WAI 45
THE MURIWHENUA SOUTH AND AHIPARA PURCHASES
A Report to the Waitangi Tribunal
by R.P. Boast MURIWHENUA SOUTH AND AHIPARA PURCHASES
Introductory letter to Waitangi Tribunal i
l. INTRODUCTION 1
2. OLD LAND CLAIMS BLOCKS 3
3 . THE SALE OF MURIWHENUA SOUTH 7
4. THE BOUNDARIES OF THE MURIWHENUA SOUTH PURCHASE 16
A. Introduction 16
B. The Northern Boundary 17
C. The Western Boundary 26
D. The Southern Boundary 27
E. The East~rn Boundary 28
5. THE PURCHASE OF THE AHIPARA BLOCK 30 6 . LAKE TANGONGE 34 10 March 1992
Waitangi Tribunal Division Department of Justice WELLINGTON
YOUR REF.: Mr Rigby
Dear Sir
REPORT ON MURIWHENUAjAHIPARA PURCHASES
When this report was filed with the Waitangi Tribunal in July last year, I had not had an opportunity to proofread it or to make a number of alterations and corrections I had intended to make. This meant that the report was embarrassingly full of typographical errors, and the text of a number of paragraphs had to be departed from when the report was read out in evidence at the Muriwhenua Lands July hearing.
I have now re-typed the entire report myself, and wish this to be formally entered on the record of documents as the final text of my report. Mostly it has been a correction of the original draft, but a number of sections have been re-written. I draw particular attention to paras. 4.17 and 5.4, which deal with the indications of the coastal boundaries on the Muriwhenua South and Ahipara block plans. Here the text conforms with my comments on the plans when I gave my oral evidence. At the time when the first draft was prepared, the copies of the plans I had to work with did not describe the coastal boundaries very clearly; clearer copies of the plans became available to me later.
I have not altered the text in any other significant respect, and I have not attempted to modify it as a response to questions asked of me by counselor the Tribunal members during the course of the hearing. The text is essentially what I would have wished to file in the first place.
R P Boast IN THE WAITANGI TRIBUNAL WAI 45
IN THE HATTER of the Treaty of Waitangi Act 1975
IN THE HATTER of claims by THE HON. HATIU RATA and others
RBPORTOHMURIIHBIUASOUTH,NfD MIPMA PURCHMIS
1 . INTRODUCTION
1.1 THIS report was commissioned after the March 1991 hearing of this Tribunal. That hearing was concerned with Ninety Hile Beach (Te Wharo Oneroa a Tohe). In the evidence I gave at that hearing I pointed out that although the Court of Appeal in In re Ninety Mile Beach (1963] NZLR 461 placed primary weight on the supposition that investigation of title by the Native Land Court would extinguish title to the foreshore, this - even supposing that it was correct - had little relevance to the legal history of Ninety Hile Beach. Only two of the principal blocks of the abutting on the beach, the Parengarenga and Ahipara Papatipu blocks, were ever investigated by the Native Land Court (the MB references are (1896) 17 Northern HB 67-215, 192-3 (Ooc 05, doc 16, 385-531), and (1909) 43 Northern HB 185, [Ooc 05, doc 19, 637-700). These two blocks are at the northern and southern ends of Ninety Hile-Beach/Te Wharo Oneroa a Tohe. In between lie the Huriwhenua South and Ahipara blocks as well as two Old Lands claims purchases, Otaki and Oklore.
1.2. One purpose of this report being commissioned was simply to clarify the position regarding the history and boundaries of these blocks as much as possible. The other purpose was to discover what, if any, light this material might throw on the question of the parties' intentions concerning the foreshore. A few points should be made about the latter aspiration. The surviving documentary evidence is actually quite sparse. Even if it were comprehensive, it still would not account for the whole story. Just as relevant would be the historical evidence about the behaviour of the parties after the transactions. Oral evidence as to Maori cultural aspects is important too. The second preliminary point I would emphasise is that the underlying issues are quite fundamental and are the cause of much disagreement. The principal underlying issue is the mana moana/manawhenua question. In Maori eyes, were property interests in the sea and its resources connected with ownership of coastal land or was the foreshore simply perceived as a separate resource? What assumptions could have governed a "sale" of a coastal block in the eyes of Maori vendors in the 1850s? Although I can raise the issue I do not feel qualified or able to fully resolve it - to do so requires expertise in the disciplines of Maori stUdies and anthropology as much as law and history. -2-
1.3. Since commencing research on this report I have learned that there al has been a sustained enquiry into an aspect of the boundaries of the Muriwhenua South block. This was concerned not with the problematic southwest corner of the block but with its ~~~~~ corner, bounding on the Parengarenga block and t shore of Great Exhibition at a point known as Wairahi (named after the Wairahi stream which drains the Wairahi swamp and Lake Taeore, and into which the Ngataenga or Ngatahinga Stream flows). On this boundary the documentation happens to be quite full and we are fortunate to have a detailed report by Judge ck dated 27 October 1933 [Annexure 4(c»). This report has some useful information relative to the sale of the Muriwhenua South Block; but although interesting in itself the Wairahi investigation does not assist with foreshore questions.
1.4. The remainder of this report is divided into the following sections:
2.0 Old Land Claims blocks;
3.0 The sa of the Muriwhenua South block;
4.0 The boundaries of the Muriwhenua South purchase: A. Introduction B. The northern boundary C. The western boundary D. The southern boundary E. The eastern boundary;
5.0 The purchase of the Ahipara block;
6.0 Lake Tangonge;
7.0 Te Wharo Oneroa a Tohe - a supplementary note.
2.1. The two OLC blocks which have a frontage on the West Coast are the Okiore and Otaki blocks. The Okiore transaction of 12 October 1839 involved Nopera Panakareao and Samuel H Ford. The Otaki transaction involved Henry Southee and was concluded between Southee and Panakareao on 17 December 1839. [For location, see Annexure 1. The two deeds are reprinted in Turton1s Purchases, vol i, 39 and 54-55, in Wai-45 Document Bank B20, Okiore 234-5; Otaki 245-6. The OLC references are 159, 300E; 875-7, 364- B.l
2.2. boundaries of the Okiore transaction are described (using the text printed in Turton) as follows:-
Lo! the boundaries these. That of the East commences on the -3-
the boundary of Mr Matthews, this in keeping with the Pa Tututarakihi beginning at the Water of Okiore, otherwise Wangatane, along the side of which it goes on till it joins the boundary of Richard Matthews at Te Awanui, to the landing place also of the Church Missionaries. Lo! Te Kokopu is not gone; let that place be reserved for its people. The projecting point of land beyond the village in size ten acres is enclosed within. Lo! thence proceed onward to Te Waiakainga, crossing over proceed even to Te Karamu on the Western Coast at Te Tupehau the endi Lo! this is the boundary to the South. Lol proceed onwards by Te Tupehau unto Te Taupururua. Lo! this is that of the Western boundary. Breaking off there proceed hitherwards unto the inner water Te Tangonge, arriving at (or by) Waihou until you join the water of Kaitaia thence running on one side of Ohotu even unto Waiokai to that part of the boundary of Mr Matthews, proceeding thence straight on the bearing of Tututarakihi the beginning the boundary. This is the boundary of the South. Lo! for the Church missionaries and these others the cart road to Te Awanui according to its breadth; so also fifty yards square as a landing place for the things of the Church missionaries. Lo! the Natives are to be permitted to cultivate along the banks of the Awanui river from one generation to another. [text in Wai-45 Document Bank, B32, 235]
The Maori xt reads:
Na, ko nga kaha enei. Ko to te Ita ka timata i te kaha 0 to te Matiu ko ia ia kei te tikanga 0 te Pa 0 Tututarakihi e timata ana i te Wai 0 Okiore ara Wangatane, ka rere tahatahi tonu a ka tutaki ki to Reihana Matiu kaha i te Awanui, ko to te Hahi Mihanere taurangi hoki. Na, ko te Kokopu kihai riro, Kia tapu taua wahi mo ono tangata. Engari ko te pito 0 te kokorutanga i waho atu 0 te Pa kotahi tekau Ekara te nui i kohia ki roto. Na ka rere tonu ano i konei tae noa ki Waikainga. Ka witi atu ka rere a te Karamu ra ano i te tuaauru kei te Tupehau te mutunga maio Na , ko te kaha ki te Hauta tenei. Na , ka ahu tonu atu ano ra te Tupehau tae noa ki te Taupururua. Na , ko to te Weta kaha tenei. Ka wawati i reira, ka ahu mai ki te Wai wakaroto 0 te Tangonge. Ka puta ki te Waihou , hono noa ki te wai nui 0 Kaitaia rere tonu atu tahatahi 0 Ohotu tae noa ki Waiokai ki te kaha 0 te Matiu ka ahu atu tika tonu ki te ritenga 0 Tututaraklhl te timatanga 0 kaha. Ko te kaha 0 te Hauta tenei. Na, mo te Hahi Mihanere mo era atu te Ara Kata ki te Awanui ki tona wanui ano wihoki e rima tekau rara kuara he tauranga mo nga mea 0 te Hahi Mihanere. Na , me noho tonu nga tangata maori i ona wahi ki taha 0 te Wainui hei mahinga moana i te tetahi wakatupurangi ke tetahi. [see Wai-45 Document Bank B32,234-5]
2.3. The Otaki block (Southee transaction) lies immediately to the north of Okiore. Its boundaries are described in the Otaki deed as follows: -4-
The boundaries are these: on the South East and runs on to Te Karamu Mr Ford's boundary: the Wes t is the sea beach till it reaches Waimoho: boundary is Kaikino and runs along in the river as far as : the boundary on the East is the large river of Kaitaia as far as Waikainga the commencement of the boundary (sis [text in 45 B20, 24
The Maori t states:
Ko te a 0 taua wenua ko Otaki Ko nga kaha anei ko te kaha ki te Hauta Ita kel te Waiakalnga ka rere atu a te Karamu, ko te kaha ia 0 te Poari: ko te kaha ki te Weta ka rere tonu ra te tupehau 0 te moana a tae noa ki te WaimohQ.: ko te kaha ki te Nota ko Kaikino a ka rere tonu i roto 1 te awa puta noa ki Kahlpaka: ko te kaha ke te Ita ka rere toru i roto i te Awanu! 0 Kaitaia puta noa tae noa ki Waiakainga te timatanga o te kaha. [text in Wai--45 Document Bank, B20, 245]
[Please note that the two spellings of the various known as or "Wai is not an error in my transcription.]
2.4. Attempting to t the boundaries of these purchases on the modern cadastral maps is an exercise simultaneously frustrat and instructive. It is frustrating because few of the old landmark places are now on the modern topographical maps. It is not possible, for , to be certain where "Waimoho" is - and this is an Important reference point, as it is the north-west corner of Otaki as well as the extreme south-west corner of the Muriwhenua South block. The north-west corner of the Ahipara block is also at a place Imown as "Waimoho", but the location of this (presumably Heren place is also uncertain. Some of the modern place names which are identified on the official maps are readily recognisable, but not many. The pa named Tututarakihl referred to in the Oklore deed is presumably the hill now known as Tatarakihi to the west of SH1 about -way between Kaitaia and Awanui. atane is now reflected In the Wangatane spillway, a diversion cut running from the Awanui ,just north of taia and draining into the Rangaunu harbour. One name which does survive is that of "Tangonge" and mention of this brings me to my second observation - how instructive it it is to att to plot out the boundaries of the old blocks on the modern maps. For this reveals just how dramatically the landscape bas been d. Save for name of the spillway the tel' of Oldore, otherwise tane" is no r to be found. Most dramat the "inner water Te Tangonge", forme a large permanent lake to the north of to, is commemorated in the drain. Lal{e was a boundary both of OIdore and the a (1859 Cl:'own pu chas bu t it has now more or les s vanished. The drainage project led to a or enqu the Native Land Court in the 19318 relat to compensation for affection to Maori and there was sepal'at a sequence of lit Hon concek'ning owners of t lake bed. As the lake was one of the boundaries of the a (1859 crown purchas block -5-
I will be discussing the Tangogne case in some detail in this report.
2.5. DOSLI has prepared a useful map (Annexure 1) which sets out the respective positions of the Ahipara (l859 crown purchase) block, Okiore, Otaki, and the southern limites of the Huriwhenua South blocks. [Annexure 1. J It seems to me that this map makes good sense of the respective configurations and positions of these blocks, the only difficulty being that it has to be assumed that there are two quite different places known as "Waimoho".
2.6. It is not proposed to address in any detail issues concerning surplus lands and old land claims in this report, as this was not the purpose (as I understand it) of this commission and in any event these matters will be traversed in Hr Aleman's report and in other reports yet to be presented to this tribunal. The rather tedious process of investigation and re-investigation of these transactions by Godfrey and Bell throws little light on the question of foreshore ownership. The only matter that seems to even indirecetly bear on this is the question of the so-called "sandhills reserve". This is mentioned fleetingly in the OLC hearings before Commissioner Bell in 1858 (OLC records 1858, OLC 5/34). We are informed that:-
a lengthy discussion took place between the Court, Hr Hatthews as an agent of Hr Ford and the natives with respect to the exterior survey of the boundaries lately made by Hr Clarke -they desiring to cut off the whole block of sand hills (emphasis added).
In other words, it was intended to exclude a strip of reserve down the coastal boundary of this block. Heremaia and others stated their concerns, but after receiving an explanation from the commisisoner "the whole question was satisfactorily settled". It was agreed there would be "a further reserve within the Boundaries if asked to do so and recommended by Mr White".
2.6. Some further information concerning this sandhills area in Okiore is found on the OLe file dealing with the Southee/Haxwell Otaki transaction. Maxwell caused real difficulties in having the Otaki block surveyed himself (without discussing it with local Haori) and in making a great deal of fuss about Haori removing kauri gum from the area. In the course of reporting on these matters to Bell White remarks:-
Hr Haxwell employed Hr Clarke first I believe to survey the quantity he was entitled to, then with a view of getting additional land by an easy process, connected Hr Clarke"s Survey of Hr Ford's claim (Okiore) extending to the West Coast with Hr Campbell's survey of the land lately purchased from the Natives (i.e. the Huriwhenua South purchase), also extending to the West Coast by connecting these two surveys by -6-
a line along the West Coast. Busby's son in his evidence on the the part of his father excluded the sand hills from Dr Ford's claim naming the point to which the survey should should come and Mr Maxwell must have perfectly understood that the reserve by "Busby" (Puhipi] extended along the coast, excluding (including?] his own claim and acted to say the least, imprudently, in carrying out the survey without the knowledge of the Natives who are much exasperated about it.
2.7. The desire to safeguard this "sandhills" area never came to anything. Commissioner Bell did write to Ford on 30 June 1860 concerning reserves but this concerned the reserves along the Awanui river. By this time, then, Puhipi and the others were no lomger pressing for the sandhiils area to be reserved. The available sources do not diclose the reason for that. In his final report on the Ford claim Commissioner Bell writes:-
At first the Natives seemed disinclined to admit the survey made by Mr Ford, but after some discussion it was agreed that the survey should be admitted, and if the natives required a further reserve beyond the land in their occupation which had been left out of the survey, they were to apply for the same through the resident Magistrate of the district. No such application has however been made.
The matter was never taken any further. -1-
3.1 Aupouri traditions relating to the background to the sale of Murlwhenua South were given by Eru Ihaka to the Native Land Court in 1933 in the course of the investigation by Judge HcCormick into the Wairahi (NW) boundary of Huriwhenua South. At (1933) 65 Northern HB 22 Eru Ihaka says:-
In 1851 a whaling station [was situated] three miles south of Murimotu (North Cape). Paraone Ngaruhe and Wiremu te Hahia of Aupouri were leaders of the two ••• [illegible). They quarrelled over a whaling incident. To be revenged on Paraone Wiremu te Mahia decided to sell land. He obtained consent of Rarawa and Aupouri to sell i.e. the Ahipara section of them. Hr White SH went on to the land with a surveyor and fixed boundaries. They started at Waimoho, thence to Wharemaru, Takahou etc.
A few more crumbs of information can be found in Eru Ihaka's response to cross-examination in the same case:-(ibid, 25)
Paraone Ngaruhe was not one of the sellers [i.e. of Huriwhenua South]. I did not know he signed the Deed of Sale. I could not say how many were in the Party with Hr White. Nopera Panakareao was one of them. Te Kapa was another. I heard there was another Pakeha with White, the Surveyor. I cannot say which was done first, the Surveyor the Deed.
Eru Ihaka knew at least one of the original signatories, for in the same case he pOints out that when he went to discuss the matter of the northeastern boundary of the Huriwhenua South purchase with the Commissioner of Crown Lands at Auckland (in or about 1895) one of the signatories, Te Kapa, was still alive at the time.
3.2. Other witnesses in the Wairahi case backed up Eru Ihaka's account of the circumstances surrounding the sale of the Huriwhenua South block. Pako Hita said:- (ibid, 28)
I have heard Eru Ihaka's story of the history. I also know that from my elders.
Hohepa Kanara said:- (ibid, 31)
I heard Eru's history. It is correct.
But Judge McCormick in his report (27 October 1933) says:
The principal witness for the natives Eru Ihaka stated that the sale to the Crown was brought about owing to a dispute between two two Aupouri chiefs Paraone Ngaruhe and Wiremu te Mahia arising out of an [sic] whaling incident. The latter then decided to sell land and obtained the support of Rarawa and that section of Aupouri which lived at Ahipara. This -8-
part of the story appears to me to be discounted by the fact that while Paraone Ngaruhe's name appears on the Deed of Sale as one of the sellers, that of Wiremu te Mahia does not.
This fact, of course, may not necessarily mean that Eru Ihaka's explanation is incorrect. Paraone may have felt obliged to agree for one reason or another, while Wiremu te Mahia might have chosen to keep himself in the background. Perhaps it is possible that Eru Ihaka mixed the two of them up. At least it can be said that there is a strong Aupouri tradition that rivalry between the two leading chiefs in 1858 was an instrumental factor in the sale of the Muriwhenua South block.
3.3. Little was said about Muriwhenua South in the 1957 investigation of title by the Maori Land Court concerning Te Wharo Oneroa a Tohe. The one reference to the sale came from Mutu Kapa who said:-
I know of the Muriwhenua sale. It was too cheap - ~1999. My grandfather was one of those that sold - far too cheap. I know the Chiefs who signed the Deed - Puhipi - married Mere Ngaroto who was queen of Te Aupouri. An important person from Aupouri married an important person from Te Rarawa (i.e. Puhipi). Through this marriage Puhipi obtained the right to consent to sell. Te Kapa - from Te Aupouri my grand-father Mumu - Both from Te Aupouri and Te Rarawa.
This Puhipi is obviously Puhipi Te Ripi (or Pipi), an important Rarawa chief. He and Te Waka (Rangaunu Te Waka, also a Rarawa chief) were clearly the key figures in the sale as it was they who witnessed the receipt for the ~199 balance and in which they are described as "us two the principal chiefs of this sale of land" - kia mana tokorua, ki nga tino Kaumatua 0 roto 0 tenei tukunga whenua. Puhlpi Te Ripi, who seems to have lived mostly at Ahipara, was clearly an influential and sophisticated person. He, along with Rangaunu Te Waka were the two principal signatories to the Ahipara Deed of 1859 (Document Bank, 1, 172). Puhipi te Ripi, who became an Assessor for the Native Land Court, was the applicant in relation to the early Native Land Court adjudication into the Pukepoto Block (see (1865) 1 Northern MB 7 where this block is vested solely in Puhipi Te Ripi) and - along with Te Waka Rangaunu - for Te Awa Patiki, also at Ahipara (also (1865) 1 Northern MB 7).
3.4. The only survlvlng correspondence relating to the Muriwhenua South purchase is to be found in 1861 AJHR C-1, Reports of the Land Purchase Department Relative to the Extinguishment of Native Title (DB, B29). This report prints some of the correspondence between HT Kemp, District Land Purchase Commissioner, and the Chief Commissioner, McLean. The first letter in the sequence is dated -9-
1~ June 1857. This is a letter from District Commissioner HT Kemp to McLean dated 1~ June 1857. [DB B2~ No. 35] In this letter Kemp advises of his return from a journey around the district in the company of White. He states that "progress" was made towards the "extinguishment of Native title over a considerable portion of available country within the district". The blocks that he was "in treaty" for where Muriwhenua (South) (estimated by Kemp to contain about 25,~~~ acres, far smaller than what it actually contained, or at least what was in the end purchased), Wharemaru and Otengi. Kemp writes:-
The boundaries of these blocks have already been carefully traversed, and were pointed out to us by the leading chiefs of the district, including Busby, Walker, King, Bobart, Clarke, and others, who are the principal sellers of the land. The negotiations have been conducted in the most public manner, and every facility given to claimants, or other interested persons, to appear.
A few comments need to be made. One wonders how "careful" the traverse of the boundaries could have been when Kemp clearly has no awareness at all of the true size of the block (supposing that there is at least some correlation between what was actually to be described in the deed and what had been the subject of negotiations). The total area of Muriwhenua South is actually 86,885 acres. The Deed itself does not specify any acreage. The chief "Busby" is of course none other than Puhipi te Ripi; and presumably "Walker" is Te Waka Rangaunu, the two influential Rarawa chiefs from Ahipara. Who King, "Bobart" and Clarke might be is hard to say. None of them appear to be Paraone Ngaruhe, leading chief of Te Aupouri in those days (in 1933 Eru Ihaka was emphatic that "Paraone Ngaruhe was the ariki of Te Aupouri when the sale took place"- see (1933) 65 Northern MB 26). It was Paraone who was took the step of refusing to allow the survey party to cross the Wairahi stream near Te Kao.
3.5 In the same letter Kemp describes the topography of the area as follows:-
The land comprised within these blocks is open and undulating; on the western shore a ridge of sand hills prevails, but on the eastern side soil of a good description. The beautiful harbour of Houhora, or Mount Campbell [sic - now spelled as "Camel"], nearly central, affords easy communication, and makes it all times accessible. The land in its present state is well adapted for sheep farming.
3.6. Four days later, on 14 June, Kemp wrote to McLean again. (This letter is not in the printed correspondence in the AJHR but was found in the McLean papers, ATL). It reads:- -1~-
Bay of Islands 14 June 1857
My dear McLean
I forwarded a few days since my official Report of an Expedition to the Northward, during which I was accompanied by White; - We calculate that the quantity of land to come in treaty for, cannot be far short of 4~,~~~ acres [this is still underestimating the size of the block by about one half]; I have said in my Report, 3~,~~~: It is better to be under, rather than above the mark:
I was enabled during the trip to render White some little assistance in one or two rather delicate cases: there is one at Oruru which still has to be finally arranged, and upon which I have at White's behest written to you officially; at the same time I do not like going out of my proper sphere.
The Surveys of the Blocks offered, will I believe be done very cheaply, from the convenient lay of the land: - Puikawau was with us during the journey and brought old times at the North very vividly to my remembrance. I think he might be more firm in his bearing towards the Natives than he is.
There are several blocks talked of here, for sale to be taken in hand in detail.
Believe me, yours very sincerely
H T Kemp.
3.7. McLean wrote back on 26 Septmber 1857 authorising Kemp to proceed with the negotiations for Muriwhenua South and the other two blocks "on the most economical terms", and on 7 December Kemp wrote back to McLean advising that prices for the three blocks had been agreed: 11~~ pounds for Muriwhenua South, 4~~ pounds for Wharemaru and 23~ pounds for Otengi [the references are Document Bank, B2~, No 41 (McLean to Kemp) and 42 (Kemp to McLean)]. By now Kemp has grasped the true size of the blocks, being in receipt of the first plan (now called Plan 948A). Kemp gives the areas and prices as follows:
[Block] £Area(acres)] [Price(pounds) 1. Muriwhenua (South) 86,886 1,lBB 2 • Wharemaru, joining the above 13,555 Ship land within the boundaries, Stephenson's claim 2,482 3. Otengi 2,722 23B
Total: IB5,644 1,73B. -11- Kemp adds:- The plan, which is to be forwarded by first safe conveyance direct from Mangonui, will show the purchase in its compact form, and from its position and other advantages will make it, I trust, a valuable addition to the Crown Lands of the District. All the proceedings connected with the fixing of these sums have been carried out in the most public manner, on the spot, in which I enjoyed the benefit of Mr White's advice and assistance; and while the sums named are as economical as they could be expected, we both have every reason for believing that, if approved by His Excellency, they will give satisfaction to the whole of the Native sellers, and help to pave the way for future negotiations.
3.8 The next letter in the sequence is not printed in the official correspondence. It was sent by Kemp to McLean from Waimate on II October 1857 (the letter was also found in the McLean papers ATL - MS 32 folder 368): My dear McLean, By this Conveyance I forward to you the ascertained area of the Blocks we are negotiating for; also the cost of survey of the outline Boundaries; it has turned out much larger than I expected; and presents a respectable appearance, for this part of the Country: the amount for the surveys I trust you will kindly hasten, as the Campbells are a large family and need the money: - people are talking of forming sheep stations at once: I propose as soon as I have have finished this troublesome Maori Census affair, to travel down for the final settlement; I think it will be a reasonable, if not a cheap lot: I find from the Papers that you made a sweeping business of it at Ahuriri [this is referring to McLean's purchase of the Ahuriri block (Hawke's Bay)]. Is it true, that ~151,155 has been purchased by a party in Melbourne this year?
Believe me yours faithfully, H.T. Kemp 3.9 McLean authorised Kemp to conclude the purchases on 21 December 1857. In his reply to Kemp McLean took the opportunity to express concern about the unsatisfactorily vague nature of some of the deeds earlier prepared by Kemp. Kemp was told to make sure he used the standard form of deed used by other Land Purchase Commissioners. Kemp was also told to direct his immediate attention away from the remote far north to blocks such as Kawakawa "which are more immediately required for settlement".
3.15 The transaction was completed by Kemp on 3rd and 4th February 1858. Kemp wrote again to McLean on 9th February, forwarding copies of the deeds (the Plan, now Plan 948A, had already been forwarded). The deed itself for Muriwhenua south is in fairly standard format. The only unusual feature of the deed is that no plan is attached to it. As to coastal boundaries the text of the deed simply states that on the west the boundary "follows the western coast line" (ko te "Arai", ka whawhati, ka rere i te tai tuauru a, - tutuki no ki "Waimoho") • 3.11 Little provision of any sort is made for Reserves. The -12- only provision in the text of the Muriwhenua South deed relating to a reserve was a small area set aside for the Aupouri chief Paraone Ngaruhe at Houhora:-
te wahi mo Paraone ma 0 Houhora ki waho, kotahi rau (1~~)
... excluding the Native Reserve for Paraone, containing 1~~ acres at "Houhora".
This reserve is plainly on P 94 and 948. On the p it is shown as lying some distance up the "Houhora river", which is shown as running into the northern end of the harbour. The of the bour bears little re ion to its present-day shape as shown on the most recent topographical maps. The modern cadastral map identifies a block known as "Rarawa" PT 39.7516 which seems to be in the right place for Paraone's reserve. Unfortunately it has not been possible to check its cur status but this is a matter that can exp1ai to the tribunal later. Much more problematic is the status of the Houhora Peninsula. On P 948 the area south of the boundary line 3.13. These areas at Houhora as , there seems to have been no other effort to set aside reserves. The only other possible exception are the coastlines of the block which might indeed be considered "reserves" in a very general sense. The coastal boundaries will be discussed later in this report. 3.14. It should be apparent that information relating to this purchase is very fragmentary. The situation can be compared to a jigsaw with many pieces still missing. In my opinion it is doubtful that very much more could be found out about this , and so there is litt alternative but to simply put up with the many gaps in our k It is not possi to reconstruct in detail the process by which it was decided to sell the block. It does seem reasonably clear that ipi Te Ripi was a driving force behind the sale. He was a chief who had quickly to the new world of land purchase commissioners a investigations of tit by the Native Land Court (a complete nove in 1865, the year that Puhipi made his fi applications to the court sitting at Ahipara). How the obviously important role of Puhipi Te Ripi fits with the well- -13- attested Aupouri tradition of the dispute between Paraone Ngaruhe and Wiremu te Mahia is impossible to say when the documentation is so scanty. Paraone Ngaruhe, Wiremu te Mahia, Puhipi te Ripi and Te Waka Rangaunu are all obviously key players, but in precisely what way is unknown. From the government's perspective, an opportunity to purchase a large block at a low price came up, and the opportunity was taken. There does not appear much to distinguish this sale from other sales in the era of the land purchase commissioners. The circumstances are part of a pattern repeated endlessly with local variations around Muriwhenua and in other parts of the country - in the Wairarapa and Hawke's Bay for example - where similar processes were going on at roughly the same time. The main distinguishing factor with Muriwhenua South is the paucity of reserves in such a large block sold for such a comparatively low price. I would argue that these factors support an approach of reading the terms of the transaction as strictly as possible - and that if there is a doubt as to whether the foreshore ought to be included or not the benefit of the doubt ought not to be accorded to the Crown (which would accord with normal presumptions of interpretation in any event). 3.15. This sale (as does the Ahipara sale) raises, of course, the whole spectrum of broad questions concerning the pre-land court land purchase era. In terms of the total area of New Zealand considerably more land was alienated by direct sale before 1865 than was alienated either by confiscation or by the activities of the Native Land Court after 1865 - although the impact was uneven. The far North - with Auckland, Hawkes Bay, Wellington, Wairarapa and the South Island - was one of the main areas markedly affected by pre- land court direct purchases. To a degree it is not possible to make a judgment on an individual transaction such as the Muriwhenua South sale without making some kind of a judgment on the process as a whole. The wider context of the whole of the Crown's land purchase policies in the years before the establishment of the Native Land Court cannot simply be ignored. The difficulty is, however, that no real explanatory framework regarding this process has so far emerged in New Zealand historical writing. Waitangi Tribunal claims have led to the production of a huge volume of data and detailed studies of particular transactions, but a historiographical theory has so far failed to emerge. 3.16. There have, it is true, been some attempts to devise an explanatory framework. One of the most well-known attempts is Ann Parsonson"s essay "The Pursuit of Mana" published in the Oxford Hi'tc::n~y ·gfHew Zealand, 1981, ch. 6 pp 148-167. At p 149 Parsonson poses the question "why •• did Maoris of both islands offer so much land for sale"? For while it is true that the government was anxious to buy land at this time, it cannot be maintained that Maoris were forcibly parted form their land. On the contrary, there was so much enthusiasm for selling that Government was obliged to turn down offers for lack of funds. There was, of 4- course much more land than were se it was in general a is mar • (ibid). Parsonson's explanation is Maori vendors were e in "pursuit of mana":- Maoxis saw in sa a unique i fox vindicating theix c ims to of ing ovex one's rivals. in ions of Puhipi te of Muxiwhenua South? On the attacked at length in Puxsuit of Mana? A xe ienation by Maoris, 18 -1891" (~~~-.~:::.. vol. 91, 1982, p 519). While Parsonson emphasises continuity of Maori va and itudes, Bal emphasises change - ial dislocating effects of the European presence in New Zealand and the social economic conditions this led to. She iculaxly emphasises the xole of the economy: It was ix acceptance of, and icpation in the introduced economy that caught Maori chiefs into the pxocess of buying and selllng ... Duxing the flxst two of the colony, Maoris in some areas were relatively pxospexous, engaging in a lively txade in foodstuf with the various settlements. Their involvement with the new economy was such that, on the 1 ial axtifacts, theix lives been transformed by the 186 3.17 money economy and its consequences is somethi that has been ticularly emphasised Dr Rigby in his reports. Certainly Paxsonson and Ballaxa have advanced two completely contrasting models, both of which can to some degree to explain the sale of Huxiwhenua South. While "pursuit of mana" may have been a factor, no doubt a detailed social history of Muriwhenua in these years could vexy plausibly demonstxate the effects of a cash economy and the growing for cash and commoditiesit could purchase. Just what is really going here? It has to be admitted that the evidence is not full enough to al the question be definitively answered. There are, howevex, some matters which require emphaSis and which may throw light on the tion without necessarily resolvi it. The first is that regional differences within New Zealand, then as now, are of the utmost importance in attempting to understand any major social To understand land sales in Huriwhenua in years we need to unde the society economy. From Dr Ri is work Muri seems an area in which, despite a history of mostly Maori-European contact, prosper had proved to be elusive. In -Eur times the far North was one of the most ly populated parts of the country. The northern tribes were weal With colon ion and espec lly after the move -15- of the capital to Auckland and then Wellington, the far North quite quickly became an isolated and impoverished region. This cannot have been without effect as a factor in land sales. 3.18 A second factor is the length of time between the date of the transaction and the dates of the Crown grants to settlers as the blocks were cut up and sold. This process has not so far been investigated, and is beyond the scope of the present commission. All the indications are that the process was a slow one, and the large areas of the blocks, especially Muriwhenua South, remained unallocated Crown Land for many years. Disruption to local Maori life caused by the sale of Muriwhenua South would have been only a gradual process, and hardly noticeable at all while so much of the area remained unallocated Crown land. Maori simply carried on with their own, albeit changing, way of life in the region. This may have in any case reflected Maori perception of the nature of the original transaction. We do know that as late as the 1899s many Maori were still living on Muriwhenua South, either on the coast or digging gum. (The fact that Maori continued to live on the beach was traversed in my earlier Te Wharo Oneroa a Tohe/Ninety Mile beach report - and see para 4.19 below regarding Maori who continued to live on the block and take gum from it and grow cultivations on it.) This may explain why it was that difficulties began to emerge when the Crown, after a long period of inactivity, proceeded to more clearly define its interests from the late nineteenth century onwards - for example in '·clarifying" the boundary at the Wairahi stream. This act led to Maori concern, objection and eventually litigation. -16- ~ THI BOUNDARIES OF THI HURIWHENUA SOUTH PURCHASE A. Introduction 4.1 In the Introduction to this section I would like to make some comments about the sources for reconstructing the boundaries of this important purchase. Firstly there is, obviously, the Deed itself. Speaking in particular of the northern boundary, Judge MacCormick said in 1933 that the boundary descriptions in the Deed were "unusually easy to follow". (Report by Judge MacCormick, Muriwhenua South Block, 27 October 1933, p.l - see Annexures). This has not been my experience. The main difficulty is that the positions of a number of key boundary points cannot now be identified with any confidence (at least by me). 4.2 The second principal source are the various plans made of the block or parts of it at different times. The principal plans are: (a) Plan 948A. (1857) It should be noted that there is no plan attached to the original of the Muriwhenua South Deed in Deeds Registry. This plan was prepared before the signing of the Deed. The surveyors were the Messrs Campbell, who travelled around the block with Kemp and White in late 1857, as indicated in Kemp's letter to McLean dated 7 December 1857. (b) Plan 948 (1865) This was also prepared by the Campbells. I have not been able to locate any evidence as to why the block was re-surveyed in 1865. The Plans are essentially the same. Judge MacCormick's view was that Plan 948 "shows more detail but differs in no material respect from 948A".(ibid, 4) (c) Thompson's Survey (1894) In 1894 Mr T.K. Thompson, a staff surveyor with the Survey Department, re-surveyed the northern boundary of the block. The northern boundary was of course the dividing line between Crown Land to the south and Maori Freehold land to the north (Parengarenga Block). Thompson produced two plans, 7235A (blue) and 85088 (blue). The Plans are an important source of information in their own right, clarifying some aspects relating to boundaries which are not apparent in the text of the Deed. 4.3 The other main source of information about boundaries comes from hearings in the Land Court relating either to adjoining blocks of Maori freehold land or, in the case of the Wairahi area, about boundary disputes. -17- B. The Northern Boundar-y 4.4. The northern boundary is described in the Deed as follows:- ..• until it reaches Wairahi, this being the extremity of the boundary on the eastern side, it then takes a turn and proceeds in a westerly direction to Otumoroki from thence until it reaches the sea on the western coast at a well-known rocky point called Te Arai ... The three reference points referred to, the Wairahi stream, Otumoroki (now Ngatumoroki, although Otumoroki seems to be the correct name) and Te Arai can still be located easily on the modern topographical maps. Ironically it is this boundary of the block which has proved most troublesome and which has had to engage the attention of the judges of the Land Court on a number of occasions. 4.5. It is best to let the background to the problems be given by the leaders of Aupouri in their own words. In 1928 the Wairahi case first came before Judge Acheson in the Land Court: see (1928) 61 Northern MB 81. The case is noted in the Minute Book as "application by Registrar to determine ownership on a claim to proceeds of alienation". At (1928) 61 Northern MB 84 Eru Ihaka states:- In 1858 the Crown bought certain land from some people of the Aupouri. The land was really called the Waimoho Block. [Note: the name "Waimoho Block" is more usually given to the Ahipara, rather than the Muriwhenua South Block - but certainly both blocks intersect at Waimoho. Eru Ihaka is clearly referring to the sale of Muriwhenua South.] On arrival of the Crown representative (Mr White) and the surveyor at Wairahi, Paraone Ngaruhe and his supporters met them there, and told them that the sale must not extend north of there. Mr White agreed to the line being run as requested by Paraone. The line runs from Wairahi to Ngatihingi, there in a westerly direction to Ngatumoroki and so on. In 1895 we found that the line had not been run as arranged. So Hohepa Paraone and I saw Hone Heke MP at Auckland, but nothing~happened. So we wrote to Mr Houston MP who obtained for us a copy of the Deed of Sale [i.e. for Muriwhenua South]. Then three of us, Matiu Tupuni, Hone Wi Kaipo and I went to see the Commissioner of Crown lands at Auckland, and he asked us whether Waikawakawa was the same as Ngatumoroki. As a result of our visit we gained back about 2999 acres for Hapata Kaka and others, but we were not satisfied. We knew that the Crown was still in the wrong and we sent in petitions. -18- 4.6. In (1933) 65 Northern MB 22 Eru Ihaka gives this version of events:- [After the sale of Muriwhenua South] •.. Mr White went on to the land with a surveyor and fixed boundaries. They started at Waimoho, thence to Wharemaru, Takahonu etc. From Rarawa the line runs to Karepotae, Kahutae. There they met Para one and party. They told him that was the boundary, but Para one objected. After much discussion, his objection was agreed to. When he arrived at Te Kao, Paraone saw a flag put in by White. He pulled it up and when they arrived at a well-known crossing Paraone said that was the boundary between him and the sellers. White agreed. Paraone said the boundary was to run down the stream to its mouth, and up the stream to Ngatumoroki, thence to Rauraumaomao, Kaimana, Waimahuru. Nothing more happened between Para one and White. The natives made up their differences and went to live north of the boundary. I went on a deputation to Auckland. [~] In 1895 or 1896 I just knew that the boundary had gone to Waikawakawa. So I and others went to Auckland, Hone Wi Kaipo, Matiu Tupuni and others. We saw ..•...• Mueller. Next year Thompson came up to survey the land. I don't know who were with Thompson. It was not until 1898 that we found out that Thompson's survey was not correct. It should be explained that there were two problems with the north boundary. These were: (a) The true position of otumoroki otomoroki seems to have become confused with a point further north called Waikawakawa. This confusion is difficult to understand because otumoroki is a well known landmark. In Judge MacCormick's report at p. 6 he refers to Thompson's report to the effect that of those Maori who obstructed his survey none could say where otumoroki was - to which there is a marginal note (presumably by Judge Acheson): "Laughable. Ngatumoroki is a large Pa with terraces still plainly seen." And on a copy of Thompson's Report at Whangarei Acheson has underscored the same point and written: "This is quite absurd as otumoroki is an ancient pa with well defined terraces intimately known to practically all Aupouri tribesmen." [Whangarei, file M993, Wairahi Claim} The confusion of otumoroki with Waikawakawa by the Crown surveyors took the boundary considerably to the north than it should have been; although precisely where Waikawakawa is I do not know. -19- It appears that the Crown did in the end agree to move the boundary back further south when the boundary discrepancy became apparent. And, secondly, there is (b) The principal problem seems to have been the confusion over which stream ought to have been described as the" irahi". There are two possible candidates for this. One is the earn which drains the area marked on the modern tral maps as the the "Wairahi swamp" which extends virtually to Te Kao. This seems to have formed the northern boundary after Thompson's survey in 1894. But according to all witnesses in the various proceedings in the Land Court the proper name for this stream is the Waiopahau. Eru Ihaka and others were adamant in insisting that the "Wairahi" was the main, southern stream over which the road crossed (still shown on the modern topographical map as the "Ngataenga" (correct Ngatahinga according to Eru Ihaka). The position of the Ngatahinga is quite different. 4.7 Although the first matter was resolved promptly enough, the second, unfortunately, was not. By the time it reached the Native Land Court in 1928 the issue was al a longstanding grievance. The Crown had by then indicated its willingness to settle the matter a the question of choosing representatives to negotiate with the Crown was, following a reque from the Native Department and from the Lands Department, referred the Registrar to Judge Acheson. A hearing took place in 1928, although - as Judge Acheson was careful to point out - the Land Court had no jurisdiction as the area was technically Crown Land. These proceedings (later to be described as "informal") do reveal some important information about the underlying subs ive isses. Matiu Tupuni :- [( 29) 61 Northern MB 2661 I claim that a number of the people at Te Kao are the ne of kin of people who were actually living at Wairahi and had cultivations there. Various natives living at Wai i had to leave and give up their cultivations after the Crown shifted the boundary line. When the boundary was shifted many ha gum diggers rushed in and began digging on Wairahi. They took thousands of pounds worth of gum. It was a rich field and was of special [ ] value to Te Kao on account of i nearness. -29- Judge Acheson, at the end of the case, s that the was outside the Court's jurisdiction as it was by this time either Crown land or "European" , but that he was in a ition to report "informal "to government. 4.8. this time a conside le volume of correspondence between Judge Acheson and various officials re ing to Wairahi had aIr been built up. correspondence is now to be found on File M993 at Whangarei. Judge Acheson was particu concerned about the loss of kauri gum royalties. son continued to press for a resolution of the after the hearings in 1928-29. On 29 November 1929 Acheson advised t Under-secretary of the Native Deapartment that the proposed settlement was either (1) a cash payment of 299, or, (2) 764 acres, or (3) a combination of cash and land equal to (1) and (2). The Native tment replied to Judge on the following February, offering a total payout of ~557 (Under-Sec of Native Department to Acheson, 19 Feb 1939'. But Acheson rega this as completely unacceptable (Acheson to Under-Sec Nat department 18 Feb 1939, and pointed out that the Aupouri people might petition Parliament unless they received a reasonable offer - and in fact Judge Acheson himself subsequently wrote to Eru Ihaka advising him to do exactly that (Acheson to Eru Ihaka, 15 Feb 1932). Acheson continued to press for action to resolve Wairahi matter, pointing out in a further letter to the Under-Secretary (who appears to have Chief Judge Jones of the Native Land Court!)that lopment and settlement of the Wairahi area "would solve the unemployment problem in the extreme Far North" ( tter of 15 Jan 1932). 4.9. Judge Acheson's concern about unemployment was only too well- founded. the height of Depression the plight of the Maori communities of the far north was desperate indeed, none more so than Te Kao. This is shown in a letter from Te Kao signed Eru Ihaka and many others to the Labour Prime Minister, Mr MJ Savage, received 24-2-1936 (Copy on MA 19/1/219 (Wellington». As early as 1924 the slump struck Te Kao. Gumdigging was our only livelihood. We had no farms, no cows, no forests, no work on roads. Gum-digging sudden ceased. Buyers refused to visit us. Stores ceased to give us credit. We were the first community in New Zealand suffer from unemployment. There was no Relief Scheme in those days. Mr Coates asked Judge Acheson to Ip us. He started our Dairy Scheme. We had no pastures, so everything began from the rough. We had to live, so the Tokerau [Maori Land) Board [of which Judge Acheson was the President] paid us 6s. a day for married men 4s. for sing men for sus nce ile we worked. We understood the Board was doing this on behalf of the Government in res our 1 to Mr Coates. We consen- to loans against our lands. As we could not get store credit the Board in 1925 established a community store. At once, we ceased to pay 35s. a for sugar as hitherto. Other -21- prices also dropped. The store has prospered to the present day. We have been loyal to it. As our land titles with numerous owners, small sections, and bad boundaries were hindering our farming progress, Judge Acheson consolidated our titles. Each family secured as good a farm as was possible and we have had no title troubles since. The first cream was sent to Awanui in 1927, 45 miles by a bad road. The Tokerau Board supplied the truck. It was a great occasion for us. We agreed to think our children would never suffer as we had suffered on the gumfie1ds. The output that season was 10,009 lbs butterfat at 1/4 a lb. We were pleased. Later the output increased to over 50,000 lbs butterfat but the price dropped to 6d a lb out of which we had to pay nearly half for truck transport and Board interests on loans. Naturally we were "pouri". We applied for unemployment relief but it was refused us by Sir Apirana Ngata himself. Not until 1934 did we draw any relief, and then only ~222. In 1935 further relief contracts were granted, but not nearly enough for our needs. We wonder why we have been treated in this way. So from 1925 to 1935 the whole burden of our troubles was borne by the Tokerau Board and by ourselves. Perhaps we are the only community in New Zealand left to bear its unemployment burden itself. 4.10 Pursuant to s 542 of the Native Land Act 1931 the Chief Judge commissioned Judge MacCormick to hold an inquiry relating to the boundary between the Parengarenga and Muriwhenua South blocks at Wairahi. The commission was dated 27 July 1933. The hearing took place in October and the evidence can be found in (1933) 65 Northern MB 19 et seq. Counsel for the Maori people with an interest in the matter was a Mr Reynolds, who opened his case as follows:- [The] question is [one] of error in [the] original and ameded survey of land. The Deed of Sale (is in] Folio 34 Vall Turton's Deeds p. 49. Both surveys followed a stream which is not wairahi at all, according to Natives. We say the stream called on [the] map Ngataenga is the true Wairahi. Until 1896 no European was allowed across the Wairahi stream - the land was in occupation of the Natives. Not until after Thompson's survey was there any crossing of the stream by gumdiggers and others. As to the dealay there have been incidents of objection showing that their views were that they had not been rightly dealt with. In 1928 the Surveyor-General visted the land and as a result reported that the Waitahi stream was the boundary (but which Wairahi?) Evidence for those with an interest in the area was given by WH Evans (the storekeeper at Houhora), Eru Ihaka, Mr AH Watt (the Native School teacher at Te Kao), Pako Hit~, Hohepa Kanara, Karena Wiki and Mutu Kapa. The Crown was represented by a Mr Darby of the Lands Department who called a local resident, a Mr Thomas Gallagher, who gave evidence that the name of the eastern stream was Ngataenga -22- (i.e. the stream at the crossing). The evidence given in this case reveals a great deal about the economic circumstances of the Te Kao people - and also indicates that many people continued to eke out a living south of the boundary. In cross-examination Eru Ihaka stated:- The people who lived along the stream had raupo whares or tin houses - they moved these homes from place to place when gum digging. The lived there for some lof the] time but went away at times to dig gum. They cultivated kumaras etc .•. [illegible] their cultivations. They did not dig gum on this land in those days but nearer the store at Houhora (ie further south). It was their custom to dig as close to a store as possible. There were natives living on various parts of the Muriwhenua Block. 4.11 In the end Judge MacCormick was not prepared to accept the argument of Eru Ihaka and the others that the true boundary of the block ran down the Wairahl (Ngataenga) stream to the crossing and from there in a straight line to Otumoroki. He thought that the suggestion "that men of the standing of Mr Henry Tracy Kemp, Mr WB White and Mr John Rogan were unprincipled men who would take advantage of the Maoris ignorance is ridiculous". Apparently Mr Reynolds had himself conceded that the Maori interepretation of where the boundary should run was unsustainable:- Counsel for the natives Hr Reynolds submitted that the whole position came about through the original mistake of taking Waikawakawa for Otumoroki. That so far as the northern line is concerned it was fixed by three main points Wairahi to Otumoroki to Te Arai. On my pointing out that seemed against the claim that the line was to follow the Wairahi (or Ngata hinga stream Mr Reynolds answered that he must admit he saw considerable difficulty in establishing that and had so advised his clients. It needs to be pointed out, of course, that there was apparently a well-established oral tradition as to where the boundary was - and in any event the boundaries in the deed are extremely vague - there is nothing to indicate quite what was meant in the Deed by the "Wairahi" and one suspects that Mr White et al were simply not concerned about such fine details. There was also a considerable amount of evidence given in the Land Court that the Lands Department had already accepted the Maori interpretation of the boundary line as correct. There had certainly been an expression of government willingness to settle the matter, but this was withdrawn by government subsequently. (see Judge HacCormick's Report, p. 8). 4.12 Judge MacCormack did not see the exclusion of Europeans from crossing the Wairahi until after Thompson's survey as being especially significant:- And too much importance cannot be attached to the keeping of -23- European gum diggers and others to the south side of the stream. The natives would in the absence of any defined line on the ground be probably justified in taking the stream as a line of demarkation across which Europeans should not cross. In any case if it amounts to an assertion of a right it does not establish a right. (1.1.9) Judge MacCormick concludes:- It has to be remembered that the boundaries were those of a block of nearly 81,999 acres and would follow well defined and simple lines as far as possible. Only one point is mentioned between Wairahi on the east coast and Te Arai on the west coast i.e. Otumoroki. It has to be kept in mind that the plan was prepared before the deed was Signed. I am of opinion that the line was taken up the Wairahi (Waiopahau) merely as a matter of expedience and because its general direction was west to what was then called Otumoroki. (presumably Judge MacCormick is here referring to Waikawakawa]. A straight line between the two points would have amounted to very much the same thing. A glance at the plan 7235A of Hr Thompsonis survey will show that the same thing cannot apply to the Ngatahinga (Wairahi) which twists about a great deal though its general direction may be saldto be west of south ••• The turn at Wairahi mentioned in the Deed of Sale refers to Wairahi on the coast and in my opinion cannot possibly refer to what Is called the Wairahl Crossing. [p.9) Judge MacCormick in this instance is using the written documentation to completely discount the oral documentation - but the written documentation is actually rather ambiguous. He is relying to a large degree on what he (Judge MacCormick) regards as most probable. His general finding on the boundary still, however, left a difficulty:- There is however another aspect of the question. Now that Otumorokl or Ngatumorokl has been fixed at a point about 159 chains south of Waikawakawa it follows that the boundary no longer runs in a westerly direction from Wairahi to Otumoroki. That does not seem to me to accord with either the Deed of Sale or the plan. If the line was intended to turn west from Wairahi on the coast to Otumoroki it does not do so. I am prepared to recommend that the natives be given an area of crown land equal in value to the area lying between the existing boundary and a line runnlng from Otumoroki direct to Wairahi on the coast or to a suitable point on the confluence of the two streams that will avoid an awkward angle or corner. Some reasonable compensation for loss of the area since 1896 should presumably also be allowed. It will probably not be possible to follow what the Judge is saying here without considering Plans 7235 and ~8598. As far as I can judge the area the judge was willing to recommend amounted to about half -24 of what the Maori claimants thought they were entitled to. But Judge HaCormick did not feel able on the material before him, to assess any figure for compensation. He did, however, indicate that he thought the Haori claim for h5,288 to be "entirely excessive". Judge MacCormick was not prepared to make any finding on the loss of income from kauri gum in the area, an issue which was real concern not only to the Te Kao people but also to Judge Acheson. Judge HacCormick said:- It will I think be impossible ever to ascertain what gum came off this particular area. (p18) But he did find "some reasonable compensation" for loss of of the area since 1896 should "presumably be allowed". The investigation was thus rather inconclusive and less than successful in resolving the Wairahi issue. In fact the Wairahi issue was to become the basis for a round of new problems relating to the Onepu Development Block. 4.13 It has not been possible to reconstruct the exact sequence of events following Judge HacCormick's investigation under s 542. It seems that the advent of a Labour Government in 1935 had important consequences in the Far North. There were Labour Committees at Ahlpara and Te Kao, reflecting the emergence of the alliance between the Labour Party and the Ratana Church which was consolidated at that time (although it was not until 1938 that Hr Paraire Paikea was to take Northern Maori for Ratana-Labour). Prior to this time there seems to have been a certain amount of sectarian trouble in the Haoricommunitles of the Far North between supporters and opponents of the Ratana Church. Following the Labour victory at the 1935 general election lengthy letters were sent from the Ahipara and Te Kao communities to Hr Savage setting out the many troubles which beset the two communitIes, and it is reasonable to infer that the government's action in attempting to resolve the Wairahl boundary dispute by·legisiation was part of the response. 4.14. Section 18 of the Native Purposes Act 1938 provldes:- l.L.. Whereas it is alleged by the Native owners of Parengarenga (Wairahi), situated in Huriwhenua and Tarawera Survey Districts in the North Auckland Land District, that a portion of the said Parengarenga Block was wrongfully included withIn the boundaries of the Huriwhenua south Block on the purchase of the said Huriwhenua South Block by the Crown: And whereas pursuant to the reference to to it, under s 542 of the principal Act, of the said allegation the Court has reported that it was prepared to recommend that the Natives be given an area of Crown land; that some reasonable compensation should presumably also be allowed; and that if it is not practicable to give land reasonable monetary compensation therefor should be given: And whereas the Native claimants have agreed to accept the land hereinafter described in full satisfaction and discharge of all claims and demands -25- whatsoever in respect of the loss of the area alleged by them in the said Parengarenga Block: Be it therefore enacted as follows:- (I) The land described in subsection three of this section shall be deemed to be Crown land set aside or reserved for the use and benefit of the Native owners of Parengarenga Block and their descendants. (2) The Court is hereby authorized and empowered to exercise in respect of the said land the jurisdiction conferred on it by s. 527 of the principal Act, and all the provisions of that section shall aplly to the said land accordingly. (3) The land to which this section relates is all that area of land situated in the North Auckland Land District, comprising a total area of 865 acres 3 roods 32 perches, more or less, and being Sections 4,5,6,7 and 8 of Block XVI, Muriwhenua Survey District, as shown edged red on Plan Number 29755 (blue) in the office of the Chief Surveyor at Auckland. This attempt at a final legislative settlement was, however (like most such attempts) unsuccessful. What seems to have happened was that the Wairahi boundary issue became mixed in a confusing way with the Onepu Development Scheme. At the time of the transfer of the 865 acres the Crown made a further undertaking that an area of about 1,291 acres would be transferred to the control of the Maori Land Board specifically for the future occupation of the people of Te Kao. (Letter from the De,pt of Maori Affairs, 2 May 1977). According toa memorandum on file at Whangarei dated 9.8.74 the Te Kao people claimed the extra land due to the "comparative quality and values of the land lost and that offered". But there seems to be some dispute about whether it was agreed that this extra area would be "handed back". The Maori Affairs department denied this. In the same letter referred to above it is stated:- The 1,291 acres remains Crown land. There was never any undertaking that it be transferred back to the Maoris on the same terms as the 865 acres. It was just Crown land set aside for specific Maori use and occupation like any other farm settlement block. When I was in te Kao with the Minister in February, I remember Salt Matiuand one other speaker made a claim that this 1 291 acres "be returned to the Maoris". I think this is where the misunderstandings arise. The 1 291 acres is not part of the Wairahi Claim and there has never been any question of it being "handed back". On survey the 1291 acres was reduced to 1 223 acres, this still being under the control of the Maori Land Board. By 1977 the Department of Maori Affairs had concluded that the area was unsuitable for farm settlement after all and would be put to better use as a forest plantation. At that time the area was nevertheless being developed by Lands and Survey for the Board of Maori Affairs -26- in the usual way. This report is not the place to attempt to resolve the vexed question of this Onepu Development Scheme, but it certainly does seem that official and Maori views are in a state of some conflict regarding the conditions to be attached to setting aside of the extra land. There are others who can best inform the Tribunal of what occurred and what the current situation is. c. The western Boundary 4.15 The Western boundary follows the west coast from Te Arai to Waimoho. The Deed states:- ••• until it reaches the sea on the western coast at a well known Rocky Point called Te "Arai," - here it turns, and follows the western coast line until it reaches the southern extremity of the boundary at a point called "Waimoho ..... he Rae kowhatucte tohu,ko te "Arai," ka whawhati, ka rere i te tai tuauru a, - tutuki noakl "Waimoho". Te Arai is prominently marked on the modern topographical maps. Where Waimoho is, however, is difficult to say. In attempting to clarify the confusion caused over the situation ofWaimoho OOSLI is now taking the view that there were two places called Waimoho. 4.16 Whether the foreshore was understood by the parties to included within the area purchased is of course a key question, but there is Virtually no evidence which throws any light on this. Most of the evidence is circumstantial, and I have pointed to some of the circumstances in my earlier report - these include the low price paid for the Muriwhenua South Block, and the fact that Maori continued to live on and exercise control over the beach for decades after the sale of the block. Nothing in the correspondence refers to the beach. It may be relevant that acquiring the coast and foreshore was not important to Kemp - as as been seen, he thought of the block's usefulness primarily in terms of sheepfarming. We do not know for certain what Kemp's and McLean's assumptions were about ownership of the foreshore. The only direct evidence which throws any light on the matter are the survey plans. 4.17 An examination of Plan 948 reveals two possible alternative boundary lines. The line closest inland, which seems to be at the edge of the foreshore (or maybe the beach) area, is a curving line following what seems most naturally to be the landward edge of the foreshore. There is also a straight line, usually in the middle of the area of foreshore. Distances from this line to the landward foreshore line are carefully noted at intervals down the length of the plan. It would appear that the surveyors have surveyed a straight line from fixed boundary points and have then measured inland from this very carefully in order to pinpOint the landward edge of the foreshore as accurately as possible. The most natural -21- interpretatlonofthe plan 1s that the surveyed coastal boundary is in fact the landward edge of the foreshore, and thus the foreshore - as far as the plan is concerned, at least - lies outside the area purchased. As to Plan 9481\, the copy I have is much too faint to determine the matter satisfactorily. As far as I can tell it seems to use high-water mark as the boundary. This would, presumably, be standard conveyancing and drafting practice at the time. It is my belief that the original of this Plan needs to be produced the Tribunal, or, at least, that members of the Tribunal need to inspect it. Neither Plan was before either the Maori Land Court or the Court of Appeal in the 1951-62 litigation over the Beach - in fact the only map which seems to have been produced in evidence is a virtually useless special sketch map prepared for the occasion by the Department of Lands and Survey which does not even attempt to identify the positions of the coastal blocks. 4.18 Nevertheless the Plans can only tell us so much. Whatever they state, they may reflect current drafting practice as much as they do the intentions of the parties. The evident care taken to identify the edge of the foreshore in Plan 948 does seem suggestive - if the crown thought it owned the foreshore in any event, why take such care to exclude it from the block? That aside, it 1s important to weigh up the more circumstantial evidence which I have mentioned above. 'This can be combined wlth the£acts that the Crown purchasing agent had little interest in acquisition of the coast and with the evidence afforded by the two survey plans. The presumptions which ought to be applied to the interpretation of this evidence are a matter for counsel rather than myself. My cautious conclusion is that the vendors did not intend to relinquish ownership of foreshore and that the Crown purchasers saw the issue as of marginal importance - somethlnq they would have been willing to concede had the matter been insisted upon. It can be added further that the issue of the foreshore and the adjacent beach cannot be seen in isolation from the wider questions relating to the Crown's actions in regard to this purchase - the evident lack of care about its true Size, the low price (admitted by Kemp), the adequacy of Reserves and so on. ~ The Southern·· Boundary 4.19 The boundary to the south is described in the Deed as follows:- (Startlng at Waimoho) •.• thenturning in an easterly direction until it proceeds towards, and joins the interioriine of the "Wharemaru" Block, - it follows that line down, until it meets again at "Ta'kahonu" where the boundary line commenced • .•• tutuki noa ki "Walmoho," ki te kaha mai 0 tetonga, ka whawhati lkonei, ka anga klte'marangai, ki te kaha whakauta o "Wharemaru" ka haere i ruoga 0 taua kaha, ka rere, a, tuhono noa ki te timatanqa 0 tekaha ki "Takahonu" ... -28- There does not seem to be ing ially 1c this boundary, wi the exception the difficulty as to where "Waimoho" might The northwest corner of the Ahipara purchase is also "Waimoho'·. Accord to the DOSLI maps there are in fact two quite places cal "Waimoho", which cer inly solves the problem as to where the Otaki and Okiore areas of surplus land fit into the picture. It nevertheless seems strange that the Ahipara and Muriwhenua , one concluded in 1858 and the other in 1859, both use "Waimoho" as an tant reference tnt if in they were quite different places. It would be normal to the two places "Wa tf to be differentiated in some way if that was in fact the case. But it Is not possible to take this point any further. E. The Eastern Boundary 4.29 This is descri in the as follows:- ..• Commencing on the n side at a int as "Takahonu", from thence to Motutengi, from thenoe to "Waimumuka" from thence the upper part of the "Houhoro (s J Harbour" to a point where it takes a turn (according to Compass bearing) 557 39', thence towards the sea coast, thence to "Rarawa," excluding the Native reserve for , containing 199 acres at "Houhora" - from thence to Perekopua until it reaches "Wairahi" ..• ..• Ka timata i te kaha ki te marangai 1 "Takahonu," ka haere "Waimumuka" ka rere, runga 0 te awa 0 "Houhora," ka whawhati, e 557 39', nga whika 0 Te Kapahu, ka ahu ki te takutai, ka rere "Rarawa,tf (ka kapea wahl mo Paraone ma 0 Houhora ki waho, kotahi rau eka ( ), ka rere opua," a tae noa ki "Wairahll' ... The boundary therefore excludes the Mt Camel or Houhora peninsula, line running inland from Houhora to the coast. 4.21 This area was raised in a ition (No 23/19 ) s by Karena Wiki, Pir i , Tipene Kapa, Hone Wi Kaipo, Keepa Wiki, Hari Kapa, Rapata ki and Mutu Kapa. The itioners sought the sett up of a Commission to invest :- 1. "Murlwhenua Ti South, sold for 3d an acre in the 1858, the e al that that was a wrongful sale." 2. "Kaimaumau, an area of 12, acres aside from sale of , acres at Tauranga. We would like investigations to be made as to who the block and were the le who it. If 3. i'Houhorahora 1S,999 acres in area set aside in the -29- Sale. It has now sold - sold it? The same petition a raises ly concerns about Kapowairua and 5Bl, B2 and B3. 4.22 The petition is interesting in that it does seem to suggest that as as Aupouri were concerned Houhorahora Kaimaumau were regarded as reserves in the Mur South sale. Adm! ly the ition is ISS years after the event, but in the general paucity of evidence it is something which deserve to be considered carefully. According to a Memorandum from the Chief Surveyor's office dated 16 August 1949 Houhorahora (i.e the Houhora peninsula) containing 1111 acres (shown on Plan lSI red) was investigated by the Maori Land Court sold to Mr Subritzky on 25/5/1865 for ~55e. The history of Kaumaumau is, however, rather more complicated. 4.23 Kaimaumau is also an Old Land Claim and is thus an aspect of the general surplus lands question. Thomas Glanville purchased the 12S1 acre Kaimaumau block in December 1839. He conveyed his interest to W. Potter, who was eventually awarded,h131 by Commissioner Bell. The Crown thus acquired an interest in the area as surplus land. Kalmaumau also forms part of the Wharemaru block, purchased by the Crown simultaneously with Muriwhenua South on 3 Fe uary 1858. price pa by the Crown was h4S1 (13,555 acres) • (Copy of Deed in DB, vol. I, B32, 2191. Puhipi te Ripi and Waaka Rangaunu also appear as signatories to this Deed; Paraone Ngaruhe, although a signatory for Muriwhenua South, did not sign the Wharemaru Deed. In response to the 1949 petition the Department of Maori Affairs advised the Clerk of the Maori Af irs Committee at Parliament that the Crown had in effect acquired Wharemaru twice over - the h131 paid to Potter and the SS purchase price. The Maori Affairs Committee reported that it had no recommendation to be made concerning Karena Wiki's petition and matters seem to have been taken no further. (The area always remained Crown Land and is the si of ecologically-significant wetlands.) Then, in the 1981s, a major land-use battle took place over the Kaimaumau swamp. This imaumau] of some 1 hectares is on the western mouth of the Rangaunu Harbour, kilometers north of Kaita It has been the subject of much recent attention in relation to resolVing a serious conflict between mining conservation and agricultural interests. Kaimaumau, and the -39- the other fWgumlands" (Type D2 wetlands) of the north were screened many years ago by the gumdiggers for large pieces of kauri resin which fe a h price in the chemical industry. the resin content of the peat is still high, it can no longer be profitably extracted by one-man and-a-spade. Kauri Deposit Surveys proposed, in 1975, to modern technology to process vast quantities (259,99& tonnes per year) of from 2299 hectares of Kaimaumau with organic solvents to extract (at the rate of 2&,99& tonnes per year) the remaining resin (possi worth $39 million per year). 29% of the peat would be used to fuel the process and the remainder would "reconstituted" and returned, mixed with , to the land for icultural lopment. The first mining licence application was 1 in 1975 and a re-application was made in 1979 after a rise in the world oil price improved the viability of the proposal. Planning approval was granted in 1989 and Water Rights the following year. It was not until late 1982 that conservation interests woke up to what was about happen. The Wildlife Service had just overlooked Kaimaumau (because it did not appear to have any wi life values) in its comprehensive survey of the Northland wetlands, and the Royal forest and Bird Protection Society had than active in keeping up to date with developments. At this stage, the development proposals incorporated only a token 59 hectare Reserve, but a hurri ly constituted inter-departmental committee now carried out an urgent appraisal of Kaimaumau's conservation values and made a recommendation, supported by the Minister for the Environ ment, for a 799 hectare reserve. The company raised their Reserve "offer" to 499 hectares, but when the mining licence was granted in mid-1983, a formal Reserve of 895 acres was stipulated, mining to be allowed to proceed over the balance of the area. A recommendation has now been prepared for the Crown, who own the land, for a suitable buffer zone to protect the Reserve during the 39 year mining period and subsequent land rehabilitation activities. I am not aware what the current state of this project is (presumably it has gone the way of most of the ill-fated development projects in the Far North). 5.1. THE Ahipara Block was sold by Deed dated 13 December 1859, 9,47& acres for ~899. The Block stretches from Waimoho on 99-Mile Beach to the Wairoa stream - it should be noted that the course of the eam has ly changed in the intervening years. The on ev nce 1 have located ibing the sale from a Maori perspectlve comes from Karipa Wi Patene, a counterclaimant to the of Lake Tangonge, giving evidence in the second Tangonge case (1934) 65 Northern MB2 216 at 264]:- Waimoho lie Ahipara) block was sold for && (west of Lake) -31- [i.e. Lake Tangogne) to the Crown. Waaka (Te Waaka Rangaunu) and Puhipi [Puhipi Te Ripi] received ~111 out of the ~811. The h111 was in respect of their mana of this land. The Maori translation says in satisfaction of their "mana". The English rendering is "claims". Many of the old chiefs took part in that sale of Waimoho, and were men of standing. It is clear that Waaka Rangaunu and Puhipi were the two big rangatiras, the men with most mana. Certainly they were the driving force behind this sale on the Maori side, as they were also with Muriwhenua South. 5.2. The official correspondence can be found in DB B21, P 38 et seq. On 12 September 1859 Kemp wrote to McLean, mentioning a number of blocks successfully negotiated for around Mangonui. Kemp adds:- In addition to the following are the two following blocks, which also join: - Ahipara, containing 9,411 acres of the finest land, for which the sum of h801has been fixed; and the Hangatete Block, of 4,881 acres, recovered under the Land Claims Act, for which no remuneration is required by the Natives ••. On the 28 October Kemp was advised that the purchase of Ahipara had beeen officially approved. Further negotiations then occurred with the sellers, shown by the next letter to Kemp dated 3rd December (No. 85):- His Excellency the Governor having been informed that the Native Chief Te Poihipi is willing to give up a plece of land as an extension of the Ahipara block now under negotiation, for the purpose of including within its boundaries a portion of forestland, which will add greatly to the value of the block, I have the honor •.• to request that you will as soon as possible communicate with that Chief, and take the necessary steps for securing the cession of the land referred to on reasonable terms ••• Final resolution of this additional area seems to have taken some time. In 1861 Kemp reported to McLean in a revealing letter which indicates the awakening of Maori alarm as to the amount of land being sold in the district. This letter is also the final mention of Ahipara in the official printed correspondence. Kemp reports:- ••. It has been suggested to the natives, that the present system of purchase has been but part of a scheme under which to dispossess them of their lands, (the price given for (sic - far?) below its real value,) and eventually to confirm their own claims to certain limited spots; the residue to become unconditionally the property of the crown. I think that the Natives here would be glad to see some modification in the present mode of extinguishing the Native Title - at present, their confused notions of the real value of land, make it sometimes very difficult to convince them, -32- that the price paid per acre by the Government for Waste Lands is generally sing fair and reasonable. This same letter has a rather confusing enclosure, also printed in the offic I correspondence, which refers to "Ahipara Block (additional)", an area of 8"13 acres, esumably the piece "adjoining the Ahipara Block, south side". This area had been acquired after the execution of the principal Deed in 1859. 5.3. The coastal boundary of the block is shown some distance inland on the map to the Deed (which was what the signatories of the Deed would have had before them when they signed the Deed of course - i.e. not the Survey Plan). To anyone looking at the map on the Deed itself it would seem fair clear that the Beach was not included in the There is no surviving evidence, however, as to how important this was in inducing acquiescence to the sa This is something which, once again, must be read with the circumstantial evidence - especially continued Maori control over the beach in the Ahipara area for many years a r the sale, which is well-documented. I emphasise the word "beach" - t map not seem to me to be drawing the boundary at high water mark but is in fact excluding what certainly looks like a reasonably SUbstantial coas 1 strip. As for the text of the Deed it simply states:- ... following the survey line to the coast, (Reserves excepted) until it joins the point where the bounda commenced . .•. marere noa ki te moananui; otira kei te Mapi 0 te Ruritanga, te tino tikanga 0 nga Rohe , me nga wahi i kapea mo nga maori, tutaki noa ki te timatanga 0 te kaha. 5.4. The Plan (S043A) marks low mater mark and shows the coastal boundary inland of the low water mark. There is a sketched line as well as a protracted line running from the Wairoa river mouth to Waimoho (it is in not too clear which is supposed to be the boundary line, apart from the fact that it is quite clearly not low water mark.). The same comments can be made here as for the Muriwhenua South plan: see para. 4.17. 5.5. The other boundaries of the Ahipara Block require little comment. The northern boundary is a strai line from Waimoho to' Te Karamu, a point on the Awanui River. The river and then Lake Tangonge form the eastern boundary. (Lake Tangonge is of course an important issue in its own right, which is dealt with below.) The southern boundary is identifi in the Deed by means of a number of re rence points (Mangakowhara, Te Manoao .. Waiomopauroa, Puketohi Takapuahia) and appears to be reasonably clear identified in the Deed Plan and the SO Plan: Wairoa stream forms the principal southern boundary of bl 5.6. More puzzling than the boundaries is the matter of Reserves. The text of the Deed mentions some reserves exce from the sale, -33- but the reserves are not described in any way in the Deed (which is, it should be added, simply a standard-form printed document with the boundaries filled in in long-hand). The Reserves are, however, delineated (none too clearly, it is true) on S043A and are discernible (just) on the Deed plan. The two areas that clearly are reserves are:- (a) Whangatauatia. This is an area in the extreme southwest corner of the block adjacent to the Wairoa River. It was presumably a habitation because Plan S043A shows a number of buildings there. The area is given on the Plan as 61.1.0 acres. As far as I can judge the area of this reserve now comprises the modern township of Ahipara. (b) Pakaka This is a little to the east, also on the southern boundary of the block - 50.1.0. acres. There are a number of further areas on the Plan which seem to be marked out in some way. There is an area enclosed within a dotted line which is marked "Raungaununka" [1 - sic], noted as "Tapu"; also a slightly smaller area enclosed within a dotted line and what looks like a building marked "Kotihe". But what exactly is intended here is impossible to say. 5.6 The sequence of sales and Maori Land Court investigations in and around Ahipara is rather mind-numbingly complicated. As far as I can tell the sequence of events was roughly as follows: ~ Ahipara Block Purchase 13 December 1859. 9470 acres. Reserves at Whangatauatia (Ahipara township) and Pakaka. ~ PUkepoto Block Adjudication (1865) 1 Northern MB 7. The Court vests the block in Puhipi te Ripi. ~ Te Ava Patiki Adjudication (1865) 1 Northern MB 7. This is vested by the Court in Te Waka Rangaunu and Puhipi te Ripi. ~ Wairoa Sale The area known as Wairoa was investigated by the Court on 20 November 1873. From Plan ML 2959 it is clear that this area was the long strip between the Wairoa river and the sea, an area of 256 acres. This Block was immediately sold to the Crown. ~ Whangatauatia Block Adjudication (1880) 4 Northern MB 291. This hearing was a contest between Aupouri, Ngati Kuri and Rarawa claimants. The Rarawa case was led by Timoti Puhipi; for Aupouri Winitera Reone; for Ngati Kuri Te Okena. The Court ordered that this block of 27 acres be vested in the claimants (ie Rarawa) - Te Waka Rangaunu etc. -34- Ahipara Papatipu Block Adjudication This was a very late investigation of title into the extensive area of pa ipu (uninvestigated) land still remaining at Ahipara. The area was 6,649 acres and the evidence can be found in (1999) 43 Northern MB 637. Judge Gilfedder on this occasion refused to distinguish between the rival Rarawa and i claimants and the block was divided into 6649 shares (1 share per acre) and vested in several hundred Rarawa and Aupouri individuals (allocations ranging from 45 to 5 shares). ~ Consolidation Judge Acheson was a driving force behind the Mangonui Consolidation Scheme. which covered not only Mangonui proper but also Te Kao and Ahipara. This was a very complicated and time-consuming process. The final hearings relating to title consolidation at Ahipara can be found at (1939) 63 Northern MB 139 et seq (Judge Acheson) ~ Lake Tangonge A important sequence of hearings relating to the lake took place in 1933 and 1934. This is dealt with in the next section. 6.9 LAKE TANGONGE 6.1 The question of owner ip of Lake Tangonge was a cause celebre of the 1939s and the sequence of hearings in the Native Land Court concerning the is a key event in the history of Maori land tenure Ahipara. Since the lake formed part of the eastern boundary of Ahipara purchase the Tangonge case does have some relevance to the boundaries of the Ahipara block. But it is an important matter in its own right and this seems a useful opportuni to raise, although not necessarily to resolve, some of the issues posed by this crucially important case. I am well aware of the fact that to this t r of e Tangonge is seen as a serious and important question by the people of Ahipara and Pukepoto. 6.2 The lake was an extensive body of water which was a well-known geographical feature an important source of sustenance. Herepita Rapihana described the lake as follows [(1933) 64 Northern MB 197]:- The lake is not tidal, and is not navigable. It is not acces- sible for boats. I myself have fished for eels in this e. That was my ion. I would swim out. The lake is generally shallow. The of the lake shifted about. At flood tide the water would rise. We fished for eels with traps at the Waihou outlet and with pots ere. There were many Maoris at Pukepoto when I was a boy. The -35- lake was used as [108] an eel fishery by the whole settlement. The people lived on the eels, the pipis and a shellfish called pipirau (?) or kaeo, a fresh water mullet called kanaeraukura, also a kind of blind or short-sighted duck incapable of flying rapidly. We used to catch the ducks in traps or with dogs. It was possible to go over the swamp with dogs. There was also another duck there, better at flying. We used to trap it in the lagoons. We relied upon the lake in former times for our food supplies. Our people had their homes along the edge of the lake whilst engaged in fishing or hunting. We also camped on the other side of the lake while gathering food. Puketutu Reserve on the other side of (the] Lake was not included when we sold the strip of land along the coast [Wairoa Block?] to the Crown. The Natives exercised ownership rights on all sides of the lake and over the lake. I remember when the arm of the lake was formed, between 1880 and 1890. A heavy wind and [1091 a heavy flood came and lifted out a piece of swamp and deposited it on the north side of the lake. The water came from the Kaitaia River through the Mangawhero stream, and got underneath the swamp, lifting it up and shifting it across the Waihou Channel, blocking the outlet. Sometimes this new arm of the lake became separated from the main lake by a strip of swamp. Maoris swam out and hooked up gum from below. When willows partly blocked the Kaitaia River, more water was diverted down the Mangawhero stream into the lake. The Maoris, alarmed at the rise of the lake, then dug a drain to re-open the Waihou Channel on the north side of the lake. It was a drain 5 feet wide, 3 1/2 feet deep and 3/4 of a mile long. This work was done by Maoris only, but the Masters family assisted us with food. The Drainage department have adopted our drain, and deepened it and widened it. We also made another drain, 5 feet wide, 2 feet deep and 3/4 mile long on [the) southern side of the lake through the Pukepoto Block. [1101 Had we wanted to we could have drained the lake for them, but we were afraid of endangering our food supply of eels etc. The Maoris preferred to keep the lake for food supplies. Since the lake has been drained by the government the Maoris have been using the area for grazing purposes. And Wiremu Rapiha, in the same case, says [ibid, 114]:- I used to go fishing with my grandfather in a canoe. I used to go over to the Waihou channel. In those days we could go straight from Pukepoto to the mouth of the Waihou channel. At the mouth of the channel we set eel weirs. We caught eels and fish there, also caught birds in the net. We also set eel pots in the lake. We got an eel basket from Waaka Rangaunu. Later I sent some extra big eels for him. Some- -36- Sometimes we would catch over 9 eels at a time in the eel - then [it would be] so heavy to lift we had to roll the basket over. Whenever we wanted eels we went to the lake. This was very often. 6.3 The area in issue before the Native Land Court in 1933 was the whole area of the bed of the lake. hearing was not concerned with that land within the area of Crown land known as the Tangonge Kauri Gum reserve which was not actually lake bed - the reserve was set aside from crown land in 189B: see Gaz. 21.12.98, p. 2973) Mr Reyno I counsel for the claimants in 1933, stated that no part of Tangonge had ever been alienated, but that this claim was for the present limited only to the area of 693 acres shown in blue on Plan 12775. Reynolds placed weight on the [(1929) Bay of Islands MB] and v Solicitor-General {19l2) 32 NZLR 321 decisions as showing that the Crown did not own the beds of lakes by rogative right (as had earlier been supposed, at least by the Crown). By the time of this 1933 hearing Lake Tangonge in the form in which the Pukepoto people knew it had vanished for ever, due to the major government-controlled drainage scheme. The Pukepoto outlet drain was constructed to drain the lake into the Awanui River, and the lake subsequently became only an emergency ponding area. Mr Reynolds told the Court that the Maori people of the area "had no power to prevent the drainage operations" [ibid, 193J. 6.4. The Crown indicated that it did not intend to contest the application for investigation of title into the bed of Lake Tangonge and did not appear at the 33 hearing which was in effect unopposed. Evidence was led establishing that the lake had never been sold and giving information about use of the lake for food gathering and the collection of flax. Judge Acheson's full oral judgment has been preserved on by happy accident of it being reported in detail in the Northlander and the The Minute Book text concludes the case with a short note ordering that the bed of the lake be declared Native Customary Land and stating that a written judgment would be delivered "as soon as possible", but an annotation on the same page notes that the "written judgement does not appear to have been given". This is a pity, for judging by Judge Acheson's oral judgment as ted in the press, it would have made interesting reading. To quote from the newspaper :- Continuing, His Honor asked if the Native Land Court was bound to take cognisance of the Treaty of Waitangi, and had that treaty been given statutory recognition by the islature or by the Privy Council. The trea was signed in 1849 and had not been set aside. The treaty had been recognised by Imperial Statute, and by the Land Claims Ordinance of 1841. In a former case Mr Justice Chapman said that the Tr of Wai ngi was imposed upon the colony as a -37- sacred trust, and the treaty had culminated in a long series of enactments. That being so it was the duty of the Court to take judicial notice of the Treaty of Waitangi. It was its duty and privilege to protect the Natives not only against themselves, and unscrupulous Europeans, but against the Crown. Fortunately the Crown wished to see justice done to the Maoris of New zealand. He did not know of a single instance to the contrary. Another question which arose was whether it was contemplated at the signing of the Treaty of Waitangi that Tangonge and other lakes would pass over to the Crown. The Court held that this was not contemplated. There was no common law right in England to support such a contention and it was impossible to think that the Crown officers in New Zealand should think that the Crown had greater rights here than in England. Concluding His Honor said that the Maori occupation of Lake Tangogne had been continuous, unrestricted and effective since the signing of the Treaty of Waitangi, and that rights of the Maoris had never been challenged. The Court held that the carrying out of drainage operations by the Land Drainage Department did not constitute an adverse right against the Maoris. The Court was satisfied that the requirements of the Native Land Act 1931 regarding customary lands had been fulfilled, and had no hesitation whatever in ruling that Lake Tangonge was Native customary land under the Act of 1931. As no objection had been lodged it was clear that the land belonged to the Natives. 6.5. This was by no means the end of the matter. A further hearing had to take place to determine fixing of relative shares in Tangogne Lake. This case, the second Tangonge case, is found at (1934) 65 Northern MB 216. This was a much larger and much more complicated case, as there were a number of rival claimant groups. Judge Acheson's complicated and careful judgement is at (1934) 65 Northern MB 348-354. The area of the lake in question, 693 acres, was divided into 693 shares. 75 shares were vested in lithe Aupouri tribe". 75 shares were vested in "the Rarawa tribe", with 15 temporary trustees being named in the order. (It needs to be remembered that this was at a time when nothing resembling the 438 Trust was in existence, so the Judge's approach is rather innovative.) 25 shares were vested in Herepete Rapihana, 222 shares in the Puhipi list (individualised, ranging from 17 to 5 shares per person), 221 shares in the Rapihana list, and 75 shares in Hohepa Kanara's list. Judge Acheson was trying to be fair to everyone, and he certainly had a good grasp of the complex relationship between Aupouri and Rarawa at Ahipara, but as a result of this judgment the ownership of the bed of the lake became almost impossibly complicated. In practice the Pukepoto Tribal Committee seems to have taken general responsiblity for management of the area, and parts of it were leased for grazing. 6.6. The Drainage Scheme seems to have left the area in the worst possible state, since it was neither a lake nor was it dry land, at -38- least not consistently through the year. A once vital and productive food and plant gathering place was transformed into a boggy plain, normally under floodwater in the winter and not useful for much more than rough grazing during the rest of the year. That this is no exaggeration is shown in a report on file at Whangarei (Annexure ) dated May 2 1863 which points out that although the soil in the lake bed is very fertile, the area cannot be used for growing crops due to the risk of inundation in in the winter: While the present drainage system Is in operation, I can foresee no other future for the lake than summer stock grazing. If this is correctly controlled there should be a certain source of income to the owners from grazing fees. The drainage scheme was altered in the late 1959s to minimise the risk of flooding in Kaitaia town, which had the effect of flooding the bed of Lake Tangonge earlier In the winter than before. The owners were not consulted about this either (continuing what seems to have been standard practice).(MInistry of Works letter 24 July 1963: Annexure .•.•. J. 6.7. The title to the area remained in a confused state. Judge Acheson's 1934 order was never put into effect. By 1963 Maori Affairs staff were advising Judge Scott that Judge Acheson's partition ought to be abandoned. Departmental staff took the no doubt sensible view that probably the best that could now be done with the old lake bed was to formalise the current de facto state of affairs, and use the whole area as a unit for grazing purposes. Probably it would be better If the whole area were to be controlled by the two tribes (Aupouri and Rarawa) for commun ity benefit. And in late 1963 Lake Tangonge was back before the Court (1963) 1 Kaitaia MB 286.1 The Hangonui County Council wanted to levy rates on Tangonge but was uncertain who the owners were. Rates were fixed a 8 5/8 d. per pound of unimproved value. It was suggested by Hemi Hanuera that five trustees be appointed to manage the area, three Rarawa and two Aupouri; it seems also that at some point an application was made to set aside the area as a reservation. But the matter was not completed: there was no reservation and no trust order and in 1964 the Registrar advised Mr J.R. Walsh of Ahipara as follows:- ••. no title order exists and no recommendation that the area be set aside as a Haori Reservation has yet been made by the Court, with the result that no trustees can as yet be appointed. Subsequently a Lake Tangonge Incorporation was set up and a committee of management was formed in 1979. As far as I am aware this is the current situation. Local people will be able to bring the narrative up-tO-date should that be necessary. -39- 7.0. TE WHARO ONEROA A TOHE - SUPPLEMENTARY NOTE 7.1. DUE to the shortness of time which I had available to prepare my earlier report on Te Wharo Oneroa a Tohe/Nine Mile Beach, I did not have time to check all files which might be of relevance. In particular, I did not check the series lists for the Marine Department, and on doing so after the March hearing of this Tribunal, it became apparent that there was a considerable volume of material relating to the beach - much of it to do with prosecutions for breaches of fisheries regulations - in the Marine Department files. I advised Mr Williams and Mr Rigby of this fact, and subsequently the Crown researchers have copied and made available (from this source mainly) some 2000 pages of material. I have had no opportunity to read this in detail. [Nor has there been any subsequent request that I do so.] As indicated, the Marine Department material deals mainly with fisheries matters and especially with toheroa beds and their management, includin prosecutions for taking toheroa. Presumably Mr Sinclair will cover all of this when the Crown presents its evidence. 7.2. The only part of this material I would like to comment on at this time relates very narrowly to the 1957-62 hearings on the subject of the ownership of Te Wharo Oneroa a Tohe in the Maori Land Court, the High Court and the Court of Appeal. The Marine Department files throw some useful light on the question of payment of legal costs for the litigation. Following the decision of the Maori Land Court an appeal was lodged by the Crown and then on 6 December 1957, Mr Dragicevich, who was the solicitor for the Maori applicants/respondents in the case wrote to the Crown Solicitor at Auckland, Sir Vincent Meredith. Dragicevich stated that the applicants were unable even to meet the cost of the hearing in the Maori Land Court, and suggested that since the Crown had taken the step of appealing it might like to consider paying the applicant's costs:- Neither my client [Mr Tepania], who is the applicant, or his supporters are in a sufficiently strong financial position to finance the costs which would be involved in the further hearings which appear to be eminent [sic] in the Maori Appell ate Court and in either the Supreme Court or the Appeal Court on the questions of law. The position has arisen whereby the Crown is now vitally interested in the proceedings and in view of this it is suggested that the Crown might give consideration to meeting future costs. Separately the applicants themselves personally wrote to the Prime Minister, Mr Nash, seeking assistance with costs. Meredith had aIr y, however, made his view plain: So far as the future costs of the applicant are concerned, in view of the known attitude that the Crown would adopt Mr Dragicevich must well have ap preciated that in view of the importance of the claim, there -40- would certainly be appeals if the ruling of the Maori Land Court were unfavourable so far as the Crown is con cerned. The attitude of the applicant was indicated earlier in these proceedings when it was suggested by him that the Department of Lands and Survey should prepare plans of the beach to support the claim. In effect the applicant is asking that the Crown pay his costs in a matter where he is making an unmeritorious claim against the Crown. Following this advice the request for financial assistance was declined. Meredith's description of the claim as "un~eritorious" points at the very least to an interesting attitude towards the Land Court, where, after all, the applicant had been successful.