8

A Pre~iminary Report ~o ~he Wai~angi Tribuna~ on ~he c~aims re~a~ing ~o ~he Cha~ham Is~ands, ~odged under Sec~ion 6 of ~he Trea~y of Wai~angi Ac~ and regis~ered as WAI 54, WAI 64, and WAI 65.

by Buddy Mikaere and Janine Ford

(based on initial research materials compiled by Paul Harman) Zeblond " U9\:) Rangitutahi :' .~. \ (The Sisters) ., ..... 2;/...... j ! ...... ,::" ......

, Pi

E 180· W

Chatham Island CUb (] Ch o °nne{ Hanson Bay Western Petre Reef

Owenga Motuhara o· 0 (The Forty-Fours)

Q I). • Houruakopara

Motuhope d d Sentry Reef (Star Keys) "

Mangere Tapuaenuku (The Fort) #9 Rangiauria (PiU Island) Rangiwheoa (The Castle) .#

Passage Rock CS Rangatira Ahuru Murumuru (South East Island) (Eastern Reef) Rangituke (Round Rock) South Reef . Fancy Rock

o Tarakoekoea (The Pyramid)

Figure 1: The Chatham Islands 2 Contents page Acknowledgements: ...... 3

Abbreviations: ...... 4 Part I: 1. Section 1: Introduction: ...... 5 2. Section 2: The claims and claimants: ...... 6 3. Section 3: Scope of the research and report structure: ...... 9 4. Section 4: The claim area: ...... _0 ...... 12 Part II:

5. Section 5: The Historical context: Moriori - research items 3, 4 and 10 : ...... 14

6. Section 6: The Historical context: Maori - research items 5 and 11: ...... 28

7. Section 7: The Historical context: New Zealand - research items 13 - 15' inc 1 usive: ...... 38

8. Section 8: The Chatham Islands and the Treaty of Waitangi - research item 16 ..•...•.....•.•....• ~ .• 44 9. Section 9: Land Ownership - research items 1 - 2, 6 - 8 and 12:...... 4 6 10. Section 10: Fisheries - research items 17 - 19 inclusive: ...... 81 11. Section 11: General account of the background to the Chatham Islands claims - research items 9, 20 and 21: ...... 94

12. Summary Conclusion and Recommendations: ...... 97

13 . Bibliography ...... 98 3

Acknowledgements

For assistance with materials and advice the Tribunal acknowledges the contributions made by Dan Baker, Rev B Cox, Lyndsay Head, Dr Michael King, Rhys Richards, Sheila Natusch, Professor Gordon Parsonson, Jim Pohio, Maui Solomon, Dr Robert Stringer and Ms M White. From the staff of the Tribunal we wish to thank Paul Kennett, Kiritahi Takiari and Noel Harris for their contributions. 4

Abbreviations

ATL Alexander Turnbull Library JPS Journal of the Polynesian Society NA National Archives RDB Raupatu Document Bank TNZI Transactions of the New Zealand Institute 5

PART 1

Section 1

1. Introduction

1.1 The attached report is in response to the commission contained in a direction dated 8 August 1990. 1 Because of the pressure of the Tribunal research workload and changes in personnel, completion of this report has been seriously delayed and the inconvenience caused to the claimants and the Tribunal is regretted.

1.2 The authors:

My name is Buddy Mikaere and I am the Director of the Waitangi Tribunal. I have held this position for the last three years'. I am a published author specialising in New Zealand history. Previous work completed for the Tribunal includes reports on the background to the land confiscations at opotiki (Wai 87), the George Green Estate claim (Wai 157) and the Kekerione claim (Wai 181).

My name is ,Janine Ford and I graduated with a BA (Hons) degree in history from the University of Canterbury in 1988. I have been working in the Treaty issues area for 3 and a half years, initially with Maruwhenua, the Maori Secretariat within the Ministry for the Environment.' I first'worked for the Waitangi Tribunal in August 1989, in conjunction with the Maori Land Information Office, compiling . material for the Raupatu Document Bank. I was then contracted by the Tribunal from July 1990 - December 1991, during which time I worked on the (Wai 143) Taranaki claim. In that time I completed six research reports and a report on the Whitireia Block in Porirua for Wai 89. I am currently contracted for further research work on the Taranaki claim.

1 Attached as Appendix 1. 6

Section 2 2. The Claims and the Claimants

2.1 For the purpose of this report and the initial Tribunal handling of claims related to the Chatham Islands, three seperate claims have been joined under Wai 64 as the master file for the Chatham Island claims. It is a convenient method of dealing with the claims but it should be noted that each claim retains its individual integrity. How the Tribunal will eventually deal with the claims will be determined in due course.

2.2 Set out below are brief details of the claims and the claimants. In submitting their claims, some of the claimants have used a paragraph numbering system similar to that used in this report. To avoid confusion, claimant numbering of paragraphs has been deleted but full copies of the unaltered statements of claim appear in the appendices.

2.3 WAI 54: This claim, filed by Makere Rangiatea Ralph Love and Ralph Heberley Ngatata Love on behalf ·of themselves and on behalf of the beneficiaries of the Taranaki Maori Trust Board, is dated 23 December 1987. While principally concerned with Taranaki confiscated lands, para 3 of the claim reads:

FISHING RIGHTS

... BY denial of fishing rights as guaranteed by the Treaty of Waitangi in relation to the rivers, lakes, coastlines and harbours within the tribal boundaries of Nga Iwi 0 Taranaki •

... BY denial of the fishing rights as guaranteed by the Treaty of Waitangi in relation to the Tasman Sea, Cook Strait and the Pacific Ocean offshore from the lands within the tribal boundaries of Nga Iwi 0 Taranaki •

... BY denial of fishing rights in and around the Chatham Islands.

2.4 The claimants are members of the various hapu that make up the Taranaki iwi.

2.5 WAI 64: is dated 15 March 1988. The claimant, Maui Solomon states:

... I, ... , and all the members of my family, whanau, hapu and Moriori Iwi, claim that we have been prejudicially affected by the 7 actions of the Crown which have alienated us from our fisheries in Rekohu (Chatham Islands). We have been denied the rights and protections of our fisheries, lands and other valued things which were guaranteed to us in the Treaty of Waitangi .••

2.6 WAI 65: is dated 6 April 1988 and is lodged by Mr R R Preece, Chairman Te Runanga 0 Wharekauri Rekohu •.. ..• on behalf of himself and on behalf of the descendants of the tangata whenua, iwi, hapu of the rohe described as Te Runanga 0 Wharekauri Rekohu, otherwise known as Nga Iwi 0 Wharekauri Rekohu or Nga Iwi 0 Chatham Islands. 2.7 They claim to be prejudicially affected by the following acts, policies and omissions by the Crown . ••. By neglect in which lands where taken by proclamation under the Public Works Act 1908 and were uncompensated for • ••• By neglect which lands were wrongfully designated in accordance with the Treaty of Waitangi • ••• By denial where lands on the foreshore have been alienated under the Local Bodies Act 1974 . .•• By failure where alienation of uneconomical shares, in land under the Maori Purposes Act 1968,2 were lost.' ••• BY the grant of lease to low water mark and the licence of use of foreshore and sea bed under the Harbours Act 1878, consolidated' Harbours Act 1950 and Harbours Act s. 156 • ..• By denial of mineral and water rights to Nga Iwi 0 Wharekauri Rekohu where title rests on two only dimensions, of length and breadth allowing a nonphysical third dimension of emotive concept thereby depriving them of the minerals and water rights beneath. FISHING RIGHTS: .•. By neglect, a limited access to the fisheries of non iwi commercial entrants

2 See the Maori Affairs Amendment Act 1967 No. 124 which amended the Maori Trustee Act of 1953 with the insertion of s41D and gave the Maori Trustee the power to ' ... acquire uneconomical interests in reserved land and vested land ... ' 8 provided for by the Fisheries Act 1877 also applied in practice to iwi participants who enjoyed unlimited amateur, professional and commercial status as of hereditary right .

.•. By neglect where an unlimited access to fisheries was permitted by the Fisheries Act 1962 which matured as a property right that settled on specie[s] stocks acquired under the provisions of the Fisheries Act 1983 •

••• By neglect, to provide and to insure otherwise iwi, hapu, whanau and individual participants were treated as commonors in a Fisheries rendered common and so become affected by the control measures of the Fisheries Act •

.•• Byfailure to continue unextinguished title to the fisheries and fish stocks, the minerals soluble in· the water and deposits on the sea bed and in the bed of the sea the and the bestowal of freehold and leasehold property rights on fish and the bed of the sea and the granting of property rights to individuals and groupings of individuals and the placing of . capital values on fish stocks are in breach of Article 2 of the Treaty of Waitangi •

.•• By neglect of non-proclamation the Crown has not secured to nga iwi 0 Wharekauri Rekohu, the internal waters and the waters anq bed of the sea whose potential they have yet to reach .

.•• BY denial of birding rights and sealing rights on outer islands and reefs where titi, toroa, puhia and mihia occur. Wild life and Conservation Act .

.•• By denial of access to outer islands and reefs. 9

Section 3 3. Scope of the research and report structure

3.1 A judicial conference of the first three claimant parties mentioned in section I, Crown representatives and Tribunal staff, was convened by the Waitangi Tribunal on 6 July 1990. Chief Judge Peter Trapski (ret). was appointed under section 8 of the Treaty of Waitangi Act to facilitate.

3.2 The purpose of the conference was to determine how the Tribunal might best deal with the Chatham Islands claims. The parties were requested to submit to the Tribunal a list of the areas of research they believed needed to be covered in a preliminary research report. It was agreed that the Tribunal commission staff to complete a preliminary report by 20 December 1990.

3.3 The resulting commission asked that the 'Historical and Treaty related issues' related to the following twenty-one items be covered in the report: (1) the traditional ownership of land as at 1840, 1880, 1920, 1960 and 1990;

(2 ) the ownership of outlying islands;,

( 3 ) the relevance of the term Moriori to iwi, hapu and whanau before the 1835 migration from New. Zealand; (4) an assessment of the term 'Takata Mo ori ori' or 'Moriori';

( 5 ) the arrival and occupation of the Chatham Islands by Taranaki Maori between 1840-1990;

(6 ) the 'Taranaki' land locations as they are today;

( 7) the rulings of the Native Land Court which disenfranchised Moriori from their land. What weight if any, should the Native Land Court have attached to the Moriori customary rights vis a vis Maori customary rights in deciding the outcome of the various claims;

( 8 ) the relevance of confiscation of land in Taranaki to the outcome of claims before the Native Land Court. 10

(9 ) the historical facts surrounding the claims of Taranaki Trust Board to land and fisheries in the Chatham Islands.

(10) did Moriori custom recognise claim by conquest;

(11) the relevance of a tribal occupation of approximately 5 years prior to the signing of the Treaty in 1840.

(12) the relevance of the 1840 rule in the Chatham Islands

(13) the relevance of the 1842 annexure of Chatham Island to New Zealand

(14) the date upon which New Zealand assumed constitutional responsibility for the Chatham Islands and the historical circumstances surrounding that event.

(15) the status and identity of the island inhabitant groups at the date when New Zealand assumed constitutional responsibility of the Chatham Islands

(16) the application of the Treaty of Waitangi to the Chatham Islands; (17) an examination of customary fishing rights in the Chatham Islands as at 1840;

(18) the basis for the claims to fisheries ;

(19) access to fishing resources;

(20) the historical facts surrounding the claims of the respective parties to a return of Crown­ owned lands in the Chat ham Islands:

(21) the historical facts surrounding the claims of the respective parties to compensation for past injustices and breaches under the Treaty;

3.4 For the purposes of this report common issues have been grouped and will be dealt with as follows:

Section 5: The Historical Context: Moriori - Items 3, 4 and 10.

Section 6: The Historical Context: Maori - Items 5 and 11.

Section 7: The Historical context: New Zealand - Items 13 - 15 incl. 11 Section 8: The Chatham Islands and the Treaty of Waitangi - Item 16. Section 9: Land Ownership - Items 1, 2, 6, 7, 8 and 12.

Section 10: Fisheries - Items 17 - 19 incl.

Section 11: General account to the background to the Chatham Islands claims - Items 9, 20 and 21. 12

Section 4 4. The Claim Area

4.1 What are collectively referred to as the Chatham Islands lie in the southern Pacific Ocean, 700-odd kilometers east of mainland New Zealand, and consist of two main islands, both inhabited - Chatham (90,000ha) and pitt (6,327ha) - which lies 17 kilometres southeast of Chatham. The principal smaller islands are: South East Island (218ha) , Mangere Island (113ha), Little Mangere, The Castle, the Sisters, the Forty-fours, Star Keys and the pyramid.

4.2 The Chatham Islands and their outlying reefs and rocks, constitute the ridge of a submarine mountain known as the East Chatham Rise. All the islands are volcanic in origin. The main island, Chatham rises steeply from the sea as basaltic cliffs along its southern coast. It slopes upwards into a tableland, which was covered in a tarahinau forest, with a variety of broadleaf trees, with tree ferns and nikau palms commonly found in the gullies running down to the coast. Further north, the land falls away in a series of small hills and valleys, intersected by rivers and streams. This area was formerly covered in mixed forests.

4.3 The centre of the island is flat, made,up of limestone and old sand bars, much of which is overlaid ~ith peat. Trees such as kopi, coprosma and akeake grow in the better-drained areas. The island centre is dominated by Te Whanga lagoon, which covers about one-fifth of the island's area 18,200 ha. The northern coast is mainly Iow-lying schist, topped with dunes and peat and dotted with volcanic cones on the western side.

4.4 pitt Island is less varied in appearance. It slopes from a southern volcanic upland down to a sandstone northern coast.

4.5 The islands are located at the convergence of the warm East Coast current from the north and cold water from the Southland current. They also lie at the convergence of two wind patterns, the Trade Wind Drift and the West Wind Drift. The combination of these conditions produce the islands' climate and weather: 'almost incessant wind, near-constant cloud cover, low sunshine hours, wet winters and humid 13

summers. ,3

4.6 The convergence of currents and the location of the islands on the Chatham Rise make the seas around the Chathams rich in marine resources.

3 King. M. Moriori - A People Rediscovered, Auckland, 1989:17-18. Not suprisingly the Moriori name for the islands, Rekohu, is translated as meaning 'Misty Sun'. 14

PART 2

Section 5

5. The historical context: Moriori - Research items 3, 4 and 10.

(3) the relevance of the term Moriori to iwi, hapu and whanau before the 1835 migration from New Zealand;

(4) an assessment of the term 'Takata Mo ori ori' or 'Moriori';

(10) did Moriori custom recognise claim by conquest;

5.1 Before examining the specific issues of items 3, 4 and 10 a brief general outline of Moriori history is appropriate. The claimants should be invited to expand on this section at a later time although the conclusions reached in this section may obviate that need. The only Moriori source used here is that of a Moriori man named Tchuma as recorded by William Baucke although it should be noted that Tchuma is never quoted directly by Baucke. What is given is Baucke's 'interpretation' of what Tchuma said and for that reason concerns about the authenticity of the material are raised.

5 . 2 Because contemporary oral traditions r.~garding Moriori are rightly the perogative of the claimants, this section of the report relies heavily on written sources.

5.3 Who are the Moriori? - Migration traditions

Moriori themselves recorded an origin tradition which said that they came from Hawaiki:

The Moriori is a Tchakat' henu,4 We do not know whence he came. Arrived one day a canoe from Hawaiki. Kahu was the Arik' (Captain) He went away. Our people woken up by this intrusion went to sleep again. Came one day another canoe, how long after Kahu no one knows. The name was Rangimat'. The people

4 In Maori, 'Tangata whenua'. Baucke (Baucke, W. and Skinner, H.D. The Morioris, Honolulu, 1928) wrote the Moriori dialect in this fashion to try and express the actual pronounciation of the words. 15 settled among us and took our girls for wives. Children and children were born and grew into many clans. Ko Rauru-Kah (Rauru the Strong) they called themselves, and fought with the Wheteina and other clans; sometimes to be beaten, but mostly to win. Some think our ancestors were tchakat henu, some think not. That is all we know. s

5.4 H. D. Skinner, drawing on material collected by Alexander Shand, wrote in 1923 that:

••• The Moriori could give no account of the first discovery of their islands. The first canoe of which they had any record was that of Kahu, of whose coming there were two versions. The people of the north end of the island held that he made the land at Kaingaroa, where he found their ancestors Kahuti and Te Akaroroa. Other contemporary ancestors were Maripane, who lived at Matarakau; Tamakautara, who lived at Te Awapatiki; Karangatai and Karangatua, who lived at Whangaroa; and Tapeneke and Taponi, who lived at Waitangi. The other version of the Kahu legend, in which no earlier inhabitants are mentioned, makes Kahu land at Tuku, where he left his canoe and went by land around the island. 6

5.5 In .more modern times writers such as archaeologist Janet Davidson have summarised Moriori origins as follows:

~he Chatham Islands ••• in prehistoric times .•• were the home of an isolated group of Polynesians known as the Moriori. These people were very similar to, but distinct from, the New Zealand Maori and spoke a separate but closely related East Polynesian dialect. Despite widespread popular belief that the Moriori were a vanquished group who fled to the Chathams from New Zealand, Moriori and Maori were unaware of each others' existence before the rediscovery of the Chat hams by Europeans in

5 Skinner and Baucke 1928:383. The authors quote from an interview between Tchuma and William Seed (where Baucke apparently acted as interpreter) and the material is taken from an 'old-time memoir' but no proper reference is given.

6 Skinner, H. D. , The Morioris of Chatham Islands, Honolulu, 1923:16. 16 the late eighteenth century. Sutton7 has recently argued strongly that the Chathams were settled from New Zealand between AD 1000 and AD 1200 and became completely isolated after about AD 1400. No archaeological sites for this early period have yet been excavated in the Chathams however, and the possibility of settlement from elsewhere in East Polynesia cannot be entirely excluded. 8 .

5.6 In summary, it seems clear that like Maori, Moriori had an East Polynesian origin with the evidence suggesting settlement on the Chathams possibly via the South Island, sometime after AD 1000.

5.7 Pre-contact Moriori lifestyle: There is a considerable volume of information available concerning pre-contact Moriori society. The works quoted here have been selected because of the comparisons they make with other areas of Polynesia. They also contain observations of some unique features of Moriori lifestyle which seem to have influenced their social organisation:

••• it is evident that conditions of life at the Chatham Islands were widely different· from those of any group in central polynesia. An intermediate stage considerably lessening the contrast is supplied, however, by the conditions of life in northern and central New Zealand, in which country the Morioris were probably living before they migra~ed to the Chatham islads; while if the districts from Banks Peninsula southwards be compared a fairly close similarity in climate, flora and fauna . will be observed. The breadfruit tree, the coconut palm, and the paper mulberry, trees of fundamental importance in the social economy of the rest of polynesia, are not present in any part of the New Zealand-Chatham Islands area •..

In northern and central New Zealand the taro and the sweet potato were cultivated but since neither of these plants could be grown in south [ern] New Zealand nor at the Chathams, native life in these districts was devoid of any element of horticulture. Hogs and fowls were absent from both groups, while the domesticated dog, though found in all parts of

7 Sutton, D.G., A Culture History of the Chatham Islands, JPS, 89 (1), 1980:67-93.

8 Davidson, J. The prehistory of New Zealand, (reprint) Auckland, 1987:24. 17 New Zealand, was unknown at the Chathams. Thus New Zealand lacked several elements that are characteristic of polynesian culture, and the Chatham Islands lacked these and still others. The Morioris had no cultivated plants of any kind, nor had they any domesticated animals. More important still, they had neither large trees from which to build canoes and substantial houses nor building stone •.• Thus most of the elements tending to attach society to a fixed locality were absent, and the Moriori social group was, in consequence, largely migratory, building rough houses for winter occupation but deserting them during the greater part of the year, moving from beach to lagoon, from lagoon to uplands,and from uplands to coast again, as the food supply fluctuated season by season. In such conditions the aesthetic arts inevitably languished and social life diverged more and more from what are usually regarded as Polynesian standards. 9

5.8 The following account is by Johannes Gottfried Engst, a German missionary who spent sixty years living on the Chatham Islands and had a close association with Moriori people:

The maintenance for their li~es consisted of ••• Fish, from-the Whale to the Eel, and all sorts of shellfish in and on the seashore, and the fruit from the Karaka trees. They had no . houses - on shores and in woods where they found their food, where night overtook them they lodged in caves, under rocks, under stems of trees covered with fern leaves, there they squatted down by their fires. No cultivations of the soil were practised by them. Their Chief kind of clothing were mats made from the indigenous flax, a fine one on their skin and a rough one over it like a mantle. These mantle­ shaped ones were substantial, thick and warm, inside they were soft and fine, and outside were rough flax twisted on the inner, the outside flax was about six to eight inches long and one overreached the other like scales fitted round the neck, and fell down to the Knees - Some of the men wore sealskin with the

9 Skinner 1923:14-15. 18 fur part inside. lO

They often have repeated in my hearing that at the time of the discovery and before the Maoris came among them they amounted to about two thousand in number. 11

5.9 A more recent commentator on Moriori life, as derived from the archaeological record on Chatham Island (Douglas Sutton) concluded that:

1) The Chatham Islands have been settled for approximately the same period as New Zealand.

2) Initial settlement was made by a group using one or more double-hulled voyaging canoes which travelled from New Zealand to the Chathams. No specific geographical source with New Zealand can be identified at present. However, two major possibilities are presented below.

3) Secondary settlement may have occurred but only in the interval before about AD 1400. Even then arrivals were from New Zealand only, and they were very infrequent.

4) A stable coastal hunting strategy was developed soon after settlement. This involved very substantial ch~nges in economy and social structure. These changes occurred well before AD 1500.

5) In developing a coastal hunting economy Moriori culture became a highly successful adaptation to the Chatham Islands. Success refers to numerical increase. As far as I am able to establish at present, there were 1,663 Moriori alive in 1835, 30 years after the beginning of intensive European sealing on the islands. This suggests a late prehistoric population of about 2,000 people. l2

6) This economic base was only stable under specific conditions. Events of thr

10 Engst, J.G. ms., Florance Collection, Canterbury Museum Library, Christchurch: [n.d.]:ll.

11 Engst [n.d.]:12.

12 Richards 1962, 1972; Simmons personal communication 1978. 19 protohistoric period were followed by a dramatic decline in population. The language was almost out of use by 1870. 13 Native technology and the occupation of prehistoric settlement sites ended· simultaneously about 1850 when the few remaining Moriori moved to inland locations. 14 The last [full-blooded] Moriori died in 1933.

5.10 The pre-contact Moriori lifestyle has much in common with that of the Archaic period of Maori life as found in the South Island i.e. small family groups pursuing a seasonal round of hunting and gathering.

5.11 Moriori social organisation: While Skinner's summary of Moriori social organization has been given here, it is noted that he draws extensively on the earlier work of Alexander Shand whose own work as published in 1911. 15

The Morioris were divided into tribes, and each tribe exercised territorial rights over a definite tract of country. As agriculture was not practised these rights resolved themselves into exclusive privileges of hunting and fishing, and the right to all stranded matter such as whales or timber. The number of tribes and the extent of the territory of each have not been recorded, but as it is stated that the people for miles around would participate in the cutting up of a stranded whal~, it is to be supposed that each tribe claimed a considerable area of country. Shand gives the tribal prefixs as Etchi or Eti [corresponding with Maori: Ngati and Ati] and Ei [corresponding with Maori: Ngai] ••• These diverse tribal names·seem to indicate diverse origins, and we know that their customs differed somewhat. Te Harua, for

13 WaIters, M., 'An examination of Literary Evidence for the existence of discrete groups of Moriori in the Chatham Islands in the 19th century' from Working Papers in Chatham Islands Archaeology, Anthropology Department , University of otago, 1977.

14 Richards, R. 'An Historical Geography of Chatham Islands,' unpublished MA thesis, University of Canterbury, 1962, and Richards, R., 'A Tentative Population Distribution Map of the Morioris of Chatham Island circa 1790,' JPS, v 81, 1972:350-374.

15 The son of Archibald Watson Shand, the first government official appointed on the Chathams. Shand, A. The Moriori People of the Chatham Islands, Their History and Tradi tions, Wellington, 1911. 20 example, practised cremation of the dead, a custom never followed by other tribal divisions. 16

5.12 Shand recorded the names of the tribes as:

Tch Eti-ao, Tch Ei~tara. Tch Eti-ao appears also to assume another form, thus :- T'Etchi­ ao, Tchi Eti-kohee. The other names of tribes were Wheteeina, Haarua, Makao - divided into Makao-a-uha and Makao-a-to Matanga, Poutama, and Rauru. 17

5.13 The Moriori social organization, as it existed on the Chathams, was typically polynesian.:

The Ariki took precedence of all, and no one would dare to meddle with their functions. The Tohungas, or priests, were the most able men of the tribe ..• There were no other distinctions of rank beyond those mentioned. The common people were called Raura. Slavery was unknown - a natural consequence of there being no wars. There do not appear to have been any Arikis among the women, who exercised the same commanding influence, or took an active part in any matters concerning their tribe, as some of the Maori women of rank did. 18

5.14 But Michael King has suggested that far from being fixed, Moriori society was still evolving at the time of contact with other cultures:

Most important (and this is deduced from a combination of archaeological evidence and records from the historical period) Moriori culture was moving away from the traditional hierarchical Polynesian model of chiefs and commoners and developing an egalitarian structure. 19

5.15 Moriori practised a wide number of interesting social customs but for the purposes of this report, attention has been focused on only four aspects of Moriori life because of their relevance to the claim, these are: their attitudes to land, property,

16 Skinner 1923:50.

17 Shand, A. 'The occupation of the Chat ham Islands by the Maoris in 1834' JPS 1892 and 1893. v 1 1892:12.

18 Shand v 1 1892:13.

19 King 1989:26. 21 fishing and social customs in respect of warfare.

5.16 Land: At the time of first contact, Moriori were divided into what seems to be seven tribal districts, with each tribe exercising territorial rights over a definite tract of country:

The rights to resources within the territories belonged primarily but not necessarily exclusively to the tribes and precedent and discussion would have determined which extended family groups had access to them and at what times of the year. 20

5.17 As agriculture was not practised these rights resolved themselves into exclusive privileges of hunting and fishing, and the right to all stranded matter such as whales or timber. 21

5.18 Moriori life followed a round of seasonal migration to whatever food source was most abundant at that time of the year. That being the case it is likely that each member of the closely related family groups which were the basis of Moriori society, would have had an intimate knowledge of the georgaphy of their tribal area.

5.19 The extent of proprietory rights was variable; in size they could extend over one hundred acres, or ten thousand; but were often delimited with great exactness: from marked trees, stones, sights "calling" on some headland, rock, or land feature.

5.20 Property use: In general private property seems to have been restricted to the articles on which individual labour was expended, such as implements, tools, garments, and ornaments. The sources of-food supply were almost always owned communally, though Shand notes that there were 'certain restricted individual rights to places where birds, fish, etc., were procured, which were transmitted to posterity, but not nearly to so great an extent as among the Maoris.' It is likely that private wealth was a source of pride at the Chat ham Islands as elsewhere, and it is probable the finely executed patu (weapons), too heavy to be of practical use, and the great adzes, far too large for use on the stunted timbers of the group~ owe their existence to the love of ostentation. 2

20 King 1989:33.

21 Skinner 1923:50.

22 Skinner 1923:53. 22 5.21 According to Baucke, property rights were communal in nature, an extension of the structure of Moriori society which required patrilineal allegiance: ••. Moriori social government was of a strictly patriarchal form; though primogenital branches might set up sub-clans of their own, they remained subject to the founder's authority; they owed him allegiance and respect yet were independent of control; each family provided its own food; its members feasted or starved according to individual industry; they might fish in company, but the proceeds remained the property of he who made the catch. This did not apply to karaka nuts (kopi-i to the Moriori), which picked and cured, were rigidly divided out to scale. 23 5.22 Fishing: Animal food was supplied by birds of which many kinds thronged the islands, by seal and carcasses of whales, by fresh-water fish, especially eels, by sea-fish, by every kind of shellfish ••• 24 5.23 When a school of whales stranded on the shore the appropriate invocations and offerings were immediately made to Pou and Tangaroa, the head of the first whale stranded being placed on the tuahu sacred to them, to induce a recurrence of the event. The first fish caught were always kept and thrown on the tuahu as an offering (whakahere) to Pou; and so also with eels. Their heads were cut off and thrown down before a tuwhatu which was in som~ places represented by a stone, but ordinarily by a lump of pumice very rudely shaped to repre~ent a man's head ••• Fish thus thrown before the tuwhatu or the tuahu were left to rot there ••. 25 5.24 Moriori used rafts and various kinds of waka for fishing purposes. Fish were taken in traditional ways - through the use of hooks and gorges; nets of various kinds, spearing - flatfish, and clubs - eels. More detailed information on this topic is given in the sections dealing with Fisheries.* check is it? 5.25 Warfare: The archaelogical record for the Chathams does not support a mode of warfare based on fortified paD It is apparent that Moriori fighting, like most pre-contact Polynesian engagements, was on

23 Skinner and Baucke 1928.

24 Skinner 1923:53.

25 Skinner 1923:61. 23 a small-scale and hand to hand in nature. The stone, bill-shaped patu which Moriori favoured supports this conclusion. 5.26 But what was astonishing about this aspect of Moriori culture was the establishment of a prohibition against killing, which, by most accounts, was honoured. The custom was known as the Law of Nunuku, after the ancestral figure who had played a leading role in its establishment. According to Baucke, Nunuku had sufficient mana to command the people to cease the slaughter caused by warfare: 'Rauru! Wheteina! arise and meet!' They arose and met. 'Touch nose to nose!' Nose to nose was touched 'Listen all! From now and forever, never again let there be war as this day has been! From today on forget the taste of human flesh! Are you fish that eat their young?' So it was there agreed that because men get angry and during such anger feel the will to strike, that so they may, but only with a rod the thickness of a thumb, and one stretch of the arms in length, and thrash away, but that on an abrasion of the hide, or first of blood, all should consider honor satisfied. 'And', said the teller, 'all obeyed! Why? Because of the Nunuku curse: 'may your bowels rot the day you disobey! ,26 5.27 This ritualization of warfare was the principal reason given by Moriori as to why they did not take up arms when the Chatham Islands were invaded by Taranaki Maori in 1835. 5.28 Turning now to the specific research issues: (3) the relevance of the term Moriori to iwi, hapu and whanau before the 1835 migration from New Zealand; (4) an assessment of the term "Takata Mo ori ori" or "Moriori"; 5.29 These two issues can be dealt with concurrently. It is apparent from Tchuma's account to Baucke that Moriori thought of themselves as tchakat henu, or in the Maori dialect - tangata whenua - The People of the Land. 5.30 The earliest written record found of the use of the

26 Skinner and Baucke 1928:376. 24 term Moriori comes from 1808. The captain of the sealing vessel Commerce reported:

We cast anchor and proceeded to trade for sealskins. Besides several sealing gangs stationed here we found a considerable amount of natives called in their own tongue, Morioris, ... 27

5.31 The term Moriori as a name for natives of the Chatham Islands, is a form used by all the 19th century observers; Travers also used it in his paper of 1871,28 but in 1876 he used Mori-ori, a form which is without authority but in which he has been followed by several later writers.

5.32 Of the other variants 'Maioriori' appears to be well supported. This form was used by Gilbert Mair29 who speaks of ' •.• Chatham Islanders, or Morioris, or, more correctly, Maiorioris.,30

5.33 Bishop Selwyn, speaking of his visit in 1848, says the islanders called themselves tangata Maoriori, \ differing from the name of the New Zealanders onlY------~ in the reduplication of the last syllables,.31

5.34 Archdeacon Herbert Williams said that his father, ii who visited the Chathams with Bishop Selwynin 1857, recorded that the natives called themselves tangata Maioriori, and Archdeacon Williams says that this form had the support of the late Robert Shand. 32

5.35 The three forms noted - Moriori, Maioriori, Maoriori

27 Marmon, Auckland Star, Saturday Supplement, 19 Nov 1881, cited in Ri chards , R., Whaling and Sealing at the Ch-atham Islands, 1982:22.

28 Travers, W.T.L., 'Notes on the Chat ham Islands' (extracted from letters from H.H. Travers), TPNZ v 1, 1871:119- 27.

29 Mair, Gilbert, Note on the Chatham Islands and their inhabitants: TPNZ v 3 1870:311.

30 see Skinner 1923:34.

31 Selwyn, G.A., Church in the colonies, No.20, New Zealand, Part.5, 1851. This quote comes from Skinner 1923:34, who notes: "References to Morioris quoted by Dendy, 1901-02. Selwyn's visit was made in 1848." Dendy, A., The Chatham Islands - a study in biology: Lit. andPhilo. oc., Manchester, Mem. v 46 no. 12,1901- 1902.

32 Skinner 1923:34. 25 - are reported on the authority of the islanders themselves. 33

5.36 Michael King's opinion is that:

'Moriori was the name attached to the first inhabitants of the Chathams after contact with Europeans and Maori; prior to that they needed no name other than personal and tribal ones •..• It comes from tchakat moriori, meaning normal or ordinary people, and is the Chathams equivalent of Maori.,34

5.36 The evidence summarised here suggests that there was nothing significant about the term Moriori other than to convey the sense of 'ordinary' person. That being the case it is suggested that prior to 1791 the term, if it existed, had no particular relevance other than as a generic nameto describe the people living on Rekohu, the Chatham Islands. It appears that as with Maori society, tribal affiliations were the first level of identity for Moriori people and this is evidenced by the preservation in Moriori traditions of tribal names.

5.37 Perhaps the confirmation for this issue lies in the linguistic evidence. Many writers have commented on the close similarities between the Moriori laguage and Maori:

' .•• than to any other polynesian.dialect, with shared innovations that set them apart from other polynesian languages and reveal their common origin.,35

That being the case it is reasonable to argue that the term Moriori or TakataMo ori ori would serve

33 One other writer Whatahoro, a Wairarapa authority on Maori history, wrote that the form Mooriori is incorrect, that the form Moriori was given to the islanders in error by the Maori invaders in 1835, and that the correct form is Mouriuri. It is noted that (i) the form Mooriori does not appear in the records of observers of the islanders; (ii) the assertion that the name Moriori was given in mistake by the Maori invaders is not supported by the available evidence; (iii) the form Mouriri is not recorded by any person who has worked among the islanders. It is suggested that Whatahoro' s observations on the Chatham Islands, a place he never visited, should be treated with extreme caution.

34 King 1989:18

35 King 1989:21. 26 the same purpose on Rekohu as does the term Maori or Tangata Maori in Aotearoa. 5.38 The third issue for this section of the report was to examine evidence to answer the question:

(10) did Moriori custom recognise claim by conquest? Until the law of Nunuku was effected, Moriori certainly fought each other. Tchuma's account indicates that following the arrival of the Rangimata canoe and the resulting population increase, there was fighting between the various hapu: The people settled among us and took our girls for wives. Children and children were born and grew into many clans. "Ko Rauru-Kah (Rauru the strong) they called themselves, and fought with the Wheteina and other clans; sometimes to be beaten, but mostly to win. 36 5.39 At contact, Moriori society appears to have been divided into tribal groupings occupying defined districts or territories (see para 5.11 & 5.16). According to Skinner and Baucke (para 5.19), these land rights were the result of a ' ••• wartime relic whose purpose had long passed.' On the basis of this evidence then, the conclusion is that at some stage in their history, Moriori did recognise claims to land by conquest. 5.40 But the evidence also suggests that the food resources'of the islands were capable of supporting a permanent population of around 2,000, i.e. Moriori society had an in-built population control. More so when the usual Polynesian resolution to this problem, migration, was not an option given the lack of suitable building materials for large ocean-going canoes. 5.41 Most land disputes in traditional polynesian society arose from population pressures. Because of the natural limits placed on the Chathams population it follows that with the establishment and acceptance of tribal territories disputes over land may have lessened. 5.42 If the evidence concerning the Law of Nunuku is accepted, then by 1835, Moriori society had evolved alternative ways of handling conflict and it is presumed that this would also have been applicable

36 Skinner and Baucke 1928:376. 27 in land disputes.

5.43 It is therefore a reasonable assumption that by 1835, Moriori society no longer recognised claim to land by conquest, because in their terms, the need for such an institution no longer existed.

5.44 Comment: While there are some discrepancies between the various accounts which bring into question the reliability of the material concerning Moriori origins and pre-contact lifestyle, the evidence is sufficiently clear to conclude that Moriori existed as a social entity. Whether that entity can be described as a people or an iwi is an interesting point. Section 6 of the Treaty ofWaitangi Act 1975 provides that the Tribunal can hear claims:

(1) Where any Maori claims that he or she, or any group of Maoris of which he or she is a member or is likely to be prejudicially affected ...

According to the Interpretation section (2) of the Act,- "'Maori' means a person of the Maori race of New Zealand; and includes any descendant of such a person"

5.45 In respect of the Wai 64 claimants' statement of claim, there is nothing to suggest that the claimants are not Maori. But this could be irrelevant if Moriori are Maori as required by s6 of the Act. This question is discussed again later in this report. -

5.46 It therefore seems that the Tribunal may need to determine if it has jurisdiction to consider the claims brought under WAI 64, or whether this particular claimant .. group bring their claim as persons of Maori descent. 28 Section 6

6. The Historical Context: Maori - Research items 5 and 11

(5) the arrival and occupation of the Chatham Islands by Taranaki Maori between 1840-1990

(11) the relevance of a tribal occupation of approximately 5 years prior to the signing of the Treaty in 1840.

6.1 Because the invasion of the Chatham Islands by Taranaki Maori took place in 1835, the parameters of research item 5 have been expanded but both matters will. be dealt with concurrently.

6.2 Prior to 1835 Pakiwhara of Ngati Tama and Ropata of Ngati Toa visited the Chathams as crew on an American whaler. Pakiwhara reported that: It isa land of food - he whenua kai. It is a land. of birds, there is abundance of sea and shellfish ••• the lakes swarm with eels, and it is a land of the karaka berry - he whenua karaka. The inhabitants are very numerous but do not understand how to fight, and have no weapons. 37

6.3 In the summer of 1832-33 the Ngati Mutunga chief Matioro came to the Chathams on an American whaler. He questioned the Moriori closely on their way of life and subsequently provoked a confrontation - by a violation of their laws of tapu - to· test their mettle. 38

6.4 The information from these early Maori visitors was apparently passed to the Taranaki hapu of Ngati-Tama and Ngati Mutunga who were living around the shores of Te Whanganui a Tara (Port Nicholson). Under pressure from their former ally Te Rauparaha (Ngati Toa) from the north and Ngati Kahungunu from the east, the hapu saw the Chatham Islands as a likely refuge.

6.5 In November 1835, when the brig Lord Rodney sailed into Port Nicholson as Wellington was then known, they held her mate.hostage while they negotiated with the captain to take them to the Chathams. Payment was offered in guns and potatoes. The captain· had little option but to agree and the Lord Rodney left Port Nicholson on November 14, 1835,

37 Shand 1892:155

38 King 1989:54. 29 with about 500 people on board, principally women and children. The passengers on the first journey were Ngati Mutunga and they were landed on the 17th of November at Whangaroa, (Port Hutt) Chatham Island. 6.6 The ship then sailed back to Port Nicholson and took on board seven canoes and about 400 of Ngati Tama. The Lord Rodney returned to Chatham Island, landed Ngati Tama and left on December 5th having completed it's forced expedition. 6.7 Despite an agreement that nothing would be done concerning the land until all had arrived on the Chathams, as soon as they had recovered from their trip, Ngati Mutunga set out in all directions to takihi the land. When Ngati Tama arrived, all the best land had been secured, and they were forced to settle around the swampy flats at Waitangi. 6.8 The Moriori reaction to the arrival of the Maori was given by one of their prominent leaders, Hirawanu Tapu: Our chiefs of the Morioris held'a meeting at a place called Awapatiki .•• there were 140 chiefs assembled at this meeting although there were about 1,000 men ••• the decision of the meeting was that they should be friendly to the New Zealanders. Soon after the New Zealanders commenced to kill us like sheep .•• wherever we were found. In the bush, on the oka ohere, some of our people were eaten and 'others were thrown to the birds of heaven. 39

6.9 At a Moriori Council meeting in 1862, called for the purpose of recording what was left of their traditions, the following account was recorded: In the month of November .•.• the Maoris came from New Zealand ••.. they landed at Whangaroa and built a fort ••.• In the month of December they spread all over the island slaying people in the north, at Waitaki, Waikanini, and at other places. The footsteps of the invader were on all parts of Wharekauri. Then the Morioris assembled at Te Awapatiki. There were gathered together 160 chiefs besides the multitude of common people, and a council was held which included the chiefs from Karewa and Owenga. It was proposed to make a combined assault on the intruders, and even though many of Morioris might fall, they would succeed. But neither of

39 Smith, S.P., Dairy, 18th March, 1868:48. 30 the two highest chiefs Tapata and Torea, would consent to any of the Maoris being slain, as that would be contrary to the covenant of our ancestors, so there was nothing for the people to do but return, each family to its own place or village. On reaching their homes, the enemy were found in possession, and the Morioris taken prisoner, the women and children were bound, and many of these together with the men were killed and eaten so that the corpses lad scattered in the woods and over the plains. 4

6.10 As evidenced by their first actions on arrival, the Taranaki iwi41 were clearly intent on conquest in the traditional sense. Claims to land were established by 'takihi,' by walking the land and that is exactly what the Taranaki iwi did.

6.11 For the purposes of this report it is considered that no good purpose would be served by recounting the many atrocities suffered by Moriori during the time immediately following the Maori invasion of the Chatham Islands. Alexander Shand for example speaks of the cruel, even brutal, treatment meted out to the Morioris by their Maori conquerors. 42 The incidents are numerous and well-documented but there is a danger of applying 20th century morality to what was in Maori cultural terms, perfectly normal behaviour. In 1870 Rakatau, one of the Mutunga leaders, recalled:

..• we took possession of the lan4 in accordance with our customs and we caught all the people. Not one escaped. Some ran away from us, these we killed, and others were killed-. but what of that. It was in accordance with our custom. Many of these people were killed by us but I am not aware of any of our people being killed by them. 43

6.12 The modifying influence of christianity on mainland Maori behaviour and their subsequent treatment of 'slaves,' prisoners taken in war, is also well documented. A similar situation occurred on the Chathams where the advent of christianity signalled the beginning of a process of Moriori rehabilitation.

40 Mair 1904:157.

41 Richards 1962:47.

42 Shand 1904:155-156.

43 Chatham Islands Minute Book 1:7.

\ ! 31 6.13 The appointment of Archibald Shand as the first Resident Magistrate in 1855 assisted in curbing cases of abuse. Moriori gradually gained their freedom and in 1863 the institution of slavery was finally terminated. Rehabilitation was taken another step forward in 1870 when reserves were allotted to them which they have occupied since.

6.14 Following their successful conquest of the Chatham islands, the two Taranaki iwi settled into an uneasy relationship whose seeds had been sown during the first months of their arrival. (See para 6.7) Ngati Mutunga, first to arrive on the Chat hams had taken possession of the area around Whangaroa because of the advantage of it's harbour. But as the 1830s progressed and whaling fleets began working around the Chathams, the better watering facilities made waitangi, in Ngati Tama hands, a more favoured anchorage.

6.15 Ngati Mutunga requests to participate in trading activities with the visiting ships were refused by Ngati Tama. According to one account, a confrontation between the two took place on the deck of the French whaler Jean Bart which led to the ship being sacked and a retaliatory visit by the warship Heroine in october 1838. 44

6.16 The bad feeling between the two groups eventually led to open fighting when Ngati Mutunga under Heikai Pomare attacked the Ngati Tama pa at Waitangi in May 1840.

6.17 Ngati Tama were getting the worst of it when the New Zealand Company ship Cuba sailed into the bay. After a conference of all parties Ngati Tama were evacuated to Kaingaroa on the northern part of the island.

6.18 The Maori occupation of the Chathams settled into a life-style based on trade with the whaling fleets and, for a short period in the 1850s, supplying the goldfields of Australia.

6.19 The arrival of the New Zealand Company at this time is an interesting development because it demonstrates an attempt to take advantage of the fact that the Chathams, in mid 1840, was not part of New Zealand.

6.20 The Treaty of Waitangi had given pre-emption rights

44 For an account of the sacking of the Jean Bart and the subsequent visit of the Heroine see Simpson, F. A. Chatham Exiles, Wellington, 1950:69-88. 32 to the Crown and the New Zealand Company, in trying to fulfil its intention of purchasing land for British settlement in New Zealand •.• decided to buy the Chatham Islands. 45 Whangaroa and Waitangi districts were purchased from the Ngati Mutunga chief Heikai Pomare, while Ngati Tama sold the north eastern coast of Chatham Island. (see also sections 7 & 9)

6.21 On the basis of these purchases, the Governor issued a Charter to the New Zealand Company to administer the Chathamsi but this was subsequently cancelled by the proclamation which made the islands part of New Zealand in April 1842. 46

6.22 In making these arrangements it is apparent that Ngati Mutunga, Ngati Tama and the New Zealand Company officials did not take into account any Moriori considerations.

6.23 Between the 1850s and the late 1860s, the disposition of the Maori population on the islands and events of particular Maori concern, are described by Lyndsay Head in her unpublished manuscript, Friend Ritchie. The manuscript, part of which is quoted here, is a biography and examination of the papers and Maori/Moriori correspondence of the first runholder on the Chatham Islands, Thomas Ritchie: 47

... For the next decade the Maori lived a life much like that of their ancestors: one regulated by tapu, and punctuated by warfare as the two Te Atiawa hapu struggled with each other for supremacy in the trade with the whaling fleet. But the traffic with the whalers was creating new needs, and Christian teaching was influencing values, and as a result Maori life on the islands slowly became Europeanised. Te Atiawa grew comparatively wealthy in the 1850s through growing food and exporting it in their own ships to Wellington and even the goldfields of Victoria in Australia.

There was a steady traffic of Te Atiawa between the Chathams and Taranaki, as home always beckoned.

45 King 1989:73.

46 King 1989:75.

47 Some re-ordering of the manuscript text has been done to place events in chronological order. 33 ••• In 1861 William Seed, a surveyor, was sent by the government to assess on the islands' situation. He reported that the European population numbered only forty-six, and that the Maori and Moriori population was dwindling: four hundred and thirteen Te Atiawa out of the original nine hundred remained, and there were one hundred and sixty Moriori. Both groups had few children. Most of the whalers had gone with the whales, and cultivations were abandoned. Cattle ran wild in the bush, and the sheep farming which Bishop Selwyn had encouraged the Maori population to pursue had been a general failure. In these gloomy circumstances, Seed recommended that the Chat hams be utilised as a prison colony • ••• The collapse of the Chathams' cash economy at the end of the 1850s increased the [Maori] incentive to go home. The food export business had dropped off with the decline of the Australian goldfields and the growth of the mainland colonies ability to support themselves. Few whalers called for supplies after 1861. Potatoes brought only one pound a ton, and even then the sellers had to load the cargo themselves. Many Maori were reduced to poverty, and lamented that they were forced to weave their clothing out of flax in the manner of their ancestors . ••• In 1859 the Te Atiawa chief Wiremu Kingi Te Rangitake's own chiefly veto of a'long-disputed sale was overruled by Governor Gore Browne, and fighting broke out between Maori soldiers and. British troops at Waitara in the new year. The war threatened Chatham Islands Te Atiawa with the loss of their land if they did not defend it, and going home became their only goal.Te Atiawa's anxiety to leave the island started Thomas Ritchie in business as a shipping agent. The year he arrived, [1864] Ritchie set about chartering a boat to take the exiles home. But the New Zealand government was at war with the Taranaki Maori on the mainland, and thought it foolhardy to send them reinforcements. William Rolleston, Under Secretary for Native Affairs, was sent to the island to enquire into the Maoris' disposition, and as a result the Passengers Act was invoked bl parliament to stop the reverse migration. 4

48 Imperial Passengers Act 1855 - The Act gave the Governor' ...power to prescribe such rules as he shall tWnk proper for determing the number of passengers to be carried in any other passenger sWp wWch shall proceed from any such Colony to any other of Her Majesty's possessions'. AJHR, 1862 d-No. 4A, 34

6.24 In 1865 the government chose to act on William Seed's recommendation that the island be used as for penal purposes and exiled to the Chathams, Hauhau soldiers captured in the fighting on the East Coast.

6.25 A total of 165 Hauhau prisoners, accompanied by 140 dependents began arriving on the islands from March 1866. A stone redoubt surrounded by a sod wall and ditch was built. The prisoners were expected to grow their own food and some found employment working for the local runholders.

6.26 Te Kooti Rikirangi of Rongowhakaata emerged as the leader of the Hauhau prisoners on the Chatham Islands was Te Kooti Rikirangi of Rongowhakaata. In 1868 he prophesied that in the month of July the government would send a vessel to take them to New Zealand. I·f not, then the miracle of the parting of the Red Sea for the ancient Israelites would be repeated. God would empower him to strike the sea with a rod, and like the children of Israel crossing the Red Sea, they would all walk to New Zealand on dry land. 49

6.27 Te Kooti took matters into his own hands on July 2; 1868. A party of prisoners infiltrated the redoubt and caputed it. A recently arrived ship, the Rifleman, was commandeered and the crew forced to sail the Hauhau back to New Zealand.

6.28 There is little evidence of inter-action between Ngati Mutunga, Ngati Tama and the Hau Hau prisoners. The Chathams Maori certainly do not appear to have been invoived in the planning and execution of the· escape from waitangi. perhaps they were looking to their own future because Te Koot~ was not the only one to leave the Chathams in 1868. Head continues:

..• in 1868 ••• Ritchie chartered the Collingwood. In an operation called Te Heke 0 Maruehi,50 almost all the Taranaki Maori left the island after a sojourn which had lasted a little more than thirty years.

6.29 In 1870 as a result of Native Land Court hearings Ngati Mutunga and Ngati Tama were awarded the majority of ownership interests in the land with

Encl. No. 1.

49 ZMS 36 1/1 Diary:50.

50 Maruehi was a Ngati Mutunga settlement in the urenui district of Taranaki. 35 Moriori being alloted seven reserves (1 x 2000 acres, 3 x 600 acres, 1 x 200 acres, and 2 x 50 acres) .51 6.30 In the 1870s, the Te Atiawa who remained on the Chathams were converted to the teachings of the Te Atiawa chief from Parihaka, Eruera Te Whiti. Again quoting from Head: Te Whiti's faith conquered the Chatham Islands. One Maori told Ritchie 'We don't want your Bible, your Church, or your God, Te Whiti is Jesus Christ and that's the end of the matter,.52 The islanders expressed their faith in works, shipping tons of food to New Zealand to help feed the Parihaka community. On one occasion, from one small lake two thousand eels were taken, from another, five thousand, and fourteen bullocks were required to drag them to the surfboat which ferried the catch out to a ship. In February alone of 1885, twenty thousand eels were exported along with huge quantities of grey duck, swan, muttonbirds and young albatross. On a single birding trip, five thousand young albatross were taken. Money was sent as well, one islander showing Edward Chudleigh one hundred and twenty pounds in gold sovereigns which he had earmarked for Te Whiti. 6.31 According to Head, the Te Whiti influence on the Chatham Islands Maori led to tensions between Maori and Pakeha. Farmers complained about ~ new Maori assertiveness, and of their refusal to sign documents ,in writing or to sell land. 6.32 In 1872 Chatham Islands Maori held a runanga, one result of which was an instruction to Pakeha settlers to leave the island within two weeks. 53 The settlers took shelter at one end of the island but nothing further eventuated and life on the island quickly returned to its usual routine. 6.33 One other source of 'confrontation' between Maori and Pakeha had its origins in June 1888 when a number of people were arrested for refusing to register their dogs. 54 After spending a month in a Lyttelton jail, the offenders were released. There

51 See section 9.

52 ZMS 36/3 3/1a Scrapbook, unsourced newspaper clipping.

53 Richards, E.C. Diary of E. R. Chudleigh 1862-1921, Chatham Islands, Christchurch, 1950:232. 54 King 1990:146. 36

was a reoccurrence in 189155 when arrests were again made. But this time the Waitangi jail was attacked and the prisoners were released.

6.34 In this century the descendants of Ngati Mutunga and Ngati Tama living on the Chathams have become so inter-married that for some, a distinct Te Atiawa origin has been merged into a Chatham Island origin. others retain a strong sense of their Taranaki tribal heritage. It is not known to what extent land is held by the Chatham Islanders in Taranaki and vice versa. The islands retain a Taranaki link through being included in the western Maori electorate.

6.35 Summary

The years 1835 - 1840 were significant because it was during that time that the polynesian structure of Chatham Islands society was established. The most obvious effect was the impact on the Moriori. In terms of population, their numbers were drastically reduced but the most important area for consideration is the impact on Moriori cultural identity. The destruction of their way of life began almost immediately. Significantly among the first acts was to give the islands the Maori name of ) Wharekauri and the Moriori name, Rekohu, quickly fell into disuse. More importantly the destruction of their institutions of tapu, the code by which they lived their lives, meant that they lived lives of spiritual transgression. It is cle~r that rather than continue their meaningless existence, many Moriori simply gave up.56 The result of the

55 Contempraneous with a similar event at Waima in the Hokianga.

56 See Richards 1962: 52 for a discussion on the 11 Tapull nature of Moriori society which shows how infringement caused them to literally lie down and die:

the prime devastating factor was disease. with the increase in foreign contacts, innumerable deaths occurred among Maori and Moriori alike ... influenza plagues of 1839 and 1840 alone probably killed atleasE-6ri.e,,;;,'Co:1::Ed of each race. Mair states that fully half of the Morioris died, but this is probably exaggeration. (Mair 1870: 311; Weiss, B. 'More than Fifty Years on Chatham Island' (translated by K J Dennison) Working Papers in Chatham Islands Archaeology, Anthropology Department, University of otago, 1901:25)

Whatever the combination of causes and despite the fact that the Maori population was also declining rapidly, the Moriori death rate in the quarter of century following 1835 37

initial five year occupation was that by the mid- 1890s, full-blood Moriori numbered less than twenty57 the result of sixty years of cultural genocide.

6.36 Clearly Ngati Mutunga and Ngati Tama saw their invasion as take raupatu, conquest in traditional terms and that they held land as of right through takahi or 'walking' that land. And it is apparent that it is from that traditional view that their rights in respect of Chatham Island lands, stem. These questions are further examined in section 9.

was quite phenomenal. From a post conquest total of 1450 late in 1836, their total fell to the 268 as revealed by Bishop Selwyn's careful census in 1848.

57 King 1990:147 38

Section Seven

7. The Historical context: New Zealand - Research items 13 - 15 inclusive.

(13) the relevance of the 1842 annexure of Chatham Island to New Zealand

(14) the date upon which New Zealand assumed constitutional responsibility for the Chatham Islands and the historical circumstances surrounding that event.

(15) the status and identity of the island inhabitant groups at the date when New Zealand assumed constitutional responsibility of the Chatham Islands

7.1 Prior to examining the three research questions in Part four it may be useful to briefly canvas European contact with the Chatham Islands prior to 1842.

7.2 European contact with the Chatham Islands began on 29 November 1791 when the islands were sighted by the crew of the brig HMSChatham under the command of Lieutenant William Broughton.

7.3 Broughton and some of his men went ashore in the ships' cutter and met with some of the.,Moriori. Not .trusting the motives of the Moriori who wanted them to go inl~nd, Broughton found a quieter spot further along the coastline.

7.4 There he turned over a sod of soil, displayed the Union Jack, drank a toast to His Majesty and formally named the island Chatham:

.•. in the name of His Majesty King George the Third, under the presumption of our being the first discoverers. s8

7.5 On a tree nearby, a piece of lead was nailed bearing the inscription:

His Britannick Majesty brig Chatham, Lieutenant William Robert Broughton, commander, the 29th November, 1791.

A bottle was buried under a tree with a note carrying the same inscription written in Latin.

58 Simpson 1950:29-30. 39

7.6 Following Broughton's visit, the next substantial contact occurred from the period 1807 when sealing gangs operated around the islands. The sealers were followed by whaling fleets whose activities continued through into the 1830s. 59

7.7 As previously mentioned, (see para 6.17) the New Zealand Company's survey ship Cuba, visited the islands in 1840 with the purpose of purchasing land. Ernst Dieffenbach, an Austrian naturalist on board the Cuba was charged with assessing the Chathams for the purpose of land purchases and later settlement.

7.8 In the same year the New Zealand Company purchased the Whangaroa and Waitangi districts from Ngati Mutunga and the north eastern coast of Chatham Island from Ngati Tama. (These purchases were later made declared invalid by the Letters Patent discussed later in this section - see also para 9.9)

7.9 In 1842 the islands formally became part of New Zealand (see para 7.11 below)

7.10 Dealing firstly with research question 14:

(14) the date upon which New Zealand assumed constitutional responsibility for the Chatham Islands and the historical circumstances surrounding that event.

The cOlony of New Zealand came into be~ng by virtue of the two proclamations of sovereignty made by Captain William" Hobson on 21 May 1840. The second proclaimation had relevance to the Chatham Islands. because, through an error, it excluded them from the colony.

Proclamation

In the name of Her Majesty Queen victoria, Queen of the United Kingdom of Great Britain and Ireland. By William Hobson, Esquire, a Captain in the Royal Navy, Lieutenanat Governor of New Zealand.

WHEREAS I have it in command from Her Majesty Queen Victoria, through her principal Secretary of State for the Colonies, to assert the sovereign rights of Her Majesty over the Southern Islands of New Zealand, commonly called the "The Middle Island" and "Stewart's

59 For a detailed history of sealing and whaling activities around the Chatham Islands see Richards 1982. 40

Island," and also the island commonly called the "The Northern Island," the same having been ceded in sovereignty to Her Majesty;

Now, therefore, I, William Hobson, Lieutenant­ Governor of New Zealand, do hereby proclaim and declare to all men that, from and after the date of these presents, the full sovereignty of the Islands of New Zealand, extending from 34 degrees 30 minutes North to 47 degrees 10 minutes South latitude, and between 166 degrees 5 minutes to 179 degrees of East60 longitude, vests in Her Majesty Queen Victoria, her heirs and successors, for ever.

Given under my hand at Government House, Russell, Bay of Islands, this 21st day of May, in the year of our Lord 1840.

Signed WILLIAM HOBSON, Lieutenant-Governor

By His Excellency's command (Signed) Willoughby Shortland Colonial Secretary

It is clear from the longitudinal reference given in this proclaimation that the Chatham Islands were excluded and the assumption is that this was an overs:ight.

7.11 On 4 April 1842 Letters Patent [similar to Proclamations i.e. serving as public announcements] were issued. An accompanying explanatory letter from Lord Stanley, clearly indicated that the Chatham Islands were to be included. 61 These

60 emphasis added.

61 C.O. 209/9 Stanley to Hobson, 21 April 1842, NA microfilm. Stanley wrote:

Sir,

I have received your dispatch No.9 of the 26 of May last, in which you out an error which had occurred in the preparation of the Charter or Letters Patent and also in the Royal Commission wherein the limits of the Government of New Zealand are described as being compromised within 34 degrees 30 minutes North latitude;- instead of between 34 degrees 30 minutes and 40 degrees 10 minutes North Latitude.

I transmit herewith Letters Patent which have been passed 41

letters corrected Captain Hobson's 21 May 1840 proclamation. For example the proclamation had contained latitudinal mistakes which had seen the inclusion of a large piece of the western Pacific including, for example, Fiji. More importantly however the longitudinal was extended from between 165-179 degrees by a further 50 degrees so as to include the Chathams. 62

7.12 It is from this date that full constitutional responsibility was assumed by the Crown consisting of the Executive Council seated in New Zealand and the Imperial Parliament of England.

7.13 The historical circumstances which gave rise to the issue of the Letters Patent are summarised as being: a response to foreign interests (American and French); violent conditions; trade opportunities; reports that the natives wanted British protection and an attempt to sell the islands to German interests.

7.14 The American interest in the islands may have been more a local perception rather than any grandiose scheme of acquisition. J E Bright, a doctor who had been in New Zealand wrote to the Colonial Office pointing out the number of American whaling vessels operating in the vicinity of the Chatham Islands and opining 'that a foreign market there would be a disadvantageous rival to New Zealand.,63 Brights comments on a 'foreign market' probably failed to recognise that whaling in Chathams waters had passed its peak. .,

7.15 The French interest arose from the views of the British Resident, James Busby, who was concerned that the Chatham Islands were seperate from New' Zealand at a time when the French were acquiring

under Great Seal for amending and enlarging the Boundaries of the Colony of New Zealand. The Instrument which I now transmit fixes the boundaries of New Zealand between 33 -degrees South Latitude and 53 degrees South latitude, and between 162 Degrees East longtitude, the object being not only to correct the error which you have pointed out, but further so to extend the limits of your Government as to include within its jurisdiction the Chatham Islands and other small Islands situated within those limits. [emphasis added]

62 emphasis added.

63 C.O. 209/19, Bright to Stanley, 4,5, and 16 Jan 1842, NA Microfilm 42

colonial possessions in the pacific. 64 It is noted however that his concerns were not expressed officially until after the issue of the Letters Patent.

7.16 In an action which echoed some of the reasoning behind the Treaty of Waitangi, i.e. a need to establish the rule of law, Hobson wrote to the Secretary of State informing him that in his opinion the Chatham Islands were ' ..• the scene of every revoltinq atrocity that ever disgraced human nature. ,65

7.17 The concern that local Maori were anxious to come under the British flag and that they would not deal with Americans is also sketchy being again the opinion of Doctor Bright. 66 (see para 7.14)

7.18 But the main driving force for the extension of sovereignty over the Chathams was probably the attempt by the New Zealand Company to raise money by selling the islands to a Hamburg land purchasing company. A legal opinion was sought by Secretary of State Lord Stanley which confirmed the view that the purchase and sale of the Chatham Islands by the Company were illegal acts beyond the terms of its Charter. 67

7.19 Conclusion:

In respect of the annexure question, two matters which the ,Tribunal may wish to consider further are:

1. Can the actions of Broughton be considered a declaration of sovereignty given that continuous occupation did not follow?

2. How is the Maori 'invasion' of the islands in 1835 to be viewed? i.e. could Te Ati Awa Maori be described as a 'sovereign' nation acting in their own right?

64 C.O. 209/ 19, Busby to Stanley, 17 May 1842.

65 C.O. 209/14, 28 Feb 1842 NA Microfilm.

66 C.O. 209/19, Bright to Stanley, 4,5, and 16 Jan 1842, NA Microfilm

67 C.O. 209/12, Law Officers' report 15 Nov 1841. As a result the Morovian missionaries who arrived in the Chathams in 1843 had a certain amount of prejudice to overcome. 43

7.20 Dealing now with research question 15:

(15) the status and identity of the island inhabitant groups at the date [4 April 1842] when New Zealand assumed constitutional responsibility for the Chatham Islands.

Moriori: There is no documented evidence of how the English Crown viewed Moriori. It is suggested here that they would probably have been regarded as native inhabitants of the Chathams in the srune way as Maori people were at this time. Their status may have changed over time but that is outside the parameters of the research question.

The Te Ati Awa or Maori view of Moriori at 1842 is clearly that they regarded them as taurekareka, or slaves, seemingly without property or any other rights.

Maori: viewed by Moriori as 'New Zealanders.' In 1833 Tchuma, for example, described Matioro of Ngati Mutunga as 'a New Zealand chief ••. ,68 although no particular significance is attached to this description other than an indication of where Matioro had come from. It is assumed that Maori on the Chatham Islands ,would be viewed by the English Crown exactly as they were on the mainland, viz: 'aboriginal natives' of New Zealand.

others: Apart from British subjects and other nationalities, there was a wide mix of ethnic groups on the Chatham Islands at this time including portuguese American Negro, Chinese, Hawaiians etc. 69 Conclusion:

7.21 It is reasonable to conclude that in 1842 the inhabitants of the Chatham Islands would have been seen as holding the status of British subjects and there is no history of subsequent events impinging on this view i.e. it has not been challenged. In terms of identity, it is clear however that at this

68 As quoted in Richards, R., 1982:45 [Sealing section].

69 Other Pacific Islanders living on the Chat hams were described as Kanakas and indeed, took Kanaka as a surname. 44 time 'Moriori' were seen as a distinctly seperate ethnic group. 7.22 The final question to be examined in this part of the report is:

(13) the relevance of the 1842 annexure of Chatham Islands to New Zealand

7.23 Obviously the effect of the 1842 annexure was to bring the Chathams into the ambit of the colony of New Zealand and the relevance of that action, for the matters under investigation in this report, was the establishment of the rule of law from that date.

7.24 That conclusion carries with it a wide number of implications, for example the application of relevant legislation both current and subsequent, judicial and government operation etc. 7.25 Little else can be added to the comments made here and it is left to the claimants to inform the Tribunal on this particular point. 45

Section 8

8. The Chatham Islands and the Treaty of Waitangi - Research Item 16.

(16) The application of the Treaty of Waitangi to the Chatham Islands

8.1 The important considerations which spring to mind in considering this question are:

1. The Treaty was never taken to the Chatham Islands for signature.

2. The Chatham Islands were not part of New Zealand in 1840.

8.2 The Tribunal may therefore wish to consider the question of whether it has jurisdiction to consider matters on the Chathams between 6 February 1840 and 2 May 1842 although the content of the claims, as presently constituted, would seem to indicate that this does not present a difficulty.

8.3 It is also suggested that for the practical reasons of needing to address the alleged grievances in this claim, the fact that the Treaty was not signed on the Chatham Islands in 1840 or subsequently can be left aside. A number of mainland iwi are in a similar position yet have appeared bef.Qre the Tribunal in terms of the 1975 legislation and subsequent amendments.

8.4 A further consideration is that given the identity of one claimant group - the Moriori - whether a­ claim by this group is valid in terms of the legislation. (See also section 5)

8.5 It is suggested that the fact that the Tribunal has accepted the claim from this group and indeed that the groups specifically states that their claims are brought under the Treaty, mean that this matter could possibly be left aside.

8.6 In any event the provisions of s6(1) of the Treaty of Waitangi Act (1975) are considered to be sufficiently flexible to allow the 'Moriori' claim to stand. This conclusion is based on the fact that while the claimants identify as Moriori, they could also cite Maori descent.

8.7 The thesis proposed here therefore is that while a number of interesting constitutional questions are raised, they do not impinge on the investigation of 46 claimant grievances. The Treaty has the same effect on the Chatham Islands as it does in New Zealand with the exception that it would seem that it applies from the date that constitutional responsibility was assumed. 47

Section 9

9. Land ownership - Research items 1-2, 6-8 and 12

(1) The traditional ownership of land as at -1840, 1880, 1920, 1960 and 1990;

(2) The ownership of outlying islands;

(6) The 'Taranaki' land locations as they are today;

(7) The rUlings of the Native Land Court which disenfranchised Moriori from their land. What weight if any, should the Native Land Court have attached to the Moriori customary rights vis a vis Maori customary rights in deciding the outcome of the various claims;

(8) The relevance of confiscation of land in Taranaki to the outcome of claims before the Native Land Court.

(12) The relevance of the 1840 rule in the Chatham Islands

9.1 Before examining the specific issue of item 1, a brief explanation of research methodology is necessary. The question of the traditional ownership of lands using the dates of 1840, 1880, 1920, 1960 and 1990 is somewhat incomprehensible. After viewing the full title history it appears these dates were selected arbitrarily as they do not demarcate differentiating periods in the history of the Chatham Islands land tenure.

9.2 Accordingly, the ownership of the islands will be examined during the following periods:

(a) the period between the Ngati Mutunga and Ngati Tama conquest of the islands and the first investigation of title by the Native Land Court (1835-1870)

(b) the period between the court's first investigation and the present day (1870-1990)

9.3 A full title history of the blocks of land in the Chatham Islands (as delineated by the Native Land Court's first investigation in 1870) and the outer lying islands is provided as a separate appendage to this report (see ). 48

19l the period between the Ngati Mutunga and Ngati Tama conquest of the islands and the first investigation of title by the Native Land Court (1835-1870)

9.4 Traditional ownership of the Chatham Islands had been firmly secured by Moriori until the Ngati Mutunga and Ngati Tama invasion of the island in 1835 established a Maori title by custom of conquest.

9.5 This particular form of acqulrlng rights to land (take raupatu) was a long practised Maori custom that has been upheld and validated by various authorities on customary land tenure. In 1866 Chief Judge Fenton of the Native Land Court ruled,

... before the establishment of the British Government in 1840 the great rule which governed Maori rights to land was force - i.e., 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, if the invaders settled upon the evacuated territory, it remained theirs until they in their turn had to yield it to others ..• 70

9.6 Kawharu reiterates that in cases where land is acquired through conquest:

[t]h~ conqueror had the right to use the land of the vanquished as he pleased, but if he wished to maintain title he was still bound by the usual rules of residence or habitual use. If he intended to take over the land, the conqueror usually made sure of his position by completely exterminating the defeated tribe or sub-tribe. Or perhaps he merely took the few survivors into slavery.71

9.7 The most recent judicial ruling on the subject was made by the Maori Appellate Court when determining for the Ngai Tahu claim before the Waitangi Tribunal, which Maori tribe or tribes according to customary law principles of "take" and occupation or use, had rights of ownership in respect of the

70 Fenton, F. D. Important Judgements Delivered in the Compensation Court and Native Land Court 1866-1879, Auckland, 1879:9

71 Kawharu, H. Maori Land Tenure, Auckland, 1977:56 49

Arahura Deed of Purchase and the Kaikoura Deed of Purchase. It ruled:

The pre-European inhabitants of New Zealand had, over many centuries, developed certain customary take or rights concerning land .•• These take when supported by actual occupation of the land, generally signified rights (mostly in common) somewhat allied to ownership; these ownership rights could be lost in various ways; •.. if an iwi or hapu were defeated in battle and the victors remained and occupied the land to the exclusion of the losers; .•. 72

9.8 However, the strict application of this customary law is questionable in this instance due to the Moriori's possession of and adherence to a different set of customary practices. While Maori claimed they had rights to the land procured by customary means, concurrently Moriori maintained a customary claim by responding to the invasion in a customary way. On this basis, it can be contested that while the manawhenua of the Moriori was ignored by Maori, it was never extinguished.

9.9 In the ensuing years, the Ngati Mutunga and Ngati Tama hapu occupied, cultivated, and asserted their ownership over the land. In 1840 the New Zealand Company went to the Chathams and purchased the Whangaroa and Waitangi districts from Ngati Mutunga chief Heikai Pomare, and the north eastern coast of Chatham Island from Ngati Tama. In mak.ing these transactions, no consideration of Moriori interests_ was made. (These purchases were later made invalid by the Letters Patent which annexed the islands to. New Zealand in April 1842.)

9.10 Further demonstrations of ownership were made in the 1850s and 1860s when Maori arranged the lease of some 48,000 hectares of land to Pakeha runholders. 73 However, according to Moriori 1 \testimony before the Native Land Court in 1870, these negotiations were not conducted without ,Moriori consultation. Moriori acquiesced to the leasing of land with the expectation that they would receive some of the rents and even hoped the lands would be divided for the purpose. Nevertheless, Maori refused to divide the lands and Moriori never received a share in the dividends. As Hirawanu Tapu stated in his evidence:

72 Ngai Tahu Report 1991, Waitangi Tribunal Report, Wellington, 1991:1125.

73 King 1990:122. 50 Although we agreed with the Maoris to lease these lands when the rents were received we did not get any of the money 74 9.11 Moriori appeals to government during the following years certainly testifies to a belief by Moriori that they retained customary rights to the land. A document of historical and genealogical content was signed by six Moriori elders on 22 April 1859 and sent to Grey. According to King, this first written communication was sent to convince Grey they were the rightful owners. 75 9.12 In March 1862 Archibald Shand also wrote to the Colonial Secretary: I have been urgently requested by the Aboriginal Inhabitants of these Islands they depend on the Governor's high consideration and sense of justice to grant them a share of any advantage he may be pleased to bestow on the dominant tribe of Maoris •.• The present Petitioners are also urgent in soliciting a certain apportionment of land for their special behoof .•. 76 9.13 Later that year, Moriori sent a petition to Governor Grey asking for a removal of the Maori from the island and a restoration of the land to its rightful Moriori owners. The laws, manners and customs of the Moriori derived from their ancestors were 'very good, benevolence to all men being the predominant feature. According to their ideas it was very evil to cause the death of another, or to take from a man his own land. The various tribes were exchanging visits, and when they occupied each others lands for a time they never attempted to claim what did not belong to them. The work of the present day would indeed have appeared evil, and quite opposed to their customs ... 77 And a further letter addressed specifically to Grey

74 Chat ham Islands Minute Book 1:16.

75 King 1990:114.

76 King 1990:115.

77 Moriori to Grey circa June and July 1862, cited in King 1990:117. 51

and signed by 30 elders read,

' ••• The rights of the Maori are not straight, they are stealing the rights to our land •.. the rights of our islands are with us. We are the original inhabitants .•. ,78

78 ibid. 52

1Ql The Native Land Court investigations and subsequent traditional ownership

9.14 Maori assertions of ownership of the Chathams were upheld by the Native Land Court's first investigation of title in 1870. The court decided in favour of the Maori claims, determining their rights acquired through conquest as the valid basis for title.

9.15 Accordingly, it awarded 5 blocks (or 171,788 acres) to Maori from which 7 reserves (or 4,100 acres) were set aside for the Moriori claimants. It also awarded Rangiauria (Pitt Island or 15,630 acres) to the Maori claimants. (For a more detailed examination of the findings of the court see *Question 9.7 of this report.)

9.16 The ensuing history of traditional ownership of both the blocks and reserved land has been largely one of alienation. A great proportion of land was alienated through private purchases, while another substantial proportion was alienated under the Maori Affairs Amendment Act 1967.

9.17 Summary

(a) Blocks awarded to Maori

(i) Rekohu or Wharekauri Island (Chatham)

Combined, the awarded blocks of Kekerfone, Te Awapatiki, Te Matarae, otonga and Wharekauri contained'an estimated area of 171,788 acres. This represents 76.69% of the total 224,000 acres constituting the island. 79 (Nearly 22% of the island area is covered by shallow lakes and lagoons, the Te Whanga Lagoon alone occupying 40,000 acres. )80

In order to measure land alienation and the mechanisms used, it must be noted that Maori Land Court records do not exist for approximately 28,833 acres of the Wharekauri block, making a comprehensive estimation impossible. All calculations, therefore, are made exclusive of the indeterminate 28,833 acres.

The blocks appear to have been subjected to the '10

79 McLintock, A.H. (ed.) An Encyclopedia of New Zealand v 1, Wellington: 1966:334.

80 McLintock 1966:335. 53

only rule'. In all instances, 10 or less individuals were admitted to the titles. The provision for a tribal title, provided by section 23 of the Native Lands Act 1865 (whereby lands exceeding 5,000 acres could be vested in 10 or more owners) was not applied to the grants.

of the total area first awarded to Maori, approximately 25,170 acres (or 14.65%) are known to be held in Maori title.

By 1900, some 34,052:3:07 acres (or 19.8%) had been alienated from the total area awarded. All alienations were by way of private sale. A number of early Pakeha settlers were predominant in transacting early land purchases with Maori and Moriori, notably E R Chudleigh, N R A Cox, G Blyth, L W Hood, F Hunt, R D Kerr, H Regnault, T Ritchie, A Shand and R R S Shand. The exact details of the negotiations for the purchases are unclear at this point although a closer look at the Native Land Court minute books may reveal this.

Further private purchases occurred between 1900- 1990, alienating an estimated 48,081 acres (or 28%).

Additional alienation of approximately 73 acres occurred under Public Works legislation, while 4,416 acres were removed from Maori freehold title via the Maori Affairs Act 1953 (of this, 3,574 acres were sold by the Maori Trustee). Almost all Public Works .alienations occurred in the Kekerione plock.

Significant alienation resulted from the Maori Affairs Amendment Act 1967. Some 22,908 acres representing 13.33% of the land originally granted were Europeanised subsequent to the Act.

(ii) Rangiauria (Pitt) island

Of the 15,630 acres originally awarded by the court, 50 acres (or 0.32%) have been retained by Maori.

By 1900 6,510 acres (or 41.65%) had been purchased through private transactions. (This was in addition to a 'large proportion of land' sold before 1887).81 However the acreage of this sale is uncertain. A further 874 acres (or 5.59%) were sold between 1900-1990.

Under the Public Works Act 1928, 18 acres were compulsorily acquired.

81 Chat ham Island Minute Book 1:182. 54

Some 1,098 acres (or 7%) were sold by the Maori Trustee acting as agent for the Maori owners, while 1,115 acres (or 7%) were alienated by way of the Maori Affairs Amendment Act 1967.

(b) Reserves awarded to Moriori

Combined, the Moriori reserves of Kekerione 2, Te Awapatiki 2, Te Matarae 2, Otonga 2, Otonga 3, Wharekauri 2 and Wharekauri 3 contained 4,100 acres. Inalienable provisions were included in the Certificates of Titles for the reserves, protecting them from alienation by sale, lease (where the lease exceeded 21 years) and mortgage, except where the consent of the Governor had previously been obtained.

Of the total area reserved, approximately 1,231 acres have been retained as Maori freehold land, representing 30% of the land originally granted.

The reserves too appear to have been subjected to the '10 only rule'. In all instances, 10 or less individuals were admitted to the titles~ The provision for a tribal title as provided by Section 17 of the Native Lands Act 1867 (provided that the court had to maintain in a separate record the names of each and every member of the tribe, and provided it was specifically on the title that the grant was issued under that section82 ) was not applied to the grants.

The reserves were not subjected to the·'New Zealand Native· Reserves Act 1856 and its amending acts of 1858, 1862, 1873, 1882 and 1895.

Alienation of the reserves occurred in the 1900s with the private sale of approximately 1,381 acres (or 33.68%) between 1930 and 1943 and the Europeanisation of an estimated 1,516 acres (or 37%) under Part 1 of the Maori Affairs Amendment Act 1967.

(c) Outlying islands awarded to Maori

Titles to Mangere, Motuhara (the Forty Fours), Rangatira (South East), Rangitutahi (the Sisters) and Tapuaenuku (Fort) islands were investigated by the court between 1885-1900 and granted to Maori. Title to Houruakopara was determined by the court in 1983.

82 Orakei Report, Waitangi Tribunal Report, Wellington, 1987:254. 55 Motuhara, Rangitutahi, Tapuaenuku and Houruakopara remain Maori freehold land. Mangere and Rangatira were vested in the crown under the Land Act 1948 and the Maori Land Act 1931, respectively.

(d) Customary Maori land Titles to Tarakoekoea (pyramid) and Waikawa islands were investigated by the Native Land Court in 1900 but not determined. The islands remain customary Maori land. Titles to Fancy Rock, Motuhope (star Keys), Murumuru Islands, Passage Rock, Rangituke (Round) Rock, Sail Rock, South Reef, Sugar Loaf, Te Rangakiore and Whare Kai Kite Motu (Rabbit) Island were never investigated by the court or purchased by the crown. They are also considered to be customary Maori land. 9.18 The following is a brief analysis of the current tenure of each block and the mechanisms by which land was alienated from customary title. It should be noted that all figures are approximate and serve to provide an overview only.

Kekerione 1 Kekerione 1 lies in the west of Chat ham island, bounded in the north by Wharekauri block and in the east by Te Whanga lagoon (see figure 2~. The first Certificate of Title was issued on 4 August 1873 to 4 Maori individuals. Of the 39,200 acres first awarded to the Maori claimants on 24 June 1870, an estimated 15,449 acres (or 39.41%) remain Maori freehold title. Significant partitioning of Kekerione 1 occurred in 1887 and 1900, and numerous re-partitioning took place subsequent to these. An estimated 13,085 acres (or 33.38%) were alienated from Maori title through private purchases (of these, all but 1,374 acres were sold after 1900). An application of Public Works legislation resulted in the alienation of 72 acres. Some 3,593 acres (or 9%) were removed from Maori freehold title under the Maori Affairs Act 1953 (of this, 2,929 acres were sold by the Maori Trustee). A further 7,102 acres (or 18%) were made European 56

land under the Maori Affairs Amendment Act 1967.

Kekerione 2 (reserve awarded to Moriori)

Kekerione 2 is situated between Petre Bay and Te Whanga lagoon at Rangatira and Red Bluff. Wharekauri block lies on its northern boundary and Lake Huro and Te Matarae block lies on its southern boundary (see figure 2).

The first Certificate of Title was issued on 4 August 1873 to 2 Moriori individuals.

The entire reserve has been alienated from Maori freehold title.

Alienations resulted from two sales of a total 532 acres, representing 88.66% of the total land. These transactions occurred in 1941 and 1963.

The remaining 76 acres (or 12.66%) were Europeanised under Part 1 of the Maori Affairs Amendment Act 1967.

Te Awapatiki 1

Te Awapatiki 1 stretches the eastern coast of Chatham island (see figure 2).

The first Certificate of Title was issued on 18 November 1873 to 4 Maori individuals.

Of the original 30,876 acres awarded to the Maori claimants on 24 June 1870, approximately 1,111 acres (or 3.6%) 'remain Maori freehold title.

Significant subdivisions of the land took place-in 1885, 1911 and 1961.

Approximately 25,000 acres (or 80.1%) were alienated through private sale, including the sale of 23,544:2:19 acres to L W Hood in 1886. The other principal purchaser of Te Awapatiki was N R A Cox.

Some 4,357 acres (or 14.11%) were made European land under the Maori Affairs Amendment Act 1967.

Te Awapatiki 2 (reserve awarded to Moriori)

Te Awapatiki 2 lies within Te Awapatiki 1. It is situated in the south-east corner of the block at Manukau Point and near OWenga (see figure 2).

The first Certificate of Title was issued on 18 November 1873 to 9 Moriori individuals. 57

Of the original 2,000 acres awarded to Moriori claimants on 25 June 1870, approximately 885 acres (or 44.25%) remain Maori freehold title.

Major subdivisions of the land occurred at the turn of the century and then again in the 1980s.

There were no private purchases of the land. Most of the alienated land (1,143:0:0 acres or 57.15%) was lost under the Maori Affairs Amendment Act 1967. A small portion was also lost under the Maori Affairs Act 1953.

Te Matarae 1

Te Matarae 1 is centrally situated in Chatham island, bounded on its north-west border by Lake Huro and on its eastern border by Te Whanga Lagoon (see figure 2).

Of the original 6,400 acres awarded to Maori claimants on 25 June 1870, approximately 201 acres (or 3.14%) remain Maori freehold title.

The first Certificate of Title was issued on 4 August 1873 to 10 Maori individuals.

Significant subdividing of the block occurred in 1887, 1893, 1901 and 1904.

Some 4,414 acres (or 68.96%) were alienated through private purchase. All transactions occurred in the 1900s.

Almost 1,000 acres (or 15.62%) were alienated through the Maori Affairs Amendment Act 1967.

Te Matarae 2 (reserve awarded to Moriori)

Te Matare 2 is situated within Te Matarae 1, dividing Te Matarae 1 into two parts. It is centred between Lake Huro and Whanga Lagoo~ (see figure 2).

The first Certificate of Title was issued on 4 August 1873 to 2 Moriori individuals.

All 200 acres originally awarded to Moriori claimants on 25 June 1870, have been alienated from Moriori ownership through two private sales that occurred in 1930 and 1935. otonga 1

Otonga 1 is situated in the south-western corner of Chat ham island. It is bounded by the coast to the north, west and south and Te Awapatiki block to the 58

east (see figure 2).

The first Certificate of Title was issued on 4 August 1873 to 7 Maori individuals.

of the original 39,657 acres awarded to Maori on 27 June 1870, approximately 2,100 acres (or 5.29%) remain Maori freehold land.

Major subdividing of the land took place between 1893 and 1927.

From 1894-1953 approximately 28,767 acres (or 72.53%) were alienated through 16 private transactions.

Nearly 8,000 acres (or 20.17%) were passed over to the General land system under the Maori Affairs Amendment Act 1967.

Otonga 2 (reserve awarded to Moriori)

Otonga 2 is situated within Otonga 1 in the west, at Te Tuku river (see figure 2).

The first Certificate of Title was issued on 4 August 1873 to 8 Moriori individuals.

otonga 2 of 600 acres was alienated through one private transaction in 1943.

Otonga 3 (reserve awarded to Moriori)

Otonga 3 is situated within Otonga 1 in the north­ west, at Waikarepe (see figure 2).

The first Certificate of Title was issued on 4 August 1873 to 5 Moriori individuals.

Otonga 3 of 50 acres remains Maori freehold title.

Wharekauri 1

Wharekauri 1 stretches across the northern coastal boundary of Chatham island. It is bounded on its southern border by the Kekerione block, Whanga lagoon and Te Awapatiki block (see figure 2) .

.The title history of Wharekauri reveals how approximately 26,222 acres of the original 55,055 acres granted were alienated from Maori ownership. At this point of research it is uncertain what happened to the remaining 28,833 acres as records in the Maori Land Court are not extant for this portion of the block. This requires further research. 59

A Certificate of Title was issued on 4 August 1873 to 10 Maori individuals.

Of the known 26,222 acres, an estimated 6,001 acres (or 22.88%) have been retained by Maori.

Approximately 17,572 acres (or 67.01%) were alienated by 9 private sales that occurred between 1897 and 1916. Two of these transactions were concluded by the Maori trustee.

Some 177 acres (or 0.67%) were made European land under the Maori Affairs Act 1953. Almost 8,500 acres and 220.85 hectares (or 34.49%) were alienated under the Maori Affairs Amendment Act 1967. Wharekauri 2 (reserve awarded to Moriori) Wharekauri 2 is situated within Wharekauri 1, between Lake Rangitai and Whanga lagoon (see figure 2). The first Certificate of Title was issued on 4 August 1873 to 5 Moriori individuals.

Of the 600 acres originally awarded, half the land remains Maori land, while the balancing half was alienated under the Maori Affairs Amendment Act 1967. Wharekauri 3 (reserve awarded to Moriori) Wharekauri 3 is situated in the far eastern corner of Wharekauri 1 (see figure 2). The first Certificate of Title was issued on 4 August 1873 to 1 Moriori individual.

The entire block of 50 acres was alienated from Moriori through a single private sale transacted in 1932. Rangiauria (Pitt) Rangiauria is situated to the south-east.of Chatham island (see figure.l).

The first Certificate of Title was issued on 18 October 1870 to 7 Maori individuals. The title history of Rangiauria reveals how an estimated 9,317 acres of the 15,630 acres first granted to Maori, were alienated or remain in Maori title. According to the Native Land Court minute books the balancing acres were purchased privately in 1887 prior to the first subdividing of the 60

island. Further details of this transaction were not provided.

of the 9,317 acres, 50 acres (or 0.53%) remain Maori freehold title. six private transactions between Maori and Pakeha farmers occurred between the late nineteenth century and 1960, resulting in the alienation of 8,133 acres (or 87.29%). The proceeds of the sale of 1,098:2:5 acres went to the Maori trustee.

Under the Public Works Act 1928, 18:1:35 acres were compulsorily taken.

Over 1,115:0:0 acres (11.96%) were made General land under the Maori Affairs Amendment Act 1967.

9.19 Consideration now turns to research question number 2:

(2) The ownership of outlying islands

9.20 Houruakopara

Houruakopara is situated immediately off the southern coast of Chatham island, east of Te Rangatapu lake (see figure 1).

) The title was first investigated on 4 February 1983 when it waf? ruled that the island was customary Maori land. The court ordered a certificate of Title be issued to Te puke, upon which a s 438 trust was established to enable the island to. be used as a wildlife reserve.

The first Certificate of Title was ordered to be issued for Houruakopara of 2.5400 hectares on 2 February 1984 .. It is uncertain how many Maori were included on the title.

Houruakopara island remains Maori land.

9.21 Mangere

Mangere is situated to the west of Rangiauria (Pitt) island (see figure 1).

On 18 January 1898 the Native Land Court first investigated the title to Mangere island. A Certificate of Title was issued on 2 March 1900 for 279:0:0 acres to 4 Maori individuals.

On 18 May 1909 Mangere was excepted from the operation of sl17 of the Native Land Court Act 1894 for the purposes of alienation by way of sale. 61

Pursuant to the Land Act 1948 Mangere was vested in the crown as a reserve for the preservation of flo~a and fauna on 18 January 1967.

9.22 Motuhara (Bertier Rock or the Forty fours)

Motuhara is situated to the east of Chatham jsland (see figure 1).

On 6 February the court first determined title to Motuhara. A Certificate of Title was ordered to be issued by the Native Land Court on 10 March 1887 for Motuhara of 30:0:0 acres. It is uncertain how many Maori were included on the title.

Motuhara island remains Maori land.

9.23 Rangatira (South East)

Rangatira is situated to the south-east of Rangiauria (see figure 1).

On 2 March 1900 the Native Land Court investigated the title to Rangatira island. It ruled that 540:0:0 acres were to be awarded to Ngati Mutunga claimants and a Certificate 6f Title was issued on 28 April 1911 to 4 Maori individuals.

Rangatira island was made crown land under the Maori Land Act 1931 on 27 November 1953.

9.24. Rangitutahi (the Sisters)

Rangitutahi island is situated to the north of Chatham island (see figure 1).

The Native Land Court first investigated the title to Rangitutahi on 2 February 1885 and awarded it to the Maori claimants. A Certificate of Title was issued for 14:0:0 acres on 25 February 1885. It is uncertain how many Maori were included on the title.

The island remains Maori freehold title •.

9.25 Rangiwheoa (Castle)

Rangiwheoa is situated to the west of Rangiauria (see figure 1).

According to the Department of Survey and Land Information, the crown has no record of Rangiwheoa island ever being purchased by the crown or ever becoming general land. ,The Maori Land Court does not hold any records for this island. The island is 62

therefore considered to be customary Maori land.

9.26 Tapuaenuku (Fort)

Tapuaenuku island is situated to the west of Rangiauria (see figure 1).

On 18 January 1898 the Native Land Court investigated the title to Tapuaenuku and awarded it to the Maori claimants. The first Certificate of Title was ordered to be issued on 11 July 1900 for 41:0:0 acres.

Tapuaenuku island remains Maori land.

9.27 Tarakoekoea (pyramid)

Tarakoekoea island is situated to the south of Rangiauria (see figure 1).

The first investigation of title to Tarakoekoea was made by the Native Land Court on 15 January 1898 but title was not determined.

According to the Department of Survey and Land Information, the crown has no record of Tarakoekoea ever being purchased by the crown or becoming general land. The Maori Land Court does not hold any records concerning this island. It is therefore ;' considered to be customary Maori land.

9.28 Waikawa

The Waikawa islands are three islands situated in the Whanga lagoon (see figure 1).

The Native Land Court investigated the title to Waikawa on 20 March 1900 on the application of a Maori claimant. The island was claimed to have been conveyed to T Ritchie by a deed on 9 February 1875. However the court dismissed the claim, d~ciding it could not ascertain whether either the claim or the deed were valid until the islands had been surveyed.

According to the Department of Survey and Land Information, the crown has no record of Waikawa islands ever being purchased by the crown or becoming general land. They are considered to be customary Maori land.

The Department of Survey and Land Information are also of the opinion that the crown never purchased the following islands, nor have they become general land and therefore are considered to be customary Maori land (see figure 1). That no records for these islands could be found at the Maori Land Court 63 supports this opinion.

Ahuru (Eastern Reef) Fancy Rock Motuhope (Star Keys) Murumuru Islands Passage Rock Rangituke (Round) Rock Sail Rock South Reef Sugar Loaf Te Rangakiore Whare Kai Kite Motu (Rabbit) Island 64

9.29 Research question number 6:

(6) the 'Taranaki' land locations as they are today

It is considered that this question lies outside the competency of this research report in that it involves making a jUdgement as to the tribal affiliations of Chatham Island land owners without consultation with those owners. This report therefore takes the view that it is for Chatham Island land owners themselves to inform the Tribunal of iwi association/identification where this is thought necessary. 65

9.30 Turning now to Research question number 7:

( (7) the rulings of the Native Land Court

The extension of the jurisdiction of the Native Land Court to the Chathams was preceded by an investigatory visit to the islands by the under­ secretary for Native ·Affairs, Henry Halse, in March and April 1867.

9.31 The purpose of Halse's visit was to acquaint himself with matters upon which he considered the government may require information. More particularly, he was instructed to report upon the population of the islands and the relations subsisting between the races there. He was to

•.• give every information to the 'Natives as to the working of the Native Lands Act, and recommend them to consent to a joint survey of their claims, to be carried on under the direction of the government, representing to them the advantage which would accrue from such a course by the obviating of any future dispute and by at once obtaining a correct survey of the whole island. In case of their agreeing to this proposal, the government would see that the work was correctly carried on and that the charges were reasonable. ,Th;e,..sitting of the Court would also be expedited by this arrangement .••

9.32 He ·was further told:

You will see the body of Natives at Waingaroa who are reported to be about to migrate to' Taranaki with the intention of settling there and explain to them that they will gain nothing by adopting this course, the government will consider their claims in common with those of other absentees and award them compensation as they have been previously informed •.. 83

9.33 RaIse reported to Grey on the conflicting opinions on the subject of ownership of the Chathams and the need to ascertain title there. Re described the Moriori claim as the original occupants and the Maori claim by right of conquest. He also described the division existing amongst Maori, some of whom fraternised with the Morioris while others ignored

83 MA 4/9 Outwards Correspondence, Rolleston to RaIse, 22 March 1867:331-333. 66

them, and how some consented to a survey and a sitting of the Native Land Court whilst others opposed both least their title to the land already leased to Pakeha might prove to be defective. 84

9.34 The claims to the court were managed in terms of five large blocks surveyed by Percy Smith prior to the hearings. These represented both the territories taken by the five major chiefs in 1835 and the old Moriori tribal districts. 8s Claims to Rangiauria and Rangatira islands were also tendered.

9.35 According to Native Land Court minutes, Smith was ordered by wi Pomare to survey the land. Moriori did not accompany them for the survey, believing they had joint claim with Maori. 86 Disputes arose over the survey of Te Matarae block when Ngati Mutunga objected to the survey lines laid by kekerewai. In protest survey pegs we"re pulled and Percy Smith returned to re-survey the block according to Ngati Mutunga boundaries. 87

9.36 The claims were heard in June 1870 at Waitangi before Judge J Rogan. Maori claimants sought title to the 5 blocks on the grounds that they had rights to the land acquired by conquest followed by actual occupation. Moriori claimants argued that they had rights to the land through more than one thousand years of occupation strengthened by an abidance to the customary law of Nunuku.

9.37 Exceptions to this course of proceedings existed in the otonga and Wharekauri cases where the dissension of earlier claims was avoided by agreements reached between Maori and Moriori prior to hearing and a dispute of ownership arose between two groups of Maori claimants in the claim to the Matarae block.

9.38 wi Naera Pomare's assertions in the opening claim to the Kekerione block epitomised the Ngati Mutunga claim:

I claim this land on account of my long residence on it, and having taken possession of the Island ••• By the power of my arm I took possession ..• We came and found this place

84 AJHR 1867 A-4:6.

8S King 1989:126.

86 Chatham Islands Minute Book 1:19.

87 Chatham Island Minute Book 1:27. 67

inhabited and took possession, when we took it we took their mana from them and from that time to this I have occufied the land, this is the basis of my claim. 8

In a counter-charge Moriori claimed

I claim these lands through my ancestors Koke, Kahu is the name of the chief who first arrived here from Hawaiiki ••• 'they [Maori] have no grounds for claiming the Chathams as against us the Morioris. I repudiate their right altogether because the blood of the Moriori as shed by them has never been revenged .•• 89

.•• Our having been killed by New Zealanders [Maori] without provocation is our reason for saying we are entitled to have our lands. 90

9.39 However, some evidence brought before the court contradicts the seemingly straightforward nature of the claims, suggesting that they were probably more complex than they first appeared.

9.40 According to court evidence Maori alone assisted in the surveying of the island, Moriori stating:

••• we did not go that we might have a joint claim with the Maori. 91

9.41 On the question of the leasing of the land and the agreement made between Maori and Moriori, Hirawanu Tapu, a Moriori claimant, informed the .. court:

.•. [we agreed] that we should become as one with them and forget all past wars and quarrels. We also went to Riwai and Pamariki and made the same agreements with them respecting the leasing of the lands and that we should forget the past. 92

9.42 Another Moriori claimant supported this statement:

.•. it is correct that they wished us to become one with them and that we should have half the

88 Chatham Islands Minute Book 1:4.

89 Chatham Islands Minute Book 1:15.

90 Chatham Islands Minute Book 1:18.

91 Chatham Island Minute Book 1:20.

92 Chatham Island Minute Book 1:17. 68

proceeds from the leases of land. 93

9.43 Claiming the same block of land, Wi Naera Pomare also said:

... [t]hat we made an offer to this effect. That we should become one people and should eat from one dish. They [Moriori] said no we will have all the Chatham Islands an offer to them to become one is that they should participate equally with us in the rents for the land and the land itself. After the refusal by the Morioris I then gave a piece of land to the Morioris who are called my Morioris. 94

9.44 In the claim to Te Matarae block, Moriori were admitted to the claim by Maori. According to Karaka Ngamungapaoa, a Moriori:

••. Rakatau and I are the owners of it. Rakatau has admitted that I have some claim to this land and he will mention my name as a claimant •••

Rakatau confirmed:

••. Yes I do admit him [as] a claimant-witness in this block. There were 40 or more Moriori living on this block they were the ancient owners of this land and that is whl I thought of giving them some of the lands. 9

9.45 When claiming the Kekerione block a Maori claimant said:

... on the settlement of this claim by the court I will give portions of the land to Morioris. 96

9.46 As the evidence suggests it is possible that some accommodation had been reached between Maori and Moriori prior to the court hearings and it has to be considered that had the court not intervened and given elevated weight to rights acquired by conquest, such a divisive and on-going conflict between the two groups may not have emanated.

93 Chatham Island Minute Book 1:19.

94 Chat ham Island Minute Book 1:22.

95 Chat ham Island Minute Book 1:26.

96 Chatham Island Minute Book 1:9. 69

9.47 In all claims the court found in favour of the Maori claimants. The first finding (for the Kekerione block) set a precedent for the claims that followed:

The court having fully and carefully considered the evidence given in this claim is of opinion that wi Naera Pomare and his co-claimants have clearly shown that the original inhabitants of these Islands were conquered by them and the lands were taken possession of by force of arms and the Moriori people were made subject to their rule and also that they maintained their conquest by actual occupation without having subsequently given .up any part of the estate to the original owners they (the New Zealanders) only having given sufficient land to the Morioris to cultivate for their support.

The court therefore is of opinion that wi Naera Pomare and the Ngati Mutunga tribe are the rightful owners of this block according to Native custom. But the court is of· opinion that as the original inhabitants have had a permissive right hitherto of cultivating certain portions of land for their maintenance. 97

97 Chatham Islands Minute Book 1:63. 70

9.48 Accordingly, the court made the following findings:

BLOCK NAHE NATIVE LAND HAPU ISSUED EXTENT OF RESERVES KADE TO COURT TO BLOCK ttORIORI HEARING Kekerione 14 June 1870 Ngati tlutunga 39,200 600 acres, including acres settlements of Rangatira and Red Bluff Te Awapatiki 24 June 1870 Ngati tlutunga 30,876 2,000 acres at or acres near OUenga Te tlatarae 25 June 1870 Ngat; tlutunga 6,400 acres 200 acres Kekerewai Rangiauria 25 June 1870 Ngati Mutunga 15,630 No reserves made Ngati Tama acres Rangatira 25 June 1870 All claims dismissed as no survey had been made Otonga 27 June 1870 Ngati Mutunga 39,657 2 reserves: 600 acres acres at Te Tuku and 50 acres at Waikarepe Wharekauri 27 June 1870 Ngat; tlutunga 55,055 2 reserves: 600 Ngat; Tama acres acres and 50 acres

9.49 However, Rogan did not explicate the premise upon which Maori rights to the land acquired through conquest were upheld, and concurrently did not explain why he completely ignored a Moriori customary claim to land. Was he, for example, considering antecedent findings of the court when making his judgment?· Chief Judge Fenton had already validated·this customary principle in June 1866 when adjudicating claims to the Compensation Court in Taranaki. 98 In these cases, Chatham Island Maor~ were claiming compensation for their interests in the confiscated Oakura and other blocks. The court (of which Judge Rogan was one of the presiding judges) had to consider whether the Taranaki tribe, expelled from the area by Waikato between 1820 and 1830, retained a right to the land. Fenton disallowed the claims, ruling:

... The conclusion at which we have arrived, after our experience in the Compensation Court, and as members also of the Native Land Court, is that before the establishment of the British Government in 1840 the great rule which

98 Established under the New Zealand Settlements Act 1863 to adjUdicate claims to compensation for lands confiscated under the same Act. 71

governed Maori rights to land was force - i.e., 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, if the invaders settled upon the evacuated territory, it remained theirs until they in their turn had to yield it to others •.. 99

He added:

••. We do not think it can reasonably be maintained that the British Government came to this Colony to improve Maori titles, or to reinstate persons in ~ossession from which they had been expelled ••• 00

9.50 It may have been that Judge Rogan was observing this ruling of the Compensation Court (or other Native Land Court rulings on the subject) when deciding Maori customary rights vis a vis Moriori customary rights. However, in doing so, he was treating Moriori as another Maori group.

9.51 Certainly, Rogan must have had knowledge of the two opposing customs. RaIse was fully aware of the situation as was revealed in his report to Governor Grey. According to claimant testimony before the court, Moriori had communicated their claims to the Native Land Court prior to its first hearing. 101

9.52 (bl 1881-1884

Claims to succession were heard by the court in the Chatham Islands in 1881 and 1883 and in New Plymouth in 1884.

9.53 (cl 1885

Claims to the ownership of the two outlying islands Rangitutahi (the Sisters) and Motuhara (the "Forty Fours") were heard by the court in the Chatham Islands in 1885. These were a vital and continuing source of mutton birds and albatross for Maori and Moriori, and they had not been specifically included in the 1870 court settlements. 10Z Resident

99 Fenton F D Important Judgements Delivered in the Compensation Court and Native Land Court 1866-1879, 1879:9.

100 Fenton 1879:10.

101 Chatham Islands Minute Book 1:14.

102 King 1989:140. 72

Magistrate S Deighton presided over the hearings and Hamuera Mahuki was employed as the Native Assessor.

9.54 On 5 February 1885 Wi Naera Pomare laid claim to Te Rangitutahi based on a right of discovery as the islands were uninhabited. No objections to the claim were presented to the court by Moriori. The court upheld the claim and ordered a title be issued.

9.55 On 6 February Hirawanu Tapu (Moriori) claimed ancestral ownership of Motuhara, repudiating that Maori had taken possession of it. However, it was contested by Wi Naera Pomare who maintained that as Rangiauria had been included in the 1870 Native Land Court ruling, it was considered so were the other islands. The Moriori claim was dismissed by the court, Judge Deighton ruling:

••• as the Chatham Island were adjudged to the Maoris in 1870 and the court is of opinion that the adjacent Islands were included in that judgement. 103

9.56 (d) 1887-1894

Claims to succession were heard by the court in the Chatham Islands in 1887, 1888, 1893 and 1894.

9.57 (e) 1898

The title to Mangere was investigated by the court in 1898 at Waitangi .. Rights to the island were argued between Maori based on possession of the island. No claims were brought before the court by Moriori. Title was not determined.

Claims were also admitted by Maori for Tapuaenuku, Tarakoekoea and Rangatira. As before, claims were not made by Moriori. Titles were not determined by the court, the claim for Rangatira being dismissed as the applicant had been 'disposed of' in a previous claim.

9.58 (£) 1900

Claims to succession were heard by the court in January and February 1900.

In March 1900 the court determined the Maori owners to Rangatira had already been settled and ordered title be issued.

103 Chatharn Island Minute Book 1:96. 73

It also determined title to Mangere to be vested in Maori owners and ordered title be issued.

Title to Waikawa was also investigated and determined on application of a Maori. The island was claimed to have been conveyed to T Ritchie by a deed of 9 February 1875. However, the court dismissed the claim, deciding it could not ascertain whether either the claim or the deed were valid until the islands had been surveyed.

Further claims to sucession were heard in April, July and August 1900.

9.59 (g) 1901-1985

No further investigations and determination of title were made by the court. Claims to succession and partitions were dealt with in 1901, 1906 (Wellington), 1907, 1930, 1936, 1937 (Wellington), 1939 (Wellington), 1959, 1981 and in Christchurch in 1982, 1983, 1984 and 1985. 74

9.60 The penultimate research question to be examined in this section is:

(8) the relevance of confiscation of land in Taranaki to the outcome of claims before the Native Land Court

9.61 The rulings of the Native Land Court to the claims in the Chathams must be viewed in the light of concurrent events in Taranaki. only five years prior to the court's judgement, Ngati Mutunga and Ngati Tama in Taranaki had been completely disinherited of their ancestral lands. The enactment of a land confiscation policy as punishment for "open rebellion" resulted in the wholesale confiscation of land and an immobile process of awarding compensation to those Maori who had not engaged in rebellion. These considerations combined with the increasing Pakeha pressure for land have to be considered as attributing factors to the outcome of the claims before the Native Land .court.

9.62 The loss of tribal lands directly stemmed from the Zealand Settlements Act 1863, under which the rohe of Ngati Tama and Ngati Mutunga, together, had been declared a 'district' (from which the governor could take any land, deeming it to be Crown land) and an 'eligible site' for colonisation. 104

Awards for compensation were made by the ; .~ Compensation Court in September and October 1866 upon agreements reached with the claimants out of court. However these were never implemented and had to be investigated by the West Coast Commission in 1880. Furthermore, those claimants not resident in. Taranaki in 1840 were ruled disqualified to claim before the court, thus disallowing 206 claims from the ChathamIsland Maori. 105 (This rule was substantially modified in 1867 to award 1,300 acres to Ngati Tama and 3,000 acres to Ngati Mutunga) . 106

9.64 It was during this time that the government actively

104 Ford J The Decisions and Awards of the Compensation Court in Taranaki 1866-74, Report for the Waitangi Tribunal, Wellington, July 1991:14-15.

105 DOSLI New Plymouth, Proceedings of the Compensation Court File No 2/6 1866. Schedule of Rejected Claimants to Ngatiawa Coast Block. RDB Vol 116:44813.

106 Kahiti 0 Niu Tireni 1865-1872, No, 9, 14 August 1867:58- 59. 75

discouraged the return of the Chatham Island Maori to Taranaki. On 12 November 1866 the under secretary of Native Affairs wrote to the Resident Magistrate on the Chathams:

Mr Richmond wishes you to repeat the assurance contained in his letter of october 18th and to inform these Natives who propose to return to Taranaki that their claim to consideration would be diminished by the attempt to occupy any part of the land within the confiscated blocks before obtaining the assent of the government. 107

9.65 The following year, the under secretary of Native Affairs visited the Chatham Islands with instructions to:

•.• see the body of Natives at Waingaroa who are reported to be about to migrate to Taranaki with the intention of settling there and explain to them that they will gain nothing by adopting this course, the government will consider their claims in common with those of other absentees and award them compensation as they have been previously informed ••. 108

9.66 Halse later reported that while on the island he heard Maori intentions to return to which he ') replied:

••. [t]hat no advantage would be gained by going there. This land was good, and this harbour was good - provisions were abundant, and the country contained a large number of horses and cattle. 109

9.67 Another visit to the Islands was made in 1868 by William Rolleston MHR. According to King, it was another attempt to deter the repatriation of Ngati Tama and Ngati Mutunga to Taranaki, argued on the ground that the forthcoming court sittings would . require their presence to secure their Chathams holdings. 110

107 Rolleston to Thomas, MA Series 4/61-862 Outward Letterbooks:518.

108 Rolleston to Halse, 22 March 1867, MA 4/9 Outwards Correspondence: 331-333.

109 AJHR 1867 A-4:6.

110 King 1989:122. 76

9.68 Despite the deterrence of the government, the Chatham Island Maori continued with their intentions to return to Taranaki. On 10 December 1867 the Resident Magistrate on the Chathams notified the Native De~artment that 122 Maori had left for Taranaki. 11 (This group was not the first to arrive in Taranaki. On 10 January 1859 21 Maori from the Chatham Islands had returned to Waitara) .112

9.69 Commenting on their arrival in Taranaki on 18 January 1868, Parris told McLean:

It is feared that this action thus suddenly taken by them may prove embarrassing at the present time, and it is much to be regretted that the efforts'of the government to prevent their takin~ this course should have been unavailing. 13

9.70 And in December 1868 Halse advised the Resident Magistrate of the Chathams on:

••• the departure of one hundred and forty eight natives for Taranaki in the barque 'Collingwood' ••• 114

9.71 According to the evidence given by Parris before the West Coast commission in 1880, agreements had been reached between the Chatham Island Maori and the ~"government that they should settle in the Ngati Mutunga district on land' 'decided upon by the government. However, this arrangement was not immediately settled due to ten~e conditions existing between settlers and Maori, and in the meantime the Chatham Islanders cultivated 'wherever thel liked',. existing as squatters on their own land.11

9.72 In November 1869 Parris reported to McLean that:

111 MA 2/8 1867/1887, Registers of inward letters, letter not extant.

112 Parris to McLean, 10 January 1859, Mc Lean ,Papers MS 32 Folder 493.

113 Rolleston to Parris, 21 December 1867, MA 4/63 Outwards letterbooks to Resident Magistrates:222.

114 Halse to Thomas, 5 December 1868, MA 4/64 Outwards letterbooks to Resident Magistrates:232.

115 Evidence of Parris, West Coast Commission, Proceedings and Evidence, waitara 5 Mar 1880, AJHR G-2 :24. (RDB Vol 30: 11680). 77

••• the Natives who recently returned from the Chatham Islands were showing signs of disaffection towards the government •.. ll6

and further:

..• some of the Ngatitamas returned from the Chatham Islands are going to occupy some land in absence of the constabulary at Waiiti - this I consider very objectionable at present for many reasons and have taken it upon myself to tell ••. [illegible] not to allow it pending instructions from you .•. ll7

9.73 The land confiscations in Taranaki were indisputably linked to the colonial government's activities on the Chatham Islands. The 1840 rule, instituted in the Compensation Court, enabled the court to rule on the entitlements of absentee owners. It is the opinion of this report that the denial of absentee owners' rights to their ancestral estates in Taranaki and the subsequent awarding of land to Chatham Island Maori when their claims were not yet secure, was no coincidence.

116 Parris to McLean, 20 November 1869, McLean Papers MS 32 Folder uncertain:97.

117 Parris to McLean, 30 November 1869, McLean Papers MS 32 Folder uncertain:100. 78

9.74 (12) the relevance of the 1840 rule in the Chatham Islands

The 1840 rule was first laid down by Chief Judge Fenton when adjudicating claims to the Compensation Court in Taranaki in June 1866. However, the notion to fix such a time when New Zealand could be regarded as "settled" was not entirely new. Although not explicit, Commissioner Spain's investigation of the New Zealand Company's titles and land claims in May 1844, had made similar considerations. Spain stated:

••• [i]t appears to me that the Ngatiawa, who left this district after the fight, sought for and obtained another location, where th~y lived and cultivated the soil, and from fear of their enemies did not return, cannot now show any equitable claim to the land they thus abandoned; and having admitted their title at Port Nicholson, by reason of their occupation and cultivation of the land there, ••• I could not, with the slightest regard for consistency in my awards, for one moment entertain any claim of theirs to this district. Had they returned before the sale, and, with the consent of their countrymen again cultivated the soil, I should have held that they were necessary parties to the sale.

It appears, however, that some of this tribe ---- did return here and commenced cultivating land within the limits of the block previously alienated to the New Zealand Company. But I cannot, for the reasons stated before admit their title; and if I did, I should be obliged to admit that of all the others who might at . any time think proper to return and claim _ payment ••• my inquiry would have been almost interminable.

9.75 Paradoxically, it was because of the Chatham Island Maori interest in the confiscated Oakura block that Judge Fenton officially set the rule. In its consideration as to whether the Taranaki tribe, expelled from the area by Waikato between 1820 and 1830, retained a right to the land, the court found it necessary to lay down a rule as to the time and circumstances when the ownership or title of expelled owners could rightly be regarded as having terminated. lIS Fenton stated:

Having found it necessary to fix some point of

118 Fenton 1879:10. 79

time, at which the titles, as far as this Court is concern€d, must be regarded as settled, we have decided 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, except in cases where changes of ownership or possession have subsequently taken place, with the consent, expressed or tacit, of the Government, or without its actual interference to prevent these changes.

9.76 Fenton stated the rule was fixed for the court's inquiries under the New Zealand Settlements Act 1863, but that:

..• Of course the rule cannot be so strictly applied in the Native Lands Court where the questions to be tried are rights between the Maoris inter se, but even in that Court the rule is adhered to, except in rare instances. 119

9.77 However, it is worth noting that in subsequent hearings of compensation claims the court decided that the rule should not be so rigidly applied and admitted two further classes of claimants;

(a) claims established by proof of actual residence and cultivation up to a recent period

(b) claims of persons long absent and settled elsewhere, but who themselves or whose parents,· or near relatives, were in the year 1840 actual owners and p~ssessors of the land. 120

9.78 Although Judge Rogan did not refer to the 1840 rule in his judgement, it was nevertheless being applied to the Chathams as evidenced in the reference to the conquest and the subsequent upholding of Ma~ri claims based on conquest. That Judge Rogan presided over the Compensation Court hearing in 1866 and in had full knowledge of Judge Fenton's rule further supports this.

9.79 The relevance of the 1840 rule in the Chatham Islands is clearly evident. In effect, this

119 ibid.

120 Ford 1991:25. It is unclear how the time period for 'proof of actual residence and cultivation up to a recent period' was defined. Clearly the discretion was with the court. 80

'freeze' of New Zealand at a designated time in 1840 created a fixed land tenure that secured for Maori ( rights to land acquired only five years before by a sure conquest and occupation. But for the original Moriori inhabitants, it ensured a denial of all rights that had existed until very recently.

9.80 The notion of Maori conquerors ruling over conquered Moriori served the administrative needs of the colonial government and provided a neat solution to a potentially embarrassing problem. But by entrenching this notion, the court closed off the possibility that Moriori and Maori might, in the face of a more informed court ruling which gave greater weight to the Moriori interest, come to a more equitable adjustment of their respective interests. Even before the court decision, there is evidence that Moriori and Maori were prepared to voluntarily adjust their interests to a limited degree.

9.81 The generally accepted but unstated rule that rights to .lands were secured after three generations of continued occupation was deposed by the implementation of the 1840 rule. Had the appropriate consideration for 'ahi ka' been given it would have been evident that while Maori rights to Chatham Island lands were far from secure, their claims to lands in Taranaki were more than certain. Thus, the application of the 1840 rule completely .,. denied the reality of the situation.

9.82 Although it chose not to, it was possiQle for the Native Land Court to have been flexible in its consideration to apply the 1840 rule to the Chatham Islands. Fenton's statement of rule had allowed for 'rare instances' where the rule need not be adhered to. The Chatham Islands was such a rare instance in that the court was not concerned with rights between Maori inter se as it was in all other cases. Furtherstill, precedent had actually been set for a modification of the rule in the Compensation Court when it decided to admit absentee owners (albeit, to a different status than resident owners). 81

Section 10 10. Fisheries - Research items 17 - 19 inclusive.

(17) an examination of customary fishing rights in the Chatham Islands as at 1840; (18) the basis for the claims to fisheries ;

(19) access to fishing resources;

10.1 Dealing firstly with the question of customary fishing rights:

(17) an examination of customary fishing rights in the Chatham Islands as at 1840;

The marine resources of the Chatham Islands were, and still are, among the richest in New Zealand territorial waters and the archealogical and traditional record provide very strong evidence of a lengthy and extensive Moriori exploitation of those resources up until 1835. Dr Douglas Sutton of the University of Auckland carried out a remarkable series of excavations over a period of two years of a Moriori settlement on Chatham Island. The results of his investigations were published in the Journal of the Polynesian Society vol 89. He described in detail the organisation and workings of a 16th century Moriori village (Waihora) on the south-west coast and his description is useful in illustrating traditional Moriori usage of their marine resources:

The people who occupied Waihora and the related sites lived by sealing, shell-fishing, fishing, fowling and some collection of plant foods". They killed fur seals throughout the year at a rookery just 400 m away and took other large seals whenever the opportunity presented itself. The seal carcasses were butchered near the rookery and meat blubber and other edible materials moved to waihora. Sealing was easily the most important subsistence actiyity in the economic cycle.

Shellfishing was a seasonal activity in so far as it was most often ossible to collect shellfish efficiently during the calmer months from Ocotber to April. Shell-fish were collected off the large areas of intertidal platform •• and many shells were left neatly in big dumps, now identified as specialised middens. Women and children probably collected the shellfish and they were very selective. 82

The three largest, most conspicuous and easily taken species comprise over ninety per cent of the shellfish recovered from three of the specialised middens which were excavated ..•

The men caught inshore fish species by using nets set and cast off the less kelp-covered promontories, again most frequently during the calmer months from October to April. Line fishing was very uncommon. Netting was an efficient strategy given the concentration of fish inshore and the frequent and unpredictable changes of wind speed and direction which occur in the Chathams. It produced a lot of potential food with only relativelr simple technology and little or no risk.1 1.

10.2 Michael King, commenting on the pre-contact Moriori lifestyle and use of the fishing resources, writes:

Fish too were also plentiful - not large in species types but certainly so in numbers: cod, groperr greenbone, moki, tarakihi. Crayfish and crab made up another food source r as did shellfish and seaweed. For the Moriori r marine food resources on the Chathams were to prove far more abundant, diverse reliable and resilient than land foods. i 22

10.3 Both these commentaries suggest that Moriori use of the resource waS'restricted to close 'in-shore' fishing activities but there is a substantial body of evidence which shows that Moriori had the necessary technology to make journeys of some_ distance on fishing, sealing and birding expeditions:

Large dug-out canoes had long since disappearedr because of an absence of suitable trees. But their place had been taken by the korari or so-called wash-through rafts r which had a base of inflated kelp for buoyancy and a floor and sides of bound reeds. Although they looked cumbersome and were difficult to carry, they were well suited to the strong, winds and rough seas around the Chathams. They lay low, partially waterlogged, and were far more stable than conventional canoes in such conditions. In these crafts - some measuring up to fifteen metres in length (including bow and stern projections) - Moriori made safe journeys

121 As quoted in King 1989:28-29.

122 King 1989:25. 83

between Chatham and pitt Islands, out to the cod-fishing grounds, where they tied the craft to long arms of kelp, and forty to fifty kilometres out to the offshore rocks for seal and albatross hunting. 123

10.4 There is also evidence to show that the pre-contact Moriori lifestyle was heavily dependent on seals and consequently the sealing rookeries. The slaughter of the seal herds124 in the early years- of the 19th century by sealing gangs is suggested as being another contributing factor to the decline of Moriori as a people in the decades that followed.

10.5 The other marine mammal resource used by Moriori were whales. These animals, especially blackfish, stranded frequently on the main island's northern, eastern and western beaches. Exploitation of this resource appears to have been more fortuitous rather than deliberate although there is a body of evidence - which shows that some Moriori death customs, combined with the use of appropriate karakia were believed to have had the ability to bring the animals ashore. There is certainly no evidence of pre-contact Moriori going to sea to deliberately hunt whales.

10.6 As early as 1807 however, Moriori were already travelling between the Chatham Islands and New Zealand on sealing ships125 and it is reasonable to assume that, like Maori, they were employed in sealing gangs and, later, crewed on whaling ships. Though there is no documented evidence at this stage to support such a conclusion, it is nevertheless suggested that in common with other provisioning arrangements on the mainland, Moriori may have been involved in the trading and bartering of fish to sealing and whaling vessels.

10.7 King comments that [by 1835] ••• While the seal was virtually gone, Moriori still relied heavily on other traditional foods - fernroot, karaka berries, cast blackfish, eels, fish, shellfish, birds - gathered seasonally and (where necessary) sparingly, to allow replenishment. 126

123 King 1989:31-33.

124 One estimate puts the size of the herds at 20,000 animals. King 1989:48.

125 Richards 1982: Sealing section:22.

126 King 1989:57. 84

10.8 There is no specific secondary source evidence relating to changes or otherwise in customary fishing following the invasion of the Chatham Islands in 1835. It is assumed that Moriori continued to exercise their fishing practices, although this may have been, for some, in the service of Maori. 127 It is also assumed that Maori would have also continued fishing practices followed on the mainland but adapted to local conditions. If the claimants have contrary views, then presumably these will be put forward at a formal hearing of the claim.

10.9 There may be other evidence or information which, because this report encompasses an exploratory examination of a number of preliminary questions, are outside the investigative brief. It is also conceded that the claimants may have a body of oral evidence on the nature and extent of customary fishing practices·on the Chatham Islands. If that is the case, then presumably this information too will be brought forward at a formal hearing.

10.10 Preliminary conclusions:

• up until 1835 Moriori made extensive use of the marine resources of the Chatham Islands, both close inshore and at offshore locations at some distance from the main islands.

• It is likely that despite the invasion of the Chatham Islands in 1835, use of,. the resources by Moriori continued unabated but possibly not on the same scale. .

• It is also likely that Maori living on the islands before and after 1835 also made use of the fishing resources with Maori usage increasing after 1835.

• Moriori and Maori worked in the 19th century seal and whaling industries.

• Use of the fishing resources for domestic and commercial purposes by Chatham Islands people has been continuous to the present day and forms a vital part of the islands' modern economy. .

• It is considered unlikely that the situation regarding customary fishing rights immediately following 1835, would have changed dramatically by 1840.

127 AJHR 1867 A-No.4:4. Commissioner Halse reports meeting a group of Moriori eel fishing on Te Whaanga lagoon during a visit to the Chatham Islands. 85

10.11. Turning now to the next research question: (18) the basis for the claims to fisheries;

The following extracts from the various statements of claim, are the concerns expressed by the claimant groups in respect of the Chatham Islands fisheries. The statement extracts are given here in the numerical order of the claims and their order of appearance in this section of the report has no significance.

10.12 In WAI 54, the claim, filed by Makere Rangiatea Ralph Love and Ralph Heberley Ngatata Love on behalf of themselves and on behalf of the beneficiaries of the Taranaki Maori Trust Board, is principally concerned with Taranaki confiscated lands, but para 3 of the claim is in respect of fishing rights:

FISHING RIGHTS

••• BY denial of fishing rights as guaranteed by the Treaty of Waitangi in relation to the rivers, lakes, coastlines and harbours within the tribal boundaries of Nga Iwi 0 Taranaki •

••• BY denial of the fishing rights as guaranteed by the Treaty of Waitangi in relation to the Tasman Sea, Cook Strait and the Pacific Ocean offshore from the lands within the tribal boundaries of Nga Iwi 0 Taranaki .

••• BY denial of fishing rights in and around the Chatharn Tslands.

10.13 In WAI 64, the claimant, Maui Solomon states:

.•• 1, •.• , and all the members of my family, whanau, hapu and Moriori Iwi, claim that we have been prejudicially affected by the actions of the Crown which have alienated us from our fisheries in Rekohu (Chatham Islands). We have been denied the rights and protections of our fisheries, lands and other valued things which were guaranteed to us in the Treaty of Waitangi ...

10.14 In WAI 65, Mr R R Preece, Chairman Te Runanga 0 Wharekauri Rekohu .•. on behalf of himself and on behalf of the descendants of the tangata whenua, iwi, hapu of the rohe described as Te Runanga 0 Wharekauri Rekohu, otherwise known as Nga Iwi 0 Wharekauri Rekohu or Nga Iwi 0 Chatham Islands claims in respect of fishing rights that: 86

.•. By neglect, a limited access to the fisheries of non i~i commercial entrants provided for by the Fisheries Act 1877 also applied in practice to iwi participants who enjoyed unlimited amateur, professional and commercial status as of hereditary right~

... By neglect where an unlimited access to fisheries was permitted by the Fisheries Act 1962 which matured as a property right that settled on specie[s] stocks acquired under the provisions of the Fisheries Act 1983 •

••. By neglect, to provide and to insure otherwise iwi, hapu, whanau and individual participants were treated as commonors in a Fisheries rendered common and so become affected by the control measures of the Fisheries Act •

••• By failure to continue unextinguished title to the fisheries and fish stocks, the minerals soluble in the water and deposits on the sea bed and in the bed of the sea the and the bestowal of freehold and leasehold property rights on fish and the bed of the sea and the granting of property rights to individuals and groupings of individuals and the placing of capital values on fish stocks are in breach of Article 2 of the Treaty of Waitangi •

.•. By neglect of non-proclamation the Crown has not secured to nga iwi 0 Wharekauri Rekohu, the internal waters and the waters ann bed of the sea whose potential they have yet to reach •

..• By denial of birding rights and sealing rights on outer islands and reefs where titi, toroa, puhia and mihia occur. Wild life and Conservation Act .

.•• By denial of access to outer islands and reefs.

10.15 On 1 July 1990, the Wai 65 statement of claim was amended by the addition of the following" insert:

..• The claimants •.• include active and redundant fishermen who have been denied benefit and profit:

1. While involved in the fishery

2. By exclusion from the fishery

3. By being affected by the moritorium[sic] 87

on the fishery.

10.16 The points at issue, as drawn from the claim statements, can therefore be summarised as follows:

1. The prejudicial effect of Treaty breaches and in particular the breaching of article 2, the English version of which promises Maori full, exclusive and undisturbed possession of their fisheries.

2. Specific claims concerning the prejudicial effect of various Acts of Parliament governing fishing activities.

3. Although not specifically stated, all claimants appear to have a common interest in the fishing resource arising from some kind of occupancy of the Chathams; either through current residency, on a historical basis, or both.

10.17 The Waitangi Tribunal has previously investigated two major fishing claims; the Muriwhenua Fishing claim (Wai 22) and the Ngai Tahu fishing claim (Wai 27). Provided the constitutional questions surrounding the applicability or otherwise of the Treaty to the Chatham Islands in 1840, or at a later date, can be satisfactorily resolved, it appears that arguments used by Maori in respect of 'mainland' fishing claims and the Tribunal findings in respect of those claims, have validity in the Chathams as well. For example there is no evidence to suggest that Chatham Islands inhabitants in any way signed away the fishing rights guaranteed to them under the Treaty. It is evident that, as with. mainland New Zealand, these rights were simply assumed by the Crown.

10.18 The aftermath of the Tribunal's investigation of the Muriwhenua fishing claim128 has particular relevance to this claim. Following the 1987 investigation there were subsequent challenges to the Quota Management System. Negotiations on the matter resulted in a partial settlement in 1989 when Maori had transferred to them, 10% of quota as it became available, this quota to be administered by the Maori Fisheries Commission. However government experienced some difficulty in acquiring the necessary quota.

10.19 In 1992 the government took an opportunity, in the form of the sale of the private fishing company,

128 Muriwhenua Fishing Report 1988: Chapter 12 Conclusions: 239. 88

Sealords, to acquire a large percentage (26%) of the national quota. The government then proposed that this acquisition form the basis for the settlement of all Maori commercial fishing claims. The terms of the settlement preclude further Tribunal claims concerning commercial fisheries.

10.20 Naturally the proposed settlement had major implications for the Chatham Island claimants with their very narrow economic base and they were to the forefront in objecting to the terms of the settlement seeking as an alternative a separate settlement for the iSlands. 129 While the establishment of the Treaty of Waitangi Fisheries Commission and the allocation of quota for the Chathams area for the 1993/94 season summarise the most recent developments, it is assumed that there is a likelihood that these issues may be revisited by some of the claimants when the Tribunal begins formal investigation of the claim.

10.21 One other preliminary matter that may arise before the Tribunal in investigating the claim is the question of sea boundaries. This is particularly so in respect of the allocation of quota by the Treaty of Waitangi Fisheries Commission. While the Commission has suggested an interim arrangement for the coming (1993/94) season, it is yet to determine an on-going allocation system.130

10.22 In terms of 'mana moana', it is noted that in the Ngai Tabu fishing claim,. the claimants amended their statement of claim on 25 June 1988 to read:

Ngai Tahu do not claim mana whenua on Rekohu­ Chathams Island or the smaller offshore islanq of that group, and therefore we do not claim that mana moana nor the Chathams fishery. -Ngai Tabu do claim and acknowledge their blood and historical relationship with many Chathams people of mixed Moriori, Maori or Pakeha descent. Accordingly we do not ourselves claim in the Chathams fishery, instead we recognise the duty of whanaungatanga requiring us to support the Chathams people in making their own claim. Ngai Tahu do not wish to intrude on the mana of the Chathams and only offer their

129 See Waitangi Tribunal - The Fisheries Settlement Report 1992 (Wai 307), Wellington, 1992.

130 The debate before the Commission seems to be whether quota will be allocated on a demographic basis or on 'mana moana' i. e. related to a particular iwi ' s mana over the coastline falling within its rohe. 89

support on such terms and at such times as those people might request from the Chathams islands community itself, so long as we-are satisfied their runanga genuinely represents the Chathams community itself rather that [sic] any external mainland group. Ngai Tahu expects in due time to negotiate directly with the Chathams People agreements for the boundaries and regulation of their respective fisheries where they abut ••• 131

131 Ngai Tahu Sea Fisheries Report 1992:319. 90

10.23 Dealing now with with the final research question forming part of this section:

(19) access to fishing resources;

There is no indication from the claimants of their intention in setting this research question. It is presumed that what is required is a survey of the relevant Fisheries legislation and the impact of that legislation on restricting access to fishing resources on the Chatham Islands. This portion of the report will therefore address that aspect.

10.24 An examination of the legislation concerning the control of fisheries in New Zealand was carried out by the Waitangi Tribunal in respect of its Ngai Tahu Fisheries report. 132 The legislation considered by the Tribunal covering the period 1866 to 1908 consisted of:

• The Oyster Fisheries Act 1866 • The Salmon and Trout Act 1867 • The Fish Protection Act 1877 • The Fisheries Conservation Act 1884 • The Oyster Fisheries Act 1892 (repealing the earlier legislation) • The Sea Fisheries Act 1894 (repealing the 1877 and 1884 Acts insofar as they applied to Sea Fisheries and also repealing the 1892 oyster legislation) • 1896 amendment to the Sea Fisheries Act (extending discretionary power concerning oysters to all other species of edible shellfish - significant because a continuation of concessions for Maori fishing rather than an acknowledgement of rights) • Maori Councils Act 1900 (amended in 1903) • 1903 amendment to Sea Fisheries Act • The Fisheries Act 1908 10.25 In chapter 5 of the Ngai Tahu Fisheries report,133 the Tribunal summarised the effect of legislation since 1866 on Maori Treaty fishing rights: • the Crown assumed the right not only to regulate and control the taking of oysters134 but to dispose of the ownership without .•.

132 Ngai Tahu Sea Fisheries report 1992:175-177.

133 Ngai Tahu Sea Fisheries report 1992:178.

134 It is appreciated that there is no oyster fishery on the Chatham Islands, however it is suggested that the principles established by the Ngai Tahu Sea Fisheries Tribunal investigation are nevertheless applicable. 91

consent

• the acclimatisation statutes and regulations worked to the prejudice of Maori

• the general sea fisheries legislation and regulations between 1877 and 1885 exempted Maori from their control provisions. This constituted some recognition of their Treaty rights. But the 1885 ultra vires regulations sought to limit Maori exemption to the taking of oysters and fish for personal consumption only

• the 1892 and later provision for exclusive oyster reserves near Maori villages were inoperative in the South Island. The later 1900 and 1903 provisions for Maori District Councils to control or make exclusive fishery reserves for Maori were not implemented anywhere in New Zealand

• the 1894 Act entirely removed all protection of Maori Treaty sea fishing rights

• the 1903 reinstatement of a watered down saving provision omitting al~ reference to the Treaty has continued since and with one recent exception has so far proved of little if any benefit to Maori

• the exercise of legislative control over Maori fisheries and their regulation equally in favour of non-Maori has been characterised by a failure of the Crown to consult with maori at any stage, and not infrequently, when challenged in Parliament, by evasive or erroneous responses by ministers of the Crown

• for a brief period of eight years (1877-1885) Maori were wholly exempt from the control provisions of the sea fisheries legislation. But from the first Act of 1866 onwards the legislation provided for the general public exploitation of the fish resource and was based on the premise of the Crown's right to provide for this notwithstanding the fishing rights guaranteed to Maori under the Treaty. Nowhere is any reference made to how any conflict between Maori and non-Maori interests was to be resolved; and

• the rangatiratanga of .•. in and over their sea­ fisheries has, except for some eight years (and then only to a limited extent) been denied or ignored by the Crown. 92

10.26 The introduction of the Quota System may have also served to limit access of Chatham Islanders to the local fisheries resource. It appears that quota allocation over, for example, the paua fishery, has not had sufficient regard for the location of the successful quota tenderer, and that in some instances, paua quota has been allocated to mainland New Zealand residents with consequential economic implications for Chatham Islanders. 135 It is possible that in speaking to the claim, claimants may be able to give other specific examples of a similar nature.

10.27 As already outlined above, the terms of the Fisheries Settlement of 1992 may be construed to restrict access of Chatham Island people to the fisheries. Similarly, for some claimants it is likely that the appointment of members to the Treaty of- Waitangi Fisheries Commission could be regarded as an impediment which restricts access of Chatham Island people to the fisheries on the grounds that they are not fully represented. It is ilkely that some of the claimants will raise this issue at any Tribunal investigation. It is noted that at least one Chatham Island group, the Te Iwi Moriori Trust Board, made submissions to the Tribunal on this matter in late 1992.136

10.28 Access to fisheries in the sense of physical access has never been an issue, being restricted only in terms of the availability of the capital resources needed to fund fishing operations and compliance with the appropriate legal requirements applicable to mainland New Zealand.

General background:

10.29 It is noted that commercial fishing at the Chatham Islands had its beginnings about 1909/1910 with the establishment of a freezer and fishing fleet initially based at OWenga but later moving to Kaingaroa. These early operations were based around long-line fishing with the main species being bottom dwellers: blue cod, groper and trumpter. The Owenga factory closed in the mid-1930s. 137

10.30 Commerical fishing has continued since those early

135 Personal interview Jim Pohio 28 Nov 1991.

136 Waitangi Tribunal - Appointments to the Treaty of waitangi Fishing Commission Report, (Wai 321), Wellington, 1992.

137 A Land Apart: the Chatham Islands of New Zealand, text Michael King; photographs Robin Morrison, Auckland, 1990:7. 93

beginnings to become a significant money earner for the local, and national, economy.

10.31 In January 1993 the Chatham Islands fishing fleet consisted of between 40-50 boats, eighteen of· which were more than 12 metres in length and therefore liable for survey under current regulations. The vessels were all inshore fishing vessels (12 mile limit) with the exception of 4 which survey as Coastal fishing vessels (200 mile limit). The vessels are mostly of steel and aluminium construction.

10.32 In 1992 the fishery, known as the South East (Chatham Rise) Fisheries management Area 4, contributed a total of approximately 14,000 tonnes (all species) to the national catch. 94

Section 11

11. General account of the background to the Chatham Islands claims - Research items 9, 20 and 21.

(9) the historical facts surrounding the claims of the Taranaki Trust Board to land and fisheries in the Chatham Islands.

(20) the historical facts surrounding the claims of the respective parties to a return of Crown­ owned lands in the Chatham Islands:

(21) the historical facts surrounding the claims of the respective parties to compensation for past injustices and breaches under the Treaty;

11.1 Dealing firstly with research item (9).

(9) the historical facts surrounding the claims of the Taranaki Trust Board to land and fisheries in the Chatham Islands.

The claim of the Taranaki Trust Board is laid out in the claim statement for Wai 54. As presently constituted, the claim statement contains no reference to, or claim over, land in the Chatham Islands.

11.2 Claims are, however, made to the fishing resources of the Chatham Islands where the claimants allege a denial of fishing rights in and around the islands. The comments made in the previous section are therefore relevant here as well.

11.3 There is no indication from the claim statement as to the historicity of this claim and it is assumed that the claim arises out of the 1835 invasion of the Chatham Islands by Ngati Mutunga and Ngati Tama in 1835 which has been examined in the earlier sections of this report.

11.4 It is further assumed that the Taranaki Trust Board, which came into existence in 1930 with the purpose of administering the funds settlement recommended by the Sim Commission, on behalf of Nga Iwi 0 Taranaki, believes it has a role in the Chatham Islands by virtue of its administrative role in Taranaki and the historical links mentioned in 11.3 above. Such a role may be challenged by other claima~ts.

11.5 There being insufficient data available to expand further on this matter. Presumably the Wai 54 claimants will address this particular point in the 95

course of the presentation of supporting submissions to the Tribunal at the appropriate time.

11.6 Dealing now with research question (20)

(20) the historical facts surrounding the claims of the respective parties to a return of Crown-owned lands in the Chatham Islands.

The historical facts surrounding the claims ,of the respective parties to a return of Crown-owned lands in the Chatham Islands. As previously discussed, the Wai 54 claimants make no reference to Chatham Islands land in their claim. The Wai 64 claimants make only a general reference to land in their claim. However the Wai 65 claimants make a more comprehensive statement in respect of Chatham Island land which falls within the scope of this research question:

•.• claim to be prejudicially affected by the following acts, policies and omissions by the Crown •

••• By neglect in which lands where taken by proclamation under the Public Works Act 1908 and were uncompensated for •

.•• By neglect in which lands were wrongfully designated in accordance with the Treaty of Waitangi •

.•• By denial where lands on the foreshore hav.e been 'alienated under the Local Bodies Act 1974 •

.•• By failure where alienation of uneconomical shares, in land under the Maori Purposes Act 1968, were lost .

.•. By the grant of lease to low water mark and the licence of use of foreshore and sea bed under the Harbours Act 1878, consolidated Harbours Act 1950 and Harbours Act s. 156 •

.•• By denial of mineral and water rights to Nga Iwi 0 Wharekauri Rekohu where title rests on two only dimensions, of length and breadth allowing a nonphysical third dimension of emotive concept thereby depriving them of the minerals and water rights beneath.

11.7 Certain lands on the Chatham Islands have been alienated through the operation of various legislation and most of these lands, certainly those which are now in Crown ownership, have been 96

identified within section 9 of this report which deals with land issues.

11.8 It is entirely possible that there have been Treaty breaches in respect of the alienation of such lands, or that the legislation concerned is in itself a breach and therefore open to challenge. However to formulate specific answers to this list of rather general assertions is outside the scope of this report. The claimants need to provide a closer identification of the land and issues so that more concentrated research into individual matters can be carried out.

11.9 It may well be that further research into individual cases may show that Treaty breaches have occurred. But in order for there to be a return of Crown-owned land, claims need first to be examined and proven before the Tribunal. The Tribunal may then make recommendations concerning possible redress, one of which might be the return of Crown-owned land. However it should be noted that one does not necessarily follow the other.

11.10 Again further comment on this research question must be speculative because of the lack of knowledge about the intent of the claimants in setting the topic. However if one intent of this question is to seek from this report an indication of the relative merits between the claimant groups in respect of the possible return of Crown-owned lands, that cannot be given here. It is more properly a matter for the Tribunal to deal with in the light of any relevant information, particularly supporting submissions, which may 'be presented to it.

11.11 A similar stance is taken in respect of the final research question in this section:

(21) the historical facts surrounding the claims of the respective parties to compensation for past injustices and breaches under the Treaty.

Compensation, if any, will turn on the ability of claimants to firstly prove a case before the Tribunal. In the normal course of events the Tribunal will report on the claims to the Minister of Maori Affairs. The report may contain recommendations for consideration by government as to how it may address any proven treaty breaches but ultimately the question of compensation is one for political decision. Any further comment here is considered inappropriate. 97

Section 12

Summary Conclusion:

The intention of this report has been to give some background to the Chatham Island claims. Although of an exploratory nature, it is hoped that this report will assist both Tribunal and claimants in focusing more clearly on the particular areas of grievance.

12.1 Recommendations:

• That this report be released to appropriate parties;

• That the parties be invited to make written submissions within three months of the issue of this report;

• That at the expiration of that time, a conference of parties be called to'determine whether or not any further research is required;

• That that conference also determine and identify specific issues;

• That based on the conference results, the parties then determine how the Chatham Islands claims will be further dealt with.- B L 0

~ '0 ~ 1- 0(' o 1'- <'"

~

f-...

"f

TE MATARAE BLOCK

OTONGA BLOCK .g Awapatiki 2 ~ otonga 2 !) '" Q; 0 ~'I \). Q. Cl. ~

D Blocks awarded to Maori Blocks awarded to Moriari

Figure 2: Blocks awarded by the Native Land Court 1870 98

Bibliography

Davidson, J. The Prehistory of New Zealand, Auckland, 1984.

Dendy, A., The Chatham Islands - a study in biology: Lit. and Philo. oc., Manchester, Mem. v 46 no. 12, 1901-1902.

Department of Industries and Commerce, 'An Economic Survey of the Chatham Islands' Wellington, 1972.

Dictionary of New Zealand Biography, Wellington, 1990.

Engst, J.G. ms., Florance Collection, Canterbury Museum Library, Christchurch. [n.d.]

Fenton, F. D. Important Judgements Delivered in the Compensation Court and Native Land Court 1866-1879, Auckland, '1879

Ford, J. The Decisions and Awards of the Compensation Court in Taranaki 1866-74, Report for the Waitangi Tribunal, Wellington, 1991.

Head, L.F. 'Friend Ritchie', unpublished ms. [n.d.]

Kawharu, H. Maori Land Tenure, Auckland, 1977

King, M. Moriori, A People Rediscovered, Auckland, 1989.

A Land Apart:the Chatham Islands of New Zealand, (photographs by Robin Morrison), Auckland, 1990.

McLintock, A.H. (ed.·) An Encyclopedia of New Zealand v I, Wellington, 1966

Mair, Gilbert, Note on the Chatham Islands and their inhabitants: TPNZ v 3 1870

Ngai Tahu Sea Fisheries Report, Waitangi Tribunal, Wellington, 1992.

Richards, E.C. Diary of E. R. Chudleigh 1862-1921, Chatham Islands, Christchurch, 1950

Richards, R. 'An Historical Geography of Chatham Islands' unpublished MA theses, University of Canterbury, 1962.

'A Tentative Population Distribution Map of the Morioris of Chatham Island circa 1790,' JPS, v 81, 1972.

Whaling and Sealing at the Chatham Islands, Canberra, 1982. 99

Selwyn, G.A., Church in the colonies, No.20, New Zealand, Part.5, 1851.

Shand, A. The Moriori People of the Chatham Islands, Their History and Traditions, JPS, Wellington, 1911.

Skinner, H.D. The Morioris of the Chatham Island, Honolulu, 1923.

Skinner, H.D. and Baucke, W. The Morioris. Honolulu, 1928.

Simpson, F.A. Chatham Exiles, Wellington, 1950.

Sutton, D.G. 'A Culture History of the Chatham Islands', JPS, 89 (1), 1980.

Travers, W.T.L., 'Notes on the Chatham Islands' (extracted from letters from H.H. Travers), TPNZ v 1, 1871

WaIters, Muru. 'An examination of Literary Evidence for the existence of discrete groups of Moriori in the Chatham Islands in the 19th century' from Working Papers in Chatham Islands Archaeology, Anthropology Department, University of otago, 1977.

Weiss, B. 'More than Fifty Years on Chatham Island' (translated by K J Dennison) Working Papers in Chatham Islands Archaeology, Anthropology Department, University of Otago, ) 1975. · Wai -54 Wai-64 Wai-65 WAITANGI TRIBUNAL

CONCERNING the TREATY OF WAITANGI --lrCT 1975

CONCERNING Three Claims received by the Tribunal relating to the CHATHAM I-SLANDS and Registered as Wai- 54, Wai~64, and Wai-65.

DIRECTIONS OF JUDGE P.J. TRAPSKI NO 3. ~ Consequent upon the conference of parties on 6 July 1990 I hereby direct that; 1. Mr P T Harman BA LL B, Staff Research Officer with the Tribunal, be commissioned to prepare and present a preliminary hi~torical report on the historical and Treaty related issues raised by these three Claims'-

2 . In preparing this report Mr Harman is to be supervised and assisted by the Director of the Tribunal, Mr Bri tson Mikaere, using Dr Michael King as a consultant as and when Mr Mikaere considers it appropriate, and before the presentation of the report

3 . The report is to specifically cover the following items which the claimants have identified as matters of relevance to them and their claims ;

(i) the traditional ownership of land - as at 1840 f 1880, 1920, 1960 and 1990;

(ii) the ownership of outlying islands;

(iii) the relevance of the term Moriori to iwi, hapu and whanau before the 1835 migration from New Zealand;

(iv) an assessment of the term "Takata Mo ori ori" or "Moriori"j 2 ,• ( v) _the arrival and occupation of the Chatham Islands by Taranaki Maori between 1840-1990; (vi) the "Taranaki" land locations as they are today; (vii) the rulings of the Native Land Court which disenfranchised Moriori from their land. What weight if any, should the Native Land Court have attached to the Moriori customary rights vis a vis Maori customary rights in deciding the outcome of the various claims;

(viii) the relevance of confiscation of land in Taranaki to the outcome of claims before the Native Land Court.

(ix) the historical facts surrounding the claims of Taranaki Trust Board to land and fisheries in the Chatham :I;slands.

(x) Moriori custom concerning claim by. conquest;

(xi) the relevance of a tribal occupation of approximately 5 years prior to the signing of the Treaty in 1840. \ (xii) the relevance of the 1840 rule in the Chatham Islands

(xiii) the relevance of the 1842 annexure of Chatham Island to New Zealand

(xiv) the' date upon which New Zealand assurq.ed constitutional responsibility for the Chatham Islands and the historical circumstances surrounding that event. (xv) the status and identity of the island inhabitant groups at the date when New Zealand assumed constitutional responsibility of the Chatham Islands

(xvi) the application of the Treaty of Waitangi to the Chatham Islands; (xvii) an examination of customary fishing rights in the Chatham Islands as at 1840;

(xviii) the basis for the claims to fisheries ;

(xix) access to fishing resources;

(xx) the historical facts surrounding the claims of the respective parties to a return of Crown-owned 3 the respective parties to a return of Crown-owned lands in the Chatham Islands: (xxi) the historical facts surrounding the c.1aims of the respective parties to compensation for past injustices and breaches under the Treaty;

4. 'l'he report is to be available to the· Tribunal by 20 December 1990. However if Mr Mikaere and Mr Harman are satisfied that a longer period is required then, a progress e ort will be filed with all parties at that date and the T~al~~ extension.

Ju ge P.J. Trapski Member~ of the Waitangi Tribunal .. Kt .day of August 1990