TE MAUNGA RAILWAYS LAND REPORT WAITANGI TRIBUNAL REPORT 1994 TE MAUNGA RAILWAYS LAND REPORT WAI 315 WAITANGI TRIBUNAL REPORT 1994 LEGISLATION D i r e c T The cover design by Cliff Whiting invokes the signing of the Treaty of Waitangi and the consequent interwoven development of Maori and Pakeha history in New Zealand as it continuously unfolds in a pattern not yet completely known A Waitangi Tribunal report Isb n 1-86956-148-1 © Waitangi Tribunal 1994, 1996, 2000 First published 1994 by Brooker’s, Wellington, New Zealand Second edition published 1996 by GP Publications, Wellington, New Zealand Reprinted 2000 by Legislation Direct, Wellington, New Zealand Set in Times Roman CONTENTS 1 The C la im ................................................................................................ 1 2 Historical Context: The Papamoa Block ................................................ 6 3 Taking the Land .......................................................................................14 4 Disposal 1985-1991 .................................................................................. 24 5 Land Transactions 1991-1993 ................................................................. 38 6 Public Works Legislation .........................................................................50 7 Public Works and the Treaty of Waitangi ..............................................67 8 Conclusions and Recommendations ........................................................ 73 Appendices A The C la im ...................................................................................................86 B Record of Proceedings................................................................................91 C Record of Documents ................................................................................93 Bibliography...............................................................................................95 i Te Maunga Railways Land Wai 315 The Honourable Minister of Maori Affairs Parliament Buildings WELLINGTON Te Minita Maori Tena koe e te rangatira This report concerns the use of the Public Works Act 1928 and more particularly the offer-back procedures of sections 40-42 Public Works Act 1981 and sections 23 and 26 New Zealand Railways Corporation Restructuring Act 1990. The claim, lodged by Michelle Henare and others, was granted urgency, because the land involved at Te Maunga, Papamoa No 2 Section 10B2C2 Block, in the Tauranga district, was the subject of a revesting order of the Maori Land Court, with a condition of payment of $70,000 plus GST set by the Minister of Railways before it could be finally revested in the former 22 owners or their successors. The claimants sought relief from this condition. The land had been taken in 1955 for railways purposes under the Public Works Act 1928, and used for housing Railways employees until about 1985, when it was considered to be surplus to Railways Corporation requirements. The historical and geographical context of urban growth and port development at Mount Maunganui in the 1950s, and earlier transactions on Papamoa Block are outlined in chapters 1 and 2. In chapter 3 we outline the circumstances of the taking of the Te Maunga land in 1955. In chapters 4 and 5 we provide a narrative of a confused sequence of events over the period 1985 to 1993 when the Maori Land Court revesting order was made. In chapter 6 we consider the issues that are central to the operation of public works legislation: the powers of the Crown (kawanatanga) in compulsory acquisition of Maori land for public purposes. In chapter 7 we consider public works and the principles of the Treaty of Waitangi: how kawanatanga may conflict with the Crown guarantee to Maori of rangatiratanga, and the fiduciary obligation of the Crown actively to protect Maori ownership of land unless Maori owners are willing to sell at an agreed price. When Maori land taken by the Crown for public works is no longer required for any public purpose, the fiduciary obligation of the Crown under the Treaty of Waitangi includes a discretion to make the offer-back conditions sufficiently reasonable that former Maori owners are not prevented from resuming their rangatiratanga of lands compulsorily taken from them. The Railways land at Te Maunga is a small block but the issues raised in this claim involve important principles of the Treaty of Waitangi: the Crown right to make laws and take land in the public interest (kawanatanga), against the guarantees of protection of Maori ownership of lands (rangatiratanga). In chapter 8 we conclude that this claim is well-founded and make a specific recommendation for relief for the claimants. We also make some more general iii Wai 315 Waitangi Tribunal Reports recommendations for changes in public works legislation and offer-back procedures that would reflect more positively the principle of a fiduciary obligation of the Crown toward Maori in the Treaty of Waitangi. iv Chapter 1 The Claim The land which we have described as "Te Maunga Railways Land" for this report is an area of 1 acre 2 roods (6070 square metres) taken by the Crown in 1955 for railway purposes under the Public Works Act 1928 and used for housing. It was described in the proclamation as "part Papamoa No.2, Section 10B Block"1 and in Maori Land Court records as Papamoa No 2 Section 10B2C2 Block. In 1955 it was an unoccupied piece of scrub-covered, sandy, almost level land beside the East Coast Main Trunk Railway, east of Mount Maunganui near the coast of the Bay of Plenty (figure 1). It was part of a much larger area of land in the Te Maunga — Papamoa district which was still owned by Nga Potiki, a hapu of Ngai Te Rangi, a tribe of Mataatua descent. Nga Potiki occupied the eastern shores of Tauranga Harbour from west of Te Maunga around Rangataua Bay to the Waitao Stream and out to sea between Omanu and Papamoa. Their principal marae is named from their ancestor Tamapahore, and located on the north facing slope of Mangatawa. This hill, which in profile appears like a whale, was once a large pa with extensive terrace formations, said to have been where Tamatea of the Takitimu waka established himself. But only the remnants of the fortifications remain. Much of it has been quarried away, because it was taken under the Public Works Act in 19462 and extended by another taking in 1964 for road construction in the district.3 In his oral statement before the tribunal at the 13 December 1993 hearing, John Farrell spoke of the relationship of Nga Potiki with their land and how there had been "a lot of problems with the land". He spoke of the "lethal weapon" of the Public Works Act "used on us", and reviewed other public works "within a two- mile radius" of the Te Maunga railway housing land — oxidation ponds, rubbish tip, easement for gas pipe line, power board depot, Mangatawa quarry, "Rifle Range" and railway land. "Enough is enough", he concluded. In her oral submissions at the 13 December 1993 hearing Michelle Henare spoke of the concern of her late father, Riki Taikato, that "the land would slip away". She said they found it difficult to get information about the status of the Papamoa No 2 Section 10B2C2 Block since it became known about 1985 that Railways Corporation intended to dispose of its housing stock. They were now faced in 1993 with what seemed to them a hopeless task of raising $70,000 plus GST to buy it back. The land had been unoccupied for some time, and the houses removed, when, to their dismay, some new construction work began in 1991, and they found Railways had agreed to sell it to a third party. Michelle Henare stated: I only want to express our concern about these things that have happened to us over a long time. My dad would like to have seen us give it our best shot. We felt it unjust that land be taken, pass from us, by Railways. We felt it has always been ours. We should not have to pay the $70,000. It is not the monetary value. It is the cultural tie that we do not want to lose .... My personal view is that the 1 Wai 315 Waitangi Tribunal Reports RAILWAY AND PORT DEVELOPMENT 1950 - 1985 Mangatawa Land Development Scheme Maori Land taken for Public Works Railway Borough Boundary Marae Figure 1 2 Te Maunga Railways Land Wai 315 land will always be ours. They may use it as and when. It does not cease to be ours because the Crown has used it.4 The tribunal acknowledges the claimants’ view that the historical context of past takings of Nga Potiki lands by the Crown makes the matter of return of the Papamoa No 2 Section 10B2C2 Block one of much greater significance to them than its small area of 1 acre 2 roods (6070 square metres) might warrant, if measured in other terms. The taking under the Public Works Act 1928 of "Additional Land at Te Maunga for the Purposes of the East Coast Main Trunk Railway",5 which is the subject of this claim, is only one of a large number of Crown transactions in the 1950s, which occurred during the development of the Port of Tauranga at Mount Maunganui, the establishment of a pulp and paper mill at Kawerau to process the exotic timber of Kaingaroa forest, and the expansion of railway facilities to link the processing plant with an overseas export outlet (figure 1). In the late 1940s the New Zealand Forest Service investigated proposals for construction of a timber, pulp and paper mill, initially at Murupara, although a site at Kawerau was subsequently chosen. At the same time the Ministry of Works examined the needs for building a town at Murupara and construction of branch railways to connect with the East Coast Main Trunk Line at Edgecumbe from Murupara, and from Te Maunga to the proposed port at Mount Maunganui. After an inquiry into the alternative port sites at Whakatane and Tauranga, a government decision was made in 1950 to establish port facilities at Mount Maunganui. It was also envisaged that the expected expansion of agriculture in the Bay of Plenty would require facilities for landing bulk goods, such as fertilisers, and cool stores for meat and dairy products.