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In the Matter of Waitangi Tribunal Claim 145 "The Crown Could Not

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In the Matter of Waitangi Tribunal Claim 145 ai I 1 In the matter of Waitangi Tribunal Claim 145 "The Wellington Tenths" "The Crown Could Not Grant What the Crown Did Not Possess" Land Commissioner William Spain Interim Report, WAI 145 Doc. A10(a)5:5 September 1843 Submitted by Duncan Moore 2 March 1992 1 Contents Introduction and Summary ...................................... 1 Lands Lost to Crown Around 1850 ..................... ...... 6 Arguments for the Existence of Reserves ...................... 7 A Perspective on the Creation of Reserves . .. 15 The Broad Terrain ........................ ................... 21 Abandoning the Land Claims Inquiry ........................ 27 The Track of Agreement ................................. ..... 32 A Single Meaningful Agreement ......................... .. 41 A Lasting Possession ......................................... 53 Acting Upon Principles .................................. 69 78 Changes Back Home .................................... 84 A Sea-Change ......................................... 88 The Constitution in Wellington ............................ 92 Preparing to Grant ................. .................... 103 The Port Nicholson Crown Grant ........................... 107 The Grant Debacle ..................................... 113 The Expropriation of Native Reserves for Public Purposes .............. 117 Military Seizures ....................................... 122 Getting Better Tenants ............... ................... 126 "One Slice at a Time" ................................... 130 Granting Reserves Away ................................. 135 Conflicting Engagements at Pipitea Pa ...................... .. 143 A New Section ........................................ 151 Conflict, Confusion and Consent 162 The Rivalries and the Quest .................................... 168 Straightening Accounts .................................. 176 Battle of the Barracks ................................ ... 190 Regina versus Fitzherbert .............................. ... 198 "Brought Into System and Simplified" ............................ .. 211 Day-to-Day Administration ............................... 218 Seeking An Assent ................. .................... 222 Trouble at Te Aro ................................ ...... 226 An Assent at Work ..................................... 231 Settling Accounts ................................. ...... 243 Conclusion 253 2 Introduction and Summary The Wellington Tenths Trust seeks the return of Maori Reserves in Wellington City seized by the Crown around 1850 for public purposes. (see inventory page 4) This submission will show that maori reserves in Wellington region were created and defined by various agreements: a. the New Zealand Company's 1839 deed (with 'tenths' covenant) and accompanying 1840 and 1842 surveys and allocations of sections; b. pledges to exclude occupied lands, uplifted into the 1844 releases of (and compensation for) maori interests remaining after the 1839 agreement; c. the 1847 exchanges of the occupied lands excluded from the 1844 releases for blocks depicted in the plans accompanying the 1848 Port Nicholson Crown Grant. The Reserves featured in these agreements as the central element (the purchase consideration) in the negotiations for Te Atiawaffaranaki's extinguishment of their customary title to Wellington region as a whole. This submission will show that as long as Te Atiawaffaranaki and/or the New Zealand Company were unsatisfied with the Reserves provisions, the Crown could not effect the extinguishment and transfer of title to Wellington region. With extinguishment pending, title to and adminstration of the reserves was necessarily and essentially ad hoc. Seen as purchase consideration, dangling alongside the protracted negotiations for extinguishment of customary title, the reserves must have been initially objects of the Crown's Treaty guarantee of protection of customary possession. However as that very 3 protection diminished through the 1840's, so the consideration for extinguishment dwindled. That is, the lands to be reserved became variously narrower in definition, smaller in area, reduced in quality, and less secure in their possession. This removal of protection and deterioration of reserves was epitomized in the 1840's by the early occupation for military purposes of lands that were already both traditional cultivations and Company-selected reserves. Once so begun, with the Treaty's protection of their possession of the region as a whole dwindling, and with pressures growing to move out of the developing central town (and region altogether), Te Atiawaffaranaki had little option but to accept the Crown's permanent alienation of over 77 acres of their town cultivations and reserves between 1851 and 1853. Except for the few acres contained within the fences of Pipitea, Kumutoto and Te Aro pa, the Crown acquired virtually all of the reserved lands that were close-in to Wellington city - in most cases without paying any compensation until the late 1870's. Petitions for the lands' return, beginning ill 1860, eventually brought Te Atiawaffaranaki to the Court of Appeal to try to reverse one of these takings. They sought to cancel the 1851 Crown Grant that had endowed Wellington Hospital with 12a Or 11.5p of Maori Reserve. The Court of Appeal decided, however, that as there was no specific statutory authority to create Native Reserves out of Crown demesne prior to the time of the grant, the lands could not legally have been Reserve, and must have been simply Crown demesne. Further, they found no solemn act of the Crown binding its estate in these demesne lands in trust for the benefit of Te Atiawaffaranaki. 4 As a result, in 1874 and 1877 Te Atiawa/Taranaki accepted minimal compensation nowhere near the value of the lands, specifically calculated with the lost court case in mind. In 1876 just 1 1/2 acres out of the Hospital endowment sold for more than Te Atiawa/Taranaki's entire compensation. As another result, Te Atiawa/Taranaki lost considerable influence in the Crown's Commissioners' administration and control of the Reserves. Accountable administration became a fiction, epitomized this time in the 1873 Native Reserves Act. The entire reserve estate was thrown into confusion for at least twenty years. Te Atiawa/Taranaki's loss of general influence m local affairs, along with their landholding dominance of the central city area, IS immense. Today, Te Atiawa/Taranaki's lost reserve lands still provide hundreds of thousands of dollars in rents annually to the Area Health Board and the Crown's Consolidated Fund - thousands the Crown is saved from raising in taxes. 5 Lands Lost to Crown Around 1850 (see Heaphy Block Plan of City 1870) Hospital Endowment 5/11/51 Sections Area 594 & pt 584 1 2 26 Pt sections 539 & 580 1 2 25.5 Pt 514 1 0 3 636 1 0 32 Part 545 0 1 20 574 1 0 24 591 & Part 592,601, 602, 605 4 1 6 Pt Sections 606,607,608 o 2 35 12a Or 11.5p Wellington College 7LlOL53 604 and Pts 592, 601, 602, 603, 605, 606 607, and 608 5 1 32 270, 271, 272, 278, 279 5 0 0 lOa 1r 32p Buckle Street Barracks (Occupied ~ 1846) 89 and 90 2 0 0 2a Or Op Wesleyan SchoollBotanical Gardens 27L10L52 Town Belt 52a 3r 37p Old St. Paul's Cathedral 20L? L53 Pt 542 Oa Or 17p Anglican School 13L8L53 Pt 514 Oa Or 38p Boundary Shift of 542 & 543 (Awarded ~ 24L4L52) Oa 2r Op (est) TOTAL 77a 3r 15.5p 6 7 Arguments for the Existence of Reserves In their original declaration in the case of Regina v Fitzherbert, Te Atiawaffaranaki observed that the 1839 agreement with the New Zealand Association contained a covenant by the Association to reserve a tenth of the lands conveyed and to hold this tenth in trust for the future benefit of the maori vendors. They averred that the 1839 agreement had been subsequently duly allowed by the Crown. They argued that under the New Zealand Company Colonization Act (10 & 11 Vict. cap 112), the Crown had acquired the Company's lands upon failure of the Company in 1850 "subject, nevertheless, among other things, to any contracts which should then be subsisting in regard to any of the said lands."l The lands must have therefore vested in the Crown subject to the Company's covenant to create and administer reserves for the benefit of Te Atiawaffaranaki. The judges decided that when the lands vested in the Crown they could not have been encumbered with this particular covenant to reserve· a tenth of the lands conveyed, because "the purchase of these lands was never at any time expressly allowed according to the terms of the deed of September 1839."2 lWai 145 Doc A7(b) pp 15-16 and 25-26. 2A7(b) P 27. The judges mention the Attorney-General's argument that an action of scire facias could not be used to enforce a "mere equity." Without having consulted counsel on this point yet, we take this to mean that Te Atiawaffaranaki had to show creation of an express trust, and could not rely upon the Court to declare a constructive trust or one arising by operation of law. 8 The judges volunteered another reason against the more general possibility that the lost lands could have been encumbered with any of the Company's covenants to reserve: "it is expressly found that in [the] Crown grants no title was to be given by the Crown to the Company in respect of the very lands" in dispute, ie, the Native Reserves themselves (as opposed to settlers' sections, public reserves, the Company's own estate, etc.).3 Te Atiawa!Taranaki submitted two amendments to their original declaration. The amendments posed problems of evidence: Te Atiawa!Taranaki had not presented
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