Wai 64, Doc HA16 Report to the Waitangi Tribunal on Matters of Relevance to the Chatham Islands Claims Wai 64, Including the Intervention of the Government in the Affairs of the Maori Land Court ) by Grant Phillipson '\ April 1994 . ,. WAITANGI TRIBUNAL CONCERNING the Treaty of Waitangi Act 1975 AND Wai 64 - The Chatham Islands claim . DIRECTION COMMISSIONING RESEARCH 1. Pursuant to clause 5A(1) of the second schedule of the Treaty of Waitangi Act 1975, Grant Phillipson of Wellington is commissioned to prepare a report on tQe following matters in respect of the Chatham Island claim. The report should cover the following matters: • An examination of matters which came to the attention of the Government and which highlighted possible injustices to Moriori e.g. complaints from Moriori to the Governor, recorded information from missionaries and government officials. The extent, if any, to which gover~ent intervened • on Native Land Court decisions, and the nature of those interventions. e.g. ( select committees special legislation (setting up of Royal Commissions etc.) Chief Judge's orders ,~.g. Maori Affairs Act Orders in Council '\ 2. This commission commenced 1 March 1994 and ends on 30 April 1994 at which time a draft of the work completed (in word perfect format) will be filed. 3. The report may be received as evidence and the comrnissionee may be cross examined on it. 4. The Registrar is to send copies of this direction to Claimants & counsel Interested third parties Crown Law Office Grant Phillipson Treaty of Waitangi Policy Unit National Maori Congress NZ 1-1aori Council Dated at wellington this day of April 1994 Chief Judge ETJ Durie Chairperson WAITANGI TRIBUNAL .. \ ACKNOWLEDGEMENTS I would like to acknowledge the assistance of Dean Cowie, a commissioned researcher for the Waitangi Tribunal, who assisted me with the research for Part II of this report. I would also like to thank the Wai 64 claimants, who provided me with copies of some of the primary documents used in the preparation of this report. ( " \ 1 INTRODUCTION This report was commissioned on r March 1994 and the commission is contained in a direction dated 14 April 1994. The aim of the report is to examine two topics of significance to Wai 64: the extent to which the government was made aware of a situation of possible injustice on the Chatham Islands which required its intervention; and the intervention of the government in the general practice and individual decisions of the Native Land Court. I was asked to prepare a series of examples of such intervention from different periods of the history of the Court, rather than a connected narrative and analysis of this topic. THE AUTHOR My name is Grant Phillipson and I completed a Ph. D. in New Zealand history at the University of Otago in February 1992. My thesis included aspects of race relations history I which I expanded as a Research Fellow at the Macmillan Brown Centre for Pacific Studies in 1992. In 1993 I worked as an historical researcher for the Crown Congress Joint Working Party I and prepared reports on the traditional history of the Marlborough region and on the operations of the Native Land Court in Hawkes Bay. I became a commissioned researq{ler for the Waftangi Tribunal '\ in July 1993 and have been working on the Rangahaua Whanui project since that date. In January 1994 I joined the permanent staff of the Waitangi Tribunal Division. 2 PART I WAS THE GOVERNMENT AWARE OF A SITUATION OF POSSIBLE INJUSTICE ON THE CHATHAM ISLANDS WHICH REQUIRED ITS INTERVENTION? I The acquisition of sovereignty in the various territories of New Zealand was a long and tortuous process. On 6 February 1840 the Queen's representative signed the Treaty of Waitangi with the chiefs of the Confederation of the 'United Tribes of New Zealand', a grand sounding name for a group of Ngapuhi chiefs who had (according to the British Resident and a few missionaries) formed the United Tribes in response to French territorial ambitions. The Governor's appointees took the Treaty to other North Island communities for signatures, while a government officer made his way to the South Island to investigate whether its supposedly backward tribes were capable of a reasoned assent to the Treaty. Even as Major Bunbury took the Treaty around the South Island, however I Governor Hobson's hand was forced by French colonists and he made a Proclamation of sovereignty over that island before the results of Bunbury's mission were known. 1 ( The Chatham Islands were not included in either of the proclamations which in legal terms established the Queen's sovereignty over New Zealand, and n9,r was the Treci:ty of Waitangi '\ taken there for Maori or Moriori to sign. Nevertheless I the Colonial Office took the view that the exclusion of the Chathams was an oversight, based on incorrect degrees of latitude and longi tude in the original documents prepared in London. The Secretary of State amended the Letters Patent of the Colony to include the Chathams Islands in 1842, after the situation had been brought to his attention by the activities of the New Zealand Company.2 When the New Zealand Attorney General raised the question of whether Maori communities which had not signed 1 C. Orange, The Treaty of Waitangi, Wellington, 1987, pp. 19-23, 77-92. 2 P. Burns, Fatal Success: a history of the New Zealand f' '. Company, Wellington, 1989, pp. 243-245. ~ 3 the Treaty were subject to the sovereignty of the Crown in 1843, the British law officers argued that the legal sovereignty of the Crown rested on these Letters Patent and-Proclamations. 3 After this the New Zealand Government acted as though all Maori had ceded their sovereignty and were therefore parties to ( and protected by) the Treaty of Waitangi. The exercise of British sovereignty over the Chathams, and the protection of its 'Aboriginal' inhabitants by the Treaty, may be dated from the Letters Patent of 4 April 1842. The inclusion of the Chatham Islands within the territory of New Zealand was a deliberate act undertaken in London by officials of the British Government. When the Colonial Office discovered that the New Zealand Company had bought the islands after the introduction of pre-emption, and were now in the process of selling them to a German company for German settlement, they intervened and obtained a legal opinion that the Company's purchase was invalid. They followed this by amending the colony'S Letters Patent to include the Chatham Islands. 4 The New Zealand Government, however, proved less eager than the Colonial Office to obtain authority over the Chathams. Governor Hobson's tiny administration was already overstretched in 1842, and had no wish to add the distant Chathams to its overwhelming commitments. When the Company took advantage of the islands' exclusion from the colony to purchase them in 1840 I ~ ,the New Zeal~nd Government '\ accepted this willingly and gave the Company a charter to administer the Chathams. This charter was cancelled by the amendment of the Letters Patent in April 1842, and the government of the islands became the responsibility of the Governor of New Zealand and the Colonial Office in London. 5 The government took no action to assume this responsibility from 1842 to 1855. This was in line with its Maori policy during 3 Orange, pp. 110-112. 4 Burns, pp. 243-245; B. Mikaere & J. Ford, 'A preliminary Report to the Waitangi Tribunal on the claims relating to the Chatham Islands', October 1993, Wai 64 A-8, pp. 38-42. 5 M. King, Moriori: a People Rediscovered, Auckland, 1989, pp. 73-75. 4 · '. ~' . ;.; the years of Crown Colony Government, when predominantly Maori districts with a handful of settlers, engaged in peaceful leasing and trading, were left to their own devices. The Chatham Islands were simply the most distant of a number of regions in which the Crown made no effort to exercise its sovereignty. As the boundaries of colonisation expanded, however, Resident Magistrates began to make circuit tours through predominantly Maori districts, offering mediation and court hearings to those who could be persuaded to accept a government officer as a mediator or even (usually in Maori-Pakeha cases) an authoritative judge. 6 The expansion of the Resident Magistrate system under Governor Grey finally reached the Chathams in 1855, thirteen years after the assumption of sovereignty, when Archibald Shand accepted appointment as Resident Magistrate for the islands. British law had so far held no sway over the Maori population, which amounted to about 300 Maori and 205 Moriori in 1855, or over the 64 'settlers' of various nationalities who were mainly former sealers and whalers. 7 Although there had been no government representative on the islands over the previous thirteen years, the Governor and his ( officials could not have been entirely ignorant of the situation on the Chathams and the plight of the Moriori people. The New Zealand Company could have provided the Governor with detailed information after its expedition -tn 1840, and ·'the Company's naturalist, E. Dieffenbach, published'his account of the Chathams in the early years of the decade. 8 The Governor could also have consulted the Rev. J. Aldred, a Wesleyan missionary who visited the Chathams in the year in which the colony became responsible for the administration of the islands. 9 The most likely source of information in the 1840s, however, 6 A. Ward, A Show of Justice: racial' amalgamation' in nineteenth-century New Zealand, Auckland, 1973, pp. 72-91. 7 King, p. 94. 8 ibid., pp. 67, 74-75. 9 S. Natusch, Hell and High water: a German occupation of the Chatham Islands, 1843-1910, pp.