TEMATAI and PAI

Dean Cowie Waitangi Tribunal, June 1998 THE AUTHOR

Tena koutou. My name is Dean Cowie. I am a Pakeha male, of Scottish ancestry. My family live in Kaitaia, Muriwhenua. I am an historian, currently residing in Wellington. My qualifications relate to the study of New Zealand history. In May 1994 I graduated from the University of Auckland with a Master of Arts (1st class Hons) degree in History. I commenced work as a commissioned researcher for the Waitangi Tribunal in April 1994. I have facilitated the Mohaka ki Ahuriri claims inquiry since 1995. Since March 1996 I have held the position of senior research officer. Between November 1995 and August 1996 I researched and wrote an overview report about the principal means by which land was alienated in Hawke's Bay. Forming part of the Waitangi Tribunal's Rangahaua Whanui Series, the report was released in September 1996. In May 1997 I released a historical report on aspects of the Wai 168 (Waiohiki Lands) claim.

ACKNOWLEDGEMENTS

I would like to express my gratitude to several people who assisted in the writing of this report. Firstly, to Nigel Baker, Albert Eden, Angela and Haami Harmer who helped me understand the history of TeMatai and Pakaututu, and whose generous hospitality was greatly appreciated. Secondly, to Richard Moorsom whose related research topics enabled him to provide much needed advice on the research required for this report. Thirdly, to Grant Phillipson for providing insightful and erudite feedback on a draft of this report. Finally, my thanks are extended to Mike Fromont and the staff of the Hastings Maori Land Court, for their always friendly and courteous assistance to me.

11 CONTENTS

Introduction ...... I

I Pakaututu Introduction ...... 4 Applications to investigate title ...... 5 The Court's title investigation ...... II The alienation of Pakaututu ...... 26 Post-alienation events ...... "~ ...... 34

2 Crown purchasing and the Te Matai I block Crown purchasing in the late 1870s ...... 36 The investigat..i,on of title to Te Matai ...... 38 The Governor's application ...... 42 Confusion over boundaries ...... 44 Te Matai -1881 to 1922 ...... 46

3 Renewed calls for title investigation 1922-1928 Introduction ...... 49 The applicants ...... 50 Where should the Court sit? ...... 50 Where was Te Matai and did the Crown own it? ...... 57 Further delays ...... 65

4 The 1928 hearing Introduction ...... 67 The Ngati Tuwharetoa case ...... 67 The Ngati Hineuru case ...... 69 The Ngati Whitikaupeka case ...... 72 The Te Turuki and Tawhao case ...... 73 Paora Rokino' s response ...... 74 The Court's decision ...... 74 The aftermath ...... 75

5 The 1950s title investigation Introduction ...... 79 The Ngati Tutemahuta case ...... 81 The Otene Claim ...... 84 The Te Tauri (Ngati Rangiita) case ...... 84

iii The Ngati Hineuru case ...... 85 The Tareha claim ...... 86 The Ngati Hawea claim ...... 87 The Ehau and Rutene claim ...... 87 The Decision ...... 88 The Appeals ...... 91 Protest by Tuiri Tareha ...... 93

6 Debt, Timber, and Access Introduction ...... 94 Debt ...... 95 Timber and Development ...... 98 Access...... 105

7 Conclusion Introduction ...... 108 Pakaututu', ...... 108 Te Matai ...... 110 The Effect: ...... 114

Bibliography ll6

Appendices I Research Commission for Dean Cowie II Wai 216 Statements of claim

MAPS

Figure 1 General location map ...... facing I Figure 2 Topographical map ...... facing 3 Figure 3 The Pakaututu Plan ...... facing 27 Figure 4 Pakaututu Farm Settlement ...... facing 34 Figure 5 Pakaututu Title Information Map ...... facing 35 Figure 6 Confiscation Boundaries Map ...... facing 44 Figure 7 Mohaka-Waikare 1868 Agreement Map ...... facing 45 Figure 8 Te Matai Plan 1951 ...... facing 79 Figure 9 Roadway Order 1956 ...... facing 105

iv ABBREVIATIONS app appendix AGG-HB Agent General Government, Hawke's Bay AJHR Appendices to the House of Representatives CB Waitangi Tribunal casebook (Mohaka ki Ahuriri) CCL Commissioner Crown Lands CJ Chief Judge CS Chief Surveyor DG Director-General, Department of Lands and Survey doc document DOC Department of Conservation fig figure FS Forest Service HO Head Office LINZ Land Information New Zealand LS Departm..ent of Lands and Survey MA Maori Affairs MB Minute Book (Native and Maori Land Court) Na Napier (Maori Land Court, Hastings, archival reference) NA National Archives, Wellington NZG New Zealand Gazette ROD Record of Documents USLS Under Secretary Lands and Survey Department USND Under Secretary Native Department Wai Waitangi Tribunal claim

v INTRODUCTION

This report uses official sources to document the title history of Pakaututu and Te Matai blocks. The six chapters are arranged chronologically. The report is written to enable the Waitangi Tribunal to inquire into claim Wai 216. This claim was received on 13 June 1991, and registered by the Tribunal on 20 June 1991. 1 The claimants amended their statement of claim on 16 January 1996 and added to it further on 8

January 1997.2 Copi~ are appended to this report (see app II).

On 8 March 1996, claimant Nigel Baker was authorised to commission Buddy Mikaere to complete a report on behalf of the claimants. Mr Mikaere's report and collection of documents was released on 23 July 1997.3 On 21 August 1997 Nigel Baker was commissioned to provide further evidence on behalf of the claimants. I was also commissioned to provide a historical report on behalf of the Tribunal on 21

August.4 A copy of the commission for this report is attached as appendix 1.

Pakaututu and Te Matai lie within the watershed of the Mohaka and Ripia Rivers (see fig 1). The divide between the two when surveyed was the Makiekie Stream and the Whakahu Bush. But the separation was a legal definition rather than a traditional one. Most Maori witnesses at Maori Land Court hearings stated that it was one area. Depending from which direction they were approaching the area, different hapu

I Paper 2.43, Wai 201 Record of Proceedings

2 Papers 1.21(a), 1.21(b), Wai 201 Record of Proceedings

3 Document 01, and 01 (a)-( c), Wai 201 Record of Documents

4 Maori Land Court records and the relevant files of the Maori Affairs and Lands and Survey departments form the bulk of the primary evidence in this report. Two relevant files could not be located by National Archives staff; Land Purchase Department file 90/374, and Forest Service file 9/3/60. groups regarded Pakaututu and Te Matai as one self-contained area, or considered it as part of the larger Wharetoto, or Tarawera area. Each version was correct.

Ngati Hotu were the original occupants of the area. It is from their chief Te Matai Ahinu that the block obtained its name. According to Paora Rokino's evidence given to the Native Land Court in 1928, Te Matai was slain in battle on the block by invading Ngati Kurapoto, who eventually occupied the land.5 Ngati Maruahine6 were closely associated with Ngati Kurapoto. Both descent groups' interests in the area were undisputed. The ancestral links of the next stage of traditional history are also not contested, although the political effect of the links differs according to each hapu group's tradition. Ngati Tuwharetoa claimed that they conquered Ngati Kurapoto - and Ngati Maruahine,-intermarryingwith them to occupy the area. Ngati Whiti were driven from the area to Patea, and following the defeat of Ngati Kahutapere at Te Kupenga Pa, the area north and west of the Mohaka River became part of the rohe of Ngati Tuwharetoa.7 Ngati Hineuru agreed with much of the above version. They claimed, however, that they had exercised autonomous control over the area underneath the Tuwharetoa umbrella. 8 Select Ngati Kahungunu hapu (Ngai Tamawahine, Ngati Mahu, Ngati Hawea) disputed Ngati Tuwharetoa's claim, instead arguing that Tawhao and Te Turuki ( who links with Maruahine) conquered and occupied the area. 9 It is not the purpose of this report to evaluate the ancestral history. As Ballara and Scott comment in their traditional history of the Kaweka area: 'the complex interaction of hapu of many different ancestral origins over time make it very difficult to establish any complete list of owners'. 10

5 Napier MB 74, Paora Rokino, p 180

6 Sometimes spelt Maruwahine or Maruawahine.

7 Napier MB 74, Paora Rokino, pp 180-182

8 For example, see Napier MB 74, Tuiti McDonald, pp 196-202; Wano Taungakore, 211-212; and Napier MB 89, Raroa Sullivan, typed extract, MA5/13/236, pp 16-17

9 For example, see Napier MB 74, Patu Te Rito, pp 217-218

10 H A Ballara and G Scott, 'Kaweka', p 4, in 'Crown Purchases of Maori Land in Early Provincial Hawke's Bay', 1994, Wai 201 Record of Documents (ROD), document II

2 Te Matai and Pakaututu was a fringe area. Many groups ranged over the blocks, occupying and using resources on a periodic and seasonal basis. Pakaututu and Te Matai were part of a buffer area between two iwi, Ngati Kahungunu to the east and Ngati Tuwharetoa to the west. Select hapu from these tribes only, however, occupied or used the resources. For Ngati Kahungunu, hapu linked to the ancestors Tawhao and Te Turuki; for Ngati Tuwharetoa, Tutemohuta and Rangiita. Ngati Hineuru, from the north, also occupied and utilised Te Matai and Pakaututu. From the south, Ngati Whiti/Ngati Tama groups claimed customary rights, though their evidence was not as strong as the other three groups.

One other geopolitical fact has importance. Te Matai and Pakaututu were located either wholly or partia]ly within the boundary of the Mohaka-Waikare confiscation district. It is from the Lonfiscation that much of the tortured title history of the area stems. This report will focus on the enduring effect of the confiscation, a major part of which involves an examination of the way in which title was returned to Maori. It will also evaluate the circumstances of the alienation of Pakaututu, and the attempts of the Crown to purchase Te Matai. A selection of events from the past few decades are also touched on, due to their significance to matters at issue in claim Wai 216.

3 ONE

PAI

1.1 INTRODUCTION

From the late 1860s, a legally defined area of 7606 acres became known as the Pakaututu block. Like so many blocks of Maori-owned Hawke's Bay land, almost as soon as it gained a legal identity Pakeha settlers acquired it. In one sense then

Pakaututu can be adcl~d to the large list of blocks alienated in the late 1860s and early 1870s under the_regime of the Native Land Act 1865. 1 But Pakaututu does not fit completely into that contextual mould. It had other complicating features.

As stated in the Introduction, it was a fringe area, its resources were used on a mostly periodic and seasonal basis. It formed part of a buffer area between two iwi, Ngati Kahungunu to the east and Ngati Tuwharetoa to the west, with Ngati Hineuru's rohe stretching across from the north. Perhaps the most important determinant for its legal life, however, was Pakaututu's location either wholly or partially within the boundary of the Mohaka-W aikare confiscation.

In this chapter, the title investigation and alienation of Pakaututu will be analysed within two contexts; the court era, and the wars and confiscation. One of the more intriguing aspects of this block history, and that of Te Matai, are the boundaries of the confiscation. Whether Pakaututu was within the confiscation, then, becomes a question of prime importance. Unfortunately, a full analysis of the block's alienation

1 For a general discussion on the Native Land Court era in Hawke's Bay, see Cowie, Hawke's Bay, pp 61-100; and Phillipson, 'The Native Land Court and Direct Private Purchase, 1865-1873', reprinted as appendix II in Cowie, pp 189-223

4 cannot be completed. Government- and Land Court-generated files on the block are few and fragmentary. Very little information on the actual details of the conveyance of the block remains.

1.2 APPLICATIONS TO INVESTIGATE TITLE TO PAKAUTUTU

(1.2.1) The Nga Tamawahine Application On 10 October 1867, Paora Torotoro, Te Wai, and Te Raroa, claiming as Nga Tamawahine hapu, applied to the Native Land Court to have the title of a block they called Pakaututu investigated. The boundaries on the English translation read: 2

The Mohaka Riyer, Okahakaha, Mamaru, Orangaranga, Te Hiwihiwi, Te Reroa, Oamaru, Te Hakehake, Te Whatawhata, Mokomoko, Pakaututu, Te Pukepuke, Te Nukunuku, Te Hapehape, The Mohaka River

As will be seen later, this boundary description is hard to reconcile with those in later applications and plans - most of the place names mentioned do not appear again. The only other note on the application is from surveyor William Ellison. He wrote: 'I am engaged to survey the land, which I am informed is of large extent'. How large an area this boundary might have described will probably never be known. The application was advertised in the Kahiti in early January 1868.3 It was dismissed by Judge Munro in August 1868. Before explaining the reason for the dismissal, however, it is important to make a few remarks about the timing of the application, and its authors.

One year prior to the application, a key month occurred in the history of the Hawke's Bay segment of the New Zealand wars. A group of Pai Marire followers, which included veterans of the battles in Wairoa in 1865-66, and significant numbers of

2 Pakaututu Applications file 1867-1870, Na 198, Maori Land Court, Napier

3 Te Kahiti, Hanuere 2, 1867 [this should be 1868]

5 Tarawera and Te Haroto (Ngati Hineuru), Petane (Ngati Matepu) and Tangoio (Ngati Tu, Ngati Kurumokihi) Maori, gathered at the Titiokura summit in July and September 1866. There they received deputations from various coastal 'loyal' chiefs, including Paora Torotoro. On 4 October 1867 approximately 100 of the group moved via Petane to Omaranui, a Ngati Hinepare kainga occupied by Paora Kaiwhata's section of Ngati Hinepare-Ngati Mahu, but 'owned' by Paora Torotoro and Rewi Haukore. The Ngati Hinepare occupants left Omaranui and moved to Tareha Te Moananui's kainga at Waiohild. Negotiations between the Pai Marire group and McLean and coastal chiefs continued until 12 October 1866, when a combined force of settler militia and coastal Maori attacked and defeated the occupants.4

. There is no certainty In knowing what caused the Pai Marire group to visit Omaranui in October 1866. One mitigating factor, however, may have been Paora Torotoro's association with the block. He and Rewi Haukore were awarded title to the block in March 1866. This was one of several blocks Paora Torotoro successfully brought before the court in 1866 and 1867. Of Ngati Matepu as well as Ngati Hinepare descentS, Paora Torotoro did not limit his claims to the Heretaunga plains. In June 1866 he applied to have four inland blocks, Mohaka, Maungaharuru, and Tarawera 1 and 2 investigated. When they were heard by the court, however, Paora Torotoro

6 disowned the applications, claiming that Te Waka Kawatini , his uncle, had made them. The applications were dismissed because surveys had not been done. The reason for the lack of surveys was, according to Paora Torotoro, because of the blocks'

4 Richard Moorsom, 'Raupatu, Restoration and Ancestral Rights: the Title to Tarawera, Tataraakina and Te Haroto - Main Report', 1998, pp 43-48

5 Waitangi Tribunal, Te Whanganui-a-Orotu Report 1995, Wellington, Brooker's Ltd, 1995, P 196. The information came from the Wai 55 claimants in a letter from their counsel, C Hirschfeld, to the Tribunal, dated 22 November 1994. Obviously Paora Torotoro considered that he was Ngai Tamawahine as well.

6 Ibid. The Te Whanganui-a-Orotu claimants stated that Te Waka Kawatini was also Ngati Matepu and that Paora Torotoro succeeded to him.

6 location in 'Hauhau country'. 7 Clearly, the political and religious upheaval of the time was influencing the context within which applications for title investigations were made. It also seems clear that in the mid 1860s some Ngati Matepu had joined the Pai Marire movement and others, such as Paora Torotoro, remained allied to other coastal Ngati Kahungunu hapu and the Government.

Following the rout of the Pai Marire followers at Omaranui and at Petane, the Government proclaimed the confiscation of the Mohaka-Waikare district on 12 January 1867. As later chapters will show, the Government were confused about exactly what land was included in the confiscation boundary. The schedule to the proclamation used the western boundary of the Province of Hawke's Bay as one indicator, yet this boundary shifted according to the interpretations of surveyors (see sec 2.5).

(1.2.2.) The Ngati Rangiita Application On 10 January 1868 the Napier court received a letter from Paora Hapi dated 12 September 1867.8 There was a delay in the Napier court receiving the letter, possibly because it was addressed to the court at Tokaanu. The information in the letter was used to draw up an application. Dated 18 February 1868, the application had Paora Hapi and others, claiming as Ngati Rangiita, applying to have the title to Pakaututu investigated. The description of the block given by Paora Hapi was more precise than that of the Nga Tamawahine claimants:9

7 Cowie, Hawke's Bay, Rangahaua Whanui Series (Working Paper: First Release), p 108, (CB, vol 1 , P 316)

8 Paora Hapi, Nepia, to Te Kaiwhakakawa Whenua Maori kei Tokaanu, 12 Tihema 1867, Pakaututu Correspondence file, Na 198, Maori Land Court, Hastings

9 'He pukapuka tono ki te Kooti Whakawa Whenua Maori - Pakaututu', 18 February 1868, Pakaututu Applications file, N a 198, Hastings Maori Land Court. One minor and inSignificant error was made in the copying of the boundary description from the letter to the application. The Oripia River became the Ripia River.

7 Ka timita i te ngutuawa 0 Oripia, i te huinga mai ki Mohaka haere tonu i rota i

Oripia tae ki te ngaherehere ki te Wakahu, haere tonu i te taha ki waho 0 tau a ngaherehere tae ana ld Mohaka i te taha ld runga heke tonu mai i rota i Mohaka tae

mai ld te timatanga 0 te rohe.

Ngati Rangiita is a hapu of Ngati Tuwharetoa, principally based on the eastern shores of the lake at Tauranga-Taupo. In the late 1860s, Paora Hapi led a distinct group of 'loyal' Ngati Rangiita and was a man who 'intended to be on the winning side'. (His principal pa, Te Hatepe, was the first Lake Taupo settlement taken by Te Kooti in June 1869).10 There is no written information from which to judge the close timing of the two applications. One possible reason might reflect the applicants' political alliance at the time... Perhaps both groups were concerned at losing, through confiscation, their mountain resource, because of what 'rebel' owners of the area did. Further possible reasons will be explored in later sections.

This application was not published in Te Kahiti, but was dealt with in August 1868 and, like the Nga Tamawahine application, was dismissedY

(1.2.3) The first combined application? Another application for investigation to Pakaututu, dated 7 March 1868, sits on the Land Court file. It was drawn up from a letter written by Paora Torotoro to the court on the same day: 12

E Hoa tenei taku kupu atu Ida koe, ko te rua ana tenei 0 aku panuitanga mo tenei whenua mo Pakaututu, te take - he kite noku kua tukun[]e atu e Paora Hapi he panui

10 Captain J C St George, Diary, 9 November 1868, MSS, ATL, in Judith Binney, Redemption Songs: A life oj Te /(ooti Arikirangi Te Turuki, Auckland, 1995, Auckland University Press with Bridget Williams Books, pp 168-170.

II C Maxwell to Chief Clerk, A J Dickey, file note, 22 September 1869, Pakaututu Applications file, Na 198, Maori Land Court, Napier

12 Paora Torotoro, Waipureku, to Te Penetana, Tino Kaiwhakakawa Nui 0 te Kooti Whenua Maori, Akarana, 7 Maehe 1868, Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

8 mo taua whenua, naku ana i tono te kairuri mo taua whenua - E he ana te panui a Paora Hapi, i runga i take panui, tatemea no matou tahi ana hold te Karauna Karaati

me ka putaputa. Kua tae mai hold ld au tou pukapuka whareaatie i te taenga atu 0 tera panui aku ld a koe - Ka mutu

Paora Hapi's name was added to those in Paora Torotoro's application, the only hapu mentioned being Nga Tamawahine. The boundaries, which presumably were supplied in Paora Torotoro's letter, were different againY

ka timata i te Paraldri, Otupua, Ongatoto, Te Whakau, Tahinahina, ka whawhe Te Matai, Maldelde, Te Tuld, Te Taua, Paraweranui, ka kati ana ld te Paraldhi.

- (1.2.4) The first court hearing On 17 August 1868, Judge Munro heard applications relating to Pakaututu and eight other blocks within the confiscated area. All applications were dismissed. I4 The dismissal of Pakaututu was consistent with the 8 May 1868 agreement arrived at between loyal coastal chiefs and McLean to settle the confiscation issue. This agreement secured all the inland portion of Mohaka-Waikare for the Crown. Interestingly, none of the Pakaututu applicants signed the 1868 agreement. I5

No further applications to investigate the title to Pakaututu were made until September 1869. Many significant events occurred in the intervening period which impact on the block's history. The most important was the return in July 1868 of the Pai Marire prisoners from their Chatham Islands exile under the leadership of Te Kooti Turuki Arikirangi. The 1868 Agreement was discarded and the political and military energies of the settler and coastal chiefs became concentrated on Te Kooti

13 'He Pukapuka tono ki te Kooti Whakawa Whenua Maori - Pakaututu', whitu Maehe 1868, Pakaututu Applications file, Na 198, Maori Land Court, Napier

14 Napier MB 2, P 9; see also Kooti Whakawa Whenua Maori, Akarana, 2 Hanuere 1868, in PakaututuApplications file, Na 198, Maori Land Court, Napier; and Moorsom, Main Report, p 56

15 Moorsom, Main Report, appendix A9, list B

9 and his followers, the whakarau. 16 Both Paora Torotoro and Paora Hapi were involved in the campaign against Te Kooti, though this report will not discuss the

extent of their involvement. I? The following section reviews the context within which the next applications to investigate the title of Pakaututu were made.

(1.2.5) The applications of September 1869 On 7 September 1869 Paora Torotoro, Paora Hapi, and others (me etahi atu) jointly applied to have the Native Land Court investigate the title to Pakaututu. The claim was made as Ngati Kahungunu and Ngati Rangiita. The boundary description was

not filled out this time. Instead, the reference 'kei te mapi' was made. IS This probably indicates that Ellison had completed his survey. On the same day, Tareha and others

applied as Ngati Kahungunu to have Pakaututu investigated. 19

Court official C Maxwell alerted his superior to the previous applications :20

Two claims have been received for Pakaututu before one from Paora Hapi the other from Paora Torotoro they were dismissed being found to be included in the confiscated boundary - Are the two claims that have just been received to be advertised for the Court notice of which has been issued to be held at Napier on the 9 November/69?

Chief Clerk A J Dickey forwarded the note to Chief Judge Fenton, adding that: 'no boundaries are given. Judge Munro on a previous [occasion] has noted this land is in

16 Moorsom, Main Report, p 55

17 Included in the military leaders Premier Fox congratulated follOwing the Te Porere battle in October 1869 was Paora Hapi, Fox to Ormond, 8 October 1869, AGG-HB, 3/4, NA. This author does not know the extent of Paora Torotoro's involvement with the war.

18 'He pukapuka Tono ki te Kooti Whakawa Whenua Maori Kia Whakawahia etahi take whenua­ Pakaututu', 7 Hepitema 1869, Pakaututu Applications file, Na 198, Maori Land Court, Napier

19 'He pukapuka Tono ki te Kooti Whakawa Whenua Maori Kia Whakawahia etahi take whenua­ Pakaututu', 7 Hepitema 1869, Pakaututu Applications file, Na 198, Maori Land Court, Napier

20 C Maxwell to Mr Dickey, 22 September 1869, Pakaututu Applications file, Na 198, Maori Land Court, Napier

10 the confiscated block'. 21 Dickey also asked Fenton if fresh notices should be issued for the November sitting or whether the applications should wait until the next court sitting. Fenton's reply is not on file. The applications were published in Te J(ahiti on 24 September 1869, to be dealt with in the November 1869 sitting.

The timing of the applications requires comment. Coastal Ngati Kahungunu forces fought in campaigns against Te Kooti between August and October 1869.22 This author does not know whether Paora Torotoro was part of Henare Tomoana's force. Certainly some members of his hapu were. Paora Hapi and his people were definitely involved in the campaign.23 The campaign was successful in not only defeating Te Kooti twice, but also for severing links between Te Kooti and Horonuku Te Heuheu. Ngati Kahungunu forces, with Te Heuheu, returned to Napier in early November 1869.24 It is outside the scope of this report to determine exactly what implications the 1869 Taupo war had on Ngati Tuwharetoa internal politics, or if it led to any change in Ngati Tuwharetoa's relationship with Ngati Kahungunu. Nevertheless, it seems reasonable to presume that it was a contextual factor in later title investigations.

1.3 THE COURT'S TITLE INVESTIGATION OF PAKAUTUTU

(1.3.1) The hearing The Court sat in Napier on 9 November 1869. This was an inconvenient time to hear the case. As Karaitiana Takamoana pointed out to Judge Munro when he applied for

21 Note from Dickey to Fenton, undated, on C Maxwell to Mr Dickey, 22 September 1869, Pakaututu Applications file, Na 198, Maori Land Court, Napier

22 See the hundreds of telegrams from Agent for the General Government, J D Ormond, to Native Minister D McLean and others for details and dates of the campaign, AGG-HB, 6/2, NA

23 Moorsom, Main Report, footnote 243, p 82

24 The Ngati Kahungunu force, with Te Heuheu's people, passed through Te Haroto on 8 November 1869, Ormond to Premier W Fox, 8 November 1869, AGG-HB, 6/2, P 220

11 an adjournment, 'nearly all the claimants were absent at Taupo'.25 The applications were brought up again on 12 November 1869. This time Tareha requested an adjournment as the claimants had not returned from Taupo.26 The case was finally heard on 18 November 1869.

Paora Torotoro was the principal witness. His claim and 'some others' of his Ngatamawahine tribe to Pakaututu derived from their ancestor Te Turuki. Paora Torotoro claimed that Te Turuki's descendants had been in possession of Pakaututu since his time: 'our father cultivated built houses, caught birds, and exercised other rights of ownership over it'.27 Paora Torotoro included Tareha Te Moananui and Te Waka Kawatini in his list of owners. The minutes recorded that Te Waka Kawatini had corroborated his nephew's evidence.28 One of Paora's previous co-applicants, Te Wai, was included, but Te Raroa was not mentioned. Neither was Paora Hapi on the list as he had died in early November 1869 as a result of a firearms incident. His son Arapeta Hapi was named in his place. The only contentious person on the list at the hearing was another of Paora Torotoro's people, Rahera Te Hautai.

Tareha objected to Rahera Te Hautai's inclusion. Rahera told the court that she belonged to 'Ngaitapui' and resided at Kahupotiki as did Paora Torotoro. Rahera claimed under the ancestor 'Maruahine', an owner 'in former times' of this land and all extending to Mohaka.29 Reciting a whakapapa that traced her descent from Maruwahine to Tahanui to Kotahi to herself, Rahera stated that she and her mother Moetiraha had lived and cultivated on Pakaututu.30 She was born at Pawhataka near

25 Napier MB 2, 9 November 1869, p 89

26 Napier MB 2, 12 November 1869, p 89

27 Napier MB 2, P 89

28 Napier MB 2, P 90

29 Napier MB 2, P 90

30 A Ngati Hineuru Whakapapa Chart compiled in 1925 shows Rahera Te Hautai being in occupation on Tarawera in 1867. All the names she mentioned are included on the list, but I do not possess the sldlls required to comment on whakapapa, 'Hineuru Whakapapa: Investigation into Title of

12 Tarawera, and lived on Pakaututu from a young age until she married. Rahera's sister Rawhiti was born while they lived there. Their ancestor Te Tatau was buried there.

Curiously, the minutes do not record whether Tareha made a response to Rahera's evidence. Instead, the statement 'Tareha has left the Court' was bracketed beneath her evidence. There was more to this than the minutes recorded. This is discussed in section 1.3.3 below.

Having concluded the investigation, Judge Munro ordered that the certificate of title should go to the people named by Paora Torotoro, including both Rahera Te Hautai and Tareha. This was an interlocutory order, dated 18 November 1869, which would became final once the-block plan was filed with the Inspector of Surveys.

(1.3.2) The confiscation boundary and Court jurisdiction William Ellison gave evidence to the court that he had completed the survey of Pakaututu. The survey, he said, was made in accordance with all the rules: lines were cut and angles were pegged. Ellison was employed first by Paora Torotoro, then by Paora Hapi. Since completing the survey, however, which cost £112, he had not been able to receive payment. This was despite his and Resident Magistrate Samuel Locke's best attempts. For this reason, the plan had not been before the Inspector of Surveys.

There is no record in the minutes or on the files to determine whether Ellison was questioned about the relationship between the Pakaututu block and the confiscation boundary. Judge Munro had already determined in August 1868 that Pakaututu was within the boundary of the Mohaka-Waikare confiscation. At the November 1869 hearing, Mr Hamlin, who sometimes acted as clerk and interpreter for the Native

Tarawera Block', AAFV 997, H29, NA. Hape Nikora succeeded to her interests in Tarawera, see Moorsom, Main Report, Appendix Al 0, list B, P 5

13 Land Court, admitted that the Pakaututu block was 'partly within' the confiscated boundary. Hamlin, however, produced a telegram from the Premier, William Fox, to J D Ormond, the General Government Agent, 'to the effect that the Govt abandoned all claim to the block'. 31

The origin of this statement can be found in the relationship between the Government and Paora Hapi. Following the evacuation of his home base at Te Hatepe, and perhaps even before, Paora Hapi was searching for new land. In 1868 he had made several applications to the N-ative Land Court for the title to the Tauhara, Wharetoto, Runanga and Pakaututu blocks.32 He evidently called on the assistance of the Government, and a promise was made to him by Donald McLean. For exactly what Paora earned this reward is not clear, but it presumably had something to do with his services to the- government during the campaign against Te Kooti. Ormond's explanation to Fox of what was promised is all we have to go on. He wrote:33

In the confiscated block taken from Ngati Hineuru a piece of country was included situate between Mohaka River and Ripia Stream very rough country acreage 7606 Mr Locke informed me McLean had promised Paora Hape that Gvt would relinquish claim on this piece + Paora applied to Native Land Court for title - Judge Munro says he will require notification that Gvt allows case to be heard. If is all right will you please authorize me to acquaint Court Gvt withdraws claim.

McLean's and the Government's reason for waiving claim to Pakaututu, therefore, was to assist Paora Hapi in securing land. Some of his people were already at Te Haroto, however, and had expressed interest in remaining there. On 18 November 1869 Ormond explained to Premier Fox that 'the hapu of Paora Hapi incline to settle ... at Te Haroto ... '. Noting that Te Haroto was included in 'the confiscated Ngati

31 Napier MB 2, P 90

32 Te Kahiti, Panui, 9 Tihema 1868

33 Ormond to Fox, 17 November 1869, telegram, AGG-HB, 6/2, NA, P 250

14 Hineuru Block', Ormond still thought that it 'would be an advantage to let them use it', and asked if Fox had any objection.34 It appears that Paora Hapi and his people were looking to 'win' at the expense of Ngati Hineuru, and that the Government was prepared to help them.

Fox replied to both telegrams on 18 November 1869:

I know little about the East Coast Confiscated Lands - but see no objection - You are better able to judge than I am - In principle we have done the same at Waihi - In reply to your telegram about Paora Hapi's land and proceedings in Court, the Govt will waive all claims.35

On the covering letter addressed to Judge Munro enclosing the telegram, Hamlin - advised that the government was 'waiving all claim ... to land Paora Hapi applies to pass thro Native Land Court'.36 Ormond considered that Paora Hapi's son was the 'principal claimant' - which presumably meant that Ormond thought the chances good that Paora Hapi's people would gain title to the block.37 Instead, the experienced Native Land Court trio of Paora Torotoro, Te Waka Kawatini, and Tareha Te Moananui took over. Paora Hapi's son Arapeta did not speak at the hearing but did get onto the title. In the event, this may not have mattered as Fox had agreed to Ormond's plan to settle the hapu on Ngati Hineuru's land at Te Haroto. In June 1870, McLean was able to make good his promise by providing 500 acres for them as part of the 1870 Mohaka-Waikare agreement.38

34 Ormond to Fox, telegram, 18 November 1869, AGG-HB, 3/4, NA

35 Fox to Ormond, telegram, 18 November 1869, AGG-HB 3/4, NA, see also abbreviated copy on Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

36 Hamlin to Munro, 18 November 1869, Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

37 Ormond to Fox, 17 November 1869, telegram, AGG-HB, 6/2, NA, P 251

38 Moorsom, Main Report, pp 68, 100

15 The approval of the Government to proceed with the hearing proved sufficient for Judge Munro to overcome the jurisdictional issue, who, while not commenting on the matter in the minute book, went on to award title to Pakaututu. Questions must be raised about the strength of Munro's decision to proceed. One hastily written telegram from the Premier about one of the applicants would not appear to change the legal status of the land. As Richard Boast has written, the confiscation proclamation changed land that was customary to Crown-owned.39 Until the Crown awarded the land to someone else, it remained Crown-owned. The boundary description in the confiscation proclamation clearly included Pakaututu. No one attempted to argue that at least some of Pakaututu was included, despite the ambiguity of the sketch used for the 1868 agreement (see fig). There was no provision outlined in the 1868 agreement (which at the time of the court hearing was still operative) to allow for claims to the confiscated area (the area to be retained by the Crown) to be heard by the Native Land Court. To allow the Native Land Court to investigate title to Pakaututu would have required, presumably, a change in the confiscation boundary by proclamation, or legislation giving the court the authority to proceed. Neither was done. Consequently, it seems that the only course available to Judge Munro in November 1869 was to either dismiss the applications again or adjourn proceedings until the Court had the necessary authority to hear the case. The power of the Premier's pen, however, won out.

One final pedantic point should be made. It is arguable whether Fox's telegram meant to waive all the Government's claims to Pakaututu or was limited to applications made by Paora Hapi. Ormond's telegram to Fox was undeniably expressed to achieve the latter. So too Hamlin's covering letter enclosing the telegram to the Court. If their interpretation was correct, then the application of Paora Torotoro did not have the

39 For a discussion on the legal issues of title to Mohaka-Waikare blocks, see R Boast, 'Mohaka-Waikare Confiscation: Consolidated Report, Volume 1: Mohaka-Waikare Blocks', 1996, document J28, Wai 201 ROD, pp 150-157, (CB, vol 3, pp 1387-1394)

16 government's permission to proceed. If the application had been dismissed, then Pakaututu would have presumably been included in the 1870 Agreement, and afforded the inalienable status of other Mohaka-Waikare blocks returned to Maori. Although Pakaututu was rescued, therefore, from the confiscated district, this may have made it more vulnerable to ultimate alienation.

(1.3.3) Other Owners The minutes of the 18 November 1869 hearing noted that 'no other objectors appeared'.40 This simple line was a crucial component of the Court's investigations into title during this period. It meant that the Court awarded title based solely on the evidence and objections heard in court. Was this a fair method by which to translate Maori customary interests into European-styled legal ownership? Several commentators in the early 1860s had argued for a commission-based investigation mechanism, rather than a court-based one. This was incorporated into the Native Land Act 1862, where the Court would consist of a panel of Maori experts with the Resident Magistrate presiding.41

Following an extensive investigation into court activities in Hawke's Bay between 1866 and 1873, the chairman of the Native Lands Alienation Commission, C W Richmond, found that the court was in principle 'unfitted for the investigation of native title'.42 Commenting on the Court's practice of relying only on the evidence before it, as if it were an ordinary court of law or equity, Richmond argued that:43

The judgments of such Courts commonly bind only the litigant parties, and those

40 Napier MB 2, P 90

41 G Phillipson, 'The Native Land Court and Direct Private Purchase', app 2 in Cowie, Hawke's Bay, p 202; A Ward, National Overview, vol II, Waitangi Tribunal, Rangahaua Whanui Series, 1997, pp 213-219

42 AJHR 1873, G7, Reports, pp 8-9

43 AJHR 1873, G7, Reports, p 8

17 who claim through them; whereas the judgments of the Native Lands Court are what are technically termed judgments in rem, which conclusively ascertain title not merely as between the parties in Court, but as against all the world. A Court with such a formidable power needs to be furnished with means of investigating, independently of the parties in Court, the validity of claims made before it.

Native Land Court Judge F E Maning, who sat on the same commission, provided evidence by example of the Court's 'investigations'. Commenting on the complaints by Maori who had been omitted from the Heretaunga block title, Maning admitted that they had interests in the land. Nevertheless, he dismissed the complaints because the owners had neglected to bring their case before the court, or insist that the Court recognise them.44

Judge Munro displayed a similar attitude to Maning'sY The Pakaututu hearing minutes stated that Tareha left the court following the evidence given by Rahera Te Hautai. On 14 December 1869 Tareha, along with Waka, Taina, Kataraina, Werewere, Te Rangipumamao, Rokino, and Kiriwera, (who were mostly Ngati Tutemohuta), applied to Chief Judge Fenton for a re-hearing of the Pakaututu case. They stated that Judge Munro's adjudication was wrong, that Paora Torotoro and his party were wrong, and that there were people with a claim to the land not mentioned in court. Judge Munro was asked to comment on the application for a re-hearing. His terse reply is evidence of the limited investigation his court conducted. Munro stated that the title was 'undisputed' and there had been no opposing claimants. Of course this was untrue and missed the point entirely of assessing an application for a re­ hearing. The title was being disputed and, as Munro went on to admit, there was an objection. Munro's explanation of the court hearing was that no one objected except

44 AJHR 1873, G7, Reports, pp 46-47.

45 In fact Alan Ward states that this was Chief Judge Fenton's 'rigid rule', National Overview, vol II, p 220

18 Tareha, who:46

wanted a woman named Rahera to be excluded. I had occasion to call him to order during her evidence, whereupon he contemptuously left the Court and did not come back. If there were any others who had an interest in the land they did not appear and were not heard of - Tareha's claim was admitted.

We will never know exactly what took place in court between Tareha and Judge Munro. Tareha, no doubt, objected to being 'called to order'. What is clear from the incident is that Tareha did have an objection but did not explain it to the court on 18 November. He did want to explain though, as shown by the request for a re­ hearing. The request was forwarded to the Native Minister, Donald McLean.47 He . received advice from the Resident Magistrate Locke, who stated:

I know of no particular reason why this case should be re-heard, more than any other. The time of the sitting of the Court was known to the parties whose names are affixed to the letter.

Locke recommended refusal; to which McLean approved.48 Having the presiding judge, the Native Minister, and the Resident Magistrate decide the fate of requests for re-hearings reflected poorly on the legislation setting up the court's process. But there were other problems within the process as well. In this regard, Locke's 'more than any other' comment requires further analysis. It gives the impression that Locke was assessing the request on its relative merits, rather than any established criteria. Presumably, this was one of many requests Locke knew of which were declined. There

46 Note by H Munro, 31 January 1870, Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

47 Minute on translation of request for re-hearing, I February 1870, Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

48 S Locke to Native Minister, 16 February 1870, Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

19 is no evidence to show that he considered the request in light of the fracas that saw Tareha leave the court before giving evidence. Nor is there evidence that he considered the merits of the Ngati Tutemohuta complainants in terms of ancestral and occupational rights to Pakaututu.

Locke's statement that the letter writers knew of the time of the sitting also requires comment. This statement was used to justify the Court's award only in favour of those who attended the hearing. This had nothing to do with whether the re-hearing applicants had a valid claim to Pakaututu or not. Under Munro's and Locke's reasoning, if they were advised of the sitting and then did not show up, they forfeited any rights they had.

But how reasonable was it for these people, and any other potential owners of Pakaututu, to have attended the court sitting? There was of course a war on at the time. Paora Torotoro's and Tareha's applications were filed late, and consequently were not advertised in the Kahiti until 24 September 1869, the eve of Te Kooti's major offensive against the Ngati Kahungunu and Ngati Tuwharetoa kawanatanga troops at Tokaanu. The fighting continued until the decisive battle at Te Porere on 5 October 1869.49 Is it realistic to expect that copies of the Kahiti were being passed around the post-battle campfires? The hearing was adjourned twice to give the Ngati Kahungunu applicants time to return from war. But the Lake Taupo residents were given no such respite. This was a time of major social and political upheaval. Along with other Ngati Tuwharetoa hapu, Ngati Tutemohuta, for example, had evacuated their homes to escape Te Kooti.50 Defending their home base against the possible return of Te Kooti, therefore, was likely to have figured higher in their minds than attending the Napier Native Land Court sitting. There were also Ngati Tuwharetoa and Ngati Hineuru who were with Te Kooti, and who, in less fraught times, might

49 Binney, Redemption Songs, pp 184-188

50 Napier MB 89, evidence of Tawhiwhi Karaitiana, typed extract, p 9

20 have lodged a claim to Pakaututu. Locke's statement might have provided the legal justification for refusing the request for a re-hearing. But it was simply not fair on those non-Ngati Kahungunu owners of Pakaututu.

If it is assumed that the 1869 investigation was deficient, then what potential owners might have missed out? It is difficult to determine from the 1869 hearing on what grounds the title was awarded. Judge Munro accepted Paora Torotoro's evidence of occupation, and whakapapa traced from Te Turuki. Te Waka Kawatini and Te Wai were presumably included on the same grounds as Paora Torotoro. Rahera Te Hautai's personal experience of occupation linked with her Maruahine whakapapa was also accepted by the Court. So anyone, theoretically, who could also whakapapa to these ancestors and -identify a usage right might also expect to be included.

It is unclear on what grounds Tareha Te Moananui was included.51 He did not give evidence himself, and he later disputed Paora Torotoro's. It is possible, from reading Munro's later note, that Tareha was admitted to the title as a safeguard against the possibility that he might contest the award.

The grounds for Arapeta Hapi's inclusion in the title are also not explained in the Court's minutes. His father had applied on behalf of Ngati Rangiita, a hapu of Ngati Tuwharetoa. No one gave evidence of Ngati Rangiita's occupation or ancestral links to Pakaututu, although we know that Paora Hapi's son attended the court sitting. Paora Torotoro had accepted Paora Hapi's claim already, but Ngati Rangiita could hardly have been admitted on the basis of Paora Torotoro's evidence.

Sometimes clues to possible ownership can be found in the investigations into the

51 Tareha's descendants did make claim to the neighbouring Te Matai block in the twentieth century (see chapter 5). The claim through ancestry was based on similar lines to that of Paora Torotoro's family.

21 title of neighbouring blocks. Pakaututu borders with the Ahuriri, Ranga 0 Tawhao, Tarawera, and Te Matai blocks. Ngati Hineuru claimed the inland portion of the 52 Ahuriri block. The Ranga 0 Tawhao block represented the name of the Ngati Kahungunu ancestor under which Nga Tamawahine, Ngati Hinepare-Ngati Mahu, and others could claim rights.53 Although it is complicated by the 1870 agreement, when the Tarawera block was re-investigated in 1925, Chief Judge Jones found that Ngati Hineuru were the customary owners.54 In 1951, it was claimed that Ngati Tutemohuta, were awarded land in Tarawera on the western extremity (I Oc) of the block to reflect their ancestral rights to that area.55 In the Te Matai hearing in 1951, Raroa Sullivan, a Ngati Hineuru leader, gave evidence of Ngati Hineuru occupation and defence of the Pakaututu area.56 Ngati Tutemohuta were recognised as the owners in Te Matai (see later chapters). Their elder in 1928, Paora Rokino, had lived at Mawhai pa, Pakaututu, with his parents Kiriwera and Te Wairoroki. 57 It is possible to conclude, therefore, that both some Ngati Hineuru and Ngati Tutemohuta would have had ancestral grounds to be included if they had appeared in court on 18 November 1869.

Just prior to concluding this section on other owners of Pakaututu, it should be noted that the 1865 Native Land Act did not allow for different use rights to be recognised legally. People were full owners or they were not.58 This had implications for a buffer­ zone block like Pakaututu. Without an extensive inter-hapu investigation, it was

52 See Parsons, 'The Ahuriri Block: Maori Customary Interests', May 1997, Document R8, Wai 201 ROD, P 121; Vince O'Malley, 'The Ahuriri Purchase', 1995, document JlO, Wai 201 ROD, pp 210-216 (CB, vol 9, pp 5274-5281); H A Ballara and Gary Scott, 'Ahuriri', 1994, document II, Wai 201 ROD, P 8 (CB, vol 9, P 5330)

53 Parsons, 'The Ahuriri Block: Maori Customary Interests', pp 139-143

54 Moorsom, Main Report, pp 12-13

55 Napier MB 74, evidence ofPaora Rokino, p 219; see also Napier MB 89, typed extract, evidence of Raroa Sullivan, p 19, MA 5/13/236, NA

56 Napier MB 89, typed extract, evidence of Raroa Sullivan, pp 16-17, MA 5/13/256

57 Napier MB 74, evidence of Paora Rokino, p 219

58 Ward, National Overview, vol II, p 224

22 always likely that someone's rights would be overlooked. Amplified by the war, this became one of the consequences of the Pakaututu title hearing. Other contributors were the rigid rules adopted by the court, the poor handling of the case by Judge Munro, and the unwillingness of McLean to provide are-hearing.

(1.3.4) Restrictions on title Judge Munro ordered that 'no restriction' should apply to the title of Pakaututu. This note has its origins in the requirement of section 21 of the Native Land Act 1867. The Court was to indicate whether restrictions should be placed on the alienation of blocks. This requirement probably explains Paora Torotoro's statement to the Court that the applicants had 'plenty ofland for occupation and cultivation besides this'.59 There was no evidence given that Paora Torotoro or any of his people actually occupied or cultivated the block in 1869. Evidence given in 1951 from Ngati Kahungunu suggested that Pakaututu was visited as a satellite of the main winter hunting ground at Puketitiri (see chapter 5). The evaluation of the loss of Pakaututu was therefore perfunctory at best. The customary usage rights of other hapu were not taken into account, nor was the block's importance within the wider hunter/gatherer economy considered.

The Native Land Court in the late 1860s very rarely placed restrictions on land that was not a designated Native Reserve. 6o In Hawke's Bay, very few blocks that came before the Court during this period - and did not receive a restriction on alienation - remained in Maori ownership a decade later. This was not necessarily because Maori were always willing to sell their land, as the next section will demonstrate. The 'no restrictions' order, then, did not bode well for the block's future, and particularly not well for those owners left out of the title.

59 Napier MB 2, P 89

60 Phillipson, 'The Native land Court and Direct Private Purchase', in Cowie, Hawke's Bay, pp 199-200 23 Pakaututu had potential to become good pastoral country and it is likely that this was the reason for Paora Torotoro's involvement with the block. Along with his uncle Te Waka Kawatini, Paora Torotoro had succeeded in gaining title to many Hawke's Bay blocks which were then leased to Europeans and became part of the nascent pastoral economy. Indeed, on 8 April 1870 H M Hamlin, interpreter and freelance land agent, wrote to Chief Judge Fenton about Pakaututu. Hamlin wanted to know if a re-hearing was planned. If it were not, Hamlin requested the names of the Crown grantees, 'for the purpose of concluding a lease of the said land'.61 The pastoral frontier was about to move across the Mohaka River.

(1.3.5) Complaints about the Pakaututu title - The section 'Other OWners' has already recorded the request for a re-hearing from Tareha. All of the co-signees of the request, Waka, Taina, Kataraina, Werewere, Te Rangipumamao, Rokino and Kiriwera, later became owners of Te Matai No 1 in 1880, claiming under the Ngati Tutemohuta hapu of Ngati Tuwharetoa.62 Tareha's involvement with this group at this time remains unclear. It is possible that he was acting as a patron for them before the Napier Court. Of course, he had his own complaint about the proceedings to air as well. This was the only record of Tareha and the Ngati Tutemohuta bringing a joint complaint. Following the refusal to grant a rehearing, complaints about the Pakaututu title continued. Tareha and Hona Te Hoeroa wrote to Fenton on 23 September 1870 asking again for a re-hearing. Fenton referred the request to the Under-Secretary of Native Affairs, but unfortunately the note is illegible in crucial places and it is unclear what Fenton wanted to be included in a reply to Tareha.63 Presumably the previous decision stood.

61 H M Hamlin to Chief Judge, 8 April 1870, Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

62 With the possible exception of 'Waka'. However, it is possible that Waka is the Ngawaka in the 1880 award.

63 Tareha, Hone te Hoeroa to Fenton, 23 September 1870; minute by Fenton on same, 14 October 1870, Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

24 On 12 January 1873 Te Wai Roroki (likely to be the Te Wai on the initial request for a re-hearing) writing from Tarawera, complained to Fenton about the other Crown grantees. 64 The identity of Te Wai was discussed during the 1928 investigation of title for Te Matai. Patu Te Rito, conductor for the Te Turuki claimants (paora Torotoro family), stated that Te Wai was Te Wai Rorold, the mother of Ngati Tutemohuta claimant Paora Roldno.65 Paora Roldno did not deny that his mother was on the title to Pakaututu. This report shall assume that Te Wai and Te Wai RoroId are the same person.

The motive for Te Wai Rorold's complaints in January 1873 is not immediately apparent from her correspondence. Nevertheless, some speculation is possible. Her first letter was sent four days after William Ellison had advised the Court that he had received payment in full for the survey of Pakaututu, and requested that the survey lien be removed. It is more than likely that Ellison was paid from the proceeds of a conveyance of some Idnd. Perhaps it was this that triggered Te Wai Rorold' s renewed contest of the title. She told Fenton that she had gone to Napier and spoken to Locke about Pakaututu. She believed that Tareha, Paora Torotoro, Te Waka, Rahera, Tamehana and Mere Hapi should cease to be there: '1 am very angry with these persons as 1 do not recognise them ( ... taku riri Ide nei tangata he kore noku kao i mohio Ida ratou ... ). The reference to Mere Hapi was likely to be in response to the death ofArapeta Hapi at Tarawera in September 1870. Court records show that both Te Wai Rorold and Wiremu Hapi applied to succeed to Arapeta Paora Hapi's interest in Pakaututu.66 Although the records do not show who won the succession case, Arapeta's son Wiremu succeeded to his father in the Tauhara South block in 1877.

64 Te Wai Roroki, Tarawera, to te Penetana, 12 Hanuere 1873 (translation on file), Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

65 Napier MB 74, P 217

66 Application to succeed to Arapeta Paora Hapi's interest in Pakaututu, from Te Wairoroki, 19 September 1870; Application to succeed to Arapeta Paora Hapi of Taupo from Wiremu Hapi, 28 September 1870, Pakaututu Applications file, Na 198, Hastings Maori Land Court. Te Wairoroki noted that Arapeta Paora Hapi had died in September 1870. 25 Mere Hapi was appointed his trustee. 67

Te Wai Rorold had commercial motives as well as customary ones for challenging the grantees' ownership. She told Fenton that she had 'made a new arrangement with a Pakeha about Pakaututu for his sheep'. She asked for Fenton to send a new Crown Grant on account of the new arrangement. Te Wai wanted her son Rokino and husband Te IGriwera to join her as grantees. 68 This bold request, despite being outside of the Court's normal processes, seems to indicate not a lack of understanding of the court process, but a defiance of it. Roldno, Te Kiriwera and others had been shut out of the Pakaututu title and had been denied a re-hearing, their chance to prove their customary rights. Continuing to exercise those rights then was a important gesture to~the current grantees and the wider public. It is also quite possible that Te Wafs family were living on Pakaututu during this period of correspondence. Fenton minuted on the letter that the case was long over and he had no power to re-open it.69 On 18 March 1873, Te Wai Rorold, IGriwera, Roldno, Kataraina and Taina wrote to Fenton, reiterating Te Wai Rorold's statement that an error had been made by the Court in awarding title of Pakaututu to the current grantees. Fenton minuted on the letter: 'I have no power to alter the Crown Grant. It is done & cannot be undone'.7o This became, it appears, the last official word on Te Wai Rorold and others' complaints about the title to Pakaututu.

67 See Moorsom, Main Report, pp 81-83, and Taupo MB I, Application to succeed to Arapeta Hapi in Tauhara South, p 282

68 Te Wai Roroki, Tarawera, to te Penetana, 12 Hanuere 1873 (translation on file), Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

69 Fenton, minute, 14 February 1873, on Te Wai Roroki, Tarawera, to te Penetana, 12 Hanuere 1873 (translation on file)" Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

70 Fenton, minute, 26 March 1873, on Te Wairorold, Kiriwera, Rokino, Kataraina, Taina to te Penetana, Maehe 18, 1873 (translation on file), Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

26 1.4 THE ALIENATION OF PAKAUTUTU

( 1.4.1) The official sources For some customary owners, their interests in Pakaututu were alienated once the Crown Grant was issued. The grantees were the full legal owners, however, their ability to maintain that interest was dependant on them meeting the costs associated with the block's entry into the legal world. Judge Munro had made an interlocutory decision to be acted on 'when a map is produced to the satisfaction of the Chief Judge'.71 There is no correspondence on file describing when Ellison's survey plan was certified by the Inspector of Surveys and the certificate of title approved by Fenton. The Crown Grant was not signed by Governor Bowen until 11 September 1872.72 The Grant was back-dated to have come into effect from 3 February 1872.

The written sources surrounding the alienation of Pakaututu are few and fragmentary. The deed of conveyance or memorandum of transfer is not extant. All that is known is contained on the correspondence file held at Hastings Maori Land Court. On 29 May 1874, law firm Whitaker Russell wrote to Fenton enclosing a Conveyance of Tareha Moananui and others to Carswell Robjohns and others. It enclosed a deed for assessment of native duty to be completed by the Chief Judge. Also on the letter was a note dated 1 0 June 1874 that the letter of conveyance was received from the Supreme Court where it had been placed with the Chief Justice's official communications. An additional note stated that the 'all up price' was £ 1,000.73 A receipt for the assessed duty on the conveyance from Tareha and others to William Carswell, I and H C Robjohns, was returned to Fenton on 23 June 1874.74

71 Napier MB 2, P 91

72 'Grant to Paora Torotoro and others', 11 September 1872, Reg. No. HI0, folio 46, LINZ HO

73 Whitaker Russell to Chief Judge, 29 May 1874, Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

74 Sub-treasurer, Napier, to Chief Judge, 23 June 1874, Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

27 H H Turton oversaw the transaction in his capacity of Registrar of Deeds. He telegrammed Fenton on 30 July 1874, noting that the £112 survey lien had been paid. This Fenton already knew, as Ellison had written to him on 8 January 1873 stating that he had received payment. 75 The £3 court fees had not been paid though. Turton quicldy secured a postal order and mailed it to Fenton on 3 August 1874. The transaction was complete. Pakaututu was alienated from Maori ownership.

It is very difficult to evaluate the alienation of Pakaututu from the available records. This report would not, however, be complete without an attempt being made. The method employed will be to analyse the alienation within the context of other similar transactions conducted in Hawke's Bay. The circumstances ofPakaututu's alienation are similar to some degree with many other Hawke's Bay blocks awarded title under the Native Land Act 1-865.

(1.4.2) The survey and lease Firstly, the survey, necessary for gaining title through the Native land Court, was very costly in proportion to the 'all up' price paid for the land. The grantees did not have the funds to pay Ellison immediately, so Pakaututu had started its legal life with a debt attached worth 10 percent of its value. The high cost might have reflected the type of terrain Pakaututu offered. Isolated, hilly and rugged country usually attracted high costS. 76 Ellison's task was made easier, however, by the fact that approximately three-quarters of the boundary followed the Ripia and Mohaka rivers, and that the inland boundary, once it left the Makiekie Stream, followed the inside line of the Whakahu Bush (see fig 3).

It is possible then, that Ellison might have inflated his costs, like other surveyors were

75 Ellison to Fenton, 8 January 1873, Pakaututu Correspondence file, Na 198, Hastings Maori Land Court

76 Dr Keith Pickens, 'Surveys', in Ward, National Overview, vol II, p 327

28 accused of and found to have done. Ellison's circumstance fits the profile of a suspected over charger: those who knew it would be difficult to recover their costs from the Maori owners.77 Here the speculation must end, however, because there is no record of the owners disputing the fees, either at the title hearing or as part of an application under section 69 of the Native Land Act 1865. There is no direct evidence either of whether an attempt was made to seize the land for unpaid survey costs. This was possible under the Execution of Judgements Against Real Estate Act 1867. 78

Whether it was the intention or not, putting Pakaututu through the Native Land Court forced the block into the realm of the settler economy, with all the advantages and disadvantages that entailed. Pakaututu had to start paying its own way. A hint that this had been the plan all along of Paora Torotoro is found in Hamlin's letter that he had a leaseholder lined up for the block in April 1870 (see sec 1.3.4). The parts of Pakaututu closest to the Mohaka River across from the Ahuriri block were most likely the attraction to pastoralists. Yet no record of a formal lease exists in the Court files. The general land title data was destroyed in the Hawke's Bay earthquake of 1931, so it remains unclear whether anything came of Hamlin's prospective lessee.

William Carswell's involvement was recorded. InA Koch's 1874 'Map of the Province of Hawke's Bay (Compiled and Drawn from Official Sources)', Pakaututu has Carswell's name above it as an occupier. Whether this was a formal lease however is doubtful, as the schedule of block occupiers attached to Koch's map records

Pakaututu as occupied by 'natives'. 79 As well, Koch's schedule states that no Crown Grant had been issued for Pakaututu. This does not conform with the date of the

77 Pickens, p 327

78 B Gilling, 'Engine of Destruction?: An Introduction to the History of the Maori land Court', 1994, 24 VUWLR, Wellington, p 133, cited in Ward, National Overview, vol II, p 221. Although it is curious that the Conveyance went to Fenton from the Supreme Court.

79 A Koch, 'Map of the Province of Hawke's Bay', April 1874, AAFV 997 H22, NA 29 Crown Grant.

(1.4.3) Context of Maori land alienation in Hawke's Bay 1866-1873 Despite the gaps in the written record, Pakaututu seems to fit the type of block that was put through the court because of its suitability for pastoral use. The block was probably leased, and the leaseholder probably purchased the block outright. All this happened within five years. Approximately 150,000 acres of the Heretaunga plains and surrounds suffered the same fate between 1866 and 1873.80 Prior to 1866, Maori had entered into a series of lease arrangements with settlers. The Crown and provincial government were determined to regulate this practice to facilitate the alienation of valuable Hawke's Bay land. This was largely achieved within seven years, the Native LandCourt proving successful as a court of Maori land alienation.81

Most of our knowledge of these alienations comes from the evidence given to the Hawke's Bay Native Lands Alienation Commission in 1873. Because it was alienated a year later, Pakaututu was not one of the case studies of that commission. Neither were any complaints made about the Court's award of title, which is odd, given that Te Wai Roroki was voicing complaints to Locke and Fenton in January 1873. Nevertheless, the Commission's reports and evidence provides important information concerning the alienation of Pakaututu. This is because Tareha, Te Waka Kawatini and Paora Torotoro were important actors in many of the cases investigated by the Commission.

From the minutes of evidence we learn that all three were sucessful in becoming grantees of dozens of blocks of land between 1866 and 1869. We also learn that all three lost their shares in blocks because of debts with local merchants and money lenders. Te Waka Kawatini was the Maori witness to appear most often before the

80 Cowie, Hawke's Bay, p 181-2

81 Cowie, Hawke's Bay, pp 99-100

30 Commission. Of the 34 cases investigated, he was a grantee for blocks in II; in eight of those the principal issue was debt. Paora Torotoro was only slightly less active as a witness. He was a grantee for nine blocks, eight of which involved debt. Tareha Te Moananui was a grantee for blocks in five cases, but they were major ones, and he was mentioned in several other cases as being involved at the conveyance stage. As part of the commission's investigation into the Petane, Pahou, and Ohikakarewa blocks, Te Waka's and Paora Torotoro's accounts with merchant and money-lender R D Maney were analysed.

Between October 1869 and February 1873 Te Waka put through £948 worth of business through Maney. Of this amount, £370 was spent on alcohol; £290 on clothing; £109 on sugar, tea, flour and the like; £105 was received in cash; and the remaining £74 was spent on tobacco, posts, wire, and saddles.82 Yet Waka's sale of his shares in the blocks had not extinguished his debt. At I February 1873 Te Waka owed Maney £380 lIs 8d. Paora Torotoro's accounts told a similar story. His spending habits were in proportion with his uncle's. Having put £626 worth of business through Maney between February 1869 and June 1871, and having handed over his shares in three blocks, Paora Torotoro was still left owing Maney £239 2s 8d.

Paora Torotoro's accounts with another merchant and money-lender, Fred Sutton, were also analysed in connection with the Omaranui block. They showed that Sutton acted as Paora Torotoro's banker. Between September 1867 and June 1871 Paora Torotoro put through approximately £3,000 of business. Nearly half of this amount went in 96 separate payments to other Europeans, many of them also merchants.83 Roughly another £1,000 was spent in 268 separate purchases of food and sundry items, the rest spent on alcohol and clothing or withdrawn as cash. Paora Torotoro's sale of his valuable Omaranui and Mangateretere shares meant that in 1871 his

82 AJHR 1873, G-7, evidence, p 159

83 AJHR 1873, G-7, evidence, pp 163-167

31 account was only slightly in arrears. Nevertheless, it seems clear that he needed to sell land to sustain his level of spending. During this period, Paora Torotoro was supporting a lifestyle he could not afford. The same must apply to his uncle, Te Waka Kawatini.

It is likely that in 1874 both Paora Torotoro and Te Waka needed credit more than they needed shares in an isolated block of land on the fringe of their customary rohe. Less is known about the state of Tareha's finances in 1874, and nothing is known about the other grantees. Paora Hapi' s successors were sucessful at winning contracts to construct sections of the Napier-Taupo road, but by 1873 the work was more or less completed, and Paora Hapi' s people were moving on from their Te Haroto base. 84

Nothing is known about the purchasers of Pakaututu either. William Carswell and the Robjohns do not feature among the large leaseholders at that time.8S Their legal firm, Whitaker Russell, however, has been described as being among the 'most lucrative in the colony'. The years between 1867 and 1876 proved to be the firm's most intensive period of 'entrepreneurial activity'. Both Whitaker and Russell were politicians committed to alienating Maori land and bringing it into the settler economy.86

(1.4.5) Conclusion The paucity of factual information concerning the alienation of Pakaututu makes any analysis of it speculative only. There is no way of knowing whether all owners agreed to the alienation. It seems reasonable to presume that Te Wai Roroki would have opposed a sale. Nevertheless, there is no record of protest on file from her or the

84 Moorsom, Main report, p 85. It appears that Paora Hapi's people eventually returned to Taupo.

85 It is possible that the Carswell family may hold some private papers. At the time of releasing this report I had not been able to contact the family.

86 Russell Stone, 'Whitaker, Frederick', entry W 17, and 'Russell, Thomas', entry R20 in Dictionary of New Zealand Biography, vol 1, pp 586-587 and 377-379

32 other grantees. We do not know whether all grantees signed the deed of conveyance, or that the transaction was interpreted correctly, was fully understood by the grantees, or was witnessed by an appropriate person. Presumably the Trust Commissioner checked all these things, although the available records do not allow an examination of this process. To this author's knowledge, no petitions were made concerning the circumstances of Pakaututu's alienation.

Pakaututu was typical of many blocks alienated in Hawke's Bay via Native Land Court facilitation. Pakaututu's isolation from market, its limited use within the Maori customary economy, and the lack of a stable and politically-powerful resident community were all factors in why its loss was not protested. Another reason was that the alienation occuried in tumultuous times. As Raroa Sullivan commented in explaining the absence of Ngati Hineuru at the 1880 Te Matai hearing: 'In 1880 the Maoris were all quiet. The wars were over. My people were well down'. 87 The recurrent effects of the decades of war cannot be down-played.

A further reason might be the delayed onset of 'actual' alienation, within the loose empire, tight empire paradigm.88 The entrance of Pakaututu into the settler pastoral economy in 1870 did not necessarily mean that Maori relinquished their use of its resources, or indeed, would have had to evacuate the block immediately. There are many examples of pastoral leases coexisting with Maori occupation and continued customary usage. These informal arrangements were not usually recorded in legal form. There is evidence of a Maori community at Mawhai pa for two further decades. Based on his personal memory, Raroa Sullivan told the Court in 1951 that Ngati Hineuru and Ngati Tutemohuta were living at the pa in 1890. However, there is no record of the Maori community surviving there much after that date. According to

87 Napier MB 89, evidence of Raroa Sullivan, typed extract, MA 5/13/236, NA

88 See James Belich, Making Peoples: A History of the New Zealanders From Porynesian Settlement to the end of the Nineteenth Century, Penguin Books, Auckland, 1996, in particular, pp 247-272

33 Raroa, the Ngati Hineuru moved to Te Haroto, and the Ngati Tutemohuta returned to Taupo.89 In reality, however, only half of Pakaututu's 7,606 acres was employed for productive pastoral use. The rest remained in bush, and presumably, retained some of its population of native avifauna. New resources such as pigs became established in these bush areas. As well, pastoralism did not necessarily diminish the valuable fishing grounds in the Mohaka and Ripia Rivers. The extent of the loss of Pakaututu and the timing of that loss are therefore difficult to assess.

1.5 PAKAUTUTU POST-ALIENATION

Vital records prior to 1931 were destroyed. Yet we know that Pakaututu became part . of the pastoral hinterland of Hawke's Bay. While it was possibly farmed at certain times as part of larger stations such as Rissington and Te Haroto, from 1915 at least, it operated as a station in its own right. 90

On 10 July 1962 the Crown purchased the entire 7606-acre block for £50,000.91 Most of the purchase price was for the capital and stock owned by A M Wells Ltd. Only 3,500 acres of Pakaututu were being utilised for sheep farming, the remaining 4106 acres were in bush, fern, and scrub: The Land Settlement Board purchased the property in order to provide farms for WWII ex-servicemen (see fig 4). By 19 August 1963 it had modernised the utilities, built more houses and farm buildings, and set in motion the up-grading of road access. Five sections were ready for sub-division.92 The land was disposed by ballot in December 1963. No ex-servicemen applied. The average age of applicants was 25-30 years, most were married with children, could

89 Napier MB 89, evidence of Raroa Sullivan, extract, p 18

90 As long as evidence of a mortgage can be assumed to indicate an autonomous existence, see Certificate of Title, HB vol 72, fol 160, LINZ Napier

91 'Application for Financial Authority', Land Settlement Board, 8 August 1962, AALX, 839,4/238, vol 2, NA

92 CCL Napier to State Advances Corporation, 19 August 1963, AALX, 839,4/238, vol 3, passim

34 contribute on average £3-4,000 cash, and wanted to utilise the Crown's renewable lease tenure option.93

The five successful applicants and their families took occupation in March 1964. The leases were for 33 years, renewable, and able to be converted into freehold at any time. Recent cadastral information suggests that most of the farmers exercised this option. As at 1997, only three small subdivisions, totalling 209.1 hectares, have

Landcorp Investments Limited listed as the title owner. 94 Presumably this is the remnant of the renewable lease scheme (see fig 5). It is beyond the scope of this report to investigate this issue further.

The 2,970 acres not employed in the settlement scheme was set aside for the New Zealand Forest Service. An 883-hectare block bordering Te Matai and fronting the Mohaka River was gazetted as part of the Kaweka State Forest Park in 1979.95 The bush-covered land fronting the Ripia River side of Te Matai is described as the

Pakaututu Conservation Area, and is managed by the Department of Conservation. 96 DOC record the size of the block as 295.3 hectares; other sources put it at 347 hectares. 97 The two areas appear to be joined by a thin strip ofland separating the former Strawbridge lease (sec 2, block V Pohue SD), now known as Roston farm. There is no information on this strip. It does not appear to have a separate title. There is no record that it was taken from the Te Matai block. One explanation is that it may have been created from the redefinition of the PakaututuiTe Matai boundary. In the late 1970s, officials were still unsure about the accuracy of previous survey

93 CCL Napier, 'Result of disposal ofland by ballot', 18 December 1963, AALX, 839,3/238, vol 3, NA

94 Terralink NZ Ltd (Terraview) - LINZ DCDB Data as at 19 September 1997

95 NZG, 5 July 1979, Vol II, P 2029

96 See Land Inventory Sheet, 80029, Pakaututu Conservation Area, and Map Sheets U19 and V19, 'Conservation Management Strategy for Hawke's Bay Conservancy 1994-2004', Vol II, Department of Conservation, Napier, 1994.

97 Terralink NZ Ltd (Terraview) - LINZ DCDB Data as at 19 September 1997

35 information.98 DOC have no information about the strip. The Conservation Management Strategy records that access to the Pakaututu Conservation Area is limited to a right of way from the Kaweka Forest Park and a Marginal Strip fronting the Ripia River. DOC intend to incorporate the Pakaututu Conservation Area into the Kaweka Forest Park. 99

98 See Deputy Registrar F T O'Kane to Maori Affairs HO, 17 October 1977, MA 5/13/236, NA

99 Land Inventory Sheet, 80029, Pakaututu Conservation Area, 'Conservation Management Strategy for Hawke's Bay Conservancy 1994-2004', Vol II, Department of Conservation, Napier, 1994.

36 TWO

CROWN PURCHASING AND THE TE MATAI 1 BLOCI(

2.1 INTRODUCTION

This chapter principally covers the period 1879 to 1881, during which the Crown commenced its purchasing of Te Matai and the Native Land Court investigated the title to the block. The Crown purchasing was conducted as part of intensive Government activity in the eastern Taupo region. The method adopted by Crown purchasers was to make a small payment to some of the owners of a block. A survey would then be carried out, and applications to the Native Land Court would be made by both the receivers of the Crown's money and the Crown. This is what happened with Te Matai. The only snag came, however, when it was belatedly discovered that the Court's jurisdiction was limited by the confiscation boundary.

This chapter will first evaluate the legislation under which Crown purchasing operated during this period. It will record the payments made by the Crown, and discuss the title investigation conducted by the Native Land Court. An analysis of the complications surrounding the confiscation boundary will be made. The chapter will end with a discussion of the events following the 1880 Court hearing.

2.2 CROWN PURCHASING IN THE lATE 1870s

There is no evidence with which to explain when and how Crown purchasers first decided to purchase Te Matai for the Crown. Judging from the available records, from

36 1876 surveyor and Crown purchase agent Henry Mitchell, aided by Resident Magistrate Locke, stepped up activities. There seems to have been a concentration on the eastern side of Lake Taupo. Te Matai was one of several blocks in the area for which down-payments were made in the late 1870s. The Tauhara middle and south blocks, Mohaka-Mangatainoka, Runanga, Kaimanawa, and Tauranga-Taupo blocks were all targeted at this time.

On 9 April 1879 Henry Mitchell recorded in his Cash Book that he had paid £15 to Te Rangi Tahau and Taina at Tarawera. The same day Mitchell paid £100 to 'their tribe at Public Meeting at Taupo'. 1 Mitchell wrote to his superiors on 21 April 1879, enclosing the 'boundaries ofTe Matai and Oumupapamaro for proclamation as under purchase by GovernIiien t' .2

A survey of the two blocks was carried out, possibly by Mitchell himself. At this time the Survey Department regularly carried out surveys at the request of land purchase officers to fulfill the Native Land Court's pre-investigation requirements.3 Although the survey of Te Matai was registered as plan number 5091, and copies were supposed to be lodged with the Native Minister and at the district Court offices, this author has not been able to locate the plan.4

1 Entry for 9 April 1879, Cash Book- Henry Mitchell 1873-1886, MA-MLP 7/19, NA, pp 13,59, 145. McEwan's 'Summary of events', compiled with reference to the MLP file 90/374, stated that the payment was made to Te Rangi Tahau, Taina Whetu, Taokete, Hira te Rangipumamao, Kataraina te Ao, Te Kapua Whakarito, Wi Maihi Maniapoto, Mere Hapi and Werewere Rangipumamao, p 4, MA 5/13/236, NA

2 Land Purchase Department, Record Book 1873-1888, NA Register Room. The file on which this letter sits could not be located by National Archives.

3 Section 69 of the Native land Act 1873 stipulated that surveys could be made at the request of Native claimants or owners. This agreement was to be made in writing in Maori and English, and specify the rate by which costs would be determined (section 72).

4 See section 71 of the Native Land Act 1873. As far as officials were concerned, the plan was lost in the fires that swept through the Napier Deeds Registry and Lands Department follOwing the 1931 earthquake. A new plan was created for the 1951 title investigation of Te Matai.

37 When payment for land had been made, a notice was published in the Gazette declaring that negotiations for purchase had commenced. Once this notice was published, no private person was able to start fresh negotiations for the block. 5 A notice for Te Matai dated 27 May 1879 was published.6 Mitchell had Rangi Tahau and others sign an agreement for the sale of all their interests in Te Matai. The balance of the payment for the land would be negotiated following the completion of surveying and determination of title by the Court.7 The purchase and the title determination, therefore, were closely linked. To make the link more explicit, the Government applied to have the Court deal with its interests in a block at the same sitting as the title investigation. Applications of the Governor, as they were listed, were to be treated the same as those by Maori. The Court had the power to order that land become the property of the Crown, and from the date of that order the land was 'deemed to be absolutely vested in Her Majesty'.8 Having determined title, then, the Court could act as the official rubber-stamp of the land's alienation to the Crown.

2.3 THE INVESTIGATION OF TITLE TO TE MATAI

(2.3.1) The Applications One month prior to the payment of Mitchell's advance, Rangi Tahau, Taina, and Werewere and forty-one others' application to have the title to Te Matai investigated was sent to the Taupo court.9 The signatures were witnessed by land purchase officer Henry Mitchell. The application was published in the Gazette in November 1880.

Included in the same issue was an application from the Governor. 10 The description

5 Section 3, The Government Native Land Purchases Act 1877

6 NZG, 5 June 1879, p 749. Te Matai was estimated to contain 5,000 acres.

7 McEwan, 'Summary of Events', p 4, MA 5/13/236, NA

8 Section 6, The Native Land Act Amendment Act 1877

9 Rangi Tahau, Werewere, and Taina, to Tumuahi, Kooti Whenua Maori, whitu Maehe 1879, Te Matai correspondence, part 1, NA 480, Hastings Maori Land Court

10 NZG, 6 November 1880, pp 1583 (English version), 1587 (Governor's application), 1590 and 1593 (Maori versions of both)

38 of the boundaries of the two applications differed. The Maori applicants used placenames:

Ka tirnata i Te Makiakia, ka haere i rota i te awa 0 Ripia ka Ihupiri, Te

Waikinakitanga, Waipapa, Ruangaawa, ka kati ki te raina 0 Te Ritiowharetotoaripia,

ka heke ki uta ki Te Patete, ka rnakere ki Kakariki, ka haere i rota i Te awa 0 Mohaka,

ka kati ki Te Taiko, ka heke ki uta, ka haere i runga i te rain a 0 Pakaututu, karnahi ka kati ki te tirnatanga ld Te Maldakia.

The Governor used existing blocks and natural features to define the area:

Bounded on the north by Te Ripia River, on the West by Wharetoto Block, on the South by the Moh:qka River, and on the east by the Pakaututu Block.

The Native Land Court was set to hear this and many other applications at Tapaeharuru from 29 November 1880. Te Rangi Tahau's group included all of those who applied for a re-hearing of Pakaututu in December 1869. Meri and Wiremu Hapi were part of this Ngati Tutemohuta group.

(2.3.2) The Court process The Te Matai block was heard on the third day of Judge Symonds' December 1880 sitting. The first two days were spent dismissing several applications, brought by Te Rangi Tahau and Werewere and others, because of a lack of surveys. On 3 December Henry Mitchell arrived, making it possible, the Court noted, to hear the 'Government claims'. Henry Mitchell opened the Ngati Tutemohuta application by stating that the land was 'adjunct the Waikare Mohaka', but he saw no objection to the case proceeding. 11

Te Rangi Tahau spoke on behalf of the applicants. He told the Court that he

II Taupo MB 2, P 22

39 belonged to Ngatimar[ uahine] tribe and the Ngati Tutemohuta hapu, and that he lived at Waipahihi. He claimed through three ancestors: Maruahine, Tuwharetoa and Kurapoto. He stated that the tribe had occupied and cultivated at Makiekie, and had burial places at Pa[]waikahurangi. 12 Judge Symonds then challenged any objectors to appear. Hori Te Tauri asked for his name to be inserted in the title. The hearing was adjourned to allow the claimants to arrange the ownership list.

Hori te Tauri failed to secure a place on the list Werewere handed to the court and objected again. Hori disputed Te Rangi Tahau's evidence. 13 Also claiming through Maruahine, via ancestors Tautirewera and Tuhiangaroto, Hori stated that the Pa[]waikahurangi burial place was on other land and that Rangi Tahau had no houses on Te Matai. According to Hori, his mother had lived on Te Matai, but Te Rangi Tahau had occupied 'the land sold to the Government'. It transpired that Hori's mother had temporary dwellings on Te Matai, which were used for accommodation when eeling on the block. Hori himself had frequented the block in a manner consistent with a seasonal use right. He had not cultivated or lived permanently on the block, nor were any of his ancestors buried there. 14 His evidence impressed the other claimants enough to admit him into their list of owners.

There were no other objections or evidence given in response to Hori Te Tauri. Once again this brings in to question the quality and depth of the Court's investigation of title .. The evidence of the one witness who spoke for 30 people was, presumably, accepted, despite it having been denounced by an opposing claimant. The minutes do not record any attempt by the Judge to establish the credibility of Te Rangi Tahau's evidence, or at least resolve the conflict between the two witnesses. As in the Pakaututu case, the inclusion of the objector was seen as the resolution.

12 Taupo MB 2, pp 22-23

13 Taupo MB 2, P 24

14 Taupo MB 2, P 25

40 Who else might have objected if they were in Court on 3 December 1880? In 1951, Raroa Sullivan stated that in 1880 Ngati Hineuru 'were well down' as a people. He stated that they were not notified of the hearing. 15 Also in 1951, Hare Puna said that Ngati Hawea were not present because Te Waka Kawatini had recently died, and Paora Torotoro and Tareha were aging and ill. 16 Both groups' claims to Te Matai were dismissed in 1951, principally because they had failed to appear and object in 1880 (see ch 5). Getting on the list on 3 December 1880, therefore, was the only chance to gain entitlement to at least a portion of the block or share in the proceeds of the Crown's purchase money.

The list of owners handed to the Court contained 31 namesY

Te Rangi Tahau~ Wildtoria Korohiko, Rangataua, Ngawaka, Kipa, Te Whare, Mere Ku, Mere Hapi, Hine Ngamo, Rangipumamao, Pani Hapi, Manihera Te Pa, Hoeta, Wiremu Te Tauri, Hori Te Tauri, Taina Wairorold, Kataraina Rongoiti, Te Kapua, Roldno, Makere, Kiri Wera, Wiremu Hapi (17 yrs), Rangitakaiho (8 yrs), Eru Tahau, Tamihana, Wi Patukohuru, Kopura Rangitunoa, Wirihana (12 yrs), Werewere Rangipumamao, Te Poai (5 yrs), Maniapoto.

Trustees were appointed from among the owners to oversee the interests of the four minors. An order was made for the 31 owners to an 8580 acre-block. But the following day the case was re-opened. The minutes are brief on detail: 'A telegram was received from Mr Baker stating that the land with the exception of 1020 acres was in the confiscated line.'18 Baker was the Napier Inspector of Surveys. The order of the previous day was cancelled and made instead for 1020 acres. I9

15 Napier MB 89, typed extract, p 19, MA 5/13/236, NA

16 Napier MB 89, typed extract, p 23, MA 5/13/236, NA

17 Taupo MB 2, P 25

18 Taupo MB 2, P 27

19 Taupo MB 2, P 25

41 2.4 THE GOVERNOR'S APPLICATION

The Court dealt with the 'claim of the Governor' on 4 December 1880.20 Henry Mitchell appeared for the Government. Although it had become apparent that the bulk of the block was within the confiscation boundary, and that a new plan reflecting this had to be prepared, Mitchell chose to continue with the case. The Court followed suit, despite not having the 1020-acre block plan before it.

Te Rangi Tahau again represented all the owners. He stated his fresh credentials as an owner of the block, adding that he was a 'principal' one.21 While this may have been the case in customary terms, Te Rangi Tahau held no special status in legal terms. When requested by the majority of the owners, the Court was to investigate and determine the amount of the proportionate share of each owner. 22 No such investigation is recorded in the Court's minutes.

Te Rangi Tahau told the Court that negotiations had been entered into to sell the land, and that £100 had been distributed among the other owners. He then admitted that the 'completion' of the survey was holding them up. This was, no doubt, a reference to the changed boundary of the block. If he protested at a lack of knowledge about the confiscation boundary, no record of it appears. Te Rangi Tahau then bluntly explained how transactions worked: 'Government pay for survey if they get the land if not the Natives pay for it' .23 The imperative to sell, then, was ever shadowed by the threat of survey lien. The Judge adjourned the case to the next sitting of the Court.24

20 Taupo MB 2, P 45

21 Taupo MB 2, P 45

22 Section 47, Native Land Act 1873

23 Taupo MB 2, P 45

24 Taupo MB 2, P 45

42 Te Matai came up again on 9 December 1880. Crown representative RJ Gill applied for an order in favour of the Crown as 'the Natives were agreed'.25 Te Rangi Tahau confirmed that the Crown should get the order. No objectors appearing when challenged, the Judge ordered in favour of the Crown, who became the owners of 1020 acres of undefined, partially surveyed, hilly, high-altitude, bush-clad land.26

All that remained was for the Crown to pay the remaining purchase money. Negotiations must have been agreed to, because Werewere asked that the final payments on Te Matai and Umupapamaro be paid by th~c Crown to the Court. While Gill agreed, the Judge was careful to distance the Court - albeit nominally: 'Court said the payment of money was no business of the Court, but if natives wished it, money might be paid under its cognizance, a balance having been stated to be due by Mr Gill.,27 The Court's rubber-stamping of alienations, therefore, did not include an examination of the purchase price or other conditions of the sale.

Later that day, however, once again new information caused the previous order to be cancelled. A plan and other papers received by post showed that the 'portion outside of confiscated line contained only 254 acres, instead of 1020 ... Mr Gill therefore declined to pay any further monies'.28 This changed everything. The Court observed that 'the greater part of the 1020 acres supposed to belong to the natives was really the property of the Govt.' Furthermore, if an order was made for the balance land (254 acres) it would also be for the Crown.

The Court appeared conscious that, in the space of a few days, the 31 owners had: • their 8580-acre block slashed in size to 1020 acres;

25 Taupo MB 2, P 76

26 Taupo MB 2, P 76

27 Taupo MB 2, P 82. I t is not clear from the minute book whether it was Judge Symonds or O'Brien or pOSSibly both preSiding.

28 Taupo MB 2, P 82

43 • the 1020-acre block reduced further to 254 acres; and, • learnt that the award of 254 acres would most likely not cover the cost of survey and the £115 down-payment.

Gill suggested that the hearing be adjourned to enable the Government to consider the new circumstances. Gill's suggested solution was an ironic one: the Government, he said, might be willing to alter the position of the confiscation line. 29 The Court agreed with Gill that the hearing should be adjourned by reasoning that the 'Govt will treat the natives much better than the Court has power to do'. The former order (in favour of the Crown) was withdrawn and the case adjourned. This left an untidy situation though. While the order in favour of the Crown was withdrawn, the order in favour of the 31 ovVners to a 1020-acre block was not. The order was not changed to reflect the fact that the Court now had jurisdiction over only 254 acres of Te Matai.

2.5 CONFUSION OVER CONFISCATION BOUNDARIES

The 1880 Court hearing demonstrated the Crown's failure to precisely define the confiscation and provincial government boundaries.3o The Hawke's Bay provincial boundary was given a paper definition in 1858. The boundary ran north along the ridge of the Ruahine Mountains 'to latitude 39° 30' South, then in a right line to a point in latitude 39° South, longitude 176° 30' East, then in an Easterly direction along the 39th parallel of South latitude to the sea coast'.31 The confiscation boundary commenced at the Waikare River mouth, following that river to a point where it jumped up to the 39th parallel, which doubled as the provincial boundary.

29 Napier MB 2, P 83

30 This section has been written with the benefit of Moorsom's similar interpretations, Main report, pp 97-100

31 NZG, 1858, P 137

44 It then followed the 39th until it hit that 'magical' point defined by longitude 1760 30' East, where it stayed with the provincial boundary until it encountered the Mohaka River. Presumably, the inland portion of the confiscated area was thought to represent the rohe of Ngati Hineuru. Ormond referred to it as such in 1869 (see sec 1.3.2).

This was fine for the purposes of paper proclamations. Problems arose, however, when it came time to divide the confiscated area between the Crown and Maori. Both the 1868 \~md 1870 Agreements were drawn up with faulty information. The 1868 ,,~ agreement map, most likely drawn from McLean's sketch at the time, took the Ripia River as the extent of the confiscation boundary. This excluded both Te Matai and Pakaututu (see fig i), The sketch was not the definitive interpretation of the confiscation boundary, however. Judge Munro of the Native Land Court in August 1868 determined that Pakaututu was within the confiscation boundary. And in November 1869, Crown official Hamlin conceded that Pakaututu was 'partlywithin' the confiscation boundary. Both presumably used the information represented in the 1870 agreement plan (see fig 6). This plan was also faulty, but in a different way.

For unknown reasons, this plan cut short the provincial boundary's southward journey on the 39th parallel. It then cut a line at right angles to the 39th. This line met the Mohaka river midway on the Pakaututu block frontage. It is likely that the plan was drawn from faulty provincial boundary descriptions in use at the time. Official cartographer A Koch cemented the place of this erroneous line by repeating it in his map of the province published in 1874. Koch's map had more fundamental problems, however. He failed to locate the 39th parallel correctly, and had it running through the middle of Tarawera Township.32 Presumably Mitchell was relying on these interpretations of the Provincial and confiscation boundaries when he

32 A Koch, 'Map of the Province of Hawke's Bay', April 1874, AAFV 997 H22, NA

45 commenced purchasing Te Matai.

The reign of cartographic terror ended in 1880 when the Inspector of Surveys, H Baker, realised the error. Even then it took him two attempts. This author has not located a plan which would account for 1020 acres of Te Matai being outside the confiscation boundary. The correct delineation of the provincial boundary, and hence the confiscation boundary, meant that just 254 acres ofTe Matai escaped the 1867 proclamation. There were other implications of the restless boundary lines. Part of

Whar.etoto 1 block lay within the confiscation boundary. Umupapamaro block ended ~" up being an oddly elongated block. It is not within the scope of this report to assess the passage of these blocks through the court more closely.

Maps and plans used from 1881 gave correct interpretations of the provincial government boundary.

2.6 TEMATAI-1881 TO 1922

The extant sources do not adequately reveal what happened between 1881 and 1922. The position from the 9 December 1880 Court sitting was thus: the Government was to reconsider its position having discovered that the bulk of Te Matai lay within the confiscation boundary. An order to some of the block (referred to as Te Matai 1) to 31 owners was still alive, though complicated by the Court's oversight in not changing the order from 1020 to 254 acres. The Governor's claim to Te Matai was grouped with several others as 'adjourned claims' and rescheduled for hearing in March 1881.33 The Maori applicants' claim was not listed, so presumably the Court believed the application had been completed. The 1020 acre order was still afforded official status in 1881. 34

33 NZG,3 March 1881, Vol I, P 298

34 AJHR 1881, C-6, P 15

46 From what is known, very little happened institutionally during this period. Te Matai remained listed on the schedule oflands acquired or leased by the Crown from Maori, under the section 'negotiations in progress', published in AJHR. The acreage of Te Matai No 1 block remained recorded as 1020 acres. This was despite the Chief Surveyor in Napier informing the Land Purchase Department in 1883 that Te Matai was almost wholly within the confiscated boundary.35 From 1888, the Court's oversight was rectified and the blocks' correct size of 254 acres was recorded.36

The 1888 change was due to renewed int~rest in the block by Ngati Hineuru chief Hape Nikora. He applied to the Court for the title to be investigated but discovered that the block was within the confiscated area:37

Hape Nikora s""ys he is authorised by those interested to say that this case may be struck out. He produced a written document to [the] Court [that] intimated that the Chief Surveyor reports this land to be within the confiscated line.

It is reasonable to assume from Hape's actions that prior to this date he did not know that Te Matai was confiscated. While he appeared to take the matter no further at that stage, Lands officials did. Rather than take up the Court's offer in 1880 to rectify the problem in the favour of Maori, Lands officials instead limited their activity to obtaining a survey lien for the costs incurred by Mitchell. The survey costs of the original 8580-acre block were steep. Just prior to the Court hearing in December 1880, the Chief Surveyor, Auckland, informed the Chief Judge of the Native Land Court that the sum of £270 7s 8d was due for Te Matai.38 The survey cost was not

35 Chief Surveyor, Napier, to Native Land Purchase Department, 83/207, NLP Department Record Book 1873-1888. The file could not be located.

36 AJHR 1888, G-2A, P 6

37 Napier MB 17,30 November 1888, p 145

38 Chief Surveyor, Auckland, to Chief Judge, Auckland, 16 November 1880, Te Matai Applications file: Investigation 1851, Vol 1 , Na 480, Maori Land Court, Hastings. The Chief Surveyor referred to the survey as plan no. 51.

47 mentioned at the hearing. Presumably this was because the Crown was to immediately purchase the block and assume responsibility for it. Following the changes to and cancellation of orders, orders for survey costs were lost sight of. Lands rediscovered the amount in the 1890s. There are no records on which to judge whether Lands officials took into account the fact that the Crown had benefitted from this survey. It was mostly Crown land after all, and the Maori owners' 254-acre portion had not even been surveyed out from the parent block. Nevertheless, a charging order for survey costs was sought and obtained from the Native Land Court.

On 25 March 1895 Judge Edgar briefly minuted: 'No objection. Order to be made' .39

The advance purchase money paid by Mitchell was not included in the Court's order. The amount of £225:.8 shillings remained in the official 'lands under negotiation' schedules unchanged until 1908, when the schedules stopped being printed. Land purchase officers were supposed to complete outstanding transactions by this date, but Te Matai did not feature in any lists of completed transactions. This was probably due to its isolation and unsuitability for immediate land development, as well as its much reduced size. The Crown already owned the bulk of the block during this period; chasing a further obscure 254 acres was not, obviously, a high priority.

39 Napier MB 38, P 233

48 FOUR

THE 1928 HEARING

4.1 INTRODUCTION

By 1928 the Court had decided that Te Matai was in the Ikaroa land court district, rather than Waiariki or Aotea. It had been determined that Te Matai was within the boundaries of the 1867 confiscation, but that the Crown had intended to return it to Maori. Legislation was passed in 1924 to enable the Court to determine to whom the block should be returned.

The Court sat at Hastings from 15 to 20 February 1928 taking evidence from the principal applicant, Paora Rokino, and witnesses for three other groups. W Bird represented Paora Rokino and the descendants of the Te Matai 1 block owners. Tuiti McDonald started as the conductor for Tutewaka Rameka and Ngati Whitikaupeka, but ended up taking the case for Hape Nikora and Ngati Hineuru. Patu Te Rito conducted a case for the Tareha and other whanau. Pfeifer represented the Crown, but only to remind the court that the additional interest had increased the debt owed to the Crown to £734. Interest on the debt continued to grow. l

4.2 THE NGATI TuwHARETOA CASE

Bird opened his case by pointing out that he represented 29 of the original owners of Te Matai 1 block or their descendants. He submitted that his case relied on the Court's award to those owners as having been, in effect, an award for all Te Matai.

1 Napier MB 74, 15 February 1924, p 177

67 His first and only witness was original owner, Paora Rokino. 2 His and the other owner's claim was by ancestry, ringakaha, and occupation.

(4.2.1) Ancestry and ringakaha Paora Rokino claimed the block through the ancestors Kurapoto, Maruahine, and Tuwharetoa. Ngati Kurapoto and Ngati Maruahine had intermarried with Ngati Tuwharetoa. The original occupants of Te Matai, Ngati Hotu and Ngati Apa, had been defeated by Ngati Kurapoto. They in turn had come under the mana of Ngati Tuwharetoa.3 The 'rohe potae' of Ngati Tuwharetoa, as it was referred to in Court, included Te Matai (the boundary being the Mohaka River). Ngati Whiti had been driven to Patea and had not returned, relinquishing any rights they may have had. Ngati Kahutapere hacfbeen defeated at Te Kupenga, on Tarawera, and consequently had no rights to Te Matai. In delivering this evidence, Paora Rokino made frequent reference to the Tarawera investigation of 1925, which he said was fresh in his mind, and very similar in content.

(4.2.2) Occupation Paora Rokino listed eight kainga on Te Matai:4 • Te Tuki - located near confluence of Makiekie stream and Ripia River • Waikinaki - located near Waipapa Stream, in the northeast of the block • Rangipokohu - located at the confluence of the Rangipokohu Stream and Ripia River • Te Pate Hau -located near the boundary of Wharetoto and Te Matai • Whiohutu -located near the confluence of Kakariki Stream and Mohaka River

• Te Ana 0 te Whio -located in Te Matai on the Mohaka

2 Napier MB 74, P 178

3 Napier MB 74, P 181

4 Napier MB 74, P 182. Please note that the spelling of names is difficult to decipher. Any errors are regretted.

68 • Te Taipo -located on the Mohaka • Porakiri - located near Pakaututu where there is a warm stream

He stated that there were cultivations near some of the kainga. There were urupa on the block also. His maternal grandfather was buried on the block.5 Parapara was buried near Te Tuki.6

While Paora admitted that no one lived on the block now, many of his people had in the past. These'included himself, his father, Kiriwera, and his mother, Te Wairoroki, all original owners. In going through the other Te Matai I block owners, Paora struggled to name others that had occupied the block. None were buried on the block. There were v~iy few occupation rights, he later admitted.7 In answer to questions from other conductors, he stated that he and his parents had resided at Mawhai pa. 8

(4.2.3) Other claims Paora Rokino rejected the claims brought by Te Roera Tareha and Paora Kurupo under the ancestors Tawhao and Te Turuki. He stated that the two tipuna had neither ancestral nor occupation rights. He accepted Hape Nikora and Ngati Hineuru's claim on ancestral grounds, but rejected any claim they might make for occupation.9 Paora stressed that he had attempted to get Te Matai heard by the court on several other occasions.

5 Napier MB 74, P 179

6 Napier MB 74, P 182

7 Napier MB 74, P 220

8 Napier MB 74, P 219

9 Napier MB 74, P 183 69 4.3 THE NGATI HINEURU CASE

The Ngati Hineuru case appeared to suffer from some organisational problems. The applicant was Hape Nikora, but he did not appear. In 1951 Raroa explained that he had thought Hape Nikora was going to represent Ngati Hineuru's interests, and in any case, he (Raroa) wanted to have the hearing adjourned until Tarawera had been investigated. lO So the presentation of the case fell to its conductor, Tuiti McDonald. He emerges as a rather enigmatic figure in this hearing. He started as the conductor for the Ngati W1:titi applicant. He then told the Court that he would not call further evidence for his clients (it was not clear who he was referring to) as it was given at the Tarawera and Tataraakina investigations. There was 'nothing to add in the favour of Ngati Kahutapere' he -obliquely stated, before announcing that he now represented Hape Nikora and Ngati Hineuru.ll The case for Ngati Hineuru was made under ancestry, ringakaha, and occupation. Although it is not explicit in the records, it appears that McDonald gave evidence for Ngati Hineuru. 12

(4.3.1) Tuiti McDonald McDonald claimed under a similar ancestry as had Paora Rokino, the intermarriage of Ngati Tuwharetoa with Ngati Kurapoto and Ngati Maruahine occupants. He claimed that Ngati Hotu had been defeated by Ngati Tuwharetoa and that Te Matai was within the rohe potae of Ngati Tuwharetoa. But he deviated from Paora Rokino's account by referring to a Ngati Hineuru whakapapa which detailed the links between the ancestor Maruahine and Ngati Hineuru and the descent to Taingaroto. It was these descendants who had occupied Tarawera and Te Matai, he argued. Ngati Hineuru's Te Kupenga and Ohinekorehu pa were the only strongholds of the area.

10 Napier MB 89, extract, p 17

11 Napier MB 74, P 186

12 Napier MB 74, P pp 196-202. He was sworn in, spoke at some length, and was cross-examined by other counsel and conductors. Yet he provided no personal details of his links, if any, with Ngati Hineuru.

70 Ngati Kahutapere had taken smaller pa during their invasion, but had not defeated Ngati Hineuru at Te Kupenga. He submitted that Ngati Hineuru under Te Rangihiroa had controlled the Tataraakina, Tarawera and Te Matai part of the Ngati Tuwharetoa rohe. 13

McDonald's case for occupation rested on proving rights to the adjacent Tarawera and Pakaututu blocks. He argued that Te Matai and Pakaututu had no ancestral boundary, and that geographically speaking it was probably part of Tarawera. 14 He described Te Kupenga pa as being near Te Matai, and that Ngati Hineuru ancestors were buried there.

McDonald submitted1hat this court did not have to be bound by the 1880 Court's ruling. He rejected Paora Rokino's case, stating that following the deaths of Rahui and Tangataiti at the junction of the Mohaka and Ripia Rivers, Ngati Hineuru placed a tapu on the area which Paora Rokino's people failed to observe and were as a consequence driven from the area to Taupo. He claimed that they had never returned: 'not one of Mr Bird's clients are within 100 miles of Te Matai', he stated. He rejected the rights of Te Turuki and Tawhao, stating that any rights they had were expunged by the Ngati Tuwharetoa conquest and the rohe established afterwards. He admitted that the Ngati Whitikaupeka had ancestral rights through

Maruahine, but that they were conquered and had no occupation rights. IS

(5.3.2) Kipa Anaru Kipa Anaru gave evidence in support of the Ngati Hineuru claim. A resident of Tangoio, Kipa Anaru based his occupation rights on having lived on Tarawera. He had not occupied Te Matai. He recounted the story of the death of Tangataiti and

13 Napier MB 74, P 197-198

14 Napier MB 74, P 199

IS Napier MB 74, pp 198-202

71 Rahui and how this led to the expulsion of Ngati Tutemohuta (paora Rokino's people) to Taupo. 16 Questioned by Bird, Kipa Anaru admitted to not knowing the boundaries ofTe Matai. He claimed through his belief that Ngati Hineuru controlled and owned the area' at the Mohaka'. 17 He did not know about tracks or bird snares on Te Matai, but did know of the track that leads from Te Haroto to Te Matai. He contended that Paora Rokino's occupation was limited to Te Mawhai pa, and that he had visited Paora there. 18

(5.3.3) Wano Taungakore Wano Taungakore's evidence reiterated McDonald's. He stated that Te Matai and Pakaututu were within the rohe of Ngati Tuwharetoa, but that Te Rangihiroa had had mana over Te Matai. He believed Te Matai and Pakaututu were one area. Wano knew that the descendants of Te Turuki had taken Pakaututu and that at the time of its purchase Ngati Hineuru were 'suspected of being rebels'.19 He stated that like Tarawera, and Tataraakina, Te Matai had been confiscated. Wano claimed that Ngati Hineuru had not claimed Te Matai in 1880 because 'we were regarded as hau haus'. In 1880 Wano said that he was living at Tarawera and was 'regarded as a rebel'. The tribe had agitated and petitioned for the return of their lands following the confiscation. In answer to a question from Bird, Wano stated that he had concentrated on petitioning for Tarawera but always intended to get Te Matai once Tarawera was secure.20 He reiterated the evidence of Kipa Anaru that Paora Roldno had lived at Mawhai, and that his people had been expunged from the area following their failure to observe the tapu on the Ripia and Mohaka Rivers.

16 Napier MB 74, P 203

17 Napier MB 74, P 209

18 Napier MB 74, P 210

19 Napier MB 74, P 211

20 Napier MB 74, P 213

72 4.4 THE NGATI WHITIKAUPEKA CASE

H K Hakopa conducted the Ngati Whitikaupeka case. 21 It was based on ancestry and occupation. Hakopa submitted that Maruahine had no rights in Te Matai. He stated that Ngati Whiti had sought an adjournment of the 1880 title investigation, but it was not granted. He rejected the Ngati Tuwharetoa claim with this caustic remark: 'taking purchase money from Government does not prove ownership'.

Tutawaka Rameka was the only witness for Ngati Whitikaupeka. He elaborated on the story that an adjournment was sought in 1880. He said that Walter Buller was at the hearing and had requested the adjournment on the behalf of the tribe. At the time, Ngati Whiti w~ie with Renata Kawepo at Hastings.22 He named a couple of sites on the block, but, when asked, could not situate them on the plan. In response to questions from Bird, Tutawaka got defensive, and claimed that he could provide contrary evidence to that of the Ngati Tuwharetoa 'tangata mohio' any time.23

4.5 THE TE TuRUIGAND TAWHAO CASE

Patu Te Rito chose not to call any witnesses. His case was made on grounds of ancestry and occupation. He put a heavy reliance on the Court's award for the Pakaututu block, where the rights of Te Turuki were upheld.24 Te Turuki was a descendant of Tawhao and Maruahine. Patu noted that included in the Pakaututu award was the mother of Paora Rokino, Te Wairoroki, and that she did not object to the rights ofTe Turuki at the time. He argued that the Pakaututu owners should also be awarded Te Matai because it was the 'remnant or residue' of Pakaututu. In answer

21 Napier MB 74, P 214

22 Napier MB 74, P 215

23 Napier MB 74, P 216

24 Napier MB 74, P 217

73 to a question, he could not explain why Te Turuki descendants did not attend or contest the 1880 hearing.25

4.6 PAORARoKINO'S RESPONSE

As the leading applicant who had established a prima facie case, Paora Rokino was given the opportunity to respond to the other applicants. He mostly concentrated on the Ngati Hineuru case. He stated that Ngati Hineuru did not occupy west Tarawera, this was the domain of Ngati Tuwharetoa. He rejected the allegation that Ngati Hineuru did not contest the 1880 award because they were 'regarded as hau haus', instead positing that it was because they did not have a valid claim to make.26 Having been involved.with the petitioning for Tarawera over many years, he had never heard Ngati Hineuru claim Te Matai as well. He conceded that he and his parents lived on Te Mawhai, and used that fact to dispute the claim ofTe Turuki. He never saw their people there, he stated. However, he continued to maintain that Pakaututu was separate from Te Matai and Tarawera, and that he had occupied Te Matai, but did not say at which kainga he had resided.27

4.7 THE COURT'S DECISION

Judge Gilfedder's decision was consistent with the quality of official and judicial decision-making experienced in the Te Matai case so far. He first attempted to state the history of the block. He said that at the 1880 hearing it was thought that Te Matai consisted of 1020 acres, and that subsequently, a land office clerk had discovered that the block was only 254 acres. Since then, the block has been found to contain about 8,000 acres. This flawed description of events revealed that

25 Napier MB 74, P 218

26 Napier MB 74, P 219

27 Napier MB 74, P 220

74 Gilfedder had mis-read the 1880 court minutes. Gilfedder made some observations about the evidence. He stated that no counter claimant could establish occupation of the block. Indeed, only 'one or two persons ever occupied', he concluded. Unfortunately, Gilfedder did not elaborate on who these one or two were.

Judge Gilfedder then dropped his bombshell on the applicants:28

I t seems this Court has no power to do more than amend under section 27/1909 the order of 1880 so as to give effect to the intention of the Court at the time which no doubt was to give the block Te Matai (whatever its acreage might be) to the persons

whose names are set out in MB.

Section 27 of the Native Land Act 1909 gave Judges the authority to amend any - orders made to 'give effect to the intended decision or determination of the Court'. Gilfedder was thus interpreting section 27 of the 1924 Act to mean that while the Court had been given jurisdiction to proceed as if the land had always been (and still was) customary land, the 1880 order read together with section 27 of the 1909 Act limited the Court's ability to hold a full reinvestigation. He instead believed that the 1880 order should be amended to give effect to its original intention; that is, the award of all Te Matai to the 31 names listed. Regardless of the merits of this decision, the timing of its delivery was unfair. Surely this decision should have been released prior to the hearing of lengthy counter-applicant evidence. The Ngati Hineuru, Ngati Kahungunu and Ngati Whiti applicants' efforts had been in vain. But the Ngati Tuwharetoa group were not winners either. Gilfedder did not make an amendment to the 1880 order. Instead, the case was adjourned 'sine die'.29 Once again Gilfedder had produced an inconclusive decision, and this author cannot offer

28 Napier MB 74, P 221

29 Professor Spiller defines .sine die as 'Without day; that is to say, without any day appointed for the resumption of the business on hand', Butterworths New Zealand Law Dictionary, 4th edition, Wellington, Butterworths of New Zealand Ltd, 1995, P 274 75 any explanation for it.

4.8 THE AFTERMATH

In August 1928 Te Raroa Harawene petitioned Prime Minister and Native Affairs Minister Coates on behalf of Ngati Hineuru.3o Te Raroa repeated the version of events described by Gilfedder. He understood that the 1880 Court order had impeded the investigation into title for the 8,000-acre remainder of the block. He requested that legislation be passed to empower the Court to ascertain those beneficially entitled to the balance of the block. A strong motive for the petition emerged in the last sentence: 'Your petitioners also claim this land or portion thereof as the balance of the'~confiscated area of Ngatihineuru lands'. The order of 1880, then, was being interpreted by Raroa in a similar vein to that of the faulty 1870 Agreement schedules. The petition went to the Native Affairs select committee. On 18 September 1928 the committee made no recommendation on the grounds that Raroa had not exhausted his legal remedies.31 This reasoning did not gel with Gilfedder's decision, however.

Paora Rokino and 13 others responded to Raroa with their petition in October 1928.32 The petition was factually correct and contained strong argument to have the Court complete the order of the balance of the block to the 1880 owners, and no one else. The petition stated that none of the counter-claimants had objected to the list of owners presented to the Court in 1880. This contrasted with the hearings for Runanga I and Umupapamaro, where Ngati Hineuru did appear as claimants and then owners. The petition concluded that Ngati Hineuru must have known about the

30 Te Raroa Harawena to Rt Hon Mr Coates and the Honourable Speaker and Honourable members of the House of Representatives, 29 March 1927, petition 157/1928, MA 5/13/236. The date is a typographical error. The petition was received on 1 August 1928.

31 AJHR, 1928, 1-3, P 5

32 Paora Rokino and others to te Tumuaki Kooti Whenua Maori, 25 October 1928, MA 5/13/236

76 case, and their leaders at the time 'must have been aware that they had not any further right to this land'.

Hearing dates were set for February 1929. This author cannot explain how the case was reopened, especially to hear a N gati Hineuru claim, following Gilfedder's sine die ruling. Presumably the filing of fresh applications resulted in a new hearing, regardless of what had previously been decided. Further delays occurred, however. Paora Rokino and others requested adjournments because of other commitments.33 One of the reasons articulated was that Tarawera should be completed first. Judge Gilfedder adjourned the case until the next sitting.34 The application was advertised for each consequent sitting, but no one appeared for any of the applicants. Finally, following protest from unidentified Maori, in April 1931 Judge Gilfedder struck out the application of Raroa Harawena for 'want of prosecution' .35 The dismissal of Raroa Harawena's application acted as a dismissal of the whole case, leaving stranded (once again) the other applicants and the Crown's order for payment. The decision had one further unforseen result. When the new Native Land Act was drafted in July 1931, Registrars were asked to identify what clauses of 'wash-up' bills were still active. The clause enabling the Court to enquire into Te Matai, section 27 of the 1924 Act, was therefore repealed by the new act.36 The Court continued to advertise the applications regardless.

The Lands Department was not notified of the dismissal of the case until they requested information from the Court in 1933.37 The Napier district office considered

33 Paora Roldno to clerk, Hastings Maori Land Court, 9 April 1929, Te Matai Correspondence, part 1, NA480

34 Napier MB 75, P 84

35 Napier MB 76, P 116

36 McEwan, Summary of Events, MA 5/13/236, p5

37 Registrar, Ikaroa Court to Chief Surveyor, 9 September 1933, Te Matai Correspondence, part 1, Na480

77 reopening the case themselves in order to get their money. Chief Surveyor Burnley was unsympathetic to Maori owners: 'the claimants have been advised from time to time that the Crown's equity remains at 5% and they have themselves to blame for any reduction by this process of their ultimate share. '38 To determine the worth of the equity, a valuation of the block was completed. Te Matai 2 block, containing 8326 acres, was valued at £1050, or 2 shillings, 6 pence an acre. 39 Lands did not proceed with an application to Te Matai.

In 1936, however, Pfeifer, this time acting for the Puna family, applied to have the title investigation reopened. The Puna family claimed on the strength of the Pakaututu award to their ancestors Paora Torotoro and Te Waka Kawatini.40 The case was set for healing in October 1936, but Pfeifer requested an adjournment because key witnesses were absent and a plan of the block was not available.41 Lands head office were asked to supply information to reconstruct a plan. Without one, Chief Surveyor Barlow noted, the Crown's interest, which was 8/1 Oths of the capital value, could not be partitioned.

The Puna family application was permanently adjourned in 1942.

38 Chief Surveyor Napier to USLS, 12 September 1933,20/27, LINZ-Napier

39 Valuation Department, telegram, to Chief Surveyor Napier, 1 June 1933, Valuation date, 31 March 1931,20/27, LINZ-Napier

40 C E Pfeifer to Registrar, Native Land Court Wellington, 5 January 1936, Te Matai correspondence, part 1, Na 480

41 Chief Surveyor-Napier to USLS, 5 October 1936,20/27, LINZ-Napier. The adjournment is not recorded in the Napier Minute Book.

78 THREE

RENEWED CALLS TO INVESTIGATE TITLE TO TE MATAI, 1922-1928

3.1 INTRODUCTION

From 1922, official files are more or less complete in their record of applications and correspondence cond~Uling Te Matai. Five different hapu groups showed renewed interest in the block. While the first application probably created a momentum which led others to follow, the motive for the first renewal of interest is not immediately obvious. l Between 1922 and 1924 five separate groups had registered their interest. The groups can be split into tribal affiliations: Ngati Kahungunu, Ngati Hineuru, Ngati Tuwharetoa (which generally divided into Ngati Tutemohuta and Ngati Rangiita groups), and Ngati Whiti/Ngati Tama.

The immediate question to answer is why the Court accepted the applications at all. This can only be described as an initial oversight. The Ikaroa Registry cannot have been aware of the 1880 decision at Taupo. If it had, presumably it would have alerted the Government to the fact that: • the block had previously been investigated; • that 254 acres had been awarded to 31 owners (but had not been surveyed);

1 The level of activity increased in Tarawera and Tataraakina blocks at this time, Moorsom, Main Report, pp 149-150; the Puketitiri title investigation took place, G Roberts, 'A Land History of Wharerangi and Puketitiri Reserves, Hawke's Bay', 1996, pp 44-46, (CB, vol II, pp 6014-6); and there was intensive activity in Court by Ngati Tuwharetoa on the southern end of Lake Taupo, see o Alexander, document EI, 1997, Wai 84 ROD

49 • and the remainder of the block (which had been surveyed) was found to be within the confiscation boundary.

The Crown soon became aware of the issues again, however, and this chapter discusses the responses made by various departments and the Court.

This chapter also discusses the identity of the applicants, and the hard-fought contest over where the Court would sit. It returns to the confiscation boundary issue, and brings the Lands Department's pursuit of survey and purchase costs up to date.

3.2 THE APPLICANTS

The first application-was made by Paora Rokino, and was filed by his Napier solicitors Sainsbury Logan Williams on 28 August 1922.2 Rokino was an original owner in Te Matai 1 block (254 acres), and had become a leader of Ngati Tutemohuta. He was quickly supported by most of the surviving owners or descendants of the Te Matai 1 owners.3 Ngati Hineuru leader Hape Nikora filed his application on 13 July 1923.4 Hape represented a section of Ngati Hineuru, most of whom were dispossessed by the 1870 confiscation and who resided on Te Haroto 2B. Te Roera Tareha and others sent in an application on 25 February 1924. This group represented a coastal Ngati Kahungunu contingent. Their tipuna had been owners of Pakaututu, and had gained significant title interests in the Tarawera block by virtue of the confiscation. Tuiti MacDonald (a native agent) filed an application on 25 February also, on behalf of the descendants of Whitikaupeka and Tumukaurangi,

2 Sainsbury Logan Williams to Registrar, 28 August 1922, Te Matai Correspondence file, Part 1, 1923-1955, Na 480, Maori Land Court, Hastings

3 See for example Hori Te Mautaranui and others to Under-secretary, Native Affairs, 31 January 1924, MA 5/13/236, NA

4 Hape Nikora to Registrar, 13 July 1923, Te Matai Correspondence file, Part 1,1923-1955, Na 480, Maori Land Court, Hastings

50 most of whom were residents of Moawhanga. Finally, Kepa Ehau, representing a Ngati Rangiita group of Ngati Tuwharetoa, had shown interest in the block by May 1924.5 Correspondence and petitions filed in the 1920s shows that these groups were not exclusive and could work together to support a cause when necessary. This is apparent in the contested debate over where the title investigation should take place.

3.3 WHERE SHOULD THE COURT SIT?

Paora Rokino~s first application was sent to the Ikaroa Registrar. He was unable to make a Court sitting in 1923. The Court received telegrams requesting adjournment of a hearing for varied reasons, including illness and not enough time to travel to Hastings.6 When the court set the case to be heard at Hastings in February 1924, a concerted and lengthy campaign to move the sitting to either Napier, Taupo, Tokaanu, or Marton ensued. The debate was, in one sense, a revival of similar contests between Ngati Kahungunu and Ngati Tuwharetoa in the late 1870s and early 1880s? But other practical factors were identified. Wherever the investigation took place, two or more groups would face travel and accommodation and living expenses while away from home, as well as the loss of income and inability to tend to cultivations and other affairs. Remaining close to health services was another determinant. Complicating the debate was the Court's own inability to identify within what court district the block now lay. And the effect of the confiscation hovered constantly in the background.

Kepa Te Ahuru and six others wrote to the Court in Wellington in September 1923

5 For example, Kepa Ehau to Judge Gilfedder, I May 1924, Te Matai Correspondence file, Part I, 1923-1955, Na 480, Maori Land Court, Hastings

6 Paora Rokino or Sainsbury Logan Williams to Register, Judge Gilfedder, 1923, Te Matai Correspondence file, Part I, 1923-1955, Na 480, Maori Land Court, Hastings

7 For example, see Taupo MB 1,24 August 1877, pp 248-254, where the 'Mohaka' block (in the Kaweka part) hearing venue was contested by Ngati Rangiita and Tutemohuta, and Ngati Kahungunu.

51 to ask that the scheduled hearing of Te Matai take place at Taupo, because the majority of the owners lived there. 8 P Alfred Grace wrote on behalf of descendants of some of the Te Matai I owners on 5 January 1924 also urging the Court to schedule the title investigation hearing in Taupo.9 The Native Department Under­ Secretary and Chief Judge of the Native land Court, R N Jones, asked Judge Gilfedder, the Ikaroa circuit judge, for advice. Gilfedder replied that he had attempted to change the venue but had encountered opposition from a large majority of owners.lO Jones replied stating Gilfedder's advice to both Kepa Te Ahum and Grace. 11

The matter did not end there. In answer to a query of Grace's, Jones had stated that the block resided within the Waiariki Court District, rather than Ikaroa. 12 A large group of Ngati Tuwharetoa seized on this admission to again press the Court to change the hearing venue. On 31 January 1924, 34 descendants of the original Te Matai 1 owners wrote to Jones. They put forward a compelling case to have the venue changed. Jones's admission that the block was in the Waiariki district was a focal point. There were three other prongs to their case. They stressed a continuance from the 1880 court ruling. All the signatories placed beside their names the Te Matai 1 block owner from whom they descended. Two original owners, Paora Rokino and Kipa, signed the letter themselves. Also attached to the letter was a list of the 31 owners of Te Matai 1 block with their or their descendants' current place of residence. The four original owners still living all resided at Taupo, as did the descendants of 24 other owners. The descendants of Manihera Te Pa lived in Napier.

8 Kepa Te Ahuru, W H Pumaniao, Tewe Erai, Ngahiraka Hurihia, Rapata and Hautawaho Te Ahuru ki Te Tumuald, Kaiwhakahaere tuturu Kooti Whenua Maori, Tihema 11,1923. (translation on file), Te Matai Correspondence file, Part I, 1923-1955, Na 480, Maori Land Court, Hastings

9 P Alfred Grace to USND/CJ, 5 January 1924, MA 5/13/236

\0 Judg M Gilfedder to Chief Judge R N Jones, 8 January 1924, MA 5/13/236

11 CJ Jones to Kepa Te Ahuru, 10 January 1924, (in Maori), MA 5/13/236

12 CJ Jones to P A Grace, 26 January 1924, MA 5/13/236 52 Rangitakaiho's were in Hastings. The whereabouts of Tamihana's descendants was not known. 13 Finally, Grace, in his covering letter, stated that the expenses involved in travelling to Hastings was another considerable factor. I4

These letters were accompanied by a telegram from the group's solicitor, W H Bird, asking Jones in what district the block fell. Jones replied with new information that the block was indeed in Ikaroa, and was set down to be heard at the next Hastings sitting in February.I5 But the case raised by Grace's group was too strong to ignore and on 5 February Jones wrote to Grace stating that he had referred the matter to Judge Gilfedder. Jones wrote to Gilfedder the same day asking him to 'get the Survey Department at Napier to clear this matter Up'.16

The Land and Survey -Department did not clear the matter up at all, but proceeded to further muddy the waters. Head Office and Napier officials became obsessed over whether the block was Crown land or not. This issue is dealt with in the next section below. Meanwhile, after perusing the land district and county boundaries, Gilfedder was advised that in 1867 Te Matai was on the Wellington side of the divide between the Hawke's Bay and Wellington land districts. 17 While it still lay within the Hawke's Bay Land district, this now meant that Te Matai was deemed to be not in Waiariki or Ikaroa, but the Aotea registry district.

With the investigation to Te Matai set to go ahead the following day, Grace made one last attempt to have the court sitting at Taupo. He asked Maui Pomare, MHR

13 Hori Te Mautaranui and others to USND, 31 January 1924, MA 5/13/236

14 P A Grace to USND, 1 February 1924, MA 5/13/236

15 W Bird to Jones, telegram, 31 January 1924; Jones to Bird, telegram, 31 January 1924, MA 5/13/236

16 Jones to Grace, 5 February 1924; Jones to Gilfedder, 5 February 1924, MA 5/13/236

17 Napier MB 72, 25 February 1924, P 11 7

53 for Western Maori, to intervene. IS Given further time by Gilfedder's adjournment of the case, Grace continued to ask for Pomare's support. On 29 February 1924 he got it. Pomare wrote to the Native Minister stating his support for the venue to be changed. Pomare assured Grace that there 'should be no difficulty' in achieving this. 19

When nothing happened Grace went to the top and petitioned Native and Prime Minister Coates.20 The petition was made on the same grounds as the letter of 31 January 1924. Claiming as Ngati Tuwharetoa and residents of Taupo, the group identified themselves as the descendants of the owners of Te Matai I block.21 The practical difficulty was more strongly expressed: 'we could not possibly go to Hastings on account of the many heavy expenses we would be subjected to in travelling there'. One more reason was--added to the petition. 'The Hawke's Bay tribes have no right to ask that the hearing_should be heard in Hastings', the petitioners prayed, 'because they are not in the title, and so therefore there is nothing to justify the Court in having the matter heard there'.

Grace kept the pressure on with a follow-up letter two days later.22 Jones advised Coates that although the land was now considered to be in the Aotea district, the case should remain at Hastings while the Napier lands officials were dealing with the block and until the Crown land question was determined.23 Coates took Jones' advice. The decision to stay at Hastings was made, therefore, to suit the locality of Crown officials.

18 P A Grace to Maui Pomare, 21 February 1924, MA 5/13/236

19 Maui Po mare to P A Grace, 29 February 1924, MA 5/13/236

20 Petition of Hori Te Mautaranui and others, 12 March 1924, MA 5/13/236

21 Hoani Te Heuheu added his name to the petition, putting 'Tuwharetoa' in the 'How interested in block' column.

22 P A Grace to Native Minister, 14 April 1924, MA 5/13/236

23 Note by Jones to Native Minister, on P A Grace to Native Minister, 14 April 1924, MA 5/13/236

54 Gilfedder's judgement of 8 May 1924 confirmed that Te Matai was in the Aotea Native Land Court district and should be heard there.24 Two petitions were circulated immediately following Gilfedder's decision. The first to arrive in Wellington was from the Te Matai 1 block group of Ngati Tuwharetoa.25 The 57 Tuwharetoa and five Ngati Maruahine petitioners prayed that the Court would hear the Te Matai title investigation at Taupo. This was more convenient for Ngati Tuwharetoa, they stated, because Taupo had accommodation and other conveniences available.

The second petition was from Hastings and was sigued by 87 petitioners.26 Stating that the petition was brought by 'nga hapu 0 N. Tuwharetoa, N. Whiti, N. Tama, N. Maruahine, N. Kurapoto, me N. Kahungunu', the individual petitioners identified as four main groups: Ngati Kahungunu (21), Ngati Whiti (17), Ngati Tama (20) and Ngati Tuwharetoa (21). The Ngati Kahungunu hapu included 8 residents of Waiohiki (all Tareha whanau), 5 each from Heretaunga and Moteo, and one each from Whakahu, Pakipaki, and Te Hauke. Over half of the Ngati Whiti hapu lived at Moawhanga. Two each lived at Omahu and Taihape, and one each at Te Aute, Tokorangi, Wanganui and Rata. The Ngati Tama hapu were similarly spread. Eight lived in Moawhanga, five in Taihape, three in Turangarere, two in Tokorangi, and one each in Opaea and Tokaanu. Half of the Ngati Tuwharetoa group lived in Taihape, with five each at Moawhanga and Wanganui, and one at Masterton. Other signatories were two Ngati Hinemanu who lived at Omahu, two Ngati Mahu from Moteo and one from Wharerangi, two Ngati Kurumokihi from Tangoio and one Ngati Hineuru living at Rata.

The petitioners wanted the hearing to be held at Marton (Matere). Anticipating

24 Napier MB 72, 8 May 1924, p 166

25 Paora Rokino and others to Chief Judge, undated, received 27 May 1924, MA 5/13/236

26 Petition to Chief Judge for sitting of Court at Marton. Matai Block, 10 May 1924, NI924/104, MA 5/13/236

55 support for the hearing to be held at Tokaanu, the petitioners listed reasons why Tokaanu was not suitable, citing the inadequate accommodation, food, medical services and roads. The petition reached Wellington on 10 June 1924. Jones referred it to Judge Browne who agreed that the case should be heard at Marton, but it is not clear whether Browne took the Tuwharetoa petition into account when he made this decision. 27

The petitioners were not immediately notified one way or the other. Trying a different tack, Grace wrote thanking the Native Minister for moving the block into the Aotea district. He went on to state that Tokaanu was the natural venue, given that the owners were all Ngati Tuwharetoa.28 Others continued to disagree. On 5 June 1924 K H Hakop-a, writing from Moawhango, argued that the sitting should be held at Marton.29 John Karaitiana agreed that the sitting should be at Marton, but asked that the court sit in summer, as the applicants were in 'the midst of a very bad winter'.3o Karaitiana argued that the roads were in a 'frightful state', and that tenting at this time of year would be 'suicidal'. A summer sitting would allow people to take tents or put up makeshift accommodation.

On 24 June 1924 K H Hakopa made a final plea to have the Court sit at Marton rather than Tokaanu.31 His reasons allow for insight to be gained into the difficulties associated with a long sitting of the Court at this time. Hakopa's reasons for Marton were that: • it was in a central position, and on the main trunk line • the sanitary and general hygiene conditions were excellent

27 Note by Judge Browne to Chief]udge, 12 June 1924, on Petition 1924/104, MA 5/13/236

28 Grace to Native Minister, 20 June 1924, MA 5/13/236

29 K H Hakopa to Chief Judge Native Department, 5 June 1924, MA 5/13/236

30 John Karaitiana to Registrar Wanganui, 20 June 1924, Te Matai Correspondence file, part 1, NA 480

31 KH Hakopa to RegistrarWanganui, 24 June 1924, Te Matai Correspondence file, part 1, NA480 56 • doctors' services were available • hospitals were conveniently located and 'admission may be readily gained' • accommodation was 'comparatively reasonable and cheap'

His reasons against Tokaanu were that: • Motor charges 'were sufficient to dissuade or possibly act as a deterrent to some who may perhaps have a better opportunity of obtaining a decision to those who were more favoured by fortune, in money or by circumstances' • there were no doctors or first aid station • there were no hospitals close by • the cost of food and other commodities was 'very prohibitive' • the local hostefry would possibly offer no accommodation, and even if it were permissible, it was not adequate • the burden would fall unjustly on the locals, 'an inexcusable addition to the multiplicity of their own duties or possible difficulties'

Hakopa's articulate letter shows just how important it was to have the Court sit in the most accessible and serviced town. The danger of not securing the venue could mean, as Hakopa warned, that those who had the best opportunity to attend the sitting would obtain the decision in their favour. The determination of title investigations in the mid-1920s, therefore, could be influenced by the place of the court's sitting, and by the ability, economic or otherwise, of applicants to attend.

As it transpired, in 1925 the Chief Surveyor at Napier, J D Thompson, reversed his earlier decision, and decided that Te Matai was in the Ikaroa district after all. 32 Blaming a 'very faulty' description contained in the gazetting of the Aotea/lkaroa boundary, Thompson assured his superiors that his opinion was now 'undoubtedly

32 J D Thompson, Chief Surveyor Napier, to Registrar, Native land Court, Wellington, 30 January 1925, MA 5/13/236 57 correct'.

3.4 WHERE WAS TE MATAI, AND DID THE CROWN OWN IT?

When the question arose of within what court district Te Matai was located, Jones asked the Survey Department to clear the matter up. In their attempt to do so, officials rediscovered the issue of whether Te Matai had been confiscated, and was thus Crown land. The previous chapter described how the title investigation into Te Matai in 1880 had been plagued with a series of changed boundaries, which ended with the Crown claiming all but 254 acres as its own, the other 8326 acres being confiscated in 1867. A survey lien had been placed on the block in 1895. In the intervening thirty yeais however, the institutional memory of Te Matai had faded. The files extant in 1924 provided many questions but few answers.

On 6 February 1924 J D Thomson, Commissioner of Crown Lands, Napier, telegrammed J B Thompson, the Under-Secretary, Department of Lands and Survey, Wellington, asking whether Te Matai was Crown land or not. Seeking information for the scheduled title investigation in that month, Thompson suggested that it 'may be advisable to contest [the] Native claim'.33 Thomson referred the telegram to the Native Department. Jones replied that it appeared that Te Matai was included within the Mohaka-W aikare confiscation area, 'whether rightly or wrongly', and referred it back to Lands to 'look into the matter,.34 The matter ended back in Napier on Thompson's desk. He asked C E Pfeifer, who was to represent the Crown at the Court sitting, to investigate and together they decided to contest the claim on the grounds that Te Matai was confiscated land.

The title investigation for Te Matai commenced on 22 February 1924 before Judge

33 eeL Napier, to USLS, 6 February 1924, (copy), MA 5/13/236

34 USND to USLS, 5 February 1924, 7/602, LINZ HO

58 Gilfedder. W Bird appeared for Paora Rokino and others, Mr Sim for Wiremu Te Tauri and others. Tuiti McDonald acted for Tutawaka Rameka and others, Hoani Karaitiana, and for a Ngati Tuwharetoa group. Kepa Ehau appeared for sections of Ngati Tuwharetoa, Ngati Maruahine and Ngati Kurapoto. Paora Rokino made doubly sure that his interests were represented by also appearing for himself. Hape Nikora acted for himself and others.35

Pfeifer was first to speak. He stated that Te Matai was confiscated by the proclamation of 12 January 1867. He produced a plan that showed 'the boundaries named in the schedule to the proclamation'. Te Matai was not one, leading Pfeifer to conclude that it was intended to be retained by the Crown. Gilfedder described the plan thus: 'It seems a~new line has been drawn to form the boundary between the land Districts of Wellington and Hawke's Bay. The Old line excludes part or perhaps the whole of Matai. The new line includes the whole of Matai' .36 It is not clear what plan Pfeifer showed to Gilfedder. Gilfedder's ruling on the location of the confiscation boundary had been wrong two years before.37 This time, therefore, he was more cautious. After 'much discussion' in the court about the Crown entering into purchase negotiations for the block in 1879, Gilfedder held the matter over until Pfeifer could produce evidence of the correct boundary between Wellington and Hawke's Bay in 1867.38

The court convened again on 25 February 1924. The Maori applicants presented a united defence.39 They questioned whether the whole or part of Te Matai was included within the confiscation boundary. Even if it was, they argued, the settlement

35 Napier MB 72, 22 February 1924, p 84

36 Napier MB 72,22 February 1924, p 85

37 See Moorsom, Main Report, pp 165-166

38 Napier MB 72, P 85

39 Napier MB 72, P 116

59 between the Crown and the 'loyal natives' of ' 18 July 1869' returned all the land to Maori except the parcels mentioned in the Agreement.4o Gilfedder's ruling was inconclusive. He stated that at least part of Te Matai was within the confiscation boundary (but did not state how much), and agreed with the applicants that Te Matai was returned to the claimants by the Agreement of 18 July 1869, the agreement being validated by the passing of the Mohaka Waikare District Act 1870. Gilfedder felt that there was some doubt about the current status of the land: 'the native title might be said to have been extinguished by the proclamation of 12-1-1867'.41 While that matter was being cleared up, Gilfedder felt sufficiently confident to advise the applicants to set up their cases and hand in their lists and whakapapa in time for the next sitting of the Court in May.

Pfeifer reported his version of the confiscation boundary issue to his superior, J D Thomson, on 29 February 1924Y He explained the Maori applicants' belief that Te Matai was not within the confiscation boundary by their reliance on A Koch's 1874 Map of the province (see sec 2.5). Koch's map had the Hawke's Bay Provincial boundary cutting through the Tarawera block leaving Te Matai wholly within the Province of Wellington and outside of the confiscation area.43 Pfeifer, however, relied on an 1889 map of the Province, which put the provincial boundary 'in a totally different position' resulting in the exclusion of all but 254 acres of Te Matai.44 The 1889 map agreed with Plan No 7, which Pfeifer reproduced in Court and which he claimed was used when the title to the blocks to be returned was investigated. Plan

40 This author is not aware of the significance of the 18 July 1869 date. The Agreement was signed on 13 June 1870. It is possible that this was the date of the Pa Whakairo meeting to discuss the terms of the settlement. The date of the meeting or meetings is not known. See Moorsom, Main Report, pp 58-66

41 Napier MB 72, P 117

42 C E Pfeifer to J D Thomson, CCL Napier, 29 February 1924, 7/602, LINZ HO

43 A Koch, 'Map of the Province of Hawke's Bay', 1874, MFV 997/H22

44 This was probably the R B Brixted drawn 'Province of Hawke's Bay', 1889, ATL Map room, Ballara and Scott map collection, Waitangi Tribunal Library

60 7, therefore, was probably the map used for the 1881 Mohaka-Waikare court hearing. It showed, according to Pfeifer, Te Matai 'as one of the blocks to be retained by the Queen'. Pfeifer's dates are incorrect, but his attempt to explain the absence of Te Matai from the schedules of the 1870 Agreement rested on arguing that the schedule 'was drawn up at a time when the definition of the provincial boundary was wrongly applied to the maps, and in effect, this misplacing of the line wrongly excluded Te Matai from the confiscation block'. Once this error was discovered 'in the year 1882 or about that time', according to Pfeifer, Te Matai could 'be deemed as one to be retained by the Queen in terms of plan No.7. There can be no doubt that this was the intention' Y

Gilfedder found that there was sufficient doubt, however, and ruled that the Crown's intention was to have-returned the block to Maori ownership. The investigation of its title (apart from the 254 acres) could occur, Gilfedder believed, with the Native Minister's approval. On 2 May 1924 Jones informed Gilfedder that the Native Minister had written to the petitioners and applicants that the claim of the Lands Department should go ahead at Hastings. If the Lands claim was defeated the applications would be heard at Tokaanu.46 The hearing went ahead on 5 May 1924. The Court record is brief, but it appears that no Maori were present. If they were, they did not take an active part in proceedingsY Pfeifer produced a plan showing the different provincial and confiscation boundaries. He went on to document the amount of purchase money advanced by the Crown in 1879 and asked that it be reimbursed with interest. Gilfedder recorded that: 'The conductors agreed to refund ... any moneys paid to their clients together with interest at 5% since the date of payment'.

45 C E Pfeifer to J D Thomson, CCL Napier, 29 February 1924, 7/602, LINZ HO

46 USND to Judge Gilfedder, 2 May 1924, Te Matai Correspondence, part 1, Na 480

47 Napier MB 72, 5 May 1924, p 140

61 The hearing was adjourned to allow Pfeifer to make his calculations. He presented these to the Court on 8 May 1924.48 The total of advance payments, survey costs and interpreters' fees - all bearing interest - came to £712, 10 shillings and 7 pence. The conductors, Bird, McDonald and Hallett, agreed with the sums except the amount owed for the interpreters' fees. 49 Gilfedder ordered that the Crown be paid £337, 19 shillings and 7 pence for survey costs and £374 and 11 shillings for advanced purchase payments. There was no record of debate about the merits of the charges, or any reasoning offered by Gilfedder for his decision.

The validity of placing this economic burden on Maori must be questioned. In 1879, the Crown had made advance payments for land that it already owned (given that the land had been classified as confiscated), yet expected someone else to pay for this blunder. The Crown official agreed in December 1880 that the purchase negotiations should be adjourned. Presumably the Crown could have acquired the 254-acre Te Matai 1 block in full or partial settlement of the bungled purchase negotiations at the time. This was not done and proved fortunate as the interest payment saw the Crown more than treble its initial outlay.

The validity of having Maori pay for a survey of mostly Crown land also must be questioned. AB well, no one realised the obvious point: that the survey was faulty - it had failed to account for the implications of provincial and confiscation boundaries. To be charged interest on this faulty survey was unjustified. From 1880 to 1924 Maori had had legal ownership of only 254 acres of Te Matai. This corner of Te Matai was not even partitioned out from the parent block. It was an injustice for Maori to be expected to pay interest on costs for a survey that had failed to define their land and from which they had derived no material benefit. Yet there was no opposition from the Maori owners' paid representatives. No one even considered

48 C E Pfeifer to Judge Gilfedder, 8 May 1924, MA 5/13/236 (copy)

49 Napier MB 72, 8 May 1924, p 166

62 whether the owners were in a position to pay the debt. Pfeifer told Gilfedder that he would prefer the whole amount in cash. Given the amount of correspondence about the expense of attending a hearing, Crown and court officials should have known this was not possible or affordable. Yet the order stood.

Meanwhile, Lands continued to press its case for the block. Pfeifer wrote to his superior, J D Thomson, saying that although Gilfedder had admitted that there was strong evidence to suggest that the land was intended to be retained by the Crown, it was not possible to 'get behind' the 1867 confiscation proclamation.50 Thomson in turn wrote to his superior, J B Thomson, advising that taking Gilfedder's decision on appeal was not likely to be profitable for three reasons. 51 The first was that if the appeal was sucessful, Maori were likely to petition Parliament. The second, that Te Matai was not a vaLuable block, 'geographically situated as it is'. Thompson speculated though that in years to come, the timber 'will be of some commercial value'. The third and more pressing reason not to appeal, however, was that the case could not be proved. Thompson believed that Pfeifer had proved that plan 7 showed that the Crown intended to retain the block, but that the agreement excluded Te Matai from the schedule of retained and returned lands, albeit because of a faulty description of the provincial boundary at the time. Thompson resigned himself to doing' fairly well to get an amount of £712 approx out of the block'. 52

Lands Under-Secretary Thomson wrote a lengthy letter to Jones on 26 June 1924.53 He explained how the tracing attached to the 1870 Agreement had erred, and presented a plan showing the correct provincial (and confiscation) boundary line. He

50 C E Pfeifer to CCL Napier, 12 May 1924, 7/602, LINZ HO. In fact it was the 1870 Settlement that Gilfedder could not go behind. The proclamation did not differentiate between retained and returned lands.

51 CCL Napier to USLS, 4 June 1924, 7/602, LINZ HO

52 CCL Napier to USLS, 4 June 1924,7/602, LINZ HO

53 USLS to USND, 26 June 1924, MA 5/13/236

63 went on to summarise the advances made by Mitchell to purchase the entire block in 1879, describing the contents of the NLP file 90/374.54 Thomson admitted, however, that further information was required to understand whether McLean intended to retain Te Matai or not. Lands was not giving up though. Thomson wrote:

If it is considered that the Natives have an equitable claim to the land, then the area might be returned, provided the land purchase expenses, etc, with interest, are refunded, or in the alternative, the purchase negotiations might be re-opened with a view to completion after the Native Land Court has determined the names of the Natives equitably entitled to an interest in the area.

He ended the letter with a request that Jones consider whether Te Matai was native or Crown land, and whether legislation or a special order in council were required to allow the Court the jurisdiction to investigate the title.

Jones looked into the matter more closely, and on 3 July 1924 made his decision. 55 He confirmed that Te Matai was by proclamation within the confiscated area. By implication, however, he found against Pfeifer's opinion when he ruled that Te Matai was not one of the blocks to be retained by the Crown pursuant to the 1870 Agreement. Having regard to the Privy Council ruling in Te Teira v Tareha 1902 A.C. 56, he ruled that 'the whole land became Crown land subject only to the duty to issue Crown grants in accordance with the Agreement'. The land was not 'native land' anymore, which meant that the Native Land Court had no jurisdiction to investigate the title. Jones offered some hope to the Maori applicants though. His last sentence read: 'Apparently legislative authority is necessary'.

Further applications for Te Matai were made to the Aotea Registry in September by

54 National Archives staff could not locate this file.

55 R N Jones, Under Secretary, 'Memorandum Re Matai Block', 3 July 1924, MA 5/13/236

64 Paora Roldno and Hape Nikora.56 Jones, with his ChiefJudge's wig on, advised Judge Browne to hear the parties, and if he considered that he did not have jurisdiction to proceed, to give a written judgement for presentation to the Under-Secretary of the Native Department (ie, Jones in his other guise). Jones' reasoning for allowing the applications to continue was the inconclusiveness of Gilfedder's decision.57 Judge Browne heard the two applications at Tokaanu on 17 October 1924. In a memorandum he explained to Jones that he had adjourned the matter as he did not have the jurisdiction to proceed.58 This was the decision that enabled Jones to proceed with legislation.

Jones wrote to the Lands under-secretary on 3 October 1924.59 He stated that Te Matai was Crown laird unaffected by any post-1870 legislation dealing with the Mohaka-Waikare confiscation and that the Crown had intended to return the block to Maori. Jones drafted section 27 of the Native Land Amendment and Native Land Claims Adjustment Act 1924 to allow the Court to investigate title.

3.5 FURTHER DELAYS

The Native Land Amendment and Native Land Claims Adjustment Act was passed on 6 November 1924. Noting that the New Zealand Settlements Act 1863 had extinguished the native title, it stated that 'the land should revert to the former Native owners', and that 'any title of claim of the Crown ... other than claims arising out of the survey thereof or other monetary claim shall be deemed to be released and extinguished'. Te Matai was deemed to be native land subject to the principal Act (Native Land Act 1909) 'as fully and effectually to all intents and purposes as if the

56 Registrar Aotea District Court to USND, 30 September 1924, MA 5/13/236.

57 ChiefJudge to Judge Browne, 22 July 1924, Te Matai Correspondence, part 1, Na 480

58 Judge Browne to Chief Judge Jones, 20 October 1924, MA 5/13/236

59 Jones to USLS, 3 October 1924, MA 5/13/236

65 said land had never ceased to be held under the customs and usages of the Maori people'.60 While the way was now clear for the Court to hear the case, further obstacles remained. As mentioned in the previous section, in January 1925 the Napier chief surveyor put Te Matai back into the Ikaroa court district. This led to a fresh spate of petitioning on where the title investigation would be heard.

This time the 'Ngati Kahungunu' group petitioned for the case to be at Napier. Forty­ six petitioners spread evenly from Waiohiki, Moteo, Wharerangi, with a few each from Tangoio, Omahu, and Kawera, asked that Te Matai be heard along with Tarawera, Tataraakina, and islands of Te Whanganui-a-Orotu at Napier, as the majority of claimants resided near there.61 Paora Kurupo added another reason to hear the claim at Napier: 'Food is plentiful in this Lake (Te Whanganui-a-Orotu) which belongs to the Maoris'.62 Predictably, a petition from the Ngati Tuwharetoa descendants of Te Matai 1 block owners followed. On 28 April 1925 Paora Rokino and 30 others asked that the Te Matai investigation take place at Taupo.63 It is unclear how these petitions were dealt with. The only response on file is a note from Jones written on 13 June 1925. Jones stated that he had 'personally explained' that while Tarawera and Tataraakina would open at Napier, Te Matai 'must wait further particulars as there were claimants from both districts'.64 It appears that Te Matai was put to one side as the investigation of title to Tarawera ensued.

Nevertheless, a hearing was held in Hawke's Bay, at Hastings, the following year.

60 Section 27, Native Land Amendment and Native Land Claims Adjustment Act 1924

61 Te Roera Tareha and others, Petition re: Te Matai, 25 March 1924, translation on file, MA 5/13/236

62 Paora Kurupo, Note on petition of 25 March 1925, translation on file, MA 5/13/236

63 Paora Rokino and others, Petition re: Te Matai, 28 April 1925, MA 5/13/236

64 R N Jones, Note, 13 May 1925, MA 5/13/236

66 FIVE

THE 1951 INVESTIGATION OF TITLE

5.1 INTRODUCTION

In 1950 the bulk of Te Matai (known as Te Matai 2 block) remained in a confused legal state.! Although legislation had been passed in 1924 that enabled the Native Land Court to investigate the block as if it was and had been customary Maori land, because of Judge Gilf.~dder's inconclusive dismissal of the various applications, no '. award for title had been made.

It is not clear what precipitated action in 1950, although one explanation may be the resurgence of interest in Tarawera and Tataraakina.2 Two further applications were received in late 1950, to join the permanently adjourned Puna family application. One was from Te Hoeroa Tahau, the other from Raroa Harawene.3 At the court in November 1950, A E Lawry, who represented Te Hoeroa Tahau (the Te Matai 1 block group) told Judge Whitehead that the case would be a long one with many witnesses called.4 Applicants were to file whakapapa and other written evidence for their cases by 1 March 1951.5

I Judge Whitehead in 1951 interpreted section 27 of the 1924 Act to have declared the land to be Maori customary land, rather than Crown land by virtue of the confiscation.

2 The Royal Commission to investigate Tarawera and Tataraakina issued a public notice in February 1950. See Moorsom, Main Report, pp 227-228

3 Application of Te Hoeroa Tahau, 1 August 1950; Application of Raroa Harawene, 13 October 1950, Te Matai Applications, Investigation of Title, Na 480

4 Napier MB 89, 21 November 1950, p 67

5 See Te Matai Applications: Investigation 1951, Vol 1, Na 480, 79 The Court were determined to finally deal with the Te Matai investigation. A summary of events was prepared by Maori Affairs official J M McEwan. Unlike previous attempts to explain the tortured title history of Te Matai, McEwan's summary was very accurate.6 It discovered the problem of the Court's jurisdiction, due to the inadvertent repeal of the enabling clause in 1931. No doubt to the relief of the applicants, the case was not adjourned to deal with this issue, but proceeded to hear the evidence of parties from 22 May to 15 June 1951 - the case was reputed to be the last major papatipu investigation in the Hawke's Bay and Taupo region.?

Following public notification of the case in January 1951, five further applications were received. Tuiri Tareha applied under the ancestors Tareha and Paora Torotoro.8 Kaperiera Te Pohe Sent a letter of intent on behalf of the descendants of Ngahere Te Pohe and Tapui Mamae.9 Hori te Mautaranui put in his own application under the ancestors Rangataua and Werewere. lO Paetawhiri Hurua and Hakopa Tongariro claimed under the ancestor Tetakataka.ll Barnett Otene Maniapoto was to conduct the Tomoana family's case, and a personal case through Ngati Kurapoto, Ngati Hineure, Ngati Tapui, Ngati Taunga, Ngati Rahui, Ngati Tukuaterangi, Ngati Hawea and Ngati Hikawera. 12

6 J M McEwan to USND, 14 May 1951, MA5/13/236. The summary was copied in many files, and was quoted at length in Whitehead's final decision.

7 Napier MB 89, pp 207-271. For my convenience, I have used the typed extract (and its pagination) which sits on the head office file.

8 Tuiri Tareha to Registrar, 29 January 1951, Te MataiApplications: Investigation 1951, vall, Na 480

9 Kaperiera Te Po he to Chief Judge, 9 January 1951, Te Matai Applications: Investigation 1951, vol 1, Na 480

10 Hori te Mautaranui to Registrar, 12 February 1951, Te MataiApplications: Investigation 1951, vol 1, Na 480

11 Paetawhiri Hurua and Hakopa Tongariro to Registrar, 19 February 1951, Te Matai Applications: Investigation 1951, vol 1, Na 480

12 B Otene Maniapoto to Registrar, 24 February 1951, Te Matai Applications: Investigation 1951, vall, Na 480

80 Six groups presented themselves on the opening day: the original owner group, represented by Lawry; the Ngati Hineuru group, represented by M J Morrissey; the Tareha and Paora Torotoro group, represented by Tuiri Tareha; the Te Tauri group, represented by Pei Te H Jones; a mostly Ngati Rangiita group represented by Mr Rutene; and finally, another Ngati Hineuru group represented by Kaperiera Te Pohe. This line-up changed considerably during the hearing. Barnett Otene relinquished the role of representing the Tomoana family, but continued to present a personal case. Mr Riddiford appeared late in the hearing for Ngati Hawea. Mr Rutene was represented by Kepa Ehau. On 28 May Kapereira Te Pohe telegrammed the Court excusing himself from attending due to suffering an accident. 13

5.2 THE TE MATAi~1 BLOCK OWNERS' CLAIM

A E Lawry's approach was predictable. He told the court that Te Matai's ownership had been decided in 1880. He submitted that the present hearing was really just an opportunity to decide on the relative interests of the 31 owners awarded title to Te Matai 1 block. He called three witnesses who all encountered lengthy cross­ examination from other conductors on questions of ancestry and occupation. Judge Whitehead adjourned the hearing to meet with counsel and conductors. Judge Whitehead ruled that Lawry's group should redefine their case, making their claim more generic. They claimed as Ngati Tutemohuta, and made several admissions to the other conductors. 14 Chief among these was that they would admit all descendants of the children of Tutemohuta and Pareawa, except Hinearo's, who could prove occupation of Te Matai.

The result of the court's ruling during the adjournment skewed the hearing in favour

13 K Te Pohe to Registrar, telegram, 28 May 1951 Te Matai Applications: Investigation 1951, vol 1, Na480

14 Napier MB 89, extract, p 8

81 of the Ngati Tutemohuta group and had ramifications for later appellants of the lower court's decision. This was not to be full investigation of the ownership of Te Matai. Instead, the decision of 1880 was to stand, and the case was reduced to hearing the claims that were not admitted by Lawry's group. As in 1928, the burden of proof fell more heavily on the Ngati Hineuru, Ngati Kahungunu and other Ngati Tuwharetoa groups to prove their cases.

This chapter will not attempt to summarise every witnesses' presentation or their answers to questions under cross-examination. The author is not qualified to assess the whakapapa evidence and counter-claims on ancestral grounds. Instead, the next sections will focus on evidence relating to occupation and customary use.

(5.2.1) Te Poai Lawry's first witness was Te Poai, an original owner in Te Matai 1 block. He claimed that he was born on Te Matai and lived there with his parents for his first 20 years. IS Te Poai stated that Kiriwera, Te Wairoroki, Te Rangipumamao, Werewere and others all lived together on Te Matai. 'We had our cultivations there. There was a meeting house and houses to live in.' He said he lived at 'Mateatea' but could not locate it on the plan. He also lived at Taharua and on Wharetoto. The Ngati Tutemohuta, according to Te Poai, spent equal time between Taharua and Te Matai.

Te Poai's evidence of occupation was confused and contradictory. Yet in one sense it described perfectly the occupation of Te Matai. Te Poai's Ngati Tutemohuta, before moving permanently to Taupo, obviously ranged over a large area encompassing the Taharua, Wharetoto, Tapapa, Pakaututu, Tarawera, Runanga, Te Matai, and other areas west of Lake Taupo. The later, and often arbitrary, partitioning of this area into surveyed blocks, dependant as they were on lines of

15 Napier MB 89, extract, p 2

82 longitude as much as natural features, changed the previous spatial perception and use of the land. It is unlikely that there was ever a meeting house on Te Matai, but there is no doubt that Te Matai was occasionally occupied to make use of its natural resources. According to Te Poai, eels were the key resource that Te Matai provided for Ngati Tutemohuta.

(5.2.2) Te Hoeroa Tahau Te Hoeroa was the grandson ofTe Rangi Tahau and was closely related to other 1880 owners. 16 Te Rangi Tahau, along with the Hapi, Kiriwera and Nikorima families had all hunted, fished and cultivated Te Matai. Te Hoeroa was adamant that the 31 owners in 1880 were awarded title because they were descendants of the children of

Tutemohuta and Par~-awa who had occupied the land. Both he and Te Poai said that the peak, Big Ben, on_Wharetoto block, was sometimes referred to as Te Matai. He

l7 named Makiekie and Ani 0 te Whiu as the sites of Paora Rokino's occupation on Te Matai. Although Te Hoeroa had travelled through Te Matai on the walking track, he could not remember seeing these places of occupation on the block. 18

(5.2.3) Tawhiwhi Karaitiana Tawhiwhi claimed that Pareawa's children had continuous use ofTe Matai until the confiscation. 19 Ngati Tutemohuta lived on Te Matai as well as Runanga, Tapapa and Wharetoto. On Te Matai they snared birds and rats, and fished for eels in the Mohaka and Ripia Rivers. Tawhiwhi confirmed Te Poai's evidence that these two rivers were the only ones within theNgati Tutemohuta rohe where eels ran. During questions from the Ngati Hineuru counsel, M Morrissey, Tawhiwhi learnt that the two places of occupation he was told about, Makiekie and Pariwhaikahurangi, were

16 Napier MB 89, extract, p 3

17 He said that Te Poai was incorrect about Mateatea, that he meant Makiekie.

18 Napier MB 89, extract, p 4

19 Napier MB 89, extract, p 6

83 actually on Pakaututu and Tarawera respectively.20 He knew the story of Te Rahui and Tangataiti being killed but disputed some of the detail and meaning attributed by Ngati Hineuru.

(5.2.4) Hari te Mautaranui Hori described Ngati Tutemohuta's principal kainga as Rotongaro, Waipahihi and Opepe near Taupo, and Runanga, Wharetoto and Tapapa near Te Matai. All these 2 places were occupied by Ngati Tutemohuta. ! Hori had camped on Te Matai at Koutu, accessing the block through Wharetoto. During questioning, he admitted that access to te Matai could also be gained through Pakaututu and Tapapa: 'It largely depends on the direction of your approach. ,22 Hori believed that the settlement Makiekie was on Te Matai, not Pakaututu. He understood that Wharetoto and Te Matai were all one block before the Wharetoto end was fenced off.

Fishing and bird snaring, especially of the plentiful kiwi, was carried out at Pateatea,

Ana 0 te Whio, Koutu and Kakariki on Te Matai. Provisions were cultivated for the period of stay. Te Matai was the recognised Ngati Tutemohuta place to snare kiwi.

The best eeling places were at the junctions of the Kakariki and Mohaka, the Ana 0 te Whio and Mohaka, and the Makiekie and the Ripia Rivers.

5.3 THE OTENE CASE

Barnett Otene gave evidence himself to complement the written whakapapa and submission already filed with the Court.23 He claimed personal knowledge of the block, through his association with the adjacent Wharetoto sheep station. He stated

20 Napier MB 89, extract, p 7

21 Napier MB 89, extract, p 9

22 Napier MB 89, extract, p 10

23 Napier MB 89, extract, p 11

84 that he allowed stock to run on Te Matai: 'This was Maori land and we had as much right to be there as anyone else. ,24 Following the presentation of his evidence, Barnett noted that he was 'a member of one group and the conductor for a rival group', and requested that he be excused from conducting the Tomoana case. This was granted.

5.4 THE TE TAURl CASE

Wiremu and Werihe Te Tauri gave evidence largely claiming rights to Te Matai through ancestral ties with Ngati Tuwharetoa.25 Te Kiko Wi Katene relied on the" closeness of ancestral ties of Ngati Rangiita to Ngati Tutemohuta. He also provided detailed personal evidence of customary use of Te Matai. He first visited the block in 1905 to hunt pigs. At the time he was living on the Taharua block at Patehi. From there it was an eight-hour horse trek into Te Matai through Tapapa.26 He would also access Te Matai through Wharetoto. In 1917 Te Kiko went grass-seeding in the area. He fished for eels in the Ripia and at Wharetopuna, near the Mohaka River and not far from Te Matai peak. Te Kiko' s mother previously lived there. In 1917 he met Paora Rokino's son at the Ripia, who had a greater knowledge of the fishing there. This was because Ngati Tutemohuta had a kainga near Big Ben and the Ripia River. Ngati Tutemohuta fished the Ripia; Ngati Rangiita the Mohaka. Te IGko understood that Ana 0 te Whio was a stream that ran from Big Ben to the Ripia, and hence was not on Te Matai. He also understood Te Matai to be part ofWharetoto block. When it was realised that it was not on Wharetoto (post-1917), an application for investigation of title had been made. Under cross-examination, Wi IGko admitted that all his hunting and fishing expeditions were carried out on Tapapa or Wharetoto.27

24 Napier MB 89, extract, p II

25 Napier MB 89, extract, pp 12-13

26 Napier MB 89, extract, p 13

27 Napier MB 89, extract, p 15

85 5.5 THE NGATI HINEURU CASE

Morrissey claimed that Ngati Hineuru traversed the Pakaututu, Te Matai and Tarawera area. He stated that there was evidence of Hineuru occupation of Mawhai pa on Pakaututu, but that there was no Hineuru evidence of occupation on Te Matai. The names of the block were known, however, and there were traditional stories relating key Ngati Hineuru ancestors to the block. As well as ancestry and customary usage, Morrissey invoked a ringakaha argument. He submitted that along with Ngati Tutemohuta, Ngati Hineuru had defended Te Matai and the surrounds.

(5.5.1) Raroa Sullivan

Raroa claimed that h~Jirst visited Te Matai when he was 17 years old. This would have been in 1890. There were no houses on Te Matai itself, but he remembers visiting Paora Rokino's kainga at Mawhai pa.28 He could not recall ever seeing occupation sites at Makiekie Stream in Te Matai, and believed that there were no suitable sites for kainga there. Ngati Hineuru lived on Tarawera and Pakaututu, and used Te Matai 'as a source of food'. In particular, N gati Hineuru hunted the kakapo there. 'My people hunted and fished mostly the side adjacent to the Pakaututu both the Ripia and the Mohaka side'. Raroa 'went on Matai frequently' as he worked on Pakaututu splitting posts for the fence between Te Matai and Pakaututu, and because he travelled between Pakaututu and Wharetoto. Raroa admitted that there were many eels in the streams on Tarawera. This meant that Ngati Hineuru's need to get eels from Te Matai was not as great as Ngati Tutemohuta and Ngati Rangiita's. But expeditions continued to be made to Te Matai in order to 'guard the main approaches' to Tarawera. In answer to Lawry's questions, Raroa stated that he did not snare, hunt or fish when passing through Te Matai, because: 'we had plenty of mutton'.

28 Napier MB 89, extract, p 17

86 5.6 THE TAREHA CASE

Tuiri Tareha presented the Tareha case in the form of legal submissions prepared by the late W T Prentice. The submissions argued from a strict loyalist line and did not relate to Te Matai. They were instead about the Tarawera and Tataraakina reinvestigations.29

5.7 THE NGATI HAWEA CASE

The Ngati Hawea case was a bold assertion of the rights of Ngati Kahungunu in the area. Hare Ngawhakakapunga 0 te Rangi Puna gave evidence representing the Paora Torotoro family. He detailed the conquest of Tawhao, Taraia's younger brother, and Tawhao's occupation of Pakaututu.30 He relied on the award of Pakaututu's title to Paora Torotoro and other descendants of Tawhao. Hugh McGregor gave evidence about the Ngati Kahungunu tribal boundary extending beyond the Mohaka River and including Te Matai. Ihakara Rapana stated that Paora Torotoro' s grandmother would reside on Pakaututu to improve her health. When Paora Torotoro would lead hunting expeditions to Puketitiri, he would continue to the pa of his grandmother. From there he would go to Te Matai in search of Kiwi. The feathers of the kiwi were woven into mats for rangatira.31

5.8 THE ERAU AND RUTENE CASE

Kepa Ehau presented a submission at the closing argument stage, arguing for the inclusion of his wife Wikitoria Ehau and another relative, Rori Rutene. He also made some general comments about the case. He argued that it was impossible for anyone

29 Napier MB 89, extract, pp 20-21

30 Napier MB 89, extract, pp 21-22

31 Napier MB 89, extract, p 26

87 to meet the requirements of the Native Land Court in this case. Occupation, he said, cannot be proved, because 'Te Matai isn't fit for occupation'.32 He also made another strong argument that the Court should 'respect' the decision of 1880, but also 'analyse, examine and criticise' it. He took an expansive view of ownership, claiming that anyone with ancestry to Tuwharetoa could potentially be in the title.33

5.9 THE DECISION

To set out the facts of the case, Judge Whitehead copied extracts from McEwan's ,- summary of events.34 The jurisdictional snag was quicldy disposed of, Judge Whitehead ruling that the Native Land Amendment and Native Land Claims Adjustment Act 1924{lad declared the land to be Maori land. Section 20 of the Acts Interpretation Act 1924 stated that the repeal of an Act shall not affect existing status or revive any enactment previously repealed. 'On these grounds the Court finds that it has jurisdiction to proceed'.35 He then made several important findings regarding occupation: • Te Matai is presently uninhabited and is unsuited to physical occupation • Te Matai has never supported permanent homes, cultivations, and exclusive fishing or hunting • the Court's usual standard for assessing occupation had not been met in 1880, 1928, or now • there is strong evidence of occupation on the adjoining Pakaututu, Tarawera, and Wharetoto blocks • it is reasonable for the Court to be asked to infer occupation of Te Matai through evidence of occupation on Pakaututu, Tarawera and Wharetoto

32 Address by Mr Ehau, attached to Napier MB 89, extract, paginated separately.

33 Ibid, P 3

34 Napier MB 89, P 361

35 Napier MB 89, P 362

88 • the owners of adjoining blocks are justified in setting up rival claims to ownership of Te Matai • the occupation of Te Matai must have been limited to one or more of the sub­ tribes of Ngati Tuwharetoa: Hineuru, Tutemohuta, and Rangiita

Judge Whitehead concluded that the evidence presented to him regarding occupation by Ngati Tutemohuta, Rangiita, and Hineuru was 'definitely inconclusive'. He therefore looked to the previous decisions of the court for guidance. He noted that over an eleven-year period the Court investigated title to Pakaututu, Wharetoto, and Te Matai, which would have made it aware of the situation of adjoining blocks.36 With that knowledge the Court awarded title to almost wholly Ngati Tutemohuta owners, the two exceptions' inclusion explainable by marriage and adoption. Judge Whitehead answered Kepa Ehau's call to examine and analyse the 1880 decision by stating: 'An investigation of title in 1880 is a very different matter to an investigation in 1951 for very obvious reasons and this Court would be very hesitant to question an 1880 decision only on very sure and safe grounds'. Although it is phrased clumsily, the effect of Judge Whitehead's statement was that he did not have the evidence to question the 1880 ruling - therefore he accepted it.

The Tareha families' claim was praised for being 'a sound submission' but was dismissed on the grounds that the 1924 Act redefined Te Matai as having 'never ceased' to be Maori land, and therefore' deemed never to have been confiscated' or been Crown land.

The Tomoana family and Ngati Hawea claim was dismissed because its evidence in support of Taraia's conquest was 'quite inadequate'.

36 In fact Wharetoto was extensively reinvestigated pursuant to the 1886 Native Equitable Owners Act. I have not investigated the implication of this.

89 The claim of the Te Matai 1 Block owners was 'not seriously disputed' and accordingly the 31 owners were awarded an interest in the block. Judge Whitehead rejected the argument that these people benefitted from the absence of Ngati Rangiita or Ngati Hineuru leaders at the sitting. He believed that the Court 'must have been aware ... of any possible competing claims by these two subtribes'.

The Ngati Hineuru claim was dismissed because 'of the weight which this Court attaches to the decision of 1880'. Judge Whitehead justified this approach by arguing that once an ancestral right had been established, a claim's strength consisted of its ability to prove occupation. He admitted that in this case occupation was not possible to prove, even for Ngati Tutemohuta. The critical argument Whitehead relied on was the assumption that {he court in 1880 'must have satisfied itself' that the 31 Maori awarded title could prove occupation. Whitehead was not prepared to extend the ownership on the basis of ancestry alone: 'We are not justified in assuming occupation of a whole tribe because the occupation of certain members of the tribe has been established'.37 The award was not made to all Ngati Tutemohuta, Whitehead reasoned, therefore, only those who could prove occupation could be admitted. While dismissing the claim of the Ngati Hineuru tribe, Whitehead was prepared to accept that Raroa Sullivan had established a 'shadowy occupation' 'by himself as distinguished from his tribe'.38 He was therefore awarded a share in the block.

Whitehead maintained this approach with the Te Tauri or Ngati Rangiita claim, and Kepa Ehau's group. Only those who could prove occupation were admitted. But the decisions of who occupied were made by default. Those that Ngati Tutemohuta acceded to were in, regardless of the evidence before the court: 'Mr Lawry admits Paora Hapi, so he must be deemed to admit both ancestry and occupation'. Similarly,

37 Napier MB 89, P 363

38 Napier M 89, P 364

90 Ani Miria, Kiko Wikatene, Te Rutene and Wildtoria Ehau were all awarded title on this basis.

Having made his decision, however, Judge Whitehead failed to complete the paperwork and issue final orders. This error was discovered six months later and on 19 June 1952 the orders were made.39 By that time, however, most of the applicants had registered appeals against the decision. Notices were sent to ask that fresh appeals be made to take account of the new orders.

5.10 THE APPEALS

Werihe te Tauri appea1ed his exclusion from the award. Kepa Ehau attempted to have another person added to the list of owners. Tiahuia Rahui, the daughter of Raroa Sullivan, appealed on behalf of Ngati Hineuru. And Te Takinga Arthur Grace on behalf of Ngati Tutemohuta appealed against the inclusion of Raroa Sullivan and Wildtoria Ehau. The cumulative effect of prosecuting cases before the Land Court and Tarawera/Tataraaldna blocks Royal Commission, however, was taldng its toll. The Ngati Hineuru solicitor, M J Morrissey, wrote to the Court in August 1952 to explain that he would not represent the tribe's appeal. He explained that 'the tribe is having difficulty in meeting its costs of the original hearing' and was therefore unable to secure funds for an appeal. Raroa Sullivan would not attend, but Morrissey would remain to watch his interests. 40 Morrissey was motivated by his own needs. In June 1952 he submitted Raroa Sullivan's bill from the 1951 sitting, which stood at £549, 3 shillings and 2 pence. Morrissey asked that if Raroa succeeded in retaining the shares that a solicitor's lien be ordered by the court.41 Tiahuia Rahui was given

39 See Napier MB 90, P 94, and various memorandums in Te Matai Applications: Investigation 1951, vol 1, Na 480

40 M J Morrissey to Registrar, 14 August 1952, Te Matai Applications: Investigation, vol 3, Na 480

41 M J Morrissey to Registrar, Ikaroa Maori Land Board, 4 June 1952; Le Pine, Morrissey & McPharland, Bill for services to Raroa Sullivan, 21 September 1951, certified as correct by Raroa

91 the opportunity to bring the Ngati Hineuru appeal herself, but did not exercise this option. The appeallapsed.42

The Appellate Court of Morrison CJ, Beechey and Prichard sat in Taupo on 26 November 1952. It was perhaps ironic that the Court should end its investigation of Te Matai at Taupo, where the first hearing was held, and where the Ngati Tuwharetoa petitioners had all along maintained that most of the owners resided. In its general remarks on the case, the Judges placed absolute reliance on the investigation carried out by the Court in 1880.43 They believed that Ngati Tutemohuta's rights were properly determined at that inquiry by the absence of opposing argument: 'no question of the right of the then claimants through ancestry and occupation was raised', which 'must be accepted as the best evidence of their right'. The presumption of the lower court, that evidence of Ngati Tutemohuta's occupation was implicit in the fact that they did not have to state it, was reiterated. 'As there were no other claimants it was unnecessary for evidence of their occupation to be given in Court'. 44 Neither court appeared troubled by applying a positive action to negative evidence.

Predictably, the Judges found that the lower court had acted properly in relying on the 1880 judgement. They found that the 1880 decision was for the whole block and represented an agreement by Ngati Tuwharetoa to have Ngati Tutemohuta as the owners of Te Matai. For this reason, they rejected the claim of Ngati Rangiita.

Sullivan on 30 June 1952, Te Matai Correspondence file, part 1, Na 480. Richard Moorsom has detailed the tragic last years of Raroa Sullivan's debt with Morrissey and the Maori Land Court, Supplementary Report, pp 58-61

42 Registrar to Tiahuia Rahui, 23 September 1952; ChiefJudge Morrissey to Registrar, 25 May 1953, Te Matai Applications: Investigation, vol 3, Na 480

43 Appellate MB 8, pp 150-166. This report uses the typescript copy on file, Te Matai Applications: Investigation, vol 3, N a 480

44 Appellate decision re: Te Matai, typescript, p 2

92 The appeal of Ngati Tutemohuta against the inclusion of Raroa Sullivan was also upheld. The Appellate Court noted that Judge Whitehead had given 'the benefit of doubt' to Raroa's 'shadowy' evidence of occupation. Yet the Judges adopted a more strict line, interpreting the conditions for entry to title as proving Ngati Tutemohuta ancestry and occupation as at 1880. Any evidence of occupation after 1880 was of 'no consequence', the Judges ruled, as the land was then both 'Crown land and investigated land'. As Raroa Sullivan did not meet either the ancestry or occupation standard he was removed from the title. 45

Wikitoria Ehau suffered a similar fate. Her claim was made under Hinearo, the fourth child of Tutemohuta and Pareawa, a line the Te Matai 1 block owners did not accept.

The appeal against h~t inclusion was upheld. Two other claimants under Hinearo, Rore Rutene and Tamahou Hunia, were dismissed by the Appellate Court.46

As a result of the changes to the title, the lowers court's orders were cancelled, and new orders were made. The redistribution of the 517 shares vacated by the losers in the Appellate Court judgement was completed in 1953. Just over 600 owners held 9,950 shares. Hoani Hepi Te Heuheu was gifted 50 shares by all the owners.47

5.11 PROTEST BY TuIRI TAREHA

No appeal was lodged by the unsuccessful Tareha claimants. However, a letter campaign was initiated in 1953. Tuiri Tareha wrote to the Minister of Maori Affairs on 5 March 1953. His emphasis had not changed. The first paragraph read:

I am a grand son of the late Chief Tareha te Moananui a staunch supporter

45 Appellate decision re: Te Matai, typescript, pp 3-4

46 Appellate decision re: Te Matai, typescript, pp 4-5

47 Te Matai Applications 1952-1957, Na 480

93 of the Mana of her Late Majesty Queen Victoria during the days of the Hauhau Rebellion and known throughout the District as the Loyal Tareha.48

Tuiri Tareha also drew support from the findings of the Royal Commission investigating the Tarawera and Tataraakina title. Noting the return of ownership to those who were listed on the 1870 agreement schedules, he submitted that the same should occur for Te Matai. The Minister's reply recounted the decision of the Court dismissing the original Tareha application and pointed out that an appeal should have been 10dged. 49 Tuiri Tareha was not put off so easily. He wrote again, emphasising that the Royal Commission had blamed the 1924 legislation for causing 'a very substantial miscarriage of justice'.50 He threatened to petition parliament.51

This was the last record of protest against the Court's award of title for Te Matai.

48 Tuiri Tareha to E B Corbett, Minister of Maori Affairs, 5 March 1953, MA 5/13/256, NA

49 Minister of Maori Affairs to Tuiri Tareha, 31 March 1953, MA 5/13/256, NA

50 Tuiri Tareha to E B Corbett, 11 May 1953, MA 5/13/256, NA

51 A search of petitions referred to the Maori Affairs Select Committee in 1953 and 1954 did not discover this petition. Neither was a petition on the MA file.

94 SIX

DEBT, TIMBER, and ACCESS

6.1 INTRODUCTION

In 1953 the whole ofTe Matai was finally legally owned by Maori. Three main issues dominate the post-1953 history of Te Matai. The first was the unresolved matter of the survey costs and money advanced for the purchase of Te Matai. Lands officials had, in effect, been Racified by the decision to return the block to Maori with a promise that the Court would order the full costs to be paid when the title was eventually determined. The Lands Department, therefore, keenly awaited their bounty following Whitehead's decision in 1951. Part of Lands' renewed interest was due to the potential timber resource. The intent to mill native timber eventually declined, however, and was replaced with a quasi-conservationist thrust. Both initiatives included the Crown's purchase of Te Matai. Any plans, however, were usually stymied by Te Matai's infrastructural isolation. The lack of vehicular access to Te Matai, then, becomes the third major issue. This was more of a problem for the owners themselves, and is the one problem that remains unresolved to this day. The Lands debt was disposed of, the native forest is preserved under a Nga Whenua Rahui Kawenata, but the owners still have no legal access to their 3,500-hectare Te Matai land.

The claimants will present submissions and evidence about the access issue and other more recent issues. This chapter will briefly record some of the official responses to the issues in the post-1953 era.

94 7.2 DEBT

In late 1950 the Chief Surveyor in Napier prepared for the title investigation by requesting the head office files and plans. l J K Woodley appeared at the Te Matai hearing on 25 May 1951. He made the Court aware of the Crown's outstanding charges. Woodley anticipated trouble. He noted that he was 'advised by certain Maoris that these charges would be hotly contested'.2 He arranged with the Court clerk to be recalled when the issue arose again in proceedings. Although it is not in the minute book, another Lands official did appear at the hearing. He reported that Judge Whitehead had accepted the composite plan (ML 1745) drawn up for the purposes of the investigation, and that the survey charge should stand.3 However, in his decision, Judge Whitehead acknowledged the claim but also noted that:4

In view of the fact that no survey plan can be produced by the Survey office and the large sum demanded by way of interest, the Court would like to hear the Crown representative on this matter.

No Lands official appeared at the subsequent hearings. They did not give up, however. The Napier Chief Surveyor, A J Wattie, wrote to the Court in November 1952, demanding the £866, 19 shillings and 7 pence owed to the Crown. Judge Whitehead was not impressed. He told the court registrar to send a copy of the last page of his decision to Wattie: 'and shake them about it'. He continued: 'I don't think the claim is really justified as they (Lands Department) are not able to produce a plan at all (Earthquake?) Anyhow write to them + see what's cooking. The CJ

I A J Wattie, CS Napier to DG, LS, 28 November 1950, 7/602, LINZ HO

2 J K Woodley, file note, 25 May 1951,20/27, LINZ Napier

3 Redward to CS Napier, 14 December 1951,20/27, LINZ Napier. The plan was compiled from the adjoining block plans: SO 1655 determined the northern boundary, Tapapa 3 block sale poster 145/51 and the Mohaka River determined the western, Tarawera 10C (ML 1404) the Eastern, and Pakaututu lithos the southern.

4 Napier MB 89, P 364

95 would like to know their present attitude'.5

Registrar O'I(ane wrote to Wattie on 15 June 1953, just prior to the commencement of the final orders hearing. He informed Wattie that following the decision of the Appellate Court issued on 26 November 1952 Judge Whitehead was set to make final orders at a hearing in Taupo on 18 June 1953.6 Wattie was directed to write to the Judge outlining the Crown's claim. Wattie wrote and delivered a memorandum the next day.7 Minuted on Wattie's memo was a note by O'Kane stating that the letter was received and read by Judge Whitehead to those present in Court.s No reference to this was made in the Minute book. No order in favour of the Crown was made.

Napier Lands officialS1ost sight of the matter, but were woken up again by their head office in 1957.9 Deputy Registrar 1 T Whaanga told Nelson Clay, the Napier Chief Surveyor, the bad news: '1 can only surmise that your application was not dealt with because you were not represented at ... Court. The applicant or their representative must appear'. 10 Clay was oblivious that Lands were the victim of some subtle trickery executed by Judge Whitehead. He could only inform his superior that a mistake was made, and no representative had appeared in Court. 11 Of course, Clay's predecessor, A J Wattie, had been told to put the claim in writing, and was never informed that someone would have to appear. The Director-General told Clay to hold the matter over, and that the claim should be pursued again 'if and when a favourable

5 Judge Whitehead, Note, 21 November 1952, Te Matai Applications: Investigation 1951, vol 1 , Na 480, Maori Land Court, Hastings

6 F T O'Kane to CS, Napier, 15 June 1953, 7/602, LINZ HO

7 AJ Wattie to Registrar, 16 June 1953, Te MataiApplications: Investigation 1951, vol 1, Na 480, Hastings Maori Land Court

8 F T O'Kane, Note, on Wattie to Registrar, 16 June 1953, Te Matai Applications: Investigation 1951, vol 1, N a 480, Maori Land Court, Hastings

9 DG to CCL, Napier, 21 March 1957, 7/602, LINZ HO

10 IT Whaanga to CS, Napier, 15 April 1957, 7/602, LINZ HO

II CCL Napier to DG, L&S, 17 April 1957, 7/602, LINZHO

96 opportunity occurs'. 12

An opportunity presented itself the following year. Following a field officer's valuation report on Te Matai in 1958 (see below), Napier Lands officials queried if it would be possible to apply for a survey lien on the block. 13 The Director-General took up the case again. In a strongly-worded letter to the Under-Secretary of Maori Affairs, he wrote that in 1953: 14

The Chief Surveyor at that time acted in good faith in only supplying a written request ... it appears, however, that the non-appearance of a Crown representative prejudiced the Crown's claim ... I desire to know what further action is necessary for

the Crown to pro~ect its interests and obtain a refund of the amounts involved.

The Under-secretary's response to the last request was dismissive: 'Why ask us', he minuted. 15 The official reply attempted to dissuade Lands from continuing the claim, citing the 'lapse of so long a time', and the questions over the Court's jurisdiction to reactivate the claim. If Lands insisted, however, Maori Affairs suggested that the Crown Law Office could review these questions. 16

Legal officer A Szakats was subsequently asked to answer the questions of whether the Maori Land Court had jurisdiction to order the Maori owners to pay the costs, and if so, whether the Crown's claims were still enforceable. l7 Szakats interpreted section27 of the Native Land Amendment and Native Land Claims Adjustment Act 1924 as having restored the land to its former character of Maori land, and implicitly

12 DG to CCL, Napier, 30 August 1957, 7/602, LINZ HO

13 Minute on F E 0 Evans to CCL, Napier, 27 June 1958,20/27, LINZ Napier

14 DG to USND, 10 October 1958, MA, 5/13/236, NA

15 Note, 13 October 1958, on DG to USND, 10 October 1958, MA, 5/13/236, NA,

16 Secretary, Maori Affairs, to Registrar General of Lands, 22 October 1922, MA, 5/13/236, NA

17 'Te Matai Block - Crown claims', A Szakats, 30 April 1959, 7/602, LINZ HO

97 declared the confiscation proclamation to be null and void. However, claims arising out of the survey of the land or other monetary claims were expressly reserved. The Maori Land Court was provided with the jurisdiction to investigate the title of the land 'to all intents and purposes'. Szakats submitted that this included the jurisdiction to deal with the Crown's claims. IS

Szakats reviewed the events which led to the omission of the Crown's claims from Judge Whitehead's final orders, commenting that, 'although misled by the Court officials' erroneous advice', there was 'a certain lack of vigilance' by the Crown. Szakats submitted that the Court should have taken notice of the claim in 1953, but queried whether it was now possible for the Court to make the order. 19 Szakats submitted that the 18'95 charging order still protected the survey lien but that it was doubtful whether a sucessful action could be brought. The legal point at issue was whether Wattie's memorandum to the Court in June 1953 was 'incidental' to Court proceedings, or was an application in its own right. If the latter, then the Crown could make a fresh application for survey costs on the basis that the original application was recognised by the Court but was not disposed of. The advances made for the purchase ofTe Matai in 1879 were not retrievable at all. Szakats noted that if there were other similar cases, it might be 'worthwhile to take to a test case', but was not convinced of success in this particular case. 20

The historic debt was thus not taken any further. 21 New debts, however, soon put pressure on the Maori owners once more, and as the next section will demonstrate, the Crown once again entertained the idea of purchasing the block.

18 Ibid, P 2

19 Ibid, pp 3, 5

20 Ibid, P 6

21 See Te Matai Title file, Binder 25, 26, Hastings Maori Land Court

98 6.3 TIMBER AND DEVELOPMENT

The Crown's pursuit in purchasing Te Matai or accepting a part of it in exchange for survey costs had been carried out with no evaluation of what might be done with the land once it was in Crown hands. It was not until the dismissal of applications to Te Matai in 1933 that the Napier Lands office was forced to assess the potential value of their interest in Te Matai. While prospects for pastoral development were still minimal, evidence of 'millable timber' had raised the stakes somewhat. Chief Surveyor Barlow suggested that his staff surveyor and field inspector visit the area and obtain information about the extent, quality, and accessibility of the timber. For the next few decades, talk of timber was on the Te Matai agenda.

Lands soon discovered some of the difficulties in the accessibility of the timber. It took months to arrange a site visit by a forest ranger and the Lands field agent. The Manager of Pakaututu Station had to meet the officers at the Mohaka river - the extent to which one could go in motor car.22 In the end, the attempt was abandoned. The Chief Surveyor in Napier noted the obvious in 1940: Te Matai was land-locked.

Options for opening up the block for timber milling were not seriously entertained. 23 The war intervened and Te Matai's timber was not discussed again until 1946.

Millers, Pettigrew and Sutton, from Te Pohue, had tendered for the rights to mill Pakaututu Station land and in 1946 showed interest in the adjoining Te Matai block.24 The Ikaroa registrar replied that problems existed with the title of the block that would delay any kind of development, but offered some hope in that if the potential owners realised that there was a likely source of revenue they might show

22 CCL, Napier to Conservator of Forests, 4 January 1938,20/27, LINZ-Napier

23 CS to Registrar, Native Land Court, Wanganui, 2 February 1940,20/27, LINZ-Napier

24 Pettigrew and Sutton to Registrar, 14 May 1946, Te Matai Correspondence, part 1, Na 480, Hastings Maori Land Court

99 renewed interest. There is no record of whether the Registrar attempted to inform any of the likely owners. The Registrar and Maori Mfairs Department, meanwhile, initiated their own plans. In search of a source of timber to use for Maori housing, officials asked the Forestry Service to assess the viability of milling the Te Matai timber. Economic imperatives prevailed. If there was profit to be made, the Registrar candidly told the Palmerston North Conservator, his office would ensure that the title was determined. If there was no profit, however, the situation would remain as it was. 25 The timber was not appraised in 1950.

The Forest Service did evaluate Te Matai's timber in 1955. The impetus to do so had come from the Parkvale Box Company, which had recently completed milling of 3.5

million feet of rimu ~hd beech on the adjoining Pakaututu Station.26 Parkvale had requested consent to continue their operation on Te Matai. Te Matai owner P Alfred Grace believed that they had already started. In 1954 he wrote to the Conservator of Forests to complain that saw millers working on Pakaututu 'may have encroached on our block and taken logs'.27 The Forest Service estimated that 6-7 million board feet of beech, rimu and totara existed. The field officer, Dr Jackson, however, had not recommended that the consent be granted. 'Due to the nature of the geological strata and depositions of volcanic ash, Dr Jackson considered that the land was subject to wind-blow and water induced erosion'.28 Noting that very little, if any, of Te Matai would be suitable for pastoral production, Jackson had warned that if logging went ahead a re-generation plan would be necessary.

Communication between the Lands Department and the Forest Service was poor. In

25 P H Dudson, Registrar, Wellington, to Conservator Forests, Palmerston North, 9 March 1950, Te Matai Correspondence, part 1, Na 480, Hastings Maori Land Court

26 A M Moore, District Forest ranger, to CCL Napier, 4 December 1967, 7/602, LINZ HO

27 P Alfred Grace to SAC Darby, Conservator of Forests, copied in Darby to Registrar, 17 December 1954, Te Matai correspondence, part 1, 1923-1955, Na 480, Hastings Maori Land Court

28 A M Moore, District Forest Ranger, to CCL Napier, 4 December 1967, 7/602, LINZ HO

100 March 1958 field officer FE Evans reported enthusiastically about the prospects for timber milling and development for pastoral farming. He estimated that there was 6672 acres in bush, the balance of 1650 acres was clear land, rock outcrops and gorges. He told his superiors that Lands should keep ideas of purchasing the block in mind. One reason for this was that he believed that Maori were letting logging contracts on parts of the area and was concerned at the possible damage this might cause: 'While they may be perfectly in their rights doing this, I feel that a block this size and its situation, being at the watershed of the Mohaka and Ripia Rivers, controlled milling will ensure that eF.osion does not take place'. 29 Evans filed a Rural Valuation with his report. Despite recording that Te Matai was 63 miles from a dairy factory or saleyards, and 50 miles from a railway station, that it had poor soil, and stood on average 3 ,00t>Jeet above sea level, Evans still estimated that there was 2,500 acres of 'discable country'. 30 While Te Matai had not been the subj ect of intentional development, the advance guard of colonisation had arrived uninvited. Ragwort, deer, pigs, goats, and opossums were all resident and in Evan's opinion required control. He valued the block at 5 shillings an acre: £2,080 in total. This did not include the timber - tawa, beech, rimu and matai - which he left for the Forest Service to value.

In March 1960, following an inquiry from Maori Mfairs, the Palmerston North Conservator of Forests had refused to appraise Te Matai timber 'on the grounds that nearly ten miles of expensive road would have to be formed plus the erection of one bridge', and that 'survey charges could run into £1,000 or more'. AB well, appraisal fees would cost between £1,000 to £1,800, resulting in very little return for the owners.31 Occasional interest was shown in the block in the early 1960s from forest companies such as Fletcher Timber.32 But it was not until 1967 that official interest

29 FE 0 Evans to eeL, Napier, 27 June 1958.

30 Rural Valuation Report, 27 June 1958,7/602, LINZ-HO

31 A M Moore, District Forest Ranger, to eeL Napier, 4 December 1967,7/602, LINZ HO

32 G Transom, Logging Manager, Fletcher Timber, to Department of Lands and Survey, 27 April 1962,20/27, LINZ Napier

101 was revived.

The catalyst was again debt - this time in the form of rate arrears. Since 1953 Te Matai had incurred rural rates.33 In 1965 the Hawke's Bay County Council applied to the Maori Land Court for a charging order. Maori Mfairs district officer, E W Williams, wrote to Judge Smith prior to the hearing. He stated that although there were many millions of board feet of timber on Te Matai, the Forestry Service had advised leaving milling to one side as there was more accessible timber still available. Williams was frank about the prospects of occupying and developing Te Matai: 'one would have to be pretty keen on the unsophisticated life to consider this', he said.34 Describing the land as having no access, rugged, high altitude, and covered in forest, with no physical occupation, the Court dismissed the application by invoking section 104 of the Rating Act 1925.35 This section allowed the Governor to exempt native land from rates for 'special reason'. The County Council had no objection as long as the land remained unoccupied and unproductive. But this presented a problem for Maori Mfairs and Lands Departments.36

Exemptions under section 104 of the Rating Act 1925 were formalised by publishing orders in council. Other policy had grown up around the section. Exemptions were granted for a maximum of two years, and before the Governor would make the order in council, the Lands Department was asked if the Crown would purchase the land. Presumably this was to encourage owners to develop and make economic use of their land. If they could not then the Crown was offered the chance instead. Maori Mfairs

33 It appears that during its time of undefined legal status, 1867 to 1953, Te Matai did not incur rate charges.

34 District Officer, Maori Affairs to Judge Smith, 12 November 1965, Te Matai Correspondence, part I, Na 480

35 Napier MB 99,23 November 1965, p 165

36 Secretary for Maori Affairs to DG, 17 August 1966, 7/602, LINZ HO

102 asked if Lands was interested in Te Matai in August 1966.37 Lands declined the offer. Any plans for developing Te Matai were finally disposed of in March 1967. The Director-General told the Lands Minister that it was not feasible for the department to purchase the land for development purposes. He explained that of the 7606-acre Pakaututu block, only 4,550 acres were able to be productively developed and settled. The remaining 3,056 acres bordering Te Matai were 'too rugged, inaccessible and costly for development'.38 Te Matai was, he said, 'an even tougher proposition', especially as it was 'cut off from any roading whatsoever'.

This did not end the Crown's proposal to purchase Te Matai. The Ministers of Maori Affairs and Lands debated in mid-1967 other reasons why Te Matai might be purchased. The discussion arose from the Court's decision to excuse the Maori owners from paying rates. One view expressed at the time was that land that was unoccupied and undevelopable was really waste land, and should for that reason be purchased by the Crown. The Minister of Lands suggested that 'rapid land use changes and advancing development and conservation techniques' necessitated the Crown's acquisition of this type of Maori land, to be held against 'future needs'. Noting that his department's recent decline to purchase was grounded in an assessment of the block's immediate development potential, the Minister now believed that it was in the 'long term national' interest to purchase Te Matai. He set some conditions, however. Extra money would have to be made available, the acquisition money should be non-interest bearing, and the Crown should be exempted from paying rates. 39 The Maori owners were not to be allowed the same luxuries. The Minister of Lands recommended that the Court's exemption-from-rates order should not be complied with: 'If rating exemptions were granted while such lands remain Maori land, for the most part in multiple ownership, there would be no

37 Secretary for Maori Affairs to DG, 17 August 1966, 7/602, LINZ HO

38 DG to Minister of Lands, 31 March 1967,7/602, LINZ HO

39 Minister of Lands to Minister of Maori Affairs, 14 June 1967, 7/602, LINZ HO

103 pressure on the Maori owners to deal with the lands at all. '40 Having admitted that development was not possible, only one option for dealing with their land remained for the Maori owners - sell to the Crown. As far as the Lands Department was concerned, rate arrears were to be used as a lever to force the sale.

Maori Affairs proceeded to arrange the Crown's purchase of Te Matai. Lands officials were asked to obtain an up-to-date valuation, while the approval of the Board of Maori Affairs was sought in order to call a meeting of owners. 41 The Director-General explained to his Napier Lands officials that although development appeared to be 'out of the question' for the Maori owners and the Crown, Te Matai 'may be better in Crown ownership' anyway.42 Valuation department officials reported back in

November 1967Y Te~Matai 2 was valued at $4160. Although Te Matai 1 was not visited, the valuers presumed it was similar terrain and valued it at $130, making a total of $4290, exclusive of any millable timber. The valuers believed that milling was probably not feasible, and the only potential buyers, apart from the Crown, would be hunters or batten splitters.44 Assessment of the timber was sought from the Forestry Service. The service's response was lukewarm, citing Dr Jackson's 1955 report about the need for regeneration, and the prohibitive access costsY Napier Lands officials picked up on the conservation aspect, and suggested that the block be 'locked up' under the provisions of the Water and Soil Conservation Act 1941. Compensation would be paid to the owners.46 Meanwhile, Lands had failed in its attempt to get Treasury and Cabinet approval for non-interest bearing loans to be made available to purchase Maori waste land. In 1970 the proposed purchase of Te

40 Minister of Lands to Minister of Maori Mfairs, 14 June 1967,7/602, LINZ HO

41 A C P MacRae, Department of Maori Mfairs, to DG, 22 August 1967, 7/602, LINZ HO

42 DG to CCL Napier, 24 August 1967, 20/27, LINZ Napier

43 A R Calderwood and D E Snow to CCL Napier, 15 November 1967, 7/602, LINZ HO

44 A R Calderwood and D E Snow to CCL Napier, 15 November 1967, 7/602, LINZ HO

45 A M Moore, District Forest Ranger, to CCL Napier, 4 December 1967,20/27, LINZ Napier

46 File note, 4 December 1967, on A M Moore, District Forest Ranger, to CCL Napier, 4 December 1967, 20/27, LINZ Napier

104 Matai was shelved.47

The exemption-from-rates Order in Council was gazetted in April 1970. Although not stated, it presumably acted retrospectively, releasing the owners from previous rate arrears. It was renewed for a further five years in 1972, after checks were made that Lands was not interested in purchasing (pursuant to the Rating Act 1967). When it came up in 1977, the Director-General stated that Lands did not intend to purchase the block. 48

6.4 ACCESS

The absence of access-to Te Matai had constantly been cited by officials as a reason for the unsuitability of development. There was a more fundamental effect, however. The hundreds of owners of Te Matai were unable to even set foot on the block without negotiating with adjacent owners or hiring a helicopter. The issue of access, then, became the owners' greatest concern.

The first attempt to link Te Matai with the rest of the world by road was a grand one. In 1956 Judge O'Malley of the Maori Land Court ordered that a roadway be established which linked Wharetoto block with Te Matai and Pakaututu (see fig 9).49 The road left the State Highway 5 on the Rangataiki plains and snaked eastwards through the Wharetoto partitions, stopping short of Big Ben peak. The proposed extension went from there to meet the old native track on Te Matai. It was not carried out. The proposal was revived briefly in 1972, following pressure from the

47 DG to Secretary Maori and Island Mfairs, 19 February 1970, 7/602, LINZ HO

48 DG to Secretary Maori Affairs, 7/602, LINZ HO

49 Order Laying out a roadway, Tokaanu MB 34, 12 June 1956, pp 370-371, extract copied in 20/27, LINZ Napier

105 Maori owners, who had formed a section 438 trust on 16 March 1971.50 This report will not attempt to cover in detail the protracted and ultimately, fruitless, attempts by the owners to gain access. 51

In 1972 two roadway options existed for access to Te Matai. The first was the continuation of the road from Wharetoto, through Te Matai, to meet with Pakaututu Road (see fig 9). The terrain of Te Matai never made this a viable proposition. The second option was a small extension ofPakaututu road through Strawbridge's Crown lease farm (Rost0n Farm Ltd) along an already formed four-wheel drive track. This was the owners' preferred entry point. Approval of this option, however, required the consent of all affected parties: Hawke's Bay County Council, Commissioner Crown Lands, any person with an interest in the land affected, and the consent of Roston Farm.52 Mter being approached by the Te Matai Trust, Strawbridge sought advice from Lands officials. He was told to consider the advantage of a public road, in that hunters would not interfere with his farm any more. Strawbridge, however, was more interested in expanding his farm to include unoccupied portions of Crown land on Pakaututu. He was told that the Mohaka River side was not acceptable as it had scenic value, and could be seen from the Puketitiri Hot Springs road. The Ripia River side was a possibility, however.53 Nothing came of Strawbridge's proposed expansion. Neither did he give consent for his fenced 'race' to become a public road, citing issues such as fencing, stock management, and the future development of Te Matai.54

In 1976 the Trustees appealed to the Ministers of Maori Mfairs and Lands.55 They

50 Claimant research will elaborate on the establishment of the trust and its management of the blocks.

51 See correspondence in Te Matai Correspondence file, part 1, Na 480

52 J W Campin, CCL Napier, to C Watson, Secretary Te Matai 1 & 2 blocks Trust, 27 July 1973.

53 File Note, 1 October 1973,20/27, LINZ HO

54 J H Strawbridge to Trustees, Te Matai block, 25 September 1973, 7/602, LINZ HO

55 C R Watson to Minister of Maori Mfairs and Minister of Lands, 1 March 1976, 7/602, LINZ HO

106 were still interested in the possibility of milling timber from the block, or using it for farming and tourist purposes. Another concern was the arrogant encroachments from hunters, who not only used the block without permit, but had gone so far as building a hut on the block for their purposes.56 Lands Minister Venn Young's response detailed how the odds were stacked against the Trustees' succeeding. Young noted that every option available required Strawbridge's consent and considerable cost for the Maori owners. Although Roston farm was a Crown lease, the Crown had no power to impose a public road on him. He suggested that the Napier Lands officials facilitate discussions between the owners and Strawbridge.57 Discussions were apparently fruitless, and the Te Matai owners have relied on limited and conditional access through Roston Farm ever since.58

56 DO Twigg, to CCL Napier, 25 June 1974,7/602, LINZ HO

57 Venn Young to R J La Varis, 10 May 1976, 7/602, LINZ HO

58 Claimant research will elaborate on their attempts to gain access and the problems associated with not having legal access.

107 SEVEN

CONCLUSION

7.1 INTRODUCTION

Prior to the 1860s, the Pakaututu and Te Matai area was part of an inland high­ country resource utilised by select hapu. Eels, kiwi, and kakapo headed a list of fish, flora, and fauna gathered in cultural harvests. Occupation at Mawhai pa was more or less continual, but was not a permanent kainga for anyone hapu group. Several other sites were used on a s~asonal basis. The area was not particularly notable in its own right, but represented an important part within a wider hunter-gatherer economy. It might have remained that way but for the disruptive influence of war and the Pakeha pastoral economy.

On 12 January 1867 all but a tiny corner of the area was confiscated by the Crown. Although this was a dramatic and radical change, both legally and politically, its practical effect was less invasive. It was the title history spawned by the paper proclamation of confiscation that proved to have enduring effect. The bulk of this report, therefore, studies the aftermath of confiscation. Sooner and later, all the area was returned to Maori, although the method used to identify the owners was in all cases deficient.

7.2 PAKAUTUTU

The rapid and improper return in 1869 of a 7606-acre block called Pakaututu contributed to its equally swift departure from Maori ownership. The title­ determining instrument of the Crown, the Native Land Court, was ill-equipped in

108 1869 to adequately investigate the customary ownership of Pakaututu. Structural faults abounded. Principal among these was the Court's limited capacity for conducting a comprehensive inquiry. As Justice Richmond noted in 1873, the Court's decisions were made 'as against all the world', but were based on the evidence of a self-motivated few. In the case of Pakaututu, this flawed process resulted in only one of the many hapu that could claim customary rights gaining the power to alienate the land on behalf of all. A related structural failing, then, was the Court's inability to discriminate and identify different usage rights. The Court issued certificates of titles to no more than 10 people in undefined but equal shares, which were economic commodities in themselves, and able to be captured to pay debt against the owners will. This process was unable to responsibly convert the type of customary usage rights held by Pakaututu's Maori owners into the currency of European land administration.

Several specific faults can be identified in the Court's November 1869 title determination for Pakaututu. The presiding judge had ruled in 1868 that Pakaututu was confiscated land. Yet in 1869 an urgently dispatched telegram from the Premier, waiving the Government's claim to applications brought by one recently-deceased individual, provided the necessary clearance for the same judge to hear the case. This report has argued that the Court may not have had jurisdiction to proceed. The timing of the case was patently unfair on some potential owners. The ownership of Pakaututu was determined in the midst of war, within a turbulent time of social and political upheaval. Many potential owners were either fighting with Te Kooti, or protecting their lives and homes against him. It is unlikely, therefore, that notice of the investigation had reached either side. It mattered little. Neither group were realistically able to take part in the Court investigation that would decide the fate of land in which they had customary interests. These people received no protection from the legal system. No restrictions were placed on the alienation of Pakaututu. Requests for the case to be re-heard were denied.

109 As early as 1870 Pakaututu was probably leased to a Pakeha pastoralist. Three years later a conveyance for the block was executed for an 'all-up price' of £1,000. The precise circumstances of the alienation are not known. In the absence of crucial records, this report has argued that Pakaututu was probably typical of many blocks of land alienated in this period in Hawke's Bay. There is a reasonably high chance that the debt of key grantees was an influencing factor in the sale. It is unclear how much influence the effect of war had on the sale.

7.3 TEMATAI

All but 254 acres of the 8580-acre Te Matai block was included within the confiscation boundarY of 1867. Probably because of faulty maps and plans, it was left off the schedule of blocks identified in the 1870 agreement. The cumulative effect of the error was an offer for Te Matai in 1879, as part of the Crown's extensive land­ purchasing activity in the eastern Taupo district. The method of purchase involved the Crown official choosing the owners and buying their support with a down­ payment on the land. In Tamaki, Hawke's Bay, this process was described by one participant as 'laying groundbait'. The chosen owners would apply for the title to be determined by the Native Land Court. The Crown would carry out the survey but would pay only if the deal was completed, and all expenses would be deducted from the final purchase price. The Court acted as the rubber-stamp of this process.

The Crown's purchase proceeded smoothly until the Inspector of Surveys realised that it was largely purchasing its own land. The provincial boundary line's position on the ground had shifted within officialdom, resulting in the erroneous contraction of the confiscated district. By the time the error was discovered, the Court had conducted its investigation into ownership and awarded title of the whole block to 31 Ngati Tutemohuta owners. Again, the inquiry favoured those who had turned up in Court, and there was no complete analysis of the customary usage rights of hapu.

110 The disruption of the purchase process by the restless confiscation boundary left an untidy situation. The Court cancelled the order in favour of the Crown, intending to leave the un-confiscated corner of Te Matai to Maori. A further error was made, however, in the amount (1020 instead of 254 acres) that remained. Nevertheless, by default, the confiscation had saved Te Matai from being Crown-purchased.

It did not save the Maori owners from the costs incurred by the Crown's blunder, however. Lands officials continued to pursue the survey costs and money advanced for purchase. The Maori owners did not own the bulk of Te Matai and had derived no benefit from the survey, but, unbeknown to them, they were considered responsible for paying the debt and any interest incurred. Meanwhile, the Crown did nothing to resolve tne issue, save for getting the Native Land Court to make a charging order for the_survey lien.

It was Maori initiative that put Te Matai's title back on the agenda between 1922-1924. Five different hapu groups made claim to the block. By this time Maori had realised the importance attached to controlling the venue of the Court's sitting - not only to gain an advantage in the desired result, but also to manage the health and economic costs associated with a Land Court hearing. Running parallel to the campaigns to hear the case at either Taupo, Napier, Marton or Tokaanu, was the Crown's inability to decide within what court district Te Matai lay. Once again, boundary lines went walkabout at the whim of various officials. From this issue sprung the rediscovery by the Lands Department that Te Matai was confiscated land. Lands officials campaigned to convince the Court that the Crown had intended to retain the block. This failed, although the officials won the consolation prize of having the Court award full costs to the Crown.

The award of costs by the Court was unfair. Maori had derived no benefit from the survey, neither were they the legal owners of the bulk of Te Matai. Furthermore, the

111 campaign over the venue revealed the economic pressure that Maori were facing at the time. No assessment was made of the ability of the applicants to pay the £712 owed. A further tragedy was that the order was agreed to by the paid representatives of the Maori groups. In effect, accepting responsibility for the costs was the down­ side to gaining the termination of confiscation. Legislation in 1924 reversed the tenurial effect of confiscation, and allowed the Native Land Court to investigate the title to Te Matai as if it had never been included in the confiscated district.

A hearing was held in Hastings in February 1928. Unlike in the 1880 hearing, extensive evidence of ancestral, ringakaha, and occupation rights was heard from a variety of hapu groups. The hearing was dominated by the evidence of Ngati Tutemohuta elder Paora Rokino, who established a prima facie case to which others had to join in or oppose. The evidence, however, was given in vain. Judge Gilfedder ruled that the Court could only amend the order made in 1880. Having so ruled, however, Gilfedder failed to so amend, and instead adjourned the case sine die.

Gilfedder did not follow up by awarding the title ofTe Matai 2 to Ngati Tutemohuta. Instead, fresh applications from them, Ngati Hineuru, and Ngati Kahungunu groups were received and scheduled for hearing. For various reasons (except for the obvious one, that the case was adjourned, sine die), a further hearing was not held until 19 51. A large group of applicants mobilised in Hastings for what was possibly the last of the large papatipu hearings in the district. Again, the Court quickly favoured the Ngati Tutemohuta Te Matai 1 block owners. The evidence of all witnesses revealed that no group had ever permanently occupied Te Matai, but that several had exercised interests in a fashion consistent with a seasonal hunter-gatherer economy. Ngati Tutemohuta's only eel resource was on the Ripia River and Te Matai-based tributaries. Like Ngati Hawea, they also hunted kiwi on the block. Kiwi were important for Ngati Hineuru too, as was Te Matai's population of kakapo. Judge Whitehead concluded that the Court's usual standard for assessing occupation could

112 not be met for Te Matai and looked to adjoining blocks for evidence of occupation. It reflected poorly on the Court process that by 1951 it had not evolved to accommodate Maori customary use rights. Partially because of the Court's inability to deal with this type of case, Judge Whitehead returned to the 1880 decision. Although he acknowledged the justification for the other hapu groups' claims, Judge Whitehead's award went to the descendants of the 1880 Ngati Tutemohuta owners, and a few others.

The few others all lost on appeal. The Maori Appellate Court ruled more strongly in favour of the 1880 decision. Again, the costs borne by other hapu groups, Ngati Hineuru, Ngati Hawea (and other Ngati Kahungunu), and Ngati Rangiita, were in vain. And the costs w€1'e high. Ngati Hineuru failed to bring an appeal or contest the appeal against Raroa Sullivan's inclusion for economic reasons. The 1951 hearing had cost Raroa over £500 in legal fees alone.

It was not plain sailing for the Ngati Tutemohuta owners, however. From 1953, when final orders were made, the pressure of debt remained. The Lands Department wanted its money, which by this time had escalated to over £860. Fortunately for the owners, the Court conspired to evade making the order in favour of the Crown. The County Council took over, demanding rate arrears. The Court ruled that the Te Matai owners should be exempt from the payment of rates. This was based on the block's isolation and limited capacity to earn economic revenue. The development potential of Te Matai had been discussed periodically. The beech, rimu and totara resource gained most interest. Only the occasional visionary foresaw a potential for pastoral development. However the Forest Service declined to invest in the timber, citing accessibility as one main reason. The lack of access denied the owners an opportunity to develop the block as well. Once it was realised that development options were negligible, the Crown embarked on its final attempt to purchase Te Matai, employing the 'use it or lose it' philosophy of land management. Although the

113 Crown had declared the block to be undevelopable, it still pursued it for 'future needs'. Presumably this meant that if at a later date technology or a lack of resources elsewhere made development feasible, the Crown should reap the benefit. A lack of funds, however, saw the Lands Department finally abandon its plans to purchase in 1977. In 1997, a Nga Whenua Rahui Kawenata was signed between the Minister of Conservation and the owners. Nothing has been done, however, to assist the owners in gaining legal access to Te Matai. This issue remains unresolved today.

7.4 THE EFFECT

An assessment of the effect of Crown action or non-action must start with the confiscation. The 186'7 proclamation changed the tenurial status of Pakaututu and Te Matai 2 block. This mattered little for Pakaututu, which was, perhaps wrongly, unaffected by the confiscation in the way it was returned to Maori. Instead, it followed a typical course through the Native Land Court. The inadequate investigation of title saw significant hapu groups shut out of Pakaututu. Although the block was soon sold, it is difficult to assess the impact of its loss. Mawhai Pa appeared to continue to be the home for some Maori; hunting may have continued as well. Exactly when this ceased is not known. A reasoned guess would suggest that for at least the last hundred years Pakaututu has been actually alienated, unable to serve a purpose within the hunter-gatherer economy, nor be developed by Maori pastoralists.

Assessing the loss of Te Matai is equally difficult. From 1867 until at least 1924, possibly even to 1953, all but 254 acres was effectively Crown land. But again, pin­ pointing the precise moment when Maori ceased all use of the block and its river resources is not possible. In all likelihood this would have been a gradual change, with similar timing to that of Pakaututu. The economic cost in gaining title to Te Matai was high. It took dozens ofletters, several petitions, and many hearings, one of which

114 lasted a month. Most of this was for little gain, as the Native Land Court failed to complete its investigation or continually reverted to the former 1880 hearing. Since 1953, the lack of legal access to Te Matai has resulted in further legal costs, and frustrated the owners in their attempts to visit their land. This 'cultural' loss is better left to the claimants to assess in their own report and submissions to the Tribunal.

115 BIBLIOGRAPHY

Primary Unpublished

Agent General Government, Hawke's Bay, NA AGG-HB, 3/4 Inwards telegrams, Sir William Fox AGG-HB, 6/2 Outwards telegrams

Cash Book- Henry Mitchell, 1873-1886, MA-MLP 7/19, NA

'Hineuru Whakapapa: Investigation into Title of Tarawera Block', AAFV 997, H29, NA

Maori Land Court Minute Books Napier 1,2,38,72; 74, 75, 76, 89*, 90, 99 Taupo 1,2

Maori Land Court, Hastings Pakaututu Applications file 1867-1870, N a 198 Pakaututu Correspondence file, Na 198 Te Matai Investigation of Title: Basic Data, Na 480 Te Matai correspondence, part 1, 1923-1955, Na 480 Te Matai correspondence, part 2, 1955-1994, Na 480 Te Matai Applications, vol 1, 1950-1951, Na 480 Te Matai Applications, vol 2, 1952-1957, Na 480 Te Matai Applications: Investigation, vol 3, 1951-1953, Na 480 Te Matai Applications: Investigation 1851, Vol 1, Na 480 Te Matai Title files (binder 25-26), Na 480

Native Land Purchase Department, Record Book 1873-1888, NA

Pakaututu Crown Grant, 11 September 1872, Reg. No. HI0, folio 46, LINZ HO

Pakaututu Certificate of Title, HB vol 72, fol160, LINZ Napier

Pakaututu Farm Settlement, AALX, 839, 4/238, vol 2-5, NA

'Note: For my convenience I have used a typed extract of the 1951 Te Matai Investigation which was complied for the Maori Affairs Head Office file (MA 5/13/256). The pagination differs from that of the Minute Book. Te Matai block file, 20/27, LINZ-Napier

Te Matai Native Survey file, 7/602, LINZ HO, Wellington

Te Matai Special block file, MA 5/13/256, NA

Te Matai 'Summary of Events', J M McEwan, 14 May 1951, MA 5/13/236, NA

Primary Published

Appendices to the House of Representatives, Government Printer, Wellington, 1862-

Brixted, R B, 'Province of Hawke's Bay', 1889, ATL Map room, Ballara and Scott map collection, Waitangi Tribunal Library

Koch, A, 'Map of the Province of Hawke's Bay', April 1874, (AAFV 997 H22, NA)

New Zealand Gazette,'1867-

New Zealand Statutes, 1862-

Te Kahiti, 1867-

Terralink NZ Ltd (Terraview) - Digital Cadastral DataBase (DCDB)

Waitangi Tribunal Claims research

Alexander, D, 'Submission', 1997, document El, Wai 84 ROD

Ballara, H A and Scott, G, 'Kaweka', in 'Crown Purchases of Maori Land in Early Provincial Hawke's Bay', 1994, Wai 201 ROD, doc II ------'Ahuriri', 1994, document II, Wai 201 ROD

Boast, R, 'Mohaka-Waikare Confiscation: Consolidated Report, Volume 1: Mohaka-Waikare Blocks', 1996, document J28, Wai 201 ROD

Cowie, D, Hawke's Bay, Waitangi Tribunal, Rangahaua Whanui Series (working paper: first release), 1996

Moorsom, R, 'Raupatu, Restoration and Ancestral Rights: the Title to Tarawera, Tataraakina and Te Haroto - Main Report', Waitangi Tribunal, 1998 ----- 'Raupatu, Restoration and Ancestral Rights: the Title to Tarawera, Tataraakina and Te Haroto - Supplementary Report, Waitangi Tribunal, 1998

117 O'Malley, V, 'The Ahuriri Purchase', 1995, document JlO, Wai 201 ROD

Parsons, P, 'The Ahuriri Block: Maori Customary Interests', May 1997, Document R8, Wai 201 ROD

Phillipson, G, 'The Native Land Court and Direct Private Purchase, 1865-1873', extract from Crown Congress Joint Working Party, 'Historical report on the Ngati Kahungunu Rohe', 1993

Pickens, K, 'Surveys', in Ward, National Overview, vol II, Waitangi Tribunal, Rangahaua Whanui Series, 1997

Roberts, G, 'A Land History ofWharerangiand Puketitiri Reserves, Hawke's Bay', Waitangi Tribunal, 1996, document M 1, Wai 201 ROD

Ward, A, National Overview, vol II, Waitangi Tribunal, Rangahaua Whanui Series, 1997

Secondary Sources -

Belich, J, Making Peoples: A History oj the New Zealanders From Polynesian Settlement to the end of the Nineteenth Century, Penguin Books, Auckland, 1996

Binney, J, Redemption Songs: A life oj Te !Cooti Arikirangi Te Turuki, Auckland, 1995, Aucldand University Press with Bridget Williams Books

Department of Conservation, 'Conservation Management Strategy for Hawke's Bay Conservancy 1994-2004', Vol II, Department of Conservation, Napier, 1994

Spiller, Prof., Butterworths New Zealand Law Dictionary, 4th edition, Wellington, Butterworths of New Zealand Ltd, 1995

Stone, R, 'Whitaker, Frederick', entry Wl7,DictionaryofNew Zealand Biography, vol 1 --- 'Russell, Thomas', entry R20, in Dictionary oj New Zealand Biography, vol 1

Waitangi Tribunal, Te Whanganui-a-Orotu Report 1995, Wellington, Brooker's Ltd, 1995

ll8 APPENDICES

Appendix I Research Commission of Dean Cowie

Appendix II Statements of Claim for Wai 216 RECEIVED CLADMIN 21-/ f( /-tt ty)v 1...... - ..

Waj 216

WAITANGI TRIBUNAL

CONCERNING the Treaty of Waitangi Act 1975

AND A claim brought by Nigel Baker and the Te Matai Lands Trust

DIRECTION COMMISSIONING RESEARCH

I Pursuant to clause 5A(l) of the second schedule of the Treaty ofWaitangi Act 1975, the Tribunal commissions Dean Cowie, a member of-staff, to provide on behalf of the Tribunal a report which:

(a) places the Pakaututu and Te Matai blocks within the context of the history of the Mohaka-W aikare confiscation;

(b) addresses the issue of whether the area was confiscated or not;.

( c) .examines all relevant official sources surrounding the title investigation and purchase ofPakaututu;

(d) examines all relevant official sources surrounding the Crown's attempts to purchase Te Matai land;

(e) provides copies of relevant plans and maps of the area, and produces maps which provide explanation of key events in the history of the two areas;

(f) Examines issues surrounding any compulsory acquisitions by the Crown ofTe Matai land.

2 The Tribunal notes that this commission replaces in part an earlier commission recorded as document 3.1 of the Wai 216 Record of Proceedings.

3 The commission ends on 3 November 1997 at which time one copy of the report will be filed in unbound form. 2

4 The report may be received as evidence and the writer of the report may be cross-examined on the information contained in it.

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

Claimants Counsel for Claimants Counsel in the Mohaka lei Ahuriri claims inquiry Solicitor General, Crown Law Office Director, Office of Treaty Settlements . Secretary, Crown Fo~estry Rental Trust Director, Te Puni Kokiri

Dated at Gisbome, this ;)'s I- day of August 1997

~\L-----WWlsaac Presiding Officer W AITANGI TRIBUNAL 4f 1 . \ Private Bag, NAPIER. DUPLICATE

Phone: 8351614. .~ ....# ..... - ;1 RECEIVED 22 January 1991. Wa~ogl~~ Division 13 JPJI' f!Jf , , The Registrar, Dept. of Justice Waitangi Tribunal, 1 WELLINGTON C/- Tribunals Division, t Justice Department, PFivate Bag ,(>.o.e.:x,X ID-~O~) Post Centre, WELLINGTON.

Ki Nga Kaiwhakahaere 0 Te Taraipunara I Waitangi, Tena Koutou, Tena Koutou, Tena Tatou Katoa,

Tena Koe,

RE: TE MATAI BLOCKS No's 1 & 2 - NORTHERN HAWKES BAY. I We the Trustees of the above described lands, being an Incorporated Trust under Section 438 Maori Affairs Act 1953, make claim on behalf of the beneficiaries, to the Tribunal, having been prejudicially affected by Acts of legislation contrary to the principles of Section 6 of the Treaty of Waitangi Act 1975.

Chairman: Moari Karaitiana R.D.2., (Retired) Rangitaiki. Secretary: Carol Rehua 271 Taharepa Road, (Social Worker) Taupo. Trustee: Nigel Baker Private Bag, (Contractor) Napier. Trustee: Albert Eden 38 Rata Street, (Watersider) Tarada1e, Napier. Trustee: Faith-Walker Flaxmere, Hastings.

CLAIM

1. We state to have suffered exclusion from lands confiscated during the 1880 period. 2. A total land mass area of 7606 acres known as the Pakaututu block was confiscated, which was once part of Te Matai Lands. 3. Currently Te Matai is without legal right of way and an application is before the Maori Land Cqprt, Takitimu district for consideration. 4. Pursuant to the confiscation, Te M&tai was home to the descendants of Kurapoto. 5. The Claimants are affiliated to the tribe of Tutemohuta.

/ •.. 2 22.1.91 -2-

DIRECTIVES

We the Claimants apply to the Maori Land information office for assistance to investigate the claim.

REFERENCE

1. Certificate of Title Vol.72 Folio 160.

2. Description of confiscated area.

Kia Ora Tatau Katoa,

Moari Karaitiana

Carol Rehua

Nigel Baker

Albert Eden

Faith Walker L.nd TranGfer(Compu16crr ?c(ictr"lI~n or Till"",) ~ct 1924.

Deed" Index • IVOL 12.' Fol.., 224 Tr.,..!« No. R clcrctu:C : . #fl,p/teal;"- No. C-Tl2

OrJcr f.,.. NIO No.

CERTlFICATE OF TITLE UNDER LAND TRANSFER ACT. I,naIK!) AS l'Q PAll~l£ A; ·l'l~

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· .... __ ..._-_.--. TUNNICLIFFE WALTERS WILLIAMS

BARRISTERS & SOLICITORS

PARTNERS Bruce Eynon Tunnicliffe LLB John Muru Walters BA LLB 16 January 1996 .. Joseph Victor Williams LLB .> LLM (Hons) (British Columbia)

The Registrar ASSOCIATE Waitangi Tribunal Laurence Grant Powell LLB (Hons) PO Box 5022 WELLINGTON . "'~., OFFICIAL Attention: Claims AdministratiorilDean Cowie :4 I (r, ) lAJ.:-.l';' ~i(,

Dear Sir .:%1 ..Uk) " ~0q,\ ~ \ Wai 216 Amendment to statement of claim

On the instructions of our clients, the Te Matai Lands Trust (Wai 216), we have been asked to write and lodge the following amendment to the 22 January 1991 statement of claim and submit a research proposal in support of this amendment.

We are informed that the research proposal arises out of an expectation that the claim was be researched as part of a Tribunal funded research project (the 'Ballara' report) but this has not been the case. We understand this point has already been discussed with your research staff. The Te Matai Lands Trust asks that you:

1. Please note that Mr Moari Karaitiana is no longer chairman ofthe Te Matai Lands Trust. The current chairman is Mr Nigel Baker and the claim should be amended to reflect this.

2. The claim statement should also be amended to read:

We claim to have been prejudicially affected by the Crown by the following actions:

1. The wrongful confiscation ofTe Matai and Pakaututu blocks for alleged acts ofrebellion, despite the fact that the blocks lay outside the confiscation boundary, 2. The failure ofthe Crown to return Pakaututu block. 3. The sale by the Crown ofthe Pakaututu block to private interests, the result being the 'land locking' ofTe Matai 1 & 2 blocks. 4. The failure by the Crown to provide for access to the Te Matai blocks, 5. The requirement by the Crown that the owners meet Crown surveying costs. 6. The taking ofparts ofTe Matai No.2 block by the Crown (Department of Conservation) to provide access to DOC lands,

We claim that these actions are in breach ofthe principles of the Treaty ofWaitangi.

We further reserve the right to amend our claim at a later date if necessary.

Level 2, Fidelity Life Building. 272 Parnell Road. P.O, Box 37-661. Parnell. Auckland. New Zealand. Telephone (09) 377 7774. Facsimile (09) 307 1280. OX CP315 34 We seek the assistance ofthe Tribunal in researching the background to our claim by either:

1. The commissioning ofa Tribunal researcher to undertake the investigation ofthis claim, or;

2. The commissioning ofour own researcher to undertake the investigation.

In terms ofthe latter proposal, we nominate Mr Buddy Mikaere to undertake this work We estimate that a" sum of$20,000 (excl. of GST), being $15,000fees and $5,000 travel and accommodation, should be adequate to undertake the work within a six month timeframe.

Ifacceptable, the researcher will be required to prepare a report which will:

1. Describe the customary and traditional history associated with this area. 2. Set out the historical background to the claim. 3. Identify issues which are breaches ofthe Treaty of Waitangi. 4. Be accompanied by a supporting document bank

Provided you agree, we suggest that the funding be released to the Trust in three stages: half on commissioning ofthe research; one quarter at commission mid-point, contingent on the provision ofa satisfactory progress report; and the remainder on completion ofthe work This letter should be read in conjunction with our letter to Mr Dean Cowie of 10 November 1995.

We look forward to hearing from you.

Would you please respond direct to the Te Matai Lands Trust, howev~r, we would appreciate a copy of any such correspondence.

Yours faithfully

TUNNICLIFFE WALTERS WILLIAMS

~.~ Buddy Mikaere Project Manager cc: Nigel Baker, Chairperson, Te Matai Lands Trust. 100~~/~t! I I II : j i I ! ", , !

, 1 ! , I I i CLA\M I I ~I'I (ti; . J)1.A{1 LI ,I . 'I i CA7b WAI ~.\l{c?,,, ...... , I. GFFICIAL ~ i,':U (10 W~,' ;(..c \, 8 Janua'ry 1997

i The Registrar

i 1 \ WEijitan i1j"bunal ' , PO!B()150~' I ,I I II' WELLINGTO~ I \ ! : ,I ! I I ;! I ., 'I I ! i I I • I 'I f' i i_: Dear Sir I I I . '. t WAI 216 - TE MAT I BLOCKS i cLAIM i ;i .I: I .' i 't , 1

Tena kOe. We are ins cted by our client, MrNigel Baker. to seekithe insertion otani:; amendment to the stat ment of olaim for Wai 216 as follotys: '

. . I \ ,1 ', We further sub 't that the Crown has breached Article 2 ofthe Treaty by ~ , , ~lowing the ercial exploitation of the adjacent -Mohaka River by , 'I'. '1:- commercialee' g and rafting interests. We believe that thiS' is a breach of rangatiratang and our kaitiakitan~a obligations over th~ river.

ent of claim and advise in due course. .

Yours faithfully ,

'" TUNNlCLIFFE WA TERS WILLIAMS . ~~.

BUDDY MIKAERE

PROJECT DIRECT R I ' l' i , , !- " CC: Nigel Baker .1 , I 'I' i

I . ~ , ',I, ;" , .

I ;,' ,','I 'I' Ii l. ' 4",,1 I. Wict<.OOc .lld, New ~I,,"d, ~ I'! ,". < ,. ":1 11 ephonc (09-) 377 777'1. fiK~imlk (09) 307 1260. OX CP315H. . »1 I ~ .,! ' ,I' i J~... ~: I ,I ," ; :1: 1;' ,~