C'L Waiohau C26 Ruatoki By Sharyn Green Waitangi Tribunal research series 1993/7 This report was commissioned by the Waitangi Tribunal for the Waiohau C26 claim, Wai 247. Any conclusions drawn or opinions expressed are those of the author. Waitangi Tribunal Division Department of Justice Wellington 1993 This report may be cited as 1993 WTRS/7 ISSN 1172-2509 ISBN 0-908810-25-3 Crown copyright 1993 First published 1993 by the Waitangi Tribunal Division Department of Justice POBox 5022 Wellington New Zealand 1 Introduction My name is Sharyn Green (Ngati Maniapoto) and I am employed by the Waitangi Tribunal Division. I completed my Bachelor of Laws at the Dunedin, in 1991. While at the university I tutored Maori language for the Maori Studies Department and completed part of a Maori Studies degree. I was admitted to the bar as a barrister and solicitor in October 1992. I was commissioned to prepare this exploratory report for the Waitangi Tribunal in May 1992. This claim concerns the acquisition of part Waiohau C26 by the Ministry of Works (MoW) under the provisions of the Public Works Act 1928. Almost all of the information for this report was supplied by Bill Patrick, retired former Registrar of the Maori Land Court for the Waiariki region prior to his retiring. Mr Patrick collated his information from MoW files, Maori Land Court files and Maori Trust Office files. This report is concerned with Waiohau C26 from the time it was acquired by the Crown in 1961. At the time that the block was taken, it was included in the Ruatoki development scheme. Information concerning how the block came to be included in the scheme has largely been omitted. The scheme is mostly discussed in the context of the Department of Maori Affair's conduct at the time that the land was taken for the public work. 2 Location Waiohau C26 consisted of an area of 47 acres prior to the Crown's acquisition for a power supply. 1 The block is in the Bay of Plenty region and is located on the Galatea - Te Teko road, 27 kilometres south of Te Teko. As at 1984 the land still had several scraped out areas from the metal extraction with poor pasture and some gorse and fern. On the northern boundary the land falls slightly down to the Waihua stream. 2 3 The Claim and Claimants A former owner of the block, Kaari Waaka, lodged a claim with the Waitangi Tribunal on 10 August 1987.3 Kaari Waaka was one of ten shareholders listed on Particulars of title issued from the Waiariki District Maori Land Court, 7 July 1961; document bank (db) p13 2 Valuation Department appraisal, 21 February 1984: db p39 3 Correspondence from counsel acting for claimant; appendix 1 1 Waitangi Tribunal Research Series: Waiohau C26 the particulars of title for Waiohau C26 while the land was part of the development scheme. Kaari Waaka's share was lout of a total of 22.45. Ani Heni and Huka Hiki held the majority shareholding between them: 15.15.4 The claim was registered as Wai 247 by a Waitangi Tribunal direction on 11 November 1991.5 The claimant alleges that the taking of the block by proclamation, rather than paying royalties for the metal extracted, was a dishonourable action by the Crown and to the detriment of the owners because: • the Crown should have negotiated with the former owners to extract metal from the land at an agreed price, • the value of the metal taken far exceeded the amount paid in compensation for the acquisition of the land, • the Crown took more land than was necessary, and • the Crown has made no effort to restore the land to its former condition. For the above reasons the former owners (the claimants) ask that the tribunal recommend that the Crown offer back the land without payment by them of any consideration. 6 4 Waiohau C25 The postscript to this report will concern part Waiohau C25, since the Crown's offer to return Waiohau C26 to the former owners for $20, 000 includes a small portion of Waiohau C25 (which lies adjacent to Waiohau C26). Part of Waiohau C25 is being offered as a package deal to the former owners of Waiohau C26 since the stream which runs through both these blocks would form a natural boundary between the two rather than one being land-locked (see block plan in appendix 3).7 4 Particulars of title (see footnote 1) 5 Memorandum - directions of the Waitangi Tribunal; appendix 2 6 ibid 7 MoW memorandum to the Maori Land Court, 24 July 1984; db p31 2 Waitangi Tribunal Research Series: Waiohau C26 5 The Acquisition of Waiohau C26 On 18 May 1933 parts of Waiohau C26 were included in the Ruatoki development scheme. 8 Waiohau C25 was also included in this development scheme at this time. The MoW wrote to the Maori Land Court inquiring as to the status and ownership of the block. The court replied on 7 July 1962. At this time the block was in the Ruatoki development scheme and therefore subject to Part XXIV of the Maori Affairs Act 1953. Since the land had not been developed however, the deputy registrar of the court said that the Department of Maori Affairs was prepared to release the land from inclusion in the scheme.9 The MoW replied to the Maori Land Court on 12 July 1961 asking if royalties should be paid since concrete aggregate was required from Waiohau C25. The deputy registrar was also asked to advise whether the MoW would have to back fill the area "taken".l0 The Maori Land Court advised the ministry that it should either negotiate with the owners for a licence, or take the part of the land where the metal was situatedY It appears that the ministry was given this advice based on the premise that the land would be released from Part XXIV, (the development scheme provisions), since the Maori Land Board would normally represent owners while their land is subject to Part XXIV. The deputy registrar did advise the ministry that in the event that the ministry wished to negotiate for a licence, there would need to be a meeting of owners called, and if a resolution passed at the meeting, the Maori Land Court would still need to confirm it. It was said that "the owners and the court would determine the terms of the licence. ,,12 The District Commissioner of Works instructed the project engineer at Te Mahoe on 18 August 1961 to serve notice under s17 of the Public Works Act 1928. s17 is 8 New Zealand Gazette, 18 May 1933, No.37 p1373; db p32. By this notice, 65a Or Op and 560a 1r 30p of Waiohau 1A1D1 and 1A1D2 respectively were included in the scheme. A consolidation order issued by the Maori Land Court on 1 October 1936 named the former Waiohau 1A1D1 and 1A1D2, Waiohau C26 and named the 10 owners of the block in a schedule of owners, see db p75 9 Letter from the Deputy Registrar of the Maori Land Court, Rotorua, to the MoW, Matahina, 7 July 1961; db p12 10 Letter from the MoW to the Maori Land Court, Rotorua, 12 July 1961; db p14 11 Letter from the Deputy Registrar of the Maori Land Court, Rotorua, to the MoW, Te Mahoe, 21 July 1961; db p15 12 ibid 3 Waitangi Tribunal Research Series: Waiohau C26 discussed below but briefly it provided the Crown with two powers where natural material existed in land and that material was desired by the Crown for public works. The Crown could either take land which had material existing in it or it could serve notice upon the owners/occupiers of the block stating that the land will be entered upon after 24 hours for the extraction of the material. It is unclear from the district commissioner's instructions which option the ministry intended at that time. It was instructed however that there be no mention of an award of royalties to the owners. 13 It can be shown that the acquisition of the land, rather than the paying of royalties, was a cheaper option for the Crown. A letter from the project engineer to the district commissioner gives an estimated royalty of one pound per hundred cubic yards. The same letter says 140,000 cubic yards of concrete aggregate was required for the Matahina power project. Based on this assumption, approximately 1,400 pounds in royalties would have been due to the owners. 14 The Crown paid 420 pounds for the acquisition of Waiohau C26. On 15 November 1961 Maori Affairs authorised the MoW to enter upon Waiohau C26 in anticipation of the MOW taking it by proclamation.15 On 16 August 1962, 46a 3r lOp of Waiohau C26 and 2a 3r 3p of Waiohau C25 were taken by proclamation for the Rangitaiki river power scheme, (the Matahina dam).16 The Maori Land Court sat on 16 October 1962 to determine the award of compensation to the owners. The court awarded £440 compensation.17 No owners were present at the court sitting. 18 A valuation of those parts of Waiohau C26 and Waiohau C25 that were taken valued the C26 area at £420. 19 Waiohau C26 had been occupied for most of the year so the court awarded £20 compensation for loss 13 Letter form the District Commissioner of Works, Hamilton to the project engineer, Te Mahoe, 18 August 1961; db p16 14 Letter from the project engineer at Te Mahoe to the District Commissioner of Works, Hamilton, 21 August 1961; db p17 15 Copy of letter from the Department of Maori Affairs to the Ministry of Works 15 November 1961; db p20 16 New Zealand Gazette, 23 August 1962 No.53 p1370; db p34 17 Whakatane minute book, 16 October 1962, vol 36 p287; db p35 18 ibid 19 Valuation Department appraisal,12 September 1962; db p36 4 Waitangi Tribunal Research Series: Waiohau C26 of occupation and £420 for the taking.