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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. ,,15

It was also argued that Fulloon had been wearing a soldiers uniform when he

12 Ibid p898

13 See "Application of a Cultural Defence in Criminal Proceedings" Carolyn Choi UCLA Pacific Basin Law Journal spring 1990 vol 8 no 1 p80. She notes a case where 3 Native Americans in Oregan were accused of crushing the fingers and slashing the throat of a white man believed to have unearthed sacred artifacts from graves - p81 . See also "The Cultural Defence: Beyond Exclusion, Assimilation, and Guilty Liberalism" Daina C Chiu California Law Review vol 82 July 1994 No 4 p1 053 highlighting problems with the defence.

14 Daily Southern Cross 16 March 1866, Wai 46 C10 vol" A2:4

15 NZ Herald 22 March 1866, Wai 46 .C1 0 vol" A 1: 18 7 arrived in Whakatane, and was regarded as a spy.16

Chief Justice Arney rejected these contentions, saying that "The crime of wilful murder had been defined to be the killing of any person under the

Queen's peace with malice aforethought. 11 The jury was not to consider any arguments about relations between the native race and Europeans or the government:

All that the jury could know of the relations of the natives to the government was that they were bound to live in peace with their European fellow-subjects. If they did wrong to the Europeans the Court would do justice -on them; and if the Europeans wronged them, the Court would then do justice, and would do so notwithstanding the particular state of the country, notwithstanding any action of the ( Government of the country.

It had been said that there had been a meeting of natives and that they had set up an imaginary line or boundary called the aukati; and also that being in a state of excitement or war, a party had boarded the vessel. But if such a thing as that were to form a justification for the natives, such a state of matters would be against all law, and would introduce a system of anarchy. -It was impossible for the Court to take considerations of that kind into account. 17

It is therefore important to assess how far the Queen's writ ran in the province in 1865. ( I

The Treaty The Treaty of Waitangi was signed in the district in May and June 1840. James Fedarb, a former Church Missionary Society (CMS) worker, now trader, left Tauranga on the 22 May 1840 and sailed through the Bay of Plenty collecting signatures as he went. The presence of Pompallier in recent visits seems to have had little if any impact on the chiefs visited. At Opotiki on 27-28 May seven chiefs signed, of whom some were Catholic, some CMS ~ the Treaty sheet being marked to signify which were Catholic.

16 Daily Southern Cross 16 March 1866, Wai 46 C1 0 vol II A2:4

17 Daily Southern Cross 17 March 1866, Wai 46 C10 vol II A2:5-6 \

8 Fedarb gained 12 signatures at Whakatane on 16 June. I8 These people, according to the claimants, were of the Ngati Pukeko hapu of Ngati Awa, except Tupara of Te Arawa, who was married to a Ngati Pukeko woman. I9 Fedarb delivered this copy to the Bay of Islands in mid June. 20 Te Arawa did not sign.

Official views on the application of English law after 1840 With the declaration of sovereignty over the entire country in May 1840, the Imperial Government view was that the common law applied throughout the country. As Alan Ward points out, London's pessimism about the chances of Maori custom surviving eolonisation lead them to a policy of prevent settler oppression, but making no effort ·at power sharing. Within weeks of landing in New Zealand, soldiers and police magistrates were arresting Maori for offences against the common law. 21

In one of the first cases tried in Wellington, involving a Maori taking a blanket from a settler, it was argued for the defendant that the Treaty of Waitangi, in reserving rights of chieftainship, reserved the right of administering justice among members of the tribe. The Crown responded that the administration of justice was not a traditional attribute of chieftainship and, in any event, since a settler was involved this was not an internal tribal matter.22 Here was an early rejection by the Crown of the sort of argument Ngati Awa now raise.

Also, from the earliest days after the signing of the Treaty, the government was insistent that in matters of serious assault or homicide between a Maori and a Pakeha, English law should prevail. This is not surprising. It allowed ( . . ) the government to control potential race relations tlashpoints. The policy achieved this aim by working both ways. For example, in 1842 a settler was

18 Claudia Orange The Treaty of Waitangi (Wellington 1987) p76-77

19 Wai 46 A 18:29. They also say there were 17 signatories.

20 Orange Treaty p76-77

21 "Law and Law-enforcement on the New Zealand Frontier, 1840-1893" NZJH October 1971 p130

22 EJ Wakefield Adventure in NZ (London 1845) p146-149. 9 sentenced to 2 years goal for shooting at a Maori.23 Some Maori seem to have seen the advantages of this over traditional feuding.24

This explains government expectations for the country. Maori views, and the realities of law enforcement, were a different matter.

Maori living in the centres of major European settlement in the Bay of Islands and Auckland lived from an early stage alongside the new law. This was not so in the Bay of Plenty. Government attempts to intervene in inter­ tribal feuding in 1842-43 in Bay of Plenty met "outright defiance" .25

The facts of the case were that in November 1842 a group of Te Arawa men and a small boy from Maketu had been attacked when sailing in the Tauranga harbour with two Europeans on their vessel. A breach of tapu (. ' seems to have been involved. The Ngaiterangi attackers captured the vessel. The Te Arawa men escaped and hailed a passing European ship. They stole that vessel and sailed back to Maketu. A group of Arawa men then sailed to Tauranga to avenge the attack and the disappearance of the boy, whom it was presumed had since been killed. The taua went to Mayor Island and ambushed and killed 2 Ngaiterangi there and took 2 prisoners, who were later eaten.

The government was alarmed at the prospect not only of a potential tribal war-affecting a prosperous port, but the theft of two European vessels with apparent impunity. The Acting Governor Shortland became involved, arriving in Tauranga in early December 1842. Ngaiterangi gave up their vessel readily. Te Arawa apparently replied to the Governor that "they had nothing but dry fernroot to eat, and would much enjoy a slice of his fat sides (. to moisten it" .26 Shortland's response was to send for troops from "- Auckland, who arrived in late December. In the meantime Bishop Selwyn

23 Alan Ward A Show of Justice (ANU 1974) p49

24 For eg see Ward A Show of Justice p51-52 and 53 where he discusses the hanging of the murderer Maketu in 1842 - for those involved in the Bay of Islands it avoided a potentially costly feud

25 OM Stafford Te Arawa. A History of the Arawa People (Reed 1967) pp289ff, Ward NZJH p132 and see Great Britain Parliamentary Papers 1844, 556 Appendix pp89-90 and pp458ff and Ward A Show of Justice p58-59.

26 Stafford Te Arawa p293 10 and the Chief Justice Sir William Martin travelled to Maketu and made an unsuccessful attempt to negotiate a solution. The affair worked itself out without further bloodshed over January and February 1843, the Arawa chief Tohi Te Ururangi, father of the sma]] boy who had been kil1ed, being central to a compromise involving the return of the boat and payment of compensation by Te Arawa. But this was not before the Protector of Aborigines and the Attorney-General had expressed strong doubts about Crown jurisdiction in the region. Shortland thought the safest course was to insist that English law extended over the region, not for any technical legal reason, but to avoid uncertainty and show consistency in the government approach towards Maori. Needless to say, in such a tense situation, no one was arrested- for their involvement in the killings. A warrant issued for-a Maketu chief was not enforced.27

( ) One result of the incident was that Clarke, the Protector of Aborigines, appointed Edward Shortland (the brother of the Governor) to be a sub­ protector based at Maketu. He was replaced in 1845 by TH Smith.

The Native Exemption Ordinance 1844, which, when operative, would have applied in specified districts English law modified to Maori custom, was another expression of the ambiguity felt at a central level. This measure was however overturned by Governor Grey who, from 1845, with better resources than his predecessor, undertook a more aggressive scheme of extending Pakeha control, based on- a quasi-military constabularymode1.28

One of Grey's measures was the Resident Magistrates Ordinance of 1846, which was designed to:

introduce European concepts of law and order and behaviour to pr~dominantly Maori areas, simultaneously with the beginnings of white penetration. This process however had begun to occur with any great significance in but a very few areas by the late 1850s, when the Resident Magistrates normally resided at British settlements in well­ penetrated areas and relied to a great extent for any dealings with Maoris in the countryside upon a small number of chiefs given salaries

27 Ibid pp296-297. The chief was Tangaroa

28 Richard Hill The History of Policing in NZ, Volume One. Policing the Colonial Frontier. The Theory and Practice of Coercive Social and Racial Control in NZ 1767-1867 Part One p226, 233-235, 241 and 258 and chapter IV and Ward NZJH p133 1 1 as Assessors.29

Despite this forthright approach, Grey's policy had not borne much fruit when he left NZ in 1853.

It must also be borne in mind that the extension of the Queen's writ and acceptance of it by Maori was not a simple linear process. The strength of English law waxed and waned in districts as the political mood changed. For example the 1850s saw a change as resistance to land sales grew. Chiefs happy to accept te lure as a useful tool to solve problems at an earlier time, now resisted its extension to land. 30

The national situation in the 1860s ( I Within 25 years of the Treaty signing, English law was not confidently asserted in districts outside the immediate large settler settlements in the North Island, although this was rapidly changing. The official view as late as 1858 was that:

... it ought to be fully understood that the British Government in New Zealand has no reliable means but those of moral persuasion for the government of the aborigines. It is powerless to prevent the commission by Natives against Natives of the most glaring crimes. Within the last twelve months blood has been spilt in Native quarrels in at least four different places in the Northern Island - at New Plymouth, the Bay of Plenty, Hawke's Bay and the Wanganui River: in one instance, within the limits of a British settlement. In the cases ... in which aggressions are committed by Natives against settlers, the Government is compelled to descend to negotiation with the Native ( I chiefs for the surrender of the offender. The development of the material resources of the extensive wilderness still in the hands of the natives, ..... depends absolutely on their will. Without their consent it is impossible to surveyor even to traverse the country; much less could the Government undertake the execution of roads, bridges and other public works in the Native territory. 31

29 Hill The History of Policing Part Two p801

30 Ward NZJH p137

31 Sewell, 10 August 1860 NZPD 1858-1860 p277-278, Wai 46 11 (a):11 12 The levels of Maori and settler populations were roughly equal at 1858, but undergoing rapid change in favour of the settlers through the 1860s. The Maori population was in a steep decline, at around 56,000 in 1858 when the first census was taken. The settler population was around 59,000 at 1858, but would sharply increase to over 297,000 by 1874. By this time the Maori population would be estimated at a mere 47,00032

It was not until November 1863 that the Civil Commissioner in Hawke's Bay noted that a new regard for the law had arrived in that province, and then only in that month. In one case a single policeman had arrested a Maori in the midst of a large gathering of his friends and taken him to jail without an . attempt being made at a rescue.33This indicates the beginnings of tolerance of the new regime, but not complete acceptance by any means.

This was especially the case outside urban areas. The situation still seemed to be as the Auckland magistrate Thomas Beckham had described in 1860:

I should not hesitate to enforce the law within a short distance of town - the radius of settlements, say a few miles. I should never attempt to execute process unless I felt an absolute certainty that it could be enforced. I should not feel certain beyond the limits. I have ventured when necessary to have recourse to the Chiefs of the tribe to whom they belonged to deliver up the Offenders.34

He quoted one such case involving larceny "30 or 40" miles from Auckland. The chiefs had agreed to give up the offender.35

This was the pattern elsewhere. In the King Country, Maori provide ) sanctuary to fugitives from crimes in government controlled districts in the early 1870s. There were killings of white settlers on blocks claimed by Kingites in 1871 and 1873. The Kingites allowed European police across the aukati in 1873 in pursuit of a Pakeha fugitive, but denied entrance in 1876

32 Statistics NZ NZ Yearbook 1995 p128

33 See Ward A Show of Justice p174

34 AJHR 1860 E5A p10 Wai 46 11 (a):16

35 Ibid p10 13 when a Maori fugitive was pursued.36

The 1871 incident concerned a settler named Todd killed near Pirongia. It was said he was given fair warning that the land he was on was in dispute, and his killer was not given up, although it was understood that the government might attack local Maori as a consequence. 37 This shows that King Country Maori, while being confident in the assertion of their own law, were also well aware of the Crown attitude to such killings.

The incident in 1873 is more interesting. This also involved land within the aukati area, but claimed by settlers. The land, near Cambridge, had been leased to Europeans in contravention of the King's law that leases not be given. A settler named Sullivan was killed while surveying the disputed land. The sentence of death for breach of the law was spelled out well in advance ( of the killing.38 Tawhiao supported the killing on the grounds that his law had been contravened.39 Sullivan and his companions had received repeated warnings in the past about being on the land.4o The killers had spared the life of another man they had kidnapped after he claimed not to be involved in any way in land dealings with the disputed lands. 41 Those pursuing Sullivan had left off the chase of another man when he had crossed the boundary into Crown land. Sullivan had his head cut off and his heart taken out.42 Rewi Maniapoto explained: "Do you not see that the Maori thought that he was acting according to the law. The King said 'Do not lease the lands outside the boundary' - the consequence is that the Europeans are killed." James McKay, the government official investigating the incident, rejoined that "The Europeans and friendly Natives did not acknowledge your

( 36 Ward A Show of Justice p234-235 and AJHR 1871 F6A p16, 1873 G3, and 1880 G4 p5, Wai 46 11 (a):25, 27, 29

37 In his report, Civil Commissioner HT Clarke noted that Maori had expressed "pleasurable surprise" at the manawanui or forbearance of the government in deciding not to launch the an attack in light of the Maori stance.AJHR 1871 F6A pp1 0-11, Wai 46 11 (a):25

38 AJHR 1873 G3 p3, Wai 46 11 (a):27

39 Ibid p5

40 Ibid p27

41 Ibid p4

42 Ibid p27 14 laws any more than you do ours; and do you think the way to settle these questions, and come to an understanding, is by murdering people?" .43 This was hardly a firm application of European law, and a letter written to the chiefs about the incident was in the same mollifying tone. 44

This incident points to some elements of a cultural defence; a clearly articulated law, the victims being made aware of the law, the killers relying on the same law, the law and the action of the killers being endorsed by the lawmaker, the key figures in this case being Tawhiao and Rewi Maniapoto. Finally, the colonial government, while not accepting the law, clearly acknowledged its force.

Donald McLean in 1870 said that he regarded the idea that there should be one law for all as dangerous, and lamented that the effect had been: "to induce Europeans on the one hand to expect the enforcement of the Queen's writ throughout the country and on the other of exasperating a large section of the aborigines who emphatically declare national independence and deny the right of any foreign power to exercise authority over them. ,,45

The tension McLean described between the ideals of the "one law" school and the reality in the provinces were evident in the debate over the Maori Provinces Bill in 1865. The Native Minister, James Fitzgerald, moving the introduction of the Bill, noted:

The country to which this Bill related might be called at present, so far as European authority was concerned, no man's land. It was a country not inhabited. by Europeans at all. There had been no attempt whatever to form settlements. The major portion of this country he believed to ( \ be unfit for occupation by Europeans; ... he might state it was the country which extended from the settled part of the Province of Auckland down to the northern boundary of the southern provinces of the No~th Island ..... The boundary commenced to the south of William Naylor's tribe, and ran on to the Bay of Plenty, near Matata . .... Within this boundary there was literally no settlement of any description. There was, comparatively speaking, very little land belonging to the Queen there. The two races were not at all 'mixed in

43 Ibid p7

44 Ibid p4

45 NZPD 1869 vol 6 p203-4, Wai 46 11 (a):11 15 this country, .... It was nominally under the government of Auckland; but they knew, as a matter of fact, that the laws of the Provincial Government of Auckland had never been heard of in that territory. 46

The proposal was to constitute districts and appoint a Government officer to them to "carryon negotiations with the Natives, and then gradually to ascertain what sort of government would be acceptable to them - what sort of government they would consent to live under, on condition that they would permit the Queen's authority to be carried out in their districts ... " The result would be enacted in a law acceptable to Maori. 47

In the end however the "one law" school had the bill put on hold for 6 months. It was never resurrected.48 It should be noted however that even had it been passed, homicide and serious assaults would have been excluded ( from the jurisdiction given to Maori.49

The application of English law in the Bay of Plenty The Bay of Plenty was probably even less amenable to English law than these districts. A look at the extension of European trading, missionary and government activity gives a sense of how "inculturated" the region had become with European ideas by the 1860s.

Traders had been in the Bay of Plenty since the 1820s.5o Hans Tapsell arrived in 1830 to trade goods, including arms, for flax. When he landed at Maketu he was faced by hundreds of Ngaiterangi and Te Arawa people. After considerable debate, Ngaiterangi chiefs signed a deed granting land to (

46 NZPD 1864-1866 p621, Wai 4611(a):11

47 Ibid pp623 & 625

48 Ibid pp623 & 625. Ward A Show of Justice p189 discusses the background to this measure. It was introduced in the hectic 3 months that Fitzgerald was Native Minister from August. to October 1865. It was defeated by North Island politicians alarmed at its possible impact

49 Ibid p189

50 JA Wilson Te Waharoa p32. Wilson describes the brig Haws which anchored off Whakatane in 1829, trading ammunition for pigs and flax and the attack on the ship by Ngarara of Te Whanau Apanui while it was at Whale Island 16 Tapsell at Maketu in exchange for a case of muskets and other items. There also seems to have been a permission given by Ngaiterangi to Te Arawa groups to locate themselves at Maketu to gather flax 51

By the late 1830s Tapsall established trading posts at Matamata, Tauranga, Maketu and Te Awa 0 te Atua, and had some influence along the coast. He 52 had a post at Matata in 1836. . He was the most important European trader on the coast.

Missionaries had also been present since the 1820s. In 1828 the missionary schooner the Herald sailed the length of the Bay of Plenty to see if missionary activity was a possibility. The ship conveyed the Ngatiwhakaue chief Pango back to his tribe. He was landed at Maketu. It seems the missionaries were discouraged by this visit - while not overtly challenged, they were not openly welcomed from Tauranga to Whakatane.53 This incident also demonstrates that chiefs were in contact with new ideas from the north.

The Reverend Henry Williams arrived at Tauranga and established a permanent mission there in March 1832. Thomas Chapman set up a Rotorua mission in August 1835.54

In March and April 1840 the Catholic missionaries Pompallier and Viard toured the Bay of Plenty coast, stopping at Opotiki and Whakatane. Tupara, a nephew of the chief Korokai, was given prayer books, which he apparently distributed - one to each sub tribe of Te Arawa.55 From 1841 a Catholic priest was stationed at Opotiki, and Maketu, and laterWhakatane.56 A survey in 1846 found 600 Catholic converts in the Whakatane district. 57 ( )

51 Stafford Te Arawa pp193-196

52 Stafford Te Arawa p235

53 Wilson The Story of Te Waharoa pp21-29

54 Stafford Te Arawa chapter 40

55 Walter Gibbons One Hundred Years of Mill Hill at Matata (1986) p4

56 Ibid p4

57 Ibid p5 17 The influence of the combined churches was therefore considerable by 1860.

However, as the above quotes indicate, government officials were much slower coming into the area. No more than a rudimentary experiment in the use of runanga was in effect. Practically the only official exerting English law 'on the ground' was the resident magistrate TH Smith. This compared poorly with other districts, for example the far north and south island which had greater resources to deal with smaller potential problems. 58 The reach of the magistrate was extended by assessors, or kaiwhakawa, but there was only one or two of these in the Bay of Plenty, and they did not act as officials of an English legal system:

They or their agents, acting as policemen in enforcing their own mores - often with a mixture of customary and European norms - drew upon ( their mana and traditional tribal modes of coercion as well as upon the white man's authority ..... Chiefs might act as they wished for their own purposes without reference to pakeha officialdom, but at the same time using their state-given authority a 'Magistrates' (the term commonly used to describe Assessors) to bolster their mana and more forcefully authenticate their actions. 'In some parts of the country, it seems that the Magistrates construe into an offence anything that is offensive to the tribe generally, and then deal with it according to such a rule of judgment as they can frame for themselves from a passage of the Old Testament or the New, or from some rude notion of what the Pakeha would do in such cases.' 59

Tohi te Ururangi was the most noted of these assessors in the Bay of Plenty, being unofficially appointed from 1858.60 He attempted, among other matters, to mediate between N gati A wa and Whakatane over a boundary ( issue. The fact that he stands out as an official at the time reflects on the uniqueness of the position held in the Bay of Plenty area.

Before the arrival of Governor Grey for his second term in late 1861, . various reports were collected on the state of law and Maori in North Island districts. In the same year, Grey had officers tour these districts to explain his new scheme to formalise runanga, and select suitable Maori candidates to

58 Hill The History of Policing in NZ vol 1 part 2 p802

59 Ibid pp803-804

60 Stafford Te Arawa p350 and DNZB vol 1 p545 18 act as paid officials in the districts. These two events produced a wealth of information on the penetration of English law into these districts.

One of the reports briefing the incoming Governor was prepared by Hanson Turton in November 1861, in which he noted his observations of the operation of runanga as he had travelled as district magistrate. 61

The overall impression he presented was one of change, with a growing recognition that English law was threatening to superseded Maori systems of law and control, but with still a quite active debate going on about whether this should or could be resisted. On the eastern coast he thought the desire for law was "very great", but noted also:

At Tauranga, as in other places, I could not but observe the extreme inconvenience of having two different systems - the Maori and the English - at work, at the same time; for neither party will submit to the other, and all are thrown into confusion.62

In the Bay of Plenty he made these comments:

At Maketu, there were but few Natives, and no runanga; our Assessor, Tohi te Ururangi, managing everything in his own person. Besides which, all the people seemed under the personal influence of the Rev. Mr. Chapman, who exercised a paternal authority over them. At Otamarakau, until break of day, the talk was all about the runanga; and at Matata it was found flourishing with great authority. At Whakatane, they suspended its operations until after they had done fighting about the land. This broil originated in a slight quarrel about ( the site for a mill, and was said to be beyond the power of the runanga, or Government influence, or anything but the force of arms, to decide: and so they were left to finish it, having lost seven on one side (Ngatiawa) and fifteen on the other (Ngatipukeko).63

In Ohiwa, by contrast, "they had certainly gone stark mad on the subject. One man was fined a foal for carrying a pistol with him on the beach. Another was fined £5 for stating his opinion that the runanga of the place

61 1862 AJHR E5A, Wai 46 11 (a):13

62 Ibid p7

63 Ibid p7 19 had in a certain instance acted improperly. ,,64

At Opotiki, he found a "very extensive" runanga operating although he thought it "objectionable and unwieldy", with 70 members sitting over 5 nights to deliver a verdict of 8s on one matter. 65 At Wairoa on Lake Tarawera Turton found what he considered a "model" runanga, and attributed this mainly to the presence of the missionary Rev Spencer. 66 At Turton's urging, Te Arawa and Ngatiwhakaue wrote to the Governor seeking a resident magistrate. Clarke's appointment to the Bay of Plenty followed this request. 67 Even in such a small area however the application of the runanga model was uneven, with Turton noting that "on the opposite side of the lake, among the Ngatirangihihi [sic] I found the runanga all at fault, meddling, and jUdging, and fining on all hands; ... ,,68 ( The government was consciously using an old Maori notion, the runanga, to introduce its new legal concepts69

But it should also be noted that the runanga were never intended to try murder or major criminal matters. Certainly it was not intended that they consider murders of Europeans.

A second report was prepared by Henry T Clarke, the resident magistrate for the Bay of Plenty in October 1861.70 Of Tauranga people he noted "they have shown a disposition generally to respect the laws, and ... abided by the decision of the Court or the adjustment of their Assessors. ,,71 This can be contrasted with Turton's comment that 2 laws were operating in Tauranga. Clarke did note that land disputes continued, although with less vehemence ( 64 Ibid p7

65 Ibid p8

66 Ibid p8

67 Ibid p8

68 Ibid p8

69 see for eg Ibid pp9-11 and Turton's comment about the definitions of komiti and runanga p3

70 AJHR 1862 E7 p40-42, Wai 4611(a):17

71 Ibid pp40-41 20 than in past years, and with the intervention of third parties now being acceptable. He commented that while chiefs were prepared to put some trust in a runanga for some purposes they were not prepared to let them "sap at the root of many of their greatest grievances, such for instance as the unsatisfactory state of their own land claims. "n

He found the Arawa tribes "the most powerful in the whole district", amenable to English law, he thought mainly because of the trial and execution of a Pakeha convict, cal1ed Marsden, for the murder of an Arawa woman. 73

Whakatohea he found "in a most unsatisfactory state", with the runanga a "curse" which had become "a systematized substitute for their old pernicious customs of 'taua'. Faults the most trivial are raked up and the unfortunate offenders heavily fined" .74 This accorded with Turton's view.75

The Ngaitai and Whanau-a-Apanui districts were in a relatively untouched state, having never been visited by a magistrate till early in 1862. Clarke found them "anxious to obtain information respecting the working of the English law" and a willingness "to adopt it so far as it will suit their circumstances. ,,76

Reporting in the area "Matata (or more correctly Awa-a-te-Atua) and Whakatane" he-found:

The country between these two rivers is occupied by the Ngatiawa. They, like their connexions at Tauranga, have till within the last twelve months been engaged in internecine feuds, but have made ( ) peace, which I hope, since a better order of things has been established, will be permanent.

When I arrived amongst them last year, they showed a disposition to

72 Ibid p41

73 Ibid p41

74 Ibid p42

75 And Hunter Brown's view in June 1862 see AJHR 1862 E9 p31, Wai 46 l1(a):18

76 Ibid p42 21 substitute our laws for their own unsatisfactory customs. But during the contest at Taranaki, they became restless and showed other symptoms of disaffection. The advantages of joining the "Waikato movement" were often discussed at their meetings, and the encroachments of the pakeha deprecated.

Since the Taranaki war has ceased, these Natives have greatly changed for the better; they have refused to receive the "king's flag" although it has been pressed upon them by the Taupo Natives; they have ceased to annoy the settlers, and are willing to acknowledge that they are great gainers by being in connexion with Europeans, and are benefitted by adopting our laws.77

TH Smith, reporting on meetings in December 1861 at which he explained ( the new arrangements of the Governor to Maori in Tauranga, found that responses differed markedly:

Some were for rejecting altogether the overtures of the Government, .... Others expressed their appreciation of the good intentions of the Government, but were unwilling to acknowledge the Queen or the Governor as having any authority over them. Others were for maintaining a neutral position between the Government and the Maori King, ... While a few urged the acceptance of the proposed plan without any reservation.78

The meeting reserved its position. It should be noted these varied responses were in the face of a considerable inducement - the government offer to appoint salaried officers from among Maori and provide some development ( assistance. Smith also noted, as Turton had, that chiefs were reluctant to let land matters be determined by runanga. They were suspicious that the government intended to buy more land. 79 At Maketu, Smith found several runanga to be. "in full operation, and nothing is to be done without them". He argued for and achieved there the acceptance of just one runanga. 80

77 Ibid p42

78 AJHR 1862 E9 p4, Wai 46 11 (a):18

79 Ibid p5

80 Ibid p5 22 When HT Clarke as resident magistrate visited Whakatane in November 1861 to explain the new institutions, he found a runanga meeting progress, deciding on a question of adultery, and applying a mixture of European process and Maori law, in fining one party heavily in order to deprive him of his property, which he had been using it was said to get his tribe in trouble. 81

In his meeting with Ngatiawa groups in May 1862 Smith found more reticence. Te Hura, described by Smith as "the principal chief of the Ngatihouhiri" said that he would accept the new system, but if he should discover he had been deceived about it he would renounce his connection with the government. 82 Smith found a similar, if not slightly more negative attitude at Kokohinau. Smith observed the dissentients did not speak out and he thought most came from Te Teko. 83 As one chief eloquently put it:

They were afraid of the Pakeha: his system was like his plough, first came the wheel which went smoothly along over the ground, behind it was the coulter which divided the soil, and this was followed by the share which turned it over. 84

Smith's meeting at Whakatane was a flop, as most Ngati Awa were away, according to Smith because an arrangement to bring groups together had failed. Several of those present, as elsewhere, expressed concern about possible ulterior motives the government might have. 85 Overall, Smith thought that the principal chiefs and a large majority of the people from the "Ngatiawa tribes" were pledged to adopt the new system. He admitted however that they were less enthusiastic than Te Arawa. 86 In fact his own report suggests this conclusion was too sanguine. He received a very () qualified support at best, and most significantly, neither himself nor Clarke had managed to address a full representative meeting of Ngati Awa groups,

81 Ibid p6

82 Ibid p20

83 Ibid p21

84 Ibid p21

85 Ibid p21

86 Ibid p22 23 as they appear to have for Te Arawa. 87

As a result of Smith's visits, detailed changes to administration of law in the region were made. Five runanga sub-districts were created to cover the Bay of Plenty. In late May 1862 a Hundred in Ngati Awa territory was established and nominations secured for 2 wardens and 7 karere. Within the 'Whakatane" hundred, the assessor Te Makarini Te Uhiniko was based at Te Awa 0 Te Atua, and Hoani Matenga Paruhi at Rangitaiki. The Whakatane hundred was shortly after renamed Te Awa 0 Te Atua "to better suit the power realities of that part of the coast". A separate M aketu hundred was established and headed by Retireti Tapsell.88

However, because of the war, the scheme did not introduce English law as planned. The reticence noted by Smith and others was reinforced by ( Government actions in relation to the Kingitanga. By 1865 the Crown had arrested the powerful Tauranga chief, Tupaea, and Ngati A wa and their allies had clashed with government troops along the coast.

Even Te Arawa acceptance of English law was in no way absolute. In 1873 Herbert W Brabant, the resident magistrate at Opotiki, reported that Mokomoko's daughter, 14 years old and a prisoner of Arawa from the recent war, had claimed the right to return to her tribe, Whakatohea, and had run away to them. "The Arawa claimed her on the ground of conquest and of her being allotted wife of one of them, and sent a large party to demand her back." A serious disagreement was feared but Brabant recorded that he was "allowed" to settle the case, and the girl was given her preference to remain with her kin.89 .' ( On a purely territorial basis then, the Queen's writ did not run easily in the Bay of Plenty in 1865. It was not until 1880 that Brabant could write that the resident magistrates court at Ohinemutu and more rarely Maketu was beginning to regularly hear civil cases brought by Maori against others and that they were regularly submitting themselves to trial for indictable

87 This is evidenced also in the blank spaces in his suggestions for runanga members, assessors and "kareres" for Whakatane - see Ibid pp22-23

88 Hill The History of Policing in NZ vol 1 part 2 p825-826

89 AJHR 1873 G1 p11-12, Wai 46 11 (a):26 24 offences, mainly assaults.90

It should be remembered too that 1865 was the year in which the Native Rights Act was passed - to remove doubts even then existing about the legal status of Maori. It was also the year in which Sir William Martin wrote to the imperial government that the Maori resistance to the Crown could not be classed as criminal, since they were only nominally under the Sovereign's authority anyway. The acts and proclamations of the Crown, he argued, were practically viewed by Maori as nothing more than announcements of a stronger party to take the lands of the weaker.91

At best, it can be said that the 1860s were a period of change where the Queen's writ was understood, but inconstantly applied by both sides. Ngati (­ Awa were still at a stage of being able to opportunistically apply the law as 'I ) they saw fit in civil disputes, and in inter-tribal matters of a non-serious nature. They were reluctant to allow the new law to operate in key areas such as land disputes and inter-tribal disputes.

The aukati According to Mead92 Te Hura Te Taiwhakaripi 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.

What was the nature of this aukati, was it a traditional Ngati Awa matter, and who supported it?

Ngati Awa chiefs had reacted against the killing of Volkner. On 5 March ( ) I.. . 1865 six chiefs, writing on behalf of a runanga of the whole tribe to "Te Kawana ara ki tona Runanga hoki", said that "A wa is pained on account of this murder" of Volkner. The word kohuru was used to describe the killing 93 A further 2 Ngatiawa chiefs, on behalf of all Ngatiawa, wrote to Civil Commissioner Smith on 6 March again distancing themselves from the

90 AJHR 1880 G4 p6, Wai 46 11 (a):29

91 1866 AJHR A 1 pp70-71, Wai 46 11 (a):24

92 SM Mead and Miria Simpson DNZB vol 1 p453, noted above

93 AJHR 1865 E5 p5, Wai 46 11 (a):23. They said that "the fault (or crime) of the Opotiki natives is murder." "kia rongo a Awa, kei te mamae no tenei kokuru" and "ko te he ki Opotiki he kohuru". 25 murder of Volkner. "This is the word of all Ngatiawa. They turn away from this crime of murder committed by the Whakatohea and Taranaki". 94 These chiefs also then wrote to Te Arawa asking that they be left unmolested because that had not taken part with Whakatohea in "this crime of murder" .95 Then, after a meeting on 18 March involving 300 men, 27 chiefs laid down their "law" or "ture" on the matter; that they condemned the killing of Volkner, and they would not aid Whakatohea but remain in their own boundaries.96 In a letter to Smith of 18 March, Wepiha Apanui, one of those endorsing the resolution of the above meeting, wrote:

"Friend, this is another word about our Pakeha Maories who come to Whakatane, let them not be forbidden, for we steadfastly desire that our Pakehas should continue to come to our settlement. Friend, be not afraid of the Hau Hau or of the King people for they have bodies and ( we have bodies; we know what to do. We are chiefs and have the thoughts of chiefs. We will not have murder brought to our place. "97

Pai Marire adherents were however pursuing a different course. A Miss Wallace, writing almost a month earlier on 21 February 1865 from Whakatane stated that:

On Saturday last a large party of 'Pai Marires arrived at Ko Peopeo from Taranaki and Taupo, bringing with them a British soldier a prisoner, and the head of Captain Lloyd, ....

They have put a cut* on this port, and have laid down the law here, that no vessels are to be allowed to come here under pain of being taken, and all on board put to death. Our informant, an European, .... says he is afraid the Ngatipukeko will not dare to resist them, as they ( are in great terror of them. They left for Opotiki on Monday morning, leaving behind a party to watch that the cut is not broken.

At Opotiki they will do the same, and were heard to say that they would give the Rev. Mr. Volkner orders to leave, and if he refused he

94 Ibid p7

95 Ibid p11

96 Ibid p14

97 Ibid p15 26 would be killed. If the Whakatohea refused to do it, they would.98

A note below explained that the "*" meant '" Kati' - to shut". The writer went on to say that she had promised the informant to get word to Volkner and ask him to remain in Auckland.

The use of an aukati by the followers of the Pai Marire was not surprising. Aukati lines were fundamental to the teachings of Te Ua Haumene.99 He is an enthusiastic supporter of the King's aukati in the Taranaki region, and "the right to defend territorial boundaries remained the corner-stone of his politics". The beaching of the steamer Lord Worsley within the aukati line under Kingite iaw should have meant death to the trespassers. It was this event which gave Te Ua has his vision of the future for Maori society.

Paul Clarke in his book "Hauhau": the Pai Marire Search for Maori IdentitylOO records the centrality of aukati to Te Ua, and the scheme enforced in parts of Taranaki where no white men were to pass, even ministers. lOI Pai Marire emissaries spread the idea of demarcation between Maori and Pakeha through the use of aukati at Turanganui, Nuhaka and Petane in the Hawkes Bay, and also in the Wairarapa. Clarke records that the boundaries or "posts of war" mentioned at Petane were those at Whanganui, Waitotara, Taranaki, Waikato, Tauranga, Maketu, Te Awa 0 te Atua, Whakatane and Ohiwa. 102 Tupaea at Tauranga also attempted to . draw a boundary line against loyalist Maori and pakehas. 103

Persons who most represented Pakeha authority were restricted in their access to Te Ua's followers. The persons most suspect were policemen and other representatives of 'government, followed by ministers of religion. In () Taranaki, within a month of the wreck of the Lord Worsley, comments were being made that missionaries were spying on Maori and were therefore

98 AJHR 1866 A 1 p35, Wai 46 11 (a):24

99 L Head DNZB v1 p512

100 Australia Uni Press 1975

101 Clarke Hauhau p54-55 and pp67-70

102 Ibid p67

103 Ibid p31. 27 particularly suspect. 104

At the meeting at Tauaroa it seems that the desire to maintain a strategic border against Arawa coalesced with the Pai Marire views on aukati. According to the Arawa chief Rirituku Te Puehu, who was present, the meeting was to decide what should be done about the Arawa and their recent successes against Ngati Awa.105

Horomona Poropiti, a Taranaki adherent of Pai Marire, was the main speaker at the meeting, and suggested an aukati similar to that imposed in Taranaki:

He told us the rules regarding the Aukati at Taranaki. When the Aukatis were established at Taranaki, the first was broken by the ( Pakehas: - The second was broken; the third was broken; And, at the fourth, Kio (a chief of Wanganui) was killed, for crossing the Aukati: he was killed by the Hauhaus at Taranaki. 106

Rirituku also remembered that Horomona said:

"The Aukati is this day established. It has been raised before, but I fully establish it again this day. The reason that it is established is to save the women and children." 107

Horomona insisted that the boundaries of the aukati should be wide, to allow those within it more area to move and avoid being 'driven into the mountains' .108 Its seaward line was to keep Pakeha away, the landward (

104 Ibid p68 and see Sir William Martin comments at 1866 AJHR A 1 p68 about the belief from before even Te Ua's time that missionaries were the advance guard to the government taking Maori land was the reason for the toll set up in Taranaki in the 1860s demanding the heaviest toll from ministers.

105 Rirituku Notes of Procedure & Evidence R v Te Hura p3 & p7, and Notes of Procedure & Evidence R v Kirimangu (Ned's case) p7-8, both at Wai - 46 C1 O(b)

106 R v Te Hura p4

107 R v Kirimangu (Ned's case) p9

108 ibid 28

line to keep Maori (ie Arawa) away. 109

The boundaries ran from "Te Awa 0 Te Atua, from thence inward to . Ruawahia, thence to Tongariro, from that to Taranaki, From Awa 0 Te Atua again seaward, as far as Ruriona, thence to the East cape." 110

Solomon stressed the religious nature of the aukati. Rirituku recalled that:

The Aukati was an enclosure, the same as if they were all in this room, and anyone coming in at that door the chief would be angry with him. The Rangatira was the God, and it would be for the God to invite persons in. If any person entered without authority (or permission) he would be killed. lIl

Solomon was specific that even relatives should not be spared. If anyone was spared, the tribes within the aukati would themselves die - that is, they would be 'delivered to the hands of our enemies'. 112 Solomon also suggested that because those breaching the aukati were brought there by the gods, their deaths were the work of gods rather than men. l13 Hekara, one of the men later accused of assisting in the killing of Fulloon, said that the killing had been done 'by the god' and not by men. 114

The witnesses may have been overemphasising the religious imperative in the aukati, to demonstrate that their actions in killing Fulloon had been to some degree involuntary. Nevertheless, if we examine closely the events immediately preceding the killing of Fulloon, the Pai Marire inspired aukati can be seen to be an important reason for his death, even if not the only one.

109 ibid

110 Rirituku R v Kirimangu (Ned's case) p8

111 Notes of Procedure & Evidence R v Kirimangu (Fullan's case) p1 0, Wai 46. C10(b) and R v Kirimangu (Ned's case) p9

112 Rirituku R v Te Hura pp4, 8 & 11 and R v Kirimangu (Fullan's case) p11 and R v Kirimangu (Ned's case) p 9

113 Rirituku R v Kirimangu (Ned's case) p9

114 Wepiha Apanui R v Kirimangu (Fullan's case) p35 29 Events before Ful1oon's arrival in Whakatane In the 2 months immediately preceding his fateful trip to Whakatane, Fulloon had made 2 visits to the Bay of Plenty coast as a part of the hunt for the killers of Volkner. In early May 1865 he accompanied Captain John Luce aboard HMS Esk on a tour of the Bay and East Coast. Fulloon, as interpreter, was vital to the object of that tour, to sound out support for the government along the coast and tell Maori to remain loyal to government. 1lS

Fulloon had been an enthusiastic supporter of Government policy, to the extent that he had in 1863 given detailed comments to the government about the Maori King's strategy in the event of war, based on his visits among Waikato Maori.116 ( The ship visited Te Kaha, Hicks Bay, Waiapu and other eastern settlements. At Te Kaha, Fulloon met with 2 Ngati Awa chiefs to discuss the possibility of raising a contingent of Maori to counter the Pai Marire movement. One of the chiefs was Hori Kerei Kawakura, who was later present at Whakatane when Fulloon was killed. 1 1'7 Pai Marire followers were present at Te Kaha, but remained 'quiet'. This was no doubt in part because the Esk was a . man-o-war, possibly one of the first to anchor along the coast. 118 Its presence was a definite show of force by Governor Grey. To any observer, Fulloon's association with the government military forces could not have been clearer.

After the Esk returned to Auckland, Fulloon was despatched aboard another navy ship, the Eclipse, to Whakatane with a definite mission to arrest the killers of V o Ikner. 119 It is possible Grey was inspired by the quick capture ( of a deserter during the earlier trip at Poverty Bay on 3 May. Fulloon had been instrumental in this.

The ship called at Whakatane on the 20 May. The chief Hopa Apanui had

115 AJHR 1865 A5 p40ff, Wai 46 11 (a):22

116 MA 1 - 1863/280, Wai 46 11 (a):4

117 AJHR 1865 A5 p40, Wai 46 11 (a):22

118 WT Parham James Francis Fulloon. A Man of Two Cultures (1985) p58- 59 notes the fear such a vessel would have inspired

119 AJHR 1865 A5 p51-52, Wai 46 11 (a):22 30 his son Wepiha put on board, apparently as a gesture of goodwill. The ship then called at Opotiki, and there was a failed attempt to capture several of the alleged killers, resulting in a firefight on the sand dunes. After the firefight, Wepiha requested to be dropped at Te Horo. 12o

The ship then anchored off Raukokore. An attempt was made to capture Patara, a man heavily implicated in Volkner's killing. It nearly went disastrously wrong when Patara arrived, unexpectedly bringing 40 armed men. Fulloon by his own admission was lucky to bluff his way out of the affair alive. At Te Kaha, another unsuccessful attempt was made to capture another of Volkner's alleged killers, resulting in a further firefight. 121

Consequently, when Fulloon visited Whakatane aboard the Kate in early July 1865, his antipathy to Pai Marire and his active assistance on the side of the government were well known.

The Rangihouhiri chief Te Hura gave evidence at his trial that when a niu pole was raised at Te A wa 0 Te Atua:

Solomon went to collect together the people. When he was collecting together the tribes, he met James chasing the Taranakis, on account of Mr Volkner's murder. Horomona then was beaten by the Taranakies, and then he returned. When he got to Te A wa 0 Te Atua, the vessel of White had arrived ... " 122

This hints at a possible personal antipathy towards Fullon for these activities. Wepiha Apanui, present at Opotiki when Volkner was killed, was asked during the trials of Fulloon's killers, if he had not publicly stated that he was ( ) not concerned about the death of Fulloon as Fulloon had been hunting him anyway. Wepiha denied that he had said this. 123

Moreover, Fl:Jlloon's mission to Whakatane in July was to raise a force of Ngatiawa to capture the killers of Volkner. He requested, and received, an army commission to do this. He may well have been wearing his uniform of

120 . Ibid p51

121 Ibid p51

122 Te Hura R v Te Hura p31

123 Daily Southern Cross 12 December 1865, Wai 46 C10 A2 31 the Auckland Militia when he met Pai Marire adherents aboard the Kate and hours later when he was killed. 124

Fulloon, must have been aware of the aukati before arriving in Whakatane in July, even if he might not have known the extent of it. Rirituku said that before the aukati was established a message was sent to Maketu telling other tribes about it. He thought that the Pakehas were aware of it also. However he also said that the boundaries had not been mentioned in the message, only Te A wa 0 te Atua. 125 Certainly Fulloon was aware that the trip would place him in danger, and he was warned to take care by Civil Commissioner Smith before leaving Maketu. 126

Events at Whakatane ( Several days before the arrival of the Kate at Whakatane, a Te Arawa owned vessel, the Maruiwi, arrived there to pick up a cargo of potatoes. 127 Aboard the ship were the chiefs Te Puhi and Wiremu Maruki. Following instructions from the Tauaroa meeting, Te Hura travelled from Te A wa 0 te Atua and captured the vessel. 128 There was discussion about what should happen to the crew, having breached the aukati. Te Puhi it was said was a "government man" .129 On 20 July the people at Whakatane wrote to Horomona. A translation recorded at the subsequent trial read:

The vessel of the Arawa and of the Governor has arrived at Whakatane that is Pipiana and Hone and Te Puhi of the Patuwhi (Tribe) Bennetts (vessel) is behind. The law of the Aukati has been put forth (made known) by us. The Chiefs of this place say it will not be well that they should be "kati" but (that they intend) to let them ( come. 130

124 Parham James Francis Fulloon p66

125 R v Te Hura p5 and Rirituku R v Kirimangu (Ned's case) p8

126 Daily Southern Cross 5 April 1866, Wai 46 C10 A2 and Parham James Francis Fulloon p66

127 R v Te Hura p25 and Kereama Toi Toi p39

128 1866 AJHR A 1 No 19 p37, Wai 46 11 (a):24

129 Wiremu Maruki R v Te Hura p13

130 R v Te Hura p24 32 The letter continued that Heremia and Kawakura said "Tuhawhe" ie Kereopa,131 should not come.

This demonstrates that enforcement of the very broad aukati was not a foregone conclusion, but rather depended on local politics. Horomona had perhaps foreseen this sort of difficulty when he declared that sparing people for a breach of the aukati would call down the sanction of the gods. There was even a claim that Kawakura had been making payments to Pai Marire adherents to allow Europeans to move within the aukati boundaries. 132 Economics may have been a powerful counter force to enforcement of the aukati.

There were meetings about what should happen. The Hauhau supporters raised a flag, called the 'riki', which was a sign that violence was imminent. 133

All accounts agree that on the night of 21 July the Kate sailed to Whakatane, arriving there in the early hours of the morning of 22 July. Te Hura later claimed that some weeks earlier, White had written to him seeking permission to come into the area, and that Te Hura had warned him not to come because of the Pai Marire activities. 134

On board were Fulloon, Captain Pringle, Bennett White, Tira - Bennett White's Whakatane storekeeper, Eruera Matimati, 2 seamen, and Alick Campbell, a half-caste. 135

The ship anchored at least a mile out from shore and Tira and Alick Campbell went on shore in one of the ship's boats well before daybreak. ( ) They went looking for Tira's wife, Catherine. They came across Kawakura, who warned them that the Kate should remain outside the Whakatane bar, as

131 According to Hohaia Matatehokia, see R v Te Hura p9

132 Te Hura R v Te Hura p30 and Hekara R v Kirimangu (Ned's case) p47

133 Wiremu Maruki R v Te Hura p11

134 R v Te Hura p31

135 As to Alick being half-caste see Matimati evidence R v Kirimangu (Ful/on's case) p18 33 the Arawa vessel had been seized, and a council had yet to decide its fate. 136

Tira and Alick retired to the ship, taking with them a half-caste boy of about 10 years named George, who was Bennett White's son.137

Either at about this time, or earlier on the night of the 21 July, Kawakura had been involved in a confrontation with Hauhau supporters over the fate of those on the Maruiwi. Kawakura's house, in which Te Puhi had taken refuge, had been surrounded. In the end it was decided not to kill Te Puhi.138 Te Hura claimed that he was responsible for calming the situation. 139 It seems at this stage the Hauhau supporters became aware of the presence of the Kate and sent a whale boat out to her. ( Kirimangu was to say that there was discussion about what to do, and that Horomona was for burning the Arawa vessel and killing those on board the Kate. 140 Whatever the truth of this, the fate the Arawa group and those on the Kate were closely linked.

Once Tira, Alick and George arrived back on the Kate they tried to get under way but with no success. There was no wind. At court martial proceedings in November 1865, Tira gave evidence that he had an argument with Fulloon, who wanted the vessel to remain at Whakatane. Tira had insisted otherwise. 141 This evidence was not repeated at the trials in March 1866, where very little is said about any of Fulloon's actions. Bennett White's son, George, also said that they had weighed anchor when they heard a 'sound like stamping' on shore - possible a reference to a haka or some Pai Marire ceremony. 142 .

136 Daily Southern Cross 12 December 1865, Wai 46 C10 A2

137 Idem

138 Wiremu Maruki R v.Te Hura p13 and Daily Southern Cross 12 December

139 . R v Te Hura p32

140 R v Kirimangu (Ned's case) p42

141 Daily Southern Cross 12 December 1865

142 R v Kirimangu (Ned's case) p19 34 A whale boat then came alongside the ship. The men in it invited the ship back to Whakatane. Because there was no wind, those on the Kate had little choice but to agree, even though it does not appear the men in the whaleboat outnumbered those on the ship or were heavily armed. Tira said that Fulloon very readily agreed to go in and even suggested that the whaleboat tow the ship.143 Again, this evidence of Fulloon's actions was not repeated in the March trial.

While under tow, Fulloon made an ill considered remark or series of remarks to the Hauhau supporters on the boat, by patting his bottom and saying something equivalent to "there's the Hauhau for you" .144 It was an extremely dangerous thing to do in the obviously tense situation 'which was developing, and all seem to have been aware that this was the case.

Paraharaha, one of those from the whale boat, was only just prevented from shooting Fulloon on the spot. Apparently the two men calmed enough to shake hands. White said that Paraharaha then ordered that Fulloon be put in a cabin and this was done. 145

Paraharahau in his plea of mitigation said that he took Fulloon below deck and warned him "that the law was the evil, and that he had better go back. A third time I repeated to James, for the vessel to go back" .146

White's evidence was that he was not alarmed about going in to shore "because we saw the natives were peaceable" .147 This does not ring true given that White had arranged for his son to be taken on board under cover of darkness, and had tried to sail away after hearing the report from Tira and Alick. Later evidence showed White was protected while many others on ( ) board, including Fulloon, were killed, and he may have been sensitive about this.

With the ship. moved somewhat closer to shore, Tira and Matimati joined the

143 Daily Southern Cross 12 December 1865

144 Tira R v Kirimangu (Fullon's case) p 14 and White p22, Paraharaha R v Kirimangu (Ned's case) p52

145 White R v Kirimangu (Fullon's case) p22

146 R v Kirimangu (Ned's case) p52

147 White R v Kirimangu (Fullon's case) p22 35 whaleboat crew to go to shore. Tira knew some of the men in the boat and felt a little safer, but was still cautious about the situation. He said that Fulloon and White also wanted to come ashore, and that they went below to change clothes, but the men in the whale boat became tired of waiting and started for shore. Fulloon then came on deck and told them to wait, he was told to use the ship's boat to come ashore. 148 Once again, this was evidence not given at the March trial.

Once on shore, Tira and Matimati joined a meeting on the beach to consider the fate of the Kate. All witnesses consistently said that Hekara called for the death of Fulloon because he was the "Parliament of England". Tira, when asked what this meant, said "He meant that Fulloon represented the power and influence of England, and ought to be put to death". 149 Te Hura approved of this speech. Matimati then made a plea for the lives of the ( Pakeha's saying that if they were to be killed, he must also be killed. 150

Kirimangu then asked for men to go with him to the Kate. A group of men gathered and performed Hauhau ceremonies. 151 These ceremonies seem to have been held in conjunction with the 'riki' flag which had been raised, Tira said that "They went to the Pai Marire pole, which is called the Riki. "Riki" is the destroying God. They went through their Pai Marire ceremonies" .152

A boatload of armed men were gathered. As they left the shore Matimati and Tira, well aware of the men's intent, tried to accompany the boat, but were pushed back.

Horomona spoke to the men in the boat as it pulled away. The evidence ( from several witnesses was tbat he said that all the Europeans should be .

148 Daily Southern Cross 12 December 1865

149 Daily Southern Cross 12 December 1865

150 Matimati's evidence R v Kirimangu (Fullon's case) p19, Wetini R v Te Hura p19, Tira and Matimati R v Kirimangu (Ned's case) p12-13, p16, and Wetini p30

151 Tira R v Kirimangu (Ned's case) p 13 and R v Kirimangu (Fullon's case) p15

152 Tira R v Kirimangu (Fullon's case) p15 36 killed except Bennett White's son. 1S3 Horomona himself said he simply noted that this was what the men were about to dO. IS4 The evidence about Horomona's involvement was somewhat weak. He did not directly instigate the killings, and only Wetini, himself deeply implicated in the matter and giving evidence for the prosecution, said that Horomona directly made the comment about who should be killed. ISS Tira had only hearsay evidence of horomona's comments. 1S6 Neverthe]ess, Horomona was hanged as an accessory in the murder of Fulloon.

This boat, containing about 20 men, almost all of them with firearms, then boarded the Kate. A second boat followed shortly after. The men asked for food and a1cohol. They were given this.

It may be that Fulloon was confronted at this time and asked why he was wearing the clothes of a soldier, but this evidence is inconclusive. Is7

On a command from Kirimangu, apparently acted as the leader, three seaman on deck, including Captain Pringle, were shot dead. I58 Bennett White, sitting in the cabin below deck with Fullon, watched as Fulloon was shot in the hand. Apparently White was also shot at, but Paraharaha prevented further action against him, and got White, his son and Alick into a boat. He said later this was to save 'his pakeha'.

White recalled that:

153 Tira R v Kirimangu (Fullon's case) p16, Wetini R v Kirimangu (Ned's case) p20 and Hekara in plea of mitigation R v Kirimangu (Ned's case) p50

154 R v Te Hura p27

155 R v Te Hura p20. Hekara in his plea of mitigation said that "Mr Clark stole Wetini, and brought him to give evidence against us" and "We would have got off on the former trial, but Mr Clark selected the man who had committed the greatest sin, and brought him in evidence against us" R v Kirimangu (Ned's case) p51

156 Tira R v Kirimangu (Fullon's case) p16 can be contrasted with Tira's evidence in R v Te Hura p16

157 Tira R v Kirimangu (Fullon's case) p17 "I did not hear any natives say "why are you dressed like a soldier?"

158 Wetini R v Kirimangu (Ned's case) p31

. "n '. ~ ',.", •• ,;,.,....,!,:~.;:.;u-! ..:l" .• ·~v-·.:;.t:: ~'... -...... ~,. . .' ~...... ~...... "'~,..~~~... ,~ ..... ~.. !.~-_._"...... ~ ...... ,,~ •••. "".::::;-::::,~'.,:••.•. ':":':.-::o:~... ~... ~~ ...... ~ •.:-:--:--~- .•.. -. 37 When I heard the voI1ey, I jumped up immediately and exclaimed, "My God Fulloon they are fighting on deck, and are killing the europeans!" My words were not out of my mouth, when a shot came down, passed my ear, and wounded Fulloon in the hand. I went up on deck immediately. The first person I saw was Paraharaha. I asked him "whether the Europeans were all kilIed?" He said "Yes! All ki1led!" I told him it was the worst days work that ever he had done. I asked him, "What are you going to do with me then?" he replied "Pai marire, go into the boat!" I went into the boat, and sat there." 159

George said at the court martial proceedings that after Paraharaha had announced that Campbell, himself and his father were not to be killed, George had called his father out of the cabin. He saw Fulloon's hand covered in blood. 160 White also gave evidence that as he left the cabin and ( Fulloon, he hauled the slide over the cabin, he said to prevent people going down there. 161

White basically abandoned Fulloon to his fate. Given that White received active protection from some of the killers, who were interested in saving their Pakeha,162 he must have felt sensitive about this.

Either as White and the others was leaving the Kate or shortly after, Fulloon was shot dead. 163 Hoani Hupe had fired the shot into Fulloon's hand, and Utuku Te Rangi is reported to have said "I am the man for Mauteranui" then fired the fatal shot down into the cabin. 164

There was some suggestion at the trials that Fulloon was drunk in the hours before his death. One of the accused, H:oani Poururu, said that Fulloon (

159 R v Kirimangu (Ful/on's case) p23-24

160 Daily Southern Cross 12 December 1865

161 Fullon's case p24

162 eg White R v Kirimangu (Ful/on's case) p26 - Hawera protected them, and Hekara said that he went to the Kate "for the purpose of saving our Pakeha Bennett - we did not tell Solomon, that we went on that account" R v Kirimangu (Ned's case) p49

163 White R v Kirimangu (Ful/on's case) p31 and Alick's evidence p39

164 Daily Southern Cross 12 December 1865 and R v Kirimangu (Ful/on's case) p33 38 definitely was drunk. 165 The answers of Fulloon's shipmates to this charge were inconclusive. Several witnesses said that they would have noticed had a lot of alcohol been drunk, but no one clearly denied that Fulloon had been drinking.166 His behaviour - arguing with Tira about landing at Whakatane, insulting the crew from the whaleboat, retiring to the cabin it seems for a lengthy period, missing a boat ride to shore, and remaining in the cabin while the killings took place on deck, was certainly odd for a military man entrusted with a commission, eager to prove himself, and who had shown considerable confidence and ability in his previous expeditions.

Finally, speaking of the persons actually involved in killing Fullon, Wepiha Apanui commented that: "The reason why I understood that that tribe [Rangihouhiri] was selected to kill Fulloon was because Te Hura's father was killed by our tribe (mine and Fulloon's). This would be according to ( ) Maori custom." He admitted this was his own supposition, not from anything Te Hura said.167 The suggestion does however have support from a report of a government official in 1862 who noted then that the killing of Te Hura' s father was still a live issue between Te Hura and Wepiha and his relation, FUlloon. 168 This comment from Wepiha hints at the web of tribal connections of which Fulloon was a part, and which may also have played a part in final decisions about his fate.

A US historian, Michael Adas, has demonstrated that Pai Marire falls within a well defined "type" of religious resistance movement to colonisation. 169 In a case study of 5 such movements, including Pai Marire, he concludes:

In none of these movements was the response to change merely a blind retreat into an idealized pre-European past, although there was always ( ) some appeal to customary ways. Rather, they represented creative

165 R v Kirimangu (Ned's case) p54

166 White R v Kirimangu (Fullon's case) p25 Fulloon had glass of rum before reaching Whakatane - did not notice whether he had any at Whakatane - if he had I would have seen it - and Daily Southern Cross 1 2 December 1865 - Tira did not know if Fullon was the worse for drink

167 Daily Southern Cross 12 December 1865

168 AJHR 1862 E9 p27, Wai 46 11 {a):18

169 Prophets of Rebellion. Millenarian Protest Movements against the European Colonial Order USA. 1979 39 efforts to repair the fabric of societies rent by forces over which the indigenous peoples had little or no control. These prophet-inspired rebellions involved restoration and reformulation of customary ideas and institutions as well as the introduction of foreign elements and a millenarian vision of a new society. Their adherents were not faced with a choice between a traditional and a modern order, but with the problems of coping with accelerated change and intense culture contact. In bits and pieces, rather than by some grand design, they rejected or adapted, revived and reworked ideas, artifacts, and patterns of behaviour in an attempt to create a more viable social order." 170

This suggests actions undertaken under the cloak of the Pai Marire faith might themselves attract a cultural defence. Even the use of violence is explicable in terms of the prophetic protest model Adas advances. 171 The ( shift to more violent means also followed a pattern where customary rituals and forms were more 'consciously revived. "The shift in legitimizing symbols that occurred as leadership passed from Te Ua to his early adherents is above all epitomized by the gradual but perceptible transition firm reliance on Jehovah and guardian angels to invocations of Oraku, The Maori war god, and other Maori spirits". 172

This strongly suggests that Fulloon's death was not an ordinary killing, but was undoubtedly one strongly influenced by older Maori customs and possibly a quite conscious revival of them.

Mikaere Kirimangu, when asked if he had anything to say before judgment was pronounced against him for the killing of Fulloon, argued that "you pakehas think it murder; we think it only an act of war. ,,173 Te Hura ( reiterated the background of tribal warfare leading up to the events in JUly.

170 Ibid P xx:xxvii

171 Chapt 5 looks at moves these movements take towards violence - see ,pp 122-125 Secondary leaders take over and push more violent means. This also leads to fragmentation pp130-131 and p134-135

172 Ibid p145-6

173 Daily Southern Cross 5 April 1866 C1 0 A2 and NZ Herald, Wai 46 C10 A1:54 40 The court dismissed this as not relevant to the charges. 174 The editor of the Daily Southern Cross noted that this had been the line of argument for the defence which had dominated the trials, "that according to Maori usage a simple act of "killing" was not a crime, and therefore that the law ought not to take cognisance of it." He understood however that "unprovoked and wanton murder" or kohuru was viewed differently. 175

It was not a new argument. The response of two chiefs (Tamati Ngapora and Patara) in 1861 to government proposals for ending war in the Taranaki province was that they thought one obstacle was the Governor's requirement that those who had been involved in killings at Ornata should be given up to English justice. They contended that:

It was improbable that the Taranaki or Ngatiruanui would voluntarily give up any of their people for acts which, though called murder by the Europeans, were, in the circumstances of hostilities having commenced, justifiable according to. Maori customs in carrying on war. 176

The aukati established at Tauaroa was a combination of territorial and religious ideas, making it different perhaps from the King Country aukati, and its enforcement was also a matter of practical politics and religious belief. That Fulloon should be detained and his execution considered was undoubtedly a consequence of his crossing the aukati. In this sense he was in the same peril as the Arawa who had been captured only a few days before. The final decision to kill him seems to have rested in large part on his other activities in the proceeding months in combination with his latest misdemeanour. ( )

174 Hekara linked what had occurred to the dispute about governance between the Maori King and the Governor, and had to be told by the judge that he was not answering a charge of making war - R v Kirimangu (Ned's case) p45-46. Te Hura said that the cause of the problem had been the war with Waikato and the fighting in 1864 in which 30 of his own men had died - R v Te Hura p29

175 Daily Southern Cross 7 April 1866, Wai 46 C10 A2

176 Great Britain Parliamentary Papers (IUP) vol 13 p27, Wai 46 12(a):30 41 PART TWO

THE ATTACK BY ARAWA FORCES

The tribunal has asked for comment on the motives, course and consequence of the fighting in the Bay of Plenty between Ngati Awa and allies and Te Arawa and to establish, in particular, "whether Arawa forces were in the district before the killing of Fulloon, and to examine a report that they attacked three pa and killed at least one person prior to the proclamation of peace. l

Even a brief glance at traditional history in the Bay of Plenty, with the ( separate canoe traditions of Arawa and Mataatua, shows that there was deep historical antipathy between the Arawa and Ngati Awa tribes. It is therefore not surprising that the two groups were in opposition when the war spread to that district in 1864. Arawa had however only entered the hostilities after securing government assistance. Civil Commissioner TH Smith, writing in September 1863 of a major meeting of Arawa chiefs to consider their position noted that:

'" It will be seen that hesitation is felt by some of the Arawa people about committing themselves to actual hostilities -on the question of preventing armed parties from passing through their territory to the assistance of Waikato at least until some explicit intimation is secured from the govt as to the cause they are expected to pursue . ... I believe the Arawa tribes generally are desirous to prove their ( loyalty but hesitate to act on their own responsibility alone, or to compromise themselves except with the express sanction of the govt and an assurance that they will be protected from present and future ill consequences.2

Arawa were told in September 1863:

'" this is the word of the Governor to you, do not allow these tribes [Waikato] to pass through the territory of the Arawa; if they persist

Directions 11 November 1994 Wai 46, 2.59 para 9.4

2 T H Smith, Civil Commissioner, Maketu to Native Minister, 8 Sept 1863 Le 1/186411 05, Wai 46 11 (a):9 42 and evil comes, the Governor will give assistance to the Arawa. But leave these tribes to raise up your head - to startle you from your sleep - you then resist it is good - but do not you fetch or ask for evil. ... friends, listen do not be anxious with regards to this talk [re Ngatiporou wanting to come through Arawa territory] - should this be the thoughts of these tribes after peace is made, we two are one - this outbreak will not be for you alone, but for both of us, as you are my ally.3

Government assistance was of course rendered in the defeat of the Tai­ Rawhiti expedition at the battle of Kaokaoroa in April 1864.4 After the Kaokaoroa battle, the government was in discussions with Arawa throughout 1864 as to servicing their military needs, including interviews in July 1864 where monetary payments and the provision of arms were discussed. 5 ( Indeed, there was even talk of landing an Arawa force at Ohiwa should Maketu be attacked again. General Cameron however warned Grey in August 1864 that:

... Ohiwa, the point where ministers suggest that the Arawas should be landed for the purpose of cutting off the enemy, is, as ministers are well aware, a considerable distance lower down the coast than Matata, at which place it has been reported by Major Drummond Hay that the rebels have constructed a pah of great strength . ... It is very probable that the landing of the Arawas at Ohiwa would be opposed and perhaps prevented by the East Coast Native on each side of that place ...... For these reasons, I am of opinion that the Arawas ought not to be encouraged to land at Ohiwa,. or at any point below Matata; at all events that they should understand clearly, if they do so, that they will receive no assistance from the Regular Troops.

3 Shortland's reply, Auckland, to all the chiefs of the Arawa, 17 September 1863 in Le 1/1864/105, Wai 46 11 (a):9

4 See J Cowan The NZ Wars and the Pioneering Period vol II (1922. Govt Printer reprint 1983) and Nicholas Boyack 'The Battle of Kaokaoroa, Matata" Historical Review vol 35 No 1 May 1987 p17 and Stafford Te Arawa pp372-379

5 G 17/1/135 -W Fox, 18 July 1864, subject of interviews with Arawa tribe; rewards for their services and G 17/1/144 - W Fox, 25 July 1864, supply of arms and ammunition to be sent . to friendly natives at Maketu

...... -r, ·;~n.·.. 'Q.~~""'~~"""·I":;"~:'·~: l ..,. .. "~,, .•..'~ ......

. .. _.; .. . *-~':"':"':"';"':"'i"~'''<'~'.''~'' ••• ~.¥ •••~ ... ~~..:::.~.''_- •••-,~.''.~.-.-.'.~ •••, ...... i ....Y:.~_ .... _. _w. :','. ", ...".,...",~n""'.... ~,,:>':" .. ~";Y:'>O'~.,.~"":-<~ ... -."""'".~_. __ ...... -...... -. ... ---:-,-~-~-~.------.-••-- •• -.-... -.~ •••••••• - •••• 43 I have no objection, however, to instruct Col Greer, if the East Coast natives should attempt to attack Maketu, or to advance beyond Matata, which is very improbable, to move a force to Maketu for the protection of that settlement or to cooperate with a party of Arawas landed on this side of Matata, for the purpose of cutting off the enemy; but in this case, I beg that the Arawas may be placed under the orders of the officer commanding the Regular Troops so that all their movements may be directed by him . ... I understand that Matata is situated on the boundary between the hostile tribes and the Arawas, and if so, the descent of a party of the latter at a point on the coast so far below that place, must be regarded as an invasion of the country of the former by a barbarous tribe, who might commit atrocities for which we ( should then become responsible, rather than as a measure undertaken by the Govt for a defensive object, as it is certainly is not necessary for the defence of Maketu, or the protection of the friendly Arawas.6

Were Arawa forces in the area prior to the killing of Fulloon? After Volkner's death on 1 March 1865, there was some difficulty in keeping Te Arawa in check. It was only Ngati Awa's careful positioning in a neutral position that kept the Arawa at bay .. Colonel Greer at Tauranga reported- that in late March-that Arawa were anxious to take the present opportunity to settle their old feuds with Whakatohea and Ngati Awa. Greer had told Arawa to await the decision of the Governor, which they had reluctantly agreed to do.7 ( Arawa were also understandably nervous and perhaps anxious to make a pre­ emptory attack. They had in February captured the Tauranga chief Hori Tupaea, on his way to contact Kereopa and Pai Marire supporters.

Arawa forces had been active under Major William G Mair in May 1865 at

6 . D A Cameron, Tauranga, 7 August 1864 G 16/4/73 (not able to be copied because in bound volumes) and see G 17/1/156 - F Whitaker, 7 August 1864, plans to land members of Arawa tribe at rear of attacking forces if Maketu attacked

7 H H Greer, Col Commanding Tauranga District to Deputy OM General HO, 18 March 1865, Enclosure: Arawa chiefs, Maketu to Col Greer, 13 March 1865: Wiremu Maihi, Maketu, to Hohaia Matatehokia, 8 Mar 1865: Col Greer to chiefs of the Arawa, 10 March 1865 G 16/8/10 44 Te Tapiri at the head of the Rangitaiki, south of present day Murupara.8

However, writing to William Gilbert Mair at Rotorua on 30 July, Smith implied that Arawa were not operating in Ngati Awa territory at that time. After describing the killing of Fulloon by "the Hauhau and a party of Ngatiawa from Te Awa 0 te Atua under Te Hura" he advised that:

W epiha has gone to Opotiki to prevent the Whakatoheas from joining Te Hura in the event of his being attacked. The Arawa are also gone back inland being very indignant at the murder of Fullo'on. They will now turn round upon the Ngatiawa. The tribes concerned in this murder were Te Rangihouhiri, Hikakirio, and Te Patutetahi - the people here are for an immediate attack on Te A wa 0 te Atua - the pa of Te Hura, Te Matapihi, the Whakatane portion of Ngatiawa took no part in the murder but were too weak to prevent it. They - W epiha' s party - are [illegible] for the Arawa to go there. Of course there is no longer any object to be gained by going to Te Whaiti[?] The question is whether a movement in the direction of Te A wa 0 te Atua is not advisable. It is said Tukehu is in personal danger - his people have been [illegible] and he is nearly alone. I see no reason to object to a move in that direction now - and if it is to be made, the sooner the bet~er, I would no longer forbid the people here from going to Te A wa o te Atua by the coast. .... Please communicate as soon as possible with all the Arawa inland - I have no time to write to anyone but yourself.9

This suggests there were no Arawa movements in Ngati Awa territory before the killing of Fulloon at Whakatane on 22 July 1865. ( \., Between the 22 July and the issue of the peace proclamation in September however is a different matter.

In the research report on the Rotoehu Forest, it is stated that in August 1865, following the death of Fulloon, Civil Commissioner Smith authorised William Mair to assemble a Te Arawa force to effect an arrest of Fulloon's murderers. This force numbered 500 men, and was assembled at Rotorua and Maketu. As the Rotorua' assembled force travelled down the Tarawera

8 Cowan The NZ Wars vol II chpt 8

9 T H Smith, Maketu to W G Mair, RM Rotorua, 30 July 1865. ATL TH Smith papers MS Papers 3330 (not copied) 45 river they received fire from Parawai pa, and attacked the pa. It is said that:

The challenge offered by the Ngati A wa is understandable. The inhabitants of the pa would have seen an enemy force moving through their territory and, unaware of their intentions, would have taken this as an invasion. The Te Arawa party on the other hand, if so inclined, may have prevented any bloodshed by informing the pa that they weren't intending to invade but rather were there on the business of the Crown. 10

The claimants have also produced a sketch map showing the Rotorua force leaving there on 17 August, attacking Parawai pa on the Tarawera river on 17 September, and Te Umuhika a day later. l1 ( There appears to be a confusion from the sources on the timing of these attacks.

Don Stafford in his book Te Arawa, records that there was not an intention to attack Parawai pa, but a challenge from it was received and so Te Arawa forces assaulted it, but could not take it. Stafford notes however that while the historian of the NZ Wars, James Cowan, recorded the attack on Parawai as occurring after Mair's force had passed down the Tarawera river and reached Matata, Mair's own notes said it occurred before this.12

Cowan in The NZ Wars says that Mair's Rotorua force of about 400 men "marched down the valley of the Tarawera River, skirmishing on the way, to Matata (Te A wa-a-te-atua). The position at Paraw3:i was too strong to be taken by assault, so had to be passed by." 13 On reaching Matata, the ( Rotorua group combined with the Maketu group and Parawai pa was taken at that time. Cowan was therefore aware that there were two actions at Parawai, the first during the march to the river mouth at Matata and the second after r~aching Matata. Written accounts have tended to concentrate on events after the formation of the combined Arawa force at Maketu. However the earlier skirmishes set the pattern for the subsequent events.

10 Wai 46 A19: 24

11 Wai 46 A24 (a) Map 4

12 Stafford Te Arawa p402

13 Cowan The NZ Wars p97 46 Newspaper accounts give a fuI1er story. On 16 August the NZ Herald reported breathlessly that:

Three hundred friendly natives had left Maketu in canoes, for the purpose of going to Whakatane, to assist Webster in getting revenge for Falloon's murder. Another detachment of 400, under the chief Hata, had also gone from Cape Runaway to Whakatane for the same purpose. 200 of the Uriweras [sic] were also on their way from places inland of Ruotoko [sic].

Great preparations were being made at Whakatane for fighting; and enormous pah, said to be the largest ever erected in New Zealand, had been thrown up at Otamauro, and the greatest excitement prevailed in the surrounding districts. 14 () These reports were exaggerated and in part incorrect, but give a flavour of the foment that was occurring in mid August 1865.

A more detailed report of 14 August, printed in the NZ Herald on the 21 August stated that on about the 7 August, some 70 Te Arawa of the Maketu pa, left Maketu for Matata. On reaching Matata, they expected to meet a large force of Te Arawa gathered from the inland areas of Rotorua, Tarawera, Te Rotoiti and Taupo. However that force was still sheltering at Tarawera. The Maketu pa group therefore started -up the Rangitaiki river to Kokohinau, to consult with the chief Rangitukehu. 15

Ngati Awa involved in the Fulloon killing were by then reported to be already entrenched in a "strong fortified and impregnable" pa 3 miles from ( ) the "head" of the river. Around the 14 August this Te Arawa force captured four elderly men, six women and a boy when they were planting corn about half a mile from the banks of the Tarawera river at a place called Te Rangatapu. 16 The elderly men were armed, the newspaper suggested as a natural precaution ever since Te Arawa engagements of the previous year. Two of the men, Hoera and Te Kahawai, were fatally wounded trying to escape. Hakarai and Te Whinine, 2 chiefs, were captured. The women of the party were released with the two dying men. Te Whinine was said to be

14 NZ Herald 16 August 1865, Wai 46 11 (a):1 0

15 NZ Herald 21 August, report dated 14 August and 12 September, Wai 46 11 (a): 10

16 About a mile up the Tarawera river from the mouth according to a report of 30 August NZ Herald, Wai 46 11 (a): 1 0 47 quite open about the fact that Te Hura's people were the murderers of Fulloon. Hoera was thought to have killed Captain Pringle aboard The Kate. 17The prisoners were handed over to Major Kirby, commander of the Colville Redoubt at Maketu.

This report suggests Te Arawa operations began very early in the district, well before the peace declaration in early September. It also suggests Ngati A wa were well forewarned of the Te Arawa intentions - if they were not already fully aware of the situation, the women would have alerted Ngati Awa to the Te Arawa presence. In fact, by releasing the women, Te Arawa were clearly happy to let their presence be known. The 2 prisoners taken in this engagement had been released by Kirby by the 7 September, to the apparent disgust of Te Arawa. 18 ( On 30 August the NZ Herald printed a report dated 26 August:

That portion of the Arawas who reside in Tarawera and Motutoua, as they arrived within 12 miles of Matata, were fired upon by a portion of the enemy as they were passing through some thick scrub, but fortunately without doing any harm. Immediately after this, on their getting into open ground, they perceived at a short distance at Parawai, a new constructed fortification. On observing this, Arama Karaka determined upon taking it, but was prevailed upon by his cousins to push on -to the- Ma:tata to join the main body of the tribe who were anxiously awaiting their arrival .... They had not proceeded far, being again entangled in scrub, when they were pursued by the enemy from the pa, upon which the Te Arawa sent a volley into them, which had the desired effect in dispersing them, but not before 4 of ( them had fallen. 19

The report went on to record that one of the 4 was Hoeti, married to Te Hura's youngest daughter, and "the intended rising chief of the upper part of the river". He died within an hour, and his body was turned over to women at the pa. The report continues:

the Arawas then hastened down -by the side of the river to a pa well

17 NZ Herald 21 August 1865, Wai 46 l1(a):10

18 NZ Herald 12 September 1865, Wai 46 11 (a):1 0

19 NZ Herald 30 August 1865, Wai 4611(a):10 48 fortified, and which belonged to the people in the pa which they had just passed; here they remained a few days, the men killing cattle and pigs, and the women under a covering party foraging the Maori plantations. 2o

The force then moved off to Matata.

At or near Matata they joined 250 other Arawa who were already encamped opposite three island pa in the swamp, Te Matapihi, Oheu and Omarupotiki. These were difficult to approach because they were islands, but the garrisons were apparently small, estimates of 50-60 men in all being given. Parawai, a strongly fortified position, was thought to contain about 40 men.21 Te Matapihi was also considered to be strongly fortified. 22

Te Hura's people had by now fortified themselves in pas at Te Rangatapu, one mile up the Tarawera river, and at Otomorora, a further half mile up the same river. 23

This latter pa was possibly the pa attacked within a few days of the Parawai incident. A close relative of Te Hura, Pire, was killed in this encounter, at which point, the attack on this pa ceased. The Herald recorded that Ngati Awa had "now lost within the last week two of the head rising chiefs residing on the river". 24

In summary, it is quite correct that N gati A wa were attacked well before the proclamations in early September, and in fact a siege situation ensued. This raises questions however about the government announcement and the proclamation of martial law. For Ngati Awa, the announcement, absolving ) them of actions up to that time, came as they were sitting in pa facing a 500 strong Te Arawa force.

Were Ngati Awa taken by surprise by the Te Arawa forces? This seems too have been a defence Ngati Awa raised before the Sim Commission. The

20 Ibid

21 NZ Herald, 12 and 21 September 1865, Wai 4611(a):10

22 NZ Herald 12 September 1865, Wai 46 11 (a): 10

23 NZ Herald 30 August 1865. The Herald of 16 August reported a large pa being built at "OtiJmauro". Wai 4611(a):10

24 NZ Herald 30 August 1865, Wai 46 11 (a):1 0 49 report on the Rotoehu forest asserts that "apart from some intermittent and minor skirmishing between the invading force and a few villages of Ngati Awa" there was no resistance and that "other hapu of Ngati Awa had remained neutral and had not sought to interfere with the force. "25

This evidence does not support this view. News of the killings of Fulloon and his companions travelled extremely quickly. It was irrunediately obvious, even to Pakeha commentators, that some sort of retaliation might well occur. Ngati Awa also immediately sent letters disassociating themselves from the killings, and asking that a force not come by land, a sign that they were aware a force would be coming against them. To believe otherwise suggests a grave weakness in the Ngati Awa readiness to defend their -boundaries. The degree of readiness of N gati A wa can be gauged from the fact that pa were fortified and in the encounter in late August 1865 at Parawai pa, Mair and ( the Te Arawa forces initially come off worst - an unlikely result had they actually surprised the inhabitants of the pa.

(

25 Wai 46 A 19 p25. Counsel for Maori raises it at the commission see Wai 46 A 14 p53 50 PART THREE

THE BACKGROUND TO THE WORK OF THE COMPENSATION COURT AND NATIVE LAND COURT

History of the western lands before 1840 Before examining the detail of the land court and compensation court judgments in the region claimed by Ngati Awa, it is useful first to sketch out the relevant parts of the history of the area to 1840 and note the contested parts of the history. This makes it somewhat easier to understand the land court and compensation court evidence and rulings and determine how far they might have affected tikanga.

Historic differences between Te Arawa and Ngati Awa Tradition has it that as the Arawa waka layoff the Bay of Plenty coast, Tamatekapua named Maketu. The chief Tia claimed a place for his son Tapuika. Another chief Rei claimed an area for his son Waitaha. These were coastal and inland areas all north of Maketu. The Arawa canoe then anchored at Maketu. 1

Ngatoroirangi in his explorations shortly after landing, named the mouth of the -Tarawera river Te A wa a te Atua. 2 Another tradition says that that the name refers to the first menstrual flow of a woman from the Mataatua canoe.

The Arawa crew then settled the area. Waitaha, the son of Rei, occupying land around Otamarakau for a period and naming the river Waitahanui which ( has its mouth there. Uruika later took up land between Otamarakau and Matata.3

Ngati Awa traditions speak of an early migration to the area from Northland and a peopling of the area around Whakatane by the descendants of Toi, then the brief landfall of the Mataatua canoe at Whakatane, which left behind important founders of tribes in the area, including Ngati Awa, who mingled with Te Tini 0 Toi already there.

Stafford Te Arawa p18-19

2 Stafford Te Arawa p21

3 Stafford Te Arawa p23 51 These stories demonstrate the different origins the Te Arawa and Ngati Awa groups have given themselves. The different origin stories were reflected in ongoing unease between the groups. Ngati Awa looked eastward, Te Arawa inland towards Rotorua Lake and Taupo.

In 1862, an acute Pakeha observer commented that the government had wrongly divided the district for administrative purposes:

The objection to including the Ngatiawa with the Arawa, ... is that old feuds and old jealousies divide these two peoples; they have no ties from past history or present interests; whereas ngaitawarere, the Whanauapanui, and Ngatiawa, are linked together by intermarriage and a common ancestry who emigrated in the same canoe.4 ( Maruahaira, Rangilzouhiri and the taking of Maketu Maruahaira was a chief of Ngati Rangihouhiri in the period after they had fled their original home at Opotiki and dwelt in other areas at the licence of other tribes. Maruahaira himself lived for a period at Torere under the Ngai Tai. There were Rangihouhiri also living at Whakatane under Ngati Awa hosts.5

Eventually Maruahaira moved to Pukehina. How he came to be there was a matter of dispute in the Otamarakau case. One version was that he allied with a Waitaha wife. -Another was that it wa.s through his daughter who was married to a Waitaha man living at Pukehina. Maruahaira heard that he had been insulted by his son in law, and, along with those Ngati Rangihouhiri living at Whakatane, he attacked the Waitaha at Pukehina. ( It is not disputed that some of his descendants stayed there permanently, and became Ngati Whakahemo.

At about the same time, those Ngati Rangihouhiri living under Ngati Awa at Whakatane schemed to attack their hosts. Their scheme was discovered, and they were told to leave or face attack. The chief Rangihouhiri, head of Ngati Rangihouhiri and a contemporary of Maruahaira, decided to capture Maketu, then populated by Tapuika people.

Arawa sources say Ngati Rangihouhiri gained an initial foothold at Maketu

4 Hunter Brown AJHR 1862 E9 p33, Wai 4611(a):18

5 Stafford TeArawa pl15-116 52 by way of a gift from a Tapuika chief. Waihi, in the Pukehina area, where Ngati Rangihouhiri from Whakatane already dwelt?, was the staging point for the attack. 6

A confederacy of Arawa groups battled with Rangihouhiri and lost. But while Rangihouhiri were undisputed occupiers at Maketu and controlled or had mana over that area, Tapuika continued to live there and retained sufficient mana themselves to allow other groups to use the area, subject to Tapuika control. 7

Later, Ngati Rangihouhiri, now known as Ngaiterangi, went on to capture Tauranga.

This brief summary shows that Maruahaira was a man of mixed lineage and alliances. On the one hand, he came out of Ngati Awa and Rangihouhiri territory to the east, but he had differences with those groups. On the other hand, he had close links with Arawa groups, while also fighting some of them. This mixture of influences would have become more difficult to untangle as the years passed.

Another complicating factor is that there were two groups identifying as 'Waitaha' who could have been occupying Pukehina when Maruahaira moved there. The first group, Waitaha a Rei, were descendants of Rei of the Mataatua waka. The other group, Waitaha Turauta, were descendants of a man, also of Arawa, who arrived later.

In the Land Court, Arawa related sources tended to support the view that Waitaha a Rei were at Pukehina, which would point to a very ancient Arawa ( . , ) presence there. Arawa claims to the Otamarakau block were brought through Waitaha a Rei. Ngati Awa related sources argued that Waitaha Turauta were there.

While Rangihouhiri established themselves as Ngaiterangi at Tauranga, they left a group at Maketu who became Ngati Whakahinga. Repeated attempts were made by Arawa related groups to dislodge Ngati Whakahinga. Eventually they were dislodged with the help of groups from the Thames­ Rauraki region at about the turn of the century~

6 Stafford Te Arawa p 119-120

7 Stafford Te Arawa p125 53 This meant that when Nga Puhi arrived in the l820s, the group which was at Maketu (and then fled inland - to Rotoiti?) were Tapuika? A1though as was to be admitted in the Otamarakau hearing? the overal1 control of Maketu and from there to Tauranga undoubtedly belonged to Ngaiterangi. 8

In 1822 a Tuhourangi group living on Motutawa island in Lake Rotokakahi killed a group of Ngapuhi visitors, apparently in retaliation for the killing of a Te Arawa chief by Hongi Hika in the Thames region. In 1823 Hongi Hika attacked Rotorua. The trader Hans Tapsell, then in the north, witnessed the return of the Ngapuhi taua to the Bay of Islands from their attack on Mokoia island.

In an article published in 1899, Takaanui Tarakawa noted that, when Nga Puhi were at Maketu before their attack on Mokoia, a Tapuika woman from ( Maketu (grandmother of Tarakawa), warned the taua:

Do not Jay hands on the fires that may spring up on the Ponga-kawa river; they are those of the relatives of my children; they have a different name, Ngati-Awa" (and not Te Arawa).9

Nga Puhi apparently assented to this. It is an interesting comment, suggesting that Ngati Awa were present along the Pongakawa river, and that Nga Puhi raids were not indiscriminate.

In the 1820s Maketu was unoccupied because of the recent incursion of Ngapuhi and ill feeling which existed between Ngaiterangi and te Arawa.

The arrival of Tapsell ( Into this situation stepped Hans Tapsell, who became a volatile factor in relations between tribes along this coast. According to Tapsell's sons, in March 1828, after preliminary negotiations, Hori Tupaea and Ngaiterangi accompanied Tapsell to Maketu. Ngaiterangi occupied at Maketu and were dressing flax. Arawa, hearing of these events, sent a group, mainly of Ngati Whakaue, to intercept the party at Maketu. This group succeeded in "securing the European" - it seems simply by means of appearing with several hundred men in support, to the surprise of Tupaea.lO Messages

8 MA 13/18, Wai 46 12(b):97

9 "Nga Mahi A Te Wera, Me Nga-Puhi Hoki, Ki Te Rawhiti" JPS (1899) vol 8 p242, Wai 46 11 :34

10 See MA 13/18, Wai 46 12(b):65 54 were hastily sent back to Tauranga, and Waharoa from the Waikato assembled a large force to support Ngaiterangi. The brothers said that:

Tapsell - seeing that his protectors the Ngatiwhakaue were likely to be outnumbered by the reinforcements of Ngatirangi and Waikato interviewed Tupaea in respect of arranging for an alienation of the Maketu country in his favour - After consultation with Tupaea on the subject that chief agreed to Tapsell's proposals and a general meeting of the principal chiefs in the district was convened in order that the real owners might be ascertained. 11

It was agreed that "ownership and mana" rested with Tupaea. Principal chiefs of the area and Waikato chiefs approved the transaction. Hori Tupaea himself records that a NgaPuhi chief, whose sister Tapsell had married, actually requested that Maketu be given to Tapsell and Tupaea agreed to this. 12

Hori Tupaea also said that Maketu was 'purchased' a second time by Tapsell from Tupaea and others, with the approval of Arawa, after the Te Tumu battle in 1836. Tupaea considered that accordingly Tapsell maintained his (Tupaea's) mana over the land there.13

In late 1832 Tapsell's presence again caused a shift in power relations along the coast. Ngapuhi were again planning to attack the area. This time Arawa determined to join Nga Puhi against Ngaiterangi - apparently a strategic decision taken to weaken Ngaiterangi influence at Maketu, and to keep "in" with Tapsell who is related to the Ngapuhi. 14

( ! Accordingly in 1833, between maketu and Te Tumu, there was for many weeks continual skirmishing with Arawa and Ngapuhi on one side and Ngaiterangi on the other. 15 From this however there was no definite result, apart from an inevitable increase in tensions.

11 MA 13/18, Wai 46 12(b):59

12 MA 13/18, Wai 46 12(b):65-66

13 Ibid

14 Stafford Te Arawa p211.

15 Stafford TeArawa p212-215. 55 Te Waharoa and the fight over Maketu The next round of hostilities had an odd beginning and again involved Tapsell. Huka, a Ngatiwhakaue chief, was upset about insults he had received from his own people. There were 2 matters - an adulterous affair, and not the fact that he had not received any part of a payment given by Tapsell for flax sold by Ngati Whakaue. Huka visited Tapsell at Maketu, but Tapsell refused to make a further payment. Huka determined to bring war on his relatives. 16

In the tense situation existing in the region this was easy to do. Huka killed Te Hunga, Waharoa's cousin, in Christmas 1835. In retaliation, in March 1836. Waharoa took Maketu. It was defended by Ngatipukenga hapu and some Ngatiwhakaue. Tapsell's store and flax supplies were burnt. l7 ( Ngati Whakaue, supported by a few members of Ngati Pukenga and Waitaha who then lived at Te Waerenga on the shores of Lake Rotorua, retaliated with an attack on the Ngaiterangi allies of Waharoa at their pa at Te Tumu, on the left bank of the Kaituna river, just north of Maketu. Apparently it was difficult to defend because it was low lying, and the defenders were poorly supported. I8 It was a significant engagement. The land court judge JA Wilson wrote of it:

Ngaiterangi never returned to the Tumu. Hikareia was killed at Wairake, and that place has since been generally considered the boundary of their country - a country which for four years before had extended some seventeen miles further to the eastward, to Otamarakau (Waitahanui). For, in 1832, Ngaiterangi held Maketu, the Arawas only living then on sufferance in a pa situated where the redoubt is now; and Tamaiwahi, a Ngaiterangi tohunga, had a pa at Otamarakau, ( which he occupied until the troubles consequent on Hunga' s death compelled him to flee and seek refuge at Tauranga. Thus the Arawas, when roused, displaced Ngaiterangi, and resumed those coastal holdings: severing the weakened links of the once powerful chain of Ngatiawa conquests that Ngaiterangihohiri had made four generations before, they pushed themselves northward to the sea, and re-

16 John Alexander Wilson The Story of Te Waharoa. A Chapter in Early New Zealand History. Together with Sketches of Ancient Maori Life and History. Whitcombe and Tombs Ltd 1907 (1 st ed 1866) p84. Stafford Te Arawa p226-7

17 Wilson Te Waharoa pp88-89. Also Stafford Te Arawa pp232-3

18 Wilson Te Waharoa pp92-93. Stafford Te Arawa pp237-240 56 established the maritime frontier of their country.19

But things were more complicated that this quote suggests. Wilson was correct in as far as, shortly after Te Tumu, a Ngaiterangi group made one unsuccessful attempt to retake the Otamarakau area. Tamaiwahia, at Tauranga, claimed to see a vision, and on the strength of this, Ngaiterangi sailed from Otumoetai, passed Maketu in the night and landed at Pukehina. They then marched inland to attack the pa of a chief called Tautari at Rotoehu. The Ngatiterangi attack, which took place in August or late July 1836, failed. 2o

But the chief the Ngaiterangi attacked was not clearly of Arawa lineage. Stafford makes this explanation of him:

Tautari was not really an Arawa chief but was connected to them by marriage. His people, the Ngati Pukeko of Whakatane, had a number of alliances with Te Arawa, and Tautari was such a man himself that he was welcomed as a valuable ally of the people of Rotoehu. 21

Since Tautari had successfully repelled a Ngaiterangi attack, it seems that his victory could be seen as one for N gati A wa or Arawa.

Throughout the remainder of 1836, warfare flared intermittently in the Rotorua district. In early August 1836, in retaliation for the Arawa victories, Waharoa attacked the Ohinemutu pa near modern Rotorua city and sacked the Te Koutu mission of the Rev Thomas Chapman. No side delivered a decisive blow however. 22

( The return of Arawa to Maketu It was at this time that groups of Te Arawa moved to Maketu. The Land Court was to characterise the movement this way:

As soon as the conquest from the Ngatirangihouhiri was completed by the taking of Te Tumu and the occupation of Maketu, a division was made of the lands which had lain long without inhabitants, like those

19 Wilson Te Waharoa pp96-97.

20 Wilson Te Waharoa p97

21 Stafford Te Arawa p252

22 Wilson Te Waharoa ppl08-115 and Stafford Te Arawa pp246-250 57 around Maketu, and the hapus generally re-occupied the places where their ancestors had lived. The Waitaha hapus, and they only, returned to Otamarakau.23

Again, things were more complex than this and there are several versions of what happened.

After peace had been made with Ngati Haua, who had been raiding the Rotorua area also in retaliation for the recent Arawa successes, the Ngati Pikiao living at Rotoehu and Rotoiti circulated various Arawa groups seeking support for a permanent occupation at Maketu. The idea seems to have arisen partly from claims by Ngati Haua in late 1836 to early 1837 that they might have rights along the coast through their Ngaiterangi allies.24 ( Te Puehu was the chief who promoted this move, which occurred in 1837. Some Tapuika and Ngati Pukeko were involved, with Ngati Pikiao being the major instigators.25 The district surrounding Maketu was deserted at this time. One set of numbers given are Ngati Pikiao (300), Tapuika, Tuhourangi (20), Ngati Tarawhai (30) and Ngati Pukenga (30).26

The group was also supported by some Ngati Whakaue from Rotorua. And there was Ngati Awa involvement in the form of the valuable Te Arawa ally, Tautari, who travelled at this time to the Bay of Islands to obtain weapons from N ga Puhi. 27

Another account suggests that the decision to occupy Maketu was made after some Ngati Pikiao had attended a tangi with other Arawaat Matamata and the Waikato chiefs there had suggested that the Arawa party be killed. After Waharoa had used his influence and prevented any killing the Ngati Pikiao ( group told him they would move to Maketu. Waharoa warned them "if you should make even a small fire at Maketu I will extinguish it" .28

23 2 Maketu MB 324, Wai 46 12(a)

24 Stafford Te Arawa p257 - but gives no source

25 Stafford Te Arawa p258

26 Pokiha Taranui in Stafford Te Arawa p258

27 Stafford Te Arawa p259

28 Matene Te Huaki of Ngati Pikiao 1875 in MA 13/18, Wai 46 12(b):246 58 This seems to have decided Ngati Pikiao, and they circulated Arawa groups seeking support for their move. Tapuika, one of the first groups approached, did not want to move. The chief Hikairo was approached at Pukehina he also refused to move. There was a natural fear of becoming "food for Waikato and Ngaiterangi". Ngati Pikiao then proceeded with a few supporters.

It was a bold move, taken under the noses of Ngaiterangi. The groups assembled materials for building the pa at Waihi, then moved them by night in war canoes up to Maketu and threw up temporary defences before Ngaiterangi could mount any attack.29 The Pongakawa river was used for movement, suggesting it was not under the control of any rival groups.

So the nature of this re-occupation was obviously a more fraught affair than the Land Court allowed. It was not a case of Arawa groups promptly returning to ancestral areas along the coast east of Maketu as a result of the Te Tumu battle. There is also doubt whether groups simply returned to areas previously occupied by them once Maketu had been secured as the land court stated. Gilbert Mair, writing in 1888, said that around Maketu, Ngatipikiao and other hapu, including Ngatiwhakaue, reoccupied the land and parcelled it out, "to the almost total exclusion of the Tapuika, the ancestral claimants." Ngatiwhakaue and other groups then organised surveys of the land.3o

Rather, there seems to have been quite active readjustment of rights at Maketu at least. What happened to the east of Maketu is even less certain.

Tikanga and land in the Bay of Plenty ( ) There is no authoritative study of tikanga with regard to land throughout the Bay of Plenty. Comparisons can however be drawn from studies in related regIOns.

The use made of land Outside of major kainga and pa, the use of land in the Bay of Plenty, particularly in areas covered by bush and forest was intermittent. As a witness before the Native Land Court commented in 1900:

I have sd. [said] that the occuptn. of the land I am claiming began in

29 MA 13/18, Wai 46 12(b):247 and Stafford Te Arawa p259

30 Letter to TW Lewis, Under Secretary Native Office MA 13/18, Wai 46 12(b):101-102 59 time of Te T[?]ai, & contd. down to us now living. I do not mean that occupatn. contd. from year to year without a break. Native custom is not to live continuously on the one spot, but to go from place to place. if people occupy for a time, & then go away for a time, & afterwards come back to resume occuptn., I will call that 'noho tuturu' .31

The special Commission investigating the title to forested areas in the U rewera in 1900 found that:

The occupation of the tangata-whenua would, be in its nature more that of a nomad people, than that of fixed permanent homes - for it must be remembered, that this was before the time of the kumara and where the people lived to a large extent on the wild birds, animals (kiore) fruits and roots. Hence they were hunters rather than ( cultivators and their occupation in a country such as Waipotiki would be confined to the occasional exercise of their rights, in seeking the wild produce (man?) of the forest. That this was the use to which the block was put, down to the present day, is obvious from the evidence whilst, at the same time, permanent [p 83] occupations (due to the possession of kumara) took place in parts. 1132

The role of Rangatira The major actors involved in decisions about land were the rangatira. In her thesis on the l(ahungunu distrjGt,i\ngella Ballara points out that rangatira were of different types. There were major and minor figures depending on their authority in the local community or region. Major chiefs usually came to their position primarily through lineage.

The Bay of Plenty followed this pattern. From the account above, it can be ( seen that at an early period important regional chiefs were Maruahaira, Rangihouhiri. Important regional chiefs in the years up to 1840 included Hori Tupaea and Waharoa. Te Puehu was important as perhaps a middle order chief, along with Tautari.

In the period from 1860 to 1900 major rangatira who were much involved with land sales and Native Land Court hearings included Arama Karaka, Rangipuawhe, Maihi, Rota Rangihoro, Ereatara Rangihoro, Te Hura, Tiopira and Rangitukehu of Ngati Awa. Other rangatira who seem to have

31 Te Ratauhinga Hori, Rotoiti block hearing, 22 Maketu MB 77

32 4 Urewera MB 82-83 60 These rangatira ultimately depended on the support of their people however. When Ereatara Rangihoro in 1893 explained to the land court that Rirituku Te Puehu's rangatiratanga had died with him, he was asked, "If Rota died would you not succeed to his chieftainship - his "rangatiratanga "?" He replied:

Yes, but it would depend on my own behaviour - if I were not a good man I probably should not, the tribe would decide. It is the tribe that makes the chief.33

The role of hapu In the Bay of Plenty, as elsewhere, hapu were the key organisational units that exploited resources. They were in a constant state of change. Hapu names might change when a hapu was working with a larger group, or fused permanently with another hapu. Or a large hapu might split into several smaller groups. Changes of hapu allegiance and residence were common. Having links to several hapu was also common. The dual links of Maruahaira and Tautari have been noted.

This pattern was evidenced throughout the period of land court hearings. For example, in the rehearing of the Pokohu block near Lake Tarawera in 1884, the hapu Ngati Pou insisted that it had sole rights in the block, at the same time as N gati A wa purported to represent N gati Pou and other groups of Ngati Awa with interests there. The leader of the Ngati Pou group admitted he personally had both Te Arawa and Ngati Awa links, but insisted his hapu always looked towards Te Arawa. He then however admitted that, through intermarriage, some members of Ngati Pou looked towards Ngati Awa. 34 So, was Ngati Pou in the 1880s clearly a hapu of Te Arawa or Ngati Awa? ( I The answer probably depended on the question which was being asked. [wi Iwi were also important units, but less easy to define. Te Arawa, Rangihouhiri and Ngati Awa were iwi, but also collections or confederations of iwi. Government officials and the land court tended to confuse the issue, by labelling groups by "hapu" and then by "tribe", confiating groups together, and failing to use the terms consistently. In the 1880s for example, the "Urewera tribe" was commonly referred to, and the '''Tuhoi hapu". Similarly, Ngati Makino were sometimes referred to as a tribe, sometimes

33 12 Maketu MB 11, Wai 46 G4(d) R7

34 2 Whakatane MB 188, Wai 46 12 61 as a hapu of Ngati Pikiao. "Ngati Awa" in the 1860s seems to have been used in at least 3 different ways:

• to refer to those groups whose common ancestry derived from the Mataatua canoe - this inc1uded Ngaiterangi at Tauranga as well as Ngati A wa at Matata and Whakatane;

• to refer to the confederation of groups living mainly between Matata and Whakatane;

• to refer to a particular group within that confederation ..

The contingent nature of rights Early European purchasers of Maori land found that groups occupying land ( seldom had unhindered rights to the use of it. It was sometimes the case that a group lived on the land by sufferance of another group, unable to deal with the land, but also able to occupy it as long as they wished. The missionary JA Wilson, who worked in the Bay of Plenty, encountered this in the Hauraki region when he came to buy land from a woman named Tini:

It was known that a chief named Koinaki and his c1an were living by sufferance on the place she wished to part with, and according to Native custom there was no right existing which could eject them. It was at the option of these people to remain there for generations, or even till the tribe became extinct. On the other hand, those in possession had no power over the land, either to alienate or to dispose of it in any way. If they left it voluntarily or were driven away in war and the place lay desolate for any length of time, it was not in the ( power of the tribe who had left it to put any second party in possession, but it at once reverted to the hereditary heir. 35

To get over tbe problem, Tini made "presents" to Koinaki and his people and they withdrew from the land. Wilson also commented that in an earlier purchase of a different area, Tini had had an unhindered right to sell.

Chiefs held some authority over land and were influential in what happened to it, but their power had definite limits. They could not trample on the rights of right holders of particular places within the iwi or hapu boundaries. Again, Wilson provides an example of this, relating a problem encountered

35 AJHR 1890 Gl p13-14 62 at Matamata where the missionaries occupied land assuming that they required no more than the permission of the powerful chief Waharoa. Waharoa informed them however that he did not control the land on which they had settled. He offered the missionaries some of his own land at a nearby location. When they refused, Waharoa asked the owner if he was willing to sell the spot, which he did. Waharoa supervised the sale and took a small part of the purchase price, "more as an article of friendship than a right" . 36 The case illustrates the real limits on chiefly mana in relation to lands specifically claimed by members of a hapu.

Wilson noted similar rights in operation at Tauranga and Opotiki.37

Conquest - Te Rau 0 Te Patu ( Raupatu or conquest, particularly recent conquest, tended to make rights even more complex. As has been seen, coastal lands in the western BoP were subject to many acts of conquest, and a particularly intense period of conquest activity from 1822 to 1836.

The land court operated on a rule that a conquest needed to followed up by occupation to make it operative as a root of title to land.

Early European observers put the matter slightly differently, finding that the complete subjugation of the conquered to the will of the conqueror was the· important factor. This made conquests a fragile means of gaining a right to land. John? White wrote:

The right to land taken by conquest rests solely on the conquering party actually occupying the taken district, to the utter exclusion of its { ! original owners or other tribes. If a portion of the conquered tribe escaped the claim held good to as great an extent as they had courage to occupy; and if they could manage to keep within their own tribal boundary, and elude the enemy, their right to the whole of the land held good; .... Again, if a tribe was conquered, and became extinct with the exception of slaves taken by the conquerors, these slaves might by purchase recover their tribal lands, or they could (if liberated) return to them on condition of allegiance to the conquerors,

36 AJHR 1890 G1 p14

37 Ibid p14 63 38

This means that conquests aJleged as a basis of title in the Bay of Plenty have to be carefully examined. The Chief Protector of Aborigines George Clarke, reflecting on conquests in the 1820s period wrote:

I have known slaves tenaciously maintaining their territorial rights while in a state of captivity; but I never knew a master to claim by virtue of his slave, or to attempt to advance any pretensions founded on the capture of the landed proprietor. 39

Angela Ballara, in her extensive study of Native Land Court proceedings in the Ngati Kahungunu district confirms these points, but notes that conquest could also be more than just success through strength of arms - or ringa ( kaha, and involved "any circumstance resulting in permanent loss of mana over an area". 40 A reputation for military strength and successful defence of a district, even if no actual conquest of that district and sUbjugation of people occurred, could be termed a conquest. A successful marriage alliance could also be seen as a conquest. A defeated group which either abandoned the land to escape annihilation or maintained some residual outposts had not been conquered. 41

Whenua tautolzetohe This is a concept raised by the claimants in their reports. The Waitangi Tribunal in its memorandum of November 1994 says of the concept:

The question of where the boundaries lie between contending iwi, assumes such boundaries existed. The Tribunal is not entirely (' convinced that iwi were arranged as state-like institutions with borders of approximate definition fuzzed only by contestable zones.

It appears that in several districts the overlaps were extensive. This district may not be an exception. It further appears that there are many instances of discrete tribal enclaves within larger compacts and also, of the maintenance of resource rights in local areas by distant hapu,

38 White AJHR 1890 G1 p13

39 from paper delivered to the bar of the House in 1860 quoted in AJHR 1890 G1 p10

40 Italics added

41 HA Ballara The Origins of Ngati Kahungunu (1991) PhD Thesis VUW p322-326 64 holding such access of their own authority and not as clients of local regimes. 42

The idea of whenua tautohetohe also assumes a constantly maintained territorial integrity for the iwi, which is at odds with the evidence that hapu were the key organisational units.

Nevertheless, whenua tautohetohe is referred to by Pakeha commentators. Sir William Martin, writing in 1846, said that "between territories of different tribes there are often found tracts of land which are called kainga tautohe or (literally) debatable lands. "43 Another writer referred to "large districts on the borders of different tribes which remain uncultivated. These - kainga tautohe (debatable lands) are a never-failing cause of war till one party has lost its principal men. ,,44 ( Changes to tikanga after contact Maori responded to initial European efforts to buy land by granting a contingent interest, maintaining some consistency with tikanga. As one writer put it:

When the Natives first came into contact with Europeans in the relative position of sellers and buyers of land, ... it has been shown that the Natives in disposing of their land intended to convey a title similar to that which the individual holds themselves - the right of occupancy. They did not imagine that anything else could be wanted. 45

This seems to be the sort of right which Hans Tapsell secured for himself at Maketu when he came to trade guns for flax in 1828. Hori Tupaea stated that he considered that the sale to Tapsell secured his mana over the region.46

The realisation that Europeans sought a perpetual right, and one which could

42 Wai 46 2.59 para 5.2

43 quoted in AJHR 1890 G1 p3

44 Ibid p12

45 Report to Governor Gore Browne 1856 quoted in AJHR 1890 G1 p6

46 MA 13/18, Wai 46, 12(b):66-67

. ~.- ~ -",",.:.>".-:-.- -.. :' ..- 65 be passed on without consent of the original Maori donor, and could be secured by a single payment of goods or cash, was a significant innovation.

One of the immediate effects was to put tension on the relationship between groups in occupation of land versus those with other rights.

District Commissioner Hay in the Hauraki referred to a problem with tribes termed as manene:

These are tribes or sections of tribes, who, either owning land in some part of the country where they do not choose to reside, or having no distinct title to any land whatever, obtain permission from other- tribes to occupy their land; and having done so for some few generations, are naturally anxious to put a stop to land purchase, lest the tribe on ( whose lands they are residing should be induced to resume occupation of the land on which the Manene have obtained permission to stop.

He now found however:

The chiefs find their influence a thing that has past, unless exerted for mischief; the Manene, and the conquered tribes, ignore the position they have held with regard to the hereditary owners of the soil and conquering tribes; the one assuming a right they never possessed; the others, quietly reassuming the position they forfeited some three or four hundred years ago, ask why their rights are not recognized. ,,47

Donald McLean referred to this problem at the Kohimarama conference in July 1860?, attributing it to the spread of Christian ideas, saying that, "the conquered were permitted to re-establish themselves on the lands of their ( ancestors. In process of time, however, the conquered encroached too far on the formerly-recognised rights of the conqueror, occasioning up to the present day much bitterness of feeling between the two classes of claimants. ,,48

Taking into account the broad use of the term "conquered" to include groups occupying by licence but not defeated in war, it is easy to see that this

47 District Commissioner Hay to Chief Comm II General Report on Land Purchasing Operations in the Thames and Piako District 4 July 1861 Turtons Epitome p336-337, Wai 4611 (a): 12. A similar case is mentioned at AJHR 1890 Gl p19

48 Quoted in AJHR 1890 G1 p2 66 situation existed in the Bay of Plenty among Arawa groups. Ngati Whakaue, who considered themselves a dominant group on the basis of conquests they had made in the 1830s, resented the fact that groups such as Tapuika, with long held ancestral rights in the land, but which had not taken part in recent actions, were almost exclusively dealt with in land purchases and had their claims upheld over those of Ngati Whakaue in early decisions in the courts.

Wilson said that:

claims were often singularly complex, and very far-reaching. Thus Ngaiterangi, in the early days, claimed and obtained payment for Tawhitirahi pa when a European bought the land there, and this notwithstanding they had not ventured to occupy it for three hundred years, and the natives living near the place approved of the claim; but not until they had been paid for the full value of the land. 49

He seems to have been referring to the Tawhitirahi pa near Opotiki, a very old Rangihouhiri stronghold.5o

Another way in which the Pakeha influence affected tikanga was to increase the incidence of movement and conquests in the North Island. In several areas groups moved away from their traditional lands to escape Nga Puhi incursions, and to establish trade relations with Pakeha to build up the tribe's supply of anns. Ngati Kauwhata in the Waikato for example, moved to Kapiti through a combination of these factors. 51 In the Bay of Plenty, Ngati A wa and Arawa groups moved inland to the Rotoehu and Rotoiti lakes, then concentrated at Maketu to trade flax for guns. As a result, there were numerous incidents of conquest in the period between 1820 and 1860 in the ( ) Bay of Plenty. This made the difficult situation Hay mentioned even more complex.

Maori adapted tikanga to deal with these complications. FD Fenton, the first Chief Judge of the Native Land Court, recalled a purchase in 1854:

It was land that had been conquered by Te Parawhao, a hapu of Ngapuhi. There were assembled the people of the tribes Ngatiwhatua,

49 JA Wilson Te Waharoa p232

50 Stafford Te Arawa pl15

51 AJHR 1881 G2A 67 Te Uriohau, and others; who had been defeated and expelled. There were all the chiefs in a circle. Beyond were the people ..... [The Land Purchase Commissioner] produced a bag with 800 sovereigns in it. He set it in the centre of the circle of chiefs. Te Tirarau, who was the most eminent Native man in that part of the country, took it and placed it in front of old Te Wheinga, who belonged to the original owners. There it stood about a minute. Then Te Wheinga returned it and put it in front of Te Tirarau. He took it up and put it in front of Paikea, who represented another branch of the conquered. So it went round to all, and went back again to the original position before Te Tirarau. There it stood a long tiri1e. Then Te Tirarau took out a handful of sovereigns and gave them to Parore. Then he took out another handful of sovereigns and gave them to the next, and so on, all round. At last he held up the bag inverted. There was nothing in it, ( and he got nothing for himself. 52

When Hans Tapsell arrived at Maketu, a similar negotiated solution was arrived at between the Ngaiterangi, Te Arawa and Ngati A wa groups interested. The talk took 2 days.

Pakeha views of tikanga The interpreter John White, reflecting on Bay of Plenty disputes in 1859 wrote that:

Disputes of this kind are not easily unravelled. I believe that were it possible to teach the Maoris the English language and then bring them into some Court, allowing each contending party to plead his cause ... , not according to English law but Maori customs, both sides would, according to Native genealogy and laws, make out their respective ( cases so clearly that it would take a Judge and jury possessed of more than human attainments to decide the ownership of the land. 53

Fenton quite clearly showed there that he understood that there were relative rights between the people occupying the land:

before you ca.n divide among twenty people money according to their rights in the land, you must ascertain their relative rights, that, is what represents the mana of the land. To find the relative values of the

52 AJHR 1885 128 p35

53 Lecture at Mechanics Institute: August 1859 quoted in AJHR 1890 G1 p13 68 claims of chiefs in the land I have always found to be impossible. it was quite impossible to ascertain the proportionate value of the several classes of chiefs and tutuas; "54

As Fenton showed in his discussion of the purchase in 1854, there were ways in which these rights could be dealt with. Angella Ballara concludes for Ngati Kahungunu that:

To be legitimate, alienation of land in the contact era and after 1840 was a matter of agreement between chief and occupants with proprietary rights together. In practice, this usually meant that the chief made the decision and handled the negotiations to sell. The most public negotiations were the most successful. .... Those early settler and administrators who conducted public meetings and sought to satisfy the demands of every possible claimant were on the right track." 55

This is echoed by Sir William Martin who commented in 1846 that "To make a good bargain there are needed length of time, publicity, and knowledge of the Native language. When these requisites are found purchases of land in New Zealand may be, and in the large number of cases have been, made as safely, at least, as in England. "56

The most influential Pakena view of tikanga in the Bay of Plenty was however to be that of Chief Judge Fenton. His Taranaki judgments in the Compensation Court unquestionably distorted tikanga. In light of his comments in 1885 about the complexity of conquest .rights, it is apparent he wilfully simplified tikanga when noting in the leading Oakura judgment that: ( I the great rule which governed Maori rights to land, was force - ie., that a tribe or association of persons held possession of a certain tract of country until expelled from it by superior power, and that on such expulsion, the invaders settled upon the evacuated territory, it remained theirs until they in their turn had to yield it to others. "57

54 AJHR 1885 12B p35

55 Ballara Ngati Kahungunu p373

56 Sir William Martin 1846 quoted in AJHR 1890 G1 p4

57 AJHR 1866 A 13 p3, 12 July 1866 69 In the same judgment Fenton was forced to admit that Taranaki Maori saw things quite differently. The resident groups freely allowed that "absentees" had rights in Taranaki. Fenton dismissed this aspect of tikanga with the words "but as the contest was not between them [the residents] and the absentees, but between the absentees and the Crown, we did not attach much weight to their opinion. "58 The Crown of course made payments for these absentee interests, despite Fenton's ruling. And see George Clarke, "the title of the tribes about Port Nicholson to land in the Taranaki District cannot be wholly extinct if they have kept up friendly intercourse with the residents," and that "a tribe never ceases to maintain their title to the lands of their fathers".59

Fenton then outlined the1840 rule: ( Having found it absolutely necessary to fix some point of time, at which the titles, as far as this Court is concerned, must be regarded as settled, we have decided that that point of time must be the establishment of the British Government in 1840, and all persons who are proved to have been the actual owners or possessors of land at that time must (with their successors) be regarded as the owners or possessors of those lands now .... Of course the rule cannot be so strictly applied in the native Lands Court where the questions to be tried are rights between the Maori inter se, but even in that Court the rule is adhered to, except in rare instances.

The difficulty of the 1840 rule was twofold. It not only set a date at which rights would be determined, but in ruling out 'absentee' groups, Fenton emphasised continuous use of the land as a criterion for claiming rights. Yet ( as has been seen, tikanga in the Bay of Plenty recognised many 'absentee' rights as having considerable force.

The rule was .applied in the Bay of Plenty. For example in an 1894 judgment of Judge Scannell in the Ruatoki block:

The Court has laid down a rule that the persons who were the undoubted owners when British Law was established in 1840 were the

58 AJHR 1866 A 13 p3, 12 July 1866. This is fuller than the judgment recorded in Important Judgments Delivered in the Compensation Court and Native Land Court 1866-1879 (Auckland 1879)

59 Quoted in 1890 Gl p9 70 rightful owners, and no want of occupation since that time can annul their rights, - and conversely persons who were not the undoubted owners in 1840 cannot acquire any valid right since that time by mere occupation - therefore where we find persons in occupation at the present day, we assume they or their ancestors were in occupation in 1840 or had a right to occupy - till the contrary is shown and when proof of such occupation goes back for three or four generations it is generally all the Court wants to enable it to come to a decision therefore the legendary and semi-mythical tales of the acts of ancestors extending back from fourteen or twenty generations - as in this case - which when contradicted as they always are - are quite incapable of proof, at the present day, though interesting to the student of Maori history & custom are altogether unnecessary as a proof of ownership and are a mere waste of time and money. "60

Although the judge here referred to a "right to occupy", the practical effect was that the court looked for evidence of continuous (if intermittent) use of land, and did not consider claims it felt were unsupported by some physical use in the years immediately before 1840. Thus Judge Gudgeon said of one claimant in the Ruawahia block:

It is not denied that he [Katene] is a member of the hapus to which he claims to belong, but he has failed to give any satisfactory evidence of occupation on his own part, or of those claiming with him, and the Court wishes to impress most distinctly on the minds of those bringing cases before the Court that the mere fact of descent from an ancestor is not sufficient ground of claim, unless it can be shown that there has also been occupation by the claimant or his near relations, such as will show the claimant has not abandoned his or her right, and adds that the old Maori proverb, concerning a girl who leaves her tribe and marries with with another and hostile tribe, are known to and appreciated by this Court. The Court is of opinion that the claimants in this case, although descended from Rangitihi ancestors are Tuhourangi both by birth and adoption, and that they did not at any time within the past 50 years occupy this land by right. Their claim is therefore dismissed.61

Even among the land court judges there were alternative views. John

60 43 Judge Scannell MB 157-158, Wai 46 12(n)

61 12 February 1891, 4 Whakatane MB p304-305, Wai 46 12(i) 71 Alexander Wilson, who acted as a land court judge from 1878, commented:

I would note that the Story of Te Waharoa served a useful public purpose in rectifying an error that the Native Land Court, then new to its ·office, had fallen into, when laying down the dictum called its 1840 Rule (vide Oakura judgment delivered by three judges, including the Chief Judge, while sitting in the Compensation Court). Apart from its circumlocution, this decision meant that the Maoris had killed and eaten each other and taken each other's land without rhyme or reason, and the N .L. Court, after two years' search, had failed to find any. Whereas the Story of Te Waharoa shewed that native movements, political, in war, or otherwise, were subject to cause and effect, not to blind chance. It also showed that the natives were accustomed to defend their lands with their lives. 62 (

Wilson noted that "in vesting ownership the decision drew an arbitrary line across threads of native tradition and custom, a course that necessarily failed when a better way was found; ,,63 Wilson claimed to have discussed the matter with Judge Reale, who decided the Otamarakau case, and that Reale told him that since his book had been published nothing more was heard of the rule.64

Yet Reale as is known, himself appears to have applied the rule when he ruled out Ngati Pukeko claims at Otamarakau because they had admitted that they abandoned the land at the time of the Ngapuhi invasions and that they had never returned to it. 65. This will be discussed in more detail later.

( /

62 Wilson Te Waharoa p vi

63 Ibid p vii

64 Ibid p vii

65 2 Maketu MB 309, Wai 46 121a) 72 PART FOUR

THE COMPENSATION COURT IN THE WESTERN BAY OF PLENTY

Introduction The New Zealand Settlements Act 1863 provided for the estabIisIunent of a Compensation Court in order to determine compensation for persons with an interest in confiscated land, provided they were not disqualified by section five of that Act.

Section five stated that compensation should be granted in respect of any lands taken under the Act from those who had not engaged in, aided or abetted rebellion against Her Majesty's forces in New Zealand. The task of the Compensation Court, therefore, was to distinguish between the loyal and rebel claimants of each tribe.

Notification of the commencement of the Compensation Court's operations in the Bay of Plenty was gazetted on 3 April 1866. Potential claimants were notified that they had six months from the date of 17 January 1866 in which to lodge claims to confiscated lands.

The Court operated under rules and procedures which were notified in the Gazette on the 20th June 1866, which pertained to the Opotiki and Maketu sittings of the Court, and on the 16th September 1867 which covered the later Whakatane and Te Awa 0 te Atua sittings.

These rules required:

• public .notice of a Court sitting to be made at least two months in advance of a sitting; • that the procedure of the court was to be modelled on the Resident Magistrate's court for civil cases • all evidence taken in court was to be recorded and a copy thereof, as well as details of judgements and awards, was to be forwarded to the Colonial Secretary. • the Court could agree to an adjournment on the application of either party in order to obtain more evidence until the next sitting (or after that provided that period was no longer than three months). • procedures were outlined for a rehearing 73 • the claimant was held to be the plaintiff, and the Crown defendant and either party could appear by counselor duly authorised agent • where land was awarded in compensation it was to be selected by the IJ successful claimant and the Crown Agent. If they could not agree within six months then the Court would make a binding decision

Later gazetted rules provided that in all cases of opposing claimants, the counter claimant was also to be regarded as a defendant. A time limit of sixty days was to apply for rehearing applications to be made and the notice outlined the ways in which the application was to be made. The Governor was given the power to refuse any application for rehearing.

Fol1owing notice of the Government readiness to receive compensation claims on 3 April, the Native Secretary was forwarding claims to Chief ( Judge Fenton just a few weeks later in mid April 1866. 1

John Alexander Wilson was formally appointed Crown Agent for the Compensation Court hearings in April 1867.2 Wilson was the son of the Rev JA Wilson, a pioneer missionary in the Bay of Plenty and old land claimant, well known to Maori in the Opotiki district in particular (in fact, he made a claim to the compensation court regarding his land interests). Given this background, we might assume that Wilson came to the Bay of Plenty equipped at least with some knowledge of the tribal dynamics and personalities he was to deal with. .

The initial sitting of the Compensation Court in the Bay of Plenty was to have commenced on the 1st October 1866 under Judge WC Lyon, a military 3 officer who had commanded troops in the Bay of Plenty campaigns. This ( I sitting was abandoned ,however, when it became clear that the district's proclaimed boundaries were erroneous.

Wilson was reporting on the surveys of the district by May 1866. He wrote to the Auckland Superintendent stating that:

... a grave error has been committed in wording the proclamation, for

Fenton to Native Secretary 19 April 1866 RDB vol 122 pp47069

2 NZ Gazette 1 2 April 1 867

3 NZ Gazette 19 July 1866; vol 122 RDB 47072-4 74 the junction of the Tauwhare and Ohiwa rivers is a geographical myth. 4

The boundaries of the Bay of Plenty district were amendyd in the Gazette of 11 September 1866. This mistake necessitated a redefinitfon of the period for lodging Compensation Court claims. The Court decided that the period for lodging claims should be for three months from 1 September 1866 (the date of the new Order in Council). .

In addition to the confusion over the geography of the confiscation district, disquiet was expressed over the appointment of an inexperienced officer, slJch as Lyon, to sit at the Opotiki Court. 5

\ \ In the\event, Major William Mair was to preside at Opotiki with assistance from Judge TH Smith who had been appointed a Compensation Court judge in December 1866. While Mair was also a military officer he had at least the experience of having been a resident magistrate. A new date for the hearing was set for the 7th Mar.ch 1867 and this was gazetted in early January, a mere two months before the hearings were to commence. 6

HT Clarke, who was Civil Commissioner at Tauranga, functioned as counsel for Maori claimants in the Court. He also seems to have been involved with Wilson in out of court arrangements for confiscated lands. In addition, J Mackay was appointed in January 1865 and was involved in some sittings.

Out of Court Arrangements The Government pursued a policy of making arrangements about confiscated ~. ) .land and surveying prior to the Compensation Court sittings. In confidential instructions issued by Fitzgerald to Pollen, Agent for General Government in Auckland, emphasis was placed on the means to attain a rapid settlement of the confiscat~d territories. This was to be achieved by impressing on Maori the necessity of accepting the confiscations and consenting to hold land returned under Crown Grant:

To attain this end, the Government would sanction a far more liberal

4 JA Wilson to Superintendent Auckland Province 11 May 1866 RDB vol 123 p47462

5 Correspondence between Fenton and Native Minister RDB vol122 pp4 7076-4 7077,47081- 47082

6 NZ Gazette 11 January 1867; RDB 122 pp4 7099-4 7105

,"." ••• ". - _. - ••• ' _._ .' •• ~_ •• OW .0.'" 75 disposition of land to Maori than would on other conditions be desirable. The one great thing which they desire to see done is to induce the Natives to accept their position as final and irrecoverable, and if by liberal concessions to them of blocks of l~nd under Crown Grant you can bring about this result, the main object of the confiscations will have been achieved. 7

Legislative authority for these out of court settlements was provided by the Friendly Natives Contracts Confirmation Act 1866 which at section 2 stated:

All Crown Grants of land made and issued or to be made and issued to Aboriginal Natives of New Zealand in satisfaction of their claims to ( \~ompensation in respect to any title interest or claim to land taken ( under "The New Zealand Settlements Act 1863" and in fulfillment of . arrangements made with them for this purpose by any person or persons authorized on the part of the Government of New Zealand to negotiate with them in this behalf shall be deemed and taken to have been and shall be valid and of full force and effect.

To this end, Wilson was also Special Commissioner for the Bay of Plenty region which meant responsibility for making arrangements with Maori as to what land was to be retained by the Government and what land was to be returned to Maori, as well as responsibility for arranging surveys of the area. These arrangements were conducted both prior to and during the Court sittings, when Wilson was acting as Crown Agent, and were made not only with loyal Maori but also with rebels as defined under section 5 of the Settlements Act. Wilson reported to Pollen, as responsibility for ( ( administering confiscated land had passed to Auckland province. .

It is unfortunate that the surviving records of the operation of the compensation court in the Bay of Plenty are so piecemeal. This is especially true of the r~cords that Wilson kept of the meetings with tribal leaders. As far as the initial Opotiki sitting is concerned, Wilson did submit a report of his arrival from Tauranga in October 1866. '/

This report underlined the Government's priorities in surveying for military settlement and reserves to be used for compensation. At this time the Government was under pressure from a cash strapped Auckland province to

7 Fitzgerald to Pollen, 3 Sept 1865, Agg-A 1/1 76 provide for military settlers as soon as possible. 8 While he had a preference for making out of court arrangements where possible, this was thwarted by the fact that Wilson recorded only four of the thirty eight claimants for Opotiki and Ohiwa were at Opotiki when he arrived. It must be borne in mind that these activities were taking place against a background of ongoing fighting in the district, which must have hampered Wilson's abilities to negotiate with potential claimants despite garrisons being stationed at Opotiki and Matata.

He noted the surveyed allotments for military settlement reserved presumably prior to any arrangements with tribes in the area and before the Court had sat. A question arises, then, as to the extent loyal Maori with valid claims to this surveyed land were already compromised.

Wilson reported on 14 November 1866:

I obtained from Mr. Clarke the compensation papers in his hands; and sailed the next day in the" Argo" for Opotiki, and arrived at this place at 11a.m on the 24th ultimo.

Upon classifying the claims I found, that for land at Opotiki and Ohiwa, there are 38 claimants, who make just 100 claims.

On my arrival there Major St John assured me he would assist in any way in his power ... Shortly after my arrival William King came to see me with several Ngaitai men and by appointment met the Wakatohea [sic] chiefs, Rangimatanuku, Witiria, and others. The result however of the discussion convinced me more than ever of the weakness of Ngaitai's claim to Opape.

It is not possible to compromise the claims at this place. For there are only 4.claimants present here. They are Tiwai and his wife Te Aira, Mrs Bennet White, and a native from the Bay of Islands. With the three former I can do nothing, as they are determined to go to the Court. - and I prefer to allow the claims of the latter to take their chance there also, to giving him the land he asks for. In this . department of my duty difficulties have multiplied very much since I was here in May.

8 B Gilling, Te Raupatu 0 te Whakatohea: The Confiscation of Whakatohea Land 1865-1866, Wai 87: A3 p139 77 Finding myself, therefore unable to settle claims privately in consequence of the absence of the bulk of the claimants, and the stubbornness of the few that are here I have set aside reserves in the Military and Commercial Townships. And as I received a letter on the 8th inst from the District Surveyor requesting to be informed of these reserves, I intimated in reply, that they consisted of the following lots

In making these Reserves I have judged it better to be on the safe side, and have made sufficient provision against the sitting of the Court especially as there are still upwards of 20 allotments to spare in the Military Township. In the Commercial Township 3 acres have been reserved. ( I have also made all the reserves that appear necessary in the district that lies to the eastward of Otara, river [sic] extending as far as Tirohanga. This land is therefore available now for the location of a Company of Militia; and the District Surveyor has been informed that the following lots have been reserved ... There are therefore 79 Sections in this district available for allotment.

On the 16th instant (the day after tomorrow) the reserves on the delta, between the Otara, and Waioeka, rivers, will be completed. Thus 144 more 50 acre lots will be available making 223 in all, which will nearly suffice for the location of these companies at Opotiki; for Major St John informed me that the companies are only 70 strong ..

I have obtained all the information 'possible with a view to meet the ( cases as they appear in Court, and in so doing I have been guided by Mr Fenton's remarks; and among other things have made a census of' the Whakatohea tribe, by its hapus, in order to ascertain the acreage due to each non rebellious native who may be able to prove a claim.9

By the 24th December 1866 Wilson had settled the "rebellious" Upokorehe at Hokianga and Hiwarau in Ohiwa harbour with the approval of the Defence Minister:

The boundaries of this Native reserve are on the east by the main road from Tunawai towards Waimana ie the surveyed road to the point

9 JA Wilson to F Whitaker AGG Auckland 4 November 1866 RDB vol 120 pp46353-46357 78 where it first strikes the Nukuhou stream, as one goes from Punawai, on the south and west by the Nukuhou, and on the north by Ohiwa harbour from the mouth of the Nukuhou to Punawai. These limits enclose an area of about 1500 acres. Hokianga is a small island of, say, 30 acres near Hiwarau.1O

Wilson visited the Bay of Plenty district again in early 1867. He left Auckland on 3 January and arrived in Opotiki on 5 January 1867. Within a few days he had visited Whakatane and investigated claims there.

On 14 January he travelled west to Kokohinau, the chief Rangitukehu's pa in the Putauaki district, where he held a meeting to make arrangements for the lands east of the Tarawera river. His memorandum on the subject makes it clear that Wilson earmarked the Te Teko plains to be retained by the Crown: ( ) I was informed, as indeed I had expected, that the country there belonged to the loyal chief Rangitukehu then absent with W Mair RM in the Uriwera [sic] country ... After many speeches the question I mooted was left in abeyance until I should have an opportunity to arrange it with Tukehu himself ... I first expressed the intention of which the meeting approved to require a portion of land in consideration of the expense incurred by Government through the late disloyalty of some natives of that district.

On the 16th, though alone, I ascended Mount Edgecumbe with a view to obtain a better knowledge of the country. Arrived at the summit, I was particularly struck with the level character of the country extending from Te Teko to the Rangitaiki river to Lake Taupo ... and I determined to obtain from Tukehu the Teko plain, which appears to be the natural site for a town that must some day command the traffic of the interior. In this I ultimately succeeded as the agreement with Tukehu which I forwarded to you on the 20th ultimo shews. 11

At a meeting with the Defence Minster at Tauranga on the 26th January, Wilson was directed not to press too hard for land at Mt Edgecumbe if he perceived that this would be likely to cause disturbance; on the other hand, he was not to allow the matter to lapse. Clearly the Government did not command total control of the interior at this point and were being careful not

10 IA 1 1867/1321, Wilson to Pollen, 18 April 1867

11 IA 1, 67/1321 Wilson to Pollen, 1 8 April 1 867, Nat Archives 79 to alienate the loyal chief Tukehu who had great influence in the district. In the event, Wilson wrote to Pol1en on the 5th of March announcing that he had returned from the Mt Edgecumbe district having made an arrangement for the Government to retain a block of land. The block was estimated by Wilson and Hunter the surveyor to contain about 10,000 acres and situated in an area of swamps and barren hills. Wilson reported that half of this block was sandy but capable of supporting pasture, and the other half excellent soil "even on the indifferent side the tea tree grows fifteen feet high". The block extended from the Rangitaiki river on the east to the Tarawera on the west with a frontage of about 2 miles abutting the Rangitaiki and about 7 on the Tarawera:

But perhaps the chief value of this land is that it contains the only site for a township that can unite the advantage of good steam ( \ communication by the Rangitaiki to the sea - fifteen miles off - with that of land carriage over a level country to Taupo, some forty five miles distant. 12

From Kokohinau Wilson proceeded west to the Tawera country on the 17th of January, noting in his memo to Pollen that prior to the war the 86 members of this hapu h~d been extensive land holders chiefly to the west of the Tarawera river:

... but now these lands are the property of the Arawas, having been given to them by the Government in consideration of past services. Messrs Clarke and Mackay, however, have promised the Taweras a piece of land at Te Umuhika, where their mill is, on the west bank of the Tarawera. I think it would be well to set these natives' minds at ( rest by giving, without unnecessary delay, a certain amount of land at that place, and if the quantity be sufficient for their support it will not be requisite to supplement it by other Government lands.13

Before his return to Opotiki Wilson also visited Matata and Whakatane apparently making investigations and arrangements in those areas as well.

Wilson returned to Opotiki towards the end of January in the midst of panic

12 Agg-A 1/67/200 Wilson to Pollen, 5 March 1867

13 IA 1, 67/1321 Wilson to Pollen, 18 April 1867, Nat Archives 80 about a possible attack by U rewera Hauhau. 14 By the next month this danger had lessened and Wilson pursued his arrangements and investigations in Whakatane, Rangitaiki, Putauaki and Matata. He also endeavoured, with the assistance of Te Ranapia, Witiria and Rewiri Moka, to bring out more Whakatohea rebels from the wilds of Waoieka gorge.

Again on the 18th February I provided for the NgatiAwa proper of Whakatane; that is to say the Ngatihokopu and Ngatiwharepaia hapus; by giving them permission to retain the lands that had been theirs on the Orini, between Owhataiti and its mouth; and also to retain their lands at Ohope, from Te Ara Kuri to Te Horo near Tauwhare. I told them that the inland boundary of this reserve would be defined by a survey line. 15

() Wilson said that he made some reserves at Opotiki for the Whakatohea: six acres between the Otara river, the Parahamuti creek and the sandhills and also fifty acres each for the chiefs Witiria, Rangimatanuku, Awanui, Te Ranapia and Makarini in Pitcairn's survey east of Opotiki, on condition that the Crown Grants would be issued to them when they had proved their loyalty for three years.

Wilson returned from his trip by 4 March ready for Compensation Court hearings on 7 March at Opotiki.

Reporting to Pollen in May 1867, Wilson forwarded a sketch map of the district and information relating to a census of the rebellious tribes between Ohiwa and the western boundary of the confiscated land and the districts they owned; the land which the majority of those tribes now held by (,) arrangement with the Crown Agent. He also mentioned an arrangement apparently made with Patutatahi for a 'cession' of land. He went on to show:

3rd. T.wo large blocks of land that have been taken by arrangement from the rebellious tribes - these contain an area of about 50,000 acres

4th. Another block which is offered but not accepted, until the Patutatahi shall have assisted to disprove in Court some foreign claims

14 see ROB vol 136 pp52349-52365; also Wilson to Pollen IA 1 1867/1231

15 Wilson to Pollen 18 April 1867 IA 1 1867/1321 81

that are made to the land. 16

The Government policy of making out of court arrangements and surveys before the Court sittings was problematic. For example, Wilson noted that the reserves made by him at Opotiki in November were adequate to satisfy the claims which had been received by that date but the Government received many claims after the 1 December, the day on which it became optional for the Government to accept them. Thus Wilson ended up with inadequate reserves and had already allotted claimed land for military settlement.

Because Wilson's memos concerning these arrangements do not give a full account of the negotiations with the various groups, if indeed there were negotiations per se, it is not clear exactly what pressures Maori could have brought to bear on the arrangements. In the instance of Rangitukehu and the ( Pahipoto, there is an impression that Wilson was cautious with a still powerful and influential loyal chief, yet his comments with regard to arrangements with the Patutatahi reveal that some arrangements were contingent upon claimants giving assistance to Wilson in subsequent Court hearings. As to the land in the East of the confiscation district, Wilson referred to confiscation here as "nominal" with the Government not in a position to pursue any arrangements. Following these points, a question arises as to the choice various groups had in bargaining with Wilson or deciding to pursue their claims in the Compensation Court.

These arrangements were dealt with by the Court in a very limited way, that is, they were read out and assented to by the Judges (this is commented on below). It is worth noting, too, that many of these arrangements for reserves made for surrendered rebels occurred before the passing of the Confiscated ( Lands Act 1867 which under section 4 empowered the Governor to make reserves for surrendered rebels.

To help administer confiscation in the Bay of Plenty, a Select Committee on Confiscated Land was appointed under the chairmanship of Crosbie Ward. The purpose of this committee was to report on the quantity, location and value of lands to be forfeited by rebel tribes. Inevitably, given the paucity of reliable information on tribal holdings in the district, the committee reported it's d.ifficulties in obtaining precise and credible details (August 1866):

In the case of the Bay of Plenty, or Opotiki district, the utmost

16 Wilson to Pollen 15 May 1867 AD 1 1867/3881 RDB vol 136 p52348. Emphasis added 82 uncertainty prevails. Your committee have been unable to obtain any definite evidence whatever as to areas; and the deductions to be made by way of compensation to friendly Natives, and grants to returning rebels, are as yet wholly undetermined. In their attempt to form an approximate calculation, your Committee have assumed, from such opinions as have been laid before them, that there may be in the district 100,000 acres of useful land; that as about one half the original Native owners have been friendly or neutral, one half of the whole land must be restored to them; that of the other half, or 50,000 acres, 25,000 acres will be required for military settlement; and that the remaining 25,000 acres will be available for any other purpose. l7

It is interesting to note that the saleable confiscated land was valued at £1 per acre which reflected the relative quality of the confiscated coastal strip ( ) compared to other confiscation districts where land was valued at as little as 5/- per acre. I8 Crosbie Ward further commented that he was not aware of any arrangements which had been entered into for the disposal of the lands, required under the Settlements Act.

General Points Concerning the Compensation Court This section is intended to give an idea of the nature of the Compensation Court records themselves and to give general commentary on the Court process. It is followed by extracts from each of the four sittings, with a general focus on Ngati Awa claims in the Court, and some of the most important cases presented in the Court are discussed.

The Compensation Court sittings:

7 March - 8 April 1867 Opotiki 8 July - 12 July 1867 Maketu 9 September :- 1 October 1867 Whakatane 3 December - 19 December 1867 Te Awa 0 te Atua

As a general comment, the Compensation Court minutes are poor. The minutes themselves deal with the detail of specific claims and do not address the wider context in which the claim lay, either geographically or tribally. It does not seem that the claims were heard in any particular order though,

17 AJHR 1866, F2 p1; RDB vol 19 p7493

18 B Gilling, Te Raupatu 0 te Whakatohea, Wai 87: A3 p146 83 naturally enough, there is a broad correlation between the location of the sitting and the claims/areas which that sitting considered. The minutes do not as a rule note any of the questions put to witnesses and it seems that the witnesses' testimonies were not verbatim but summaries of what was said, making it difficult to follow exactly what claimants were responding to or what was volunteered information. The evidence, then, is often fractured and incoherent to the reader and it is difficult to ascertain the extent to which the minutes truly reflect the evidence. There are many examples of claim boundaries not written in the minutes but references to them being read to the Court, to give an instance. The minutes are in English but the testimony would have been in Maori - was the evidence translated as it was given or do the minutes survive from other notes taken at the hearings?

It is clear that some claims before the Court were brought by individuals and ( others by claimants on behalf of groups although it is not always easy to distinguish between the two. In the case of group claims, the Court noted named individuals and often these individuals appeared to be the chiefs or leading men of the hapu. While Wilson's pre court arrangements were made for hapu, the Court did not seem to consider claims on that basis. Some claimants listed co claimants in their evidence but do not say whether these were the leading men of particular divisions or whatever, or whether they were the only persons claiming. The award certificates listed the names of the individuals who were given in evidence or whose names were given on the claim itself so a question arises as to whether the claimants realised that only those they named in Court would have rights in the award.

The claims in the Court reflected Maori customary tenure to the extent that there were clearly tribal or hapu claims to particular areas but there were ( I many individual or family claims for specific pieces of land which had been occupied, cultivated or foraged within the rohe of the hapu. Often witnesses refer to lands as having been "divided" lands, meaning individuals could give specific boundaries to lands under whanau occupation, for example, subject to the mana of the hapu.

An overwhelming impression gleaned from the minutes is the considerable importance given by the Court to the evidence produced by the Crown Agent Wilson. As mentioned above, Wilson's out of court arrangements were simply authorised by the Court without any independent inquiry as to whether these arrangements were fair or satisfactory on other counts. Many individual cases were dismissed where the Crown Agent said that they had been settled out of court. 84 The Court dismissed claims where the claimant did not appear in person, though later petitions to the Government made it clear that the continuing disruptions in the Bay of Plenty impeded some claimants from attending the Court sessions and, further, it seems that there were numbers of claimants residing in other parts of the country at the time who were unaware that their lands were being heard by the Court. Sometimes, however, the claim was not dismissed automatically due to absence if the Crown Agent said he could not procure witnesses anyway or in instances where he supported the claimant. An associated issue here is the fact that some Maori did not seem to know how to lodge a claim. For example, in September 1878 Matiu Te Auripo of Whakatohea wrote to Brabant, requesting payment for assistance he gave the military officers McDonnell and Preece as a peace maker and messenger during the wars. They backed his request. Matiu stated, "The other question you ask is why I did not apply to the Government before? it is then I did not mow how to proceed at that time. I know now." 19 Other Maori seemed more prepared in the prosecution of their claims; while HT Clarke was in attendance as claimant counsel, despite the fact that most claimants seem to represent themselves with little guidance from him, it appears that some claimants had other counsel as names such as Russell and Leavy appear in this context.

As the Compensation Court was supposed to be awarding land to persons who were deemed not to be rebels (as defined under sec 5 of the Settlements Act), much of the evidence in the Court was directed as determining the rebel status or otherwise of the claimants. Given Wilson's memos on his pre­ court reconnaissance and the fact of his acquaintance with Bay of Plenty peoples and politics prior to the Court hearings, it is not surprising that he seemed to know a lot about many of the individuals who appear in the Court. Still, with regard to the less notorious individuals, it is not certain how Wilson determined who was a rebel and who was a loyalist; either way the Court appeared to be confident in relying upon his evidence. However, a complicating, factor in the determination of rebel status was the Peace Proclamation of 1865. Under this proclamation, previous war activities were pardoned except those concealing the murderers of specific named individuals. Given the tense military situation in the region at the time, with continuing campaigns concurrent to the hearings, the atmosphere seemed to weigh heavily against all those associated with the rebellion, none more so than those persons identified as Hauhau.

19 RDB vol 123 p 47326 - To Mr Brabant, of Sept 7 1878 85 Although it is not entirely clear how Wilson recruited his witnesses, they are often counter claimants to the same land, often chiefs, and as the Patutatahi example shows, Wilson seemed to find favourable witnesses in the hope that they would support his arrangements. Several witnesses admitted that they are rebels and while debarred from compensation, explained their presence in Court as being determined to rebut what they consider false claims to their tribal lands.

On the other hand, it is notable that many counter claimants to the same lands admitted close relationships with the claimant. In this respect, it can be seen that the Compensation Court only considered Maori custom in a limited manner. It was clearly concerned with trying to establish exclusive ownership rights over particular lands but the evidence of witnesses demonstrated the complex nature of overlapping rights over lands and ( resources. It was the case that some claimants came to the Court claiming particular lands which had already been awarded to individuals in previous hearings. The Court had to balance ancestral claims, "toa' claims or those deriving from conquest, claims by marriage or aroha, occupational claims and so forth and on balance, it appears to have had a bias in favour of those in actual occupation of lands. The minutes point to the fact that the Court was also more concerned with fixing the interests of individuals than the nature and extent of any tribal claim. Those having brought and proven an individual claim before the Court were often awarded grants over and above their share in the tribal reserve.

The Court did not issue lengthily judgments on each case, or even explain the basis on which the judgments were made (except in those instances when it was made clear that the claimant was deemed a rebel); most often the ( minutes give a cursory "case dismissed" or "land to be decided" especially at the first hearing in March. The Compensation Court records also do not make it clear how the Court judged the amount of land awarded to claimants though Wilson stated that, in order to protect the interests of the Government in the Court, he made a census of all the tribes of the confiscated Bay of Plenty region, men, women and children as well as numbers of surrendered and unsurrendered in each hapu and tribe. He later noted that this census had been of valuable assistance in the Court. 20 There seemed to be set scales of allotments; Wilson stated in evidence on a petition to Parliament that in deciding compensation in the Matata area, the acreage of the claimants' land was divided by the number of clai'mants. Naturally this gave varying rates

20 See RDB vol 123 pp47384-47389 86 for different tribes depending on their populations, with individuals receiving between 10 and 50 acres. Wilson said that for surrendered rebels, there was no similar calculation, each case being decided on it's own merits. 21

Another question, which was raised by Wilson as the Court proceeded, was whether the Compensation Court could award land to the wives of rebels. The Chief Judge opined that this was possible provided that it was clear that they had not assisted in the rebellion, normal marital obligations excepted.22 Certainly, a number of women claimed successfully in the Court though it is not clear whether these women were consciously claiming land for which disqualified rebels might otherwise have claimed.

An appreciable number of claimants described themselves as half castes, and

( ) it had been suggested that these claimants and those married to Pakeha received favourable treatment in. the Court as it was thought that they would adopt European land holding practices.23 It does seem that these claimants had a generally higher success rate in the Court than other claimants.

It is interesting to note from the Court awards, and from a schedule published in 1874.24 that eel weirs were held to be confiscated property as well. The Court awarded several to Arama Karaka and Wilson made arrangements over others, but it was made clear that these awards were for the weirs them_selves and not any land they might abut.

In conclusion, it would appear from the state of the records and the evidence within them that the Court and associated Crown officials found the task to be complicated and confusing, both for themselves and Maori involved. They were dealing not only with confiscation and its aftermath but also centuries of tribal disputes on a relatively densely populated coastal area. These relationships could only be tested in the contentious Court climate.

Certainly the Court had not operated to the satisfaction of the Chief Judge, who commented:25

21. Petition of Charlotte Brown, Le 1/1874/9, ROB vol 1 referred to in Cathy Marr, Report on the Tuwharetoa ki Kawerau Claim, Wai 62; A2

22 ROB vol 1 23 p4 7 468

23 See C Marr, Wai62; A2 p45-6

24 See schedule 16, NZ Gazette, 12 November 1874, p783

25 ROB 47155-47156, July 31 1867 Fenton to Native Minister 87 ... I deeply regret having yielded to the pressure put upon me by Mr. Whitaker when Agent for the Government, which caused me to fix a '- Court for the District of the Bay of Plenty before I saw any way to providing for it the attendance of an experienced Judge. The Proceedings of the Compensation Court for the District of the Bay of Plenty, are the only proceedings that I cannot look back upon with some degree of satisfaction. In this case, I feel as if I had not the command of the question, and was unable, either to understand the past or to guide the future.

The Compensation Court Sitting; Opotiki: 9 March to 8 April 1867

Ohiwa ( The resource rich area of Ohiwa harbour attracted many competing claims in the Court and illustrated the complex customary tenure which the Court had to deal with. The Ohiwa case revolved around the relationship of Upokorehe, Whakatohea, Ngati Awa, Ngati Maru and Ngai Tuhoe.

Anania Rakuraku claimed the land at Ohiwa on behalf of Ngaituhoe hapu, citing an ancestral link with the land going back twelve generations. Rakuraku distinguished his hapu from Upokorehe proper but said that they were connected to each other as well as to the U rewera (Tuhoe). This claim was supported by Hirini of Upokorehe, who cited Ohiwa as the connection between the two tribes (of Upokorehe and Ngaituhoe). Hirini also noted that other hapu lived on part of the Ohiwa lands through their connection to the Urewera and Ngati Awa. ( Both Rakuraku and Hirini admitted that the Ohiwa land was hotly contested and had remained in dispute "until the present day".

In this instance, Crown witnesses against the claimant Rakuraku were counterclaimants themselves. Tiwai Piahana of Whakatohea, claimed the area within Rakuraku's claim. He did not seem to rebut the fact that Upokorehe lived at, and had rights to, Ohiwa but questioned their independence, claiming that Upokorehe were in fact a hapu of Whakatohea and thus, presumably, it was proper for Whakatohea to pursue the claim to Ohiwa lands. This evidence was supported by Rewiri Te Rangimatanuku, also Whakatohea (Ng Rua). .

The other counterclaim ant in this case was Ngati Awa/ Whanau a Apanui. Kepa Toihau, who said he lived at Ohiwa and Opape, told the Court his 88 boundary was the Waimana river and said that his people had taken the land from Ngati Awa, Ngati Maru, NgaiTai and Ngatitawera. He denied that the Urewera had fought for the land.

Rakuraku's claim was dismissed after Wilson produced several witnesses from the militia who testify that Rakuraku was a rebel. However, subsequent claimants for Ohiwa lands, Henare Whakarongohau and others stilI said Rakuraku was the chief who looked after their affairs and lands in the Ohiwa district.26 This claim appears to have been the Ngaitamahaua for Ohiwa but they say that Rakuraku and his people and the Upokorehe have a claim to the same lands. This claim seems to have extended inland as far as Te Poroa.

Later on in the hearing, a female named Ritihia claimed the whole of Upokorehe lands which were in dispute between Upokorehe, Whakatohea and the Ngati Awa, saying that it had been agreed between herself and Rakuraku that she would make this claim.27 The claim register shows about thirty names as co claimants so this looks like a claim on behalf of the hapu. She admitted that all of the Upokorehe besides herself were in rebellion. She asked for 300 acres and said she did not want compensation in money. Wilson does not call any witnesses against her and she was awarded 50 acres (Lot 47) in Worth's survey on the eastern shore of Ohiwa.

When Kepa' s claim for Ohiwa lands came before the Court he said he lived at Whakatane and Ohiwa and that he claimed through both ancestry and conquest. Kepa was at pains to point out that he was living at Ohiwa, on U retara Island in fact, when Europeans arrived and that Whakatohea were then at Opotiki and Upokorehe were not then at Hokianga (an island, in the Ohiwa harbour).

Kepa admitted a lot of fighting at Ohiwa with the Whakatohea but denied that the land had ever been permanently taken by Whakatohea:

I stated to you [Wilson] at the meeting at Whakatane that the Ohiwa river was my boundary. You said a portion of the land should be set aside for Ngatihokopu and Ngatiwharepaia. Will not consent to Whakatohea's claim.28

26 ROB p46083

27 ROB p46151

28 ROB p46111

. ,- -.

~S~--=~;:;¢»x~:~"""S:~x...x~>:-c":<,x~:-*!::~!"~':"~.$:."::";,>~~.o~",,,>.. <:: .. C'C"::g?,".~" ~ _~. _. _~ ••• !": .XI>,';w 7<,Y_... """- ...... ~..... • ...... v_ .... -_ .... -:...... :-"-.~:"'------...... -· ...... " ••. , •.•• -... •. • _ ... 89 Tiopira (of Pahipoto), also a Ngati Awa claimant, told of Ngati Awa defeating Whakatohea in war over Ohiwa and of Whakatohea's flight for refuge to various other iwi. He said that Kepa Toihau eventually brought Whakatohea back from exile to Opotiki and that Upokorehe were settled at Waiotahe:

At that time it was the rule that a man put on land in this way had to pay tribute in food to his benefactor. If he paid it to others he would suffer for it. 29

Tiopira said that Kepa settled the first European (Te Kati) on HOlcianga and that he put Upokorehe there to cultivate food for Te KatL Apparently, the Whakatohea chief Titoki proposed to Kepa a division of the Ohiwa lands, with the east side being reserved for Whakatohea. This peace was broken ( two years later, however, when Kepa sold Hokianga to Mackay and Te . Uretara to Nicholas. Whakatohea, according to Tiopira, had nothing to do with these sales and were incensed, causing further fighting.

Following this, Tiopira says that two Whakatohea chiefs sold land to a Mr Shortland, and the boundary of this sale breached the agreement which had been made with Kepa. When Shortland presented Kepa with the deed, Kepa tore it up, disputing the Whakatohea right to make the sale. In the event, Smith and Clarke were called upon to adjudicate the boundary between the two iwi, and they decided that that the river at Hokianga should be the demarcation.

Ngati Awa claimants seemed adamant that Whakatohea claimants should recognise this boundary. Hori Kerei Kawakura challenged the Whakatohea ( right on the basis of inadequate occupation, even of their side of the boundary and the following suggests that claimants might have been claiming more than they had a right to in anticipation of losing land to the Government: .

Had the Whakatoheas lived for any considerable length of time on the other side I would not dispute their claim. The river at Hokianga is the boundary. I desire to prove my claim to all beyond the river in order that a portion may be left to me after a portion has been taken for my crimes against the Government. 30

29 RDB p46111

30 RDB p46113 90 Te Ranapia, a Whakatohea counterclaimant, was convinced this was the reason for the Ngati Awa claim to Ohiwa, saying "The claimants, I suppose, desire the land in order to pay for their crime". On the other hand, Hoana Tunui, a claimant for Ohiwa, said that the main claimant in her case had left some pieces out of the claim on account of the tribe (Ngati Ira) fighting the Government.31

Interestingly, Kawakura makes a statement to the effect that he sent in a claim so that the Government might know who the owners of the land were and to prevent others from getting land. This seems to have been a relatively common sentiment among compensation claimants.

Tamanohoaka, a Ngati Pukeko supporting witness (later to lodge his own claim to Ohiwa land) acknowledged the mana that Kepa held over Ohiwa saying "Even when we fought against Kepa he still took charge of Ohiwa for them" .32

Crown witnesses against Kepa Toihau are Whakatohea chiefs Rewiri Rangimatanuku, Wi Teria and Tiwai Piahana. They attacked the Ngati A wa assertion of ancestral claim to Ohiwa, only admitting a limited right of conquest:

Those claiming Ohiwa have no right to it or Whakatane. They belong to me. My ancestors owned Whakatane. Ngatiawa ought to return to Rangitaiki where they would have been by this time but for the Europeans.33

Wi Teria and Tiwai Piahana asserted that the Whakatohea boundary was at Pukenui (presumably further west than the Hokianga boundary) and Tiwai said the only Ngati Awa with claims beyond this point were Wepiha, Hori Tunui and Karanawa[?].

Another interesting point about Kepa' s claim is the fact that he admits to being a rebel as do his other co-claimants. However, Hetaraka and Wepiha, while admitting they were rebels, made the distinction between themselves, as Kingites, and the Hauhau whom they are quick to dissociate themselves

31 RDB p46102

32 RDB p46114

33 Rewiri Rangimatanuku 46116 91 from. Claimants, then, were fully aware of the fear and revulsion Hauhauism provoked in the European population and wanted to divorce themselves from the murders committed by them.

While several claimants admitted their rebel status, much evidence was given as to the relative guilt of Ngati Awa claimants and Whakatohea defendants in the war. Whakatohea attempted to blame the rebellion on Ngati Awa saying that Kingites and Hauhauism came to them from Ngati Awa:

When the troops came they deserted us. Let their lands go to pay for their sins and our land for our crimes. Kereopa was bought here by - the chiefs of Ngati Awa, Apanui, Kepa. Apanui and Wepiha, they all went to fight the pakehas ... Ohiwa is mine. If Ngati Awa have a claim NgatiMaru and other tribes would have a claim also [ie by ( , conquest].34

Tiopira, on the other hand, said that both iwi sinned against the Government but that Ngati Awa had the superior claim to Ohiwa. Wilson's schedule of claims notes that the Pahipoto chiefs Rangitukehu and Tiopira both received 25 acres at Ohiwa; a note says their selection was a fenced pa known as Ihukatia on the northern shore of Ohiwa harbour. 35

Hauauru Taipari made a claim for Ohiwa land through ancestry, citing the Ngati Awa ancestor Awatope, and as Ngati Maru he claimed conquest of the land.36 "Apanui was left by me to look after my interests. I returned from the north, defeated the people and again left Apanui in charge". He said after peace was made with Whakatohea, he returned his slaves in 1857. Apanui supported the claim, saying that Ngati Maru were Ngati Awa allies who helped to punish the Whakatohea who had driven him off the land: (

I brought the refugees back to Whakatane [from their last defeat at Te Papa]. They were there two years cultivating and sometimes at Ohiwa. After that Titoko [Whakatohea chief] returned and I gave him the slaves.37

34 Wi Teria 46117

35 See claim 86:ROB vol 119 pp45760-1

36 ROB p46068

37 ROB p46069 92 Again, the Whakatohea Crown witnesses denied having been returned to Ohiwa by the agency of Ngati Awa and Taipari, saying that they had acquired their own guns after Te Papa which allowed them to return. They said that they landed at Ohope expecting attack from Ngati Awa but this did not occur; they then occupied U retara without reference to anyone. Tiwai said that Upokorehe were the hapu left at Ohiwa with the other Whakatohea moving on to Opotiki. Tiwai asserted that it was Upokorehe who were living at Ohiwa when the Europeans came, not Kepa nor Hauauru.

Hauauru's claim was dismissed but no reason was given. Possibly, the evidence of Tiwai Piahana, who pointed out that Hauauru had not followed - up his defeat with occupation of the land, was accepted by the Court which seems to have had a strong bias towards occupation and use of land in establishing claims. Despite this judgment, Hauauru was awarded 100 acres at Ohiwa.38

Ngati Maru raids in the Bay of Plenty, in particular against the Whakatohea, produced other claims to Ohiwa in the Court. Hoterene Taipari and others of Ngati Maru claimed, again citing the ancestor A watope, another ancestor named Patu and through conquest: "Here I am Ngati Awa, at the Thames I am Ngati Maru" .39 Apanui took a Whakatohea wife and produced Mereana, who could claim then as both Whakatohea and Ngati Awa. Wepiha Te Po no appeared in support and he stated:

I did not receive a letter telling me this claim had been sent in. I did not think I should be included among any people except my own (Ngati Awa).40

( I Counterclaimants Kepa Toihau and Hori Kawakura both stated that they had never heard of Patu. Rewiri said the whole of Whakatohea were interested in Ohiwa.

The Court decided that Apanui, Wepiha, Mereana and Hauauru would receive some land at Ohiwa, while commenting that Apanui and Wepiha have compromised themselves and "must trust to the leniency of the Government". Wilson said he wished to reserve the right of appeal in

38 ROB p46162

39 ROB p46077

40 ROB p46081 93 Wepiha's case. 41 Others of Hauauru's co-claimants, who did not appear in court (except one), were deemed not to have proved a claim.

Mereana Hauauru (possibly the wife of Hauauru Taipari) and who was the daughter of Apanui, also pursued claims to Waiaua and Opotiki lands in this session. Part of the evidence in her case is interesting as it betrays a hostile attitude toward Wilson and those who made arrangements with him. When Te Aohawhio Te Awanui, chief of Ngati Rua, was giving evidence he stated:

No one pays me for what I have stated. I was not with Mr Wilson prior to the opening of this Court. 42

Tiwai Piahana, called by Wilson against Mereana, recalled Mereana's mother going North and leaving Wi Teria to look after her land. He said: (

A bad man will not be slow to claim land if it has been unoccupied for many years but a good man will return it to the owner. 43

Other claims for Ohiwa lands appear to be from those with Ngati Ira links to the land, and one of the co-claimants was Hoana, wife of Hori Tunui and cousin of the named claimant Hirini Karaka.44 The Ngati Ira claimants appeared to claim from either of three Ngati Ira ancestors who were brothers, and this determined which particular lands they claimed as they were distinct from each other. Karaka is descended from one brother, Hoana and Pehimana (another claimant) from another and Wi Teria fr.om a third.

Mair judged that Hirini Karaka and Hoana would get their share of the lands of Ngati Ira, Hoana also receiving compensation for her land in Opotiki ( township. The claimant Pehimana was judged not to have proved a claim, reflecting a bias against those claimants who did not appear in Court for cross examination.

Another interesting claim at this Court was the claim of Colonel Balneavis

41 This award caused some controversy - see below

42 ROB p46055

43 ROB p46060

44 ROB p46102 94 for land at Opotiki which he claimed as the property of his children.45 Their mother was Hinehua, the daughter of the chief Rangihaeape. Tiwai Piahana testified that the land was gifted by the chief to Balneavis' children prior to the war. Other witnesses agreed with this, saying the land had been made over publicly and a deed sent to the Colonel.

Witnesses called by Wilson included Ranapia who said that the land belonged to N gai Tama and that while Rangihaeape had the mana over all the lands of Ngai Tama, he did not have the right to give away the lands of others. He said that he might have consented to the gift if he had been consulted but as it was:

Have a great regard for all my tribe but none for claimants; if they had ever come here I should have had regard for them. Believe we should all have the land claimed to pay for our crimes, each man paying with his piece .... 46

In addition, Ranapia was concerned that Hinehua had another son by a different husband, and he commented that it was not right in Maori custom to put aside the rights of the eldest child.

Interestingly, Rangitukehu and Tiopira put in a claim with others for lands in the Whakatane district.47 Tiopira gave the evidence for the claimants, stating that all the Whakatane people were distantly related to Tukehu and that the pieces claimed were not large cultivations. He said that they hadn't been worked since the war between Ngati Awa and Ngati Pukeko, which happened over some of the lands claimed, but denied being driven away from the lands. He named many co-claimants as well as the pieces claimed, ( ) and it is not easy to tell where exactly these lands were - but they appear to be on the East bank of the Whakatane river. Among the named co claimants were Hori Tunui, Hori Kawakura, Hoani Tuhimata and Wepiha. Without cross examination and without calling defence witnesses, Wilson conceded that the claimants had a case. Further, Mair's noted that Hoani Tuhimata had not put in a claim but said that would get "a fair share of lands" anyway.

Hohaia, and co claimants including Te Meihana Koata and Tamanohoaka,

45 ROB p46123

46 ROB p46125

47 ROB p46128 95 make a Ngati Pukeko claim for land on the east side of the Whakatane river. Again the places named were local and not easy to identify, but he did name Te Takapou on the Wainui te Whara stream. He supported evidence given by Tiopira in the previous claim that after the fighting between Ngati Awa and Ngati Pukeko, the land was made tapu and no one worked on it. The Ngati Pukeko witnesses admitted close ties with Ngati Awa; Henare stated "The lands of both tribes were mixed up". 48

This claim was adjourned and seems to have resumed the next day when Hetaraka and Wata Komene claimed through their connection with Ngati Pukeko to land on the East side of the Whakatane river. Hikitere said that the "name of the claim a general name and does not refer to nay particular spot on the river". 49 Te Meihana stated that Ngati Pukeko lived at

Whakatane. Judgment was reserved. ( I

As Ngati Awa claimed lands at Ohiwa and Opotiki, Tiwai Piahana and several co claimants claimed land at Whakatane giving ancestors who occupied land, and pointing out that Tiwai' s father and grandfather cultivated lands. 5o Tiwai admitted that Hori Tunui also had a claim to the lands but when Hori was called as a defence witness against Tiwai, he said that Tiwai's father never lived on the land and Tiwai had little acquaintance with the land" ... he went there the same as any other stranger". Tiwai's claim was dismissed.

Issues The aftermath of the Court sitting at Opotiki was extremely controversial, and points to the inexperience of the judges as well as a confusion over the legislation binding the Court awards. ( The general confusion was admitted by Wilson, reporting to Pollen on 25 July 1867:

Such was the position of affairs, when the first session of the Court was opened by Judge Mair; who informed he should not decide any question of importance until assisted by an experienced Judge, who

48 ROB p46133

49 ROB p46135

50 ROB p46131 96

was expected to arrive ... 51

Judge Mair reported to Clarke on 8 April after the end of the first session at Opotiki:

The Compensation Court closed this day. About 170 cases have been heard, of which about seventy have been settled out of Court by the Crown Agent; the rest of the claims have been left for the next sitting of the Court. In a few of the important cases judgement has been reserved.

I cannot say whether any marked effect has been produced by the Judgements of the Court, as for some time I have not heard any expression of opinion on the matter. 52

Wilson's report indicated that the Court seemed to award land in preference to money but that he was not disposed to award the best land if this could be avoided:

Out of 235 cases 133 were disposed of involving compensation to the amount of 1006 acres, and no money has yet been awarded.

These lands are all however of a good quality and generally well situated. It was only by conceding such lands that the difficulty could be escaped in which I found the Government placed, by what the Court affirmed to be the illegal settlement of the Opotiki district. Hence on several occasions I have been compelled to invade the Government reserves; for the 2000 acres reserved for compensation at Waiaua, though good average land, found but little favour with the claimants.

I have ,also to state that at the very last moment as I stepped on board the vessel to come away, Tiwai and his wife Te Aira consented to my terms which are better for the Government than taking their ten claims into Court. The terms are 250 acres of country land, 5 in the military township and 1 3/4 in the civil township, together with £50 to be paid soon. 25 acres of this land will be taken at Ohiwa and 25 acres at

51 IA 1 1867/2771 ROB vol 123 pp47432-7

52 AJHR 1867 A20 p58 97 Waimana. 53

The Court's judgments for Ohiwa lands were not consistent with respect to its attitude to claimants found to be rebels. Recall that the Upokorehe/Ngai Tuhoe chief Rakuraku had his claim to Ohiwa/Te Poroa lands dismissed because of his involvement with rebels, storing firearms at his pa amongst other things. Yet Mair awarded land at Ohiwa to Wepiha and Apanui, well known Ngati Awa rebel leaders who had bought the Hauhau to Opotiki, after stating they were tangata hara in his judgment. Wilson was concerned about this decision and it also incensed Whakatohea who claimed that the Court favoured the Ngati Awa claimants, that it was understood that rebels were not to be awarded their land back, and said that if these well known rebels could claim and be granted land, then other notorious rebels should be able to claim land there also. Whakatohea requested another hearing of the ( matter.

Wilson wrote to Whitaker saying that he thought the land he had already allocated the two at Ohope was sufficient and pointed out the loss of trust he had suffered with other claimants because of the erratic judgments. 54

He was also concerned that the settling of surrendered rebels be left to the Government, not the Court:

Now ,although surrendered rebels are to have land given to them to live on, by virtue of the Governor's promise to extend that clemency to them; yet, I am not sure that the Compensation Court is to be the disposer of a privilege the Governme~t may wish to retain in its own hands. ( I think the extent and situation of lands so allocated is a question to which the Government is entitled, and may desire to have a voice - But apart from any abstract view of the subject, a practical objection to the line of action, indicated by the judgment exists in the fact that within the confiscated Bay of Plenty district the task of locating surrendered rebels has been completed by the Government; for all the native tribes, from Opape on the east to Toanga Poto-ato Matata on the west, are now living peaceably on the lands that have been allotted

53 Wilson to Pollen 18 April 1867 IA 1 1867/1321

54 ROB 47124-47126 98 to them.55

His request for a rehearing was supported by Pollen who said in a letter to the Colonial Secretary that:

it is difficult to apprehend the grounds upon which the Court could have admitted their claim to land to which they never had an undisputed right, even supposing that they had not been regarded as the 'tangata hara' which in terms of the Judgement they were pronounced to have been.56

The rehearing was advertised for 2.0 June at Maketu but as two of the judges failed to arrive, only Wepiha and Mair being present, the rehearing was abandoned and it is not clear that the matter was ever resolved.

Wilson's fIrst report on the confiscations In spite of the difficulties facing Wilson, he was able to report on the arrangements he had made after the Compensation Court hearings by June 1867. Wilson reported the total confiscated area as being 44.0, .0.0.0 acres of which 5.0.0.0 acres are accounted for as surveying errors; 87,.0.0.0 acres at the west of the block given to Te Arawa; and 57,000 acres at the east of the block in the NgaiTai/Whanau a Apanui rohe was acknowledged as abandoned by the Crown. Of the land returned to claimants by award, arrangement or abandonment were 5442 acres and a further 38,.0.0.0 acres were "unarranged". Ninety six thousand acres were accounted as returned to rebels; however, in a footnote, Wilson stated that:

( I ••• the giving back is but nominal, for the Natives would not have given it up. But I was required to make the best arrangement I could effect, and now that the surveys are advanced, I find that about 58,.0.00 acres were thus obtained. 57

Presumably, the 96,.000 acre figure was land which Wilson had arranged to be returned, plus reserves made, to be granted by the Compensation Court. But Wilson does not explain why he accounted for only 58,.0.00 acres actually

55 Wilson to Whitaker AGG Auckland 14 March 1867 RDB vol 122 47122-3

56 Pollen to Colonial Secretary 11 May 1867 RDB vol 12247118-9

57 Wilson to Pollen 12 June 1867 RDB 122 pp47142-3

- . . - -..... -,._. .. ~ -, ..... ~~;!!:::;'::::'~~~,::::·::;~:~::=:::;'''':;':!::,,:!::~,!=x·_·,;,~~~~·;::.. ~.·~.:..~ ..:...''' .t...&~.:::~~.~ ~t:ss._ .• _. ~.~~"""_""')o..~~,""".i('>_"","",.> .~----.- .. ----.-.- •• -.---.-'-••• - ••••••• 99 set aside, or from whom that land was "thus obtained". Wilson went on to say that of the land returned to rebels and unarranged lands, approximately 18,000 acres was agricultural land, 54,000 acres was swamp and 62,000 acres was mountainous, half of it very barren. That is, of the 440,000 acres Wilson estimates was confiscated, the Crown was returning approximately 18,000 acres of agricultural land to Bay of Plenty Maori.

Wilson went on to calculate a balance of 151,558 acres available to the Crown for military settlement of which 75,000 acres was noted by Wilson as "saleable land" which, barring township sites, would yield an estimated revenue of £31,750.

Error in boundaries 5000 Given to Arawa Tribe 87000 ( Abandoned at eastern end 57000 Given back to rebels 96000 Not yet arranged 38000 Awarded 5442 Remainder with Government 151558

The Maketu Sitting of the Compensation Court: 9 July to 12 July 1867

Opotiki Lands Kuku Te Mea of the Ngaiterangi tribe presented a claim to Opotiki, Waioeka and Ohiwa lands along with co claimants Te Pum and Tomika.58 Giving his whakapapa, he stated that "the title to all [my claims] is alike" ie that his was an ancestral claim, though he did claim that his father and himself had ( occupied some land at Opotiki but he did not say for how long.

Kuku also claimed 'the land on the basis of returning the Whakatohea to Opotiki. Kuku described how the lands were deserted after the raids by Nga Puhi, Waikato and Ngati Awa. He stated that many Whakatohea fled to , Tauranga and later returned under the agency of Ngaiterangi:

... some of the Ngaiterangi went in the canoes. Therefore it is through me that the Whakatohea occupy Opotiki. This is well known to all the Ngaiterangi. 59

58 RDB p446360-446365

59 RDB p46362 100 As evidence of his claim to land in the area, Kuku said that when Te Whakatohea sold Hikutea to Mr Wilson (the missionary), Tomika went to see Wilson to assert his interest in the land, which Wilson acknowledged by giving him a cow. Kuku was careful to point out that the payment was for land not within the present claim and that he had never heard of the Old Land Claims Commission.

Kuku Te Mea was cross examined by Wilson in detail concerning which bits of land he had lived on. He said when they returned the Whakatohea, they then resided on the side of the Waitangi (river?) that their ancestors had occupied. He also said that he had left representatives to occupy land for him.

Te Pum stated that he had been back and forth between Tauranga and Opotiki ten times and that Whakatohea had not objected to his occupation.

Tbereason why I now lay claim to Opotiki is because it is being taken for the rebellion. If it had not been taken for this offence, I should not now talk about it, as in that case we both should have occupied it. Therefore I now claim it so that I may now get back part of our joint property. 60

The defence witnesses against the Ngaiterangi claimants were the Whakatohea chiefs W Teriatauhi, Rangimatanuku and Ranapia. They denied that they had been brought back to Opotiki under Ngaiterangi, saying in fact that the Ngaiterangi were a remnant-n~treating from their enemies and were sheltered at Opotiki, then returning to Tauranga. This, according to these witnesses, was how the two tribes became friends. They did admit fleeing to l ) Tauranga, staying there and working as soldiers for the Ngaiterangi at Tauranga against the NgaPuhi and at Motiti and Te Tumu against the Arawa. After the wars, they said that they returned to Opotiki without the help of either Ngaiterangi nor Ngati Awa.

It was denied that Kuku received any payment for the sale of Hikutea and it was said that the only claim Ngaiterangi had to be in Opotiki was through marriage with Whakatohea women. Rangimatanuku and Ranapia gave evidence stating that the common ancestor between Ngaiterangi and Whakatohea was Matenga, so they admitted an ancestral link, but Rangimatanuku pointed out that one of his ancestor's came from Tauranga

60 RDB p464365-6 101 but he would make no claim on that account. 61

This case is one of the few that has a judgment explaining the decision of the Court:

The Court is of the opinion that although the claim is not a good one, it still is one, that in event of a sale to the Crown the claimants would most probably receive from the Ngaitama a portion of the purchase money as acknowledgement of the relationship and connection with the land. The episode about the cow being in no way clearly brought out. The Court duly awards the sum of ten pounds to Kuka and his hapu in 62 compensation for all claims upon lands at Opotiki. -

Mihi Tirena, a woman of Ngati Ira of Whakatohea, claimed land up the ( Otara river at Opotiki, although she said she resided at Tauranga.63 She had been taken a prisoner to Hauraki in the wars but had returned three times to Opotiki. She had supporting witnesses from Ngati Ira, with Rangimatanuku stating that all the hapu supported her claim and that she had been on the land for the past two or three years. Wi Teria said she had a claim in common with all the hapu and left her cousin, a rebel, in charge of the land. Ranapia said he knew the land but not the divisions within them and said, prior to the war, no person had a large piece of land to himself.64 He also noted that a woman forfeited her land if she did not return to her people. Wilson did not call witnesses against her.

The judgment for Mihi stated:

Claimant has proved a claim as a member of the Ngatiira hapu of the ( Whakatohea. Her claims have been weakened by her absence from the land and also through her relations having joined in the rebellion. However the award of the Court is that thirty five acres of good land be given her to be selected by the claimant and the Crown Agent. 65

61 ROB p446371

62 ROB p46392-3

63 ROB p446376

64 ROB p46378

65 ROB p46391 102 Note that the Court had not established Mihi's guilt as a rebel yet her family associations with rebels damaged her claim.

Another claim for land at Opotiki was made by Te Whariki and several co claimants66 who belonged both to Ngai Tama and Te Kareke. He claimed land at Opotiki between the Otara river and Waioeka citing descent and said that when he went to live at Rotorua, he left his sister in Opotiki (presumably to keep the land for him). Te Whariki claimed land at Ohiwa, Waimana and Te Poroa by descent from the original owners of the land. Admitting that Kareke had been beaten by the N gati Awa and dispersed from Te Poroa, Te Wariki maintained that they were in no way vassals of either Ngati Awa or Whakatohea. He said that some Kareke had returned to Te Poroa in the fifth generation of their absence.

The chief Kaperiere of Ngati Pukeko disputed Te Wariki's evidence concerning the conquest of Kareke lands. He said that Ngati Pukeko claimed the land at Te Poroa, Waimana, Onekawa and Wainuitohora and said that Kareke had been absent, as an independent group, for the past five generations. He argued that the Kareke were dispersed among several tribes:

They are half castes and claim though their connection with the tribes into which they have been incorporated.67

When asked if the Kareke who resided with Ngati Pukeko cultivated and exercised ownership of the land, Kaperiere said that they did through their incorporation with Ngati Pukeko and not as Kareke.

Wilson addressed the Court at the finish of this evidence, pointing out what he considered the slight claim Te Whariki had made to any land at Opotiki "being at best but guardians of the tribe there" and having not shown any proof of claim to lands near Whakatane (Te Poroa). Wilson urged the Court to dismiss th,e claim.

However the Court upheld some of Te Whariki's claim:

The Cou'rt is of the opinion that the claimant has proved his connection with the Ngaitama hapu of the Whakatohea also with Te Kareke. The latter appear' originally to have been owners of considerable tracts of

66 RDB p46378-46381

67 RDB p46382 103 country and they have a certain right therefrom; however, their best claim is from having been incorporated with the conquering tribe although it does not follow that when a tribe is conquered it loses all claims to its lands as many instances have occurred in Government land purchases where after the money has been handed to the sellers of the land, the conquerors, a portion has been voluntarily made over to the enslaved tribes, Te Wariki [sic] does not appear to have upheld his claims to Te Poroa' not to have joined himself to the Ngati Pukeko who are in occupation of that land. Still he has made out a good claim to land at Opotiki. The Court therefore awards 35 acres of good land to be selected by the claimant and the Crown Agent in Ohiwa.68

Te Awa 0 te Atua Another significant claim which was heard, in part, at Maketu was the claim (./ of Wiremu Patene and other Ngati Awa to land at Waitahanui and Te Awa 0 te Atua. 69 Wi had died before the claim was heard and Te Koina, Wi's uncle, lead the evidence. Te Koina described himself as Ngatirauwhara.

Koina gave the following as the boundaries of the claim;

Te Awa 0 te Atua, then to Otuko on the Wainuioehuta(?) then to Otaupuna then to Mahiu and Awa 0 Whareti then to Kokomuta and Manawahe and Tarawera then to Waikahu near the river and then to Te Awa 0 te Atua near the sea coast. They also claimed Whakapoukorero.

Te Koina said that their claims were derived from the ancestor A watope who married Wharemahana. A watope was an ancestor both of Ngaiterangi and Ngatirauwhara.Te Koina also gave another line of descent from Awatope's (I marriage to Roimaiti who bore Irawhara and Ikakino. Under cross examination from Wilson, Te Koina described the migration of Ngati Awa ancestors from Hawaiiki in the Mataatua canoe to Rangitaiki. He described how Whanau a Apanui and Kahuilgunu came to Rangitaiki "It was through war we left and did not return", so they went to Te A wa 0 Te Atua.

He describ~d one of Te Hura's ancestors as a tohunga named Tani (?) who lived at Whakapukorero:

Tani invited us to Otamarakau and Waitahanui, Tana married one of

68 RDB p46391-2

69 RDB p46386ff 104 our women Otukura, which accounts for the invitation. Our people lived there for four generations until Hongi came and drove us to Rotorua.

He then described further flights to Tauranga and then going back to Rotoehu:

Te Puehu invited us there to shelter from the Nga Puhi.

This was followed by further fights (but Te Koina doesn't say with whom) necessitating leaving for Tauranga and returning several times.

Enoka Te Whanake also gave evidence for Ngati Awa, referring to an ancestor called Tamoi who Enoka claimed occupied Otamarakau. He said that he had not lived at Otamarakau nor had Wi Patene but Te Koina had. He had relatives on the land including Wiremu Wharehauatu, Hohepa Te Ngaiota of Ngatirawhara, both of whom would have given evidence if they had known of the hearing.

Under cross examination from Wilson, Enoka said Te Hura was NgatiKuha and Rangihouhiri. "Ngatihikakino, Ngatipukeko and Ngatirawhara are other portions of us". Enoka said he was Ngatirawhara but:

Te Hura would admit my claim for he permitted me to take boat timbers off that land ...

After explaining that Ngaiterangi lived at Tauranga, Te Awa 0 te Atua and Whakatane, Enoka said:

We claim Tauranga through the conquest of it by Rangihouhiri. I claim the land at Awa 0 te Atua ... our first ground of claim is from our co~on Ngatiawa ancestry and consequent relationship. Our second is through (Towhi?) placing us on the land.

The claimants then requested adjournment to procure further witnesses.

After the Maketu sitting Of this sitting Wilson reported to Pollen:

Sir I have the honor to report that on receiving intelligence that a session of the Compensation Court has been ordered to sit at Maketu on the 105 8th instant, and notice to this effect had been sent to the various tribes having claim in the Bay of Plenty District, I hastened to Opotiki by the S.S. "Tauranga", which happened to be going there at that time - I having received no notice from the Head Office of the Court in Auckland that the Court should sit in six days time.

I found my principal Wakatohea[sic] witnesses against Ngaiterangi and the Arawa at Opotiki. they had been afraid to return to Opape past the dangerous headland of Tirohanga for two of their number in returning from Maketu, whither they had been summoned to appear against Wepiha the week before, had been fired on and nearly killed by the ambuscade that murdered Mr. -Bennett White.

With them I started for Maketu by sea, the beach being dangerous at ( the rocky wooded headland Onekawa, where Hotene was murdered some eighteen months ago - and I may remark that not withstanding the recent redoubt at Waiotahi, the rebels can, and probably will commit murder at Onekawa; seeing it may be done with perfect impunity, and I am informed that a murdering, and not a fighting system has been decided on by them.

By the 8th July I had arrived at Maketu with all Opotiki, Ohiwa, and Makane [illegible] witnesses, but the Mt Edgecumbe, Rangitaiki, and Awa 0 te Atua witnesses, though sent for, did not make their appearance. I should say that these witnesses summoned were chiefs prepared to resist claims that the foreign Arawa, and Ngaiterangi, tribes have made upon their lands. They were not chosen to meet the domestic claims urged to their several localities, in which intra-tribal ( claims many of them being interested would be unsuitable witnesses for the Crown.

I was very desirous, therefore, to have all foreign claims to Opotiki, Ohiwa, and Whakatane investigated, and fifteen claims were disposed of. I could not however accomplish more, for when the cases were called the claimants applied for adjournments to next session, as their witnesses were not present - their absence being ascribed to the . shortness of the notice, the rumoured invasion of Rotorua by Hauhaus, and the fact that some witnesses and claimants also had accompanied an armed party of Arawas, which left Maketu on receiving intelligence of the murder of the Arawa mailman. Under these circumstances the Court could not proceed· farther with the cases of foreign claimants - nor was I provided with assistance or funds necessary to enable me to 106 undertake to defend the Crown against the intertribal Claimants to the block especially at a place situated like Maketu, one or two days ride away from the land claimed, and from the residences of the many natives who had an interest in it before their rebellion. And even if I had the means I should have required from two to three weeks notice to enable me to meet at Wakatane[sic] or Matata a final session in which about 100 Claims have to be heard: IE to meet them in the manner in which I should wish to be prepared.

I therefore applied for an adjournment to the 10th, 15th, or 20th. September at Wakatane. The application was granted by the Court for the adjournment to Whakatane ; but the time of next meeting is to be fixed by a notice of one month to that effect.

The amount of awards granted during this 2nd. session. is, £10, and 70 acres of good land at Opotiki. The land has been selected by the claimants and myself, and is probably surveyed by this time.

I have also the honor to state that I have investigated nearly all the claims handed to me for personal losses during the war, and that as a rule I find them either groundless or exaggerated. A few of the moderate claims are however exceptions to the rest. 70

By the time the Maketu hearings had concluded, a debate had erupted between the Government and the Compensation Court judges concerning the legality of the Bay of Plenty confiscations.

Writing on 30 April 1867 Wilson had made the startling suggestion that "the Judges of the Compensation Court are of opinion that the Bay of Plenty district has not been legally occupied by the Government, for the purpose of Military Settlement ... ".71 This was apparently because the entire district had been tak~n for military settlement, a proposition which the Court found difficult to accept. A related issue was that Wilson felt that Court questioned the legality of the surveys and arrangements he had made prior to the hearings.

70 . Wilson to Pollen 23 July 1867 IA 1 1867/2659 RDB vol 120 pp46483-7

71 Wilson to Pollen 30 April 1 867 RDB vol 1 23 p4 7 448 107

In July 1867 Wilson wrote to Pollen on this point. 72 Wilson had asked for the:

... principal points that guide the procedure of the Compensation Court. Mr. Fenton, in affording me some useful information laid particular stress upon the necessity of reserving their own lands to Compensation Claimants.

I replied, "such is by no means the Government's view of the subject, for a large reserve has been set aside for the very purpose of meeting these claims.

Mr. Fenton's answer was to effect - I have nothing to do with the matter from the aspect you mention - Don't suppose that the ( Government is always right, or that it always acts on a legal manner - Neither have I anything to do with your instructions, or with private arrangements you may make: but until the Government goes to the Supreme Court and there obtains a judgement overruling the Compensation Court you cannot take the lands of loyal persons, unless you pay them money.

It was lawful to do so under the first Act, but subsequent legislation, in our opinion, has altered the case - And on another occasion Mr Fenton remarked; that the Order to take lands within the confiscated district, for the "purposes of settlements" does not shew that the lands are required for purposes of military defence.

That Mr. Fenton has forgotten these conversations is doubtless due to ( the fact that his attention is very much engrossed with the many duties he has to perform. I have however had to bear them in mind, and act in accordance with the course indicated. Hence I could not forget them; and besides I had mentioned our first conversation to Mr. Whitaker.

The reserves were made and the balance allotted to the military settlers; and after this upwards of sixty new claims were forwarded to me from Auckland, many of them for land already allotted ... In the mean time a European claimant appeared, who said that having consulted Mr. Russell of the firm of Whitaker and Russell, he was

72 25 JUly 1867, ROB vol pp47432-7

-- --.---_. __ .... 108 well aware that the Govt. could not touch the land of one Hohi Ngapuhi; who he represented73 - with this person I had a good deal of difficulty -, and to bring the matter to an issue when Judge Smith arrived, I availed myself of the first opportunity (persons understanding English being absent) to ask in open Court for the rule of the Court on this question.

Mr. Smith said, "It is a point the Government ought not to raise for its own sake". I replied - "The Government desires to be made aware of any difficulty in order to know how to act"- Mr. Smith then said - "The proceedings of the Government at Opotiki in surveying and allotting the country are quite illegal, and the Compensation Court which sits at here simply to administer the law cannot regard them. Under the circumstances the best thing the Crown Agent can do is to make arrangements with the claimants relative to the localities they shall have. The Court will now award their various amounts of land to them without specifying where those lands shall be taken, and will thus afford the Crown Agent an opportunity to settle this with them. But if any Claimant holds out, and after a lapse of six months from the time of his award, requests the Court to name his locality; the Government may be sure the Court will give his own land to that claimant even though it may be in the possession of a military settler in which event the Government would of course be obliged to compensate the latter. But the Government can place military settlers on loyal Claimants' land by granting them compensation in money.

However I do not go as far as Mr. Fenton, for I am of opinion that an Order in Council, specifying certain lands within the confiscated district, and setting them .aside as necessary for· settlement of .military defence, would entitle the government to take those lands under the Act, and to elect to give money or land in lieu.

But the present order cannot be accepted in such a light, as it would be impossible to bring evidence to convince the Court that the whole of the Bay of Plenty district is required for purposes of Military , settlement.

As a result of all this, Wilson met with Colonel Haultain and Smith and

73 See RDB 46317-40 of vol 120, p 83 of minutes - case awarded, land to be decided 109 decided to draw up new boundaries of a district "to be proclaimed in the manner Mr. Smith suggested".

The opinions of the Chief Judge and the Attorney General were called for, and in the end, the Compensation Court judges denied that they had meant that the confiscation was illegal. What they required, it was argued, was proof that the confiscation was legal; a certified copy of the confiscation proclamation for example. Judge Smith stated:

Mr. Wilson's memo of the 30th April probably refers to an opinion expressed by me during the sitting of the Compo Court at Opotiki. The point was raised as to whether the fact of certain portions of the confiscated block having been surveyed & marked off for military (' settlers & other purposes would preclude any award by the Court of such land to claimants entitled to compensation in those cases where the Crown elected to give land instead of money and the Court had to determine the extent & locality of the land to be given. The Crown Agent appeared to consider that land surveyed & laid out for military settlement & by direction of the Govt. was award [illegible] from the jurisdiction of the Court in such cases. My view was that the Court might require it to be shown that the appropriation of the land for the purposes referred to in Sec. XVI & XVII of the Act of 63 had been made under the authority of that Act & that failing proof of such legal appropriation it might not consider its jurisdiction restricted with respect to any portion of the block.74

Prendergast gave his opinion to the Colonial Secretary, under a few other notes from Crown officials: ( )

I cannot imagine what the objection is to the .sufferance of the Order in Council. The Order declared that the land is required for purposes of the Act and are subject to the provisions thereof: the Act provides that upon such an order being made the land is to be deemed Crown land. It may be that the Court will require a certified copy of the Order in Councilor the original. However I think that the Crown Agent should state what is the objection made.75

74 29 June 1867 RDB vol 123 p47442

75 7 June 1867 RDB vol 123 47443 110 Following the debate, Wilson reported that Judge Mackay had ruled that the Court could restore land to loyal claimants which had already been allotted to military settlers. He awarded claimants in this position land to be selected elsewhere by the Crown Agent and the claimant.

The Whakatane Sitting of the Compensation Court: 9 September 1867 to 1 October 1867

Te Awa 0 te AtualOtamarakau At the Whakatane hearing, the claim of Wi Patene and Ngati Awa to land at Te Awa 0 te Atua continued with Hamiora Tangiawa giving evidence supporting previous testimony on Ngati Awa ancestral links to land between Matata and Otamarakau.76 He stated that this ancestors had taken the land from Waitaha, an ancient people with links to Te Arawa, and that the ancestors associated with the land were Awatope, Hikakino, Iraumu, Poutawhiti, Poito, Tuwhirae and Rerehu.

Hamiora claimed that this father had lived there until driven away by Nga Puhi and repeats previous evidence concerning Ngati Awa movement between the land and Tauranga, identifying their adversaries as Ngati Pikiao, an Arawa hapu. While Hamiora stated that the land was unoccupied for a long time (referring to aftermath of Nga Puhi raids perhaps) until his relatives went to live on the land, Metera stated that the land had been occupied from Hikakino's time to confiscation.77 Metera also stated that he had taken the liberty of inserting Te Hura's name in the claim.

The Crown witnesses Wilson produced against the Ngati Awa claimants were from Ngati Pikiao. Rirituku (Te Puehu's son) described the claimant's ancestors being driven from Ohiwa to Raungaehe then to Whakatane, Rangitaiki and Te Awa 0 te Atua "on account of their man eating propensities" . 78 Said that claimants' ancestors killed a son of the ancestor Rangihouhiri and so were driven to Tauranga, but fought with Ngaiterangi as well. A combination of Ngati Awa tribes brought them back and put them at Otamarakau about five generations ago. They fled Hongi, going to Rotorua

76 ROB p46500-46501

77 ROB p46501

78 ROB p46501-2 111 and Tauranga, then Rirituku said they returned to "Arawa country" (presumably he was referring to Otamarakau) but only stayed a short time because of a fight over a woman. He stated that the claimants had sent a war party to Rotoehu in his time but were defeated and had no right to claim the land.

Rota, a chief of Ngati Pikiao, asserted that the land belonged to Waitaha, some of whose descendants lived on the land. His evidence, like that of other Pikiao witnesses, attempted to show that the claimants' hapu had not managed an uninterrupted occupation of the land:

Claimant's people have not cultivated there in my time or they would have had some claim. They were a people always being driven from 79 place to place in consequence of their misdeeds. (

Tamehana, who had been named as a co-claimant by the claimants, stated that he had no claim. Then he said that his ancestors who brought the claimant's ancestors back to the land did so "not on account of the land but because we did not wish to see them annihilated". 80

The Court ruled that the claimants had not succeeded in establishing a claim.

Retireti Tapsell also claimed land at Te Awa 0 te Atua (Matata).81 He stated that his father had bought land on both sides of the Rangitaiki river from Apanui and other chiefs but when he relocated to Maketu, he sold the land east of the Rangitaiki river, including Te Putere, to the Patutatahi for which he was paid seven horses. He produced a deed of sale from Apanui to Tapsell dated 1839. His claim appeared to be, then, for the land west of the ( . river which was not sold. Retireti also said that the Rangihouhiri were located at Matata at that time.

Wilson called Wi Te Whatapapa against Tapsell.82 He said that Apanui had the right to sell the lands and said that they did repurchase the land in 1859 but it was for both sides of the river. Arama Karaka, on the other hand, disputed that Apanui had the right to sell at Matata, saying that Rangihouhiri

79 ROB p46502

80 ROB p46502-3

81 ROB p46507

82 ROB p46508 112 and Hikakino did not sell any land. He did say that Patutatahi lands were sold to Tapsell, presumably arguing that they did not extend to Matata. Rangitukehu stated that the Rangihouhiri names on the deed never sold to Tapsell, and Rirituku said that Matata was a principal settlement for many tribes, and no single person could claim it. 83 Tapsell's claim was dismissed, no reason being given.

Shortly afterward, Arama Karaka presented a claim for land at Matata, citing Ngapotiki, Rangihouhiri and Hikakino with the right to land there.84 This seemed to be accepted by the Court and other witnesses, although one pointed out that he did not have an individual claim to the land there, and another said that he thought Arama lived in the interior. Arama was to receive a fair share of the lands of NgaPotiki.

Many of the claims for land at Te Awa 0 te Atua (Matata) and Otamarakau were then heard at the next sitting.

Whakatane The claim of Wi Hikairo to land at Te Teringa is interesting because Wi was Ngati Paeko of Te Arawa and claimed land between the Whakatane and Rangitaiki rivers.85 Wi named his co claimants, most of whom were Ngati Paeko as well as Hori Tunui and Wi Te Whatapapa, acknowledging Ngati Pukeko links. He claimed that his family had lived at one of the places on the land but his occupation of the land had been disrupted when he was sent to school in Rotorua and by the late war. Wi Te Whatapapa said Wi could claim here through the ancestor Paeko. 86

Te Meihana, of Ngati Pukeko, was called by Wilson and in fact supported \. the claim saying that Wi was the principal man of Paeko and that he had a right to some of the land. 87 He did dispute the extent of the claim, especially to a piece of land on the east of the Rangitaiki, and said that then~ were only eight Ngati Paeko left and that most had intermarried with Ngati Awa people.

83 ROB p46510

84 ROB p46513;46554

85 ROB p46555

86 ROB p46556

87 ROB p46557 113 The Court accepts Wi's claim and he was awarded 200 acres of land at Te Teringa to be selected by the claimant and by Wilson. This was an unusually large award.

Another Arawa claim for land at Whakatane was made by Te Wharepu, who also had links to Ngati Pukeko.88 He claimed Otoko and Taumaha as gifts from Hori Tunui who married one of his relations. Several Ngati Pukeko witnesses were called by the claimant and by Wilson and they all supported the claim. Te Wharepu was awarded 5 acres in McGuire's survey at Whakatane.

Hamiora Te Puru, a Patuwai of Motiti, claimed land at Whakatane thorough undisputed possession and by ancestry. 89 He said he lived and cultivated among the Ngati Pukeko and the Ngati Pukeko. Crown witnesses called by ( Wilson did not dispute his right to lands at Whakatane, just the extent of some of the pieces. Kaperiere of Ngati Pukeko, was called by Wilson to "prove" the Whakatane census and said that some of the Patuwai had full shares in the Whakatane lands, including the claimant. This was accepted by the Court and Hamiora received 50 acres in Simpson's survey. Te Puhikekehu, also Patuwai, claimed at Whakatane with several others, stating he was related to Wepiha, Kawekura and Hoani who held the land in his absences at Motiti. 9o Wilson did not mount a defence but the Court only awarded Te Puhikekehu 15 acres in Simpson's survey.

One of the larger Patutatahi/Ngaitamarahui claims was heard at Whakatane. Tira had sent in approximately 11 claims for lands on the Rangitaiki, at Whakatane and at Te Awa 0 te Atua. 91 He named many of the pieces he claimed along with co claimants Wiremu, Pauro, Ri Te Pei and Oke for ( Rangitaiki, and Pauro, Roa Wi Hawari for Te Awa 0 te Atua. He stressed that all claimants were loyalists as the rebel Patutatahi were in gaol. Defence witness Rewiri Te Kirirape,92 an Arawa rebel, said that all the claimants were Patutatahi who had land on both sides of the Rangitaiki river. He described where their land met that of Rangihouhiri. Tiopira of Pahipoto was

88 ROB p46556-7

89 ROB p46584

90 ROB p46586

91 ROB p46604-46608

92 ROB p46604 114 called to outline the places where the Patutatahi and Pahipoto land met; he said it was at Te Ukuhanga:

We had a claim to some of those lands long ago but Apanui sold it to Tapsell. When Apanui sold Te Putere to Tapsell he gave part of the payment to Tira. Tira has a good claim to Omeheu is good ancestrally but it is a disputed place.93

The Court awarded Tira, Pauro, Wiremu Te Whatapapa, Roa, Pei and Oke between 25 and 30 acres each in "Patutatahi land adjoining Pahipoto reserve" .

At this hearing it would seem that there were fewer claims to land at Whakatane by Ngati Awa claimants than one might expect, compared with the number of claims arising at Ohiwa, Opotiki and other areas both east and west of Whakatane. There may be several reasons for this. Wilson had already made arrangements for Ngati Awa in areas away from Whakatane. In his 1872 report (see below) he said that Ngati Awa were avoiding the court in the hope of petitioning Parliament about the confiscations generally. Also, some Ngati Awa chiefs were in jail.

The Compensation Court Sitting at Te Awa 0 te Atua (Matata): 3 December to 19 December 1867

Te Awa 0 te Atua Many of the claims for land at this place were adjourned or heard at the Te Awa 0 te Atua sitting. The major claim in this category was the claim of Ngati Pikiao for land called Waitahanui, between Te Awa 0 te Atua and Otamarakau.

The named claimants were the chiefs Rota, Taihorangi, and Te Mapu, but it was a claim for all the Ngati Pikiao.94 These individuals had been called as Crown witnesses against the Ngati Awa claim for the same place at the Whakatane sitting.

Te Mapu led the case for Pikiao stating that he claimed from Waitaha, was Ngati Pikiao, and lived at Rotoiti.

93 RDB p46608

94 RDB p46784 115

The land from Waitahanui to the mouth of Te Awa 0 te Atua belongs to the tribe Waitaha. A division of the land was thus. From the Waitahanui river to Tikitiki river belonged to Ururika. From there to Pareapaka belonged to Otamawhakanui, from there to Te Kaharanga belonged to Matamiki, from there to Otamaarikinui river belonged to Pokaiata. These boundaries run through to Rotoehu and Rotoma beyond the confiscated boundary. Waitaha have always been in possession of these lands. 95

He said that other claimants claimed from Rangihouhiri and Hikakino connections as well. Rangihouhiri had married a Waitaha woman. According to Te Mapu, Waitaha never fought Te Rangihouhiri. Te Mapu said that Rangihouhiri and Hikakino were driven to Tauranga by Nga Puhi and when they returned they occupied Matata. 96 Te Tawera remained on the land ( when they left. He named Ngati Pikiao who had occupied Otamarakau and were buried there.

Te Mapu said he knew the hapu Ngati Irawharo, claiming that they came from Ohiwa and lived at Otamarakau after having been brought from Tauranga.97 Irawharo were beaten by Ngati Pikiao and fled to Tauranga where they now remained.98

Rota, Te Puehu and myself are all descended from Waitaha. Our ancestors did not mix with Hikakino. They used to live together as the different hapu of Arawa live together at Maketu now. 99

Rota Rangihoro supported much of the evidence that Te Mapu had given, noting that they had a great deal of land outside the confiscated district. He (, said that he, Te Puehu and Te Mapu belonged to Ngati Makino, a larger hapu of Ngati Pikiao. He said an equ~l number of Ngati Pikiao were loyalists and rebels but that they were the only Arawa hapu to have land taken for the. rebellion. Much evidence was directed at establishing the links of Te Puehu with Hikakino and the land:

95 ROB p46784-5

96 ROB p46785

97 He did not say by whom

98 ROB p46786

99 ROB p46787 116

Te Puehu claimed with Hikakino to Te Wa 0 te Waru through his ancestors. He has worked there. We now occupy that land at Te Awa o te Atua. lOO Te Puehu came from Maketu many years ago, about thirty of us came with him. It is true he lived on the land claimed. lOI

Other Te Tawera witnesses gave supporting evidence that Te Puehu worked at Te Wa 0 te Waru. 102

Maihi Te Autahi claimed that the lands of Hikakino began at Otamaarikinui and went to Te Auetaririhika and that beyond this were the lands of Rangihouhiri; the lands were distinct. 103 He also gave evidence eoncerning Te Puehu's links with Hikakino and that some of Te Puehu's hapu were the () first to reoccupy Te A wa 0 te Atua after the Nga Puhi raids.

Wilson called Ngati Awa defence witnesses against the Ngati Pikiao claim.

Te Ti, who was the younger brother of Te Hura stated:

When the late war commenced we were in possession of all that land. We had lived there for many generations. I am a Ngati A wa. All the land from Te A wa 0 te Atua to Otamarakau and on to Maketu belonged to Ngati Awa by conquest. The defeated tribe were Waitaha. Ngati Irawharo were of Ngati Awa. They fought against the Arawa and lived at Otamarakau from which place they were driven by the Nga Puhi. We brought them back from Tauranga and placed them at Otamarakau. N ever heard of them claiming any of this land until the late years, after the fall of Maketu. Then they came out from the inland and occupied Otamarakau. I04

Te Ti described the boundaries of Ngati Awa: the northern boundary went from Waitabanui to Tipuaki, then to Manawahe and Otitapu. From these places it went to Te Wabe 0 te Pareta then to Otamaka and Te Paripari on

100 ROB p46787

101 ROB p46788

102 ROB p46790-1

103 ROB p46789

104 ROB p46795-6 117 the Tarawera river. The hapu who owned the land were: Rangihouhiri, Ngati Hikakino, Nga Potiki, Te Tawera, Ngati Rua, Ngati Rekei, Kawerau and Ngati Awa.105

With reference to Te Puehu, Te Ti said that he used to come to Otamarakau and live for a year or two at a time, but by referring to Te Puehu's house burning down at Maketu he seemed to imply that Te Puehu did not have permanent occupation of the land in question. 106 He said that Hikakino used to sell ship timbers which grew at Otitapu. 107

Te Puehu came here on account of his ancestor but that did not give him a claim to the land. 108

Te Ti described how Otamarakau was uninhabited after Hongi's time and ( that Rangihouhiri and Hikakino occupied Oheu pa on their return:

After that we lived at Matata and a war party of Arawa and Ngati Pukeko came from Maketu. We built a pa at Te Awa 0 te Atua and fought. Men were killed and eaten on both sides. But we remained in possession. 109

Hamiora Tangiawa, who had presented a claim to the land at Whakatane and lost, claimed to be Ngati Irawharo and said that they and Hikakino and Rangihouhiri occupied the land between Te Awa 0 te Atua and Otamarakau. He said that Irawharo fought against Waitaha with whom they were also connected. He admitted that Te Puehu and a section of Ngati Makino had a claim to Waitahanui but later said that this claim was ancestral. 110 His evidence concerning Te Puehu shows that Puehu was regarded as a ( connecting figure between the Pikiao and Ngati A wa claimants; he stated that Te Puehu belonged to Ngati Kuhu hapu along with Arama Karaka, Hoete and Rirituku. Another witness stated that the chiefs Te Puehu and Te Hura were connected through an ancestor called Ruani who had once owned

105 ROB p46796

106 ROB p46797

107 ibid

108 ROB p46798

109 ROB p46797-8

110 ROB p46799-46800 118

Otamarakau. 1ll :

Te Puehu is a half caste. Te Puehu is a Ngati A wa through his descent from Ruani. Te Puehu and his brother and children are only interested, not Ngati Makino. Te Puehu is a Ngati Awa line and a chief of Hikakino. He is a half caste to Ngati Pikiao ... He is more Ngati Awa than Arawa. Te Puehu is interested with us in the land south of Waitahanui. But has not distinct claims. I have no claim to Otamarakau that belongs to Rangihouhiri. 112

The Pahipoto chief Rangitukehu noted that he was descended from the same ancestor as Te Puehu but that this did not give him a claim to the land; instead he stressed the Ngati Rangihouhiri and Hikakino occupied the land. 113 ( ) Thomas Black gave evidence for Ngati Awa saying that the lands on the coast were occupied by the tribes of Te Hura and Rangitakina, but that Te Puehu had always had a claim on Otamarakau but he never knew him to have a permanent residence there. However, his brother Hohaia did live there permanently with Ngati Pikiao and said that he never saw Ngati Awa living at Otamarakau. 114

Ngati Whakaue witnesses also gave evidence against Ngati Pikiao's claim to the coast. Peter a Pukuatua said that the coast belonged to Ngati Awa who acquired it in war. 115 He said that Te Puehu occupied Otamarakau after the Arawa had cleared Ngati Awa off the coast.

The Arawa have fought against the enemies of the Queen, first at Te Kaokaoroa, then after the murder of Fulloon we captured the murderers after which the Governor said that the Arawa were to have the land of the murderers, if Ngati Pikiao prove this claim to a larger piece there will still be a great deal left to divide among the other

111 ROB p46803

112 ROB p46803-4

113 ROB p46804

114 ROB p46807

115 ROB p46807-8 119

hapus of the Arawa. I 16

Henare Te Pukuatua also gave evidence to the effect that the land was occupied by Ngati Hikakino and Rangihouhiri and that Te Puehu had no claim to the land; he had never seen him working it.

Te Watene was the last defence witness who gave evidence, and he stated:

I knew the boundaries of the lands of all the hapus who occupied Te Awa 0 te Atua. From Te A wa Taraiki to Te Awa Tererihika belonged to Ngati Hikakino. To the east Te Awa Tererihika were the land of Rangihouhiri. From Te A wa Taraiki west the land belonged to­ Waitaha, whose descendants are Ngati Makino and Ngati Rawaia. Te Puehu, Te Mapu and Rota all have good claims there both through ( , Ngati Awa and Waitaha .,. Ngati Irawharo had no land ... The land was never theirs 117

In spite of such a contentious claim between Ngati Awa and Ngati Pikiao, as well as extremely confusing and contradictory evidence, the Court issued a very brief judgment which did not explain in any way the basis for its decision in favour of Ngati Pikiao. A further question hangs over the participation of Ngati Whakaue leaders against their own relations Ngati Pikiao. This case needs to be considered in the light of the later Otamarakau hearings in the Native Land Court. The judgment read simply:

For all the land west of a line running from a Pohutakawa tree at the entrance of the Whakarewa river direct to Otitapu. 118 \ Following this case, several.claims to land at Otamarakau were withdrawn (. due to non appearance of witnesses. However the reason for withdrawal is not apparent, since they withdrew before the judgment was given by the Court for Ngati Pikiao. While the tribal affiliations of these cases is not known, the record does indicate that Te Meihana Koata of Ngati Pukeko also withdrew his claim to Otamarakau.

Several women, one of whom was married to J ervois Faulkner, claiming

116 ROB p46808-9

117 ROB p46813

118 ROB p46851 120 from associations with Ngati Hikakino and Ngatihe, brought a successful claim to land at Te Awa 0 te Atua after the Pikiao case, but the were awarded ten pounds in scrip.1l9 Another woman claiming from Rangihouhiri and Ngatihamoe to lands at Matata received scrip and land on the west bank of the Rangitaiki. 120 Arama Karaka, who brought a claim for land at Matata, was also awarded scrip and an eel weir. The awards were of scrip because the Government had either returned the claimed land at Matata to Arawa hapu or had retained the land itself.

Another significant claim heard at the last Compensation Court hearing was the claim of Hohepa, Hohepa Rokoroko and Ngati Tuwharetoa to land on the west side of the Tarawera River. 121

Rokoroko, who identified himself as Tuwharetoa and Ngati Rangitihi, gave the following boundary markers: Te Rotoiti, Te Rotorua, Te Umupukipoka, Opumihi, Te Rotopoteka, Kaiawatia and Otitapu. He named co claimants and it seems this claim was on behalf of the hapu. He noted that while he and Arama Karaka disputed ownership of the land, they were closely related. He said that Arama used to live at Rotoiti, being one of the main settlements, the other being Te Awa 0 te Atua.

Tanirau and his co claimants appeared to have both Arawa and Tuwharetoa links and again, his evidence pointed to the fact that the claim was brought on behalf of a hapu, who all lived and cultivated on the land.

The Pahipoto chief Rangitukehu appeared and supported the evidence of the previous witnesses, saying that while he had lived on the land, he had no real claim to the land on the west of the river. He did state that:

the land on the East side of the river has been left to pay for the sins of the people. 122

Arama Karaka appeared as a defence witness against the claims of Tanirau and Rokoroko, saying that the claimed land belonged to Rangihouhiri and

119 ROB p46848-9

120 ROB p46861-2

121 ROB p46867

122 ROB p46870 121 that Rangitakina (and now Te Hura since the formers death) had possessed the mana of the land. 123 He stated that Tuwharetoa had worked for him when he resided at Rotoiti and it was he who placed a rahui on the eels in the lake.

The minutes of this claim are notable for the fact that they contain the only sketch map of the awarded lands which appears in the minutes, though the minutes do make it clear that other maps were used in the proceedings to point out boundaries. 124

The judgment given by the Court upheld both of the claims:

Judgement: for Hohepa Rokoroko and co claimants all the land included in the claim between a line running from Te Ahiinanga to a ( central point between Rotoiti and Rotorua and from there to the outer boundary of the co'nfiscated block near a place called Te Peki and the south boundary of the confiscated block. Reserves of 50 acres each to Paora Te Rautaha and Pita and Karepa who have been rebels.

For Tanirau and co claimants all the land between the northern boundary of Hohepa Rokoroko and a line running from Tauwhitinui on the Tarawera river to a point on the outer boundary of the confiscated block being the same width on the confiscated line as on the Tarawera -river. Reserves of 50 acres each to be made for Hapimana and six others named by Tanirau who were rebels.

All Tuwharetoa land on the east side of the Tarawera river within the confiscated block is the property of the Govt by virtue of agreement ('. 125 made between Crown Agent and the Tuwharetoa natives. .

In February 1869 Tangirau wrote to Chief Judge Fenton complaining about the decision of the court. The letter gives further insight into how chiefs viewed the confiscation and compensation court process:

According to my knowledge I have committed no offence against the Government ... if the Government consent to my word the

123 ROB p46870-1

124 ROB p46872

125 ROB p46872-3 122 part I should like is the forest; the land below it may be left as a means of showing the goodwill of the Government to the Arawas. Listen also there were many Arawa at Te Awa 0 te Atua and at Te Teko and there was no man bold enough to take the warrant to Te Hura. I took it ... I committed no offence at the Court at Te Awa 0 te Atua. I did not make a full statement, the only thing I said was to point out the boundaries of those lands. At the Court at Whakatane I gave my claim to Mr Wilson and Major Mair. The claim has disappeared in their hands and they have never said anything to me about it. At the second court at Te Awa 0 te Atua Pakapaka[?] was the piece I had investigated. Now, friend, Whakatane and Rangitaiki are lands of the persons who have committed the greatest offences gainst the Government and not the smallest piece has gone to the Arawas ... The 6380 acres that you mention in your letter belong to Te Pakipaki. That land was divided in the middle by the Judges of the Government. That on the other side of the Tarawera was taken by the Government ... But do not speak about that. I consent that the Government should have it. 126

Wilson's comment on this Jetter was that Tangirau had been fairly generously treated by the Crown and the court and nothing further should be done. 127

Discussion about the Nature of Grants for Ngati Awa Writing several months after the close of this last court sitting, on 17 April 1868 Wilson asked the Native Minister JC Richmond about the nature of the grants of land to be returned to rebellious hapu. The issue as Wilson saw it, was whether the land was to be conveyed in fee simple, and if so in what manner this conveyance was to be made, or whether the land was to be placed in trust for the various hapu. In either case, he reminded Richmond that it would be desirable that every person having an interest in the land should be listed in the deed or an attached schedule showing their relative interests in the block. This decision, Wilson asserted, was the sole prerogative of the Government as the "gift" of the lands to the rebels was an act of clemency and Maori had no claim as a matter of right.

126 19 February 1869 Tangirau Korotaki to Chief Judge Fenton RDB 47263-47269

127 Wilson to Pollen 14 April 1869 RDB 47270 123 Wilson urged that Maori should not hold the land as tenants in common if the land was to be returned in fee simple. His recommendations to Richmond reflect concerns to see the land surveyed and individualised while acknowledging that the expense of surveys was the "chief hindrance" to the individualisation of native title:

If these lands are placed in trust some Court or Commissioner might be charged with the duty of administering the same - members of the tribe being probably too interested to exercise the trust impartially - and the trustees would be able as the opportunity occurred to individualise the title, by fairly dividing the land as the natives from time to time become willing to survey it.

Before sending in my schedules I would request to know how titles are ( to be issued for large blocks of land to which certain loyal Arawa have proved their right in the Compensation Court - a few leading men not exceeding ten having claimed the land on behalf of the tribe. If a Crown Grant is issued in the names of these men, the case will assume the undesirable features of objectionable trust and tenancy in common, a tenure too similar to their own native style of ownership and which could scarcely be altered afterwards .

... I would therefore respectfully submit the two following courses for consideration, the latter of which appears to me to be a very practicable mode of meeting the question -

I. An arrangement similar to that lately entered into with the Arawa tribe for the division of that land given to them at Te Awa 0 te Atua - viz to set aside a portion of the "land, the sale of which should recoup ( the Government in the expense of a dividing survey - of course the Government could not embark on such a scheme as this without funds supplie~ for the purpose nor would it do so unless the object to be gained were sufficient to warrant the undertaking.

II. As the outer boundaries of these lands in the confiscated district are surveyed by the Government it seems feasible to divide the land as fairly as possible by scale on the survey plan into the required number of lots and to invite the owners to choose or ballot the same -

Then, if the outer boundaries of the block have been accurately defined, the included lots as shown on the plan will also be correct and win coincide with the land itself and Crown Grants may be safely 124

issued for them without a further survey ... 128

Richmond replied the next month that, for the present, lands had to be secured to the tribes or hapu by the various provisions of the Confiscated Lands Act 1867 but noted that the Native Land Court had the power to subdivide these reserves upon application of the Governor. Agreeing that money was the immediate problem as far as subdivision of the reserves was concerned, he advised Wilson that as soon as the outer boundaries of the returned land were surveyed, Wilson could consider the second option of his proposal effective.

As will be seen, this issue was to cause many difficulties in later years.

( ) Wilson Returns to the Bay of Plenty The implementation of court awards and surveys was however disrupted from 1867 against the background of continued military activity against Te Kooti and unsurrendered guerillas in the Bay of Plenty.

In 1871 Wilson wrote to the Government drawing attention to the outstanding settlements in the area and suggested that it was possible to finalise the arrangements he had previously made. He noted that "several" grants remained unselected and unsurveyed and that schedules of awards containing many hundreds of names of Maori grantees had been mislaid. He hoped these could be reproduced from his own records.

McLean responded by reappointing Wilson in November 1871 and Wilson was able to report back in March 1872 on the state of affairs.

Commenting on the time it took to complete this work, Wilson said:

But that which delayed me in the district, and engaged my constant attention - giving, in fact, a good deal of trouble - was the unsatisfactory condition into which I found the land question generally had fallen, in so far as surrendered Natives were concerned with each other. Confiscated lands had been given to them formerly, for economical reasons, in an unsurveyed and undivided manner, and the complications that had arisen therefrom had become numerous, and were not to be easily settled. This observation applies to Ngatai lands,

128 Wilson to Richmond Native Minister 30 June 1868 RDB vol 78 pp30046-30051 125 to the lands at Opape and Whakatane, and to all the lands of that class in Rangitaiki, extending from Matata to Mount Edgecombe [SiC].129

Wilson reported that many lots and blocks contained in his old schedules had not had Crown grants prepared and issued, and all lands set aside for surrendered rebels had yet to be proclaimed or granted. In addition, since he had made his original arrangements, the Maori population had grown by 119 individuals, 148 rebels had surrendered and some land had been allocated to Ngaitai. Consequently, he cancelled his series of old schedules excepting those of the Arawa lands at Te Awa 0 te Atua (which formed a separate series of 13 schedules) .

... [That which] I found remained to be performed, was to prepare and (, issue eighty grants to 269 loyal grantees, for 96,261 acres, in lots . varying much in size, and in some instances for large numbers of cestui que trusts, amounting in all to 1074 persons. These are all . contained in the new series of schedules, and in the Arawa series ...

The result of the foregoing alterations and adjustments is that 1,717 surrendered rebels are now entitled to sixty seven lots or blocks of land, containing 104,952 acres ie an average of 61 acres each. I have here to remark, that about 60 friendly Natives were unavoidably included in the surrendered rebels' agreements referred to; which agreements were however necessary, the New Zealand Settlements Act notwithstanding. 130

He also reported that he gave Arama Karaka and Rangitukehu's wife Makuini 300 acres each at Omeheu, a swampy district in Rangitaiki. While ( their claims had been extensive, they had apparently not come before the Compensation Court because the claims had not been forwarded to the Court judges.

Wilson reported that the lands given to Ngati Rangihouhiri, Ngati Hikakino and Patutatahi in the lower Rangitaiki had been surveyed. His comments point to ongoing confusion among Ngati Awa hapu as to exactly which lands had been returned. This confusion would have been exacerbated by the distribution of the Ngati Awa hapu:

129 Report on Settlement of Confiscated Lands 29 March 1872 AJHR 1872 C4A p4

130 Ibid p6

/ 126 None of them [lower Rangitaiki lands] had been surveyed before, and the Natives did not seem to think that they belonged to them, and instead of occupying them lived elsewhere among friendly Natives and among other tribes. Certainly the lands are liable to an occasional flood, but that the Government cannot help; nor is it any gainer, the whole of the dry lands of these tribes having been given to the hapus of the Arawa, in reward for military service rendered in 1865. They have however, the islands of Omarupotiki and the Matata not subject to inundation, and these they prize very much.

My recent census schedules show these Te A wa 0 te Atua tribes are much dispersed to Tauranga, Hauraki and other places; but Metera Te Ti, Te Hura's brother, is endeavouring to reassemble them. 131 ( ) In 1873 Colonel St John sent a report on the confiscated lands to the Native Minister. It is unfortunate that the return he furnishes uses different categories than Wilson's June 1867 report so direct comparison is not possible.

In the 1873 report, of the same 440,000 acres confiscated:

Error in boundaries 5000 Given to Arawa tribe 87000

From this point the figures diverge markedly from those of 1867. Of lands retained by Maori in the district:

Compensation awards to 1074 loyal Maori 96,261 To 1717 surrendered rebels 104,952 Land to surrendered "Uriwera" 500

St John noted that the surrendered rebels received 61 acres per head. Loyal Maori, it seems, received 89 acres a head.

Lands surrendered 40,832

St John is unhelpful here. Presumably this is land which Wilson referred to as abandoned at the eastern end of the confiscation district.

131 Ibid 127 Of lands retained by the Crown he listed:

Military settlers 23,461 University endowment etc 10,325 Old land claims (7) 3832 Miscellaneous 10,930 Land sold 98 Balance in hands of Government 56809

Overall, where the government had had 151,558 acres in 1867, it now had 105,455 acres. He also described most of the land at the disposal of the government as "hilly, broken, or swampy country, unfit for settlement at present. " 132 ( It is interesting that St John admitted that of the 23,461 acres given to military settlers, "fully 15,000 lie idle, most being in the hands of non­ residents" when only two years before this report, McLean had urged haste in finalising arrangements so that land would be available for settlement and

" colonisation. It was also noted that most of the returned rebels were busy cultivating on the lands reserved for them. 133

In November 1874 the Native Office in Wellington published the fmal schedules of awards made by "Compensation Court and Crown Agent to Loyal Natives out of Confiscated Block, Bay of Plenty" for "general information" . 134 In fact, the awards were not only to loyal natives but also to returned rebels. This is made clear by the clauses of the Confiscated Lands Act 1867 under which the lots were granted. Some were made under clause 3, which provided for reserves for friendly natives and others are ( granted under clause four, which provided for returned rebels.

Post-Compensation Court Arrangements with Ngati Awa, Ngati Pukeko and Pahlpoto Aside from surveying the general state of awards and arrangements in the district, Wilson's 1872 report was concerned with outstanding matters regarding boundaries of land returned to Ngati Awa.

132 1873 AJHR C4B p6

133 JHH St John to Native Minister, 12 August 1873, AJHR 1873, C4b, pp5-6; RDB pp1 0186- 87

134 New Zealand Gazette, 12 November 1874, pp775-791 in RDB Vol 120 pp46329-46345 128 Wilson made the significant point that he was hampered in his work by the fact that Ngati Awa had an "indifferent" attitude to Government actions; in fact he perceived an avoidance of Government among Ngati Awa regarding the confiscated territories. Wilson attributed this to Ngati Awa pinning their hopes on petitioning Parliament for restoration of their lands and thus not wanting to commit to any arrangements with him.135

This was one of the reasons that Wilson was unable to come to any final settlements concerning boundaries between Ngati Awa and Ngati Pukeko at Whakatane and between Ngati Pukeko and Te Pahipoto in lands near Te Teringa mountain. Another reason was that Wilson believed that the 5th clause of the Confiscated Lands Act 1867 prevented him from coming to final arrangements concerning tribal boundaries. 136 This clause provided for lands reserved under sections 2-4 to be referred to the Native Land Court for partition and individual grants, so Wilson was at pains not to infringe upon what he perceived as the Court's jurisdiction.

Wilson had originally arranged a meeting137 in Whakatane in 1866 where it was decided that the Government would retain all that land on the east side of the Whakatane river and the Maori would have returned all that land on the west of the river. Wilson reserved the right for the Government to award grants for loyal Maori on the western side, as well as the right to take land on the western side equivalent to any compensation it might grant to Maori on the eastern side of the river. 138

Wilson's June 1867 report on native reserves gives the f0110wing schedules for the Ngati Awa/Ngati Pukeko tribes:

Whakatane Reserve for surrendered Rebels and loyal Natives of the Ngatipukeko and Ngatiawa Tribes.

Bound~d on the North by the sea; on the East by Whakatane River; on the South by southern boundary of the confiscated block; on the West by a line running from the Coast South to Orakaureka, thence to Te Wakaeme, thence to Ruakinui, thence to Te Karaka, thence to

135 AJHR 1872 C4 p4

136 Ibid p5

137 referred to above

138 TW Lewis to Bryce 22 March 1884 RDB vol 78 p30122 129 Otupokai, thence to Owhaikawa, thence to Otarere, thence to Haukumukumu, thence to Okahaua, thence to Opotaka, thence to Te Ruangarara, thence to Te Takapau, thence by a line running South to the confiscated boundary.

Rangitaike [sic] Reserve, for surrendered Rebels and loyal Natives of Te Pahipoto Ngaitamaoke and other hapus.

Bounded on the East by the Whakatane Reserve; on the South by the southern boundary line of the confiscated block; on the West by the Tarawera River from the southern boundary to Puke Tapu, thence by a straight line to Patuhoe, thence to Arero, thence to Otihore, thence to Te Pahauahaua-o-Rangipakokina, thence by the Rangitaike River to its ( , first bend North of Te Teko, thence by a line bearing towards the hill Ohinetiwai to the western side of Titingaroa swamp, thence by the edge of Titingaroa to Te Rakau Puki; on the North by a line running from Te Rakau Puki to Oteukuhanga, thence to Mauawairihi, thence by a line bearing East to the western boundary of the Whakatane reserve. 139

Having made these reserves, Wilson followed up with a meeting at Kokohinau in 1868 where he attempted, with the assistance of Rangitukehu, to ar,bitrate between Ngati Pukeko and Ngati Awa in fixing the boundaries of their subdivisions. Wilson reported this meeting as a failure, with both parties unable to agree on a boundary and Wilson, believing himself hamstrung by the 1867 Act, declining to impose one. 140

The issue surfaced again in 1871 when Wilson returned to sort out the ( confiscation awards. Negotiations at a meeting convened to discuss the matter apparently took place in Wepiha's absence, with Wilson intimating that he was a major obstacle to agreement. He reported that after Wepiha's return from ~apier, Ngati Awa notified that they would not enter into any agreement about confiscated lands.

I, of course, reminded them that this was a matter of dividing land already in their possession, not a question of getting more land from . Parliament; but they were bent on some new idea and deaf to

139 Return of Reserves Made for Friendly Natives and Returned Rebels, JA Wilson to Civil Commissioner Auckland, 9 June 1867, AJHR 1867 A 18 p 3-4

140 Ibid p4 130 everything else. After this, some of the Ngati Pukeko hesitated, and nearly all ceased to urge the division in the manner they did formerly. They probably wish to see how the petition will succeed; some of them perhaps are parties to it; and they appear to try to get on smoothly with Ngatiawa. 141

Wilson suggested a boundary he would have liked to have fixed, constructed so as to give Pepuaruhe and Kakahotoa to Ngati Pukeko and Te Pukeroa and Te Pahi to Ngati Awa. Interestingly, Wilson acknowledged the loss of lands at Paepuhou suffered by Ngati Awa in the Compensation Court and recommended shifting the current southern boundary of their reserve by 10 chains to compensate for this 10SS.142

Of the boundary between Ngati Pukeko and Te Pahipoto, Wilson was confident that there was no ill feeling or dispute involved. He managed, initially, to secure agreement to a boundary between the principal chiefs of both tribes, Kaperiere and Rangitukehu. However, the Pukeko chief Tiopira Hukiki, who had not been consulted on the boundary, objected to the "pokanoa" of the Government and managed to effect a postponement of the agreement. Though Wilson had to return with this matter unfinished, he believed Tiopira would have to assent and that it would be a short time before the issue was settled. 143

Halse and Brabant's Arrangements with Ngati Awa In the event, it would be some years before the Government attempted to settle the boundaries at issue between N gati A wa, Pukeko and Patuwai. (I A petition to McLean on the matter apparently resulted in Henry Halse being sent to Whakatane in May 1875 to meet the disputing parties. In this matter he was assisted by Brabant, the Resident Magistrate at Opotiki.

The meeting ·was held on the 9th May attended by about 200 Maori with representatives from each hapu selected to conduct their respective cases. Wepiha Apanui and Hori Kawakura represented Ngati Awa, Meihana Koata represented Ngati Pukeko and Iharaira and Rewiri represented Patuwai.

141 Ibid p4

142 Ibid p4

143 Ibid p5 131 .Kawakura in particular was insistent that Halse should make the subdivsion because the hapu were unable to come to agreement after years of discussion. In reply, Halse got these representatives to sign a document binding them to the decision he would make, which all parties agreed to.l44

On the following days, the party walked the boundaries of the disputed lands. Halse wrote of the portion between the Orini river and Rauporoa:

... it became evident that this portion of the block was the most important to settle, the land had been held in common, the cultivations were much scattered, and each hapu expected to get its own.

Ngatipukeko wanted the whole of the land from Pupuaruhe to the ( i southern confiscation line. Patuwai wanted a part of the land claimed by Ngatipukeko and Ngatiawa wanted an extension of the boundary proposed for them by Mr JA Wilson in his report of 29 March 1872 . .. Not knowing the western boundary from Whakatane to the southern confiscation line, I determined to leave that alone, until the other and more important part, was settled.

With Ngatiawa, the largest hapu of the three, I had no trouble, no sooner was it known that their wish - a very moderate one indeed - would be allowed, than Hori Kawakura on behalf of his people expressed himself satisfied .

... provision was therefore made for [patuwai] next; and the remaining portion of the land as far as the hills near Rauporoa, fell to the lot of NgatiPukeko, who appeared to have some claim for a little ( consideration. 145

The evidence given by tribal representatives covered their understanding of Wilson's previous arrangements to give returned rebels the land on the west of the Whakatane river. It was seemingly understood that they were not to get all of the land to the west of the river, that is, all the lands between the Whakatane and Rangitaiki rivers. Hori Kawakura said Wilson told them the land between the swamp at Te Awa 0 Te Atua and the Whakatane river south to the southern confiscation boundary was to be their western

144 Report of H Halse to Native Secretary 14 May 1875 RDB vol 80 pp30952-73

145 Ibid pp30957-9 132 boundary.146 Te Meihana Koata concurred, stating that he and the late Ngati Pukeko chief Kaperiere had been Wilson's kaiwhakahaere when Wilson had set the boundary. According to Te Meihana, the line commenced at a place called Te Tapoa on the beach, cut the Orini river, went on at an angle to Otarere creek, and went from there to Ratanui:

Then Mr Wilson said it was to cut the confiscation boundary passing through Manawairihia. We consented to that but Tukehu and Tiopira (for Patutatahi) objected to this. It has never been settled as to where this line strikes the confiscation boundary ... 147

Meihana continued, his evidence directed at establishing that Ngati A wi:! had lived at Whakatane, that they had killed Fulloon and had been turned off their land as a consequence. By contrast, Meihana pointed out that Ngati Pukeko and Patuwai had stayed on theirs, and that he had personally been given land on the east bank for the assistance he had given Wilson ... "Mine was given me for acting as Wilson's 'roia' [lawyer]". Meihana underlined the relative consideration that Wilson had shown Ngati Pukeko:

Mr Wilson called us to Opotiki - Ngati Pukeko went. Ngati Pukeko alone were asked to go. They and Te Patuwai went. Mr Wilson asked where did we wish for our land. We said from Pupuaruhe to the __ confiscation boundary. Wilson then arranged a meeting at Rauporoa. He came there. Ngati Pukeko and Te Patuwai were there. Of Ngatiawa there were only Apanui and Kawakura. Mr Wilson said Nga Tangata Tika might claim on the east bank of the river but those who were implicated in the rebellion should own the west bank. Then it was

( ) arranged that Ngatipukeko and Ngaitapiki should have all from the sea to the confiscation boundary. Mr Wilson gave the paper to me and I understood that I was the Rangatira of this "Tapahanga" [division of land] ... Hori Kawakura and Ngatipukeko have been disputing ever since. The reason I have now consented to the question being settled is that the Ngatiawa have received money [rent] while I am acting in a proper manner (e noho pai ana).148

146 Minutes of Proceedings of a Meeting held at Whakatane to divide the confiscated lands on the western bank of the Whakatane river between Ngati Pukeko, Ngati Awa and Te Patuwai, 9 November 1874 ROB vol 80 pp30983-5

147 Ibid p30985

148 Ibid pp30989-30991 133

Hori Kawakura replied that Te Meihana had tried to get Wilson to agree that the Ngati Awa hapu of Ngatiwharepaia and Ngatihokopu should stay at Ohope. His evidence points to the resentment Ngati Awa felt towards Wilson and his treatment of them. Apparently they petitioned Sir Donald McLean concerning the relative size and quality of the land Wilson proposed for them and for Ngati Pukeko and asked if McLean would sent another negotiator, which Hori says McLean agreed to.

After that, last year, Ngatipukeko and Ngatiawa met to consider the question. Mr Wilson was there. He said he came to divide the land - Ngatipukeko said divide it. Ngatiawa said do not. Wilson adhered to . the same boundary, therefore Ngatiawa would not consent. When Mr Wilson came, he always went to Ngatipukeko, never to us. Therefore ( his coming always made trouble. When he left us alone we lived peacefully together. Asked: Did you not consent to allow the boundary to be at Pupuaruhe in consideration of Mr Wilson giving Ohope for Ngatiawa? Answer: I never did - If Mr Wilson says so, it is not true. 149

Initially Halse had tried to get the Patuwai, who were closely connected with both Ngati Pukeko and Ngati Awa, to join either one of the larger groupings so that he would have to make only one division. Nevertheless, he decided to .. make separate provision for them, using them as a kind of buffer between mutually hostile Ngati Awa and Ngati Pukeko sections. 150

RaIse had wanted to make three divisions of the land but ended up making six because of inadequate definition on the western boundary from the south east corner of the survey near Te Teringa to the confiscation boundary in the ( south. Re explained that because the position of the Owhakatoro stream was not accurately known, he could not tell how the boundary from Wakataua to the southern confiscation boundary would run. This might mean that the acreage of each division could change, which was accepted by the three hapu.

The seaward portion of the block was divided:

Ngati Awa 2340 acres Lot 28 Patuwai 1250 acres Lot 29

149 Ibid pp30991-30992

150 . Halse to Lewis RDB vol 80 p30959 \

134 Ngati Pukeko 6400 acres Lot 30

The inlan~ part of the block was divided:

Ngati Awa 6700 acres Lot 31 Patuwai 6700 acres Lot 32 Ngati Pukeko 13000 acres Lot 33 151

It is clear that Ngati Pukeko were favoured by RaIse and Brabant because they were perceived as having been "less obnoxious" during the war than the other two hapu and had subsequently rendered services to the Government when Te Kooti made a raid on Whakatane in 1869)52 One of the conditions laid down by RaIse prior to the meeting was the Ngati Pukeko were to have "the first say" in the ensuing negotiations. 153

Halse also said that the hapus understood that it was the intention of the Government to give the block of land from the upper western boundary to the Rangitaiki river to Rangitukehu, and Halse suggested that if this grant went ahead, it should be delayed until the line from Wakataua to Owhakatoro (which separated the Whakatane and 154 Rangitaiki reserves), was CUt.

An attachment to the minutes of this meeting delineates the boundaries of the eastern side of the land of Te Pahipoto and the Government where they meet the western boundary of the Whakatane reserves. These boundaries are given in both English and Maori and are signed by the same hapu representatives as well as by Pahipoto representatives:

Commencing at Te Wakataua thence to Te Pou, thence to Otaurangahua, then it cuts across the Govt line at Te A wa 0 Whakatoro. 155

The boundary between the two reserves became problematic when ,

151 Ibid pp30966-30972

152 Ibid p30971

153 See enclosure number 1 to Halse's report outlining the conditions to be observed at the meeting. Ibid pp30974-6

154 Ibid pp30972-3

155 Ibid p31000 135 Rangitukehu complained to HT Clarke that the agreed boundary was not being adhered to by Ngati Pukeko. After some investigation, Clarke agreed that this was the case. This dispute necessitated another meeting which was held at Kokohinau on the Rangitaiki river May 5-6 1875. The same hapu representatives from Ngati Awa, Ngati Pukeko and Te Patuwai were present as were Te Rangitukehu, Tiopira, Paora Kingi and others of the "Rangitaiki tribes", Brabant and G Preece, resident magistrate at Opotiki. 156

In essence the main debate at this meeting was between Ngati Pukeko, who had been al10tted the most southern Whakatane block, and Te Patutatahi who were promised the adjoining eastern block. The issue was where the north/south boundary between the two reserves was to bisect the southern confiscation line and hence alter the respective acreages of the blocks. (

Te Rangitukehu objected to the Owhakatoro boundary stating that he was never told that Ngati Pukeko were to have six miles of the confiscated boundary and Te Patutatahi only three and a half.157 Tiopira added that he had met with Halse subsequent to the Whakatane meeting and agreed the line would go to Kotorenui. 158 This was disputed by Te Meihana who insisted that Halse had promised Ngati Pukeko 14000 acres in the southern part of the Whakatane reserves as he had given up some of his northern land to Ngati Awa. 159

Brabant denied that Te Meihana had been promised 14000 acres saying that promise had been in the region of 13000 to 13500 acres. He added that the land Meihana would lose was relatively worthless, consisting of only a bird .. and pig reserve. He went on to threaten that if the meeting was unable to ( come to a conclusion the Government might ask for contributions for the cost of the survey which had been wasted. 160

In the event Brabant imposed a compromise, with the surveyor instructed to cut the southern boundary line in half but attempted to placate Meihana's

156 Condensed notes of a meeting held at Kokohinau on the Rangitaiki river on May 5th and 6th 1875 to fix a boundary line between the Whakatane and Rangitaiki rivers RDB vol 80 pp30938-47

157 Ibid p30939

158 Ibid p30940

159 Ibid

160 Ibid pp30941-2 and 30944-5 136 demands by promising a small piece of good land in return for that lost by the boundary adjustment. He also said that Ngati Pukeko would get the section at Whakatane heads that Halse had apparently promised them if Meihana accepted the boundary. After asking for 200 acres at Whakatane and another thousand to make up for the land Pukeko lost, which Brabant rejected out of hand, Meihana reluctantly assented. 161

Brabant then made several arrangements with Ngati Pukeko for several small sections. He wrote to Clarke later in the month telling him that he had selected a piece of land at Whakatane heads as a fishing station for Ngati Pukeko, having thirteen chains frontage to the river going back to the boundary of the University reserve. The greater part of this land was cliff, giving about an acre of level land, and was sited next to a Ngati Awa pa. This reserve was apparently then approved by McLean. 162

Te Meihana then wrote to Brabant requesting an allotment at Puketi. When Brabant visited Whakatane to arrange this, a section of the Ngati Pukeko expressed their dissatisfaction with the quantity of land Meihana had accepted. Brabant argued that the land was more valuable than the land lost and in the end, the deal went ahead with HT Clarke approving the grant of Lot 70 Puketi of 112 acres to Ngati Pukeko. 163

Ngati Pukeko Subdivide Their Grants Further disagreements within Ngati Pukeko caused a delegation to petition Brabant to subdivide their lands in October 1875. 164 The division was between the Patutahora, of which Te Meihana was the chief and the (J Ngatirangataua which Tamihana Tahawera, Te Manohoaka and Metera headed. Aside from disputes regarding the settlement Te Meihana had come to with Brabant, argument had arisen when Te Meihana had sold some standing timber to Pakeha without consulting the other hapu. The tribe were adamant that they wanted subdivision and Brabant advised Clarke that this should be arranged. 165

161 Ibid pp30945-30949

162 Brabant to Clarke 10 May 1875 ROB vol 80 p30931

163 See ROB vol 80 pp30917-30920

164 See letters from Ngati Pukeko requesting partition at ROB vol 80 pp30912-3, 30906-7, 30903-4

165 Brabant to Clarke 19 January 1876 ROB vol 80 pp30909-30911 137 Brabant was dispatched to sort the question out. A major issue to decide was how shareholding was to be calculated in the new reserves:

In the course of my arrangements for division between the hapu the question cropped up whether each native was to be an equal shareholder in the lands or whether chiefs were to have more than the others or adults than children. After a full discussion of this point it was settled that each man woman and child whom I should enter on my list at the date of-division was to be an equal shareholder in the lands - the share of each afterwards to go to their heirs. 166

During the course of this subdivision, a dispute arose between Ngati Pukeko and Marion Stewart who claimed an interest in the land for herself and her seven children. She was half caste and her children had been born to a ( Pakeha father. Te Meihana had originally accepted her claim but realised if they accepted her children as full shareholders, Marion Stewart's family would have been entitled to approximately 640 acres. Te Meihana decided that Marion Stewart and her three daughters could be admitted and this decision prompted Marion's complaint to Government. 167

In Brabant's mind, Marion Stewart had no legal claim because she had not made a claim to the Compensation Court to inherit her mother's interest in Ngati Pukeko lands. These were lands "which the Government are dividing amongst the resident natives and not the original owners". 168 He thought she should be entitled to her mother's share (ie one share) as her children were by a European father. In this light, Brabant saw Te Meihana's offer as a gift and recommended that Te Meihana should not be bound by his original promise to admit all her children. (

On the 26 July 1877 Brabant reported that the subdivision of the Ngati Pukeko lands were complete. 169 The lands which were cut up were Lot 33 of about 11,700 acres and Lot 30 of about 5,600 acres. Lot 33 was divided on an east west axis with the northern portion of 6864 acres given to Patutahora and the southern part of 4877 acres given to Ngatirangataua. Of lot 30, Brabant divided the block giving the north and western portion of

166 Brabant to Native Minister 2 July 1877 ROB vol 80 pp30877-8

167 Ibid. See also M Stewart to Native Minister 24 March 1877 pp30883-30885

168 Brabant to Native Minister 2 July 1877 ROB vol 80 p30879

169 Brabant to Clarke 26 July 1877 ROB vol 80 pp30841-30845 138 3306 acres to Patutahora and the remainder of 2267 acres to Ngatirangataua. A timber reserve was divided giving one hundred acres to each hapu. Brabant divided the land making an effort to secure a proportionate share of good land for each hapu but said that the land was divided between the hapu in proportion to their population on the date of their division. He recommended that the blocks should be set apart severally for the names appended on his schedules with the power to lease but not to sell without the consent of the Governor. At this time Ngati Pukeko debated the question of dividing Lot 70 Waimana (puketi) but it was decided to leave this allotment intact. 170

Ngati Awa Leases at Whakatane In May 1876 Brabant wrote to the Resident Magistrate at Opotiki informing him that the chief Apanui and others were continually applying to him for Crown Grants of land awarded by the Compensation Court and set aside by Wilson.171 Apanui and Ngati Awa were concerned that others had received their grants and subsequently been able to sell the land. This was followed by a letter from Hori Kawakura requesting grants for the "quarters" of land given to Apanui and himself at W ainuitewhara. 172 Brabant suggested to Clarke 'that grants be issued, leaving the town lots and other small sections free of restrictions but leaving the larger lots inalienable. 173

The issue which arose in conjunction with leasing of returned land was the fact that grants had not been issued in respect of lands held by Ngati Awa and Ngati Pukeko. Mr Sinclair, on behalf of the would-be lessee Comisky, wrote to Clarke reminding him that grants had issued in respect of lands on the eastern side of the Whakatane river several years ago and that no ( ) authority had been given for grants on the western side yet. 174

On 26 September 1876 Brabant wrote to Clarke informing him that Ngati A wa were leasing their lands at Whakatane and asked what restrictions if any

170 Ibid

171 Brabant to Clarke 15 May 1876 ROB vol 78 pp29951-52

172 Kawakura to Clarke 29 June 1876 ROB vol 78 pp29938

173 Ibid

174 A Sinclair to Clarke (no date) ROB vol 78 p29933 139 were to be placed on the lands regarding leasing and selling. 175 It was decided to issue a proclamation restricting leasing for a period longer than 21 years without the consent of the Governor. This was to issue under section 4 of the Confiscated Lands Act 1867. Reid, the Solicitor General, commented that the proclamation should simply reserve the land as a reserve for the purposes of section 4 of the 1867 Act. The proclamation should show the lands are confiscated lands within the meaning of the ACt. 176

Hone Tuhimata and eight other Ngati Awa wrote to McLean objecting to the lease effected between Ngati Awa and Kelly and Comisky of the Whakatane Cattle Company.I77 The lease was dated 13 June 1876 for ten years, despite Kelly and his company wanting a 21 year lease. Ngati Awa were to receive 50 pounds per annum for the lands. The letter complained that the ( elders of the tribe had not been consulted regarding the arrangement and moreover, when Ngati Awa wanted to take the lease to the Native Land Court for ratification, Kelly and Comisky refused saying the matter had been settled. Brabant received further complaints from sections of Ngati Pukeko and Ngati Awa regarding their leases to the Whakatane Cattle Company later in 1876, so Brabant intervened, renegotiating parts of the leases with Kelley and his company. In particular, he paid attention to the amount of rent monies for Ngati Awa and inserted clauses reserving good land for Maori cultivations. 178

175 Brabant to Clarke 26 July 1876 RDB vol 80 p30893

176 McKay to Reid 14 December 1876 RDB vol 80 p30890

177 Hone Tuhimata to D McLean, 25 September 1876, RDB vol 80 pp30868-72 ( 178 Brabant to Clarke 23 December 1.876 RDB vol 80 pp30861-3 The reserve Brabant made was 158 acres on the upper Ngati Awa block. After this, Brabant recommended that the leases be approved by Government.

In November 1877 the Volunteers and Others Land Act came into effect. Section 6 stated that the Confiscated Lands Act 1 867 was to continue in operation with respect to any reserves promised to Maori. This Act had the purpose of validating the grants promised to Maori.

The following year the Whakatane Grants Validation Act was passed which also validated grants of land made by the Governor under the Confiscated Lands Act 1 867. These lands were deemed Native Reserves but for technical reasons concerning antevesting dates, the reserves had not been proclaimed. Since the Volunteers and Other Lands Act some of the land had been leased before grants had issued and this Act was intended to validate those transactions. Under section 4 of this Act the Minister was authorised to endorse antevesting dates. Appending schedules contain a description of the land, the date of issue of Crown Grants, the names of the Maori grantees, and specify the nature of the trust and the hapu involved. Some of the reserves were only alienable with the consent of the Governor and others were absolutely inalienable, such as burial grounds at Whakatane.

The matter of outstanding grants remained a live issue well into the 1880s. Brabant wrote to 140 He went on to suggest an enquiry into what grants had been issued and which ones were outstanding. Brabant said the schedules were complete in themselves but the degree of alienability was not clearly defined nor was the vesting date stated. Also, after such a long time, the names on Wilson's schedules were obsolete. In some cases Maori were away when the awards were made and had now returned to the land.

This particular memorandum had been inspired by letters from the Upokorehe hapu requesting subdivision of their Huiarau and Hokianga reserves as well as by disputes concerning succession and admitting names onto grants for the lands. 179 Apparently there was a split between Upokorehe proper and Ngatikaretehe since the leasing of these lands. Brabant stated:

I doubt the propriety of trying to alter awards long since made and settled in accordance with the law. I am aware that if the Govt do [sic] it in one case they will be asked to do it in others and questions which are now definitely settled will be reopened. I submit the proper course is to issue the grants in accordance with the schedules - why this was not done years ago I have never understood - and to leave the natives to go to the Native Land Court for succession orders and subdivision. I8o

Lewis replied saying the authority had been given a long time ago for the

Undersecretary Lewis on the matter in January 1882:

I am aware that some of the grants have issued and that some have not, but what proportion the issued ones bear to the unissued I am unable to say though of course the information could readily be obtained from the Croyvn Lands Dept. The matter has become a grievance amongst the natives, to my knowledge for years because they have been in some cases prevented from getting succession orders out of the Native Land Court for deceased owners, and from selling .or leasing the blocks which the terms of the awards would appear in many cases to permit. My attention has again been called to the matter by your referring to me Mr Bush's letter on the Hiwarau reserve (N.D. 81/4031) and by my having been asked when last in Opotiki by the owners to take some steps to enable them to grant a short lease of amongst other lands lots 335 Waioeka Opotiki which is the lot referred to as schedule 17 1872 in the before cited gazette.

I may say that more than once in and previous to 1876 I drew Mr Under Secretary Clarke's attention to the matter but he replied that the Grants had been issued by which I supposed him to have meant ordered to issue; if they were so ordered however the order was not in some cases carried out ... Captain Preece when RM Opotiki I believe drew your department's attention to the matter. {Brabant to Lewis, 13 January 1882, RDB vol 88 pp29905-29909

179 T Paora & others to Bryce 1 November 1881 RDB vol 78 p29918

180 Brabant to Lewis 13 January 1882 RDB vol 78 pp29911-12 141 preparation of the grants.

But a practical difficulty was that many grants were to be made for Maori in trust for several others:

In cases where grants of a similar character were issued in the Whakatane District, it was found necessary to have special legislation to validate them vide "The Whakatane Grants Validation Act 1878" A native Reserves Bill was prepared last session to which would have enabled these titles to have been individualised or otherwise arranged by the Native Land Court and which would have obviated the difficulty pointed out. 18l ( In August 1881 Apanui wrote to the Native Minister requesting permission to sell Lot 31 (8043 acres). The reasons he gave for selling were that Ngati A wa had ample land besides this lot, the award was small and that they . wanted to purchase cattle with the sale proceeds to develop other lands. l82 A note from the Resident Magistrate Bush accompanying the letter stated that he thought the writers understood they were requesting sale and commented that they were very anxious to sell. He pointed out that they had other lands, with many interested in the Patuwai awards and lands outside the confiscation boundary. Given these circumstances, Bush reasoned, their request should be granted. l83

The following March Swindley sent deeds of transfer for lots 31 and 32 for the Governor's assent. This prompted Bryce to refer several questions to the Solicitor General. With reference to the Whakatane Grants Validation Act 1878 he asked whether the trustees of Native reserves could sell them, and if ( they could whether they would be required to show whether it was for the benefit of, or at the request of, the whole tribe. He also asked whether, if the land could be sold, there was any legal obligation on the trustees as to the disposal of the proceeds and if these proceeds were squandered by the trustees, whether there was any legal right for compensation that the tribe could claim against the Government?l84

181 Lewis to Brabant 7 February 1882 RDB vol 78 pp29903-4

182 Apanui to Native Minister 15 March 1882 RDB vol 79 pp30581-5

183 Bush to Native Minister 29 September 1881 RDB vol 79 p30582

184 Bryce to Solicitor General 19 June 1882 RDB vol 79 p30572 142 The Solicitor General replied that the wording of the Act gave the power of sale "though expressed negatively and by way of exception". The trustees would not be required to show that the sale was for the benefit of the hapu or at its request as a preliminary to sale, but noted that the trustees were naturally bound by the rules of equity affecting trusteeship. While the trustees were bound to hold the proceeds for the purposes set out in the trust instrument, the tribe could have no legal claim against the Government in instances of abuse. Raving satisfied himself that the trustees did indeed hold the power of sale, Bryce declined to recommend to the Governor to consent to the sales. 185

A letter from Wepiha Apanui in December 1882 asked the Government to cancel the old grants for the reserves and issue new ones because, he said, ( ) there were too few names on it. 186 I am unsure whether this refers to the fact of the land having been awarded in trust or whether Wepiha referred to the schedules of owners appended to the grant. In any case, a meeting was held in Whakatane on the 18th December 1882 to discuss this request and Ngati Awa petitions to sell their lands. 187

At this meeting, Ngati Awa explained that they wanted restriction clauses on their grants removed, so that when pakeha offered good prices for land they could accept the offer. Noone present at the meeting objected to the selling of the land. Brabant pointed out that there were absent owners who had a right to share in sale proceeds and could take action against the Trustees if they didn't receive this share.

The meeting resumed after an adjournment with Roani Kawakura objecting ( ) to the sale of Lot 31 to Swindley. Roani evidently felt that Ngati Awa did not possess enough land to be able to sell this lot. Re pointed out that ·only some Ngati Awa were owners of the Ohope and Owhataiti blocks and only some were on the lists for Matahina, Putauaki and Pokohu. Yet everybody owned Lot 2.8. After naming a few others who objected to the sale, Roani then requested that the land be divided to accommodate the non sellers. 188 Roani Tuimata said he wanted restrictions removed but wished to ke~p the

185 W Reid to Bryce 20 June 1882 ROB vol 79 p30570

186 Wepiha Apanui & 158 others to Bryce (no date) ROB vol 79 pp30558-30562

187 See Minutes of Proceedings at a meeting of Ngatiawa held at Whakatane on Monday the 18th December 1882 ROB vol 79 pp30548-54

188 Ibid p30551 143 land. Others, such as Tiopira and Matiu, expressed a desire to hold the land. Wepiha argued that he wanted sale to improve other lands.

Brabant explained in a memo to the Minister that this was the land which had previously been divided for Ngati Awa, Ngati Pukeko and Patuwai. 189 Each tribe's land was divided into an occupation block and a block to lease; lot 31 was one of the blocks intended for leasing and it was now held by Major Swindley under a lease.

Mr Halse and I settled a list of owners - eight trustees and 208 cestui que trust. We intended that the trustees should have the power of leasing but that the names of the cestui que trust should be endorsed on the Grant; the Govt thought fit however to grant to the trustees and the names of the ( tribe was merely filed in the native office. 190

According to Brabant, Ngati Awa neither occupied nor cultivated Lot 31 either prior to or after confiscation and he was inclined to think that they had ample land. He listed the Ngati Awa lands besides lot 31:

Lot 21 Rangitaiki 128 acres Lot 28 Rangitaiki 2570 acres Lot 246 Waimana 1575 acres Lot 260 Waimana 17 acres191

Hori Kawakura wrote to Bryce the following June saying that Swindley had promised to pay the sale money to the owners, not the trustees, if the Government removed the restrictions on Lot 31. He had pointed out that the non sellers could cut out their portion so that the trustees did not have the ( power to sell their share. Hori stated that if these conditions were kept by Swindley then he would agree to having the restrictions removed. 192 This moved Lewis to write to Bryce:

I do not think that it has been shown that it is in the interests of the natives to sell this land even if the arrangements mentioned in their letter was carried out. It seems to be a case in which they are giving way to

189 Brabant to Native Minister 21 December 1882 ROB vol 79 pp30540-7

190 Ibid p30542

191 Ibid p30543

192 H Kawakura to Bryce 14 June 1883 ROB vol 79 pp30521-2 144 continued pressure to sell. On a petition from the NgatiAwa you decided there was nothing in it which would justify you in reopening the question. 193

In spite of Bryce's attitude to lifting the restrictions, Wepiha Apanui and 55 other Ngati Awa petitioned Parliament for the removal of restrictions on Lot 31 in July 1883:

... We have plenty of land for cultivations, dwellings and other pursuits outside the boundary of this block.

Your petitioners pray that you may be pleased to induce the Government to take the restrictions off our lands so as we may be enabled to dispose ( of it by sale to whom we please.

We the undersigned consisting of mostly females were the persons put into this block Section 31 by Judge RaIse when he investigated it in. 1878. 194

The Native Affairs Committee reported shortly afterwards on the petition:

That this is one of a series of petitions where the names in the Grant are only entered as trustees for a tribe - these grantees not infrequently let the lands and appropriate the rent for their own use. Legislation is needed for the purpose of fixing undivided interests. Merely to take off restrictions is not the course to be adopted. The committee recommends the subject to the early attention of Government. 195 , \. Following this petition, both Apanui and Rori Kawakura wrote to Government requesting subdivision of their lands ... "in order that we may be like NgatiPukeko whose land was subdivided and their differences came to an end" .196

Brabant wrote to Lewis referring to the correspondence he was receiving for subdivision of lands in the schedules of the Whakatane Grants Validation

193 Lewis to Bryce 2 August 1883 ROB vol 79 p30520

194 Petition of Apanui and 55 others 11 July 1883 ROB vol 79 p30514

195 25 July 1883 Petition No 242/83 ROB vol 79 pp30512-3

196 H Kawakura to Lewis 19 November 1883 ROB vol 79 p30506 145 Act. He said Timi Waata had been in contact concerning subdivision because he took his lands to the Native Land Court for subdivision but the application failed because they could not produce Crown Grants of the lands. He produced a letter from Browning, Swindley's lawyer, in which it was stated that no definite information about the grants for these lands was forthcoming. Brabant concluded that these grants had not issued although the Act was passed to validate them. He asked Bryce, if this was found to be the case, whether Bryce could order the subdivision of the lands before the issue of the grants and advised, if the grants had indeed issued, that the Government assist the owners in bringing their subdivisions before the Court. 197 Searching the record for information about the grants, a native office official noted that these grants had been signed by the Governor on 19th June 1878 and had been sent to the Commissioner of Crown Lands in ( Auckland.

It seems that the Government's response to the Native Committee's report on Wepiha's petition, and the general issue of alienation restrictions, was to appoint a Royal Commission on the Removal of Restrictions. George Barton was the appointed Commissioner for this enquiry and he reported to the Government on Lots 31 and 32 on the 24th April 1886. 198

One of Barton's major concerns, then, was to settle the lists of owners interested in Lots 31 and 32. This was achieved by assembling the whole of the Ngati Awa and Patuwai tribes, reading out the lists of owners prepared by Brabant and Halse in 1878, striking out those owners who had since died and those who had been born, and then having list certified by leading chiefs of the tribes. The list was then read out by Barton in Court and challengers called for. In the instance of Ngati Awa, Barton recorded that it was ( unanimously accepted by the assembled tribe as a correct list at the date of adoption. Barton commented:

Although the Whakatane Ngati Awa's appointed me as an arbitrator to settle all disputes about their tribal list - I was not obliged to make any decisions against any dissenting portion of the tribe. 199

With regard to Patuwai, things were not so straightforward. In evidence to

197 Brabant to Lewis 17 April 1884 ROB vol 79 pp30499-30501

198 Report of George Barton, Commissioner for Inquiry into Restrictions on Native Lands 24 April 1886 ROB vol 79 pp30288-30294

199 Ibid p30291 146 Barton, Patuwai stated that the lists filed in Brabant's office were made at Pupuaruhe from information supplied by the chiefs Wi Kepa, Rihara and Iharaira without any authority from the tribe and with no opportunity for the tribe to question the names inserted. As a consequence, Patuwai refused to recognise the lists as a list which was binding on them. The chiefs of Patuwai then prepared a list which they handed to Barton, who read it and asked for challengers. This list was accepted by both the Motiti and Whakatane sections of Patuwai as a correct version of the tribal owners.200

The trustees of the Whakatane Ngati Awa leased lot 31 to Swindley on the 1 July 1878; this was followed on the 8th November 1880 with Patuwai leasing lot 32 to him. Each of the leases was for a period of 21 years. Major Swindley had had possession of these lands ever since and none of the witnesses examined by Barton reproached Swindley in his conduct as a lessee. In spite of this, troubles arose in the division of rent monies among the owners which induced them to call for subdivision and cancellation of the original leases with Swindley.

The tribes shewed me in evidence that the Native Land Court had refused to entertain their applications for succession orders basing its refusal on grounds which it is not within my province to discuss. They then shewed me that having failed to obtain succession orders these tribes then applied to the Native Land Court to cancel the grants of-lots 31 and 32 issued to Trustees for each tribe and to make an order for the issue of fresh grants not to Trustees but to the whole of the individuals at that time respectively entitled to ownership of the land and they proved to me that their applications also failed by reason of the tribes being unable to () comply with the requirements of the statute, that is, the Trustees were not unanimous, and the tribes were unable to obtain a sufficient majority to compel cancellation against the will of the objecting Trustees. They then proved to me that the tribes having thus failed to obtain any relief through tl:Ie Native Land Court next applied to Government, for leave to sell the freehold of these lands to Major Swindley but they did not obtain the necessary consent of His Excellency to the removal of restrictions ....

Having been unsuccessful in all these endeavours to get rid of their troubles and of the lands, the cause of their troubles, they have now resorted to rearrangements of the terms of Major Swindley' s leases and to the making of the new tribal lists herewith submitted for ratification by

200 Ibid p30291 147 the Government. 201

The tribes went on to say that they wanted to cancel the 21 year leases for 33 year leases with the rent paid to two receivers appointed at a public meeting. The receivers would not be selected from among the Crown grantees, the lessors. The receivers would then pay the money to 20 distributors who would pass the money to the remainder of the tribe.

Swindley applied on the 14 December 1885 for the consent of the Governor to a proposed lease from the Whakatane section of Ngati Awa for Lot 31 and from Patuwai for Lot 32.

Barton recommended that the Governor approve Swindley's lease. The ( restrictions on the lots as outlined in the fourth schedule of the Whakatane Grants Validation Act stated that Lots 31 and 32 were to be inalienable by sale, lease, gift or mortgage except with the consent of the Governor being previously obtained to any such sale, lease, gift, or mortgage. Barton interpreted this as authorising the proposed thirty three year leases if "such term should be deemed advisable". Taking into account the fact that Swindley had already been in occupation for eight years and that no complaints were levelled against him, and that the new leases proposed new rents and renewal bonuses:

every year the difficulties respecting the division of the rent among them were becoming greater through the confusion of rights of ownership produced by the successive deaths and births in the tribe, and by the refusal of the Native Land Courts to settle the rights of those who claimed (' succession to deceased persons.202

I therefore respectfully lay before the Government the desire of the tribes that steps shall be taken to make the annexed lists ... lawful and binding lists and also that a Bill be introduced into the Legislature empowering the Native Land Court to grant succession orders in the cases of deceased owners of these lands.203

Fol1o~ing Barton's report Lewis commented that it was the intention of the

201 Ibid pp30292-3

202 Ibid pp30189-90

203 Ibid p30293 148 Government to cancel the Whakatane grants and let the Native Land Court decide who the owners of the lands were. As to Swindley's leases, Lewis believed that new legislation was not required to empower the Government to consent to the leases; all that was required under the Whakatane Grants Validation Act was the assent of the Governor to the alienation. Sir Robert Stout disagreed and thought that it would be necessary to empower the Government to approve the leases by special legislation.204

On 22 October 1886, the Governor was advised to assent to Swindley's leases in accordance with the recommendations made by Commissioner Barton. It seems therefore that special legislation was not felt to be needed.

The Whakatane Crown grants The issue of the Whakatane grants continued to be plagued by a series of delays and confusion between the various departments involved in the matter. In the meantime various N gati Awa groups petitioned Parliament with a view to getting their grants, held in trust, cancelled. The Native Affairs Committee reported on the petitions of Wepiha Apanui and others and Rewiri Paera and others in May 1888:

Petitioners pray that an Act may be passed under which the confiscated lands in the Bay of Plenty may be rendered of more service to them, by setting aside the original grants and fresh ones issued placing all owners on an equality.

I am directed to report as follows: That petitioners have undoubtedly a (, grievance and a very grave one; but, as it has been pointed out by the Chief Judge MacDonald, clause 41 of "The Native Land Court Act 1886" is thought to provide the desired remedy. The Committee therefore recommends that the petitioners take advantage of the clause referred to for the purpose of bringing the lands complained of under the adjudication of the Native Land Court so the present tenure may be altered and fresh grants issued to all the owners thereof; also, that the Government afford every facility to the petitioners getting their case brought before the Land Court; or, if it is found to be necessary, pass such legislation as will satisfy the prayer of the petitioners.205

204 TS Lewis 19 June 1886 RDB vol 79 p3031 0

205 Report on petition of Wepiha Apanui & 206 others and Rewiri Paera & 23 others 31 May 1888 RDB vol 79 p3041 8 149 Accompanying papers suggest that the petitioners did not pursue an application to the Native Land Court under the 1886 Act as suggested by the Committee.

The Whakatane grants had been sent by the Commissioner of Crown Lands to Lands and Survey Wellington so that an antevesting date (2 January 1871) which was necessary for their registration, could be endorsed on them. Rolleston, who was the Minister of Lands at the time, asked the Attorney General's opinion on the antevesting but it seems no reply to this request was ever made. In March 1893, a memo from Lands and Survey in Wellington pointed out that the grants had remained in that office since late 1879 awaIting a response from the Attorney Genera1. 206 ( A memo to Lands and Survey noted:

I know of no reason why these Crown Grants should not be issued .. ~ I think petition or petitions have been before the Native Affairs Committee about these grants ... at that time I was instructed to oppose an application these natives intended making to the Native Land Court then sitting at Whakatane with respect to these grants. If my memory speaks correctly, I was to oppose on behalf of the Public Trustee. The application was however never made.

The Natives have been anxious to do away with the Trust in these grants, and have all the owners names substituted instead, if this is consented to care will have to be taken not to exclude any of the original owners and .. allow other persons to be added ... I believe the main object in asking' to ( have the present grants set aside and fresh ones issued is to have an opportunity of putting in fresh lists of names. 207

A memo to the Minister of Lands the following month explained the delay in the issue of the grants:

In 1883 complaints were received that the trustees did not pay the rents to the tribe, who proposed to take proceedings against them. It was then proposed to refer the matter to the Native Land Court under section 24 Native Reserves Act 1882 to cancel the Trusts and define others and also the names of the natives who might be found interested, but the records

206 Lands and Survey to R Bush 1 6 March 1 893 DB vol 80 p30698

207 R Bush Tauranga to Surveyor General Wellington 26 April 1893, ROB vol 80 pp30695-7 150 do not show whether the parties interested ever took steps to bring this about. No doubt they did not bring the matter to a successful issue at any rate.

Msrrs Hesketh and Richmond [solicitors acting for would be lessors] have requested that the grants be issued. No reason is given but of course if the trustees deal with land by lease or otherwise, the grants should be in the registry office.

The reason why the grants have not issued hitherto is apparently because they contain a power of sale by the Trustees over 8 of them [with the Governor's consent]. The other seven grants are absolutely inalienable. The area covered by these grants is nearly 35,000 acres.

The question arises should these grants now issue. So far as those with an absolute inalienable tenure are concerned, there would appear no reason why they should not. But with regard to the others, it seems to me that it would be much more in the interest of the natives to allow of leases only. If this view is confirmed then the "Whakatane Grants Validation Act 1878 requires amendment so far as the eight grants are concerned and the grants themselves should be held back.208

Problems with Omataroa Block (Lot 60 Rangitaiki) Disagreements among Ngati Awa about the confiscated areas and the confusion created by the Crown's 'arrangements' of the 1860s continued throughout the 1880s, this time focusing on the Omataroa block, on the southern boundary of the confiscation, bounded on the west by the Rangitaiki river and on the east by the Whakatane reserves.

This block came into existence as a result of promises made to Rangitukehu and the Pahipoto people that they would receive large amounts of land on both sides of the Rangitaiki river.

Aside from the land on the Te Teko plains which passed to the Government for the rebellion of the tribes in that area (see above), Tukehu had two large blocks returned which lay between the Tarawera and Rangitaiki rivers. The final schedules published in 1874 described these lands as Lot 59 Parish of Matata, consisting of 12,710 acres held by three persons for 86 men, women

208 Department of Lands and Survey to Minister of Lands, 3 May 1893, RDB vol 80 pp30690-2 151 and children of Te Pahipoto and Ngamaihi hapu. This is the land which abuts Putauaki, lying between the two rivers with the southern boundary being the confiscation line. This block was granted under the 3rd, 4th and 6th clauses of the Confiscated Lands Act 1867. The' second block was Lot 72 parish of Matata containing 2,527 acres held by four trustees for 75 men, women and children of the Pahipoto. In both of these allotments, the first trustee and beneficiary was Rangitukehu.209

In addition to these blocks, Rangitukehu and his people were evidently promised land on the other (ie eastern) side of the Rangitaiki river, adjoining the lands returned to the Ngati Pukeko, Patuwai and Ngati Awa, and this became Lot 60. ( In 1882 Hori Ngatai wrote to Bryce requesting he send a commissioner to complete arrangements for the reserve on the eastern side of the Rangitaiki river at Te Teko. Brabant replied that he and Halse had fixed a boundary between the Whakatane grants and Lot 60 but had not been directed to "interfere" with this lot. Then in 1883, Rangitukehu began corresponding with the Native Office concerning his grants. In February he wrote on behalf of the Pahipoto requesting an investigator be sent to Rangitaiki to confirm the ownership on the east of the river. While agreeing that he and Wilson had decided that Te Teko should be given to the Government, he still claimed a large portion of the land on the other side of the river. Later, he asked for the issue of the title to his reserve at Te Teko (presumably this refers to Lot 72).

This was followed by a letter from Tikitu Titirahi of Ngamaihi in January ( 1884. He complained that the Government had made provision for Rangitukehu but that his hapu were living in very unsatisfactory circumstances.

The issue of the boundary fixed between the Rangitaiki and Whakatane grants, and Ngati Pukeko dissatisfaction with it, was reactivated by petitions from Wi Kingi Tuatahuarangi in March 1884. He too claimed that Rangitukehu was appropriating more land than he was entitled to and stated that he (Wi Kingi) would claim land to the west of the Ngati Pukeko lots 33 and 41 on behalf of that hapu.21o

209 See schedules 29 and 30 ROB vol 120 pp46343

210 Wi Kingi Tuatahuarangi to TS Lewis, March 1884, ROB vol 81 p31215 152 The confusion that these letters created in the Native Office demonstrated the lack of any clear understanding of exactly which lands had been returned to Maori and under what circumstances. When it was finally ascertained which lands these letters referred to, it was decided that Brabant again be sent as Special Commissioner to determine the ownership of Lot 60.

Brabant reported that he went to Whakatane on the 8th October 1884 to ascertain whether the land had been promised to be returned to Rangitukehu and whether Rangitukehu had been "provided for" elsewhere, leaving this land "free" (of claims, presumably).211 He said that he had been aware for the past twelve years that Rangitukehu and his people had been in occupation of this land and that it was generally supposed by the "Whakatane tribes" that this land had been returned to them. Brabant decided that Wilson's reports made it clear that he had arranged with Tukehu for this land to be returned to him. He referred to the fact that this land was included in one of Wilson's old schedules for Rangitukehu and that the chief had attended the Compensation Court to have this arrangement "confirmed" .212

Another question which Brabant considered was the claim of Wi Kingi Tutahuarangi (of Torere) to be interested in the land. Brabant concluded that he was "merely the agent or mouthpiece " of the Ngati Pukeko with whom he was connected and his claim amounted to a reopening of the boundary question between the -Whakataneand Rangitaiki reserves. Brabant was satisfied that Ngati Pukeko had no real grievance in connection with Lot 60 (in spite of their continuing complaints regarding the 1200 acres they had lost). Brabant said, in reference to the Whakatane reserves, that it had been the best solution to give the Ngati Pukeko compensatory land in Waimana (ie ( ) Puketi) to avoid a fresh investigation and survey, but that if this new investigation had indeed taken place, Ngati Pukeko would have ended up with less land than they had in fact received.213

Brabant then turned his attention to fixing a list of owners for the block. He included Te Pahipoto, Ngamaihi and Ngaitamaoki as well as Erana and others who had petitioned Parliament on the matter. Hori Ngatai of Tauranga, whom Brabant stated had old claims in the block, was also inser~ed. Penetito Hawea of Ngamaihi attempted to insert many of his

211 Brabant to Lewis 23 October 1884 RDB vol 81 pp31193-9

212 Ibid p31196

213 Ibid p31198 153 relatives, who were only distantly related to Rangitukehu, and Brabant decided that they could be on the list for Lot 60 if they had not been provided for in other reserves. In the end, they drew up a list of 217 owners who were to hold equal shares in the land, though Brabant does not make it clear if Rangitukehu assented to this. Brabant noted:

Te Rangitukehu particularly requested that the block may be made inalienable either by sale mortgage or lease. 214

Brabant's arrangements were accepted by the Native Department and the Minister, and Undersecretary Lewis enquired whether a Crown Grant could issue under the Volunteers and Other Lands Act 1877. Stott replied: (

The question is one of law and not administration. It appears to me that the 6th sec of the Volunteer & Ors Land Act 1877 can hardly be extended to such a case as this where the area of 20,00 acres and the interests of 217 persons are concerned. If, howeyer, it is held that the section in question does apply then the first step will be to have the land set apart by proclamation under the hand of the Governor.

The Volunteer & Ors Land Act '77 keeps the provision of the Confiscated Lands Act 1867 alive in respect of unfulfilled promises to surrendered rebels and to friendly Natives. This I take to mean promises made by competent authority and not 'understandings' such as are referred to in Mr Brabant's report. If the present law is held to be sufficient to enable the land to be set apart for the Natives then as I have already stated the first step will be to proclaim the land as reserved. If this is done I do not ( see any necessity for- the issue of a grant to 217 individuals for land which is to be absolutely inalienable.215

The question -of the owners list and the relative rights of the hapu in Lot 60 were not resolved'by Brabant's arrangements. A few weeks after Brabant had reported to the Department, Penetito and Tikitu wrote to Wilson complaining of the partiality that Brabant had shown Rang~tukehu. They said that Wilson had given them the mana of the land originally yet they now

214 Ibid p3119'9

215 Stott to Native Undersecretary 26 November 1884 ROB vol 81 p31192 154 lived under sufferance to Rangitukehu. 216

In response, Wilson wrote a memo recalling the meeting he had held at Kokohinau in 1867 which was attended by Rangitukehu representing Pahipoto, Tikitu representing Ngaitamaoki and Tamihana representing Ngaimaihi. It had been decided that Lot 60 was to be a reserve for all of them but the relative acreage for each had not been discussed. Wilson stated that he believed the relative share should depend on the population of the hapu. He said that this arrangement had been reported to Col Haultain and Mr Whitaker who had approved of it. 217

On the 2nd February Brabant wrote a memo to the Undersecretary commenting on the relationship of the three main hapu. 218 He said the () land did indeed belong to the three hapu but believed that Pahitpoto were entitled to the larger share of it and that Rangitukehu had the mana over the land. He recounted how the chief had been a loyal ally of the Government and had brought the rebellious hapu back to his settlement:

.'. this no doubt largely increased his mana and he claims, I suppose with some truth, that it was his influence with the Government which caused them to retain so small amount of the confiscated lands.219

Since then, the Pahipoto had claimed a much larger share of the lands than the other hapu and it was only recently that the mana of Rangitukehu was being challenged by the younger chiefs of the other hapu.

Brabant said that he had to admit their claims but was careful not to offend ( ) Rangitukehu who could have decided not to participate in the proceedings. Brabant said that the list drawn up by Tukehu contained most of the names of the other two hapu anyway, with only eight names which he refused to admit to the list. Brabant said that he did not want to challenge him in public and humiliate him in front of his hapu but later, he privately got Tukehu to admit the names. He said that Rangitukehu was the only person who expressed real dissatisfaction with the result.

216 Tikitu Tamihana to J A Wilson, 6 December 1884, RDB vol 81 pp31178-9

217 JA Wilson, 24 December 1884, RDB vol 81 p 31176

218 Brabant to Lewis 24 February 1885 RDB vol 81 pp31167-75

219 Ibid 155 Brabant noted that the other two hapu asked for subdivision of Lot 60 but Brabant wished to save Government the expense and told them they could do it at their own cost through the Native Land Court.220

In the event, however, Brabant returned to Rangitaiki to arrange a subdivision as the Native Minister promised Penetito a division of the lands. Brabant reported on the 17 February that he had had much less difficulty in arranging the subdivision than he had anticipated, which he credited to an improved attitude among the hapu since the last meeting. The divisions he settled were:

Lot 60a 10,200 acres Lot 60b 5,000 acres ( Lot 60c 5,200 acres

Lots 60a and 60c were reserved for the Pahipoto and hapu claiming with them and Lot 60b was for the Ngamaihi and Ngaitamaoki hapu. Also cut out were three small burial reserves.

Brabant was convinced that the subdivision had removed all dissention between the hapu. He stated:

The difficulties in the way now having been removed by subdivision, the names of the whole of the Natives claiming have now been inserted in the lists and the Ngamaihi and Ngaitamaoki are ~ow quite satisfied.221

He then requested that the survey proceed under his direction.222 ( Brabant's optimistic assessment of his work at Rangitaiki was frustrated when in April, Rangitukehu wrote to the Minister requesting that a further 500 acres of confiscated land at Te Teko be given to him. 223 Then in October 1886 Brabant reported that further subdivisions of Lot 60 were asked for when the Native Minister visited Whakatane. Brabant was to travel to Whakatane to look into this request but the Tarawera eruption meant that Maori left the district and it was unclear when they would return. In the

220 Brabant to Undersecretary, 2 February 1885, ROB vol 81 pp31168-31175

221 Ibid

222 Brabant to Undersecretary, 17 February 1886 ROB vol 81 pp31145-31148

223 Rangitukehu to Native Minister 20 February 1884 ROB vol 81 pp31140-1 156 circumstances, Brabant felt it unnecessary to continue with the matter but pointed out that the surveys should still proceed. Brabant later noted that after the eruption, the owners were less pressing in their concerns regarding further subdivision.

Intra hapu relations among the Pahipoto appeared to be at a very low ebb in late 1889 when the Native Office received correspondence from various factions concerning subdivision. Hiri Wetere Te Whakamate requested partition citing heated disputes concerning cultivations and fencing etc. This brought a response from Rangitukehu' s daughter Te Taiawatea that she and her relations were the real owners of the land. Another letter from Matutaera Hatua -and 10 others stated that he objected to any proposed sUbdivision. 224

We have heard that a survey is about to be made of the Omataroa block and we are endeavouring to ascertain the authority for making that survey, whether the application is from the tribe, or from an individual. If this application to have the survey made is from one or two individuals, we do not agree to it, our wish is that our land should remain intact and that there should be no division thereof ... we entirely disallow that survey because we are living in the quiet occupation of our land· ... we are in very good circumstances and are living together contentedly on our land. 225

This petition purported to be on behalf of the hapu of Pahipoto, Ngatiahi, Ngatiruamataura, Warahoe, Ngaitamaoki and Ngamaihi hapu signed by representatives of each.

( ) Again, the fact that grants had not issued for the block became problematic in applications for successions and leases. On 13 June 1892 a petition form Matutaera Hatua and 36 others requested that the Native Land Court investigate Lot 60 under section 42 of the Native Equitable Owners Act 1886.226 The. Native Affairs Committee referred the petition to Government with a view to having the problem remedied by special legislation. The petitioners were informed that the Native Trust clauses in the then current Native Land Bill would meet their needs.

224 See correspondence in RDB vol 81 pp31112-23

225 Letter from Te Wharehiraka Rangitukehu and others to Mitchelson, Minister of Native Affairs, 29 March 1890, RDB vol 81 pp31 094-5

226 31068 157 As a result, the Native Land Claims and Boundaries Adjustment and Titles Empowering Act 1894 at section 6 gave effect to the arrangements which Brabant had come to concerning Omataroa block. The Native Land Court was empowered and directed to determine who the owners of the block were under the original agreement that Wilson had come to (as modified by arrangement with any duly authorised person).

The block came before the Native Land Court in 1897 and it treated the three hapu as equally interested. This provoked a petition to Parliament from Mahutaera Hatua and others in late 1898. The petitioners claimed that the land which was referred to the Native Land Court under section 6 of the 1897 Act should have been awarded exclusively to Pahipoto or that the other hapu should accept what Pahipoto were willing to give to them. Pahipoto C seemed willing to accept the lesser award of 5000 acres which Brabant had allocated to the other hapu:

Tukehu did not agree that they should have equal rights to the land, nor had they any personal right to the land under Native Custom neither they nor their hapus Ngaitamaoki and Ngamaihi. Tikitu, however, has a right, though not a large one, but then he took up arms against the Queen.227

In a memorandum to the Chief Judge of the Native Land Court Judge Scannell commented:

At the hearing before me there was no question as to the right of each hapu to participate, in fact, none could be raised, as the Court was restricted by the Act to the terms of the arrangement by Mr C. Commissioner Wilson. ,

The main contest was over a few names, which were struck out on hearing, one man and his family and relations, and the daughter of the late Rangitukehu to whom it is said the whole land was given , was the principal advocate for including all who applied.

As to the relative areas for each hapu that was settled by a Committee appointed by the owners themselves and all were satisfied, this was confirmed by the Court, but an appeal was lodged afterwards ...

The hapus also settled the individual interests each in its own section, and

227 'Petition of M Hatua and others (undated) RDB vol 81 31036-7 158 that also the Court confinned.228

This appeal was heard by Judges Edgar and Johnson and in an interim decision they stated:

1. That the land was returned to the three hapu Te Pahitpoto, Nga Maihi and Ngai Tumaoki. [sic]

2. That in this land neither hapu is to be considered as having a better right then the others.

3. That no distinction is to be made between those who joined the rebellion and those who did not.

It seems likely that giving back the land on the ? [presumably refers to the other western side] side of the Rangitaiki River to Rangitukehu and his hapu Te Pahipoto exclusively may have been in consideration of the influence exerted by that Chief on the side of the Government during the war.

4. That this land is to be awarded evenly to the three hapus, each hapu to have an area proportioned to the number of individuals composing it.

Therefore the only point for this Court to consider is who are the individuals rightly composing each hapu.

Tiaki Rewiri objects to a large number of persons admitted at Judge (J Scannell's Court, asserting' that they do not properly belong to Nga Maihi and Ngai Tamaoki.

Penetito submits that he should also have the right of objection to persons ... Penetito also contends that in deciding this question, the part called Lot 60H should also be dealt with, although no appeal has been lodged respecting that part.

The award of the fonner Court was made in accordance with an outside' arrangement, the Court itself giving no decision whatever.

As the matter is now being fought, the outside arrangements having been

228 D Scannell to Chief Judge Native Land Court, 21 July 1898, RDB vol 81 pp31023-31022 159 repudiated, the Court must deal with every part of the land ... 229

It appears that the Appellate Court decision finally settled the names for the block.23o

This case demonstrates again that long after the 1860s, basic issues in relation to the confiscated lands, were still open to debate.

Arrangements with Arawa Pre-court awards and arrangements were also made over the lands granted to the Arawa contingent who had rendered military services in the Bay of Plenty. (

There is evidence that arrangements were made to accommodate Arawa very early on. While letters from December 1865 discuss possible payments to the Arawa for their war effort, in March 1866 TH Smith wrote a letter to the Native Minister in which land grants were specifically mooted as a means of satisfying Arawa demands for payment. Smith emphasised the importance of the services rendered by the Arawa and also the high cost of keeping them, and their families, in supplies while the campaigns ensued:

The Arawas now look for some practical acknowledgement of their services ... At a meeting of their chiefs at Te Awa 0 te Atua ... I was called upon to name the sum which would be paid to them as a reward ... In connection with the question of renumeration, I would suggest for the .. consideration of govt the desirability of setting apart portions of the ( recently confiscated territory for the Arawa. I believe that many of the inland tribes would gladly come out to the coast if they could obtain land there for settlement and cultivation.231

In a report to the Native Minister on 10 June 1866, HT Clarke described attending a hui of two hundred Arawa representatives at Maketu, convened to pay their March quarter salaries as well as £1500 in consideration for their war service. Clarke stated that the Arawa chiefs had debated whether to accept the payment at all, considering it an inadequate reflection of their

229 Interim decision of Appellate Court (undated) reproduced at ROB vol 81 pp31025-6

230 Following this interim decision of the Appellate Court, Tiaki Rewiri withdrew his appeal. H Edgar to Chief Judge, 8 August 1898, RDB vol 81 p31024

231 TH Smith to Native Minister, 1 March 1866, Lel11866/1 00 160 efforts, and that they suggested that they would petition the General Assembly on the matter. In the event, all hapu accepted the money with the exception of the Ngati Pikiao, who seemed to be considered by Clarke in a particularly favourable light:

I extremely regret that the Ngatipikiao are dissatisfied for they of all the hapus of the Arawa have rendered the best service, always being foremost at the post of danger, and most to be relied upon in any difficulty. 232

By the end of that month, Smith's suggestion had been approved by the Native Minister. On the 22nd the Under Secretary at the Native Department, W Rolleston, wrote to the Civil Commissioner at Tauranga, HT Clarke,. informing him that:

.,. the Government has approved of the Arawa tribe being permitted to occupy that part of the confiscated territory which lies between the River Te Awa 0 te Atua and their own land.

It will be held by them in common until you can recommend and the Government approve a plan of subdivision and Crown Grant.

It is to be understood that this land will be held upon condition of occupation and will not be alienable without the consent of Government. 233

It is not at all clear from this letter where it was understood the Arawa territory and the confiscated district met or overlapped but it does seem to suggest at least some Arawa territory had been confiscated. It is also not clear how far inland from the coast at Te Awa 0 te Atua (Matata) the Government intended the Arawa to occupy - does this refer to the whole of the land west of the Tarawera river or just the coastal part?

Rolleston, Clarke and Arawa chiefs met at Matata on 1st December. Rolleston noted in a memo that he was requested to bring to the Government's attention "the position of the land recently given to the Arawa at Mgtata" and that the chiefs wanted to indjvidualise their land and wanted a surveyor sent for that purpose. The chiefs stated, however, that their first

232 HT Clarke to Native Minister, 10 June 1866, Le1 /1866/1 00

233 W Rolleston to HT Clarke, 22 June 1866, RDB vol 123 pp47376-7 161 priority was a tribal division of the land to avoid disputes. 234

Wilson's schedules of the Arawa military grants at Matata are located in the Raupatu Document Banle 235 While these awards had been given prior to the Compensation Court hearings, these schedules show the lots awarded to the various tribes under the third clause of the Confiscated Lands Act 1867, which empowered the Government to make reserves Jor friendly Maori, in recompense for military services rendered in 1865. The schedules list trustees for each tribe or hapu and then list the various members of the group for whom the land was held in trust. As Rolleston' s June 22 memo underlined, while the Government had awarded these lands to hapu, this was considered an interim measure until surveys could be paid for and the lands individualised. (

A schedule of purchases and leases published in 1874 gives the military awards at Matata as:

Tuwharetoa tribe 2396 acres , Ngatiraukawa 2042 " " Ngatiwhakaue 5650 " " Ngatirangiteaorere 700 " " U enukukopako 700" " Patuwai 1306 " " Ngatimanawa 1700 " " N gatipikiao 4300" " Ngatitu 938 " " 700 " ,,236 Ngatikereru ( In the June 1867 report, published before the Compensation Court had sat to hear the major claim to the land on the west of the Tarawera river occupied by Arawa, J A Wilson said that 87,000 acres to the west of the Tarawera river was "given" to the Arawa tribe. The schedule appended to this report described the boundaries of this land as:

Bounded on the north by the sea from the mouth of the Waitahanui to the mouth of Te Awa 0 te Atua; on the East by Te Awa 0 te Atua and

234 RDB 123 pp47378-9

235 RDB Vol 119 pp46016-46038

236 Areas of Land Purchased and Leased AJHR 1874 C4 p1 0 162 Tarawera rivers; on the South by a portion of the Southern boundary of the confiscated block, and on the West by the western boundary of the confiscated district. 237

However, an 1873 report on confiscated land implies that Wilson thought the 87,000 acres had been mistakenly confiscated from the Arawa as the land was described as "given back" to them:

The boundaries defined by the order in Council comprised a large portion of land belonging to the friendly tribe of the Arawa; this was accordingly restored.238

The Arawa apparently received further military allotments at Ohiwa after the Compensation Court had concluded hearings. On 29 June 1868 JC Richmond of the Colonial Defence office wrote to Clarke authorising him to station an Arawa contingent of 60 men at Ohiwa to keep the U rewera in check. The payment for this service was to be a grant to each man not exceeding 25 acres and was to be· made from all the "surplus land" at Ohiwa.239 These men served a term of two years, for which they received land, and a further term for which they were paid in money.

The Arawa military grantees repeatedly requested the government issue Crown grants so that they could sell these Ohiwa lands. Wi Maihi protested that the Government had made the Ohiwa lands reserves against the express wishes of Arawa when they accepted the terms of service at Ohiwa. This was a view supported by Brabant, writing to the Native Minister in 1882. He stated that the Arawa were promised land without restrictions and that many ( ) of them had long since left the district and many had also died:

... the land is merely poor farm land of no value to lease and tying it up really means depriving them of the reward promised them for their services. They have an abundance of land for their own support in their own district. 240

Undersecretary Lewis responded the next month that it had been decided to

237 AJHR 1867, a18 p4; ROB vol 122 pp47142-3

238 AJHR 1873 C4b p5

239 JC Richmohd to HT Clarke, 29 June 1868, ROB vol 123 pp47364-47367

240 Herbert Brabant to Native Minister, 28 June 1882, ROB vol 123 pp47342-3 163 issue the grants without restrictions, but the following year it came to the Native Department's attention that these grants had already been issued with restrictions. It was decided then, should applications for the removal of restrictions be received, that these would be favourably recommended to the Governor for approva1.241 The Raupatu Document Bank contains memos noting transfers of land from Arawa grantees at Ohiwa to buyers with the Governor's assent dated late 1884.242

It seems that many of the Arawa grantees came under pressure to alienate their awards, especially from the early 1870s onwards.

JA Wilson, acting on instructions from the Native Minister, arranged for a new township, called Richmond, to be laid out on the Arawa lands at ( ) Matata. The land was sold as town aI10tments at auction in late 1868 with the proceeds going for surveys to subdivide the rest of the Arawa grants.243 The Richmond Land Sales Act 1870 validated the sale of these allotments which had been sold without grants; Wilson noted that the sale and resale of the lands in the absence of deeds had caused disputes.244 The Act also authorised the issue of Crown grants to the remainder of lands in the district to the Arawa tribe.

In 1874, the military awards to the Arawa, listed above, were noted in a published schedule of pending sales -and leases under the title of "Negotiations in Progress" being conducted by the Government land purchase agents MitchelI"and Davis.245 This was a time when the Public Works and Immigration programme was being pursued by the Government for the rapid colonisation and settlement of the country and Wilson was told ( by the Minister that the Bay of Plenty awards had to be settled as soon as possible to effect this settlement.246

241 Correspondence from Undersecretary Lewis to Brabant Resident Magistrate Tauranga ROB Vol 123 pp47338-47340

242 ROB Vol 123 pp47331-2

243 See preamble to "The Richmond Land Sales Act 1870" and a memo by HT Clarke at ROB vol 123 pp47372-47375

244 Report on Settlement of Confiscated Lands 29 March 1872 AJHR 1872 C4 p1

245 Areas of Lands Purchased and Leased AJHR 1874 C4 p10

246 Report on Settlement of Confiscated Lands 29 March 1872 AJHR 1872 C4 p1 164 PART FIVE

THE LAND COURT PROCESS

Court procedure The hearings examined for this report followed the format laid down in the Native Land Court rules published in 1867. After the claim was called and the parties present noted, including any kaiwhakahaere conducting a case:

The claimant shall first proceed to establish a prima facie caSe without cross-examination being allowed by the counter claimant or objector. ) If he succeeds to the satisfaction of the Court in establishing a prima facie case, the counter claimant or objector shall then be in the position of a plaintiff and proceed with his case in defeat of the claim. The claimant shall then proceed with his case in defence. The counter claimant shall then make his address to the Court, the claimant being entitled to the reply. 1

As the counterclaim ants gave their cases, they were subject to cross examination of the applicant and other counterclaimants, and the claimant would also be~subjecttocross~~examination-ingiving their case in defence. Where kaiwhakahaere conducted cases they would call and lead witnesses evidence, the kaiwhakahaere would also usually be one of the witnesses.

In cross examination, on occasion the court would ask questions. But these () interventions were relatively rare. Sometimes the assessor would also ask a question, or sometimes make a short statement of their understanding of; matters.

The court would sometimes intervene to apply the 1840 rule, noting that evidence was "too distant" in time or that the evidence just given fell after 1840.

Cou~t judgments usually followed immediately after closing arguments, although sometimes the court would delay judgment where it was hearing blocks with common borders and common witnesses.

NZ Gazette 1867 p135, Wai 46 11 (a):32 165 Only in one of the cases studied did the court examine on the ground the evidence of occupation and landmarks made in court, by sending the assessor to examine the area. Generally however the court did not examine claims on the ground. In the case mentioned the assessor found none of the marks of occupation put forward very positively by one of the counterclaiming groups. In a later case involving the Urewera block, Mair reported that evidence of occupation was totally without merit when he examined the area. Thus it seems it would have been easy to mislead the court, which must have relied almost solely on its view of the credibility of witnesses before it. 2

In later cases and rehearings, that assessment of credibility could be assisted by earlier statements recorded in court minutes - as will be seen. ( Court judgments for original applications would crudely divide up a block and decide the major groups interested, but the selection of names of owners to go in the title was a matter left as far as possible to the owners, although it appears that at least ten were required by the court in anyone title - consistent with the 1865 Act and Fenton's views of Maori land and the mission of the court.

The Court would often adjourn proceedings to allow parties to reach voluntary arrangements to amalgamate claims and reduce the number of parties before it. This was something the court positively encouraged, and sometimes expressed regret when groups did not co-operate with each other.

Maori use of the court Bay of Plenty Maori seem to have understood quite quickly the fundamental ( change a land court ruling could make to interests formerly defined by tikanga, and responses were varied. As elsewhere in the country, some groups tried to avoid the process altogether and form an anti-land court compact, but. they were inevitably drawn in when borderlands were brought before the court by persons outside the compact. Only a geographically broad and co-ordinated inter-tribal organisation could have resisted the work of the court in the Bay of Plenty. The recent confiscation, the large . population and number of tribes, the variety of resources and historic inter- tribal rivalry reinforced by recent events made such an organisation virtually impossible.

2 This point is noted in the Hawkes Bay Bal/ara Ngati Kahungunu p514. She quotes comments at AJHR 1891 Gl 166 Ngati Awa were particularly vulnerable in this respect. The comparison with Te Arawa, an intact tribal group with active government support, which finalised a fonn of agreement with the Crown, or with the unconquered Maori King, is obvious. That there was no anti land court or anti sale movement among Ngati Awa of any significance when almost all surrounding groups who did not have lands confiscated is significant.

With most tribes therefore before the court, it was a matter of adaptation to achieve the best result from the court process. Some groups also saw it as a positive development for them, wishing to put land into the court to achieve a cash sale, although of course some had debts to payoff, as in case of survey debts for over the Otamarakau block. The court's emphasis on () voluntary arrangements also meant that tikanga, adapted to the situation, remained a strong background element.

·It seems that for every block examined for this report, pre-court negotiations, sometimes quite extensive negotiations, had been undertaken before the land came into the court. The most common situation was that the claimants were persons who had sold or made arrangements to sell interests in the block either to government agents or private buyers. This meant that a survey had been undertaken, and the highly public process of surveying had served as notice to groups that the land was claimed by one faction or other.

As will be seen, committees were often fonned to manage the court claims, and witnesses would be schooled in the appropriate ancestors to draw on to make a claim work. JA Wilson said that the practice of suppressing traditional evidence unnecessary or unhelpful to their case was: I ) not at all uncommon, and sometimes all the parties to a suit will agree to avoid fees and shorten labour by eliminating a few chapters of history considered by them to have little or no bearing on the points at Issue. .. 3

Applications, such as the Otamarakau application, were made with the governme~t agents present to oversee proceedings, and even question witnesses where they felt their interests were threatened.

Counterclaim ants were usually groups who had been included in the pre­ court arrangements, but were aggrieved about the result of them. Less often,

3 Wilson Te Waharoa p135 167 they were groups not privy to the arrangements at all.

Consequently, at the commencement of hearings when applicants and counter claimants were listed, there was often a period where groups made fresh deals and jockeyed for position. Groups might ask for adjournments, or seek more information about proposed ownership lists, or survey plans, before deciding whether to become a party to the proceedings, or take their chances on negotiating their way onto an ownership list. Sometimes a counter claimant would get as far as beginning their evidence before it was discovered that their land was not in contention.

Once in court, witnesses made little pretence that they were emphasising particular ancestors to support a claim, when they might not do so for other ( claims. This was because tikanga supported multiple hapu links and such evidence was the 'truth' as required for the circumstances. A common example:

Tohi Te Ururangi accompanied N'Pikiao at the retaking of Maketu . .... He was partly a N'Pikiao. His mother was one. For the purpose of assisting the joint occupation we make him a N 'Whakaue. 4

It is apparent that groups also sometimes however went further and simply lied about historical events, forgot about others, made up conquests and the like. These matters were reflected on at length in the judgment on the Rotoiti block in 1900. Some evidence from the old minute books had been directly controverted in the hearing. So much so that the judge noted that "In the olden times, Native fought with spears or guns to obtain possession of land, C· & now they fight with their brains & tongues in the Native Land Court with the same object in view. As in a game of draughts (mu), each party exercises his skill to the best of his ability, but all cannot be victors." He gave examples of evidence being admitted to be falsified eg moving the location of a tree out of which a canoe had been made, and inventing a false "take kaha" story which had been a strong point in winning a previous case against outsiders. Now a different truth was required as the battle was between hapu. 5 One Arawa witness, the court noted, went so far as to say that "the inveI)tion of "take kaha" was quite common among the Arawa! "6

4 Patene Haukiwaho of Ngati Whakaue, 2 Maketu MB 277

5 24 Maketu MB p 361, Wai 46 12(p)

6 Ibid p362 168

In this case witnesses also admitted that a great deal of arrangement of the evidence to be brought had taken place before the early court. They were often coached by a committee of claimants before presenting evidence.7The court noted the evidence of a kaumatua that:

that matters in the past were to a great extent "arranged", & that, as long as the inclusion of certain persons of rank was assured, it was not considered worth while to challenge loose statements or mistakes in genealogies. All that was desired in those days was to get the cases over with as little trouble as possible. Hemi Heremaia did not hesitate to assert that many geneaiogies in former times were concocted for Native Land Court purposes, & Ereatara R Rangihoro who, when a young man, acted as Kai-whakahaere in the Otamarakau & other cases, has admitted in this Court that "discrepancies" in N'Pikiao genealogies are quite common. There is an old Pakeha saying that "all is fair in love & war", & Maoris evidently extend it to cover proceedings in the Native Land Court! "8

The reference to Otamarakau is worthy of note. These quotes also show that when ruling on areas for the first time the court could be relatively easily misled by the evidence presented.

As has been noted, the court would intervene occasionally during hearings to apply the 1840 rule, but it is harder to gauge how much evidence claimants simply altered or did not give to take account of the rule. One incident of note is a brief comment recorded in the minutes when Mikaere Heretaunga of Rangitihi was giving evidence in the Matahina block case in 1881:

about twenty years ago a fight took place (Court ruled this was not evidence having taken place after the first Governor came) I mean a disturbance took place about the boundary line which we now claim. 9

This suggests an understanding of the rule by witnesses, and an amendment to evidence to get around it. This added further to the artificiality of the

7 Ibid p363

8 Ibid p364

9 1 Whakatane MB 81, Wai 46 12(f) 169 court process. Ballara notes the same problem in the Hawkes Bay.lO

This does not make the judgments totally useless however. From the conflicting evidence of witnesses a core common story is usually quite easy to pick out, and the major points of difference show through. When the possible motives of witnesses are examined, for example rivalry between Ngati Whakaue and Ngati Pikiao, or between groups seen as insiders and outsiders, it is possible to make some assessment of the veracity of evidence and the likely truth of assertions made.

Ballara concludes that minutes are useful if the economic or other interests of the witnesses, kin connections and likely aims resulting from them, inconsistencies between accounts and the likely intentions behind them are (I taken into account. 11

(

10 Ballara Ngati Kahungunu Appendix I The Use of Native Land Court Records As Historical Evidence p539

11 Ballara Ngati Kahungunu Appendix I p556. Bryan D Gilling reaches a similar conclusion in "Engine of Destruction? An Introduction to the History of the Maori Land Court" (1994) 24 Victoria University of Wellington Law Review p121 170 PART SIX

OTAMARAKAU BLOCK AND ROTOEHU FOREST LANDS

Events prior to the first land court hearing The first land court hearings on the Otamarakau block followed the fighting in the Bay of Plenty district of 1864 and 1865 and the confiscations and land court hearings of 1866 and 1867.

As is detailed in other parts of the report, these events fully occupied the Ngati Awa hapu residing in and around the Whakatane area. Ngati Awa had ( ) to make way for Te Arawa and other groups to be settled on their lands, and were still uncertain what lands remained to them even after 1870.

Te Arawa on the other hand, were aggressively asserting rights by reason of their recent conquests. They had the ear of government.

Early discussions over the fate of Otamarakau lands were not surprisingly therefore led by Te Arawa related groups.

An area designated as Waitahanui, taking in what was later to be the Otamarakau block, was subject of a private lease in 1868 to a Mr Chaytor. 1 A year later a survey was undertaken of these lands. The surveyor was Henry Mitchell, he was hired by Charles Davis, who was acting for Chaytor. Davis was a fluent Maori speaker. 2 ( ) Davis was later to say "in my first negotiations for Mr Chaytor I dealt with N'Hinekura, N'Makino, N'Whakahemo, N'Kauiti & other hapus of Ngati Pikiao. ,,3

The first sittings of the court in the area began at Maketu in mid October 1867. There was some trepidation. Clarke sought a postponement, writing on 4 October that:

See Wai 46 G4:44

2 DNZB voJ 1 p99

3 8 August 1878, 3 Maketu MB 205, Wai 46 G49(d) R3 171 ... I regard with considerable apprehension the result of the sitting of the Land Court advertised to take place at Maketu on the 14 inst. Several chiefs of the Ngatiwhakaue have just left the office, men who are interested in the lands to be adjudicated upon - and they state that it would be necessary for them to assemble a strong armed party so as to be able to meet on equal terms with their opponents, who are said to have used threats in the event of a judgement adverse to what they believe to be their just rights. In the present very unsettled state of this District a collision amongst our faithful allies the Arawa, might be attended with the most disastrous consequences to the country. For in the event of an eruption of the hostile Hauhau it is on them I believe we shall have chiefly to rely for aid. ( Under these circumstances I beg to request that you will bring this matter under the notice of the CJ of the NLC with a view to the postponement of the sitting until a more fitting season.4

To calm Clarke, Fenton took Pollen with him when he opened the court before 500 Maori "chiefly of the Arawa and N gaiterangi tribes". Pollen was confident that Fenton could handle a growing conflict over leases of land at Maketu by Ngati Pikiao and Ngati Whakaue. 5

The first hearings of the Otamarakau block The very first hearing for the Otamarakau block was before Judge Smith at Tauranga On 6 December 1870 Wiremu Kingi Whareauahi and others came before a sitting of the Land Court at Tauranga claiming the block. There was however no survey, and so their claim was dismissed on this technical ( ground, but it was agreed that they should be included when an application by 'Rota & ors" for the block came to be called.6

Twenty two <;lays later (28 December), again at Tauranga and again before Judge Smith, the claim of Rota Rangihoro and others was called. The land to be considered by the Court was described as "from Pongokawa on the West the confiscated boundary on the East on the North by the Sea on the South

4 T Clarke, Civil Commissioner, Tauranga 4 October 1867 in IA 1/1867/3588, Wai 46 11 (a):7

5 Pollen to Colonial Secretary 29 October 1867 in IA 1/1867/3588, Wai 46 IlIa):7

6 6 December 1870, Judge Smith, 1 Maketu MB 129, Wai 46 12(a) 172 by the Lakes Rotoma and Rotoihi". 7 Acting for claimants were CO Davis and W Warbrick.

The court was operating under the Native Lands Act 1865. Section 23 required that the court ascertain the rights of persons interested in the land before the court and order a certificate of title to be made up. No more than 10 persons however were to be named on the certificate of title.

That provision had however been amended by the Native Lands Act 1867, which provided at section 17 that the certificate of title could name up to ten owners, but the court must ascertain and note in court records the rights of - all persons interested in the land - not just the applicant and claimants before the court. In addition, no alienation of the land could occur, apart from a () lease of 21 years, without the owners appearing again before the court to have their interests subdivided out. It allowed a small number to be named as legal owners of the land, but kept alive a veto right for the other persons named.

When this provision was first introduced, there was resistance to it from Chief Judge Fenton, who saw it as interfering in his view that "The ultimate result of the operations of the Court will be the conversion of the Maori nation into two classes, - one composed of well-to-do farmers, and the other intemperate landlords". 8

Fenton announced that he would simply use the section at his own discretion, but otherwise subdivide blocks to the point where there were ten owners for each block.9 The Crown was concerned about that stance, but seems to have done little more than make owners tenants in common after 1869 to ameliorate the problem .10 The approach and decisions of the court should be seen against that background.

The Ngati Makino claim A list of 7 proposed grantees was put in, Te Mapu, Te Rirituku, Pita Haroa, Rota Rangihoro, Mita Te Rangituakohi, Rewiri Manuariki, Te Matangi. The court then noted 3 other claims affecting the block.

7 1 Maketu MB 272, Wai 46 12(a)

8 AJHR 1867 Al0

9 AJHR 1871 A-2A p40-41

10 512 and NZPD 1868 vol 4 pp229-231 173 First, there was a separate Ngati Whakaue claim. This was made not by way of ancestral links, but through recent cultivations on parts of the block and "toa" or conquest, and through ahi kaa or occupation. The principal claimant was Reire Tereanuku. Second, Whakaturou on behalf of the Ngati Awa hapu Ngatikuhu claimed a portion of the block through an ancestor - the portion "between Waiheki and Waitahanui" and called "Iwiroa". Last, Hikairo for Ngati Whakahemo claimed land near Pukehinau through cultivation and occupation. The ancestral precedents for the claim were said to be "Waitaha + Maruahaira". The court ordered this claim to stand over for the present - no reason being given. 11 It was however the closest part of the block to Maketu, so the court may have been reflecting on the difficulties it was having in that region with Arawa groups. The court then adjourned the matter again, and it was not brought up again until the 19 January 1871. (

At this third initial hearing in January 1871 the court came dose to making a final award of the block. Two persons spoke for the principal claimant group. Rota Rangihoro claimed the block through the ancestor Waitaha a Hei. Rota provided a whakapapa from Hei saying that "these ancestors owned the land or rather watched over it" - a suggestion that the Maori claimants were perhaps not simply thinking in terms of physical occupation of the land. 12 The pa at Otamarakau he said was occupied by the Ngati Makino hapu of Waitaha. The proposed grantees had been agreed "by the whole of the parties interested" - a convenient point for the court to note if it was to use the 'agreed owners' provisions of the Act.

Rota was followed by the another influential Ngati Makino chief, Te Mapu, who identified himself as 'belonging ~o Waitaha' and residing at Rotoiti. He C recited a whakapapa through to "Ihipera wife of Rota - these ancestors occupied the land and is now occupied by their descenda,nts." Ngati Makino presently had cultivations on both sides of the Waitahanui river, and formerly had cultivations at Pongakawa 13

The court then heard from two other claimants.

The Ngati Whakaue claim Reire. Tereanuku of Ngati Whakaue said that he resided at Maketu, and

11 1 Maketu MB 272-273, Wai 46 12(a)

12 2 Maketu MB 42, Wai 46 12(a)

13 Ibid p42-43 174 claimed some land in the block in the Pukehina region of the block on the basis that Ngati Whakaue had been living at Maketu since Tapsell's time (circa 1832). He noted that the other people who had been there where "Ngatiwakahimo" who had scrapped flax with Ngati Whakaue and had cultivations between Poropora and Te Kauri. Reire supported Rota Rangihoro's contention that Ngati Makino could claim the remainder of the block by their ancestral link with Waitaha. 14 Under cross examination, Reire admitted that the group of Ngati Whakaue he represented had been digging gum in Auckland, and had not reoccupied this Maketu land on their return because of war "between the Natives and Europeans" along the coast. 15

This questioning touched on the core of the Ngati Whakaue argument. Reire ( ) went on to explain that his claim was entirely through the relatively recent conquest of Maketu by Arawa groups. The land, he said, had been taken by Ngati Whakaue at the fall of Te Tumu, from "Ngatiwakahinga and Rangiowhiri". He did however admit a "N'Whakahimo" claim in the area, conceding they might have an interest either on the basis of ancestral links or by recent conquest. Ngati Whakaue did not object to the Whakahemo presence - ie Whakahemo lived there subject to the rights of a dominant Whakaue group.16 .

The Ngatikuhu claim Hirini Whakaturo of Ngatikuhu, resident at Tauranga, claimed the area 'from Waiheki to Waitahanui stream and following the course of the stream to Maraetahia from thence to a hill called Kaitangata from thence to a hill called Pare thence to Waiheki on the beach". He claimed through "Waitaha ( ) Tarauuta and not Waitaha a Hei". His people, he said, had cultivated on the land claimed at a place called "Iwiroa". His father had cultivated there, but had left it when driven away by the Nga Puhi incursions, with a few returning to cultivate after Hongi's time. Hirini admitted Te Mapu and Rota's claim.on behalf of Ngati Makino to the remainder of block. 17

It seemed that the matter would be a relatively straightforward one. No significantly conflicting claims had been made. The court adjourned for an

14 2 Maketu MB 43, Wai 46 12(a)

15 Ibid p44

16 Ibid p44

17 2 Maketu MB 45, Wai 46 12(a) 175 hour. When it returned however, Judge Smith announced that he had received word from the Native Minister that "a serious disturbance was existing in Maketu in consequence of certain decision of the Native Lands Court with respect to certain blocks of land having been given and stating that it would be advisable to adjourn the sitting of the Court" .18 The court adjourned.

Summary of the first sitting Before the abrupt adjournment, the groundwork had been set for the Otamarakau case. The major claim was to be a Ngati Makino one, and based on ancestral links, with Waitaha a Rei being the major ancestor.

The other claimants did not dispute this main claim, but rather sought limited ( exceptions to it over their particular areas.

Ngati Whakahemo claimed in the region of what was later to become the Pukehina block. This was challenged by Ngati Whakaue. Unfortunately the Ngati Whakahemo claim was not developed before the abrupt adjournment.

Ngati Kuhu claimed a coastal block between the Pukehina block and up to Otamarakau, but did not claim at Otamarakau itself. They were careful to base this claim on Waitaha Turauta in distinction from Waitaha a Rei. The court minutes show that only JC Young, appearing on behalf of the land purchase agent Davis, asked questions to cross-examine the Ngati Kuhu claim. This may suggest that other groups present had no problem with it, although, because of the disturbance at Maketu, the court did not return after its lunch break, and this may have prevented further cross examination. ( Both Ngati Whakahemo and Ngati Kuhu advanced their claims under a Waitaha ancestor. Although the Ngati Whakahemo also included Maruahaira. Also, both of these claims related to coastal areas of the block.

No other claims were recorded as being advanced. At later hearings a Ngati Pukeko claim would be advanced. Why was it not made at this time? Firstly, as Davis admitted, he had been dealing with what he regarded as Ngai Pikiao exclusively about this block. JC Young's questioning of the Ngati Kuhu claim indicates that Davis was not previously aware of it. Possibly this hearing was one of the first times that a wider group had become aware of the extent of the block that was under lease. Also, the court was held in

18 Ibid p45 176 Tauranga, and Ngati A wa with an interest might not have found a journey there easy to undertake.

In addition, the land court sitting was almost totally dominated by Te Arawa interests and concerns, operating under difficult conditions brought about by divisions among Te Arawa related groups. Ngati Pikiao and their allies Ngati Whakaue were angry that the land court had preferred the ancestral claim of Tapuika in its award of the Pukaingatoru block, passing over the effect of recent conquests and reoccupation at Maketu. The result was uproar. Ngati Whakaue declared no more land should go before the court. 19

Between the sittings Much happened after the first sitting and before the court looked into the matter again. The major event being Crown purchasing in the block.

This was a period in which the Bay of Plenty tribes began to develop coherent strategies to deal with the land court and make some sense of the changes since the confiscations and compensation court sittings.

In confiscated areas the resident magistrate at Tauranga, HW Brabant, reported in 1872 that efforts were being made to petition Parliament for the return of all confiscated lands. Brabant thought there was a Napier influence involved. Hawkes Bay Maori had experienced early the full destructive effect of the native land acts and the repudiation movement there was in full swing. Brabant was confident however that the majority of Maori of the area understood that the return of all confiscated land would be "not only () inexpedient, but impossible" and he had impressed this upon them. 2o He noted the movement two years later, by this time he said that the impetus for it came from the Urewera group, who had a wider agenda to resist land sales and leases and build up a "Union of Mataatua" against them. The agenda was however subject to uneven support. Brabant was able to report that Ngati Awa, Whakatohea and some Urewera people were keen to lease the Whakatane and Waimana valleys. While the majority of the Urewera people were against this, their resistance was being eroded, and they were forced to attend land court sittings to maintain their boundaries' - even while at this

19 MA 13/18, Wai 4611(b):101-102

20 Brabant to Native Minister 24 June 1872 AJHR 1872 F3 10-11 177 stage not admitting its jurisdiction.21

As this suggests, Ngati Awa and Ngati Pukeko had adopted a much less hostile approach to the work of the court and government in their district. They were building roads at Whakatane and Te Teko and proposed one up the Whakatane valley to Ruatoki. 22

In 1873 Henry Mitchell and Charles Davis were employed by the Crown as land purchase agents. Their method of dealing was to obtain "every available block" by making preliminary agreements to secure an interest, followed by public meetings to finalise the matter. 23 This was in accord with the Native Lands Act 1873, which s'ought to establish a system "by which the natives shall be enabled at a less cost to have their surplus land surveyed, their titles (, thereto ascertained and recorded, and the transfer and dealings relating thereto facilitated" .24 This policy was to be accompanied by a systematic setting aside of suitable reserves after tribal interests in a district had been carefully defined. In the event, an ad hoc approach was taken to purchasing and the 1873 legislation tended to operate in a one sided manner, facilitating land loss without systematically securing reserves.

Although leasing might have been thought to be a means for Maori to retain the land, Mitchell and Davis considered it more cynically:

the lease of these lands to the government will we consider render purchase her.eafter if desirable comparatively easy, inasmuch as time and opportunity will thereby be afforded for the final adjustment of tribal and hapu claims which at present, in the majority of cases, present an almost insuperable barrier in the way of extinguishing the NatIve· tIt. 1e, ... 25

The inalienation clauses in the leases would retain government control over whatever happened to the land. This still however accorded with the general thrust of the 1873 Act.

21 Brabant to Native Minister 25 May 1874 AJHR G2 8

22 Ibid p8

23 MLP 1882/107 quoted in D Alexander 19th Century Purchases of Ngati Makino Land p67, Wai 46 G4

24 Long Title

25 MA Head Office file MLp 1 - 18731159 quoted in Alexander Ngati Makino Land p68 178 There were in the early period of these activities, efforts from several groups to halt the process or at least control it. In April 1874 Mitchell and Davis sought instructions as Tuhourangi had formed an organisation called 'Te Putaiki" to prevent the lease of any lands under their control and encourage other hapus not to lease or sell. Land was being offered for sale but Te Putaiki was effectively hindering negotiations. McLean replied that government policy was:

Where offers are made by the Natives to sell or lease lands, and opposition likely to follow from other quarters, negotiations on the part of the officers or agents of the Govt. should not be pushed but rather suspended until more favourable opportunity ... for renewing­ them.26 () At the same time, Mitchell and Davis found it relatively straightforward to finalise purchases of Arawa awards within the confiscated area around Matata harbour. This was presumably because they were recent awards and not traditional lands of Arawa.27

To the east, the then Crown agent JA Wilson reported that the Urewera tribes were organising a rohe potae. 28 He also reported at this time on a boundary dispute between Ngati Pukeko and Ngati Awa about 18,000 acres in the Whakatane Valley. There had-been a meeting-at Whakatane in February 1874. Wilson had subsequently been informed that Ngati Awa did not now wish to divide the land up. Wilson's response was to put pressure on Ngati Awa by stating that he could no longer hold back Europeans who wished to lease in the valley even before any division arrangement was made. Faced with this, Ngati Awa and Ngati Pukeko leased their interests to two private purchasers, Swindley and Kelly. Wilson pointed out that the government, through arrangements with these men, would now be able to step in and take these lands when it wanted.29

The governrrient was actively colluding with private buyers. The same file notes an arrangement for the government to take over some of the interests

26 7 April 1874 MA-MLP 1 - 1874/215. This 'anti-selling league' was still giving Mitchell problems in the Rotorua Kaingaroa region in the late 1870s. See AJHR 1877 G7 p12

27 MA MLP 1 - 1874/227, Wai 46 11 (a):3

28 JA Wilson to native minister 1 June - MA-MLP 1 1874/230

29 JA Wilson to Native Minister 1 June - MA-MLP 1 1874/230 179 of a private buyer, a member of the House of Representatives, in parts of the Waimana-Ruatoki lands once they have been purchased by the private buyer from Maori.3o

As will be seen, Mitchell and Davis were at this stage actively seeking a lease over the 100,000 acre Pokohu block, in which there were Ngati Awa interests.

These efforts were not without their problems. In a memo to Clarke in November 1874, he was informed that Mitchell and Davis had visited McLean in Auckland and McLean had warned them "against the practice of making advances to individual claimants on blocks without first consulting the tribe, and they said they carefully avoided doing so." McLean was ( concerned also that too many transactions had been started, and remained incomplete.

At a further interview in December, McLean again expressed his concern, particularly as. significant advances had been made for which there was nothing to show. McLean then outlined a number of particular concerns . about particular blocks, indicating that chiefs had contacted him about the actions of the two. No blocks in the area of this claim were however mentioned.31

Mitchell and Davis did not deny treating with individuals, saying rather that they had never dealt with individuals not entitled, and jealousy among Maori themselves was the problem. They claimed to be close with completing the purchase of several blocks, Waitahanui, a part of Otamarakau, included. ( I "Sir Donald urged upon them the necessity of completing transactions and " suggested a return to the old method, where a notice was sent around of the day of payment, all natives interested assembled and the money was paid in the presence of all". The two gave an indefinite response. McLean then received two ·deputations from Te Arawa disputing the extent of the "toa" claims.32

It was against this background that in 1873-74 the Crown purchased interests

30 McLean letter to Wilson indicating that the Government is happy for Kelly MHR to negotiate for Waimana-Ruatoki block then pay him the price he paid Maori for the lands suitable for agricultural settlement, Kelly was to retain pastoral parts.

31 MA-MLP 1 - 1874/492

32 Memo of an interview with Ministers at Auckland, 5 December 1874, MA-MLP 1874/492 180 in what was to be come known as the Waitahanui portion of the Otamarakau block.33 Mitchell and Davis seem to have dealt almost exclusively with Ngati Pikiao. Agreement for sale was reached in September 1873 for a 30,000 acre area, finalised after survey in August 1875.

To the west of Otamarakau, the activities of Davis and Mitchell were creating serious problems and raising dangerously tensions among the Arawa tribes. The situation threatened to escalate into war. Sir Donald McLean, then Native Minister, held 3 weeks of meetings with the rival Arawa groups at Maketu in March 1875. He "ruled" that the Ngati Whakaue "toa" group had paramount claims, but only within certain limits, in an area west of a line from W aihi on the coast and inland along the Waikokopu .stream to Pakotore on the Kaituna river. Gilbert Mair reported that the tribes were also ) told that should the court proceed on the basis of its 1870 decisions, and recognise the ancestral claimants alone, the government would make recompense later to those with claims by recent conquest. 34

These efforts seem to have settled the Arawa infighting for a brief interlude only, and as will be seen, these problems were to arise again and become the major dynamic in the hearing of the Otamarakau block.

In the south, Mitchell and Davis were completing a lease in 1875 over the large Kaingaroa No 1 block. This meant that, in conjunction with the discussions over the Pokohu block, interests along the a significant part of the western side of the confiscation boundary were the subject of negotiations for alienation.

(J In 1876 tensions with Arawa had risen again to the point where land purchase operations by Mitchell and Dav~s were suspended. Davis, who had a particular antagonism towards Ngati Whakaue,· was released from service. He went back to acting as a private agent for Pakeha purchasers, and made an appearance in later dealings with Otamarakau.35

Land court sittings were suspended because of the threatened hostilities. In February 1877 the government allowed the land court to resume sittings.36

33 See Alexander Ngati Makino Lands p63ff, Wai 46 G4

34 The full record of the meetings is in MA 1 - 13118, Wai 46 11 (b)

35 for a discussion of his views of Ngati Whakaue see NZDB vol 1 p 100

36 NZ Gazette 1877 p187, Wai 46 G4(d) U6 181 By then the Crown presumably thought it had adjusted matters sufficiently to make such sittings viable. In addition to the slowing down of purchase operations, the government had also in 1877 adjusted the land purchasing process which to then had proceeded on a commission basis for agents, pushing them to make as many purchases as possible. The Government Native Land Purchases Act 1877 ended the mode of purchasing lands on commission. However to protect existing and future negotiations it provided for notification of Crown negotiations in the Gazette after which it was not lawful for any person to purchase any interest from Maori. 37

It should be remembered then that the early Otamarakau discussions had taken place in an atmosphere of heady speculative activity by purchase agents, looking to rec,eive a commission for completing purchases. (

The Crown did not abandon these efforts. Rather in March 1878 the government used this legislation to advertise its prior interests in the Waitahanui portion of Otamarakau.38

The second set of hearings The Court took up the case of the Otamarakau block again in Maketu on 5 June 1878. Although a major amendment of native land legislation had occurred in 1873 with the introduction of the Native Lands Act 1873, the court seems to have been operating under section 4 of that Act which provided that proceedings commenced and in progress under 1865 and 1867 native lands legislation "may be continued and perfected under this Act, so far as this Act extends and the circumstances of each case are compatible ( with the objects and provisions of this Act."

The judge was Theopholis Heale, a former inspector of surveys who had approved survey costs for the block 3 years earlier. It is not surprising then that he reopened the case optimistic that it had been "almost concluded" by the former court.39

The optimism was misplaced. The minutes record that when Rota Rangihoro, the main Ngati Makino-Waitaha claimant, attempted to take the stand there

37 ss2-3

38 NZ Gazette 1878 p297, Wai 46 G4(d) U7

39 2 Maketu MB 262, Wai 46 12(a) 182 was a physical struggle to prevent him giving evidence and the court had to adjourn for several hours.4o It was apparent that much was happening outside the court. The sitting rapidly became a complex affair of claim and counterclaim filling many pages of the minute books with evidence.

After the adjournment Rota Rangihoro spoke first. He reiterated the Ngati Makino claim through Waitaha a Hei, and said that Ngati Makino had had a permanent settlement at Otamarakau and had cultivated in its vicinity since Christianity came to the region. Rota also made the odd statement that "Arawa said that W aihi should be the boundary of the confiscated. We only admit Waitaha on the flax swamp. ,,41

Mita Takoha Rangituakoha appeared next. He wanted to see Rota's list of owners before objecting to the claim put forward. There is an implication here that Mita, supporting the Ngati Whakahemo claim at Pukehina, would not have objected had his name or names connected to him, and satisfying his claims, been included in Rota's list. This sort of proceeding was quite common at the commencement of land court hearings when the positions parties would take became clear.

The next speaker was Henare Te Pukuatua of Ngati Whakaue, living at Maketu. Ngati Whakaue, he claimed, had taken the land by force from Rangihouhiri who had formerly had the mana over it. Rangihouhiri had earlier displaced Waitaha. Accordingly, Rota Rangihoro and his supporters presently held rights in the land not as descendants of Waitaha a Hei, but under the conquest by the Arawa tribes.42

( ) Several other claims were then noted. Pumipi Waraki of Ngati Pikiao claimed part of the land (not described) through an an~estor, Rurapoto.43 presumably his claim was catered for under the broad Ngati Pikiao-Ngati Makino claim, because nothing more is recorded.

Timi Waata Pakihi, Te Manuhoaka and Te Matangi then appeared and claimed from Pukehina to Waihi through "Maruahaereawhe" and his

40 Ibid p262

41 Ibid p262

42 Ibid p263

43 Ibid p264 183 descendants; Timi said he was part Ngati Awa and part Arawa.44

Tamati Te Wharau claimed under the tupuna Rakeimokorau.45 His claim was at Punamate, a strip of land on the east side of the Pongakawa river. 46

Reone Ngatote had an adjoining claim at land called Ngatuara.47

These last two were to cross examine the Ngati Whakaue claimants, but' otherwise made no appearance. Presumably their interests were satisfied elsewhere.

The court adjourned. ( When the court opened again on 5 May 1878 at Maketu Rota Rangihoro handed the conduct of his case over to his son Ereatara Rota. He also added 3 names to the 7 already listed for the block.48 This indicates the 'ten owner' thinking was prevalent.

Henare Te Pukuatua then developed the Ngati Whakaue claim. He said that he would not be calling witness, "as N'Whakaue refuse to give evidence." He was however prepared to give evidence himself and the court consented to this. This suggests Ngati Whakaue were attempting to keep aloof from the court, in case they wished later to repudiate its findings. They saw however, that some presence was necessary.

Henare stated the Ngati Whakaue case very briefly, saying they were the first to come to Maketu and fought 'N'hei" there.49 ( He was immediately cross examined by the other claimants. Ereatara was first. Answering his questions Henare said that Ngati Whakaue had come to Maketu in 1828. Previously Rangihouhiri had held the mana over the area. Ngati Whaka~e had conquered "N'hei" with fighting at Maketu "between the

44 Ibid p264

45 . Ibid p264

46 Ibid p268

47 Ibid p264 and 269

48 Ibid p265

49 Ibid p265. This Ngati Hei were a group inland of Te Tumu see p270 184 pa and Te Tumu". The conquest gave them mana as far as Otamarakau. They were assisted in this by "Ngaitunu" or Ngati Pukeko - who now lived at Whakatane. In this statement Henare may have been referring to the successful defence by Tautari against Ngaiterangi forces encouraged by the vision of Tamaiwahia, which he noted later in his evidence. 50 Tautari as linked to Arawa through the ancestor Rangimamao.

Henare Te Pukuatua confirmed that other groups did live on the block. After the Rangihouhiri defeat Ngati Pikiao and Ngati Makino ('a hapu of Te Arawa') lived at Waitahanui. Ngati Pikiao were living at Rotoehu before the conquest, then extended their occupation to Otamarakau afterwards. Te Pukuatua said, "I admit this is a n'makino claim. [However] I assert a right to Pongakawa, the River, as an Arawa". He noted that prior to the conquest, from otamarakau to Whakatane ngati Rangihouhiri tribes had held the land.51

Te Pukuatua was then cross examined by Timi Waata Pakihi, of Whakahemo, about how he viewed the Whakahemo claim to a part of the block. Te Pukuatua said that the Whakahemo .occupation in the block was by licence from Ngati Whakaue, "You [Timi] would have been driven out by Te Arawa if you had asserted your right under Rangihouhiri". Te Pukuatua noted also that he was related to Timi and that Whakahemo had a clear presence on the block, occupying at Pukehina, -and Timi was the ferry master at Waihi. 52 He reiterated however, that this was all at Ngati Whakaue behest, under the "toa" which had defeated Rangihouhiri. Although Ngati Whakaue had not cultivated in the region since the conquest, and had not objected to Whakahemo leasing land to Smith at Pukehina?, running the ferry at Waihi or selling flax from the area in recent years, if these things had been done by Ngati Whakahemo 'as Rangihouhiri', then Ngati Whakaue would have objected. 53

After stating that Te Rangihouhiri's mana had extended "nearly up to

50 . "The Arawa lived on all the lakes during the N'Rangihouhiri occupation of the land outside. A war party of N'Rangihouhiri went up to lake Rotoehu but were defeated by Ngati Pikiao there. N'Pikiao & N'Pukeko defeated them." 2 Maketu MB 268-269

51 Ibid p266

52 Ibid p267

53 Ibid p268 185 Rotoehu" ,54 Te Pukuatua summarised:

I claim this land through N'whakaue only. N'makino occupied it from the conquest till now. We lived at Pongakawa when Pongakawa was occupied. I say that we have been living at Maketu. No one lived on the Pongakawa but N'makino lived at Otamarakau and many other places in its vicinity. It is a hapu of N'pikiao. We claim on account of our joint conquest of N'rangihouhiri. I say that every Arawa has the right to every piece of land recovered from N'rangihouhiri. The first occupation was the conquest and then the hapu's subdivided. I have admitted N'Makino to Otamarakau, but we occupied at Pongakawa. Rota and his people are n'makino in reality but they call themselves Waitaha. Every hapu which took up land is the rightful owner of it - ( those who took up none are not entitled to any now. The reason why we have not occupied is because the land is distant and the land here is better and nearer. If Timi Waata asserts his claim through our conquest, I admit him at Pukehina. He is not a N'Whakaue but is partly an Arawa. but those who occupied under the "mana' of the Arawa conquest are the rightful owners of the land. 55

Ngati Whakaue had occupied the Pongakawa river banks only for "about 2

or 3 months" and did not return there after this II except to get flax from Mr Tapsell. [But] We consider it-pennanent occupation of -the flax swamp. 1156

Aporo Apiata appeared and said he had a claim through an ancestor Te Kehu to land between Kohangakaeaea and Tikitiki.57

The next speaker, Potene Haukiwaho of Ngati Whakaue, substantially ( supported Te Pukuatua's statements.58 He seems to have appeared as a separate claimant, although later in the proceedings was to be a witness for Pukuatua.

Potene made some comments with regard to claimants to the block with links

54 Ibid p269

55 2 Maketu MB 271, Wai 46 12(a)

56 Ibid p272

. 57 Ibid p272. This claim does not seem to have been advanced any further

58 Ibid p272-274 186 to Ngati Awa. Ngati Pukenga he said were not of Te Arawa, but lived with Ngati Whakaue along the banks of the Pongakawa River during the period when flax was gathered and sold to Tapsell. 59 The Ngati Whakahemo people 'living at Maketu' were descended from Ngati Rangihouhiri and Te Arawa. 60 He confirmed that Ngati Whakahemo and Ngati Makino had had a dispute about land at Matatoki. Ngati Makino had "previously occupied at Te Iwiroa + Otamarakau". Ngati Makino had however left Ngati Whakahemo in possession of the disputed land. 61

Haukiwaho made the further comment that "It is since the days of money and of the law that I have been unable to work there [Pongakawa?] as we are all struggling for land, finding it worth something", hinting at the disputes the land purchasing process was raising. 62 Like Te Pukuatua, Haukiwaho ) did not dispute Ngati Makino control at Otamarakau itself, saying that the Ngati Makino presence at Otamarakau gave the Arawa a claim to mana there.63

Henare Te Pukuatua and some others present then asked if there might be an adjournment "as they were anxious to meet parties who have arrived from Rotorua through whom trouble may arise."

The Court then adjourned the case for a month, reopening it on the 10 June 1878. The morning session had to be abandoned early. Henare Te Pukuatua was having trouble producing Potene as a witness for his case and resorted too making a "long statement" that the Court "cannot go on after the Otamarakau case by reason of the consumption of food." Other claimants however said this comment was only for the purpose of obstruction and () wished to go on.64

Potene Haukiwaho arrived and the case continued. Most of his evidence was about the Ngati Whakaue claim to primacy in the block because of the recent conquests. S{>eaking of the rights of groups other than Arawa in the block,

59 Ibid p274

60 2 Maketu MB 274

61 Ibid p275

62 Ibid p276

63 Ibid p277

64 2 Maketu MB 281, Wai 46 12(a) 187 he noted that prior to the Arawa reconquest, Rangihouhiri' s boundary had been "the edge of the forest. I know that their "mana" was over all this land. ,,65 And later, speaking of the Rotoehu area he said that "All the part outside the bush belonged to N'rangihouhiri" .66 He also said that Ngati Pukeko had lived at Otamarakau after the defeat of Rangihouhiri, and that Te Manuhoaka, the main Ngati Pukeko witness, had lived there for 4 years in the time before Hunga's death (1835). He noted too, warfare between Ngati Pukeko and Ngati Awa at Te Awaateatua, with Ngati Pukeko being the victors. 67

Potene asserted that Ngati Whakaue controlled at Punamate (said to be a canoe track) and Ngataura (a cultivation) - ie the places claimed l:5y Tamati Te Wharau and Reone Ngatote.68 (

Pumupi Waraki, resident at Rotoiti, then appeared for the Ngati Pikiao claimants. He discounted the Ngati Whakaue claim at Pongakawa, saying, "N'whakaue simply used Pongakawa for dragging canoes they had no title there" .69 He asserted the ancestral rights of Ngati Pikiao in the block around Pongakawa prior to the recent conquest. He did this by claiming through the ancestor Kurapoto, "whose descendants were at Pongakawa in the days of N 'Rangihouhiri. "70

He downplayed the strength of the Rangihouhiri hold on the region even prior to the conquest by Te Arawa, saying that Ngati Rangihouhiri did not assert title over this block but simply 'walked along the beach' .71 He was also careful to limit the Rangihouhiri occupation to Maketu itself. Ngati Rangihouhiri, he said, "were at Maketu at that time [ie prior to Te Arawa

conquest] not down the coast".72 Later he expanded on this: ( I

65 Ibid p28~

66 Ibidp283

67 Ibid p284

68 - Ibid p282-283

69 Ibid p289

70 Ibid p284

71 Ibid p285

72 Ibid p286 188 I have heard of N' Awa. They live at Whakatane + Tauranga. They belong to N'ranghouhiri. Houhiri lived at Maketu. Te Rangihouhiri came from the South & stopped there. He came up quietly till he reached Maketu and then quarrelled with the Arawa. I never heard of his being fought with at Otamarakau. The fight there was between Arawa & N'irawharo. The N'irawharo belong to N'rangihouhiri. They were living with N'pikiao at Otamarakau & Rotoehu. All the Otamarakau people were at Rotoehu & Rotoiti when Mr Tapsell arrived. "73

He also added support to the Ngati Pikiao claim at Otamarakau, "The. Waitaha were the people living at Otamarakau according to what we heard. I don't know what pas they lived in. I only know that they had the land & pas on it. N'Makino living at Otamarakau are the descendants of Waitaha" 74

He fully admitted the presence and claim of Ngati Whakahemo at Pukehina, but asserted that they were 'partly Ngati Pikiao' .75

Timi Waata Pakihi, a resident of Maketu, then appeared briefly to give the Ngati Whakahemo case. He was claiming only in the Pukehina area of the block. The boundary between his claim and Ngati Makino being Waiheke then inland and across to the Pongakawa river. 76

The Court now had before it: - a Ngati Whakaue claim to lands on the Pongakawa River by right of conquest - a Ngati Pikiao/Ngati Makino claim over most or all of the block by (,) ancestral right - a Ngati Whakahemo claim to land at Pukehina - acknowledgement of Ngati Pukeko rights at Otamarakau. Ngati Pukeko claimants had been involved in cross examination, but had not yet presented their case.

Judge Heale then concluded:

73 Ibid p289

74 Ibid p287

75 Ibid p285 & 290

76 Ibid p290 189 On careful enquiry it turned out that all the opponents except Ngatiwhakaue and Te Manohoaka on behalf of Ngatipukeko claim under Waitaha. The Court therefore determined that as all these ..... claimants assert different boundaries it is impossible to deal with them until the large claim is settled. They were therefore informed that they would all have to go on to make good their claim against 'Whakaue & 'Pukeko.77

Heale had isolated what he considered the major issues, the Ngati Whakaue assertion that rights by recent conquest should take precedence over ancestral claims in the block, and the Ngati Pukeko claims which had a similar basis (but as will be seen, relied also on ancestral claims}.?? ( Against this were Ngati Makino - Ngati Pikiao claims and the claim by Ngati Whakahemo. Note that Ngati Whakahemo were basing their claim also on a Waitaha ancestor. They had other connections but were obviously choosing to run both ancestors for the case. Their case was never in any event in real danger of being lost. They had not been opposed in the 1871 hearing and nor were they here.

The only group unequivocally identifying as Ngati Awa at this time were Ngati Pukeko. The ngati Whakaue witnesses had given support to the Ngati Pukeko claim for interests in the block. Pukuatua, the Ngati Whakaue claimant, had said that Ngati Pukeko had fought with Arawa to defeat Ngaiterangi when they attacked the lakes areas shortly after Te Tumu. Potene Haukiwaho, also of Ngati Whakaue, had said that Ngati Pukeko had lived at Otamarakau after the defeat of Rangihouhiri. ( Were these statements made to confound the Ngati makino claim? And what had happened to the Ngati Kuhu claim? Had Davis perhaps dealt with their interest since their claim had been raised at the first hearings for the block in 1871? Or was it covered by the Ngati Pukeko claim?

The Waitaha ancestral case The Ngati Pikiao-Ngati Makino 'Waitaha' case was presented first. Rirituku Te p'uehu, the son of Te Puehu, made the major presentation. He was a resident of Matata and said he was of Ngati Makino. His ancestor, Te Ra of Waitaha had lived at Otamarakau. Rangihouhiri passed through there but did not subject them to conquest - they only conquered at Maketu, then went on

77 291 190 to Tauranga.78 Rangihouhiri had mana "over all Maketu", but:

Waitaha were then a very powerful tribe and had "mana" over all this land and thence to Matata. It was only through N'puhi that they left their homes & left for the bush .... There was no fighting with N'rangihouhiri on this land. There was only fights between ourselves & N'awa. My great grandfather was Awatope of N' Awa. It was the female branch Rangihouhiri joined with N'awa but left them on coming to Te Awaateatua because they were always fighting together." 79

. In answer to the Ngati Whakaue claim, he said that 'The only occupation by N'whakaue was on the banks of Pongakawa River for flax scraping

purposes II .80

He was careful to downplay Ngati Awa involvement in the block. In the fight with "Tuawahine of Tauranga" after Te Tumu, he asserted that only Ngati Pikiao had been involved, contrary to the Ngati Whakaue statements.81

He described Puehu visiting groups to invite them to come to Maketu and the refusal of many. He described the creation at Maketu of a fence with gateways, each one representing one of the Arawa groups there "There was no interference with each other's property. 1182

Puehu tried hard to assert rights for Ngati Pikiao at Maketu as early as Tapsell's arrival. Prior to Te Tumu, Puehu admitted some mana for Ngatirangihouhiri over Maketu, but said that Ngati Pukeko and Ngati Whakahinga opposed their presence there.83 Then by the time Tapsell arrived Ngati Whakahinga were "exterminated by Waitaha and Tapuika", or

78 Ibid p292

79 ' Ibid p295

80 Ibid p296

81 Ibid p293

82 Ibid p294

83 Ibid p295 191 had been "exterminated or had merged into other hapus" . 84 This allowed the parents of Puehu to live at Maketu, while the mana of Rangihouhiri prevented Waitaha or Tapuika resettling there - a convenient balancing of forces leaving Puehu's people in occupation.

He then described the two Waitaha's. While the two Waitaha's had intermarried and became one, it was Waitaha a Hei which claimed the block and Puehu was resistant to a separate Waitaha Turauta right anywhere in the block.85

Of the Ngati Awa claims in the block he said:

N'awa are also of N'rangihouhiri & live between Whakatane + Te ( Awaateatua. N'Kahurere, descended from another N'Rangihouhiri and lived at Otamarakau. He was a true N'awa. It was through us that they lived there, we invited them to do so, to save them from being eaten by N'rangihouhiri. This was in the days of Hotukura, who invited them. We have gone into the title to this land with Hamiora Rongotangiawa of N'Kahurere & have defeated him, at Whakatane Compensation Court. 86

In reply to questions from Henare Te Pukuatua, Te Puehu did not dispute Ngati Whakaue use of landsat Pongakawa, but had Ngati Whakaue asserted ownership to land there, Ngati Makino would have resisted that claim by force. 87 Of the Ngati Whakahemo claim he said:

N'Whakahemo living at Pukehina assert their claim through Maruahaira, who came from Torere and 'Rangihouhiri. There was no ( trouble between them and Waitaha, and they have a joint claim with Waitaha on the land. In the time of Ikapuka they had a dispute about land, through Ikapuka of N' Awa's coming up, and Ikapuka's descendants are now with those of Maruahaira's.88

84 Ibid p296

85 Ibid p296

86 Ibid p297

87 Ibid p298

88 Ibid p299 192 Accordingly, Te Puehu did not object to Mita Tahoka's claim through Maruahaira but only so far as that claim was based on Waitaha ancestry. By way of example, he noted that the Matatoki dispute was a case of Ngati Whakahemo claiming via Maruahaira, and that Ngati Makino thought it could be supported only on the basis of a link to Waitaha. 89

In response to questions about Ngati Pukeko claims, Te Puehu argued that NgatiPukeko were guests of Ngati Makino at Otamarakau, where they sheltered from Rangihouhiri who they were at enmity with.9o He commented:

When N'Pukeko + Maruahaira came back [from the Waikato], they ) stopped at Rotoiti. Tautari had no settled "kainga" in the Arawa and Waitaha. The "waiata" about him, was with reference to his wandering about. He had no land. "91

The Ngati Pukeko case Te Manuahoaka was the chief witness for Ngati Pukeko. He resided at Whakatane. Ngati Pukeko he argued, were not at Otamarakau by licence of Ngati Makino, but by right of conquest:

a lot of my people N'Rangihouhiri were on this land. Maruahaira was a rel(:ltion of Rangihouhiri. They lived from Otamarakau to Waihi. We found Waitaha on this land, fought them, defeated them + drove them up to Rotoehu. They came out again about three generations ago when Maketu was reoccupied. Before that they were inland at Taupo + other lakes. We cleared them out from Rotoehu. Maruahaira was the first conqueror. The N'Rangihouhiri afterwards. They cleared the country and went to Tauranga. Hori Tupaea represents them. I am a N'awa + so is Mita Takoha.92

Commenting. later on Maruahaira's rights, he said that:

Maruahaira first occupied Otamarakau. Tatahau chief of Waitaha, was at Maketu Waihi being the boundary. N 'Pukeko sprung from Ikapuku.

89 Ibid p299

90 Ibid p300

91 Ibid p301

92 Ibid p302 193 Pukeko was a "teina" of his. 93

He admitted that Ngati Pukeko had vacated Motiti, Pukehina, Otamarakau, and Maketu and had gone to Whakatane to avoid Hongi Hika's raids, and had suffered defeat at the hands of Nga Puhi after retreating even further to Ruatahuna in Urewera country.94 He acknowledged that there had been no occupation since the Nga Puhi incursions:

We never returned to this land. This country was left unoccupied but N'terangi was at Maketu. Waitaha never returned either. N'Whakahemo are related to us. N'Whakahemo were with us at Whakatane. They have become very few in number, hence this land has been taken by N'Makino, and I myself am only wandering ( about. "95

He was then cross examined by the Ngati Makino party, who sought to show that Maruahaira' s presence in the Otamarakau block was by alliance rather than conquest. Te Manuahoaka rejected these arguments, saying that he knew nothing of a story that a party of Waitaha visited Maruahaira at Torere prior to his moving to Pukehina, nor that Maruahaira had a Waitaha wife from which Whakahemo were descended, nor that a gift was made to him from Waitaha. Rather, Te Manuahoaka argued that Pukehina was the pa where Maruahaira had fought Waitaha for control of that area of the coast.96

When cross-examined by Henare Pukuatua, undoubtedly about the impact of Ngati Whakaue "toa" claims on this Ngati Pukeko claim, Te Manuahoaka replied: (

I have two claims on it, as an Arawa + as a N'Rangihouhiri. The "toa" has the whole "mana" on it now. Tautari and others fought under tpe ancestral "mana", and he had also a "toa mana". 97

93 .Ibid p303

94 Ibid p302

95 Ibid p303

96 Ibid p304

97 Ibid p304 194 Te Manuahoaka was arguing that Ngati Pukeko could claim not only as allies of Ngati Whakaue in the reconquest of the Maketu and related lands from Ngaiterangi, but also as conquerors of Waitaha. Tautari was related to Ngati Whakaue. 98

He also noted fights between Ngati Awa and Ngati whakaue on the block, including an attack by Ngati Whakaue on a group of Ngati Awa at Otamarakau pa. 99

This argument cut across the Waitaha v Arawa focus of the hearing.

The next witness for the Ngati Pukeko case, Romana Tautari, expanded on these points. Ngati Pukeko claimed the land, he said, "under the "toa" of Te Arawa and also through the ancestor Maruahaira, who belonged to Kahuawau[?] of Te Arawa. Maruahaira was neither Rangihouhiri nor N' Awa, and came in the Arawa canoe. Maruahaira defeated Waitaha, but was then defeated in turn by Rangihouhiri. "We were driven out by Rangihouhiri". The survivors had gone to the lakes with Te Arawa and did not return until the general Arawa reoccupation after 1836.100

Whereas Ngati Pikiao-Ngati Makino and their supporters saw Maruahaira as part of Rangihouhiri, but downplayed his claims along the coast by stressing that he had not attacked but only made alliances with Waitaha elements, Ngati Pukeko argued that Maruahaira had in fact conquered Waitaha, but was distinct from Rangihouhiri in Whakatane, and was allied with the broader Arawa confederation.

The next witness, Moihi Te Rangikotua, a Ngati Pukeko residing at Whakatane, complicated matters even further. Maruahaira "who is a Ngati Awa" conquered W aitaha and took land from them. Rangihouhiri had then arrived, also of Ngati Awa, and had 'joined' with Maruahaira. Ngati Whakahinga .possessed Maketu when Rangihouhiri left there, and successfully repulsed a Waitaha attempt to retake it.

This evidence confused the argument that Maruahaira was distinct from Rangihouhiri. But Moihi Te Rangikotua was clear that'Ngati Pukeko were

98 Ibid p304

99 Ibid p304-305

100 Ibid p305 195 connected with Arawa by intermarriage with an Arawa woman, Rangimamao. "At this time N'Pukeko separated from N'Awa + became a branch of Te Arawa. N'Pukenga were N' Awa and became connected in the same way with Te Arawa". Consequently, the mana over the land now belonged to Te Arawa, because of Tautari. 101 .

Moihi Te Rangikotua was the final witness for the Ngati Pukeko case.

Rota Rangihoro spoke next, replying to each of the counter claimants cases put forward, and developing the ngati Pikiao-Makino claim. He said that Maruahaira's Waitaha born wife, Uekohao, was the reason Maruahaira's people were able to settle at Pukehina, under Waitaha licence. He also said that Ngati Whakahemo, also called Ngati Kaimimi, had left Pukehina after ( being defeated by Ngati Makino .102

On opening next day, the minutes record a brief announcement that:

After some objections had been taken on account of some of the evidence bearing on the N'pukeko case. The Court stated: That N'pukeko claimants having admitted that they abandoned the land at the time of the Ngapuhi invasions and that they have never returned to it, they can have no claim to it.103

Unfortunately the objections are not recorded. Significantly this was not an argument which the opponents of Ngati Pukeko had previously made. The arguments had centred on which ancestral links Ngati Pukeko could draw on to prove their claim. This appears then to have been a simple application of the 1840 rule, either by the court of its own suggestion, or one of the groups ( had raised it as a late technical point. It was a fairly weak ground on which to rule out the claim. Other groups had moved since the Nga Puhi incursions. It was not even a very accurate application of that rule. The Nga Puhi invasioQs were admitted by all not to be valid conquests since they had n'Ot been f'Oll'Owed up by 'Occupati'On. 104 The rule talked ab'Out groups being displaced by another group which c'Onquered them. This had n'Ot happened here.

101 Ibid p306-307

102 Ibid p308

103 Ibid p309

104 See quote above 196 This finding also ignored Potene Haukiwaho's evidence that Ngati Pukeko had lived at Otamarakau some time after the invasions by Nga Puhi. Perhaps the judge considered that that evidence, from a Ngati whakaue witness, was unreliable as intended to discredit Ngati Makino claims.

Curiously though, Ngati Pukeko did not challenge this ruling. Was this because their interests were otherwise taken into account? Checking through the list of names put into these blocks, none of the witnesses for Ngati Pukeko appear.

It only remained then for Ngati Makino, Ngati Whakaue and Ngati Whakahemo to sort out their rights.

Rota Rangihoro continued the case for Ngati Makino, attacking the Whakahemo claim by arguing that while Maruahaira was of Ngati Awa, his Waitaha wife was a superior in rank to him. He did admit that Ngati Pukenga were originally ngati A wa, but that they had "merged into Te Arawa" over time. 105

When cross examined by Henare Pukuatua about the Ngati Whakaue claims, he denied that Ngati Whakaue had been first to occupy Maketu after the battle of Te Tumu in 1836. Ngati Pikiao had been the first to reoccupy he claimed. He also commented that Ngati Kahurere had been at Otamarakau, moving there after a dispute with Ngati Awa. 106

Matene Te Huaki was the next and final witness. he was a Ngati Pikiao chief. Why he spoke at this late stage is unclear. He alleged rights over land "at Ohinepuhara and Pararaki." He proceeded to give the background of early conflicts in the Maketu and associated areas.

His evidence was then held over till the following week, Tuesday 18 June, because the Native Minister was visiting Tauranga that weekend and many parties before the court wanted to meet with him. 107

On reopening, Te Huaki said that Ngati Whakahinga had occupied Maketu after N gaiterangi had abandoned it to move to Tauranga. One of their chiefs

105 Ibid p31 0

106 Ibid p312

107 Ibid p313 197 had taken up with a Ngaoho woman, Ngaoho being the original name of Te Arawa. Whakahinga had been attacked several times, and ultimately were exterminated, or merged into other tribes after being defeated by Tapuika in alliance with groups from the Thames. 108

He admitted that there had been some Ngati A wa or Rangihouhiri living at Otamarakau at an early date. Just before Nga Puhi had attacked the coast, Ngati Kahurere were living at Otamarakau, although 'through a woman of Waitaha'. That hapu had later gone to Rotoehu for refuge, one of their people had committed adultery with a Ngati Pikiao woman, there was a fight, and the hapu had fled to Tauranga. 109 Te Puehu was "one of our chiefs & had mana over N -pikiao & other hapus of Te Arawa. He was partly a N-rangihouhiri & thought he invited the N-Kahurehu to Rotoehu; his ( mother was a N-awa. "110 This Ngati Awa link of Puehu shouldbe noted. It became important in later discussions about the Tahunaroa portion of the block.

He also argued that Ngati Awa may have been the principal tribe of Rangihouhiri, but they had separate mana. He acknowledged that Maruahaira and his descendants retained mana over Pukehina, but denied that Maruahaira was of Arawa, or that he had any mana over Otamarakau. 111

The following day judgment for Otamarakau was given by Reale. 112

On the basis of the evidence led by the Ngati Makino and Ngati Whakaue groups, he summarised with some accuracy the cases which had been put. The land had been occupied "from ancient times" by Waitaha, and they had ( become "connected by intermarriage with different parties of Ngatiawa, who, . under Maruahaira, Rangihouhiri, and probably others, migrated from the East." Waitaha also kept a close connection with the Arawa tribes, through Ngati Pikiao, who "lived immediately inland at Rotoehu and Rotorua."

Reale went on to hold that the whole of the Arawa tribes had taken part in

108 'Ibid pp 316 & 318

109 Ibid p319

110 Ibid p323

111 Ibid p325

112 2 Maketu MB 324, Wai 46 12(a) 198 the defeat of the descendants of Rangihouhiri at Te Tumu in 1836. However, all had agreed, including Ngati Whakaue, that "the Waitaha hapus, and they only" should return to Otamarakau. Consequently, these rights, so recently acknowledged, should be upheld.

Heale's judgment appears to have neatly dealt with the Waitaha v Arawa dispute, upholding the recent conquest of the area by the combined Arawa tribes, and using that as the reason to confirm the Waitaha related groups in their lands at Otamarakau.

The decision is less satisfactory, however, when viewed from the perspective of Ngati Pukeko, whose claims had been ruled out at an earlier stage. Heale admitted the migration of Rangihouhiri from the east, and referred vaguely ) to "intermarriage", but made no ruling on the many contrary statements about the status of Rangihouhiri vis a vis Arawa, and whether they had in fact conquered rather than married into the Waitaha hapus on the coast, and the implications of those conquests or alliances. It seems that his earlier ruling on the Ngati Pukeko claims enabled him to avoid these matters.

As has been shown, it is also possible to question his simple view that, after the Te Tumu battle, "a division was made of the lands which had lain long without inhabitants, '" and the hapus generally re-occupied the places where their-ancestors lived." Healewasteflecting on evidence such as Puehu's assertions that a 'fence' had been made at Maketu with gateways for each group - whether this was real or not - certainly a device to indicate a dividing up of land - although only at Maketu, not further east. As other accounts show, the re-occupation at Maketu was a bold action of one group ( ) in the face of threats from Waharoa, and only reluctantly supported by the remainder of Te Arawa. Tapuika, 'ancestral" claimants to lands at Maketu, were the most timid about returning there, and Mair considered that their rights had been largely ignored by other Arawa hapu anyway, contrary to Heale's view.

When we look at the evidence brought forward for those with rights at Otamarakau itself, Heale's judgment seems thin there also. While the evidence certainly existed for Ngati Makino occupation at Otamarakau, 113 even the Ngati Makino claimants had to admit the longevity of a Ngati Awa related interest there.

113 Ibid pp271, 287 & 343 199 The Ngati Makino and Ngati Pikiao witnesses admitted that the Rangihouhiri-Ngati Awa link with Otamarakau was of a considerable lineage. Pumupi Waraki of Ngati Pikiao said that "The N'irawharo belong to N'rangihouhiri. They were living with N'pikiao at Otamarakau & Rotoehu. All the Otamarakau people were at Rotoehu & Rotoiti when Mr Tapsell arrived. "114 He thought that Arawa and Irawharo had fought each other in the past. Rirituku Te Puehu said:

"N'Kahurere, descended from another N'Rangihouhiri and lived at Otamarakau. He was a true N'awa. It was through us that they lived there, we invited them to do so, to save them from being eaten by N'rangihouhiri. This was in the days of Hotukura, who invited them .. We have gone into the title to this land with Hamiora Rongotangiawa of N'Kahurere & have defeated him, at Whakatane Compensation (, Court." 115

Matene Te Huaki said that just before Nga Puhi arrived, Ngati Kahurere were living at Otamarakau 'through a woman of Waitaha". They went to Rotoehu as refuge, one of their people committed adultery with a Ngati Pikiao woman, forcing Ngati Kahurere to move to Tauranga.1l6 He also confirmed Rirituku's claim by adding that Te Puehu was "one of our chiefs & had mana over N-pikiao & other hapus of Te Arawa. He was partly a N­ rangihouhiri & thought he invited the N-Kahurehu to Rotoehu; his mother was a N-awa. "117

Ngati Pukeko for their part claimed that they had conquered the place under Maruahaira, or at least that he had mana over this land, and that they had vacated it at the coming of Nga Puhi along with everyone else. The ( occupation by Ngati Makino they viewed as opportunistic and recent.

For the most part, the Otamarakau judgment upheld ancient rights to the land. Ngati Pukeko rights however, although of considerable lineage, and admitted by Arawa groups, failed not because their rights had been properly conquered and displaced according to tikanga, but because they, like many other groups, had temporarily abandoned the coastal lands.

114 Ibid p289

115 Ibid p297

116 Ibid p319

117 Ibid p323 200 Reale's concluding comment in the judgment was that:

it only remains to ascertain whether names can be selected from the different hapus descended from Waitaha to be declared owners of the whole block, or whether it will be necessary for the Court to investigate the several claims of the different hapus to particular pieces within it. 118

In the event, Reale was only required to hear in detail the claims to the Pukehina part of the block.

But the Ngati Pukeko claims were probably the least of Judge Reale's concerns when he made this judgment. Writing several years after the event, Gilbert Mair described the activity surrounding this Land Court sitting:

In 1878 the Court sat at Maketu but desperate efforts were made by Ngatiwhakaue and other hapus, to prevent the lands claimed by Ngatipikiao, and situated outside the limits of the toa claims, from passing the Court. A number of Ngatiwhakaue set up cases in Court, notably Renare Te Pukuatua, basing their rights principally on account of flax cutting under Tapsell in 1831-1835. Renare's own brother Petara assisted by other natives, by threats and violence prevented these claims from being prosecuted, probably because they knew them to be unreliable and shadowy.

Mr. Sheehan, the Native Minister appeared at this juncture and on being informed by these natives, that Sir Donald McLean had promised them a large sum for their "toa", stated that the promise should be carried out. ... Large quantities of food and clothing were served out to the Ngatiwhakaue (who had taken up arms) at Govt. expense, and the Court proceeded with its work. Pukehina, Pukeroa, Kaikokopu Otamarakau Tahunaroa and afterwards TePuke and RangiufU, blocks, outside the Toa boundaries, passed the Court and were awarded to the ancestral claimants, Whakahemo, Pikiao, Tapuika and Waitaha. 1l9

The atmosphere throughout the court sitting must therefore have been extremely tense. The minutes show that the Court adjourned during Matene

118 Ibid p333

119 MA 13/18 Wai 4611(b):101-102 201 Te Huaki's evidence, shortly before judgment was given, to allow claimants to meet the Native Minister. 120

An account from Retireti Tapsell and Matenga Waharoa in 1883 suggests just how serious matters had become:

At the sitting of that Court [1878] a great disturbance arose among the tribes ... viz Ngatiwhakaue and Ngatiuenukukopako. They were incensed against Ngatipikiao, Ngatipukenga and Ngatirangitihi, the applicants in the three blocks under investigation [Waikokopu, Waitahanui and Te Puke]

Both parties resorted to firearms, and the last mentioned hapus were ( beseiged in a pah and fired upon by 800 of the Ngatiwhakaue and Ngatiuenukukopako. 121

They went on to say the court was actually stopped by these events when the Native Minister Sheehan arrived and promised government payments for the conquest claims of Whakaue as long as they left the court to rule on the ancestral claims.

The court did go on to hear claims to the Pukehina part of the block, but as these reports suggest, as an "ancestral" claim based on the successfully argued claims of the Waitaha groups.

As will be seen, analysis of the arguments on that block show however that Heale's determination for the overall block contained deficiences, most notably his failure to address the arguments about the status of Rangihouhiri ( and Ngati Awa occupations after their incursions along the coast prior to the Arawa reconquest in 1836.

The Pukehina judgment Because the various "Waitaha" groups the court had just ruled on could not agree to names for each of the "surveyed subdivisions" within the block, the court proceeded to hear claims between Ngati Whakahemo and ngati Makino in the north western corner of the block designated "Pukehina."

The Ngati Whakahemo case was opened by Timi Waata Pakihi. He argued

120 Ibid p316 " 121 MA 13/18 Wai 46 11 (b):146 202 that after the Te Tumu battle, when Arawa returned to the coast to reoccupy Maketu, Ngati Whakahemo came with them and reoccupied Pukehina. Ngati Makino and other hapu of Ngati Pikiao took possession of Otamarakau. 122 He gave as the reason for returning to the coast the news that fish had been discovered to be plentiful there. ,Whether this is a metaphor or not I am not sure. This contrasts with the story that Te Puehu invited groups to the coast and they mostly said no, until he dramatically took the initiative. Ngati Pikiao would have been keen to play down this story, since it reinforced the argument that the "toa" group should be given credit for the resettlement.

Of relations between Ngati Makino and Ngati Whakahemo, Timi Waata Pakihi said:

After they [east coast tribes] were driven out by Te Arawa we returned to Pukehina. While we were living at Tikitiki we sent to Mr Smith asking him to decide our dispute with N'Makino. [note here that smith's letter in answer was produced, and makino's claim boundaries at that time] In 1870 Hoani & Mita leased part of the land to Mr Vercoe. Rota was a party to the lease through Maruahaira. In 1872 Mr Vercoe's occupation ceased & we leased part the land to Mr Smith. There was no objection to either lease. Next year we leased Pukehina to Mr Smith. N'Makino never preferred any claim to this land. At that time N'Makino cut the line marked red on the plan. I was then at Whakatane. Smith's cattle wandered to Otamarakau & N'Makino asked us to take them back to Pukehina & put up a fence on our line. Mr Smith consented to put one up .. :. We argued the matter & Te Puehu asked us to leave the matter to the Court which Mr mantell advised us to do. In 1877 Mr Vercoe asked for a new lease which we objected to. We had cultivations of potatoes etc at Nohoangakotuku & other places ... 123

Mita Te Rangituakoha spoke next. He said he was of Ngati Whakahemo and also of Hinekura - a hapu of Ngati Pikiao. He reiterated arguments made earlier, that Maruahaira had not merely been allowed onto this part of the coast by Waitaha by way of an alliance involving his wife, but had positively conquered the area. He added however, that at the time of his grandchildren

122 2 Maketu MB 342, Wai 46 12(a)

123 Ibid p343 203 Ngati Whakahemo had became joined with Waitaha. 124 He then also said he did not admit Waitaha mana over the land now claimed,125 probably referring to the Ngati Makino claim. Mita objected to Rota leasing land and trying to sell land in the area to the government. When he heard of these activities he had requested an area be reserved for Whakahemo and that they be paid for interests in an area of the block. 126 Thus, although he was noting links with Waitaha through marriage, Mita was clearly asserting a separate right to Pukehina through Maruahaira, and not based primarily on his Waitaha links. The thinness of Heale's decision was beginning to show.

Te Otimi Mihiki Rotoma, of Uenukukopako and resident at Te Ngae, was then called. He appeared to give contradictory evidence, saying first that Maruahaira had definitely conquered Pukehina, and not come to it through ( any alliance with Waitaha, then stating that Maruahaira had never attacked Waitaha a Hei. 127

Retreat Tapsell then also gave evidence. Identifying himself as Ngati Whakaue, he said that he had seen Te Puehu at Otamarakau. At Pukehina he had seen the parents of Timi Waata and Mita, "Since Te Tumu the N'Whakahemo have been considered by Te Arawa to own the land claimed by them." He had seen Ngati Whakahemo always working the land. 128

Rota Rangihoro then presented the Ngati Makino-Waitaha case. He stressed that Maruahaira had come in peace to Pukehina via an alliance with his Waitaha wife, which, incidentally, meant that the present Ngati Whakahemo claimants were descendants of a Waitaha ancestor .129 He confirmed that Ngati Whakahemo had gone inland to Motiti and Rotorua when· Nga Puhi had raided the coast. 130 However, Whakahemo did not, after the Nga Puhi ( incursions, reoccupy Pukehina, but only returned there after the .. battle of Te

124 Ibid p344

125 Ibid p346

126 Ibid p345

127 Ibid p346

128 Ibid p347

129 Ibid p34 7 -348

130 Ibid p349 204 Tumu and the return of all Arawa to the coast.131

Rota then said that Ngati Makino claimed Pukehina themselves through Maruahaira's Waitaha wife.

The next Waitaha witness, Te Matangi, developed this point. Maruahaira had joined Waitaha through his union with Uekohao, his Waitaha wife. The descendants of this union were Ngati Kairnimi132 who lived at Pukehina and Orei Whata. Maruahaira was merely a "wanderer protected by Waitaha" and not a conqueror in his own right. 133

Rirituku te Puehu spoke next for the Waitaha case. He added little to the case, expect to make the interesting observation that Ngati Kuhu, a Ngati Awa group, had occupied the land in an earlier time. They had left after a dispute with Ngati Whakahemo. Both Ngati Whakahemo and Te Puehu, Rirituku said, had Ngati Kuhu connections.134

Judge Heale then ruled on the case, deciding that the descendants of Maruahaira, Ngati Whakahemo, should have the block. They had settled without opposition at Pukehina when Te Arawa returned to the coast. The decision was hardly surprising given Rota Rangihoro' s admission that the Waitaha claim was via Maruahaira's own wife. 135 Heale was careful to say however that "It does not appear to the Court to be of much importance whether he [Maruahaira] acquired the land in right of his wife or by his own 'mana', for his occupation was unopposed, and in either cases, it descended to his children." Once again, Heale was having it both ways. It was extraordinary to say that it did not matter how Maruahaira came to the land, () since this had been a contentious issue right through the earlier hearings. By saying it descended to his children, who admitted Waitaha links, he avoided the issue.

A list of ten parnes for the Pukehina block were handed in. The court ordered a certificate of title in favour of then ten, the first two being Mita Te

131 Ibid p352

132 Elsewhere identified as Whakahemo - see 2 Maketu MB 308

133 Ibid p353

134 Ibid p353-355

135 Ibid p357 205 Rangituakoha and Timi Waata Rimini. A marginal note describes them as "Hapu N'Whakahemo. Tribe N'Pikiao" .136

Putting in the names for the Waitahanui and Tahunaroa blocks The finalising of names for the title for Pukehina took place on 24 June 1878. At the same time, a list of names for the Otamarakau block was handed in, but there was disagreement. The court explained s17 of the Native Lands Act 1867 to the assembled parties. 137

It is startling that ownership to blocks could be decided on the basis of legislation long since replaced. ( It may have made no practical difference, as section 97 of the Native Lands Act 1873 made section 17 certificates equivalent to memorials of ownership under the 1873 legislation. So the various restriction of the 1873 legislation against small groups dealing with land on behalf of a tribe would presumably have applied. However the court could also recognise "voluntary arrangements" as to the number of owners put into a title. 138

As it turned out, in the Waitahanui portion of the block the Crown had to deal with all the owners named there in any event. Tahunaroa was a different matter, as will be seen.

The owners came back to the court a week after these comments from the bench with a final list, proposing that 2 groups have their names put into the remaining two parts of Otamarakau, Tahunaroa and Waitahanui. Waitahanui C. was to be subject to section 17. Ten owners were named in the certificate of ' title, and a further 66 names were noted in the court records. For Tahunaroa, a certificate was issued simply in the name of ten owners. '

Comments made in the court that month indicate that there had been several meetings among the interested groups about who should go on the lists. It was decided that the greater part of the people should have their names put in the list for Waitahanui, but that the chiefs only should be put into the Tahunaroa section.

136 Ibid p357

137 2 Maketu MB 357, Wai 46 12(a)

138 Section 46 Native Lands Act 1873 206 The reasons for this seem to have been complex. Waitahanui was under a contract to the Crown. Davis, a fluent Maori speaker (which the government agent Young was not) was, since being dismissed from government service, working for Chaytor, who had an interest in leasing Tahunaroa. Davis gave evidence that he had been present at some of the meetings and had urged that 10 persons only should go into the Tahunaroa block, and the ten should give a written guarantee to the tribe not to sell the block. This guarantee was read in court.

Davis would have been more honest perhaps to have recommended that the names of the rest of the tribe be included under s17 - there could still have had a 21 year lease from the 10 named owners. He said that he insisted on 10 names so that they could "obtain the money easily to repay the Government any advances made." 139 So his statements need to be treated with caution.

Later, chiefs who had been present were to say that the process of finalising the names had been done under the guidance of Te Puehu. Speaking some 5 years later, Eretara Rangihoro explained that when deciding the names for Tahunaroa, six names had originally been proposed, but the court wanted ten. Te Puehu he said, suggested putting names in through "aroha". Ereatara claimed that Ngati Makino opposed this course and that the extra names put in had no history of occupation or ancestral link to Waitaha a Hei. 140 There were four names Ereatara said were put in in this way:

Apikaira Tuhiranga Taiama Te Ngaherehere Te Katene Putarau Te Tapuke Tariao

When questioned on the names, Ereatara replied:

Q. To what tribe do these four persons you say have no right belong? A. Apikaira belongs to N. Tamateatutahi and N'Kauiti, Taiama to N'Umutahi a hapu of N' Awa - his kainga is at Matata. Te Tapuke also belongs to N'Tamateatutahi & N'Te Poke. Te Katene belongs to

139 3 Maketu MB 206, Wai 46 G4(d) R3

140 11 Maketu MB 221 and 231, Wai 46 G4(d) R6 207

Rongomai and lives at Rotoiti" 141

The circumstances surrounding these comments are dealt with below. It is sufficient for now to note the central role that Puehu is alleged to have taken on the drawing up of names, and that, consistent with his mixed ancestry, he sought to include groups not recognised by the court and some of them having links to the east.

The Tahunaroa lease hearing Now that the names had been determined, the Crown applied to have its interests in the block defined. 142 This was on the 3 July 1878. Before this t happened, on 7 August, Ereatara Rota asked the court to witness the ( signatures of the ten owners of the Tahunaroa block to a lease to Chaytor. 143 The Crown agent Young, objected. He wanted the Crown application to go first.

The Crown had a dilemma. It had paid money for survey of the whole Otamarakau block, including the Tahunaroa portion. The owners of Tahunaroa were therefore responsible to repay some of that money - by disposing of some of their interests in the land to the Crown or otherwise having a Crown interest in the land recognised. The Crown could not achieve this because they had left their names our of the Waitahanui portion of the block. Young alleged a fraud.

The Court heard Chaytor, Davis and Ereatara on the sole issue whether it .. should witness the lease. It declined to do so, noting that the period for a ( rehearing was still open. 144

The hearing of Ereatara' s lease application shed some light on the earlier dealings with the Waitahanui block and the substantial conflicts of interest the Crown agents Davis and Mitchell had faced in negotiating the purchase for the Crown. Davis, acting privately for Chaytor, had initiated negotiations for a private lease over the block. He had hired Mitchell to undertake a . survey. Subsequently, both Davis and Mitchell had become government

141 Ibid p239

142 3 Maketu MB 40, Wai 46 G4(d) R3

143 Ibid p95

144 Ibid 195-210 208 agents, while Mitchell still had outstanding survey costs owed to him. For Davis and Mitchell to then urge Maori to sell the Otamarakau block to the Crown to offset the accumulated survey costs was a very dubious undertaking.

Heale commented that "circumstances attending the business are not considered to be of a character sufficiently fair" to warrant his witnessing the lease. He was concerned about the alleged fraud. He was not it seems reflecting on the problems surrounding the roles of the government agents.

The Sale of Waitahanui In March 1883, after the Crown agents had secured the consent of 73 of the ( 76 owners recorded for the Waitahanui portion of Otamarakau, the bulk of Waitahanui was ordered to vest in the name of the Crown. 145

Tahunaroa Shortly after the Court had refused to witness the Chaytor lease over Tahunaroa, that block was gazetted as under negotiation to the Crown - ie no private buyers could gain an interest. Negotiations for the purchase proceeded beside those for Waitahanui, and in March 1883 the court also considered an application to have the Crown interest defined. 146

This hearing resulted in Tahunaroa No 1 being created to define the Crown interest. The remainder of the block was divided into Tahunaroa No 2 (3000 acres), and Tahunaroa No 3 (122217 acres). Tahunaroa No 2 was pUL () exclusively in the name of Rirituku Te Puehu, and he sold this block immediately to the Chaytor's. Tahunaroa No 3 was put in the name of. the ten owners who had previously been in the whole block. There were rio objectors when Te Puehu made this application.

It was unusual to leave the "sellers" in the remnant block. This may have reflected the arrangement in 1878 that the ten owners named on the certificate of title were merely there as representatives of the broader group of owners. Te Puehu, the man behind the 1878 arrangements, was also the organiser of this hearing.

145 Alexander Ngati Makino Lands p147

146 4 Maketu MB 423-424, Wai 46 G4(d) R4 209 In May 1885 the court varied its orders of 1883 to take account of discrepancies in block areas which fresh surveys had thrown up. Two thousand four hundred and sixty one acres were additionally purchased by the Crown to include in Tahunaroa No 1. Gilbert Mair reported making payments to Taiawa Te Ngaherehere as a 'small owner' in the land. 147 Rirituku Te Puehu had died by this time.

In September 1893 the land court heard an application from Ereatara Rota for the interests of the owners in Tahunaroa No 3 be ascertained. We can assume one reason for the application was the desire for some of the owners to sell a part of the block. A section of it was offered to the Crown in November 1893. 148 ( Taiawa Te Ngaherehere gave evidence as follows:

the witness says he is N awa from his mother but descended from Waitaha on his fathers side and this is the first time he has given evidence in the court. 149

Taiawa said that he resided at liTe Umuhika at Matata. My hapu in connection with this land is N'Umutahi a hapu of Waitaha. ,,150 When the court asked where Umutahi came in his background he replied that "Umutahi is a hapu of N Tuwharetoa. My hapu name for this land is Waitaha-a Rei" .151

In 1878 he said, Te Puehu told him quickly to come to the court when judgment was about to be given on the Otamarakau block. A meeting was held at a house named "Papawhea belonging to Rota" and a list of names for c the block prepared under instructions from Puehu. The names were read out and heard by all, and there were no objections. 152

Taiawa also made comments about Ngati Awa interests in Lot 63 Matata:

147 Report of 9 May 1885 MA 1891/353, Wai 46 G4(b) p48

148 Alexander Ngati Makino Lands p231

149 11 Maketu MB 268, Wai 46 G4(d) R6

150 Ibid p268

151 Ibid p269

152 Ibid p270 210 Q. Were you put in to that block Whakarewa A. Yes Q. Did you receive any of the money when this land was sold to the Govt. A. I did Q Are you quite sure your name was put into Whakarewa A. No. Now I am quite clear - my name was not put in because I had done wrong and joined the Hauhaus but Puehu gave me some of the purchase money. Court. Q From Aroha - or from a right to the land A. From Aroha. 153

The reference to "aroha" in context is not conclusive about rights in that block. The court's question was ambiguous and we do not known exactly how far Puehu's "aroha" was in fact an obligation to those related to him. If Taiawa's traditional residence was Umuhika, andhe had interests in the Tahunaroa block, where he claimed to use resources of the block, it seems possible that he would have had some interests in the nearby Lot 63.

In its judgment, the court found that Ereatara was wrong to suppose that Otamarakau had been awarded to Ngati Makino - rather, it had been awarded to descendants of the ancestor Waitaha. Apart from this caveat however,- the- G0urt found--substantially in favour ofEreatara's-claims, .. holding that Te Katene Putarau, Apikaira Tuhirangi, and Taiawa Te Ngaherehere were probably put in to represent others, but having no occupation rights, they had no one to represent and should be given the smaller areas proposed. They were awarded 50, 125 and 125 acres () respectively. Te Tapuke Tariao, on the other hand, had shown by his evidence a good claim by occupation and that he should be included on an equal footing with the other 6 owners.154

The outcome of the Court hearing was a division of the block into two parts, 3A and 3B. The 3B block was shortly after sold to the Crown. The 3A block contained the 3 'outside' owners and was 300 acres. 155 It was sold privately in 1970, and is not part of the present day forest. Harris Martin in his report notes that the owners at 1970 had Ngati Awa and Ngati

153 Ibid p273

154 Ibid p298

155 11 Maketu MB 298 and 12 Maketu MB 4 211

Tuwharetoa ki Kawerau ancestry. 156

A residual area of Tahunaroa of 76 acres, left over when the surveys for parts 1, 2 and 3 had been completed, was the subject of an investigation by the court in 1922. The court reflected on the 1893 investigation by Judge Scannell and awarded this residual land to descendants of t;l1e ten original owners, but in unequal shares. Apikaira, Taiawa and Te Katene, received 1/3 of a share each, the remaining 7 owners receiving 10 5/7 share. 157

The opinion of the Undersecretary was that the court in 1893 had "misdirected itself as while the original finding should be treated with all respect the Courts duty was to determine the title according to the ancient custom and usage of the Maori people and this it does not appear to have ( done. "158

Following this hearing, a petition was presented to Parliament arguing that the whole Tahunaroa block was intended to be held in trust by the ten owners. The Native Affairs Committee recommended an inquiry by the Chief Judge of the Native Land Court and this was held in February 1925. In contrast to the hearing and judgment in 1893, the petitioners argued that none of the 10 owners of Tahunaroa had any occupation of, and therefore any rights in, Tahunaroa No 2.159

The Chief Judge agreed that the 10 owners had held in trust for others. He recommended an Order in Council to enable the court to determine again who were the beneficial owners. 160 ( The court sat at Te Puke in September 1926 and determined the residual block should be awarded to 74 owners in unequal shares, confirming and arrangement among the owners.

156 Wai 46 12(a)

157 2 Te Puke MB 95-96, Wai 46 G4(d) R10

158 24 July 1923 MA 1 - 1924/394, Wai 46 G4(b) A 15 p13

159 Report on petition 10 October 1924 MA 1 - 1924/394, Wai 46 G4(b) A 15111 and 2 Te Puke MB 248, Wai 46 G4(d) R10

160 29 July 1925 to Native Minister MA 1 - 1924/394, Wai 46 G4(b) A 15/1 212 The Pukehina rehearing In January 1888 the Pukehina block was the subject of a rehearing. The reason was set out in the judgment:

This is a hearing under a special Act of part of the Otamarakau block originally heard by Judge Heale in June 1878. The judgment of the court awarded to the present claimants all that portion of the block lying to the West of line Ohinepanea to the Pongakawa river.

A rehearing took place later at which the original judgment was confirmed.

Since then an award has been made by the Court in favour of the Crown of certain portions of the Otamarakau Block known as Waitahanui No 1 which appears to have encroached upon the land the subject of the Order made by the Court in 1878 in favour of Timi Waata and others the present claimants and as the Pukehina block was by virtue of the Special Powers and Contracts Act 1883 declared by the Governor by Order in Council to be native land and as by judgment of Mr Judge Reale delivered on 28 June 1878 the boundary of that block was fixed at Ohinepanea thence to the Pongakawa river it would appear that the aforesaid Order in favour of the Crown includes --land which is native land held under the customs and usages of the natives and not under any title derived through the court.

This will probably be made clear to the Court before it makes its Order. 161

The area was now said to be 5940 acres. The boundaries had been set out in the Gazette of 10 January 1884. 162

Apparently Mita Te Rangi-Tu-A-Koha applied for the rehearing, but was having second thoughts when they heard that Ngati Makino had separately petitioned for a rehearing. 163

The ,claimants were Ngati Whakahemo, led by Timi Waata. They were

161 7 Maketu MB 185, Wai 46 12(a)

162 Ibid p134

163 AJHR 1883 1-2 p2-3 213 challenged by Ngati Whakaue and Ngati Makino. 164

Timi Waata began the case for the claimants, pointing out a discrepancy with present boundaries on the plan in comparison to the judgment given at 2 Maketu MB 356. His chief witness, Mita Takoha, outlined the prima facie claim, through the ancestor Maruahaira who had taken the land from Waitahaturauta. 165

The claimants and counterclaimants then took time to arrange their cases. The minutes show that Ngatiwhakahemo were "half inclined" to admit some interests, including those of Rangihoro, but Henare Pukuatua, Pumipi, Riko Were definitely not admitted166 ( It is apparent that the Ngati Whakaue case led by Pukuatua was poorly prepared, he twice seeking an adjournment. 167 He was however forced to proceed and called first Aprealiama Riko, who claimed on the standard Ngati Whakaue basis, that the land had been reconquered from Ngati Awa after the introduction of firearms and had reestablished themselves at Maketu. 168

Riko heard of fight between N Makino and N Whakahemo - who he called Ngati Awa. Says Whakaue settled it by building a pa at Matatoki. Riko said that Ngati Whakaue haq not objected to the earlier hearing in which the land had been awardedto-Whakahemo, because of the "great committee at Rotorua" which opposed the passing of any Whakaue lands through the court. When cross examined by Timi Waata he said that 'The whole of N'Whakaue objected to Henare's case whenWaitahanui passed the Court this is the reason why Retireti Tapsell assisted you in the case against Henare. "169 . (

Henare Pukuatua was then sworn, asserting that Whakaue had lived without hinderance at Pukehina for some years in the recent past and had killed pigs without interference from other hapu such as Ngati Whakahemo. He

164 7 Maketu MB 135, Wai 46 12(a)

165 Ibid p135

166 Ibid p136

167 Ibid p136

168 Ibid p137

169 Ibid pp139-141 214 admitted that Ngati Whakaue had become "closely allied" with Ngati Pikiao - and Ngati Whakahemo. He mentioned the fight at Matatoki where Ngati Makino had tried to expel Whakahemo - he thought that this took place in 1862. He had seen fires at Pukehina but had not visited to see who was making them, his principal residences being at Rotorua and Ohinemutu. 170

This relatively weak case was not helped when Henare was forced to close it abruptly as another witness he required had not appeared. 171 The Ngati Whakaue were always struggling, they had a poorly prepared case, and had to counter the earlier judgment in which their claims had been ruled out - the assertion that they had not appeared then because the committee had held them back had not prevented Henare presenting his case at that time.

Pumipi Hori then opened the case of Ngati Makino. His claim was based mainly on ancestral rights since Matamoho' s time. Pumipi asserted that there had been a continuing series of conflicts with Ngati Whakahemo and Maruahaira, but that all comers had been defeated. It was only after the reoccupation of Maketu by Arawa forces after the Te Tumu battle, Pumipi asserted that Ngati Whakahemo had worked their way into the block under their chief Te Rangituakoha by a series of marriage alliances. They were always there with permission from Makino however. There had then been a fight at Matatoki between the 2 groups concerning cattle which Makino had allowed to run free "from Waihi -toOtamarakau" .172-

Pumipi conceded an earlier occupation by Whakahemo when Maruahaira had married a Waitaha wife. 173 When cross examined by Timi Waata, Pumipi admitted that Whakahemo had paddocks and ran sheep over the land, but () claimed this was only since the 1878 judgment. 174

Evidence was then given by Rakitu Haerehuka, who claimed via Maruahaira and as a Ngati Whakahemo. 175 Rakitu recounted the standard traditional story of the assault and taking of Pukehina by Maruahaira after he had been

170 Ibid p143-144

171 Ibid p144

172 Ibid p144-148

173 Ibid p149

174 Ibid p151

175 Ibid p166 215 insulted by the people there. 176

Maruahiara's descendants left Pukehina only when Nga Puhi arrived and invaded Mokoia. Rakitu admitted never returning to the land himself, but his father and brothers had been there. Rakitu said that because he was related both to Ngati Awa and Te Arawa his people were able to remain on the land despite the fighting between these two which had occurred. He named Te Puehu as a principal Arawa chief. He distinguished between Waitaha who lived from Te Puke to Katikati, and Waitaha Turauta, whom Maruahaira had fought. Rakitu was thus trying to establish a distinctly separate Ngati Whakahemo claim, not relying on allegiance to ngati Awa in the east or Arawa in the west. 177

Takuanui Hohaia Tarakawa was then sworn. He was of Ngati Amonga and ( lived at Te Puke. He also claimed for Ngati Whakahemo, as belonging to a division within that group.178

Morihana Herewini also claimed through Maruahaira although denying that Maruahaira had come to the land by conquest, rather by intermarriage. Morihana said he belonged to Ngati Kaimimi - ie Ngati Whakahemo. He had lived at Pukehina pa and had a house there. 179

The claimants then presented their reply. Mita Tahoka opened, giving his ancestry through Maruahaira. Maruahaira had taken Pukehina by force.He conceded that Irawharo - Pumipi's people, had lived at Otamarakau.180 Mita continued:

It was about the time of my birth N'Makino came to live at ( Otamarakau, they afterwards went to Pukawa to work flax, we objected and stopped their work.

After this Rota leased the whole of Otamarakau. N'Makino received the rent. took it to Te Kohomuhomu and divided it amongst the hapu

176 Ibidp168

177 Ibid p168-170

178 Ibid p170-171

179 Ibid p"74

180 Ibid pp176-178

~~""~ •••.•• ~ o. : ...... _, •• ;<.-- ••~.:--.-::>." ...."'7"""".>!''''''- ..., .... ,.. ''' ...... ' ••••• - ...... ". 216 who owned the land. The land so leased included Pukehina, I myself received portion of the rent.

Hoani afterwards lease (again) the land for the flax. It was again leased to Mr Smith. Timi Waata and self had to do with these leases without opposition.

Pumipi received none of the rent.

Rota and Te Morihana again attempted to lease the land but Timi and myself prevented it trouble arose in consequence, this was shortly before the first hearing at which Rota lost his case, he. claimed through Waitaha son of Rei.

The land is now leased to Mr Smith and we receive the rent.

The Otamarakau people never attempt to take the karaka fruit of Pukehina. 181

Timi Waata then appeared. He asserted that Waitaha Rei were Arawa and Waitaha Turauta were Ngati Awa. Ngati Whakahemo had returned to Pukehina when Tapsell arrived. Ngati Makino went to live at Otamarakau When Maketu was occupied by Arawa. Re admitted it was only since judgfrle'nt in 1878 that he -h~id fanned the land, but maintained this was merely an exercising of his rights of ownership. 182

Judgment was delivered the following day, on the 8 February 1888. As the court saw it, Timi Waata and others had made their claim under Maruahaira. Rakitu Raerehuka, Takaanui Hohaia Tarakawa and Marara Rangihoro sought to be included under the Maruahaira head, but chose to separately prove their cases. Renare Pukuatua and Aperahama Riko made a Whakaue 'toa' claim. Pumipi Rori made a distinct claim under Waitaha. Dealing with the 'toa' claim:

It is quite clear to the Court that for the purpose of this investigation it is necessary to divide the Ngati Awa into the sections which they have , resolved themselves. They are divisible into two sections 1st Ngaiterangi the descendants of

181 Ibid p179

182 Ibid p182-183 217 Te Rangihouhiri and his followers who occupied the land to the west beyond Tauranga. 2. Ngati Whakahemo and the other hapus who by intermarriage have merged into the Arawa and the Ngati Awa living at Whakatane all these live to the East of Maketu.

After a careful review of the evidence it appears to the Court ... that the Ngati Awa hapus living to the East of Maketu aided the Arawa tribes in recovering from Ngaiterangi so much of the conquered territory as they have since repossessed. And whether the mana of ( Ngaiterangi at the Tumu extended to Waitahanui or did not is beside .. the question - it is enough for us that Ngati Whakahemo entered into peaceable possession of Pukehina at or about the time that Ngati Pikiao reoccupied Maketu and that they have occupied it ever since and that by so doing they have received and confirmed their ancient rights. That this was due to the capture of Te Tumu there can be no doubt - but it would be invidious to ascribe all the glory of that tremendous victory to the Ngati whakaue and not let the other hapus and tribes of the Arawa have their share.

It is clear to the court that the mana of Ngaiterangi did not cross the Waihi river as the chief business of the Arawa at the occupation of Maketu was dividing and taking up the reconquered land which operation as regards the Arawa did not extend across the Waihi River. 183 (

The Ngati Whakaue claim by occupation failed, since that occupation took place when the area was under the mana of Ngaiterangi. As to the other counter claims, the Pumipi claim for Ngati Makino was dismissed on the basis that no rights had been established in the evidence given. Rakitu and Tarakawa had however established "some slight individual claim to be admitted". The Morihana claim was weak and was dismissed.

This judgment was much more explicit about the Ngati Awa connections of Ngatiwhakahemo along the Otamarakau coast than had been the judgment of 1878, where Reale found that it did not matter whether Maruahaira was at Pukehina under his own mana, or through connections with a Waitaha wife.

183 7 Maketu MB 186-7, Wai 46 12(a) 218 Given this shift in emphasis, it makes it harder to argue that there were not· valid Ngati Awa interests to the east of Pukehina, such as at Otamarakau itself. The court also admitted that Arawa actions in dividing up the land and determining who settled where did not extend beyond Waihi. Thus, in tikanga terms, there was nothing to stop Ngati Pukeko taking up their coastal holdings once again at Otamarakau.

)

( ) 219 PART SEVEN

NGATI AWA INTERESTS IN LAND BLOCKS WEST AND SOUTH OF THE CONFISCATION BOUNDARY

Introduction By 1878, the year Otamarakau was decided, most groups in the western and middle Bay of Plenty had become actively involved in leasing and sale arrangements. In 1875 Henry Mitchell had arranged the lease of the giant Kaingaroa No 1 block of 136,000 acres to the Crown. Penetito Hawea, cr chief of Nga Maihi hapu of Ngati Awa, and later to provide the lead iIi bringing Ngati Awa claims before the court, received some £45 for his ( interests in this land.

On 31 July 1878, the land court began a marathon hearing to investigate the title to the Kaingaroa No 1 block. Penetito appeared and put forward a Ngati Awa interest in the block based on the payment he had received. It was not a strong claim, and it was dismissed, with the block being awarded to Ngati Manawa. 1 At the rehearing in 1881 of Kaingaroa No 1 Penetito did not oppose the Ngati Manawa c1aim.2 At a later court hearing over the Matahina block, a Ngati Awa chief Hamiora Tumutara said that on the rehearing of the Kaingaroa No 1 case he had been "admitted" to the title, that is "that the Government made us one with the N'Manawa and Mr Mitchell said that we were to make common cause with them". Hamiora said that Nga Maihi received £10 of the purchase money.3 (

Te Haehaenga This block was heard in 1878 by Judge Halse and judgment was given on 31 May 1878. The major claimants were Ngati Pikiao and Arawa groups, however, at the northern corner of the block the court found an interest for Ngati Tuwharetoa. Henry Mitchell had noted in a report of 1877 that Maori were anxious to bring these lands into court to satisfy a survey debt by

1 Opotiki M8 167 and 208 quoted in The History of Kaingaroa No 1 p45 Wai 212 82

2 1 Whakatane M8 3

3 See 1 Whakatane MB 118, Wai 46 12(f) 220 selling a part to the Crown. He thought that this could be arranged.4

The proceedings are of interest because while no direct Ngati Awa claim was advanced, a number of statements about Ngati Awa's interest in the block were made, suggesting that, had they wished, Ngati Awa might have been able to mount a reasonable claim for some of the block.

In the course of hearing it became clear that the block was a remote one, covered with forest, and was used for timber, bird snaring, ochre gathering and access to the lakes of the area.

Most of the claimants lived in Te Awa 0 Te Atua, and so had to travel to use the block. Halse in his judgment commented that "the land has not been occupied by permanent settlements, but only for canoe building, bird­ catching, eel-fishing & similar intermittent occupations. ,,5

Tuwharetoa, who claimed an interest in the northern half of the block, had left the area at the time of Fulloon's killing.6

Tuwharetoa had disputed an area now outside the block with Arama Karaka of Te Arawa before the Compensation Court, but had lost that argument. Tuwharetoa at that time claimed the whole block and wanted the government to extend the western boundary to the Tarawera river. But this was not done. Consequently their more modest claim now. 7

Several witnesses admitted that Ngati Awa were interested in the land. A Ngati Te Apiti claimant Niheta Kaipara recalled that around 1856 "N'awa came to attack us about this land and suggested our going to Te Teko to talk about it. There was a great meeting but nothing came of it." Rangitihi then suggested Ngati Awa call a meeting and have H Clarke "make the enquiry". Clarke did attend a meeting, but according to Niheta, Ngati Awa had decided by t~en they did not want an inquiry and do not turn up. On that basis, Clarke refused to act. Niheta thought Ngati Awa put him up to this. Ngati Awa then called another meeting, but nothing seems to have come of

4 1877 G7 p12

5 2 Maketu MB 245, Wai 46 12(b)

6 Hohepa Rokoroko. Ibid p238

7 Hohepa. Ibid p234 221 this either - Ngati A wa claiming that other groups had arrived too late. 8

Hohepa Rokoroko added more detail, saying that meetings about the land had begun in 1856 after some earlier skirmishes. Then:

In 1857 a meeting was held at Ahunanga[?] called by N' A wa & Tuwharetoa. Tohi Te Irirangi ... was afraid of Te Arawa being defeated by N' Awa & Tuwharetoa. N' Awa[?] made it up with Arama Karaka. I would not agree because I was between these tribes ..... Te Mapu came to Matata to request me to join Arawa. I refused. We then went to the meeting. Held a separate committee who said I was right. We agreed boundary to commence at Otuhanga. I was asked by Petera & Henare to withdraw my opposition but refused to agree. Henare then said, "We will cease to consider you as an Arawa." Te Arawa did ( not come to the meeting and we did not come to any decision except that N' Awa acknowledged our right. 9

Curiously, this evidence was cut out by Judge Halse. No reason was given. He had intervened earlier when Ngati Awa were mentioned. As Niheta Kaipara gave this evidence earlier in the hearing:

Koira's family fought about the land with the outside Tribes. He was one of our ancestors. I have not given his name yet. Uenukumatapo of N'awa came to Koira's place & kumara was cooked for him.

The minutes note "(Evidence too remote Witness stopped)." 10

Niheta was developing background about the block which Halse seems to ( have found too remote. He seems to have wanted to focus on immediate past use. This accords with views that occupation in the recent past was what the court was interested in.

The other right admitted for Ngati Awa was the use of trees in the block. Hohepa said that "Te Hura made canoes on this land by my father's permission." He modified this to say that two canoes were "made by my father. Te Hura got them", that is, Te Hura went onto the block to get

8 Ibid p196

9 2 Maketu MB 241, Wai 46 12(b)

10 Ibid p193 222

timber for canoes for his father .11

He later said that his parents had got 20-30 canoes off the land. He protested that they "did not come on to the land through Te Hura, but he came to us. 1112 This was possibly in response to a suggestion that Te Hura had direct rights. As noted earlier, Hohepa also admitted that his group ceased to occupy there with Fulloon's death in 1865. This timing suggests a link with Te Hura that might be more powerful than this Tuwharetoa claimant was allowing.

Niheta Kaipara, the Ngati Te Apiti claimant,also admitted that Te Hura had used trees on the block, but stressed that he had had to seek permission to do so from Te Arawa. Te Hura had approach Arama Karaka for timber for a ( church. Arama's mother was a Ngati Awa. Arama agreed that some fallen timber could be used. Te Hura then asked for standing trees for a canoe. This also was agreed to. While working on the canoes, Te Hura's people had occupied the block for some months .13

Given that most claimants for this block were asserting intermittent use while living at Te Awa 0 Te Atua, it seems surprising that there was not a Ngati Awa claim in this block. The simplest explanation would be that Te Hura, the obvious person to bring the claim, was no longer available.

Waimana To the east, Judge Halse determined the title in June 1878 to this block, ruling that it belonged to the descendants of Tuboe living on it and also to Ngaituranga and Ngatiraka hapus also living on the land. There was no Ngati Awa claim or counterclaim. Two objections to that ruling were heard in 1880 by Judge Munro and the 1878 ruling was adjusted, but again, no direct Ngati Awa interest was evident. 14

Waiohau This block of 15,564 acres was contested between Tuboe and Ngati Pukeko,

11 Ibid p236

12 Ibid p238

13 Ibid p195

14 .Wai 46 12(e) 223 the latter claiming an interest in only the northern portion of the block.I5 Judge 'RaIse determined the claim on 3 July 1878, giving 14,000 acres to Tuhoe and the remainder to Ngati Pukeko.

The Ngati Pukeko interest was recognised it seems because they had received $10 from Mr Edgecumbe for their consent to a survey of the block and had also subsequently received a deposit for the lease without complaint, something which RaIse found indicated some mana over a portion of the block. 16

This was an illustration of how previous negotiations could be a factor in determining ownership.

Several approaches for a rehearing were declined. (

The Ngati Pukeko were given the part designated as No 2 block. It was sold into private hands at the turn of the century. 17

Pukeroa no 2 This was part of the Kaikokopu block of some 40,284 acres, for which title was determined on the 27 June 1878, just 8 days after the Otamarakau judgment. The Kaikokopu block was then divided in 2 parts half, with Pukeroa being awarded to 41 members of the Ngati Pikiao hapu of the Te Arawa tribe. Pukeroa was sold to the Crown some time before February 1881, when it was declared to be in Crown ownership.I8 No

( Hearings in 1881 Three years after these judgments, the land court sat to hear claims to three blocks outside the south western boundary of the confiscation. The court had just reheard the Kaingaroa case, and confirmed Ngati Manawa claims there. The northern boundary of that block touched on the blocks on the border of the confiscation area, and no doubt that decision spurred Ngati Awa and others to have title to these blocks determined.

15 1 Opotiki MB 102, Wai 46 12(d)

16 Penetito Hawea said his name was in a lease over the land. Ibid p99

17 Wai 46 12(d)

18 Wai 46 12(e) 224

Matahina This was the first of the 3 blocks, Matahina, Putauaki and Pokohu, heard consecutively by the Native Land Court in 1881, and the minute books give every indication that there had been substantial prior arrangements to deal with the three as a group, as will be seen.

The Matahina block on survey consisted of 85834 acres and was called on 6 September 1881 19

Penetito Hawea of the Nga Maihi hapu of Ngati Awa brought the claim. The - southern portion was said to have already been sold by Ngati Manawa.20

Counter claims were received from Tuhoe and Ngati Rangitihi, among others.

Penetito Hawea was the "kiawhakahaere" for the Ngati Awa case, and seems to have been efficient at this work.21

Mikaere Heretaunga of Rangitihi spoke first about the reasons for the 3 blocks coming before the court:

I will now speak of these surveys which resulted through survey of the Kaingaroa No 1. The N'Manawa having defeated all their counter­ claimants in this block the N'Awa N'Hinewai and other having been defeated was displeased with the Government they said that as the N'Manawa had taken the Government money the Government supported their claim. N' Rangitihi said they should apply to the ( ) Governor for a survey over these lands ... ? assented. N'Rangitihi and the Government Officer went and spoke to the N' Awa about it and the lines in dispute was to be settled by the Court. The line we claim was to be laid down Wi Patere and Mohaka? went to Motukura and arranged that the N'Rangitihi line should be laid down as shown upon the plan, none of N' A wa were there. Some of N' Awa were present when the line was laid North of Motukura I saw Hamiora and Te

19 1 Whakatane MB 54, Wai 46 12(f)

20 Ibid p54

21 See Ibid p267 and pl 09, 13 September 1881 Penetito successfully applies for adjournment after counter claimants evidence to arrange his witnesses and look over the counter claimants evidence and says he will thus save the court a lot of time 225 Rangitukehu there I did not see Penetito there. Rangitukehu is the head chief of N' A wa he did not say that this line was the boundary between Pokohu and Matahina but said "Very well let your line run along there" there was no dispute at that time about the line.22

Mikaere, when cross examined by Penetito, freely admitted Ngati Awa had interests in the block, it was simply a matter of drawing the appropriate dividing line.23

At one stage the minutes record that the court itself called Makarini Te Waru of the Urewera tribe who said that the land belonged to Nga Maihi of N Awa "to whom I also belong". 24

Hamiora Tumutara was the first witness for Ngati Awa.25 He himself had ( , escorted the surveyor over the block, and no counter claimants had troubled them during that work.26 This again was evidence of the prior arrangements. Charles Chaytor was the surveyor involved.27

The chief Rangitukehu was the next to give evidence:

I belong to the N'Maihi hapu and Chief of all the N' Awa tribe. N'Awa tribe consists of N'Maihi Ngatama .... ? Te Paepoto and the whole of N' A wa hapus - The block of land under investigation is called -Matahina and lam the· chief man over the whole of it as Mount Edgecumbe (Putauaki) is the chief mountain. 28

He confirmed that there had been early meetings over surveys of the Matahina and associated blocks: "A meeting did take place at Te ( Ahikanga[?] to consult over the Oteao, Pokohu and Te Haehaenga at which

22 1 Whakatane MB 82, 9 September 1881 and see 1 Whakatane MB 105, Wai 46 12(f) - further d"iscussion of the meeting of chiefs to agree to the surveys, and involvement of government officers

23 Ibid p83

24 Ibid p100

25 Ibid p110

26 Ibid p117

27 Ibid p122

28 1 9 September 1 881, 1 Whakatane M B 147, Wai 46 12 (f) 226 Mr Clarke and Mr T Smith Civil Commissioners were present. "29 He expressed some concern about the survey however:

In olden times there was a division of this land but since the conquests of myself and Ancestors all boundaries has been obliterated. Mount Edgecumbe (Putauaki) was not left out of this block for any particular reason. The boundaries shown upon the Putauaki[?] plan are altogether wrong. Mount Edgecumbe (Putauaki) should have properly been included in the Matahina map.30

After hearing the Ngati Awa case, the cross examination of the Ngati Awa witnesses, and the closing statements from the counter claimants, judgment was reserved while the court heard the Putauaki and Pokohu cases. ) Judgment given on 11 October 1881, while the Pokohu case had been fully heard and was awaiting judgment, and the Putauaki case was in the rriiddle of hearings. The judgment noted that Urewera and Ngati Manawa counterclaim ants had withdrawn their claims on seeing the survey plan and finding they had no interest in the block as shown on the plan. Another group had withdrawn their claim when given an assurance that the wife of a claimant would be included among the listed owners for the block.31

It was found that Ngati Awa had defeated the counterclaiming hapus (Ngati Rangitihi, Ngati Hamua, Ngati Patuheuheu, and Ngati Hinewai) who had originally occupied the block, but had since that time allowed a few to cultivate there on banks of Rangitaiki river and a few had become incorporated into the tribe.32 The award was therefore to Ngati Awa and some members of the counterclaiming hapu who had become ( ) incorporated.33

In 1884 there was a rehearing of the block. While Ngati Awa retained the bulk of the block, the court included interests for other groups. The court minutes record that the rehearing took place under the Special Powers and

29 Ibid p155

30 Ibid p150

31 Ibid p267

32 Ibid p268

33 Ibid p269 227 Contracts Act 1883, which was a local act passed to allow incidental matters to be rectified. Acts of the same name were passed annually to tidy up incidental matters. The relevant provisions read:

.... For the purpose of rectifying certain procedures under the Native Lands Acts, and to more satisfactorily determine the titles, according to Native customs and usages, to the blocks of land known as Paengaroa, Rauo-te-Huia, Pukehina, Puketauhinu, Whakapapakihi No. 1, Matahina, Pokohu, and Hauturu, rendered necessary by technical errors and defaults in the procedures aforesaid, having no relation to the several titles on the merits. power was given to the Crown to declare these parcels of land as land owned by Maori prior to Native Land Court hearings, and then declare it a duty on ( the land court to investigate in accord with its usual practice, titles to the lands and who were the owners according to Maori custom and usages and declare applications for investigation of title to be good and valid under the Native Land Court Act 1880.34

After hearing extensive evidence from several counter claiming parties, the court ruled that there were grounds for a claim based on occupation set up by Rangitihi, Patuheuheu and Ngati Haka - although it doubted that the occupation in the first instance was based on ancestral title. Awards were accordingly made of 2000 acres to Ngati Haka and Patuheuheu in the south of the block, and 1000 acres to Rangitihi. Ngati Hamua got an award of 1500 acres in recognition of an earlier gift of Tukehu.35

The judgment seemed in some ways at odds with the evidence given. The ( court noted that the counter claimants cases were quite weak. Pa sites Arama Karaka had said were on the block on closer inspection were found to be on the Putauaki block.36 By contrast:

The Claimant in reply adduced evidence which was unshaken in Cross examination, and which clearly showed that the Hamua were about three generations ago conquered by Ng' Awa, that they fled to Maungapowhatu and other places, but that some of them returned with

34 Schedule. There is no debate recorded in the House or Legislative Council on the bill to give details of the reason for its passing. See NZPD 1883 vol 46

35 2 Whakatane MB 267, Wai 46 12(f)

36 Ibid p266 228 permission of Rangitukehu and settled among the Ng' Awa - that as to . Ng'Haka and Patuheuheu, they never occupied any part of the block, at any rate they were not found living there during the sanguinary conflicts which raged between them and the Ng' Awa.37

Putauaki While the Matahina judgment was awaited, the court began hearings of the Putauaki block. This encompassed the area immediately south and west of Putauaki maunga, with the northern boundary of the block passing through the mountain.

Penetito Hawea of Nga Maihi of Ngati Awa was the main claimant for this block estimated at 7800 acres.38The main counterclaimants were Urewera" and Rangitihi groups.39

Mikaere Heretaunga, the main witness for the Rangitihi case, was clearly concerned with the upcoming hearing of the Pokohu block, claiming that this block should be a part of that. 40

The Rangitihi case relied on some fruit trees planted on the block and eel fishing rights in the Tarawera river. They claimed only the southern portion of the block.41 Rangitihi witnesses did not dispute that Putauaki Maunga belongeo to Ngati Awa.42 -

Its clear that Mitchell had already paid over money for the block to Ngati A wa interests. Rangitihi had not received any, but stated this did not impact on their rights.43 ( The "Urewera" case was supported by Makarini Te Waru of the 'Urewera

37 2 Whakatane MB 266

38 1 Whakatane MB 165, Wai 46 12(9)

39 ibid p165

40 Ibid p168

41 Ibid p168

42 Ibid pp'173 & 181

43 Ibid p 168 & 169 229 tribe', 'Tuhoi hapu'. They claimed also only a part of the block. Te Warn maintained that "My claim is not a vexatious one. I have received £50 on account of this land the tapued portion from Mr. Mitchell and C. O. Davis. Have no objection to the tapu been broken having sold it. "44

Penetito was the only Ngati Awa witness. He claimed on behalf of Nga Maihi. 45 He deposed that the block had originally belonged to Tuwharetoa, but that they had been conquered in an early battle (Ngaupukotutakiroa). Rangitihi and Tuhourangi attempts to put Ngati Awa off the land (Paraweranui battle) had been successfully resisted. Two groups related to Tuwharetoa, Ngati Aotahi and Ngati Pou, had then fought over the boundary - of the block. Ngati Aotahi had then been defeated by Nga Maihi.46

Penetito then noted that he had applied for survey on this and the adjoining ( blocks when he had lost his case in Kaingaroa No 1. There had been disputes over the surveys, and the "Government officers" had called a meeting of all parties affected. Since no party would give in it, was agreed to take the boundaries to the land court to settle.47

Penetito, although claiming for Nga Maihi, admitted a Tuwharetoa interest within the Ngati Awa claim. He noted that both Tuwharetoa and Ngati Awa buried their dead in Putauaki.48 The six pa he named as signs of occupation belonged to Te Aotahi, "Tuwharetoa's successor".49

At the conclusion of Penetito' s evidence, the court postponed its judgment, and began hearing the Pokohu case the next day. 50 Having heard the Pokohu case, the court sent the assessor to check on the ground evidence given in the Pokohu and Putauaki cases. (

On receipt of that report, the judgment was given. The block was awarded to

44 Ibid p194

45 Ibid p201

46 Ibid p202-203

47 Ibid p204

48 Ibid p205

49 Ibid p208

50 29 September 1881 - Ibid pp212-213 230 Ngati Awa. 51 Judge Brookfield noted that:

A great deal of evidence was taken which as appears to be usual in all these land claims was of a most contradictory character. Some of the parties apparently coming forward fully determined to attempt to substantiate their claims by what we cannot but designate as the grossest perjury52

The U rewera claim to a small area in the block was rejected as they had not shown occupation for at least 200 years or exercised any rights over it in that time. 53

The Rangitihi claim over the southern portion of the block failed both because their. claims to rights by conquest had not been made out, and the evidence of use of the land was contradictory, and had not been supported by the assessor's report. 54

The Tuwharetoa interest was noted in the finding that a small claim by Hakopa Te Kapou, who had claimed as part of the "Ngati Awa tribe and Aotahi hapu" should be recognised by inclusion of his name in the title to Issue.

The court noted that the land was to be inalienable "by request of the whole of the tribe". 55

However part of the block has been under negotiation for sale of part since October 1879 and was partitioned out later in October 1881 and promptly sold. ( ) Petitions followed the sale, on being filed 2 days after the sale, and another . 2 in 1882. A subsequent inquiry under the Native Lands Frauds Prevention Act 1879 however upheld the sale. 56

51 11 October 1 881

52 1 Whakatane MB 270, Wai 46 12(g)

53 Ibid p271

54 Ibid p273

.55 Ibid p274

56 This history is covered in Putauaki Maunga. Cultural Symbol of Ngati A wa Wai 46 88 231

Pokohu Land purchase files show that in September 1873 the Crown agents Mitchell and Davis conducted negotiations with the Ngati Awa chiefs Rangitukehu and Tiopira and obtained an agreement to lease this block for 21 years. Subsequently, Ngati Awa received a better offer over part of the block from a Lieutenant Bluett.57 In November 1873 the chiefs met Mitchell and Davis again and sought to have the Bluett lease area cut out of the government block. Mitchell and Davis insisted on the earlier arrangement. Tiopira and Tukehu then approached the purchase officers suggesting the Crown could settle the issue by agreeing to lease the whole block at a higher rate. This was taken under advisement.

In December, Mitchell and Davis discovered that a lease to Bluett had ( already been given. They had already heard from a group called Ngatihaka which disputed the ability of Tukehu to deal with this land. They therefore finalised leasing their arrangements over those parts of the block where other hapu such as Ngatihaka disputed Tukehu 's claim. Ngatihaka signed up at Matata in early December. Later in the month the purchasing officers received news that Bluett had made his own arrangements with the Native Minister. 58

The lease continued to cause problems. Rangitukehu was concerned that advances had been made to some persons not entitled. He agreed to a committee being formed to look into the matter, which considered it in May 1876 and concluded that "the moneys had been advanced to the right parties on the lands owned by them [i.e. within the Pokohu Block]. Rangitukehu was found to be wrong, but right with respect to certain localities which ( were his own." This suggests a diplomatic solution to the problem. The interested parties had been Ngati Awa, Ngati Pukeko, Patuai, Urewera and Arawa groups.59

Davis was pleased with the outcome and wrote to his superiors:

At a Native settlement named Te Umuhika, six miles from te Awa-o­ te-Atua, upwards of 300 persons presented themselves, .... We 'took

57 Bluett was a sub inspector of the Armed Constabulary - see AJHR 1876 G1 p15

58 22 May 1874 Mitchell and Davis to Native Minister MA-MLP 1 1874/227, Wai 46 11 (a)

59 Pererika Ngahuruhuru quoted in AJHR 1876 G5 p7-8, Wai 46 11 (a) 232 advantage of this tribal meeting, in which the Ngatiawa, Te Uriwera, and the Arawas were largely represented, and placed before the assembled throng the long-pending dispute regarding the ownership of certain lands in the Pokohu Block, at Rangitaiki, leased by us previously. After explanatory speeches by us, and selecting nine or ten of the most intelligent Native chiefs and assessors to serve as a jury, the various points in dispute were submitted to the multitude, allowing each tribe to conduct its business as it seemed fit. No attempt was made on our part to interfere with the discussions, .... after the subjects, one by one, were thoroughly exhausted, and the audience had no further desire to continue the examination," we withdrew with our ten jurymen to settle the decision, refraining to give any opinion till after the chiefs and assessors had concluded their remarks, ... 60 ) Davis and Mitchell were pleasantly surprised to find that the views of the jury "coincided precisely" with their own views. maori in the district were apparently quite enamoured of this mode of approach. The inquiry had taken two days and nightS. 61

In returns of the year the block, at 100,000 acres, was recorded as under lease for £300 per annum.62

Title to the block was then investigated in 1881. Judge Brookfield noted that:

This was a claim set up by Ngati Rangitihi to a block of land called Pokohu containing about 60,600 acres And it was opposed by Ngati Pou a hapu of Ngati Awa, Ngati Hinemai and Nga Maihi but on the second day of hearing the last named withdrew all opposition in ( consequence of some amicable arrangement having been agreed to between themselves and Ngati-Pou.63

This had been achieved after reference to a "Ngati Pou committee" obviously in charge of the Ngati Pou case. 64

60 Ibid p7

61 Ibid p7

62 AJHR 1877 G7 p12

63 1 Whakatane MB 274, Wai 46 12(h)

64 Ibid p220 233 All groups conceded that there was a Rangitihi interest in a 700 acre portion of the block.65 Rangitihi rights elsewhere in the block were however challenged.

There was tension between the Ngati Pou claimants and other Ngati Awa related groups. Ngati Pou insisted on a Tuwharetoa link which the Ngati Awa side were not comfortable with.66 Hakaraia Peraniko was a key Ngati Pou claimant, and was in the unique position of belonging to both the "Ngati Rangitihi tribe and Ngati Pou hapu" .67

Because the evidence was so contradictory, the court felt unable to make a decision until the assessor had examined, on the ground, the places the claiming groups had indicated on the map were marks of use of the area.68

The assessor resoundingly supported the Ngati Awa/Ngati Pou claims, ( I reporting that all significant marks pointed out by Rangitihi were either not in the place they were said to be, were natural features, or very old sites.69

On this basis, the court found:

Ngati Pou among whom we consider that Ngati Awa Ngati-Aotahi and Ngati Pukeko are included have established a title to the block which will be called Pokohu No 1 containing about 53,600 acres both through ancestry and undisturbed occupation - but the Court is also of opinion that some members of both Ngati Rangitihi and Ngati Hinemai have become incorporated with Ngati Pou partly by intermarriage and partly by permissive occupation and that through Ngati Hinemai and Ngati Rangitihi as tribes have proved no interest in this block that those who have become so incorporated are entitled ".70 (

Accordingly, title was to issue for Ngati Pou, A wa and Aotahi and Pukeko

65 Tukehu ibid p229 and Hakaraia Peraniko p231

66 Hamiora said the block was occupied by Tuwharetoa through his son Pou see 1 Whakatane MB222

67 Ibid p229

68 "Court informed all parties that the Assessor would go and examine the marks, they having promised to find him a house and food and the Court would be adjourned until Tuesday next to enable him to do so." 1 Whakatane MB 266 and comment at 275-276

69 Ibid pp277-279

70 Ibid p276 234 and individuals of Hinemai and Rangitihi incorporated into those groups through marriage and other means. The court split the block in 2 and awarded 53,600 acres (No 1) to Ngati Pou, Ngati Awa, Aotahi and Pukeko (including. those of N gati Rangitihi and Hinewai who had become incorporated with them) and 7000 acres (No 2) were awarded to Ngati Rangitihi in their own right.

However, that decision was virtually reversed after a rehearing in 1884. The award this time concerned a smaller area, 38,120 acres.71 This was possibly because a survey had better defined the area. This time 19,060 acres were awarded to Ngati Rangitihi, 9,530 acres to Ngati Awa, and 9,530 acres to Ngati Pou.

) At first glance this appears to be a clear favouring of a Te Arawa linked group. The truth was however more complex.

The jockeying among claimant groups gave an indication that there were new alliances involved. Raimona Petera, of Tuwharetoa, claimed the whole block. Penetito Hawea claimed part only of the No 1 block for Ngati Awa. Ngati Pou claimed the No 1 block exclusively. The Tuwharetoa claim was quickly amalgamated with that of Ngati Awa and Penetito.72

Ngati Pou, who had worked with theNgati Awa groups at the first hearing, now opposed the Ngati Awa claims.73 Both Ngati Awa and Ngati Pou still opposed Rangitihi claims, but admitted the rights of particular individuals to certain parts, such as the Ngati Pou claimant Hakaraia, who, as has been noted, could claim Rangitihi as well as N gati Pou ancestry. 74

The rehearing was under the Special Powers and Contracts Act 1883.75

It became evident in the course of the rehearing that the dispute between the Ngati A wa a,nd Ngati Pou groups would work in favour of Rangitihi. In fact, it seems that the Ngati Awa faction were supporting the Rangitihi case

71 2 Whakatane MB 216, Wai 46 12(h)

72 Ibid p216

73 Ibid p217

74 Ibid p217

75 Ibid p216 235 against Ngati Pou.

Hakaraia Aperaniko, who gave his residence as Tarawera lake, and admitted to his Rangitihi affiliations, was the major speaker for Ngati Pou. 76 He did not admit that Tukehu and the Ngati Awa faction had any rights in the land, their land, he said, was in the Putauaki block.77

He was upset because he had made arrangements with Tukehu concerning the land before the 1881 hearing came to court, but felt that he had since been deceived:

I was with the Ng' Awa with the survey in so far as it is concerned. Rangitukehu and myself made arrangements about these lands in a house, but you deceived me. At the meeting on which we arranged ( i about these lands we agreed that Te Pokohu was for me, and Putauaki and Matahina for the Ngatiawa.78

The problem was however, that "the ng' Pou were not mentioned in the judgment of Te Pokohu block. "79 As for his evidence in the 1884 hearing, Hakaraia was frank:

I was cajoled by the Ng'Awa to join them, in order to keep the Ng'Rangitihi out, for I had it in my mind, that if the Ng'Rangitihi ---were kept out, I should get possession of the whole block"8o

He then proceeded to claim the whole block and attack Tukehu's claims that he had owned canoes at Tarawera lake, saying that Tukehu had simply made them for groups living there and been paid in guns and blankets. (Ibid pp189- ( 190}

He then revealed that Rangitihi also had been involved in the early arrangements.. There had been meetings at Te Teko and Te Awa 0 Te Atua which had arranged that "each party was to make a survey without

76 Ibid pp183 & 185

77 Ibid p184

78 2 Whakatane MB 187, Wai 46 12(h)

79 Idem

80 Ibid p190 236 disagreement about the different lines intersecting with one another, and to . leave all differences for the Native Land Court to settle". 81 Penetito Hawea confirmed this evidence, but added, significantly, that "government officers" had recommended the course taken. 82 As was typical of other investigations in this area, the process was being driven by land purchases.

According to Penetito, when Hakaraia received payment for the block he gave some to Ngati Awa. 83 Penetito went on to downplay the Ngati Awa case in the block. 84

The result can not have been surprising to the parties. The judgment read "The Court has carefully considered the-evidence given at the present sitting and has placed it side by side with that given in 1881, and in respect of that given by Hakaraia it finds considerable variance", and found Rangitihi entitled to 112 of the overall Pokohu block, with the remainder divided equally between Ngati Pou and Ngati Awa. 85

This is an interesting case which shows how arrangements made out of the court, could affect to a considerable degree the evidence given. It seems to have been a case where Ngati Pou, and in particular Hakaraia, could have chosen to emphasise either Ngati Awa or Ngati Rangitihi links before the court to achieve the desired and a still quite 'legitimate' result. Indeed the court commented in the 1881 hearing that it was a pity the Ngati Rangitihi and Ngati Pou groups had not reached an accommodation and saved the court time. 86 Hakaraia' s own efforts to explain the divisions between the groups illustrates this point:

A portion of the Ng'pou of whom Ruka was one, looked to the Arawa for support. The Ng'Pou never looked to the Ng' Awa for support, excepting those intermarried with the latter, and they did. There had been intermarriages as I have stated between the two, and those only

81 Ibid p194

82 Ibid p197

83 Ibid p198

84 Ibid pp198-189

85 Ibid p217

86 Ibid p274 237 looked to the N g' A wa for support. 87

Ruawahia This 20,600 acre block is on north eastern edge of Lake Tarawera. Claimants in the case were Ngati Rangitihi and Tuhourangi. The court in February 1891 awarded the block to Ngati Rangitihi represented by Arama Karaka. The only comment concerning Ngati A wa appears to be the statement that:

Aherata's[?] claim on behalf of certain members of the Ngati Te Apiti tribe is more easily dealt with than the last, for this witness has given the names of those for whom she claims, and her evidence has been straightforward and to the point. (I Among others she claims for the descendants of Paranihia by her husband Rangitukehu of the N gati A wa tribe right[?] Wharehiraka and Te Taiawatea and their children. In this case it is clear to the Court that there has been no occupation by these people since Paranihia left these lands, and there has been no evidence to show that she ever occupied these lands or belonged to that part of the Ngati Te Apiti included in Rangitihi. Their claim is therefore dismissed. ,,88

Aherata went on to make several other claims under other ancestors.

Tuararangaia Judgment on this block of 8656 acres was given in January 1891 after hearings commencing in December 1890. It presented a difficult situation for ( the court, since the block had been 'practically unoccupied' for the last 50 years.89

Paora te Whaiti claimed the block for the "Hamua, Warahoe and Tuhoe tribes". Counterclaiming for the whole of the block were Pene te Huki, of Ngati Pukeko, and Te Hurini Apanui, who had a separate counterclaim for "various hapus of N' Awa including Warahoe who are domiciled among them". Penetito Hawea was also a counter claimant, but for discrete portions

87 Ibid p188

88 12 February 1891, 4 Whakatane MB 304-305, Wai 46 12(i)

89 4 Whakatane MB 151, Wai 46 12(j) 238 of the block, a western portion for "Ngai Taipoti and Warahoe hapus of N' Awa" and a part in the east for Ngati Pukeko. 90

The Taipoti claim was dismissed. The other claimants did not support it in their evidence and the court could find no exclusive Taipoti interest - finding that it must come within any general Ngati Awa interests in the block.

The Hamua and Ngati Pukeko groups admitted that they had been defeated in the past by Ngati Awa, and that Ngati Awa had occupied the Matahina block, but denied that Ngati Awa had conquered and occupied the land contained in this block.

The Ngati Awa case was that they had mana over the land and that Apanui ) and Rangitukehu had, some time between 1830 and 1860, returned the land to the Warahoe and Hamua groups in an exercise of this mana. The Warahoe and Hamua groups had left the land during the fighting in 1865.

The 'surrender' of the land by NgatiAwa was held to be sufficient to give the Hamua and associated Warahoe groups a clear title to the land:

The N' Awa are apparently under the impression that because the N'hamua joined Tuhoe in the rebellion of 1865 that therefore they have a right to resume possession, in fact, confiscate, the land. The Court cannot allow such a right.91

As for the Ngati Pukeko claims, the court found that they:

did not at any time reside permanently on this block of land now under investigation, but that it did exercise certain rights of ownership over the land, such as building canoes, and these acts will be considered in the judgment. "92

Ngati Pukeko were awarded 1000 acres on the Waiohau boundary of Tuararangaia, and the remainder of the block was awarded to the Hamua, Warahoe and associated groups.

90 Ibid p147

91 Ibid p149

92 Ibid pp150-151 239 The judgment shows that the court was not prepared to countenance a continuing Ngati Awa right of mana over the land that was not backed up by actual use in the recent past. The Hamua and Warahoe groups had shown the most recent 'use' by requesting to be allowed to return to the block. As a practical matter however, it seems that the links between the Warahoe and Hamua groups and Ngati Awa were quite close, so the decision probably did not result in actual dispossession of all those Ngati Awa interested in the land.

Tautara This block claimed only by various hapu of Ngati Pikiao, with the judgment being delivered in September 1893.93 ( Evidence was given of very early fights with Tuwharetoa and Ngati Awa on the block near Tikorangi, in which Ngati Awa were defeated, but there were no Ngati Awa claimants for the block. 94

Once again, the court emphasised physical use over any other claims to rights in the land. Finding the evidence contradictory, it felt that it "must be guided in awarding the land by the occupation of the parts disputed" and dismissed claims which did not rest on physical use. 95

Rotoma . Rotoma block lay along the southern shores of Lake Rotoma. Claims to the title for this block were heard in 1893, with judgment being given in August 1893 by Judge Scannell. The location of the block is significant for the ( present Ngati Awa research, as it is close to the Otitapu pa and tracks which Ngati Awa claimants say they controlled and which controlled access to the area now known as Rotoehu forest.

Ngati Awa were not the major claimants for the block. The Ngati Pikiao hapus Ngati Tamateatutahi and Ngati Kawiti brought on the inquiry, the only Ngati Awa re~ated claimants being Hapimana Harawira on behalf Te Tawera hapu otherwise known as Umutahi, who claimed a portion of the part of the

93 12 Maketu MB p139-142, Wai 46 12(k)

94 Ibid p68

95 Ibid 141 240 block called Kawerau on the grounds of ancestry from Umutahi, conquest and occupation. This and other counter claims were dismissed.

In general, the claim by Hapimana Harawira was poorly led. He admitted very little knowledge about the block, saying he had not personally used it, but his immediate forbears had. He was unclear as to the boundaries of the area he claimed when asked to point them out on a map. The Ngati Pikiao claimants on whose behalf the map had ben produced. were better prepared.

In his August judgment Scannell found that the evidence brought in support of the counterclaims was "quite insufficient in itself to base any claims on - There is nothing whatever even in the affirmative evidence to show that these hapus or either of them ever owned any part of Rotoma - and when taken with the full, clear and consistent evidence given by the claimants the court has no hesitation whatever in dismissing those claims. "96

The evidence of two witnesses casts interesting light on Otitapu and its significance. According to their evidence, it was a boundary between Ngati Awa and Te Arawa.

Harawira of Te Tawera hapu (also known as Umutahi) gave evidence that a war party had come against Ngati Pikiao by way of Otitapu. This event had been used as an opportunity to make peace between Ngati A wa and Arawa tribes, with Ngati Pikiao brokering it. 97 Under cross examination Hapimana said:

Q. Was not Otitapu the boundary laid down as a line to divide the tribes so as they might live at peace. A. Yes. (neither side were to trespass beyond that line). Q. Was not that boundary between N. Awa and the Arawa - Was not this "Tatau pounamu" established between the two tribes A. Ye~. - it had nothing to do with the ownership of the land but it was to prevent wars between the two tribes Court Q. What tribe owned the land on which this Tatau Pounamu was erected. A. N. Tuwharetoa. Otitapu belonged to Tuwharetoa. I am aN. Tuwharetoa. The boundary line between N. A wa and the Arawa was

96 11 Maketu MB p36, Wai 46 12(1). The Ngati Tamateatutahi claimants appeared to be well prepared and had a "conductor" for their case. p36

97 Ibid p201 241 erected on land belonging to N. Tuwharetoa. Mikaere Q. Was this "Tatau pounamu" set up on N. Awa. A. I heard it was set up by the chiefs of N. Tuwharetoa they set it up between N. Awa and the Arawa. N. A wa were on the eastern side ... 98

Another Tawera witness, Hamiora Tumutara said:

Q. Dont you know that liTe Tatau pounamu" was between Hokowhiti on the one side and Te Tikau on the other A. It was not in Hokowhitu' s day that it was established it was long before Q. Dont you know it was set up between the Arawa and N. A wa after the war about Ikea and that this boundary extended from the coast to ( I Otitapu and on to Haehaenga. A. It was established long before that time Q. What chiefs of Arawa were living when it was established A. Marama and others. Q. Did you not hear that Marama let up the boundary on the Coast. A. Marama and Ikea were not contemporary - Ikea was long after Marama's time"99

Hapimana also specifically located the site:

My boundary begins at Otitapu. (marked) I begin my boundary there because the confiscation boundary traverses that boundary. Otitapu is just inside the confiscated line, it is a summit. (points out Otitapu near the trig station about two miles from the confiscated boundary).100 (

However, he followed Hamiora who had failed to point out any of the places he mentioned in evidence, including Otitapu, on the map before the court. The claim he. was making was sketched in, and Hamiora would have had the benefit of that when he gave evidence.101 We should not simply assume this was ignorance however. Hamiora was looking at a map which he had not created, and he was by no means the first witness before the land court

98 Ibid p209

99 Ibid p210

100 Ibid p213. The evidence in brackets are notes of the judge or registrar

101 Ibid p198 242 to confuse matters such as the location of the confiscation line.

Te Riu 0 Te Papa This was a small 28 acre block in the south western edge of the confiscation. Judge Scannell determined the ownership in 1894 without investigation, by simply confirming the unchallenged Ngati Umutahi hapu of Tuwharetoa as the owners.102 This demonstrates that groups with Ngati Awa links had interests west of the confiscation line.

Ruatoki ( , Title to this block was investigated in 1894 at the instigation of Tuhoe \ ) groups. It then had a surveyed area of 21 ,450 acres. Judge Scannell ruled on the claim, dismissing a Ngati Awa counter claim for the whole of the block and a Ngati Pukeko counter claim for part. The counterclaims were:

Tamati Waaka claiming for the N. Pukeko hapu the exclusive ownership of that part of the block lying West of the Whakatane river the grounds of claim being ancestry conquest and occupation the ancestor put forward as the root of title being Iratakitaki son of U eimua the elder brother of Tanemoeaki and Tuhoe.103

and:

Tiaki Rewiri for the N.Awa tribe claiming exclusive ownership of the whole block by right of ancestry conquest and occupation and mana. the ancestor being U eimua and the conquest being by his children over the younger brothers of Ueimua viz Tanemoeahi and Tuhoe and their children and a subsequent conquest over certain other descendants of U eim"l1:a ie Te Kareke hapu.104

and:

Penetito Hawea claimed for N'Pukeko and N'Te Kapo[?] hapus the

102 43 Judge Scannell MB p39, Wai 46 12(m)

103 43 Judge Scannell MB 148, Wai 46 12(n)

104 Ibid p148 243 same parts of the block to which claims were already preferred by Tamati Waaka and Te Waaka Ranui for the same hapus. This claim was practically merged in those others during the hearing as the counter claimants neither called any witnesses in support of his claim nor examined any of the witnesses called in support of other claims. !Os

It was elsewhere explained that Te Waaka Ranui' s claim to lands on the banks of the Whakatane river was on behalf of Te Kapo hapu - a hapu of Tuhoe. 106

The Ngati Awa counter claim was that while Tuhoe had held the land till the death of the ancestor Ueimua, after his death they had attacked the area and (I driven out Tuhoe. They permitted some persons to return and live on the land about the time of Christianity but this gave no right in the land. Tuhoe argued that Ngati Awa attacks had been less successful than Ngati Awa made out, and that tuhoe had had a continued presence on the land in their own right, despite the Nga Puhi invasions causing a withdrawal from it for a time. " Judge Scannell that the Ngati Awa claim based on the defeat of Tuhoe tribes, was similar to the Ngati Pukeko argument, but:

... though various acts of ownership in remote times are instanced - now incapable of proof - there is no instance of any occupation within the last four or five generations which the Court can received as a proof of ownership - entitling this tribe or any members of it to the whole or any part 'Of the block. (

Both N . Pukeko and N .Awa it is true have continuously claimed ownership as shown by the meetings held at Rewarewa and Rauporoa, between them and the Urewera, these have always been assertions of ownership - but now when it is necessary they should prove their assertions by undoubted proofs of occupation for the least four or five generations they fail altogether - We cannot see that in either case - they have shown evidence of that occupation - on the contrary the - ignorance of locality displayed - and of the makers of occupation of

105 Ibid p150

·106 Ibid p149 244 their people on the land go to prove they never could have occupied. 107

Accordingly, the claims were dismissed.

Judge Scannell outlined very clearly the view of the court on occupation:

Before entering into the question of the ownership or otherwise of the different claimants and counterclaim ants it may be convenient to point out the vast amount of irrelevant evidence thrust into the proceedings - evidence directed to transactions supposed to have occurred in very remote times - which whether true or otherwise it is impossible and indeed unnecessary now to determine - as they have no bearing on the ( ownership of lands at the present day. \ The ownership of lands in the present day is determined entirely by long continued occupation and proof of this occupation is generally all that is necessary to enable the Court to determine the ownership.

Where persons are in occupation at the present time it is some but not conclusive proof of ownership. Where such occupation extends backward to the time when British law was established it is still stronger and when it goes back three or four generations previous to that it is strong enough to give a right no matter how that right was acquired. 108

Scannell also· discussed the court's view of conquest, saying that it was relevant only if the court found that the original occupiers had been driven , ) entirely from the land. The original intention of the victors, something witnesses focused on, was irrelevant. 109 The court was interested in expUlsion and then continuous occupation to at least 1840. 110

There were no appeals from Pukeko or Ngati Awa, but numerous appeals

107 Ibid p161-162

108 Ibid p157. He went on to discuss the 1840 rule - see under "Pakeha views of tikanga" above

109 Ibid p158

110 Ibid p159 245 from Tuhoe people seeking to have their names included. 111

Taumana This block of 700 acres was created when the court determined two separate appeals against decisions in the Rotoma and Tautara blocks. The court considered that the appeals were not a matter between tribes, but rather a case of "riri whanaunga" .112 No Ngati Awa interests were noted or advanced, the land being awarded to Ngati Rangiunuora.

Rotoiti Block Title to this block was investigated in 1899 and 1900 and a judgment given (' in October 1900. The area concerned was large and the claims complex. In contrast with the operation of the court when it heard the Otamarakau block, the approach was now much more sophisticated. Kaiwhakahaere conducted the cases of each of the groups who appeared. I13In its judgment the court noted that:

As most of the Kai-whakahaeres or their clerks had been educated at St. Stephens & other Native Schools, & had a good knowledge of English, the Minute Books of all Courts which had sat in this district during the past twenty-five years (or more) were ransacked to find evidence which would have any bearing upon this case. Matters have been threshed out as they have never been threshed out before - in fact, as stated recently by Te Pokiha Taranui, the great length of time occupied by this case is the "outcome of knowledge" (mohiotanga).1l4 (

In the interests of better informing itself, the court allowed statements from previous court judgments to be read and used, despite their technical status as hearsay ..

There were no Ngati Awa claimants in the case.' The case is still interesting for the light it throws on the operation of the court in 1878 when the

111 See Wai 46 12(n)

112 16 Maketu MB 95 Wai 46 12(0)

113 There were eleven! 24 Maketu MB 361, Wai 46 12(p)

114 Ibid p360 246 Otamarakau judgment was made - which have already been noted above.

The Court also made some interesting comments relevant to the arguments about occupation at Otamarakau before the Nga Puhi invasions:

This Court feels convinced that Hei's "taumou" of a tract of land named after his son W aitaha did not extend further Eward than Otawa. Had it been over the whole of the land from Tauranga to Otamarakau, as alleged by Ereatara, the "taumous" made by Tia & Tamatekapua would have been in the nature of a 'takahai', quite opposed to "tikanga Maori", & which would have been resented. The people now known as the "tuturu" Waitaha-a-Hei do not own land on the E side of the Waiari Stream; the people known as the Tapuika have occupied the Ranginu[?] lands which were "taumou" 'd by Tia & named after his son Tapuika; & the descendants of Tamatekapua owned the land here at maketu & inland at the back of it.

The Court believes that Tieri's version is the more correct one - namely, that Waitaha-Turauta, alias Tahuwera, etc), who is said to have been a son of Waitaha-a-Hei - but who might have been a nephew, as shown in the genealogy given by Ereatara in the case re Tahunaroa No 3, heard by Judge Scannell, (but which genealogy he has now disclaimed) - was left behind at Hawaiki when the Arawa canoe started, but followed in a canoe named Te Whatuoranganuku, which r~ached New Zealand at Whangara. After being burnt out, as a notice to quit that part of the country, he came N ward in search of his father, but, upon reaching Otamarakau, he married Pikirarunga, the daughter of U ruika, & did not trouble further about looking for his father. He explored & occupied the land towards Matawhaura & :J;.-ake Rotoehu, his descendants subsequently occupying the land E ward of the line from Te Mokoroa to Iringa-o-te-Pake-o-Moho _ ..... 115

The court also examined the motives among Arawa for advancing particular ancestors:

The Court believes that some of the descendants of W-aitaha-a-Hei left their own district owing to the Rangihouhiri invasion, some going S ward & others E ward, & that the latter intermarried with the descendants of Waitaha-Turauta, who had not been molested by Te

115 Ibid p364-365 247 Rangihouhiri. The descendants of those intermarriages would doubtless consider that their line of descent from Hei & his son W aitaha, who came in the famed Arawa canoe, was their "taha tino rangatira" &, in time, their connections with Waitaha-Turauta, who came later, (in the comparatively unknown canoe named Te Whatuoranganuku,) would be allowed to fall into the background. When they came before the Native Land Court, they chose to claim land under certain ancestors, as being descendants of Hei, & gave their genealogies accordingly - & nobody considered it necessary to contradict them, so long as it was arranged that certain persons were to be included in the title .

. The question as between Waitaha-a-Hei & Waitaha-Turauta might have been settled when the list of names for the Waitahanui portion of the ( great Otamarakau Block was before the Court, but the dispute between N'Te Kehu & Ereatara' s party was relegated to outside discussion, & there is no record beyond the fact that the lists were disputed. 116

Witnesses also confirmed the early occupation of Ngati Awa at Otamarakau: T ·· A long time after that, news came that Ngapuhi were coming on an ... '. expedition to the "Rawhiti" - the hapus of N' Awa living at Otamarakau - N'Irawharo & N'Hikakino - were afraid lest they shld be killed by Ngapuhi - Then they fled inland to Rotoehu - They lived at the Parakiri pa, on Rotoehu - That is off this block _ ... 117

Comments were also made about the Otitapu pa site, with Ropeta Haimona te Hauiti stating: ( N' Awa were coming to fight agt. N'Pikiao at Rotoehu - Te Mana wetn out & met Te Ramaapakura at otitapu. They made an arrangemt. that no 'ope' sh. even travel by that road. That arrangemt. of theirs was named· 'tataupounamu' ..... Te mana & Te Rama were related & that is how they came to make the arrnagemt. to. 'kati' the road by Otitapu agt. 'ope whawhai' .118

Later in the case, Tiera Te Tikiao referred to Ropeta comments. He

116 Ibid 366-367

117 18 Maketu MB 134, Wai 46 12(p)

118 •· 21 Maketu MB 77, Wai 46 12(p)

.. . """,,F.,.,., ___ .=, .. _.~_._._~.~._.:%~~~::(:~i.~~~~?~::~ ::H.:~;~~·.:;~#:,;~~~~~:ft:~r:~~~~~:t~~::.~~~~~:~=5~'~~:~::~:.~~.':~,",,', ',~.-~ ~---..... __ '__ ~."""'''''' __ '_'''_'_'_'_''''' __ ~''~_-'''''''''''' .. __ ... 248 disagreed with the timing of the establishment but otherwise supported the story:

I have heard of the name 'Tatupounamu' at Otitapu - Latter is the name of road - An arrangement was made to prevent the passage of war-parties by that road. The name was given to a 'pou' (or 'pakoko') set up at Te Pakipaki - who [which] is a 'taumata' overlooking Te Teko in the Whakatane district. That arrangemt. was not made by N'Tiki It was made bet. [between] N'Tamateatutahi & Ngai Tamaoki hapu of N' Awa. The 'tikanga' was that Ngai Tamaoki shld. [should] 'kati' N' Awa "opes" from travelling by that road, & that n'Tamateatutahi shld. do the same in respect of Arawa 'opes'. That arrangemt. called 'Tataupounamu' was made in the time of my father Te Tikiao. It was he who 'whakaoti'd that arrangemt. There was no actual 'pounamu', but that us a 'taonga nui' - so also are people - the 'tatau was like the door of a house who was not to be opened ... 119

If we interpret "taumata" to refer to a hill then this evidence suggests Otitapu was a road, but also a hill site as Hapimana had pointed out in the hearing for the Rotoma block. Whether the hill site was once a pa, or only came to have that name after the pou was established there is not answered by these or Hapimana's comments.

.: 119 24 Maketu MB 51, Wai 46 12(p) ( )

1,

(