the commissioner for the environment to the director general of health there are marginal notes stating, 'a conviction based on ignorance and a lack of consultation', and 'irrelevant', and 'this rather weak reply to my [letter]. . .', and 'what nonsense', which suggests there was considerable animosity between the departments and

personal agendas at work. 73 At the very least it gives some idea as to why the various departments had conflicting information concerning the environmental impact of the ponds and the public feeling. For example, for Treasury to suggest 'that the public

/' '-'.. ~~ outcry does not seem to have emanated from the borough', was incorrect when Nga J Potiki people living across the fence, and a number of high profile community groups, were being very vocal through official governmental, and media channels.74 In 1974 journalist Haare Williams produced a television documentary on the impact of the scheme on Nga Potiki. In this documentary, as well as indicating the potential adverse effects of the sewerage pond, Williams outlined a number of other projects that Nga Potiki have had their land taken for, including the rubbish dump, reservoir and quarry, all of which are graphically depicted in the documentary to show the damage that has been done to the environment and the pain it has caused Nga Potiki people. Apart from this powerful documentary outlining the vigorous opposition that Nga Potiki voiced concerning the sewerage pond there were a considerable number of newspaper

72 Commission for the Environment, Mount Maunganui Oxidation Pond Reclamation Environmental Impact Audit, 15 October 1974, ABKK W4357 50/579 pt 2, NAW 7J Commissioner for the Environment to Director General of Health, 4 December 1974, ABKK W4357 50/579 pt 2, NAW 74 The Treasury to Minister of Finance, 1974, ABKK W4357 50/579 pt 2, NAW

83 articles in the local and national press that voiced the concerns of Nga Potiki people,

presumably all of which went unseen and unread by Treasury. 75

By 1975 Nga Potiki was questioning the reclamation of land for the pond on the grounds that this same 'area between the shoreline and Mangatawa Hill may be

become suitable for subdivision.' 76 This appears to be an attempt to appeal to the council's main focus which was the cost and potential value of the site. The council argued that 'since the land in question is designated on the Tauranga County District

Scheme as a regional reserve the possibility of residential use is problematical. ,77 Nga Potiki suggested a number of alternative sites all of which were dismissed by the council:

A third site suggested by the owners of the MangatawalPapamoa block adjacent to State Highway number 29 has been investigated by the council. This removes the owners immediate objections, but lies across a major interchange planned in conjunction with the realignment of the highway when it is upgraded to motorway standards, the council said.

A fourth site also suggested by the owners of the MangatawalPapamoa block was investigated to the east of the Mangatawa Hill and the Tamapahore Marae. This site proved unsuitable as it conflicted with the Papamoa Development proposals and ,~ lacked the required area of suitable land. Also the buffer zone around the site would extend over a large portion of land with residential potential and the cost in delivery and outfall would be increased by about $225,000.78

As well as effectively being placed in the position of having to do the council's job by examining and identifying possible alternative options for the pond, Nga Potiki also went the added step of offering their own land. This willingness to suggest alternatives sites and make their land available to· the council·is.indicative of the strength of feeling that Nga Potiki had against the reclamation.

In 1975 the member for Tauranga, K.R. Allen, introduced a Bill into parliament for the construction of the oxidation pond and the outfall. Today the pipeline for the outfall goes under incorporation land and the outfall on the beach goes through an urupa site. The Bill was supported by Matiu Rata because the alternative would have

75 Haare Wtlliams, Affairs-Tauranga Pollution, September 1974, Supplied to Bassett Kay Research by Victoria Kingi of Russell McVeagh McKenzie Bartleet & Co, 3 May 1999 76 Bay ofPlenty Times, 10 April 1975, BAHT 4122f51d, NAA " ibid

84 meant taking the land under the Public Works Act. The Bill was opposed by the member for Eastern Maori, Reweti, the Commission for the Environment, Ministry for Transport, Ministry of Agriculture and Fisheries and the Department of Works. Reweti told parliament that the majority of Maori people from the Tauranga area opposed the proposed location of the ponds. He said that 'the Maori Land Corporation had offered an alternative land site to the borough for the establishment of a sewage

treatment plant, but this had been rejected' .79 Allen said 'it was not always possible to please everyone. ,80 The Bill sought authority to reclaim approximately 75 hectares of the harbour. The council's submission stated that 'the area of Rangataua Bay upstream of the Matapihi-Maungatapu Road Bridge is approximately 2,200 acres, of which some 320 acres is permanent water at .neap tides.'81 The commissioner of Works told the chairman of the Local Bills Committee that the area chosen was suitable because of its 'central' location and also because the area 'is generally of

poor quality undeveloped land~ it is adjacent to the Borough's refuse tip site, and is separated by the railway reserve from areas of likely residential development. ,82 Although Works supported a oxidation pond as the best option for the area they did

~ express opposition to the 'proposed reclamation' the advantages of which they considered 'marginal enough to raise doubts on the necessity of reclaiming the sensitive tidal estuary area. ,83 They concluded by suggesting that 'a location with only marginal reclamation, or preferably no reclamation at all would be desirable especially if consideration is given to the layout of the oxidation ponds to improve their appearance aesthetically. ,84

The council in its own submission said 'a vast escalation in land values had made any land-based site completely unrealistic on financial grounds.'8s The Local Bills

78 ibid 79 New ZealandHerald, 11 April 1975, BAHT 4122151d, NAA 80 ibid 81 Submission to the Local Bills committee of the House of Representatives April 1975, BAHT 4122/51d, NAA 82 Commissioner of Works to Chairman of Local Bills Committee, 8 April 1975, BAHT 4122/51d NAA; and ABKK W4357 50/579 pt 2, NAW 83 ibid 84 ibid 8S Bay ofPlenty Times, 10 April 1975, BAHT 4122/51d, NAA

85 Committee recommended the Bill, and it was passed into law as the Mount Maunganui Borough Reclamation and Empowering Act 1975 with little debate.86

The Tauranga Maori Executive were 'deeply dismayed' by the decision of the Local Bills Committee to endorse the Bill. They argued that reclamation was unjustified and would detrimentally affect the area. They stressed the following points: • approval for the scheme had been given despite the fact that it was 'blatantly contrary to the audit of the Environmental Impact Report'; • the decision to go ahead was made despite 'strong public opinion against the reclamation of Rangataua Bay'; • the scheme would 'create a derogatory connotation in regard to the deep historical significance' of the area; • 'fail to guarantee the edibility of the shellfish'; • 'reduce land values'; • 'reduce the public enjoyment' of the bay; and • 'create a blot' on the landscape.

,:" "~i " ) The executive concluded by saying that they found 'it very difficult to comprehend the purpose of compiling an environmental impact report with its recommendations,

only to have this same decision thrown out by another government department. ' 87

Despite such vigorous protest from local Maori the council's process of consultation appears to have been aimed at avoiding adverse publicity rather than acknowledging that there may have been merit in these objections. The process of consultation in the first instance appears to be a means of having their preferred option endorsed. Despite stressing that they had taken the opinions of Maori owners into consideration by not having the pond situated on Maori land this consideration to these Maori owners appears to be motivated as much by the adverse publicity they received and the cheaper cost of reclaiming land, rather than any acknowledgment that these owners had a point. The council appears to have paid little more than lip--service to the

86 New Zealand Parliamentary Debates, 10 September 1975, p 4333-4336 f>I Bay ofPlenty Times, 8 September 1975, BAHT 4122/51d, NAA

86 consultation process, using it more as means a of swaying public opinion. The inadequacy or lack of interest that the council had in consultation, is evident in the

\ fact that the onus of initiating consultation and investigation of possible alternative schemes and sites was often left with the Maori owners and other interested parties. The failure to consult adequately is also evident in the degree of misinformation that the various government departments circulated about the situation, particularly in regard to the extent of opposition that existed. The sewerage pond developments, although initiated by the local authority, came about due to the passing of an Act of parliament. Therefore, the duty to initiate consultation on this development lay with the Crown.

2.5 Telecommunications Tower (Kopukairoa)

The following section on the telecommunications tower has largely been taken from 'Anita Miles 'Kopukairoa: Tauranga Telecom Site' report. Since 1962 the Ministry of Works have used one and a half acres on the summit of Kopukairoa as the site of a ,~) VHF station.88 The amount of land taken was 2 acres 1 rood 9.6 perches from Papamoa 2 Section 1D which included the summit of Kopukairoa. Miles, citing Evelyn Stokes, says that:

Kopukairoa maunga lies in Nga Potiki territory and Ngati Pukenga do not have a long standing traditional claim to this maunga, being established in Papamoa since 1857. If Ngati Pukenga were the sole claimants to Kopukairoa, it is considered that they would have some difficulty in establishing their association with the maunga. However, from necessity, much of this information on this matter is from secondary. source material and oral traditions may be of assistance here. 89

Today the flat land beneath Kopukairoa is still owned by Nga Potiki people. In October 1962 the owner ofKopukairoa, Boy Ririnui, consented to Works entering his property to construct a transmitter and access the site. He also agreed that the land required for this work would be taken by proclamation and that compensation for the land taken would be awarded at the end of a three year trial period.90 After a further

88 Anita Miles, Kopukairoa: Tauranga Telecom Site, Waitangi Tribunal Research Series, 1994, No 4, P 9 89 ibid, P 6 90 ibid, p 9

87 nine years an agreement was reached between Ririnui and Works concerning the amount of land taken for the station and the amount of compensation that would be paid. Works had during these nine years been negotiating with adjoining land owners over securing access routes to the site. The eastern boundary of Ririnui's block was owned by John Fitch but negotiations between Fitch and Works fell through and in 1964 the district commissioner of Works was advised to consider an alternate route

through Maori owned land. 91 The new route decided on by Works went through Papamoa 2 part Section 2B3A and Papamoa 2 Section 1E2G. The consent for Works to build a road on this land was obtained in September 1965 from the principal owners of the land.92 On 9 March 1967 a notice of intention to have two takings of 1 rood 37.7 perches and another of 2 acres 0 roods 15.4 perches fromPapamoa 2 Section lE2G, as well as 1 acre 1 rood 17.7 perches from Papamoa 2 Section 2B3A was published in the New Zealand Gazette in March 1967. According to Works no objections were received. The Maori Trustee, on behalf of the owners, accepted £40 as payment for this land .

./ ''''" ~ By October 1966, Works had completed a survey plan of the land taken. Initially in 1966 Works intended to take three acres for the VHF site and a further 6.9 perches for access for £100 and an additional £12 for the occupation of the half acre since 1962. Ririnui felt this was too much land and threatened to withdraw from negotiations unless Works reduced the amount of land required. After much discussion Works agreed to reduce the amount of land to 2 acres 1 rood 9.6 perches to betaken from Papamoa 2 Section ID which included the summit of Kopukairoa. On 14 November 1968 it was agreed that $328 would be paid for this land which Ririnui received in July 1971.93 Between 1966 and 1981 Ririnui sold other land surrounding the site and including the rest of the maunga.

Under section 23 of the State Owned Enterprises Act 1986, ownership of Kopukairoa and its adjoining rights were transferred by the Crown to Telecom and in 1990, when

91 C. C. Johansen to District Commissioner of Works, 16 February 1965, cited Miles, p 9 92 R. E. Hennans, Acting District Commissioner of Works to Director-General of the Post Office, 4 April 1966, cited Miles, p 9 93 ibid, P 11

88 the Crown sold Telecom as a state owned enterprise the land passed into the hands of a private interest Telecom Corporation. On 6 March 1992 Telecom Corporation told the former owners of Kopukairoa that they had no problem about returning the site if certain conditions were agreed upon. They wanted the land returned to the right owners because they did not want to get involved in an 'inter-whanau dispute.' They wanted a lease in perpetuity at no cost to Telecom, and free access to the summit so they could protect their equipment. They were also concerned that under section 40 of the Public Works Act 1981 that the return ofthis land could be considered as being an admission by Telecom that the land was surplus to requirements which would mean that they would be bound by law to offer it to Ririnui. Telecom wanted Ririnui to provide assurances that he would not take the land back.

The Crown's acquisition of Kopukairoa raises questions concerning the rights of individuals over those of the wider hapu. Through the process of individualisation described in Part one of this report the land passed out of the hands of the hapu and into those of an individual (Ririnui) who disposed of the land as he was rightfully

/'- "', ~ entitled but apparently without any concern for the wider implications of the disposal of this land on his fellow Nga Potiki. Miles said that 'as to the question of the significance of Kopukairoa, Mrs Ririnui says that ... he [Boy Ririnui] did not

acknowledge the land being taken had any wider importance. ,94 Miles also says that 'it is clear from conversations with the claimants that issues such as the

individualisation of title to Kopukairoa is of concern to them. ,95

2.6 Other Takings

2.6(a) Gas Pipeline

The natural gas pipeline from Tirau to Te Puke runs through the Mangatawa and Papamoa blocks and is another example of damage being done to Maori land. The pipeline had the physical affect of limiting the development potential of the land, particularly in the 1980s when horticultural development was taking place and the

94 A telephone conversation to the Waitangi Tribunal, 23 March 1992; Miles, p 11

89 land value for this use was at a premium. In 1982 the engineers for the natural gas pipeline informed the Maori Land Board that the construction of the pipeline had

\ been completed and that they had people 'visiting all landowners to discuss fmal

restoration and assist with preparation of compensation claims. ,96 There is no information as to whether or not the owners were consulted before the pipeline was laid.

Despite this confidence in settling compensation claims the Maori Land Court appointed the Maori Trustee to represent the Maori owners of the various blocks of land that the pipeline had gone through. The trustee made an assessment of the value of this land that was required for an easement and the. value of injurious affection that the owners suffered. The conditions of the easement included restrictions on planting above and alongside the pipeline because the corporation wanted the pipeline to be accessible for any maintenance work required and to avoid potential damage to the pipeline caused by planting. The owners and the trustee argued that the planting restrictions limited the use of the wider block for horticultural purposes and had

/" ." therefore lowered the value of their land. -<- )

The trustee's assessment was presented to the Maori Land Court in November 1982 when the Natural Gas Corporation applied for an easement over the land required and offered to pay 50 percent of the value of the land as compensation. The court directed the Maori Trustee to enter into direct .negotiations with the corporation over the amount of compensation that was to be paid to the owners.

In January 1983 the trustee informed Natural Gas that the offer of 50 percent compensation was insufficient and made the following claims: • Mangatawa 4B2 - the trustee claimed $12,214.30 because it had become less economically viable to develop what remained of the block.

95 ibid, pIS 96 Bruce Henderson & Associates to Maori Land Board, 22 June 1982, BAZQ 4958/52a, NAA

90 • Mangatawa 13 - a claim of $36,519 was based on the grounds that the area had been 'severed and is no longer suitable for horticulture which caused injurious affection. ' • Mangatawa 8C1 - a claim of $1997.50 was based on the grounds that a small area had been severed and the land was no longer suitable for horticulture. • Mangatawa 9A2B - a claim of $33,364.50 was based on the grounds that a small area had been severed and the land was no longer suitable for horticulture. • Mangatawa 9B3B2 - a claim of $74,187.25 was based on the fact that the pipeline was at an insufficient depth which meant that contouring of the land was not possible. • Papamoa 2 Section 2B3C4 - claim of $16,125.20 was based on the grounds that because the block was now smaller it was less economically viable for horticultural purposes. • Papamoa Section 2BIA - a claim of $3,863 was based on the inadequacy of 50 percent compensation. • Papamoa 2 Section lC2 - a claim of $23,400 was based on the fact that the depth / "-~~

'.,,- .,} of the pipeline was inadequate to allow contouring. The compensation of $173.11 for the three metres of easement was agreed upon.97

In March 1983 a meeting was held between the trustees and Natural Gas to discuss the owners' claims. The corporation wanted further information on how the trustee came to the compensation figures claimed. This information was supplied. At a further meeting in September 1983 the corporation informed the trustee that they rejected all claims for injurious affection. The district field officer for the trustee stated that:

It is clear from the meetings with the Natural Gas Corporation and their agents that they reject any claims for injurious affection. They have not been prepared to state the reasons for their rejection of these claims. During our discussions with they confirmed that they only asked their valuers to assess the land value of the land within the easement. These land values are identical to ours. Based on these values the Natural Gas Corporation have offered 50% as compensation for the effect of the easement over the whole of the block of the land through which the easement passes.

The Maori Trustees claim as explained at the Maori Land Court sitting at Tauranga on 10 November 1982 is based on a "before and after" valuation of the land. There is no

97 Maori Trustee to Solicitor, Ross P. Harris, 11 January 1983, BAZQ 4958/52a, NAA

91 difference of opinion of compensation to be paid where the easement goes through the land whose only use is pastural [sic] farming. The 50% of the value of the land offered by the Natural Gas Corporation in these cases is adequate. 98

The trustee and the corporation had the following areas where they differed over compensation. The corporation maintained that 50 percent of the land value was adequate compensation. The trustee maintained that the easement was so restrictive that the use of the land was reduced, and that compensation should also be paid to cover this. The corporation maintained that 50 percent compensation within the easement was adequate compensation to cover injurious affection over the whole of the property. The trustee maintained that the easement drastically affected the land

use of other parts of the blocks. For example, they argued that~ adjacent land use was restricted because the easement separated it from the rest of the block; extra costs were involved in developing the remainder of the block because the horticultural area was reduced in size; and the contouring of adjacent land was either impossible or very

difficult. 99

~ , -} Staff from the Maori Trustee's office had discussed with some of the owners the difficulties they were having negotiating a settlement with the corporation. The owners of Mangatawa 9A2B indicated to the trustee 'that they would like the matter to be finalised.'lOO The owners of Mangatawa 9A2B informed the trustee that:

the proposed line of the pipeline across their land was changed without their knowledge. Originally the line was to go through the· swamp area on the north section of the block but was changed during>construction to run diagonally across good horticultural land. In May 1983 the owners applied to the Natural Gas Corporation for a permit to plant over the proposed easement area. No permit was received so they planted shelter trees right across this area. WI

In August 1984 the district solicitor was able to inform Judge Cull that most of the areas of dispute between the trustee and Natural Gas had been resolved and an agreement had been reached on the amount of compensation that should be paid to the owners of the land. The corporation agreed that the easement would contain a

98 Maori Trustee to Registrar, Maori Land Court, 12 October 1983, BAZQ 4958/52a, NAA 99 Eves Cmmead Associates, Valuation Division to Maori Trustee, 22 December 1983, BAZQ 4958/S2a, NAA 100 Maori Trustee to Registrar, Maori Land Court, 12 October 1983, BAZQ 4958/S2a, NAA 101 ibid

92 provision which allowed for permits to be issued which would allow for planting where the pipeline ran through horticultural land. The corporation also accepted 'before and after' valuations on the basis of which they agreed to pay half the easement strip or the amount of compensation assessed on a before and after basis.

2.6(b) East Coast Main Trunk Line and Associated Takings Work on constructing a railway line from Mount Maunganui to Te Puke, as part of the East Coast Main Trunk line, was begun in 1910 and by 1913 the line was operationa1. The fIrst proclamations offIcially taking the land under the Public Works Act were not gazetted until 1913, and compensation was awarded in the Native Land Court in 1915. The railway line, and roads constructed to provide access to it, cut through those blocks on the peninsula that remained in Maori ownership after the Crown's nineteenth century land purchases.

Land for the Maunganui Bluff [Mount Maunganui] - Te Puke section of the East Coast Main Trunk Railway was proclaimed as taken on 8 May 1913. 102 The Gazette notice listed the following land taken under section 188 of the Public Works Act 1908. As the table shows some land was taken for the railway track and other land for a road running alongside the track:

Land Taken 1913 Block Area Taken Purpose Papamoa 2 Sec 11 21alr 21.0p Railway PaQamoa 2 Sec 11 3a3r27.3p Road. diversions Papamoa 2 Sec 10 6aOr lO.4p Railway Papamoa 2 Sec 10 3a2r23.9p Road diversions Papamoa 2 Sec 9 2a2r 34.6jJ Railway Papamoa 2 Sec 9 3a Or 01.4p Road diversions Papamoa 2 Sec 8 Oa3r 38.8p Railway Papamoa 2 Sec 8 Oa3r 38.8p Road diversions Pa~moa 2 Sec 7 5a2r 19.9p Railway Papamoa 2 Sec 7 7a 1r 21.0p Road diversions Papamoa 2 Sec 6 5a lr 13.4p Railway Papamoa 2 Sec 6 la3r 1O.9~ Road diversions Papamoa 2 Sec 5 lla2r 32.8p Railway

102 New Zealand Gazette, 1913, pp 1594-1595

93 Block Area Taken Purpose Papamoa 2 Sec 5 3a Or02.0p Road diversions Papamoa3A 2a3r08.8p Railway Papamoa3B 12a2r09.0p Railway Mangatawa 1 5a 2r 26.0p Railway Mangatawa 1 OaOr 06.0p Road diversions Mangatawa2 la Or 19.3p Railway Mangatawa3 la 3r 21.9p Railway Mangatawa3 Oa Or 28.5p Road diversions Mangatawa4 2a Or 29.7p Railway Mangatawa4 Oa lr 13.3p Road diversions Mangatawa8 2a Or 17.3p Railway Mangatawa 8 Oa lr29.9p Road diversions Mangatawa9 3a2r29:9p Railway Mangatawa9 la Or 34.4p. Road diversions Mangatawa 10 4aOr32.1p Railway Mangatawa 10 la2r20.6p Road diversions Mangatawa .11 7a2r03.8p Railway Mangatawa 11 Oa lr08.6p Road diversions

In order to provide a site for a station near Mangatawa, and road access to the station more land was taken from the Mangatawa block in June 1915:103 ~ \ '- ~ .;1 Block Area Taken Mangatawa 11 Oa 3r 38.3p Mangatawa9 lOa3r 27.6p Mangatawa 8 4a 3r 36.4p Mangatawa 7B Oa lr04.0p Mangatawa 7C Oa 3r 12.lp Papamoa 2 Sec 2B 3a 2r 21.1p Total Area Taken 21a 2r 19.5p

The Native Land Court hearings to award compensation for all the above blocks were

held in October 1915 and the Mangatawa blocks were the first to be considered. 104 One owner for each partition of the block appeared in the court as a representative and the Crown was represented by Mr Bold from the Public Works Department. Bold told the court that the title to the Mangatawa block was a Crown grant under the Tauranga District Lands Act, and that the grant reserved to the Crown the right to make roads through the area granted. Bold pointed out that under section 35 of the Public Works Act 1908, any right to layout roads also included the right to lay

103 New Zealand Gazette, 1915, p 2007

94 railways. He explained that while the grant contained no limitation on the amount of land that could be used for roads or railways, the general principle had been up to five percent. The total area of the Mangatawa block was 1,295 acres. Bold argued that the terms of the Crown grant meant that the Crown should not have to pay compensation for any of the land taken for the railway and roads. In regard to the extra land taken in 1915, Bold explained that it had not been intended to put a station there, but as a result of a petition from locals a station had been established In reply to this, one of the Maori owners said that when he signed the petition requesting a station he did not intend that the land would be taken without payment. The judge reserved his decision until a copy of the Crown grant was produced.

Lastly the Papamoa blocks were assessed. 105 A representative of the owners of each Papamoa block appeared in court and submitted their claim for the per acre value for each block, which can be found in the table below. Bold, appearing for the Public Works Department explained that before the construction of the railway the Papamoa block's only access was an unformed road along the beach. Sections 7 and 11 would -/' '\. have stations built alongside, and he argued that this would increase their value substantially.

Valuation evidence was presented by Dowell whose valuations were based at 1910 prices. Dowell's valuations are listed in the table below. According to Dowell most of the blocks were sandy, though sections 5 and 6 were swampy. He argued that the railway and drains which had been laid had greatly increased the value of the blocks. In reply to a question about flax growing on the block, Dowell admitted he did not know if there was any there in 1910, but if there was it would have been of little value. Both parties agreed to leave the matter in the hands of the court for a decision.

As regards Papamoa 3B Bold told the court that the lessee and sublessee had agreed to give the land in return for construction of railway crossing. 106 No mention was made of the owners being involved in this agreement, but the court accepted it and

104 Tauranga MB 8, fols 355-358,4 October 1915 lOS Tauranga MB 8, fols 365-370,5 October 1915

95 ordered that no compensation would be paid. The court may have assumed that the railway crossing was fair compensation in terms of improving the value of the land.

The judge issued his compensation awards a week later, and the awards were mostly in line with the values submitted by the Crown. The difference between the amount claimed by the owners and the amount awarded is so large that it is hard to understand today. The court must have been of the opinion that the owners had a totally inflated view of the value of the land in terms of its soil and farming potential. However, the fact that the owners made such high claims indicates that the land had an intrinsic value to them regardless of assessments made as farm land.

Compensation for Land taken 1913 and 1915: Block Claimed by Assessed by Awarded by Owners Valuer Court107 £20 15s racre 15s Pa amoa 2 Sec 10 £20 15s 15s Pa oa2 Sec 9 £20 15s racre 15s Pa amoa 2 Sec 8 £20 15s racre 15s \. - ,./ £25 £1 racre £1 £25 £1/to racre £1110 £20 racre 17s 6d racre 17s6d nil £1/to racre nil not valued £20 racre ent nil

Oral evidence from a Nga Potiki kaumatua describes the impact the railway lines had on his people:

The Public Works was another one that actually killed our people. That's the railway lines and the amount of land they needed at every station. They had about six to eight acres for the railway station and they had another 20 acres for holding paddocks for cows and things like that. They used to drove a lot and then they used to park them at the different railway stations overnight and the next day they carry on. But they owned all that land, so we did lose a hell of a lot with that. 108

106 Tauranga MB 8, fo1370, 5 October 1915 107 Tauranga MB 9, fo153, 13 October 1915 108 Oral interview with Nga Potiki conducted by Roimata Minhinnick, November 1997

96 A separate application for 5 acres 3 roods 00.4 perches taken from Papamoa 2 Section 10 for a post and telegraph storage shed was heard in the court in September 1922. 109

Bold told the court that the block had been leased from 1920 at 10 shillings an acre. 110 He described the portion taken as a 'flat sandy ridge of very poor quality'. The Valuation Department had assessed the value at £30. After inspecting the land taken the court made its compensation awards. III

Block Area Taken Purpose Compensation Papamoa 2 sec 10 5a2rOO.4p Post/Telegraph £30 (plus 2 years interest Storage shed at 5%)

Later Acquisitions Although most of Maori land used for· the East Coast Main Trunk Railway was acquired in the first quarter of this century, two small portions were later acquired for works associated with the railway. In 1929 yet more land was taken to construct a road approach to the line: 112 Block Area Taken Papamoa 2 Sec 10 2a lr 07.1p Papamoa 2 Sec 9A la Or 19.2p Papamoa 2 Sec 9B Oa3r06.3p Total Area Taken 4a Or 32.6p

In 1955 1 acre 2 roods 00.0 perches was taken from Papamoa 2 Section lOB for railway purposes .and used to provide housing for railway workers. 113 A full history of this block can be found in Te Maunga Railways Land Report by the Waitangi

Tribunal. 114

2.6(c) Rifle Range - Land Taken for Defence Purposes In April 1941 139 acres 2 roods 18 perches was acquired by the Public Works Department for defence purposes. 115 The land was part of Papamoa 2 Section 7A.

109 New Zealand Gazette, 1921, pp 2553-2554 110 Tauranga MB 11, fo191, 19 September 1922 III TaurangaMB 11, fols 106-107,23 September 1922 112 New Zealand Gazette, 1929, p 823 113 New Zealand Gazette, 1955, p 1222 114 Waitangi Tribunal, Te Maunga Railways Land Report, Brookers Ltd, Wellington, 1994 liS New Zealand Gazette, 1941, pp 965-966

97 Although the land was taken for a rifle range, for most of the years since then it was only used by the Crown for grazing. In 1967 its status was changed by a proclamation

which declared the land taken for 'general government buildings'. 116 In 1980 Stokes wrote that while the portion between the road and the beach was designated as a reserve the block was still being used for grazing. 117 In 1989 Nga Potiki were able to buy the block on the grounds that it was not being used for the purpose for which it had been taken. 118 Although this block has since been returned to Maori ownership, it is still worthwhile examining the minutes of the Native Land Court compensation hearing because they reveal the way that the Ministry of Works tried to pay as little as possible for land it acquired.

At the compensation hearing on 16 February 1944 the district valuer, Meredith, gave evidence for the Ministry of Works. 119 Meredith had given a 1941 capital value for the block at £1,005, of which the owners' interest was calculated to be £743, and the lessee's at £262. Under cross-examination from Cooney, the lawyer representing the owners, Meredith admitted that he had assigned no value for the 14 acres of sand hills ...... \,~ ) on the beach front, and had valued the remainder of the block 'purely for farming purposes' .120

Cooney disputed the way that the Ministry of Works had valued the land purely on its worth as farming land. He also argued and that because the Ministry had excluded the beach front portion as being worthless from a farming point of view, it was actually excluding the most valuable part of the land from its calculations. This was because of the value of coastal lands for residential purposes:

We start off with a clear understanding of Crown case. That valuations of land were made on a purely farming basis. We have two disputes. (l)Even on that basis valuation too low. (2)That PWD has eliminated most important factor. Land on peninsula which terminates at Mount - occupation there has proceeded apace. Buying has been away from Mount and enquiries have moved along the beach. Whole beach

116 New Zealand Gazette, 1967, p 1738 117 Evelyn Stokes, 'Tauranga Moana: A Study of the Impact of Urban Growth on Rural Maori Communities', Centre for Maori Studies and Research, University of Waikato, Occasional Paper No 7, June 1980, p 33 118 For more information see Waitangi Tribunal, Te Maunga Railways Land Report, Brookers Ltd, Wellington, pp 77-78. 119 Tauranga MB 15, fols 15-25, 16 February 1944 120 Tauranga MB 15, fo116, 16 February 1944

98 in value has a seaside value out of all proportion to farming value of land and by eliminating all beach value Crown hopes to receive land from natives at a figure that in conscience is too IOW.1Zl Cooney backed up his argument with extensive evidence from local real estate agents and solicitors about the value of recent residential subdivisions on the coast along from the Mount, as well as their evidence that they could sell the farmland portions of the block for a higher price per acre than submitted by the Crown. When Judge Harvey gave his decision on the case he agreed that the values submitted by the Crown were too low:

It appears to the Court from the evidence before it that this land could reasonably be expected to sell in 1941 on the open market for a much greater sum than the amount of the Government Valuation. The amount of Compensation payable to the owtiers of the land .for present value of reversion plus present value of rents under lease and interest is assessed at an amount of£I,523.122

The rifle range case is an example of Nga Potiki land being acquired for a public purpose, and then being used by the Crown in other ways. Along with other research into the Tauranga-Te Maunga motorway, the rifle range also clearly illustrates that it was common practise for the Valuation Department and the Public Works Department to seek a low compensation award to Maori.

The solicitor, Cooney, was involved in many Maori public works cases and negotiations. It was probably experiences such as the rifle range case which led the law firm of Cooney Lees and Morgan to later advise the Maori Trustee that:

When we have obtained our own valuations, these have always been higher than those of the Valuation Department and discussions have usually followed giving a £gure between the two. For this reason, we feel that we should employ valuers right from the beginning and that unless we do this we are for all practical purposes committed to accept the Crown valuation which we do not believe will be as high as it might be .123 [Emphasis added.] This advice was given 20 years after the rifle range case, which suggests that the Ministry of Works had consistently sought to pay as little as possible for Maori land for at least two decades. In another compensation case in 1961, Chief Judge Prichard commented that he was adding 20 percent to the land values supplied by the

121 Tauranga MB 15, fo117, 16 February 1944 122 TaurangaMB 15, fo134, 28 February 1944 123 Cooney, Lees & Morgan to Maori Trustee, 27 October 1965, cited Bassett, July 1996, p 28

99 Valuation Department, because it was his experience that the Crown valuations were likely to be lower than the sale price could have been. 124 It was common practise for the Maori Land Court to award a compensation figure that was between the valuations supplied by the Crown and the owners. It therefore does not appear that the Court carried out its own assessment of the value of the land taken.

2.7 Summary

The table below outlines the total Nga Potiki land used for public works: Purpose Area Taken Quarry 20a 1r 11.6p Reservoir 2alr 26.0p Rubbish Dump 91a 3r Ol.Op Telecommunications Tower 6a Or 39.7p Railway 152a 3r 07.4p School Sa Or O.OOp Rifle rangel2:> 139a 2r lS.0p Total 421a Or 23.7p

The 'Lethal Weapon' of the Public Works Act • Consultation requirements under the Public Works Act were less stringent for unregistered Maori freehold land As a result there was very little consultation with Nga Potiki about public works takings. • Delays of several years before compensation was paid were commonplace. • There are numerous examples of Crown valuation being lower than the actual price the land could have sold for on the open market. This was not just a Maori perception but was a view shared by judges, lawyers, and valuers. • Valuation criteria did not take into account the special significance of the land to NgaPotiki.

124 Tauranga MB 23, fols 188-190, 18 May 1961. The comment was made in the hearing on land taken for the Otawa Scenic Reserve. 125 The rifle range taking has now been returned to Nga Potiki ownership but it has been included in the table because Nga Potiki were deprived of its use for more than fifty years.

100 Quarry and Water Reservoir • Two public works on the maunga Mangatawa show that despite Nga Potiki insisting on leasehold agreements, the land was still effectively alienated due to the nature of the leases. • These sacred sites such as Maungamana had very clear an explainable cultural significance. Maungamana was a urupa site, and as a cemetery carried an added significance that any Pakeha with a relation buried in the Tauranga public cemetery would understand. • In 1963 the Mangatawa-Papamoa Incorporation negotiated a 33 year lease with Works, which while protecting their rights to the area, saw the physical removal of their maunga, and therefore their ancestors through quarrying. • In 1973 the Mount Maunganui Borough Council built a water reservoir. The council wanted to buy the site but the incorporation was unwilling to sell. After considerable pressure from the council a 999 year lease was signed. • This 999 year lease demonstrates how land taken under section 32 of the Public Works Act which provided for agreements rather than compulsory acquisition, was

/ --',\, ....., still in effect a compulsory agreement. Rubbish Dump • In 1966 the council urgently required a site for a dump because their former dump had been unexpectedly closed. They applied to the Town and Country Appeal Board for departure from the district scheme to use Papamoa A12 for a dump. • In 1967 32 acres of Papamoa A12 was taken for a dump. The dump site was considered suitable because of the low development costs .involved and its proximity to other industry. • In 1968 the council paid the Mangatawa Papamoa Incorporation a total compensation of $2545 plus interest for the land acquired for the dump. • In 1984 the council had negotiated to purchase 24 hectares ofPapamoa 2 Section 1OA2C5, which was vested in the Mount Maunganui Borough Council from November 1985. The purchase price was $190,000, and there was later a dispute as to how much interest should be paid.

101 Oxidation Ponds • In the 1960s the Mount Maunganui Borough Council began to investigate ways of improving sewerage treatment for the borough so they commissioned an engineering firm to investigate potential schemes and sites. The council had identified a preferred site. • The choice of site was determined by its cost and proximity to the dump. It was envisaged that the· retaining wall for the pond would have a dual purposes as a deterrent for potential waste escaping from the dump. • Nine groups were opposed to the site (including five government departments), largely on the grounds of the impact it would have on the environment. • The Mangatawa-Papamoa Incorporation and TaurangaMaori Executive argued that the proposed site had strong cultural and historical significance for N ga Potiki. They also argued that the pond would have adverse impact economically as well as potentially causing a health risk to those living nearby or gathering shellfish. They also said that alternative sites and the views of those opposed to the council's plan had been 'glossed over. ' • The Commission for the Environment undertook an impact report that accepted submissions from· the various interest group and government departs. Twelve of these fourteen submissions opposed the site. The commission found in favour of the objectors. • In 1975 a Bill was introduced into parliament for the construction of the pond and outfall. The Bill sought authority to reclaim 75 acres of Rangataua Bay. The council's submission argued that a vast escalation in Jandprices made this the most suitable site. The Bill was passed into law as the Mount Maunganui Borough Reclaiming and Empowering Act 1975 with little debate. • The Tauranga Maori Executive were 'dismayed' at this decision stating that it had been made despite strong public opinion opposing site. They also said the effect would be to jeopardise the areas shellfish; reduce land values; reduce public enjoyment of the bay; and create a 'blot' on the landscape. Telecommunications Tower • In 1962 the owner ofPapamoa 2 Section ID (where the maunga Kopukairoa was located) consented to Works entering his property to construct a transmitter.

102 • Between 1966 and 1981 the owner sold the summit of the mountain land to Works and the surrounding lands to private owners. • Under section 23 of the State Owned Enterprises Act 1986, Kopukairoa was transferred by the Crown to Telecom and in 1990 when the Crown sold Telecom SOE the land passed into the hands of a private interest. • The claimants to Kopukairoa were concerned that the individualisation of the title to· had meant the legal owner was able to agree to sell without considering the significance of the maunga to Nga Potiki. Gas Pipeline • In 1982 a natural gas pipeline from Tirau to Te Puke was completed. The Maori Land Court appointed the Maori Trustee as representative for the owners in negotiations with the Natural Gas Incorporation. • The·incorporation offered to pay 50 percent of the land value as compensation for the easement under the land. • The trustee argued that the land should be judged on a 'before and after' basis on the groudns that the easement was so restrictive that the potential use of land was reduced, especially for horticultural purposes. It also maintained that extra costs were involved in developing the remainder of the land for horticultural use because the areas were reduced in size. • In August 1984 the trustee and Natural Gas agreed that the of compensation would be paid on a 'before and after' basis and special permits were issued to allow for planting around the easement. East Coast Main Trunk Line • In 1913 and 1915 152 acres were taken from the Mangatawa and Papamoa blocks were the railway line and associated purposes. • Compensation was awarded by the Native Land Court. There was a wide gap between the amount offered by the Crown and the amount claimed by the owners. The court generally made awards in line with the values submitted by the Crown. • A Nga Potiki kaumatua has recently argued that the amount of land taken for the railway went well beyond the line itself and that this had a considerable detrimental impact on the ability ofNga Potiki to use the land.

103 Rifle Range - Land Taken for Defence Purposes • In 1941 approximately 139 acres ofPapamoa 2 Section 7A was acquired by Works \. for defence purposes and in 1967 its status was changed by a proclamation which declared that the land was taken for' general government buildings. '

• In 1989 Nga Potiki were able to buy back the block on the grounds that it was not being used for the purposes for which it had been taken.

• The rifle range case is an example of Nga Potiki land being acquired for a public purpose, and then being used by the Crown in other ways. It also illustrates that it was common practise for the Valuation Department and the Public Works Department to seek a low compensation award to Maori.

104 Conclusion

The land which has traditionally been occupied and owned by Nga Potiki was within the boundaries of the Tauranga confiscation district. Although Nga Potiki's land was not included in the 50,000 acres which was subsequently retained by the Crown, the proclamation made under the New Zealand Settlements Act still had a profound impact on Nga Potiki's ability to occupy and manage their traditional lands. This was because the proclamation ended Maori customary ownership and replaced it with the British legal system of land tenure. Instead of Nga Potiki being able to use their own methods and tikanga to acknowledge the nature of both individual and collective rights, the ownership of the Mangatawa and Papamoa blocks was determined by Crown officials. As a result the blocks came to be owned by many individuals rather than by Nga Potiki as a whole.

The most important implication was that individuals were then able to have their separate proportionate interest in the block defined, and were able to alienate that ,<" ~"\ " .. } interest without regard to the wishes or circumstances of other owners. Over a number of years Crown officials collected the signatures of individual owners to a deed of sale, paying them 8 shillings 3 pence an acre for their share in the land. When the Crown had purchased slightly more than half the interests in the block it was able to have the block divided, and nearly 8,000 acres became Crown land. By 1893 the Crown had purchased 57 percent of the:land which had been awarded to Nga Potiki after the raupatu.

One outcome of the Maori freehold system has been the failure to protect an important tribal burial ground in the sand dunes on the Papamoa shoreline. Since at least 1896 Nga Potiki have informed the Crown that the land was a burial reserve. However, in 1962 the Maori Land Court refused to grant the owners' request that the 38 acre area become a Maori burial ground reservation. This would have granted the land legal protection from alienation and made it exempt from rating. At that time Nga Potiki were under considerable pressure to alienate their lands as the Papamoa area became a desirable residential and holiday location. Many blocks were

105 subdivided for residential purposes, and the trustees of the burial ground were tom between their duty to protect the wahi tapu and their fear that at least some of the block would have to be sold. In the face of the court's refusal to reserve the entire area the trustees thought that their only option was to have one acre set aside as a legal reserve, so that this area could be used for the reinterment of their ancestor's bones ifother areas were sold. Although a sale of 15 acres was planned to meet rates charges, the trustees have not had to sell any of the block. Today they are still requesting the Maori Land Court to declare the entire 38 acres a burial reserve and wish it to be reserved in the name of the tipuna Tamapahore. Under the current situation any of the 600 individual owners would be legally entitled to seek a partition of the block and alienate their share of the burial ground, something that could not happen to a Pakeha cemetery.

The remainder of the Papamoa block and the Mangatawa block have been subdivided many times over the course of this century. Although it was recognised at the beginning of the century that the blocks were required for the occupation and support

(C, ofNga Potiki, today only 20 percent remains as Maori freehold land. This is the result " / of the Crown land purchase, private sales, and the land being acquired under the Public Works Act.

In most of the cases when Nga Potiki land was taken for public works very little, if any, consultation took place with the Maori owners before the alienation. Any consultation that did occur was usually only with 'leading owners' and usually took the form of notification rather than consultation. When meetings were held between Crown agencies or local bodies and owners, these were usually the result of the Maori owners requesting information from officials rather than the departments or council trying to keep the owners informed. This failure to consult has created a feeling of distrust towards the Crown. At a meeting with the Nga Potiki claims committee the Ministry of Works was variously described as 'the invaders' who 'raped Mangatawa'

106 and who, when requested to rectify damage to sacred sites, made insincere and broken promises to 'please these natives. ' 1

Nga Potiki's sense of grievance can perhaps be better understood by Pakeha if they recognised that many of these areas were sacred to Nga Potiki not just because of a seemingly vague cultural affinity, but also because their ancestors were buried in these places that the Crown has taken, and in cases such as Maungamana irrevocably damaged. The quarrying away ofMaungamana is one example ofa urupa site that has been destroyed by the Crown. Further insult was added by the fact that debris from the dynamiting and quarrying of themaunga included the bones of Nga Potiki ancestors. A Nga Potiki claims committee member has recalled how Nga Potiki people would collect bones that had been exposed by the quarrying of Maungamana and store these remains for reinterment. One would presume that Pakeha people neighbouring the Tauranga public cemetery would be caused considerable distress if the Crown decided to use that site as a quarry and dynamited the area. Such a situation would be considered intolerable. Not surprisingly Nga Potiki have been caused considerable anguish by the loss of a number of urupa sites.

As well as having their taonga destroyed, further insult was experienced by the placing of undesirable man-made features on or nearby their land. As well as a quarry above their marae, Nga Potiki have experienced a rubbish dump, sewerage pond, water reservoir, railway line, gas pipeline, rifle range and telecommunications tower being on or near their land. Generally; the various Crown departments and local bodies have, over the years, argued that because one or more of these undesirable features is on Nga Potiki land then it was of little consequence that another man-made feature be added to the area. The incremental effect of these projects has provided the pragmatic argument that clustering these amenities close together has a number of benefits. This may be true for the Crown and the local body. However, for Nga Potiki the long and consistent use of their land for these projects has added to their sense of being wronged by the Crown and created an impression that they as Maori land

1 Meeting of Nga Potiki claims committee, attended by the authors, 29 January 1999, Tamapahore Marae

107 owners have been 'targeted' in a premeditated manner as the people who would supply the land, and live next to these areas that have been debased. Nga Potiki claims committee member Rangi McLeod strongly condemned the Crown by stating

that they 'raped this place - raped Mangatawa. ,2

Most of the projects located on or near Nga Potiki land illustrate how the council determined on suitable sites for local body projects. The cost of the land and the wish to cluster these projects together, presumably for cost and administrative and maintenance purposes, appears to have been a considerable motivating factor. Unfortunately for Nga Potiki, because a pattern or precedent of using their land had been established over the years, it in time became theargumentbehind,placing further projects on and near their land. Although it was perhaps pragmatic from a council perspective to state that because one project was placed in this area there was a logic in placing other projects there, it was to cause Nga Potiki considerable distrust of the council's fairness and operating procedures. Over the years, as Nga Potiki have witnessed further abuses of their lands, they have also been deterred economically

~ from developing their land largely because the council's projects have determined the " y purposes to which the land is suitable.

All of these projects within Nga Potiki's rohe raise the question of why one group should be expected to provide so much for community projects. The correspondence between the various local bodies andCrown.agenciesgoes some way to providing a clue. It is very rare in the correspondence to come across a reference to Nga Potiki specifically, but their land is referred to as Maori land and the idea that these projects are· happening to the same relatively small group of people is lost in the general term Maori. The general reference to Maori land as opposed to Nga Potiki land clouds the fact that all these projects were taking place in a relatively small area· on land owned by a few hundred Maori people rather than happening on the land of all Maori. There is a feeling amongst Nga Potiki that for a relatively small group of people they have contributed more than their fair share to the development of the area and that this

2 Meeting of Nga Potiki claims committee, attended by the authors, 29 January 1999, Tamapahore Marae

108 development has been at a personal cost both culturally and financially. They acknowledge that their mountain cannot be returned nor will younger generations be drawn back to their rohe when that rohe consists of rubbish dumps, sewerage ponds, pipelines, telephone towers and other such nuisances.

It is probable that today there is more understanding amongst Pakeha people concerning the heavy handed nature of having undesirable man-made features such as cell phone towers in their backyards. Nevertheless, Nga Potiki have been affected by a number of projects not of their making, nor of any benefit to their people, other than as a generally unrecognised contribution to the wider community.

The Crown's delegation of power to local authorities has had an obvious detrimental impact on Nga Potiki, which has resulted in an ongoing sense of grievance towards the Crown for their failure to honour the Treaty by ensuring that Nga Potiki could enjoy the control, use and management of their lands. Today there is a feeling amongst most members of Nga Potiki that the loss of their land has seen their

~.. ) marginalisation spiritually and economically from their whenua. Despite the loss of land that Nga Potiki have experienced, and the sense of insult that they have felt concerning the types of uses that this land has been put to they have fought to maintain their dignity by vigorously protesting their opposition to these projects, and therefore maintained their role as kaitiakitanga and tangata whenua.

Nga Potiki's resistance towards Crown projects being located in their backyard has been brought about because of a sense of betrayal they have felt at the hands of the Crown. Under the Treaty ofWaitangi Maori were guaranteed undisturbed possession of their lands. The Waitangi Tribunal has also found that this guarantee also required an active duty by the Crown to provide for the protection of Maori land.3 The tino rangatiratanga of Nga Potiki over their land had already been affected by raupatu and

3 Waitangi Tribunal, Report of the Waitangi Tribunal on the Manukau Claim, Wellington, Government Printer, 1985, pp 90-95

109 this was exacerbated by Crown actions which resulted in a failure to prevent the sale of their remaining lands.

,.. ''>., ~ "" /

110 Bibliography

Primary Sources

National Archives Auckland

AATE A1002/563a, 43/7, Mount Maunganui Borough Council AATE A1002/563b, 43/7, Mount Maunganui Borough Council BACS A908/6b, Mangatawa Correspondence 1968-1982 BACS A908/15a, Papamoa Correspondence, 1965-1981 BACS A908115b, Papamoa Correspondence, 1981-1987 BACS A622/187a, Mangatawa Applications 1882-1937 BACS A6221187b, Mangatawa Applications 1917-1957 BACS A622/187c, MangatawaApplications 1941-1954 BACS A622/297b, Mangatawa Correspondence 1954-1968 BACS A622/304a, Papamoa Correspondence 1959-1965 BACS A622/20lf, PapamoaApplications 1880-1912 BACS A622/202a, Papamoa Applications 1911-1941 BACS A622/202b, Papamoa Applications 1941-1954 BACS A622/202c, Papamoa Applications 1954-1956 BAHT A1063/11a, 54/4/11, Foreshores, Mount Maunganui Borough Council BAHT 4122/51d, 43/13/6/16, Tauranga Harbour Board BAZQ 4958/52a, Natural Gas Pipeline BBHW 4958/1469d, Papamoa 2 Section 7B

Files from LINZ, Hamilton in the process of being transferred to National Archives, Auckland

43/7/0/13 Land Taken for Refuse Disposal, 1984, box 1074 43/7/0116 Titia Te Kani Estate, box 1074 43/1/0 Tauranga Power Board, box 2386

111 National Archives, Wellington ABKK W4357 50/579 pt 2, Mount Maunganui Water Supply and Sewage AAMK 869/829b, Tauranga Development Scheme

Maori Land Court, Hamilton Papamoa Block Order Files and Title Binders Mangatawa Block Order Files and Title Binders Native Land Court Minute Books - Tauranga, Rotorua, Maketu, Judge Wilson's

Tauranga District Council Mount Maunganui Borough Council, Engineering file 8/4

LINZ, Hamilton Crown Purchase Deed 1821

Secondary Sources

Official Publications

Appendices to the Journals ofthe House ofRepresentatives (AJHR) New Zealand Gazette New Zealand Parliamentary Debates (NZPD) New Zealand Statutes

Unpublished

Heather Bassett, 'Mangatawa', Waitangi Tribunal, December 1996, [Wai 215 A44]

____ 'Aspects of the Urbanisation of Maungatapu and Hairini, Tauranga', Waitangi Tribunal, July 1996, [Wai 215 A26]

Giselle Byrnes, 'A Preliminary Report on the Use, Control and Management of the Tauranga Harbour', Waitangi Tribunal, no date, [Wai 215 A36]

Richard Kay & Heather Bassett, 'Ngaiterangi and the Crown', Waitangi Tribunal, June 1998, [Wai 215 C1]

112 Robert A McClean, 'Tauranga Moana; Fisheries, Reclamations and Foreshores' Report, Draft, 1998, Waitangi Tribunal

Tony Nightingale, 'Tauranga Land Development Schemes 1929-55', November 1996, [Wai 215 A22]

Vincent O'Malley, 'The Aftermath of the Tauranga Raupatu, 1864-1981', Crown Forestry Rental Trust, June 1995, [Wai 215 A22]

_____and Alan Ward, 'Draft Historical Report on Tauranga Moana Lands', Crown/Congress Joint Working Party, June 1993 [Wai 215 A13]

Kathryn Rose, 'The Impact of Confiscation: Socio-Economic Conditions of Tauranga Maori', Crown Forestry Rental Trust, January 1997, [Wai 215 A38]

Evelyn Stokes, 'Tauranga Moana: A Study of the Impact of Urban Growth on Rural Maori Communities', CentreIor Maori Studies and Research, University ofWaikato, Occasional PaperNo 7, June 1980, [Wai 215 A15]

____ 'Te Raupatu 0 Tauranga Moana: The Confiscation of Tauranga Lands: A Report Prepared for the Waitangi Tribunal', University of Waikato, 1990, [Wai 215 Al2]

____ 'Te Raupatu 0 Tauranga Moana: Volume 2: Documents Relating to the Tribal History, Confiscation and Reallocation of Tauranga Lands', University ofWaikato, 1992, [Wai 215 A18]

---- 'The Allocation of Reserves for Maori in the Tauranga Confiscated Lands', University ofWaikato, 1997, [Wai 215 A57]

Anthony Fisher, Keni Piahana, Te Awanuiarangi Black, Rahera Ohia, 'The Issues Concerning the Use, Control and Management of Tauranga Harbour and its Estuaries', WaitangiTribunal, June 1996, [Wai 215 A50]

Rachael Willan, 'Papamoa School Site', Waitangi Tribunal, June 1997, [Wai 215 A52]

Published

Bassett, Heather, Rachel Steel, David Williams, The Maori Land Legislation Manual: Te Puka Ako Hanganga Mo Nga Ture Whenua Maori, Volume One, Crown Forest Rental Trust, Wellington, 1994

Miles, Anita Kopukairoa: Tauranga Telecom Site, Waitangi Tribunal Research series, 1994, No 4

113