, I i D~PUCArE Waf 1200, A58 .( RESEARCH REPORT NGATI AWA AND OTHER CLAIMS (WAI 46 & OTHERS) Tom Bennion and Anita Miles September 1995 CONTENTS PART ONE The killing of Fulloon . 3 PART TWO The attack by Arawa forces. · 41 ! PAf;lT THREE Th6 background to the work of the Compensation Cdurt and Native Land Court 50 / .',- n I;' PART FOUR i.' The Compensation Court in the Western Bay of Plenty . 72 i PART FIVE The Land Court process · 164 I I PART SIX Otamarakau Block and Rotoehu forest lands · 170 '\ " PART SEVEN Ngati Awa interests in land blocks west and south of the confiscation boundary · 219 ______________________ 0 .. 0.00 2 Introduction and Acknowledgements My name is Thomas Hugh Bennion. In 1987 I graduated from the Victoria University of Wellington with BA/LLB(hons). I was the legal officer of the Waitangi Tribunal between 1989 and 1994. I now work as a private consultant on Maori land law and Treaty issues. I have previously completed research reports for the tribunal on the Whanganui River claim (Wai 167), Parikino claim (Wai 216), rating claims (Wai 284 and others) and immigration claims (Wai 223). In November 1994 the tribunal commissioned me to work, with assistance as required, on various aspects of the Ngati Awa claim Wai 46.1 That . commission also asked me to have 'particular regard' to the tribunal's directions and review of evidence dated 11 November 1994.2 In this work 1 have received invaluable assistance from Anita Miles who. worked many hours to make sense of the Compensation Court hearings and produced the section on the operations of that court. I was also assisted briefly by Kate Riddell, who undertook some initial an:dysis of the work of the Compensation Court and by Janine Ford and Heather Bauchop also provided some assistance with land court records and national archives sources. Harris Martin, of Rotorua was separately commissioned to provide land title information from the land court, including minutes and maps. His work has been essential to this report and is noted on the tribunal record as document 12. I have also found extremely useful the very full report of David Alexander's on the Otamarakau block and other blocks making up the Rotoehu forest. 3 Wai 46 research commission 3.10 2 Wai 46 direction 2.59 3 Wai 46 G4 .. 3 PART ONE THE KILLING OF FULLOON Introduction The Waitangi Tribunal has asked for research to: expand, if possible, on the evidence of the Maori-Pakeha interaction from contact to 1860, having special regard to ideological differences, 4 trade and the assertion of administrative authority. - This follows assertions throughout the claimant evidence that: (I the Queen's writ did not much run in the district at the time of Fulloon's death and subsequently at least until the arrests. By way of corollary it is claimed that all that was done was done according to Ngati Awa law. This was presented as much more than a post-facto 'cultural defence' with regard to the trials, but as going to the heart of the Crown's "invasion" and the confiscations.5 The memoranda goes on to note that inadequate evidence has been provided by the claimants to corroborate this view and "More evidence may be obtainable from mission records, official reports and the like and a general comparison with other places may be feasible." The basic facts surrounding the death of James Fulloon are not disputed. He was a half caste son of John Fulloon and Koka Te Mautaranui, the daughter ( of a major Ngati Awa and Tuhoe leader. The missionary educated Fulloon proved himself useful to the government, having been employed as an interpreter and 'trouble-shooter' in tense race relations situations. When the missionary Carl Vollmer was killed in March 1865, Fulloon persuaded Grey that he should be given a military commission to recruit a company of Ngati Awa to catch the killers. On 21 July he arrived at Whakatane aboard the Kate. He and severa] ·companions were shot to death aboard the ship as it lay in harbour. Some of the killers were from Ngati Awa, his own kinsmen. 4 Wai 46 research commission 3.10 para 2 5 Wai 46 tribunal directions and memorandum 2.59 para 9.2 .. 4 Claimant evidence and assertions The claimant argument in a brief form is noted in the Dictionary of NZ Biography in an item on the life of Te Hura Te Taiwhakaripi, an important leader of Rangihouhiri, a hapu of Ngati Awa which played a direct part in the killing. The authors say: Te Hura and his people attended a meeting held at Tauaroa pa, near Matata, on 1 July 1865. There the decision was made to establish a boundary, or aukati, to keep out Pakeha and their Te Arawa allies ..... The aukati was tapu, a ritually powerful line that would protect the people within its boundaries from harm .. .... Fulloon had been warned at Tauranga not to take his ship within the aukati, but had disregarded the warnings. The ship was captured by Ngati Awa, and it was explained to Fulloon that it had broken the aukati and that he should leave at once. He ignored this advice and for his transgression was killed. 6 In their research for the tribunal the claimants say that the aukati line was a manifestation of a traditional law and followed on from one recently laid down by Te Arawa.7 It is said that "[ w]hile the line was unrealistic it was primarily set under the mantle of the Paimarire Church to protect Ngati Awa lands. "8 The claimants allege that "[t]he fact that Fulloon was Maori and was executed according to Maori custom was disregarded [by the Crown]. He had seriously violated several traditional laws and was tried by his peers according to customary law. "9 No specific evidence is advanced for these assertions. A different interpretation is advanced in other claimant research. For example the report on the Rotoehu forest states that Fulloon "breached an aukati declared by the Paimarire in conjunction with some Ngati Awa chiefs. Instrumental in the death of Fulloon was the effect Paimarire had had on the people and the resultant loss of traditional systems of leadership and 6 ·SM Mead and Miria Simpson DNZB vol 1 p453. 7 Wai 46 A20:32 8 Wai 46 A20:32 9 Wai 46 A20:35 (italics added) .) 5 control. " 10 Theory and approach It seems from the claimant's evidence and the tribunal direction that there are two ways a cultural defence might apply: • If the Queen's writ as a factual matter did run in the region, then Ngati Awa would be guilty - but if factually it did not, then they may not be judged in any event by that law. Presumably the Crown could only ask Ngati Awa whether what was done had been lawfully done, in much the same way as before 1840- the Crown had no authority in intertribal matters. ( A complication with this argument is whether the Queen's writ was not so much a matter of territorial extension, but portability with the person. English settlers, for example, were said to take the common law, suitably modified, with them wherever they went. • Even if the Queen's writ ran in the area, and a murder under English law occurred, because the killings followed a violation of a cultural norm of Ngati Awa, there was a defence to the charge of murder. In either case, the "cultural defence" raises a further subset of questions about the defence itself: • Was a law established? • What was its nature? • If some foreknowledge was part of that law was it made known to ( others? • Was the killing in accordance with that law? It is difficult at any time to say what is culturally "traditional" and what is a more recent invention. Anthropologists would lean to a view that everything a society does is "traditional"llThe safest course is to assess this matter in light of the certainty that "there is no essential, bounded tradition, ... the 10 Wai 46 A 19:23-24 11 See for example "The Making of the Maori: Culture Invention and Its Logic" Allan Hanson American Anthropologist vol 91 1989 p890 .. 6 ongoing reconstruction of tradition is a facet of all social life"12 This is much more so in times of major change. Cultural defences are not new. For example, there is debate in the United States today about whether they should be admissible in criminal cases. The defence has been raised where Native Americans assaulted a person whom they believed had interfered with burial remains. 13 A cultural defence was in fact attempted for the alleged killers of Fulloon when they were tried before the Supreme Court in March 1866. Counsel for the prisoners argued that Ngati Awa and others felt under threat after troops had moved into Tauranga: the natives of that part of the country, feeling they were aggrieved, determined, at a meeting which they held, to establish a line of demarcation, which should clearly point out their territory from the territory of the Europeans. It was decided that a certain line should be drawn, and it was determined that beyond that line the rule of the Europeans should not extend. 14 At a later stage the prisoner's counsel argued that they "had no knowledge of English law, and though amenable for their acts were still in a very different position from that which would be occupied by a number of Europeans similarly placed. They acted, in a sense, as defenders of their own district.