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In the matter of

Waitangi Tribunal Claim 145

"The 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 were created and defined by various agreements:

a. the 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 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 facts specifically in support of the amendments, as opposed to their original "Company covenant" argument. The judges scolded that "if those who seek to repeal the grant of

1851 relied upon the fact that the Crown had turned these lands into Native Reserves, they should have alleged that fact as a primary fact, and should have shown in their declaration by what solemn act of the Crown such reserves had been created."4

Be that as it may, and despite declaring the amendments technically inadmissable, the judges weighed the amendments as best they could "by applying the findings ... to the record as it [stood]."

The first amendment to the declaration presented an argument closely related to that of the original declaration: the Crown reserved the lost lands by its own actions - as

3Doc A7(b) P 27.

4A7(b) P 26 (emphasis mine). 9 opposed to merely inheriting the Company's covenant. This amendment fared no better than the original argument, though.s

For this amendment, the judges assessed the "degree of significance" they should

"attribute to the acts of the officers of the Crown" affecting the lost lands prior to 1851.

To do so, they reviewed up to 1851 the legal context in which these officers of the

Crown acted - especially concerning granting and reserving lands. They found that

"the creation of Native reserves was not one of the objects specially provided for

in the statutes, charters, instructions, and ordinances by or under which the

management and disposal of the demesne lands of the Crown was regulated."

Hence they concluded that at least prior to the Crown's 1851 grant to Wellington

Hospital, it would be unlikely for acts of officers of the Crown to signify an intention to create Native reserves. They also observed that the Crown had not "by any solemn act, whether by grant or even proclamation, declared the lands themselves to be Native

Reserves."6

Next, the Judges assessed in particular the "only solemn and valid act in which any officer of the Crown [versus the Company] is, upon these findings, shown to be dealing with the Native owners themselves in respect of lands." They noted that "much reliance was placed by the [Te Atiawarraranaki] prosecutors on these documents."

SThe amendment is introduced at A7(b) p 26. On the decision's page 167, the judges stressed precisely this distinction between the arguments of the initial declaration and the amendment.

6A7(b) P 28. 10 We will deal more closely with it later, but briefly, the "solemn and valid act" was an

1840 agreement between Willoughby Shortland and Te Aro maori to negotiate and accept compensation for their lands, and the 1844 "receipt or release" signed when compensation was so accepted - the fruit of the negotiation conducted under Land

Commissioner Spain.

The judges decided that "substantially" the arrangement - the arbitration and the agreement for compensation - were between the maori and the Company. The Crown only mediated. They applied their test for weighing the significance of acts of Crown officers:

"although such conduct [as mediating an arrangement between the maori and the

Company] may indicate that the officers of the Crown believed the lands to have

been legally set apart for Native purposes, and [to have] acted in that belief,'17

and although

"it is shown that some of the Natives still counted upon these lands as reserves

in estimating the additional compensation which they should accept,'18

"neither this, nor any other acts found upon the record are shown to have been

acts done in pursuance of any statutory power to create Native reserves, or even

with the intention of creating them."

7A7(b) P 29.

8A7(b) P 29. 11 The judges were therefore "not at liberty to declare that the acts of the officers of the

Crown and Colonial Governments, so far as they are made to appear on these findings, bind the estate of the Crown in those lands ... with a trust as Native reserves."9

Te Atiawa!Taranaki's second amendment argued that the reserved "lands have never been ceded to the Crown, and that the Native title thereto has never been

extinguished.'1lO

The judges observed that one could not consistently argue both that the Crown held the

reserve lands subject to a covenant and that the reserves were held under native title.

But they agreed to consider both possibilities nonethelessY

We quote virtually the judges' entire comments, as this amendment was "shortly

disposed of." They considered first that

"no formal act of cession to the Crown was necessary. From and after the

purchase of these lands by the Company from the Natives, they became, by virtue

of the alienation itself, part of the demesne lands of the Crown; insomuch that

even if the purchase by the Company had been investigated by Commissioners

under the Land Claims Ordinance No. 1, and the same had been approved, and

the Commissioners had recommended grants or a grant to the Company

accordingly, it would have remained at the discretion of the Crown to make or

refuse such grant."

9A7(b) P 29.

lOA7(b) P 29.

llA7(b) P 26. 12 They returned to their earlier consideration of the Crown's agents' intentions regarding native reserves:

"This title [to these lands] the Crown has always asserted; and.. .it has done no

solemn act to encumber, much less to alienate, its estate; but in 1847 the Crown

asserted its title by building a hospital on one of the sections, - in 1851 made the

grant now impeached, - and has continued to maintain its title till the present

time."

The final judgement was that:

"Upon the construction of the findings upon the issues in this case, we are of

opinion that the facts as found do not establish any right in the prosecutors

which can be recognised and enforced by scire facias."

The judges went on to make a few noteworthy qualifications of their judgement.

First, as we mentioned above, they acknowledged that the original vendors might have

"demanded and obtained a higher price for their lands had they not relied upon the

covenant" to reserve a tenth.

Second, they recognised that "correspondence and negotiations between the Company

and the Secretaries of State, if known and explained to the Native owners, may have led

them to rely even upon the officers of the Crown as the advocates and protectors of

their interests." 13 Third, the judges regarded the Port Nicholson Crown grant of 27 January, 1848 as

"issued four days too late to give it statutory validity," but acknowledged maori may have reasonably mistaken it as a guarantee of their supposed rights, nonetheless. 14 A Perspective on the Creation of Reserves

We will give a narrative account of the case of Regina versus Fitzherbert toward the end of this submission. We have opened with a summary of the decision, though, to introduce three crucial aspects to the study of maori reserve lands in Wellington in the

1840's.

First, the Crown never maintained that the reserves were to be included in the

Company's estate. From as early as November 1840, by Lord Russell's arrangement with the Company, Crown officials clearly intended and stated that ownership and administration of lands reserved for maori were not to pass to the Company.

Second, although Crown officials - from Governors to Rent-collectors - often acted as if they were empowered to administer the Company-selected 'Native Reserve' lands for the benefit of maori, the colony of New Zealand had been constituted such that there was in fact no real legal authority for them to do so. The judges in Regina versus

Fitzherbert apparently regarded this lack of specific authority as so complete, they demurred from even declaring an implied trust in the lands. As late as 1895, Solicitor-

General Reid went so far as to state that a legal trust in Wellington's Company-selected

'Native Reserves' still remained to be properly establishedY

One of the main historical threads that this report will follow is the chain of events bearing witness to the nebulousness of the early 'system' of maori reserves in

12memo Solicitor General Reid 3/1/1896 memo in Wai 145 Doc A39 pp 21-23. This was one of the primary purposes of the Native Reserves Amendment Act 1896. 15 Wellington. It turns out that title to and authority for administering 'Native Reserves' was almost continuously contested both within the Government and between Crown and tangata whenua for most of the last century, with ground gained and lost on all sides.

The third aspect to studying early reserves requires weighing the judges' statement that the Company-selected lands became Crown demesne "by virtue of alienation itself' ... "unencumbered by any solemn or binding act of the Crown's." They apparently drew this conclusion in part from the first two points: that the Company-selected reserves were neither included in the Company's estate nor specifically reserved for maori.

Without presuming to question Court of Appeal judges' rulings from a technical legal perspective, on historical grounds we will show that prior to the endowment grants, Te

Atiawarraranaki rangatira consistently claimed - and Crown officials often shared - many owners' rights and interests in the lands the Company had selected as reserves.

We will find that from the first, the trust-like 'Native Reserves' notion (originating with the Company and Crown) existed in tandem with an 'Occupations Reserves' notion

(originating mostly with maori). The two notions overlapped and mixed in origin, in nature, in administration, and in the lands included in each. Lands and interests which both Crown and maori called "Reserved," were suspended in a limbo pending completion of authentic agreement between purchaser and vendor - the Crown loosely claiming the lands as 'excluded from purchase,' and Te Atiawaffaranaki loosely claiming them as still 'excluded from sale.' 16 What resulted was a broad incommensurability between maori and pakeha perspectives on the reserves in Wellington - with a residue of misunderstanding and resentment to this day.

There was, however, a core understanding of the reserves' character before 1848 - clearly shared by Company, Crown and maori alike: that they were the main

'consideration' in the complex agreement over the extinguishment of Te

Atiawaffaranaki's aboriginal title to the Wellington region. There was discussion over who would administer or control reserved lands - the New Zealand Company, the

Crown, or maori. The Company and Crown took steps toward establishing (and using reserves to endow) a legal trust to assimilate natives. But up to January 1848, such questions of use, benefit, administration, and title to lands to be reserved from sale/purchase were necessarily secondary to, and subsumed under, the problem of completing the regional sale/purchase.

In this profoundly unsettled context of regional extinguishment/purchase, the judges'

1872 conclusion of Crown ownership of the reserves "by virtue of sovereignty itself' appears an ahistorical presumption. As the judges themselves noted (above), only after a purchase had been investigated and found good were the Crown's prerogatives of granting, protecting or retaining lands released from their Treaty (and Common Law) duty of respecting aboriginal title.

In sum, until the Port Nicholson grant issued in January 1848, the legal, political and ethical context for Te Atiawaffaranaki's possession of the lands known as "Native

Reserves" was the alternating ascendency first of advocates of aboriginal title, and then 17 of supporters of the Crown's paramount title - with the Treaty at the centre of this see- saw. At points, this context spilled out into maori custom versus colonial law generally.

The spill-over was natural enough, given the slipperiness of the distinction between sovereignty and title in colonial law: the Crown acquired paramount title to all of New

Zealand on 21 May, 1840, upon its formal proclamation of sovereigntyY But at the time, unless sovereignty had been acquired by conquest, Crown custom was to apply

English law - and especially property law - at least subject to the principle of tempering it to respect 'local circumstance.'l4 As Lord Stanley instructed Governor FitzRoy,

"Native laws and native customs, when not abhorrent from the universal and

permanent laws of God, are respected by English legislatures and by English

courts."l5

By this principle, the Crown's paramount title was in effect "encumbered" by native title.l6 The Crown's law - including its role within that law as the paramount source of title to property - was to be exercised sparingly, virtually latent until unburdened of

13Hinde s. 1.017 citing R. v Symonds, Doc A42 p 2.

l4Roberts-Wray, p 544 and n.60, in Wai 145 Doc A42 P 8. In proposing his Native Courts system 31 July 1843, George Clarke sen. put it rather strongly, "The provision of the ... guarantees all native customs." See Clarke report in A31 P 391.

l5StanleyIFitzRoy 10/2/44, in Doc A31 top of p 267 and bottom of p. 269.

l6"Encumbrance" see Brookfield, "The New Zealand Consitution," Waitangi: Maori and Pakeha Perspectives, p 11, in Wai 145 Doc A42 plO. Brookfield's idea, as presented in "The Constitution in 1985: the Search for Legitimacy," lecture 19/9/85 is cited approvingly by Hinde, Land Law, s. 1.017 p 13 n. 16, see Wai 145 Doc A42 P 2. 18 pre-existing native law and title "either by purchase by the Crown or by legislative action. ,,17

We offer an image for this context of regional purchase within which lands for Te

Atiawaffaranaki were set aside, and "Native Reserves" were eventually created: we treat the process of extinguishment/purchase as a single "track of agreement" over the terms and conditions of that extinguishment/purchase. The image is built upon the common- sense assumption that the core of validity or equity to the bargain and sale within which the reserves were created is the core of mutual agreement. As such, the track marks the circumstances whereby only in return for certain lands being "reserved" and "set

apart" from purchase would Te Atiawaffaranaki unburden the Crown's title.

The track follows the various points of interaction between Company, Crown and Te

Atiawaffaranaki effecting the extinguishment of Te Atiawaffaranaki's customary title

to the region and the creation of the Crown and Company's titles.

The track passes through the broader political-legal "terrain" of the period, which

featured this problem of balancing aboriginal title with the Crown's paramount title,

maori custom with colonial law. As the track took shape, it sometimes favoured or

veered toward "country" where customary possession flourished. At other times, the

track passed through terrain where the Crown's paramount title had taken a firmer

hold.

17McHugh, "Constitutional Theory and Maori Claims," Waitangi: Maori and Pakeha Perspectives, p. 40 contains a pithy summary of the tension. Note the article in its entirety illuminates the tension and brings it forward to today. See Wai 145 Doc A42 P 11. A good lay-person's summary of the development of the doctrines internationally can be found in Chapters 5 & 6 of Vine Deloria, Jr., Behind the Trail of Broken Treaties. New York:Delta, 1974. 19 The agreement between Te Atiawaffaranaki and the New Zealand Company over the transfer of title to the Wellington region (by which the track is defined) was signified most clearly in three sets of documents: "the 1839 Principal Agreement," the "1844

Releases," and the "1847 Exchanges." There were other, ancillary agreements between

Company, Crown and Te Atiawaffaranaki, but these three could probably stand alone as constituting agreement over the transfer of title to the region. The track more or less ends when the agreement for bargain and sale was signified as complete to both parties' satisfaction - in January 1848, with the issue of a Crown grant of the region.

The political-legal terrain, through which this track was forged, and in which the balance was struck between Te Atiawaffaranaki aboriginal and Crown paramount title, featured locally

- rapid and systematic settlement by a large privately-organised body of settlers;

- the Treaty of Waitangi, signed at Port Nicholson in April 1840;

- two differing sets of Acts, Charters, Letters Patent and Instructions - i.e., two

Constitutions in 1840 and 1846;

- overlapping and sometimes conflicting undertakings to both Te Atiawaffaranaki and the New Zealand Company by three Governors and one Lieutenant-Governor;

- special arrangements in 1840, 1843, 1845 and 1846-7 between the British Secretaries of State for the Colonies and the New Zealand Company;

- two special Land Commissions;

- dynamic relations between hapu living in the region;

- mid-decade, near financial collapse of both the New Zealand Company and the

Colony;

- the 1843 clash at Wairau, a general panic and a war. 20 If we accept that the Treaty of Waitangi respectively acknowledged and guaranteed that title was to pass from maori by valid agreement, then following this "track of agreement" over the rugged terrain of native-versus-Crown title ought to provide us a Treaty-centred perspective of the creation of the Native Reserves in the midst of this complexity. And alternatively, criss-crossing the track of agreement, we may find actions on the part of the Crown which prejudiced the Reserves' creation. This is the path of Treaty breaches. 21 The Broad Terrain

On the one hand, the Crown authored and entered into the Treaty of Waitangi with Te

AtiawafTaranaki at Port Nicholson. It enveloped this Treaty with Instructions to its

Lieutenant-Governor, assuring that Te AtiawafTaranaki's "title to the soil and to the sovereignty of New Zealand [was] indisputable, and has been recognised by the British

Government." Initially, the Crown intended that "all dealings with [maori] for their lands must be conducted on the same principles of sincerity, justice, and good faith, as must govern [the Governor's] transactions with them for the recognition of Her

Majesty's sovereignty in the islands."18

To ensure that pre-Treaty dealings for land would be sanctioned only on these same principles, the Land Claims Ordinance 1841 provided that all such dealings would be investigated and reported upon by qualified Commissioners "guided by the real justice and good conscience of the case, without regard to legal forms and solemnities.,,19

Hobson's Instructions, just cited, made very clear that the Land Claims Ordinance was to be the practical face of the very principles upon which Crown emmissaries - Rev. H.

Williams in Port Nicholson - transacted with maori for cession of sovereignty itself.20

Pursuant to both this Land Claims Ordinance and the 1840 arrangements for chartering the New Zealand Company, Lord Russell appointed a special Commissioner under the

l8Normanby/Hobson in Wai 145 Doc A29 pp 590, 5?2.

19Land Claims Ordinance 1841, A29 P 620.

2°Normanby/Hobson 14/8/39 in A30 pp 3-4. Normanby's outline went: Hobson was instructed to entreat for sovereignty (hence, paramountcy) and also for Pre-emptive purchase; a Legislative Commission will issue from New South Wales, which will receive and investigate claims to land, and upon whose report the Lieutenant Governor would decide whether to grant. 22 Ordinance, William Spain, to investigate the Company's claims arising from their 1839 deed purporting to purchase the entire Wellington region. At Hobson's direction,

Spain's first task was to understand and ascertain Te Atiawatraranaki's customary title to the region, in order to give it due consideration specifically under the Treaty of

Waitangi.21

But besides appointing a special Land Commissioner to investigate the Company's claims, Lord Russell's 1840 arrangements had also "guaranteed" the Company a title to those land already purchased by them. It thereby raised the question of whether the

Crown in this case would grant Wellington region to the Company based purely upon its paramount title, or whether it still would require extinguishment of Te

Atiawatraranaki's customary possession. Certainly, Crown officials in the early forties believed that without a valid purchase, the Crown could neither claim nor grant even

"unoccupied" surplus.22 This was untenable to the Company, as paying for every acre of land would have eaten up the Company's emigration fund. So, in the early 1840's,

"the New Zealand Company mounted a persistent and fierce campaign" that there was no'maori title other than that of occupancy.23

21Direction, see Wakefield/Secretary of Company 30/5/42, A29 P 322.

2znis was definitely the case for Port Nicholson: Spain/Shortland 29/1/43 in A31 p 192. See generally Claudia Orange Treaty of Waitangi, pp 94-99 in Doe A42 pp 147- 149; Hope/Somes 10/1/43 and 1/2/43 GBPP-NZ 2:Appendix p 6 and Memorandum to Select Committee, GBPP-NZ 2:Appendix p 378, both in Doe A42 p150 and 159. Both Gipps' Land Claims Bill, introduced in May 1840, and later its New Zealand adaptation, passed 9 June 1841, provided that the Crown would claim title to all lands "validly purchased" but not awarded to the purchasers - what came to be called "surplus lands." In Wellington, though, it was difficult to assess the Ordinances' practical import, since, besides Spain demurring from a purchase/no purchase decision, Russell's 1840 Agreement had exempted the area from the 2560 acre award limit by which "surplus" was to be defined.

23Peter Adams, p 190, in Doc A42 P 80. 23 Lord Russell's guarantee very directly affected the process of extinguishment of Te

Atiawa!Taranaki's title to Wellington region. From the start of his inquiry, Land

Commissioner Spain in particular understood the Crown's paramountcy and pre-emptive purchase right to imply few rights of ownership - only rights of dominion - until aboriginal claims had been fully extinguished.24 He therefore gave considerable weight to Te Atiawa!Taranaki claims to native title, and helped defend those claims against the doubts raised by the 1840 agreement. Spain reported in 1843,

"It appears to me that a consent on the part of the Government to grant to the

Company the land which, according to Pennington's award [calculated pursuant

to the 1840 arrangement] they were found to be ultimately entitled to, without

obliging them to prove the extinction of the native title, would have been a direct

contravention of and in utter opposition to the spirit of the Treaty of Waitangi,

and in violation of all the assurances of Her Majesty's Government to the

aborigines, of affording them justice and protection."z5

Te Atiawa!Taranaki for their part, "evinced the greatest satisfaction at [Spain's] arrival here, and repeatedly expressed their uttermost confidence in the proceedings of the

Court, and their belief that the Queen and the Government [would] do them justice."Z6

24Spain Interim Report A10(a) Doc 5 pp 2-3. Note our title page quote from Spain's interim report, though not cited as such by Spain, remarkably resembles Justice Marshall's statement in the locus classicus of aboriginal title, Worcester v. Georgia (1832): "The crown could not be understood to grant what the crown did not affect to claim." Spain quoted and explained Vattel to Te Rauparaha et al only in pointing out that colonial law had another, less friendly face which might prevail if Rauparaha proved uncooperative in settling his claims to the Hutt Valley. See Doc AlO(a) Doc 5 pp 11 & 32.

25Wai 145 A10(A) Doc 5 P 4.

26Wai 145 A10(A) Doc 5 P 4. 24 From the start, Te Atiawa!Taranaki embraced their status as "subjects," bestowed in

Article Three of the Treaty.

It is not hard to see why. Early on, Spain found the Company's initial purchase deeply flawed by its insufficient regard for native title as he understood it. Along with

Governor Hobson, Chief Protector of Aborigines George Clarke sen., Colonial Secretary w. Shortland and the missionary Rev. O. Hadfield, in the early 1840's, Land Claims

Commissioner Spain shared a core understanding of native title. In this view, an iwi claimed common possession of an entire district, with no "gaps" or unclaimed areas. The most paramount of ariki could not alienate any part of this district other than his individual portion without consulting the rangatira of hapu within the district. Hapus' claims were jealously guarded. But each hapu's claim was essentially a conglomeration of individual and family claims, linked by filial lines, and based upon uses of various sorts - discovery of trees, fishing of eel weirs, clearing or cultivating, trapping rat-runs, digging fern-root, cutting flax, building, etc. These essentially individual claims, according to all the authorities at Spain's disposal, and to Spain's own reckoning, could not be alienated by the principal rangatira without the consent of those individual occupants. As Ropiha Moturoa explained to Spain, although one rangatira (Ngake)

'owned' all of Pipitea, "he has let us occupy all the land, and he could not sell it unless all of us consented.,,27

27Turton pp F 3,18, 20-22 in A42 pp 15 & 17-20; also Clarke sen. Report n.d. (~1O/1841) in A30 P 105, cited and enclosed in Hobson/Secretary of State 13/11/41 in A30 pp 103-4; Spain's view in A10(1) Doc 5 P 5, Doe 6 P 5; Moturoa testimony 2/9/42 in A42 pp 210-211. 25 Hence, Spain reported Te Atiawaffaranaki's custom to be "that although the principal chiefs were always consulted, and their consent considered necessary to the sale of any district belonging to the tribe, yet that inferior members of [the tribe] possessed land, individually, which could not be alienated without their acquiescence."28

Note that Spain's rigid principle of "the residents and they alone, have the power of alienating land" actually worked against Te Atiawaffaranaki's claims in his Taranaki inquiry.29 But in the case of the 1839 Port Nicholson agreement, Spain found that

"lL.appeared that several members of the pahs Tiakarai, Pipetea, Kumatoto and

Te-aro had participated in the payment made by the agent of the Company for

the land; and some of them had executed the deed, while the principal chiefs had

not done so, but positively refused to concur in the sale."

Based upon the sworn, clear denials of the 1839 sale given by rangatira at Pipitea,

Pakuao, , Kumutoto and Te Aro, Spain concluded that if he had made an award to the Company based on the 1839 purchase, it would have been for "a very inconsiderable portion of the district."3o The 1839 deed had not extinguished native

title to the district generally - only to scattered individual portions of it, centering in

Petone and .

28A10(a) Doc 5 p 5.

29Turton p F20-1 in Doc A42 pp 18-19.

30See Spain's summary of the denials in A(10)a Doc 5:5. Similar assessments abound, and can be found in many documents cited elsewhere in this submission, ego Surveyor-General Felton Mathews' report, 20/10/1841 in GBPP 1842(568), p 110 in Doc A30; also Sub-protector George Clarke jun.'s reports, 21 and 27/2/1843 in IA 1/44/1785 pp 216-17 in Crown Law IA1 volume. The best sources, of course, are the verbatim transcripts of the Old Land Claims hearings, e.g. IA1/43/1929 Enclosure 51, Minutes of May 16-211842, Wi Tako's testimony pp 108-114 in Doc A42, and OLC 635 (Case 287), Minutes of 30/8/42, Te Awakite Penaha's testimony re: Pipitea pp 185-87 in Doc A42. 26 Also to Spain's credit with Te Atiawa!Taranaki, he admitted and confirmed several dispositions of customary rights to land in agreements with Robert Tod, the Wesleyans, and George Young. 27 Abandoning the Land Claims Inquiry

On the other hand, though, Spain himself guided the diversion of the "track of agreement" from the context of a principled examination under the Land Claims

Ordinance, which provided clear mechanisms for protecting native title, to a context of arbitration for compensation in which Te Atiawarraranaki's position as native title holders became fluid and precarious.

The diversion began when, on his visit to Wellington in September 1841, having learned

"that the Company's purchases ... might, if not wholly, yet in part, be reported against by the Commissioners," Governor Hobson offerred to Colonel Wakefield to waive pre- emption to enable the Company to compensate counter-claims of both maori and pakeha.31 That is, to enable the Company to make "equitable arrangements ... to induce those natives who reside within the [78,800 acre] limits referred to in the accompanying schedule, to yield up possesssion of their habitations."32

The waiver was Hobson's attempt to balance the Company's interpretation of its 1840 agreement with Lord Russell - as a guarantee of a grant without regard to native title -

with the protection of Te Atiawarraranaki's possession of their lands, etc. promised in the Treaty of Waitangi. His waiver established a basic policy for the remainder of the decade, being later continued by Governor FitzRoy, and renewed by Governor Grey.33

31A29 pp 7-10E and A30 p 107.

32Hobson/Wakefield 5/9/41, GBPP 1842(569), P 108 in A30.

33Grey Proclamation 21/2/46, A26 P 169. Also Richmond/Wakefield 23/2/46, in A40 pp 59-61. 28 Hobson's waiver of this basic Treaty protection was expressly motivated by a desire "to relieve a numerous and respectable body of British subjects from a state of much embarrassment." Hobson reported feeling "happy to say that the assurance thus given to the Company's agent had an immediate and marked effect on the commercial credit of the settlement."34

In Hobson's waiver, the Crown retained its power of confirmation over the Company's negotiations and its formal position as purchaser, but relinquished its position as sole bargainer and actual purchaser. Hobson declared the boundaries of the area to be subject to the waiver/negotiations, "for the purpose of enabling the Company's agent to make his selections according to the terms of the [1840 Lord Russell] arrangement."

Naturally, though, the area so declared for selection encompassed large areas which definitely remained unsold (e.g. Pipitea, , Te Aro/Wellington South, Ohiro,

Kaiwharawhara, etc.).

Hence, with its Treaty's land guarantee opposed by its 1840 Company Charter's grant

guarantee, its Land Claims Inquiry into the 1839 purchase opposed by its pre-emption waiver to re-negotiate that purchase, and its declared area for purchase negotiation

opposed by having declared the same area for settlers' selections, by mid-1842 the

Crown had plainly made itself a difficult bed in which to lie.

Crowning the Crown's invidious position, during this same visit to Wellington in which

he pledged the pre-emption waiver and authorised the selection of unsold lands,

Governor Hobson "thought it right...to pledge the Government to protect the

34Hobson/Secretary of State 13/11/41 A29 P 355. 29 aborigines in the possession of their pas and cultivated grounds,

unless it is proved that they have sold them.,,35

Therein lay the chicken-and-egg problem posed by the Crown's self-contradictory forays into culturally-and-commercially sensitive Government: it had "guaranteed" the region to the New Zealand Company, who hardly wanted it if it excluded the pa and cultivations comprised in the planned town.36 And it had pledged to protect not only

Te Atiawaffaranaki's customary possession of the region, but to secure their pa and cultivations, which Te Atiawaffaranaki declared absolutely not for sale.

The historic value of the lands now under claim perhaps becomes clear: without agreement regarding their reservation, there was no agreement of purchase. Without a determination of "valid purchase," almost the whole region would likely be thrown open again for new purchase - this time at post-sovereignty land values.

On 22 August 1842, almost a year after Hobson's offer of waiver and arbitration, when the Land Claims court was going badly for the Company,37 and Te Atiawaffaranaki

demands pursuant to the 1839 Principal Agreement and the Treaty were growing, Col.

Wakefield proposed to Spain to switch to an arbitration for compensation. Spain accepted pending authorisation. He gave a chain of six reasons to negotiate: first, there were already about six times as many pakeha as Te Atiawaffaranaki in the region;

second, if he disallowed (or, with difficulty, only partially allowed) the principal

35Hobson/Secretary State 13/11/41, in A 26 P A167.

36W AI 145 A(10)a Doc 5 p 3.

37A29 E46-48 30 agreement, Te Atiawaffaranaki would raise their price; third, if Te Atiawaffaranaki raised their price, many of the settlers would leave; and fourth, if the settlers left, "the maori would be deprived of the advantages of living in or near a European community."

Fifth and sixth, he added that Te Atiawaffaranaki were favourably disposed to pakeha settlement, and that the case was too complex for a simple ruling of purchase/no- purchase.38

Two months later, shortly after Hobson's death, the Officer Administering the

Government, (Colonial Secretary) Willoughby Shortland, re-iterated Hobson's waiver of pre-emption and expanded it into an offer to Wakefield to

"render [the Company] every practicable aid and assistance to make good [its]

purchases; which, having been effected, and the land once declared the demesne

of the Crown, native interference will not be allowed."39

After consultation with Spain, Shortland conveyed his formal approval of negotiation three months later, providing even that the Company could receive a grant to the region, with difficult cases such as pa and cultivations to "remain in abeyance, with a view to some future adjustment of the native claim."40

38Rosemary Tonk, "The First New Zealand Land Commissions, 1840-1845," (Unpublished MA Thesis, U. of Canterbury) p 171-3, citing Wakefield complaints about Wesleyans' counter-claim, in Doc A42 pp 47-49. The Company and Crown officials knew that perceived benefits of pakeha settlement, traditions of gift-exchange and continuing rights of maori occupation/mana whenua were inextricably woven together in maori understandings of land dealings; see e.g. Earp testimony 13/6/44 Qns. #2057-58 in Doc A31 P 44.

39 A29 P 329 ShortlandlWakefield 14/10/42

4°A29 P 330 FreemanIWakefield 16/1/43. Note Lord Stanley's later instructions to FitzRoy to allow a prima facie title "on the condition that the validity of their purchases shall not be successfully impugned by other parties" amounted to much the same - retaining the Colonial Office's assumption that the 1839 purchase's "validity was the 31 Spain formally offerred, and Wakefield entered, negotiations on 14 February 1843.41

Clarke held a public meeting at Te Aro two days later, discovering only that Te Aro did not want to sell at all. 42 Spain sent Clarke back to Te Aro, and talked to Te Aro maori himself, but a week later, Clarke could only report that Te Aro insisted they "first stipulate for the retention of what portion of these lands they may consider necessary, and for the amount of compensation they should receive for the rest."43

Clarke and Wakefield agreed to try Pipitea and Kumutoto instead. Apparently ignoring

Te Atiawaffaranaki's "exorbitant demands" there, Clarke "computed the value of their claims to be 1050 pounds" excluding pa and cultivations.44

Wakefield considered this to be exorbitant, maintaining that Pipitea and Kumutoto had been duly purchased in 1839, and that not much compensation should be demanded at all. Wakefield suggested a regional lump-sum be proposed, taking into account the value of the selected reserves. 45 Clarke re-iterated that he had

basis of the promised grant," but potentially placing Te Atiawaffaranaki on the same footing as pakeha cross-claimants against the Company. See Hope/Somes 10/1/43 in NZ Co 12th Report in A28 pp 151-52, and Minutes to 1844 Select Committee 6/6/44 in A31 p 29. The similarity is academic, though, as FitzRoy never prepared Stanley's 'conditional grant.' FitzRoy/Stanley 1/8/45, in A32 P 106.

41A10(a) Doc 5 pp 17-18.

42A10(a) Doc 5 p 20.

43Clarke/Spain 23/2/43 in A10(a) Doc 5 p 22.

44ClarkeIWakefield 27/2/43 in A10(a) Doe 5 p 32.

45Wakefield/Clarke 1/3/43 in A10(a) Doc 5 pp 32-33. 32 "merely stated [his] own estimate of the fair value of the native claims, [not] the

demands of the natives ... which very considerably exceed the sum I have

proposed. ,,46

Spain told maori that Clarke's first offer of 1050 pounds for Te Aro, Kumutoto, and

Pipitea only had been "extravagant," and that in deciding the arbitration, he "would not listen" to such prices.47 Clarke spent another two-to-four days discussing compensation with Te Atiawaffaranaki, then followed Spain up the coast to Whanganui and

Taranaki.48 Spain urged Clarke not to get side-tracked, and to get another proposal on the table.49

Shortly after their return to Wellington, on 23 May 1843, Clarke proposed 1500 pounds for "all claims of the natives resident within the... Port Nicholson deed."so The next day, expecting favourable results of talks between the Directors and the Home

Government, Col. Wakefield "decline [d]..to proceed with the negotiations."s1

Spain and Te Atiawaffaranaki both were livid at Wakefield's "wretched subterfuge."

Spain felt honour-bound to see the arbitration completed, and "assured them [the maori] that the Government [would] insist upon their being satisfied."s2

46ClarkeIWakefield 2/3/43 in AI0(a) Doc 5 pp 33-34.

47Spain/Shortland 31/5/43 encl. in Shortland/Stanley 13/6/43 in A31 P 200.

48Clarke jun/Clarke sen 15/3/43 Crown Law volume of extracted ATL Clarke letters 1842-1844, pp 42-43.

49Spain/Clarke 14/3/43 AlO(a) Doc 5 p 23.

sOClarkelWakefield 23/5/43 AI0(a) Doc 5 p 35.

s1Wakefield/Spain 24/5/43 in AI0(a) Doc 5 pp 29-31.

s2Spain/Shortland 31/5/43 encl. in Shortland/Stanley 13/6/43 in A31 pp 198 & 200. 33 The talks that prompted Wakefield's retreat from negotiations were the Company's

"other front" opened by Lord Russell's 1840 arrangement: the New Zealand Company

Directors and Lord Stanley had exchanged heated words, occasioning the Company's famous characterisation of the Treaty as a "device for amusing and pacifying savages."

Now, the Company had "remonstrated with the Secretary of State for the Colonies against being made liable for any further expenditure than that for which Mr.

Pennington has awarded land for he Company." That is, Wakefield had been informed that the Company might have succeeded in winning Russell's "guaranteed" grant, regardless of Te Atiawaffaranaki's (and others') customary title.53 Soon, rumours circulated in Wellington that the Home Government was about to decide the "land question" by statute.54 Hence, Lord Russell's 1840 agreement, which had enabled the

Company to convert the Land Claims inquiry into a purchase arbitration, now enabled the Company to slip out of that arbitration after eliciting a firm offer from its

"opponents".55

The next month, the incident at Wairau occurred, bringing fear and near-panic to the

Cook Strait area. Rangatira and settlers alike petitioned Shortland. Spain and

53Talks see Wakefield/Spain 8/4/43 A10(a) Doc 5 pp 24-25, Spain/E.J. Wakefield 17/4/43 ibid. p 27, Spain/Wakefield 22/5/43 ibid pp 28-29, and Wakefield/Spain ibid. pp 30-31.

54Shortland/Stanley 21/10/43 in A31 P 335. Also, New Zealand Gazette and Spectator 24/8/43, in Crown Law volume of extracts 1842-44, p 23.

55"Opponents" see Clarke/Shortland 28/10/43 in A31 P 320. Ultimately, the 1844 House of Commons' Select Committee on the matter characterised the Treaty as an "injudicious proceeding" and "a legal fiction," expressing regret for the Treaty's extravagant guarantee of the customary possession of all lands, and recommending that the Company be granted Te Atiawaffaranaki's unoccupied lands regardless of questions of native title. See Report A31 pp 5-7, and Resolutions #2,3 and 4 A31 pp 12-14. Such of the Committee's resolutions laid the groundwork for the constitutional changes which hampered negotiations in the latter part of the decade (see below). 34 Wakefield discussed re-opening talks. But in the end, Shortland could only wait for his replacement, and Spain delay his decision, lest settlers who had "bought land

from the

Company In

localities where

t h e

Commissioner

shall report that

the native rights,

as owners of the

soil, have not

b e e n

extinguished, will

consequently be

obliged to

abandon and

deliver up their

lands to the

native owners, if

the purchase be

not now

completed. ,,56

56 Colonial Secretary/Spain 19/9/43 in AlO(a) Doc 5 p 42. 35 "Having ... [thus] travelled out of the usual course of proceeding, to afford the Company the opportunity of extinguishing the native title," the Crown was clearly duped.57 It showed its hand on how far it would go to protect Te Atiawaffaranaki claims against the Company. In doing so, it had devalued those claims from being totally sufficient denials of the Company's claims into fluid bargaining chips - twisted, beaten down, and

'moderated' by even their own Protector.

We have introduced the legal notion of the Crown "balancing" sets of rights in extending its sovereingty to new territory. In purely political terms, perhaps the Crown could be seen here as juggling constituencies. Peter Adams characterised Hobson's waiver of pre­ emption as keeping to the letter but not the spirit of the Treaty of Waitangi - "hardly straight dealing."58 Adams showed that, for New Zealand generally, the Treaty's pre­ emption provision was mainly a means of undervaluing maori "unoccupied" lands.59

In Wellington, though, the pre-emption waiver worked to the same effect; it gave second wind to the Company's efforts to pay for colonisation by being the first to buy and first to sell cheap maori land.

In conclusion, however pertinent to deciding an action of scire facias in 1872, the judges' requirement of a Crown mandate authorising "creation" of reserves was clearly anachronistic: in the early 1840's when the Crown and maori were quite consciously struggling to balance Crown sovereignty and paramount title with maori custom and native title - with both parties especially conscious of the Treaty - the creation of

57Spain/Wakefield 5/8/43 in A10(a) Doc 5 p 37.

58Peter Adams, Fatal Necessity, pp 191-192, in Doc A42 pp 80-80a.

59 Adams 195-197, Doc A42 pp 81-82. 36 reserve~ was not a matter of the Crown's unilateral action. Rather, the reserves now under claim were created in a process of finding agreement between Te

Atiawaffaranaki and the Crown's agent of pre-emptive purchase, the New Zealand

Company, over the extinguishment of Te Atiawaffaranaki's customary possession of the entire region. Only after sketching the track of this agreement and the role of the reserves in it, can we examine more closely the status of the reserves now under claim at the time of their loss. 37 The Track of Agreement

The track af agreement was primarily marked out by the "1839 Principal Agreement," the "1844 Releases," and the "1847 Exchanges."60 The three markers were points of publicly and mutually expressed agreement on the terms and conditions for transfer of the rights of ownership to the region.

In each agreement, though, some of the central terms and proVIsIons were rough, requiring future clarification, and some others by their nature required future fulfillment. For instance, regardless of the doubts which arose over the vendors' rights to alienate the entire region (even Te Puni denied this right61), any reader of the 1839

Principal Agreement must see glaring difficulties. In respect of terms requiring future clarification, the 1839 Principal Agreement did not unambiguously describe the area of land sold, and even less so the area of land reserved: what is meant by 'the foot of the

Tararuas' and 'the ridge of the Rimurapa range?' Where is the reserved tenth to be?

Wakefield's interpreter, Dicky Barrett, apparently translated the exterior boundary

"Tararua, continuing on the other side of Port Nicholson, to the name of Parangarahu."

Of the reserves, he apparently only said that the vendors "were to get a certain portion of land, without describing what that portion was."62

600ur names for the markers are those used by Native Land Court Judge MacKay, "Release" Land Commissioner Spain (Spain/Fitzroy 13/4/44 in A32 P 113) and Court of Appeal Chief Judge Arney, and the District Land Registrar, respectively.

61Shortland/Hobson 9/10/1840, pp 72-73 in A30.

62Spain A10(a) 6:5. 38 In respect of terms requiring future fulfillment, not only did the Principal Agreement defer the basic practicalities of the Company's scheme of reserving and administering a tenth of the lands sold, the res elVes were in principle to be the maoris' share in the future benefits of civilization.

The 1844 Releases did not directly clarify exterior boundaries, releasing as they did all the vendors' interests in "all the places at Port Nicholson and in the neighborhood of

Port Nicholson in New Zealand." (see p 48, elaborating on this ambiguity) Similarly, the Releases pledged to maori not only the partially-surveyed "places reselVed," but also pa, cultivations and sacred places, which were not described or depicted on the plans accompanying the Releases or on Spain's award based upon them - let alone sUlVeyed.63

The plans accompanying the 1847 Exchanges depicted ReselVes boundaries quite well

(that being one of their principal objects), but again left most boundaries uncut, and the nature of the estates given by the Crown to the maori largely in doubt.64 Te

Atiawa!Taranaki simply "received ... portions or blocks of land" out of the Crown's estate.

On one fundamental level, then, Company, Crown and Te Atiawa!Taranaki trudged the track of agreement toward simply clarifying these essential elements of any meaningful transfer of interests in land - boundaries and assurance of performance (ie. assurance of adequate reselVes).

63por instance, NZC 110/1/131 proposal of Alfred Willis, Clerk of New Zealand Company Land Office to Wakefield, 13/8/1845 "to plot the cultivated lands around the Pas etc to a scale of at least eight inches to a mile" in order "to ensure correctness," in Doc A42 pp 84-94.

64Incomplete surveys see NM 4/1/47/59 P 72 Eyre/Grey 15/10/47 in Doc A42 P 95. 39 40 The Mechanics of Transfer

The problems of "open" boundaries and of provisions for "future payments" were not unique to the New Zealand Company's claim to the Wellington region - though the means adopted for dealing with them was. As the Crown's primary means of implementing its "land guarantee" in the Treaty, the purpose of the Land Claims

Ordinances (NSW 1840 and NZ 1841) was to determine and secure "valid purchases"

(and to identify and reject invalid ones). The inquiries under the Ordinances focussed on finding fair, informed agreements for sale & purchase. Naturally then, the machinery of the Ordinances aimed to test exactly these two minimal requirements to an informed agreement: all interested parties needed to know what land was sold and purchased, and what consideration was actually given.

To ensure parties had actually agreed upon which lands were bought and sold, the Land

Claims Ordinance initially required the Protector to walk the boundaries, and to report whether they fell entirely within the vendors' rohe. Along the same lines, a survey was required prior to granting, and the surveyor was required to report any interferences or complaints received from maori while surveying. The requirements had very practical intent. Commissioners' inquiries found it a common trick for claimants to have inserted boundaries in their deed after the purchase, or to have incorrectly described the piece of land they claimed. Both the proper construction of a deed and the meaning of a

"mile" were still unclear to many maori vendors.65

65Tonk, pp 46 & 78, citing Colonial Sec/Clarke, sen. 21-4-1843, Turton, Land Purchases in the North Island, Part B, No.16, p.18; and Tonk pp 88-90, citing Shortland, Southern Districts., pp. 81-82. All in Doc A42 pp 22, 24, 27-29. 41 Due to persistent shortages of and problems with the Protectors and sUlveyors,

"In his instructions of July 1841, Governor Hobson advised the Commissioners

that their reports could be made without a survey being done as long as an

accurately defined boundary was pointed out by the claimant. The

Commissioners, therefore, had to continue basing the description of each claim

on such testimony as the often-vague definitions contained in deeds. This was

one reason why the Commissioners repeatedly asked that adjacent claims be

surveyed together.,,66

Survey remained prerequisite to a grant, though, even if only based on the earlier descriptions. By September 1842, Hobson allowed contract surveyors to ease the pressure on the Government's six. By mid-1844, the period of FitzRoy's general pre­ emption waivers, in order to avoid delays in issuing grants, the survey requirement was dropped completely. "Grants were sent out with the description of the land as found in the Commissioners' reports."67

The gradual loosening of the boundaries tests left a costly legacy. In the first great grant bonanza - 400 prepared by the Surveyor-General's Office after FitzRoy's examination of Commissioners' reports in 1844 - only forty two were not fundamentally flawed, necessitating re-issue later. "The major fault with the other deeds was the inclusion of imprecise descriptions of the land conveyed.,,68 The problem posed by indefinite boundaries in non-New Zealand Company land claims persisted until 1862,

66Tonk, p 78, Doe A42 p24.

67Tonk pp 80-1, Doe A42 pp 25-26.

68Tonks p 110, Doe A42 p 32. 42 through a Privy Council court case, (R v Clarke) and several Local and Imperial Acts, and Commissioner Bell's exhaustive six-year Commission of Inquiry.

To ensure a meaningful conveyance had occurred, the Land Claims Ordinance further required that claimants include in their notice of claim in the Gazette, details of consideration given. Moreover Commissioners Godfrey and Richmond both "rejected altogether payments made after 14 January 1840." 69

These limitations on future payment provisions reflected both the desire to discourage absentee speculation and to protect maori vendors. Future payment provisions mainly arose from two motives: first, "only with the intention of fulfilling them in event of the

Islands being taken possession of by the Crown. 1170, and second, to ensure the maori vendors would support the purchaser's claim before the Crown.71

Apparently, the future payment protections worked well. The other side of the coin was the Land Claims Commissioners' specific instructions not to allow maori to oppose claims on the basis that their lands had increased in value since the time of purchase. 72

In the negotiations for Te Atiawaffaranaki's lands at Port Nicholson, Spain embraced this rule wholeheartedly, and took "the maoris' desire to part with their lands at

69Tonk pp 90-91, Doe A42 pp 29-30; Bell, 1862 AJHR, "Report of the Land Claims Commissioner, 8fi/1862," Part IV p 629, Doc A42 P 96.

7°Bell, p 629.

71Tonk, p 91, Doc A42 P 30.

72Instructions 9/10/40, AIO(a) Doc 4 p 2. 43 contemporary, rather than pre-settlement values, as grounds for dismissing altogether those compensation demands the maoris did make.'173

None of these Land Claims Ordinances protections or other Land Claims

Commissioners' practices were consistently extended to Te Atiawa!faranaki's lands in

Port Nicholson, though. Here, the exterior boundary description, which Spain called

"imaginary" yet worked with right through his inquiry, included at least a forty-thousand- acre margin of error, depending on where one drew the ridgeline of the Rimurapa range.74 When finally surveyed and drawn in October 1844, Fitzgerald and Brees' plan showed the exterior boundary with this Rimurapa "ridgeline" extending from to Kia Kia.75 This was quite clearly an expansion on the 1839 boundary description, the origin and authorisation for which we have been unable to ascertain.76 Ngati

Tama, whose rohe covered most of the area thus included, seem to have acquiesced in it, though.77

73Tonk p 244, Doc A42 p 61.

74AlO(a) Doc 5:10

75A9(e)

76Brees/Wakefield 31/1/44, reported the area was included in the Port Nicholson purchase because it had been included in "some other purchases of the N. Z. Company" anyway. Clarke responded agreeing to Brees' boundaries, excepting the 7 Porirua sections.

77lAcquiesced" is perhaps too gentle a term, considering Ngati Tama's role in the 1846 war. Taringa Kuri told Clarke jun. that the Company had broken the 1839 deed by disposing of his land at Kaiwharawhara, providing insufficient reserves, and by running their livestock over his cultivations at Kaiwharawhara. "Therefore he did not consider himself bound to fulfull his part of the engagement." See Clarke/Clarke 14/6/43 in A31 P 396. After the war, and several crucial land exchanges, Ngati Tama 'acquiesced' in their rohe being included in the purchase boundaries. 44 The more important boundary ambiguities were with the reserves. The ambiguities worked on two levels: first, if the reserves were to be owned by the Company in trust for Te Atiawa!faranaki, then they were simply internal boundaries, arguably peripheral to the determination of "valid purchase." As they were the main consideration given for the purchase, though, and as the pa, cultivations and burying grounds were to be excluded from sale altogether, the reserves' boundaries were seen as crucial "exterior" boundaries whose ambiguity contributed in large part to Te Atiawa!faranaki reluctance to complete a purchase agreement,18 When consenting to negotiate for purchase, in

January 1843, rangatira told Shortland:

"their only wish was to be allowed to live peaceably with the Pakeha, and to

cultivate the lands to which they were habituated; but that the boundaries of the

land of the white man and of the Maori must be clearly defined."79

As we have noted, the 1839 Principal Agreement left the reserves areas completely undefined, the 1844 Releases left them largely unsurveyed, and only by 1848 were many of their boundaries cut and surveyed. As the reserves area ultimately came to be quite large (18,987 acres), this lack of definition alone would sufficiently explain why it took eight years to reach meaningful agreement over the sale. In fact, by the end of the negotiations, Te Atiawa/Taranaki's primary concern appears to have been the survey and registration of their interests. (see below)

78There was a chicken-and-egg relationship between defining reserved lands and completing purchase: see, for instance, Earp's testimony 13/6/1844, Minutes of 1844 Select Committee, Qns 2061-2064, and 2129 Doe A31 pp 44-45 and 51.

79Shortland/Stanley 17/4/43 in A31 P 174. 45 As with other claims, the New Zealand Company's was seriously damaged by Te

Atiawaffaranaki's removal of survey pegs at Pipitea in 1840. In the case of Wellington, though, the Company simply began additional payments in 1840 to stop the protests.so

More fundamentally, when Commissioner Spain abandoned his "strict line of duty as

Commissioner" by refusing to declare the initial purchase either invalid or limited to a

certain area - and to negotiate further payment after the initial purchase - he thereby

abandoned the protections against future payment provisions.81 Inasmuch as the reserves served as the real purchase consideration - as Wakefield, Clarke and Spain all believed - in the context of arbitration the unsurveyed, insecure reserves carried all the

inequities and hazards of a future payment provision.82 Te Atiawaffaranaki's purchaser

repeatedly availed itself of this opportunity to elicit an expression of Te

Atiawaffaranaki's agreement to the extinguishment of their interests, and then to withdraw from negotiations (in 1843) or then to back out of its agreement to reserve

cultivations (in 1845 & 46).83

8°tonk p 150 & 152, Doe A42 pp 42 & 43.

81cite AI0(a) Doc 5:9

82Wakefield beleived, see Wakefield testimony to 1840 Select Committee 16n/40 (reading letter of Directors to Wesleyans), Doe A30 p 47; also Ward testimony 17n/40, A30 p 32; Clarke believed, see Turnbull MS "Clarke Letters and J ournals" Vol 7 Item 51 Clarke/Clarke sen. 29/9/42 pp 13-14 (in Volume ofClarke Letters gathered by Crown Law Office).

83Al0(a) Doe 5:7-10; A29 339-343 & 365; back out: NM 8/45/388 WakefieldlRichmond 1/10/45, in Doc A42 p 97a; also Harrington/Gladstone 28/2/46, GBPP 1846(337) P 170, Doc A32 P 143. 46 A Single Meaningful Agreement

Given this roughness and this future-looking character of the terms of the three main markers of agreement, the track of agreement in its entirety assumes the character of a single, slowly developing agreement. Each successive point along the track was essentially a clarification or partial fulfillment of the ambiguous boundaries or future provisions of the preceding agreements.

Consistent with this view, neither of the later two agreements revokes or rescinds any of the terms of the earlier two agreements. On the contrary, each successive agreement explicitly mentions and incorporates elements of the agreement(s) preceding it. The

1839 Principal Agreement can be summarised as some of the maori vendors receiving certain goods that day in exchange for the New Zealand Land Company receiving

ownership of the region - the vendors covenanting to "assist, defend and protect" the

Company's ownership, and the Company covenanting to reserve "a tenth part of the whole" to be "held in trust by the Company for the future benefit of the said chiefs,

their families and heirs."84 It expressed Te Atiawa!Taranaki's desire to allow pakeha

settlement, and the Company's desire to include Te Atiawa!Taranaki in the settlement's

future development.8s It did not make specific provision for fulfillment of either

desire. Land Commissioner Spain estimated very roughly that it would have been

accepted as having conveyed most of Lower Hutt and Ngauranga, and scattered

individual possessions around the region.

MA10( a) Doc 1 pp 1-2.

8s"Settlement" focus, see Te Puni ia 1/1843/1929 in Doc A42 pp 100-101; also Spain Interim Report in AlO(a) Doc 5 p 5-6 and Spain Final Report A10(a) Doc 6 p 3. 47 The equitable foundation of Spain's inquiry into the 1839 Principal Agreement was "the assertion on behalf of the Crown of a title to all lands situate in New Zealand which ha[ d] been granted by the chiefs of those islands, according to the customs of the country, and in return for some adequate consideration.,,86 The 1839 Principal

Agreement, while far from complete, gave evidence of sufficient unanimity of Te

Atiawa!Taranaki opinion and good will for the Crown to assert such of its title as was necessary to authorise an inquiry.

Most of the 1844 Releases were executed in February and March of 1844 both as minuted proceedings of Spain's Court of Inquiry, and as the conclusion of the arbitration for compensation, under Spain's umpirage.87 Each of the main Te

Atiawa!Taranaki settlements of the region participated, excluding Pitone and

Ngauranga, where no claims were made against the Company beyond the reserves selected for them pursuant to the 1839 Principal Agreement. The releases can be summarised as the maori releasors discharging all their rights "to all their claims" to compensation from the New Zealand Company in exchange for receiving payment at the time of execution, and for adding their pa, cultivations and sacred places to the

"places reserved" already under the 1839 Principal Agreement.BB The Releases made no distinction between the manner in which "the Pas, the cultivations the sacred places"

86A(10)a Doc 5 p 3.

87Releases at A10(a) Doc 2 pp 1-7; Minutes of 23-25 February, 1844 in Wai 145 Doc All Appendix pp 105-116.

BB"Release" in ca. 1870 Legal Encyclopedia, (lost title reference):best fit IS to discharge of right without vesting it in the releasee, p 612. 48 versus the "places reserved" (were to "remain alone for [tangata whenua]" (see next section).89

Parsonson and Tonk have endeavoured to unravel maori perceptions of these releases.

There is scant evidence of Protector Clarke consulting Te Atiawaffaranaki on the terms and conditions under which they would release their claims against the Company.

Wakefield claimed Clarke had already begun consulting maori on compensation two weeks after negotiations were approved.90 However, Clarke's own Report for the period during which he would have been gathering agreement on compensation does not mention the negotiations at all. 91 Te Aro certainly did not accept their share of

the 1500 pound final compensation readily. And when Spain visited Te

Atiawa/Taranaki's various settlements to execute the releases, he "was very much

surprised that, with hardly an exception, at every meeting with the natives which I have

attended on the appointment of the Protector, instead of finding the parties agreed to

accept the sums offered, ... I had to talk over the subject with them precisely the same

as if it had been the commencement of a negotiation, instead of the conclusion of an

agreement previously arranged, settled and understood by all parties."92

Spain added that he was hardly surprised, considering how seldom Clarke was known

to have actually met with maori.93 For her part, Rosemarie Tonk concluded that "the

89Releases at A10(a) Doe 2 pp 1-7.

90 A29 P 329, Wakefield/Secretary of NZCo 28/1/43; cf. A29 p 310 Clarke/Wairarapa 10/9/41 on alienation of pa.

91A29 pp 363-4.

92A10(a) Doc 6 pp 7-9; also All Appendix pp 105-116.

93WAI 145 AlO(a) Doc 6 p 7. 49 amount of compensation was decided for them."94 More generally, she concluded that to Wellington maori at the time, "there was still no distinction between a payment, compensation and a gift. ,,95

Regarding the Crown's perception of the Releases, in Spain's brief to FitzRoy in 1843, he argued against Wakefield's belief that compensation was solely for "the wild lands."

Spain stated that Clarke's offer of compensation at that point

"was for the whole of the lands belonging to the tribes of Te Aro, Kumutoto, and

Pipitea - with the exception of their pahs, cultivations and burying grounds -

which the Company had sold to different individuals."

Spain then noted the customary mode of rotating cultivations, by which means "the whole town of Wellington [stood] upon lands belonging to these tribes."96 However, at the 29 January 1844 meeting at Richmond's house resuming negotiations, compensation was ambiguously redefined as covering not just the lands which the

Company had sold, but "all that had been surveyed." This definition was perhaps incorporated into Spain's final award, which featured a plan with an exterior boundary which had been fully surveyed and marked out, but which only awarded to the Company the 71,900 acres selected.97

94Tonk p 244 Doe A42 P 6l.

95Tonk, 236ff and 301, Doe A42 pp 56ff and 67.

96A10(a) Doc 5 plO.

97A10(a) Doc 6 pp 1 & 18. 50 There is reason to believe, then, that Te Atiawa(faranaki may have been told one exterior boundary - the lands surveyed and sold - not fully aware that the Crown would claim the remainder of the district. (see next section) At the very least, Spain's comments indicate his awareness of the forthcoming difficulties in distinguishing

"unoccupied" or "wild" lands from "occupied" or "cultivated." Grey and McCleverty struggled with this question, as well as the question of whether the "unoccupied" lands were to vest in the Crown or the Company. (see below)98

At Spain's Court on 23-6 February 1844, ending the negotiations, FitzRoy described the releases to Te Aro maori as "no new purchase, but the completion of a purchase made four years ago." (Gilmore Appendix plO) He firmly stressed the finality of the arrangement and payment.

FitzRoy's promised "completion" was not to be. In September 1845, after receiving

Spain's Final Report on Port Nicholson claims, Governor FitzRoy advised Lord Stanley that the area was still "disputed by the natives, and cannot be fully occupied by the settlers."99 In October 1845, Col Wakefield, acting on the wishes of the settlers, and citing "the partial and conditional nature of the grants in question," declined "to take up the deed of grant of land [at Port Nicholson], the quiet occupation and use of which cannot be guaranteed."lOO

98A10(a) Doc 5 pp 10 & 12.

99Tonk p 301, in Doc A42 P 67, citing FitzRoy/Stanley, 13/9/1845, IUP Vo!. 5, p ll/BPP, [1846(203)30, p3.

looNM 8/45/388 WakefieldlRichmond 1/10/45, Doc A42 p 97a. 51 Within three months, the Colonial Office had appointed Lt. Col. McCleverty to further adjust the Company's claims.lol Within a year, the new Lieut. Governor Grey had acknowledged that the reserves agreed upon so far were "insufficient for [Te

Atiawa!faranaki's] present wants, and ill adapted to their existing notions.,,102 The region was governed under martial law;lo3 the Company Directors had finally rejected

FitzRoy's grant, and Governor Grey had annulled the grant, claiming it was "almost impossible to tell what lands were included in this agreement."l04

In the light of the Treaty, inasmuch as the 1844 Releases were the fruits of the Crown's waiver of its right and duty of pre-emption under the Treaty, the Releases cannot comfortably be construed as a complete, legitimate extinguishment of Te

Atiawa!faranaki title to the region - and especially not to their Reserved lands.

Moreover, in the light of the lack of meaningful agreement over which lands were sold, which were reserved - and the disparity between Te Atiawa!faranaki's, the Company's, and the Crown's perceptions of the negotiations and Releases - it is plainly inaccurate to state bluntly that the Releases ended Te Atiawa!faranaki's customary rights of possession and use of the region, much less to the Reserves as they stood at this point.

lOlDoe A18, P 1l.

l02Jellicoe A24 p 293, citing Grey!McCleverty memo, 14/9/46.

103Ian Wards, Shadow of the the Land, pp 247-8 & 259, Doe A42 pp 125-127.

l04Quote A26 P D6 Gov Grey memorandum on Native Reserves at Wellington; also Tonk p 304 in Doe A42 P 68, as "altogether too vague"; see also Alan Mulgan, City of the Strait, p 129 in Doe A43 p 238. 52 This mid-1846 incompleteness of agreement over the terms and conditions for extinguishing customary title to the region required virtually overhauling the reserves provisions by the 1847 Exchanges. Given this incompleteness, the 1847 Exchanges could not have been primarily the fulfillment of Lord Russell's 1840 agreement subsequent to the extinguishment of title in Spain's 1845 Award, as portrayed in Crown-accounts by Heaphy, MacKay and Jellicoe.105 That is, even by the Colonial Office's and

Commissioner Spain's own reckoning, Russell's 1840 agreement violated the Treaty of

Waitangi, except insofar as it presumed the completed voluntary extinguishment of Te

AtiawaITaranaki's title to the region.

This extinguishment appeared complete in August 1845, when Lord Stanley first broached the idea of a Crown commissioner to help complete the Company's other purchases, but by the time the commissioner actually arrived in New Zealand in mid-

1846, the agreement between Te AtiawaITaranaki and the Company had collapsed.

Compensation had been paid, and remained adequate to both parties, as agreed.

However, the reservation of pa and cultivations - terms crucial to Te AtiawaITaranaki's consent (to the Releases) but only ever "provisionally" accepted by Col. Wakefield - had been rejected by the Company, requiring their re-negotiation by McCleverty. The extent of the collapse in agreement can be measured by the fact that only one out of five of the cross-claimed occupied areas (reserved in the Releases) remained reserved after the

1847 re-negotiation (see below).

It is important to remember, too, that in refusing to agree to exclude occupied lands from purchase, the Company was, in effect, holding out for the physical removal of

l05Heaphy, 1871 Reserves Commissioner's Report, A24 pp 45-6; Heaphy memo Doc A39 pp 193-201; MacKay 1872 memo A24 pp 69-72, 75-77; Jellicoe A24 p 293. 53 maori from their traditional habitations - requiring the relocation of maori region-wide.

Fundamentally then, to both Te Atiawa/Taranaki and the Company, the 1847 Exchanges represented a profound adjustment of the terms under which the iwi would relinquish customary possession of the region. The Crown continued largely as before, balancing its 1840 Treaty "guarantee" of Te Atiawa/Taranaki's customary possession against its

1840 Agreement "guarantee" of the Company's purchases - albeit under a new

Governor, new Home Government, and new Constitution.

The misinterpretation of these exchanges in Heaphy, MacKay and J ellicoe's official histories probably stems from three sources: first, the outgoing Governor FitzRoy offerred the Company a grant premissed on the agreement even before Commissioner

Spain's Final Report on the matter was filed. So, by necessity, the Company's rejection of the agreement itself took the form of a rejection of FitzRoy's grant. Governor Grey, however, only instructed McCleverty to adjust the "loose exceptions" in "FitzRoy's arrangement" and "FitzRoy's agreement" - studiously avoiding reference to the (to-be­ annulled) grant. Still, both MacKay and J ellicoe portray Grey as instructing McCleverty to adjust FitzRoy's grant.lOO This suggests other sources of their confusion exist: due to extraordinary circumstances, the Native Land Court in 1871 found that the 1839 purchase alone had extinguished title to the region. We will see below, though, that inspection of readily-available documents would have shown that this finding could not be accepted at face value. (see page xz) In the end, perhaps simply the narrow construction of the Treaty's "land guarantee" prevailing in Heaphy's, MacKay's and

lOOGrey A26 pp 169-71; MacKay, A24 p 69; Jellicoe A24 p 293. 54 Jellicoe's time prevented them from properly emphasizing the 1847 Exchanges' continuity with the negotiations begun in 1839.

The Exchanges were executed between 22 March and 1 November of 1847.107 Again, all the principal Te Atiawa/Taranaki settlements participated. In each, maori gave up cultivations reserved in 1844 which upon survey108 - begun 1844 - had been confirmed as also subject to claim by New Zealand Company settlers. In return, maori received from the Crown certain lands depicted in plans attached to the deeds of exchange - some lands already selected by the Company as Native Reserves, some lands marked as

Town Belt, some lands from settlers' claims, and large areas of outlying unsurveyed waste lands.

The Exchanges sought both to complete the agreement between Te Atiawa/Taranaki and the Company expressed in the 1839 Principal Agreement and the 1844 Releases, and to fulfill the 1840 arrangements between Lord Russell and the Company. The exchanges presumed and preserved most of the provisions of the earlier agreements, and supplemented them with uncontested, more clearly-defined reserve areas. In effecting the Exchanges, the Crown accepted as possessions of Te Atiawa/Taranaki, the occupied areas reserved under the 1844 Releases. For their part, Te Atiawa/Taranaki accepted as possessions of the Crown, lands (including many Native Reserves) which the

Crown/Company claimed by virtue of sovereignty, ie. as "demesne" as defined in the

1846 Charter and Instructions.109 Here, Te Atiawa/Taranaki's conditions for relaxing

107Note the Kaiwharawhara deed was not dated, A27 p 109.

108Tonk p 240, Doc A42 P 60.

109WAI 145 A26 P A173, Gov Grey to Earl Grey, 9/4/47 and McCleverty/Grey p DlO; also see below. 55 their customary possession of the region were fully met in the same deeds in which the

Crown's paramount title was first vigorously asserted. Governor Grey described this style of transaction as designed "to extinguish absolutely the native title to the tract purchased, but to reserve an adequate portion for the future wants of the natives."no

Lt.- Col. McCleverty "consider [ed] the original purchase by Colonel Wakefield as superceded by the last arrangements by Governor Grey."111

Hence, seen together, the markers along the track of agreement led to, and were of a piece with, the Crown grant of the region to the New Zealand Company. It was their provisions which almost alone were uplifted onto the plans and schedules accompanying the grant. And it is in the 1848 grant and its plans, that agreement over the various interests in the land was at last meaningfully signified.

nODoc A18 p. 38; GreylEarl Grey 15/5/48 NZC In pp 398-9 in Doc A42 pp 131-132.

1110LC 1/1041 DommettlEyre 3n/50, Doc A37 p 31. 56 A Lasting Possession

We have examined the track of agreement along which the reserves developed, They appeared as the central provisions in that agreement. Here we examine those provisions themselves, the evolving process of setting apart lands as "Reserved" at different points along the path to complete agreement.

From the time of the first encounter between the Company and Te Atiawa/faranaki, there were three camps' perspectives of "reserve" in operation - the Company's, the

Crown's, and Te Atiawa/Taranaki's. In their earliest applicable guises, the Company's notion of reserving land was as a trust estate administered by the Company for the use and benefit of maori chiefs and their families;112 the Crown's earliest notion was the exclusion of occupied lands from purchases;113 and Te Atiawa/Taranaki's earliest discernible notion was the exclusion of then-occupied lands for hapus' continued use.u4

112See 1840 Selecte Committee testimony of Wakefield 13n/40, in A30 pp 18-24 (probably the classic statement of Company reserves plans, virtually worth quoting in its entirety, if space allowed); Ward, pp 32-34; Hutt, pp 42-43. In its 1839 Prospectus, in A33 P 148, the Company intended "to distribute [reserves] as private property amongst the chief families." It is doubtful whether the 'private property' here differed in substance from the trust estate described by Wakefield.

113See, e.g. Normanby/Hobson 14/8/39 confining purchase to districts, the loss of which, would not cause "serious inconvenience" to maori vendors. The principle was uplifted into Hobson's Instructions, prohibitting the Governor from acquiring or granting lands occupied by maori; see 1840 Charter, 9/12/40, Instructions Para. 37 at pp 616-617 of Doc A29. Clause 2 of the NZ Land Claims Ordinance 1841 (Doc A29 P 619) similarly declared all "unappropriated lands" to be Crown demesne, "subject however to the rightful and necessary occupation and use thereof by the aboriginal inhabitants."

114We have found no evidence to support Wakefield's and other settlers' repeated partisan claims that maori understood and agreed to the Company's trust-like 'tenths' scheme. See instead, Pipitea's opposition to the Company's surveyors entering their currently occupied lands by "every violent preoceeding short of bloodshed," 57 Brought together in the efforts to apportion occupancy and ownership of the Wellington region, these broad perspectives - necessarily provisional and vague in isolation - syncretized. The Company's trust-style reserved 'tenth,' of course, was written into the

1839 Port Nicholson deed. We have explained, though, how unlikely it was that maori understood the provision at the time. More certainly, in the first year of settlement the

Company's notion of reserve became mixed with maori and Crown notions. In February

1840, for instance, Colonel Wakefield appointed Dickie Barrett "Agent for the Natives," to serve as a medium in disputes and in the allotment "of Native Reserves in lieu of the land now occupied and cultivated by them." However, after the fearsome opposition encountered barely a fortnight later to his surveyors disturbing pa and cultivations at

Pipitea, Tiakiwai and Kumutoto, at the allotment of lands in August 1840, Captain

Mein-Smith selected lands for Native Reserves in deference to lands occupied and cultivated by maori.ll5

Very early, the Crown's notions of reserves took on aspects of the Company's. By

August 1840, favourably impressed by E. G. Wakefield's testimony, the Select

Committee on New Zealand had recommended a scheme of "tenths" based upon the

WakefieldlDirectors 10/4/40 in C0208 pp 14-15. Wakefield blamed early opposition on Williams' Thorndon purchase; however with Miller, Early Victorian New Zealand, p 48, we have found it more plausible that dissent arose from physical disturbance of maori land uses; as Wi Tako later expressed it, "We did not object to the Europeans taking the land - we did not like them to interfere with our plantations." See Charles Izard's notes on Wi Tako's 1871 NLC testimony, in Doc A42 p 173. Note below, protection from encroachment was Te Atiawaffaranaki's first request to Governor Hobson in 1841; HobsonlRussell 20/10/41 in A30 P 102 and Clarke sen. Report [ca 1841] in A30 P 105. See also Childs' testimony to 1844 Select committee 2n/44, in A31: Qn. 4238 p 121, Qn. 4405-4408 p 129, Qn. 4559-60 p 135, Qn. 4615 p 137.

115"In lieu of' see WakefieldlDirectors 27/2/40 in CO 208 P 11; "In deference to" see Molesworth testimony 25/6/44, Qn #3544, in A31 P 108 and Kettle testimony 20/6/44, Qn #3352-3359, in A31 p 97. Emphasis mine. 58 New Zealand Company's notion.116 This recommendation was incorporated into Lord

Russell's arrangement to charter the New Zealand Company in November of that yearY7 Russell's further instructions of January 1841, however, show the Crown's initial understanding of reserving land remained, despite having now mixed with the

Company's: he first instructed Hobson that lands "essential to the well being of the

natives should be regarded as inalienable, even in favour of the local Government," and

then instructed Hobson to set aside "for promoting the health, civilization, education

and spiritual care of the natives," 15-20% of proceeds of sales of lands which the Crown had acquired from maori.118

Te Atiawa!Taranaki's first notion of reserves - securing their occupied lands from

pakeha settlement - was partially affirmed in Wellington at the same time as the

Company's and Crown's notions mixed. In August 1840, Colonial Secretary and Chief

Magistrate Willoughby Shortland made the first visit of a Crown official to Wellington.

During Shortland's visit, on the 26 August 1840, Captain E. Daniell attempted to build

a house close to Te Aro pa, and Te Aro maori interfered. A skirmish ensued, and

coming upon the scene, Shortland (and his soldiers) found the pa "full of armed

Europeans, but the natives ... quiet and unarmed." On the 29 August, Shortland settled

the dispute by prohibitting armed assembly, and promising the Crown's protection for

Te Atiawa!Taranaki habitations, providing that "until the question of title was decided

116A30 Report of Committee, pp 12-13.

117 A10(a) Doc 7 p 3.

118Russell/Hobson 28/1/41, A30 P 56. Peter Adams noted that "when discussing the setting aside of reserves, [Lord] Russell took it for granted that 'in dividing public from private land, the land now occupied and cultivated by the aborigines will be left in their possession.'" Adams p 180, in Doc A42 P 78. 59 by a Land Commissioner or the Governor, no one was to occupy the land without first getting Shortland's permission. ,,119

A year later, Te Atiawaffaranaki's "excepted-from-purchase" notions of reserving land were more fully confirmed against the Company's "in-lieu-of' notions. Incidents had continued (surrounding survey and settlers taking possession of lands) until Hobson arrived in Wellington in the "Victoria" on 19 August 1841. Immediately, Hobson was met by Maori at Barrett's Hotel requesting protection from settler encroachment.120

Hobson responded with his pledge to protect Te Atiawaffaranaki "in the possession of

their pas and cultivated grounds, unless it is proved that they have sold them."121 He further obtained Wakefield's assurance that the Company would not "interfere with the

site of any pah actually occupied by natives, or with any place held sacred ... or with any

land hitherto unsold."122

A fortnight later, Sub-protector Clarke wrote to Wairarapa at Pipitea:

Friend Wairarapa - you ask for a letter from the Governor, that the white man

may not drive you from your pas, or seize your cultivations.

11~onk pp 123 & 152, in Doc A42 pp 40 & 43. See ShortlandlHobson 29/8/40, A30 P 60. Shortland's agreement went further still, claiming for the Crown all the unoccupied land near Te Aro. The main effect this transaction appears to have had was increasing the value of Shortland's own Town Acre, #120, sold to G. B. Earp - June 1841 for 250 pounds - probably 2.5 times what Shortland paid for it, and far below its value in 1844 after Te Aro's exclusion from the 1839 sale had been amply confirmed. See Earp testimony 18/6/44, Qn. 2750-2757,2765, and 2771-2773 in A31.

12°HobsonlRussell 20/10/41 in A30 P 102 and Clarke sen. Report [ca 1841] in A30 p 105.

121Hobson/Secretary State 13/11/41, in A 26 P A167.

122WakefieldlHobson 24/8/41 in A29 pp 306-7; 60 Listen to the word of the Governor: he says, that it is not according to our laws

that you should be driven, if you do not agree to go.

This letter is from the Governor .123

Hobson had appointed Wellington's Sub-Protector, Edmund Halswell, to be

Commissioner for the Management of Native Reserves on 20 July 1841 - without pay.124 The Crown's intentions for reserves now clearly miXed between occupancy, rental/trust fund, and maori service base, Chief Protector Clarke sent instructions to

Wellington's "Committee to decide on the acceptance of tenders for Native Reserves," comprising Sub-Protector Halswell, Chief Magistrate Richmond, and Crown Prosecutor

Hanson. Hobson's pledge to respect current occupation received pride of place: "No

allotment must be offered for competition the possession of which is disputed by the natives." No lease was to exceed seven years. Funds were to be used solely for

"Education and Religious instruction of the natives," "fitting up of the... churches" at Te

Aro and Pipitea, wages for a native teacher, wages for a master for a Native Day

School, and for a dispensary and assistance for the sick.125

The seven-year limit on leases stemmed from Governor Hobson's singular awareness of

the weakness of the Company's claim to Port Nicholson. He was concerned that the

123The letter was subsequently published. Tonk pp 152-53, in Doc A42 pp 43-44, citing Wakefield, Adventure, p 385. See other translation at Clarke/Wairarapa 10/9/41 in A29 P 310.

124HobsonlRussell 7/8/41 in A30 P 100; Wakefield readily characterised Hobson's Committee as existing solely "for the purpose of letting some of the native reserves." See WakefieldlDirectors 12/10/41 in A29 P 309.

125Clarke sen/Halswell 28/9/41, in lAl volume 1 pp 93-94. A post-script allowed funds for stationery and office rents. For history of the day schools, and early debates over teaching in English versus in Maori, see C. J. Parr, "Maori Literacy 1843-1867," in J.P.S. LXII (1963) 211-234. (Not submitted in evidence) 61 Committee's actions should not tie up Te Atiawaffaranaki "reserves" which, given the unsettled state of titles regionally, might never become reserves. Soon after these initial

Crown interventions, Wakefield understood the Governor to desire "that the Company should have nothing to do with the reserves except as far as paying the salary of the

Commissioners."I26 He was probably right: on November 11 1841, Halswell reported to England that "in the frequent conversations I have had with His Excellency the

Governor, he always appeared to treat the reserves as the absolute property of the natives."127

Hence, from November 1841 to April 23 1842, Hobson would not allow the lease of reserved section 514 to Barrett - at first because it was linked to Barrett's attempt to claim the adjacent house and land for his wife and himself. Hobson flatly "dispute[ d] the right of the agent of the Company to dispose of any reserve." Later, he cautioned against the lease because "a commissioner is about to investigate the Port Nicholson claims, [so] no contracts should be entered into with reference to any native reserve, the title to which is involved in any doubt." Wakefield reported that the Company's

intentions "in making and managing the reserves have been wholly frustrated (it could

seem purposely) by the orders given to Mr. Halswell."I28

It is noteworthy that Barrett's lease was soon approved, effectively sanctioning Barrett's use of the site in his capacity as interpreter/mediator for the Company, the Hotel's

126WakefieldlDirectors 11/2/42 in CO 208 volume pp 46-47.

127HalsweWCompany Directors 11/11/41, A29 P 487. Hobson told Halswell his commissionership was a "nullity, because the Company had no land to reserve." See Halswe11!Lyttelton 29/4/46 in A32 p 156.

128WakefieldlDirectors 11/2/42, CO 208 pp 48-49. 62 payment of rents to be used by the Crown to benefit maori, and Barrett's own ties to the land through Te Atiawatraranaki. The whole embodied precisely - and probably in a way understandable to maori - the emerging syncretized notion of "reserves" cas sites for establishing services for maori, as means for generating funds to benefit maori, and as secured customary habitations.129

The Company begrudgingly allowed their initial reserves notions to be further compromised - first by maori "occupation" notions, now backed by the Crown, and then by the Crown's own "service" notions: so "in compliance with Governor Hobson's express commands that natives were not to be dispossesed of any of their pas or potato grounds," Mein-Smith tried to select such lands as rural reserves in the 1842 allotment of Country DistrictsYo A week later Wakefield complained to his Directors that although the Company still owned the reserves,(!) "Governor Hobson evidently intends to dispose of the funds that may arise from the[ir] leasing."l31

At this stage, though, any link between rental/trust funds and reserves remained very tenuous - and almost certainly not yet apparent to maori. In late 1841, Halswell persuaded maori to be vaccinated for small pOX.132 But much as Hobson desired

"Native Hospitals" for the larger settlements, in May 1842 he told the Colonial Surgeon in Auckland that one could not "be formed at Wellington until the Native Reserves

129CoI Sec Shortland/Wakefield 16/12/41, A29 pp 488; Col Sec FreemanIHalswell 23/4/42, A29 P 495.

13°"Compliance" see WakefieldlDirectors 5/11/41 in A29 P 309; selections see WakefieldlDirectors 5/2/42, CO 208 P 43.

l3lWakefieldlDirectors 11/2/42, in CO 208 pp 46-47.

132Halswell!Directors 11/11/41, A29 P 485. 63 become productive."133 By August 1842, several hundred maori had visited

Wellington's Colonial Surgeon, Dr. Fitzgerald, at his quarters in one of the Company's immigration buildingsY4 The only apparent link between Fitzgerald's practice and

Halswell's management (other than Halswell's submissions of Dr. Fitzgerald's data

regarding maori health) was Hobson's authorisation of upto twenty pounds of reserves

rents for medicines -- and that seems never to have been collectedYs

133Hobson/Col Surgeon Johnson 20/5/42, in lAl volume 1, pp 14-15.

134Halswe11!Wakefield 2/8/42, CO 208 pp 67-69.

135Hobson/Fitzgerald - 3/5/42, in lAl volume 1 p 11. Not collected, see Col Surgeon/Col Secretary - 9/42, in lAl vol 1 P 9. 64 The Company and Crown Build a Trust

From about mid-1842, the Company and Crown each moved away from the situation at hand, and toward erecting legal mechanisms for establishing a Native Trust, anticipating the day when some of the unoccupied Company-selected reserves might be found to have been purchased.

At the same time, maori appear to have become more focussed in their notion of reserves as occupied lands - secure against encroachment and excluded from sale. They openly opposed the growing Crown and Company linkage between reserving land and providing public services for maori. Of course, from about May 1842, their attention

(and conception of reserves) became increasingly fixed on Spain's inquiry into the

Company's purchase claimsY6 And after about February 1843, maori concern centred on the unfolding purchase negotiations between their Protector and the

Company's Principal Agent.

Ironically, then, at about the same time the primary purchase agreement defining reserves was struck (the 1844 releases), maori and pakeha preferences and understandings of reserves had actually diverged. The offical "completion" of agreement reached in 1844 had an absent centre.

We noted above that the Company's favourable impression upon the 1840 Select

Committee brought about Lord Russell's instructions for administration of reserves according to the tenor" of the Company's trust-type scheme. The Company had not

136Halswell/Wakefield 4/6/42, A29 P 492. 65 stopped at Lord Russell, though. At the same time as it was negotiating its Charter with Lord Russell, it dangled the carrot of a 5000 pound loan to the newly-appointed

Bishop of New Zealand (Selwyn) in order "that by some sufficient act of Government, the property in the reserves shall be placed under efficient protection and management. ,,137

This push from the Company, accompanied by the pull of Russell's 1840 agreement, resulted in "an arrangement made between the Home Government and Company

[whereby] the control of the [Company-selected] reserves passed to the Governor, the

Bishop of New Zealand, and the Chief Justice."138 Hence, on 18 June 1842, in the same letter in which he sanctioned the syncretist arrangements for Barrett's Hotel -

Halswell's first real success as Commissioner for the Management of Native Reserves -

Hobson informed HalsweIl that "the trusteeship of all native reserves vests" in the

Bishop and Chief Justice. He commanded Halswell to suspend operations, and prepare a report "which shall close the proceedings of yourself... for the management of the native reserves."

Probably still regarding the Company-selected reserves "at present as the property of the

Company,"139 Halswell felt that he "should not willingly relinquish the management of the reserves." He forwarded Hobson's command to Wakefield, stating that he was awaiting instructions from the Company Directors, and that meanwhile he would

"continue in the plan... hitherto adopted" - fencing the Company-selected reserves,

137Secretary of CompanylBishop 30/11/41, A29 P 458; also p 462.

138Jellicoe A24 p 284.

139Halswell/Secretary of Company 11/11/41, A29 P 487. 66 coaxing maori onto them "in lieu of' their current habitations, and collecting timber from them for maori.140

Having watched the situation unfold from afar, though, the Company Directors had already decided not to continue paying Halswell to manage lands which (after completion of purchase) would be claimed by the Crown. Wakefield received notice to fire Halswell the 29 August 1842.141

A month after informing Halswell of the planned trust, on 26 July 1842 Hobson notified

Chief Justice Martin. He explained the plan: after "the reserves made by the Company shall have become legally vested in the Crown," he would submit a Bill to transfer them and any funds arising from them in trustees - the Bishop, the Chief Justice, and the

Chief Protector of Aborigines. He described the general purposes of the proposed trust. 142

By mid-September, Bishop Selwyn had visited Wellington in his capacity as trustee-to- be, and re-appointed Halswell to be his agent in Wellington.143 He soon added Henry

St. Hill to be agent for Wellington's Country Reserves (and for all reserves at

Taranaki).144 Ever hopeful, Wakefield wrote home that the terms for leases had been

140"Unwilling" see Halswell/Wakefield 12/8/42, A29 P 497. Halswell/Wakefield 10/8/42, A29 P 495, enclosing ShortlandlHalswell 18/6/42, A29 P 496.

l41Ward/Wakefield 29/8/42, in CO 208 volume p 348.

142Shortland/Martin 26/6/42, A29 P 498. Apparently, Bishop Selwyn was appointed Trustee similarly "by letter of His Excellency the late Governor Hobson." See NM 8/48/1137 enclosing Selwyn/St Hill 1/11/42 in A40 P 298.

143WakefieldlDirectors 15/9/42 A29 P 499.

144Selwyn/Shortland 19/12/42, A31 P 282. 67 extended (and tenders invited for 7, 14 and 21-year leases), and that the Bishop would soon have the reserves leased to "realize a sufficient sum to warrant the loan contemplated by the company."145 Wakefield no doubt dreamed still of leases and capital improvements suitable for the amalgamation of chiefs and their families.

145Wakefield/Directors 15/9/42 A29 P 499. 68 The Trust is Lost

One of the few points of agreement between Halswell's and Clarke's reports at this time was the urgency of providing health services for Te Atiawarraranaki. Pulmonary infection was endemic. Deaths outnumbered births. Tiakiwai was nearly deserted,

Raurimu was entirely.146 Company and Crown could not, however, agree on how to fund the needed care.

Wakefield urged the Bishop to take up the Company's 5000 pound loan on the

Company-selected reserve lands - in part to enable a hospital to be built.147 By

December 1842, though, it had become clear that the Bishop would not take up such a loan. He believed

"no money can be borrowed upon a condition of power of sale over lands the

revenue of which must be precarious, and which, by the nature of the trust, ought

ot be inalienable, and the power of foreclosure is annulled by the Ordinance of

the Colonial Legislature for the regulation of mortgages."148

The Bishop was soon joined in his assessment by Shortland and FitzRoy.149 In lieu of the Company's loan, the Bishop contented himself with the temporary use of the emigration house, and applied for a grant from the Government in accordance with the

146Halswe11!Wakefield 4/6/42, A29 P 493; Halswell/Wakefield 4n/42, A29 p 494. Clarke sen. 4/1/43, A31 P 218; Clarke sen. 15/2/43, A31 P 495.

147WakefieldlDirectors 15/9/42 CO 208 P 499.

148Bishop/Shortland 19/12/42 in A31 p283.

149Shortland/Stanley 29/12/42 in A31 P 281; and later, FitzRoy/Stanley 1/6/43 A31 P 283. 69 proposals to devote 15-20% of accruals from sales of surplus lands. 150 On the last day of 1842, he accepted a loan of 100 pounds from the Company, 89 pounds of which went to spruce up the medical rooms. Racial tensions were so high by then, the Bishop later credited even this small measure with "the diminution of the need of military expenditure. ,,151

Wakefield still complained bitterly; he accused st. Hill of a "want of a careful and energetic administration," and of "letting the reserves indiscriminately and without reference to the wants and wishes of the resident natives respecting lands for cultivation." He argued that the reserves

"should be managed ... by someone who would make them the means of bringing

the two races into friendly contact and of raising funds for the civilisation of the

rising and future generation of the Natives."

In sum, the Company's plan had been "lost sight of' by the Bishop.1s2

Here, a diabolical triangle formed amongst the three pakeha players involved - the

Crown, the Company, and the Trust. From late-1842 to mid-1843, the Company's luminaries complained that the reserves were languishing under the Trustees and their agents. The Trustees complained that the reserves were straight-jacketed by the

Crown's Ordinances and its Sub-protector's determination to hold Company-selected

lS0Grant, see Wakefield/Directors 23/12/42 in CO 208 P 79; Surplus, see Bishop/Shortland 19/12/42 in A31 P 283.

lSlLoan, see receipt by st. Hill 31/12/42, in A40 P 269, and Bishop's repayment of balance of 100 pounds, Board of Management/Colonial Secretary 7/12/49, in A40 pp 238-239.

l52Co 208 Wakefield/Directors 23/12/42 in CO 208 pp 79-80. 70 reserves available for maori occupation.153 Crown officers complained that due to the

Company's bad purchase and its pulling out of negotiations in May 1843, the Trustees could not be freed-up (see below). The ·Company, of course, blamed the whole "land question" - including even the Company's financial collapse - on their "opponents'" interpretation of Lord Russell's 1840 guarantee.154

And so the buck passed.

In January 1843, for instance, Lord Stanley stated that the Company-selected reserves were "proportionate parts of the lands sold by the Natives," and as such, were already

"conveyed to the Government, to the benefit of which the Natives are entitled in addition to the continued enjoyment of such lands as belong to them and they have not sold."155 At the time of Stanley's remark, though, almost all of the reserves selected

(outside of those in Ngauranga and most of Lower Hutt) were regarded (e.g., by the

Land Claims Commissioner) as still "not sold."156 By Stanley's own reckoning then, they had not yet belonged to the New Zealand Company, and therefore could not have been conveyed to the Government or vested in the proposed Native Trust.

153Sub-protector, see Clarke jun/Clarke sen 1/4/44 in Crown Law volume of extracted ATL Clarke letters 1842-1844, p 66-67. Besides Clarke jun., it was the mortgage Ordinance, lack of rents, and lack of legal authority - not the inalienability of the Company-selected reserves - which tied the Trustees' hands. See Bishop/Shortland 19/12/42 in A31 P 283 and Bishop/Dommett 10/12/48 in A40 P 271. Unlike the Company, the Crown did not regard the unoccupied Company-selected reserves as strictly inalienable. See e.g. Freeman/Clarke jun. 27/1/43, in A31 P 181, and Clarke/Wakefield 27/2/43 AI0(a) Doc 5 p 32. This no doubt formed another point of dissent between Company and Crown over reserves. See Directors/Stanley 25/1/43 in A31 P 168.

154Blame, see e.g. Somes/Stanley 29/2/44 in A31 P 298.

155Hope/Somes, A24 p 67.

156E.g. Shortland(via Col Sec)/Fitzherbert 16/11/43 in A31 p 319. 71 The triangle probably appeared most diabolical for those most closely involved with the land itself. One imagines Edmund Halswell pinching himself upon reading in his local paper, lino such thing as a Native Reserve can be said to exist, and consequently, no such officer as Commissioner of Native Reserves."157 Similarly for Clarke: although

Wakefield insisted that Clarke consider the value of the Company-selected reserves in his proposals for compensation, Clarke at the time could hardly conceive of hostile

Halswell showing him his reserves accounts.158 Similarly for Henry St. Hill: his accounts of May 1844 show him struggling to overcome his lack of clear guidelines or authority. In 1843, he added four more leases of Town Reserves to Halswell's lease of section 514: he successfully restored Halswell's lease of section 636 to Bolton, but his administration of section 487's lease was contested by Wi Tako, his lease of 637 was soon disclaimed, and his last lease of the remainder of section 514 had neither written agreement nor rents paid. In the same year, St Hill added five Country Reserves leases to Halswell's lease of Ohiro 19, 21 & 25 (sic - 26) - though this first lease still had no written agreement or rents. Of the additions, the leases of Section 16 and Lowry

Bay/Wainuiomata 1 & 4 appear to have been fairly sound, but the Hutt leases of Part section 1 and of Section 58 were both disputed by maori.159 In short, the ground level administration of reserves manifested the confusion reigning above it.

l57New Zealand Gazette and Wellington Spectator, Saturday, March 111843, p 15 in Crown Law volume of extracts.

l58Wakefield/Clarke 1/3/43 in A10(a) Doe 5 p 32. Clarke jun/Clarke sen 4/4/43 in Crown Law volume of extracted ATL Clarke letters 1842-1844, p 52.

l59Hill accounts 13/5/44 in Volume 2 of Crown Law 1A1 excerpts, pp 364-365. Dispute of Town Acre 637 see NM8/1852/1379 in A40 pp 463ff. Dispute of Hutt Section 58 see NM 8/47/565 in A40 139-141. "Fairly sound," see Dick's 1845 dispute with maori planting at Wainuiomata: DicklRichmond 8/9/45, NM 8/45/366 in A40 pp 23- 25. The sections are not specified in Dick's 1845 complaint, but as he later farmed section 4, he may have already been White's subtenant in 1845. 72 Company, Crown and Bishop remained tangled in their triangle until mid-1844.

Wakefield partially freed the Company in mid-1843, by suspending purchase negotiations, eliminating any prospect of the Crown acquiring a title to the reserves so as to vest them in the Native Trust. The day after the first releases were signed, 27

February 1844, Governor FitzRoy told Bishop Selwyn "that he did not recognize any

Trustees of Native Reserves." Accordingly, the Governor directed rents from the few leased Port Nicholson reserves to be paid to the Land Commissioner or Protector

Clarke - and specifically not to the Bishop's agent, Henry St. Hill. FitzRoy told St Hill to "await the settlement of the Land Claims in [Port Nicholson] previous to offering any more of the Native Reserves on Leases.,,16o In mid-1844, the Trust and the Crown each stepped further away from the rivalry by reducing their involvement in medical services to maori: both announced their inability, under present circumstances, to supply

"any but the most unavoidable expense" of Dr. Fitzgerald's practice.161

In past accounts, the Crown's early, ineffectual fiduciary arrangements for Te

Atiawaffaranaki's reserves have been treated as simply the first efforts of the Crown to assume the Company's trusteeship of the reserves - or more simply, to assert control over the reserves.162 More precisely, though, the Crown was mainly concerned to protect the proposed reserves from encroachment by settlers, and from the claims of the Company - not Te Atiawaffaranaki. Crown and/or Trust Ifvesting" at this stage

160Not recognized & Barrett's rent: NM 8/48/1402 Selwyn/Dommett 10/12/48 in A40 pp 275 & 274; no leases: NM 8/48/1137 St Hill!Grimstone 31/12/47 A40 P 291.

161Fitzgerald/Secretary for the Southern District 24/6/44, ref. to Gov'r 15n/44, and FitzRoy note 10/8/44; all in 1Al/44/1694 in 1A1 volume pp 95-96. Government expenditure in all but four accounts increased 1843-44. Medical, though, dropped from 111 pounds in 1843 to 79 pounds in 1844. Accounts at A32 p 131.

162"Assert" see judgment in Regina v Fitzherbert, A7(b) p 29; Jellicoe A24 pp 283- 284 and 290-291. 73 amounted practically to only eleven leases of reselVes - six of which were informal, disputed by maori, or soon disclaimed by the lessee. The trust-fund notion of reselVes had only 69 pounds of rent to show for itself, ear-marked for Te Atiawatraranaki medical bills, but probably never paid. The Company's notion of settling maori rangatira and maori services on the reselVes had fared little better, despite Halswell's persistent efforts at sign-posting, "fencing, improving, and placing the aborigines on their several reselVes." Prior to 1843, only Moturoa and Porutu had made way for settlers by removing cultivation activities to Company-selected reselVe areas, and Barrett's was his only really successful lease.163

The Crown certainly saw the reselVes as a means to foster maori "advancement in the scale of social and political existence.,,164 But more, the Crown's early reselVes actions present it in its' "protector" role - relished by Hobson and FitzRoy alike, especially viz. the Company - merely "holding" the res elVes for Te Atiawatraranaki's own occupation and use.

As such, the Crown's early intelVentions in "Native ReselVes" belong with comparable

Crown actions from the Treaty's pre-emption provision and the Land Claims Ordinance

1841 to the Native Lands Purchase Ordinance of 1846. A cautious view of this 1842-

1844 period - when the Company-selected reselVes' titles were most clearly disputed -

163Selwyn/Shortland 19/12/42, A29 pp 465-66; "sign-posting, fencing," etc. see Halswell reports to Secretary of Company 10/2/42; Halswell/Wakefield 4/6/42, A29 P 492, and Halswell/Wakefield 10/8/42, A29 pp 491 & 495. "Primary focus," see ego Halswell's response to the fire at Te Aro in early 1842, Halswe11!Secretary of Company 10/2/42 A29 P 491. Removals, see New Zealand Gazette and Spectator 16/12/43, in Crown Law volume of extracts 1842-44, p 29.

164"Advancement," 26n/42 Col Sec/Chief Justice, A29 p 498, and 23/2/44 Minutes in All Appendix p 112. 74 cannot ignore the reselVes' possible future occupation and/or self-management by Te

Atiawarraranaki.165

16524/12/1842 Col Sec./Halswell, A29 p 489; 27n/42 p 498; motive generally see Hobson/Secretary of State 13/11/41 enclosing Clarke Report, Doc A29 pp 351-354; failed see Skinnon, pp 18-19 in Doc A42 pp 144-145. 75 Te Atiawatraranaki Lose Trust, But Gain ReselVed Lands

Recalling this early period in 1871, Mohi Ngaponga remarked, "Who would know what was written by Europeans?"l66 In this, he gives us a vital principle for interpreting events of this period. In an oral culture such as Te Atiawarraranaki's in the 1840's, on- the-ground events like building, cutting boundaries, and taking physical possession of lands, must be presumed generally to convey greater meaning for maori than written arrangements - especially mere memoranda between various officials.

The traditional significance of physical occupation, clearing and cultivating of land hardly needs to be stressed: it is almost formulaic in Old Land Claims (and later,

Native Land Court) testimony to define land rights in such terms. Local examples include the story of Wharepouri and Ropiha Moturoa's long rivalry over cultivations which Wharepouri had secretly calVed from the bush in far away Wairarapa - and stories of Ohariu/Wellington area alliances built on gifts of produce and of cultivation sites.167

To understand Te Atiawarraranaki's traditional perspective of these forms of physical occupation as it operated in Wellington in the early 1840's is to grasp their notions of

"reselVes."l68

166C. Izard's notes of Mohi Ngaponga's 1871 NLC testimony in R. v Fitzherbert, Doc A42 p 167.

167see e.g. Ropiha Moturoa's testimony in Thomas Barker's Land Claim OLC 1/635 in Doc A42 pp 204-205.

168We will not attempt to present whakapapa-based and/or spiritual aspects of the traditional view. We are only able here to present traditional functions of the land. 76 As the pa - or more properly, kainga169 - on the Wellington· side of the harbour occasioned most dispute, we will focus first on them. These pa, at Kaiwharawhara,

Pakuao, Tiakiwai, Raurimu, Pipitea, Kumutoto and Te Aro, varied enormously in character. Probably the central thing to bear in mind is not to be rigid in one's picture of them. None was the classic, neatly enclosed hilltop fortifification. None was the bastion of a sole hapu or even iwi. And in the traditional economy, none was pre- eminent. 170 All appear to have been linked by tracks to Ohariu - the gateway to the coast. Kaiwharawhara, Pipitea, Kumutoto and Te Aro were all valued for their coastal resources and tauranga waka.171 There were burial sites at both Kumutoto and Te

Aro kainga.172 And in this cross-roads region of Aotearoa, Raurimu and Tiakiwai were essential "visitors' pa."173

The boundaries of each pa at the time of pakeha settlement are difficult to ascertain certainly. For instance, despite early pictures and surveys showing it on the beach (the corner of Davis and Thorndon Quay today), at least two respected writers have

169A. Ward p 5, Doc A43 P 296.

17°Te Puni's Pitone was probably pre-eminent region ally. Being headed by rangatira of higher descent, Kumutoto and Pipitea probably shone somewhat above the others on the Lambton side. But we are concerned, as Spain was, with the self-conception of the various pa, whose residents knew the peculiar strengths and particular value of their own villages.

171 1844 Select Committee Minutes in A31: Earp testimony 13/6/44 Qn 2178 p 54: "One great reason of the natives not being willing to give up the pahs was, that the water frontage of the other parts of town had been selected and allotted out, and the natives were afraid that...they should not have a landing-place to use for their canoes, which was necessary for them." See also Child testimony Qn 4267 p 123.

17ure Aro: Halswe1I!Wakefield 4/6/42 in A29 pp 493-494. Kumutoto: Wi Tako speech in A39 P 128. Both: 1844 Select Committee Minutes in A31: Child testimony 2n/44 Qn 4269 p 123.

173New Zealand Gazette and Spectator Crown Law volume of extracts, 4/10/43 at p 25. 77 concluded that Pipitea kainga centred on Haukawakawa flat (now the corner of

Mulgrave and Pipitea St).174 This is plausible, as an early settler estimated that Pipitea kainga initially sprawled over five acres - easily reaching from the beach to the flats.

Likewise, Te Aro pa initially covered five acres, before being partially destroyed by a fire started at a neighboring settler's house in 1842. Kumutoto, also destroyed by fire in

1840, initially covered about two acres. Tiakiwai was estimated to occupy about a half- acre. 175

Te Atiawa/Taranaki's cultivation method was that of burning off a section of bush, immediately planting amongst the stumps, and continuing to work the clearing until the soils were worn out. One of the best illustrations of this method is given by William

Mein-Smith's 1840-41 sketch of Lambton Harbour, looking out over Raurimu and

Haukawakawa and Pipitea pa, clearly showing the charred remains of the larger trees. 176

After two to four years, maori would then cultivate another cleared area for a time, allowing the soil in the first area to regenerate.177 Europeans definitely understood

174G. Adkin Map IV and p 65, Doc A42 pp 235 & 231a; L. Ward p 39, Doc A42 P 214. Present-day descendants of residents and rangatira of Pipitea pa have repeatedly and emphatically told the author that Pipitea pa did not have precise boundaries, or a neat centre at either the beach or the flat.

175Te Aro fire Halswe11!Directors 10/2/42 in A29 P 491, and with Wakefield/Spain 22/8/42 in A33 P 85. G. B. Earp testimony to 1844 Select Committee 13/6/44, Qns. #2162-2164 in Doc A31 P 54.

176See e.g. Heaphy, Narrative of a residence in Various arts of New Zealand... London:Smith, Elder. 1842, pp 74-75. Thorndon cleared, see Mein-Smith "Lambton Harbour and Mt. Victoria from the Tinakore," ca. 1841, Turnbull Drawing and Prints Collection (no number), in A43 P

177McCleverty report 4/47 in Turton Epitome, A26 p Dll. 78 in the 1840's that "the titles of former cultivations are remembered and maintained by their descendants.,,178

The area of Company-selected reserves called Raurimu and Haukawakawa (later taken

to endow Wellington Hospital and Wellington College) had been so burnt off and

cultivated prior to pakeha settlement and in the early 1840'S.179 As such, it was

definitely a "cultivation," and "occupied" by both Crown and Te Atiawaffaranaki

standards of the early 1840's. Most of Wellington town had been so cleared, with so-

called "vegetable production" apparently focussing upon the hills versus the fern-covered

flats. 180

Extant descriptions of cultivations in this region show that cultivation areas came in all

sizes - small, medium and large. Many reports give the impression that maori carved

small cultivations of a few acres in size from the densest bush, often on remote hillsides.

The Tinakore hills and the banks of te Heretaunga were both apparently dotted with

178Martin, "Pamphlet," 1846 in Turton p F18 in Doc A42 P 17.

179Ward, Early Wellington, p 308 in Doe A42 p 220, citing NZ Journal 10/3/1849; also Adkin pp 60, 75-6 in Doc A42 pp 231-233. WakefieldlDirectors 27(2/40 in CO 208 P 2. WakefieldlRichmond 13/4/46, C0208 P 390 refers to the "excellent town acres in a block at the back of their pa, which they formerly cultivated with success."

180New Zealand Gazette and Spectator in Crown law volume of extracts, 30/8/43 at p 23. In 1844 Select Committee Minutes in A31: Kettle testimony 20/6/44, Qn 3123- 3125 P 88; Molesworth testimony 20/6/44, Qn 3436 p 101. It is hard to gauge the real maori preference for hills or flats: settlers struggling to gain possession of the flats would not have testified to any maori preference for those same flats. However, the generally sympathetic Hanson (below) seems to corroborate their testimony. Te Aro rangatira specify "cultivation grounds on the hills" in their letter on reserves to FitzRoy 10/8/43, in A32 P 12. 79 such plantings.181 Wharepouri and Moturoa seem to have fallen-out over this sort of treasured "private patch."

One finds reports of medium-sized clearings and plantings - probably worked more by family groups and/or teams of slaves - high on north-facing slopes of many of the hills.

Examples abound: Kumutoto's cultivations near the Meteorological Station (about ten acres);182 Te Aro's "favourite garden grounds" at Polhill Gully (about 35 acres) and apparently Mt. Cook (about 30 - 50 acres); Te Aro's plantings at Kaipakapaka/Ohiro

19 & 21 (approximately 25 acres);183 and Tawhitikura's (necessarily south-facing) 25 acre plantations at Korokoro & Lower Hutt.l84

Finally, an excellent 1843 map survives of the traditional "gardens" in the unsurveyed area of Ohariu. It shows two "very large gardens" between Ohariu and Ohaua covering three-to-five hundred acres each. There were also six gardens of approximately 100 acres each abutting the well-worn track which linked the harbour to the coast.185

Kemp reported in 1850: "Originally the population of Ohariu was numerous and was the

181Carved, see 1844 Select Committee: Molesworth testimony 20/6/44, Qn 3434-3436 in A31 P 101. WakefieldlDirectors 4/12/40 in CO 208 pp 27-28. Heretaunga, see Parks' Field Books #42-49 (indexed).

182See McCleverty's plan, AlO(a) Doe 3 p 29.

183New Zealand Gazette and Spectator 4/10/43, in Crown Law volume of extracts 1842-44, p 25.

184See e.g. plan by C. W. Lynn, ca. 1865, National Archives aafv997/w20 (no copy submitted).

185Fitzgerald, "Sketch of Country Sections in the Vicinity of Port Nicholson," January 1843; National Archives aafv997/w5. 80 principal landing place for all canoes visiting Port Nicholson from Wanganui, Otaki,

Queen Charlotte Sound, Nelson and other settlements in the Straits."l86

Ngati Tama living at Kaiwharawhara, Tiakiwai, and Ohariu - intermarried with

Wanganui and Ngatiawa187 - appear to have played a "broker" role between iwi of the coast and harbour. They served as kaiwhakarite of the kainga at Raurimu and Pakuao, often filled with visitors from WhanganuP88 In late 1843, Ngati Tama from

Kaiwarawara, together with maori from Porirua and Wanganui, led the way in shifting from Wellington to the Hutt - apparently initially without opposition from Tawhitikura or settlers.189 Hence, Ngati Tama's "very large gardens" at Ohariu had probably swollen prior to 1843, like malls on the motorway, due to their closeness to a major linkage between population centres.

These large cultivation areas, therefore, are of interest in helping understand the traditional regional economy. But further, they present a probable link between clearing and cultivation which differs from that for small and medium-sized plantings. Given that all plantings (regardless of size) must periodically be abandoned to restore the soil, and given the difficulty of cultivating several hundred acres all at once using traditional

186Kemp report 1/1/50 in A33 P 129. Note, Ohariu having been one of the pa most rapidly emptied by disease and migration, by 1850 the cultivations were IIby no means extensive. "

187Kemp Report 1/1/50 in A33 pp 129-30. Note, "Ngatiawas, who originally came from Poutama" on p 129 is a misprint; Ngati Tama came from Poutama - see p 130. Their broker role perhaps exposed them to disease, as they appear to have suffered a higher mortality than other pa.

188New Zealand Gazette and Spectator 4/10/43, in Crown Law volume of extracts 1842-44, p 25.

189We will discuss Ngati Tama's "broker" position further in assessing the impact of the 1845-46 war on the reserves. 81 tools and work methods, it is probable that the Ohariu "cultivation" areas were in fact largely "clearings" with medium-sized plantings rotated within them. Near a juncture used and known by iwi who not only traded but who also sometimes fought, the enormous clearings/cultivations between Ohau and Ohariu could also have served as

"buffers" against ambush from the rear of Ohariu pa - safer than having dense bush right up to the settlement.l90

We believe the several hundred acres of cleared lands behind Pipitea, Kumutoto and

Te Aro kainga probably held a similar dual value - as areas within which cultivations could readily move, and as a defense "buffer." Wakefield and the settlers had found this area - the site of the town of Wellington - already cleared by Te Atiawaffaranaki in the late 1830'S.191 Within this cleared area, "the greater part if not the whole ... have been cultivations at some period."l92

1905ee J ames Brodie, Terawhiti and the Goldfields, Wgtn:Karori Historical Society, 1986, pp 27-30. The hill to the south, Om ere, was used as a navigation stop-over before crossing Cook Strait. Brodie cites a waiata published by Johannes Andersen, Maori Place Names, Polynesian Society, 1942, p 103: "Ka rou Omere ki waho, He maunga tutainga aio," ["Where Om ere projects outside, A spying place for calms."] An old rival of Ngati Tama's like Rangihaeata might land at such a spot and, seeing no calms, decide to attack north rather than proceeding south.

191Percy Smith, History and traditions of the Taranaki Coast, p 407 states that Ngati Ira and Kahungungu had not cleared previously; these intensive labours, clearing several hundred acres of hilly land in a space of only about seven years, belonged exclusively to Te Atiawaffaranaki and Ngati Tama. Numerous paintings and panoramas prior to 1842 confirm the extent ofpre-pakeha clearing; see e.g. G. R. Hilliard, 1841, Alexander Turnbull Pictorial Collection, #49385-49390. For Thorndon, see WakefieldlDirectors 27/2/40 in C0208 P 2.

192New Zealand Gazette and Spectator in Crown Law volume of extracts, 30/8/43 at p 23. See Fitzgerald's detailed description of "rotating" cultivations within a large clearing in Karori; NM 8/45/480 Fitzgerald Report 18/9/45, in A40 pp 31-32. 82 Some such semblance of Te AtiawaITaranaki's view of the relationship between their clearings and cultivations is essential to understanding their view of "reserves." On 24

May 1842, Crown Prosecutor R. D. Hanson wrote an assessment ofmaori claims for the local newspaper. For the preceding fortnight, Hanson had been closely examining maori claims in Spain's Land Claims Court. He had emerged with the conclusion:

"There is indeed nothing of which the New Zealanders have complained more,

or with more justice, than the manner in which the European settlers have

appropriated the land they had just cleared, and upon which they had expended

their labour."

Hanson acknowledged that the settlers had needed the easy-to-occupy and easy-to-plant, cleared land. But he pointed out that only about one-third of existing cultivations - let alone clearings - had been selected by the Company as reserves. Over the next five years, Te AtiawaITaranaki would need sufficient land available to rotate all their cultivations, and the reserves would prove inadequate to the task if Halswell leased them out to generate a trust fund. 193 The definitional boundaries between "cleared" and

"cultivated" became crucial to settlement of the land question.

It remains to understand something of the traditional role of mahinga kai - the resources in "unoccupied" and "waste" lands in Wellington region. Due to the region's hilly terrain and poor soils, maori around Whanganui a Tara probably relied more on

193New Zealand Gazette and Spectator 24/5/42, in Crown Law volume of extracts 1842-44, p 27. That maori valued clearings as distinct from cultivations, see Child's testimony to 1844 Select Committee, 2n/44, Qn. 4459-60 in A31 P 135. Note Molesworth paid maori for having cleared lands he was settling; 1844 Select Committee testimony 20/6/44, Qn. #3445-3448, in A31 p 102. 83 these resources, and less on planted cultivations, than maori in farther north.194 Their position in regard to the Company's purchase, and hence to notions of "reserves" - at this early period was clear: in January 1843, when maori consented to participate in binding purchase negotiations, both Clarke and Spain believed that only the rights to lands already surveyed and sold were under negotiation:

"The native title to those lands having been extinguished, it will be for the British

Government to pursue a similar course of proceeding in extinguishing the native

title to any districts comprised in the limits of those immense tracts of country

which the Company originally claimed."195

The fact that negotiations were initially for surveyed and sold lands only (roughly one- third to one-half of the region) met perfectly "the general impression among the natives ... that one-half of the land was for the settlers, and one-half for themselves."196

Negotiations were occasioned by, and so were primarily intended to resolve, Te

Atiawatraranaki's objections to settlers taking possession of the lands the Company had already sold - not the whole district.

1941844 Select Committee Minutes: Molesworth testimony 20/6/44 Qn 3431 in A31 p 101. John Daniels, "Maori Occupation in the Onslow District," Onslow Historian, Vol 1 No 2, May 1971, pp 4-7 in Doc A42 pp 227-228.

1955pain/Col Secretary 29/1/43 in A31 P 192, and Spain Interim Report 14/9/43 in A10(a) Doc 5 pp 10 and 17. Clarke's early demands were specifically for surveyed and selected lands only. Clarke/Wakefield 27(2/43 A10(a) Doc 5 p 32; Wakefield/Clarke 1/3/43 ibid. pp 32-33; Wakefield/Spain 24/5/43 in A10(a) Doc 5 p 30; note 1050 pounds for 3-4000 acres.

196FitzRoy/Stanley 15/4/44, in A32 P 8. 84 Maori Concern for Clearings and "Unoccupied" Lands Grows

Right from March 1840 when the Company moved its surveyors from Pitone to Pipitea, title to land had been "debated" in physical acts of pounding in and pulling up survey stakes, building and tearing down fences, signs, and houses, and restraining or releasing livestock near cultivations. For the first few years, Te Atiawaffaranaki continued to assert, expand and exchange rights to resources in this customary fashion - ahnost regardless of the Europeans' formal claims.197 In May 1843, "Akopara and Hapoca" tore down a fence being erected on an unplanted "old clearing." Their defence, apparently accepted by Commissioner Spain and his interpreter, Meurant, was that the

"Governor had promised ... their cleared lands or the pahs."198

In mid-1843, the settlement sank into an economic depression, Hobson's plan to legally vest the reserves in the Crown foundered, negotiations for completing the Company's purchase began and then floundered in May, and on 14 June the occurred. From all indications, after the Wairau incident, a mood of near-panic prevailed amongst the over 4000 pakeha in the Wellington settlement. Port Nicholson settlers "did what they liked [to Te Atiawaffaranaki cultivations], pulled down the fences and drove the cattle on the potatoes." There were skirmishes at Pipitea requiring militia action, and excited meetings at all the pa.l99

197Eg Clarke Jr Report 13/12/43 A29 P 363-64; "expand" see Louis Ward, Early Wellington p 113, in Doc A42 P 215.

198New Zealand Gazette and Spectator 24/5/43, in Crown Law colume of extracts 1842-44, p 17.

199John Miller, Early victorian New Zealand, p 68 in Doe A42 P 223, quoting Clarke Letters in ATL; Ward, Early Wellington p 125 in Doc A42 P 85 Faith dwindled on all sides. Due to the delays in negotiations and ineffective protection of their cultivations, Te Atiawaffaranaki disbelieved the pledged protection of their occupied lands, but particularly now, distrusted the whole Land Claims/negotiation process. In September 1843, Wairarapa, Wi Tako, Mohi Ngaponga and Ropiha Moturoa all wrote to the Governor, refusing to negotiate further or to sell to Colonel

"Wideawake." They argued that since they had authorized the Crown to decide compensation, the Crown was now honour-bound to pay it. They declared, "If you will not pay us for our lands, we shall keep them.,,2°O

Hanson's 1842 letter was the earliest sign that conflict over the possession of occupied lands would thereafter reflect the growing awareness amongst maori that the Company and/or Crown planned also to claim both "clearings" and "unoccupied" Company-selected reserves. The emergence of the trust/services notion cemented that awareness. Even before these new pressures emerged, maori had rejected the need for pakeha to administer "reserves" to generate a charitable trust fund. If they needed money, why not simply rent their land themselves? Around 1841, Wairarapa arranged to rent out

Company-selected reserves in Thorndon, in order to use the rents for his own purposes.

Halswell stopped him, of course.201 Wi Tako rented Kumutoto very early, and repeatedly protested right through 1844 against St Hill collecting the rents instead of him.202

2~onk p 217 in Doc A42 p 55; Spain Interim Report A10(a) Doc 5 p 11 and 44.

201New Zealand Gazette and Spectator 16/12/43, in Crown Law volume of extracts 1842-44, p 29.

202See 1844 Select Committee Minutes, Earp testimony Qn 2165 in A31 p 54. Wi Tako and 21 Chiefs of Kumutoto/FitzRoy 26/1/44, in A32 P 12. 86 Maori rejection of the "trust" notion of reselVes increased as the plans to establish it became more apparent. In December 1842 (three months after the reselVes Trustee,

Bishop Selwyn's, first visit to Wellington) Te Atiawaffaranaki had come to

"refuse in many cases to allow white men to occupy the reselVes, and [had]

militated against the realization of any important revenues from this source."203

Apparently, Te Atiawaffaranaki now saw that while they needed medical services, they would possibly have to pay for them with their last lands. St. Hill's increased leasing activities in 1843 fuelled anxiety. The old differences heated up over defining which lands were to be excluded from purchase, and how much of those lands would remain available for Te Atiawaffaranaki.204

Spain remarked soon after Wairau that maori did not distinguish between the larger

"land question" and "burning the 'toe-toe' [i.e., clearing] upon land which they claimed. ,,205 The Crown redoubled efforts to avoid conflict - even over merely cleared lands. Shortland proclaimed about July 1843, "L.publicly warn all persons claiming land in this colony, in all cases where the claim is ... disputed by the original native owners, from exercising acts of ownership thereon ... until the question of ownership shall have

203WakefieldlDirectors 23/12/42 in CO 208 P 78.

204See e.g. New Zealand Gazette and Spectator 24/8/43, in Crown Law volume of extracts 1842-44, p 23.

205Spain/Shortland 28/6/43 in A31 P 266. 87 been ... determined by one of Her Majesty's Commissioners."206 Notices were apparently issued for settlers to quit lands from Kumutoto to Barrett's Hote1.207

Even before Wairau, Clarke reported "rifle corps" forming. 208 Mer Wairau, rangatira

"in a most excited state," asked Spain why pakeha were preparing for war. A few months later, Clarke reported settlers still drilling, and maori

"mustering their women and children and copying the maneuvres of these 'old

women. ",209

A few months later still, their sense of humour replaced by "bitterness," Te

Atiawaffaranaki "only want[ ed] the settlers to strike the first blow, and they [would] return it with interest."210

It was vital that Clarke, otherwise rapidly losing Te Atiawaffaranaki's respect and trust,2l1 at least defend them in the increasing cases of cattle trampling

2061844 Select Committee Minutes, Molesworth testimony 25/6/44, Qn 3512-3513, in A31 P 106.

207New Zealand Gazette and Spectator 9/8/43, in Crown Law volume of extracts 1842-44, p 21. This may have relate to the missing file in the front of Crown Law's lA 1 volume: Robert Richmond, Ak/Colonial Secretary 24/6/44, Wi Tako claiming Barrett's Hotel land.

208Clarke jun/Clarke sen 29/5/43 in Crown Law volume of extracted ATL Clarke letters 1842-1844, p 54.

209Spain/Shortland 28/6/43 in A31 P 267. Clarke jun/Clarke sen 17n/43 III IAl volume p 50.

21°Clarke jun/Clarke sen 16/12/43 in Crown Law volume of extracted ATL Clarke letters 1842-1844, p 62.

2l1Clarke jun/Clarke sen 17n/43 in lA 1 volume pp 51-52. 88 cultivations.212 Indeed, from late 1843 until negotiations resumed in February 1844,

Clarke appears to have spent most of his time on Taringa Kuri's move to the Hutt, occasioned by just such cattle incursions at Kaiwharawhara.213 He could do little, though.

Now bereft of the hope afforded by negotiations, Clarke reported "the natives are heartily disgusted and cannot endure it much longer." By the end of the year, he claimed to have seen "several thousand instances" of encroachment.214 On 30

November 1843 - just three months before Te Atiawatraranaki reluctantly signed the

1844 Releases - Pipitea put up armed resistance to Richmond's arrest of Haere Waho for theft. Clarke's influence failed at this point; only Richmond's militia was now able to persuade them to release him.2Is At the end of the day, Clarke wrote to his father, the Chief Protector, begging him to accept his resignation and arrange his replacement.

He explained that the "maories are so exasperated by continual insults and quarrels that

212Clarke jun/Clarke sen 4/4/43 in Crown Law volume of extracted ATL Clarke letters 1842-1844, p 51; Wakefield/Spain 14/9/43 in IAl Volume 1 1840-44 pp 31-32; Clarke jun/Clarke sen 19/12/43 in Crown Law volume of extracted ATL Clarke letters 1842-1844, p 63;

2l3Clarke jun/Clarke sen 16/12/43 in Crown Law volume of extracted ATL Clarke letters 1842-1844, p 61. This, despite settlers not being particularly inconvenienced by Kuri's move. See Richmond/Colonial Secretary 1/11/43 in IAl Volume 1 1840-44 pp 71-72.

214Clarke jun/Clarke sen 27/9/43 in Crown Law volume of extracted ATL Clarke letters 1842-1844, p 56 and Clarke jun/Clarke sen 19/12/43 p 63.

21sRichmond/Col Sec 11/12/43, ia1/44/11 in lA 1 volume: pp 81-86. Waho was convicted and sentenced to three months' jail. See Clarke jun Report 16/12/43, in A32 p 40. The next month, E. J. Wakefield accused Wi Tako and Moturoa of planning war against Wellington as revenge for this skirmish. Wi Tako denied any war plans, but complained still of encroachments on unsold lands. He closed, "Before you used to speak kindly to us, now you have thrown aside your cloak [of Christianity]." See E. J. Wakefield 10/1/44, and Wi Tako 13/1/44, New Zealand Gazette and Spectator in Crown Law volume of extracts 1842-44, pp 31 & 33. 89 it must end in a fearful effusion of blood .... The settlers talk of nothing but the extermination of the poor maories."216.

While the encroachments demanded Te Atiawa/Taranaki's continued concern, the

expanding claims of the Company and Crown (to unsulVeyed lands, clearings, and the

"unoccupied" Company-selected reselVes) now demanded Te Atiawa/Taranaki broaden

their attentions. Three weeks after the skirmish at Pipitea, maori in the Hutt violently

opposed a settler taking possession of a Company-selected reselVe leased to him by

Henry St. Hill. They wanted it for their own cultivation.217 Confronted with almost

the same situation just a month earlier, Major Richmond reported on 1 November:

"From all I can gather, these [Company-selected] Reserves were originally, in this

part of the Country at least, set apart solely for the use of the Aborigines, and

having been so explained to them, it is now difficult to make them comprehend

how their being occupied by Europeans will be of benefit to them, when they

neither receive the payment nor experience any actual advantage arising from the

arrangement. They therefore take alarm at finding all the land passing out of

their possession and most of them strenuously oppose it."218

In this time, the "diabolical triangle" (over reserves as a rentaVtrust fund, as sites for

services funded by sales of Crown land, and as maori occupations) had not moved far.

216Population see Mulgan p 143 Doc A43 P 243; Clarke Letters ATL Vol 62/B Item 72 Clarke/Clarke 30 November 1843 pp 59-60 (in Crown Law Office Volume of letters not yet submitted to Tribunal).

217New Zealand Gazette and Spectator 23/12/43, in Crown Law volume of extracts 1842-44, p 30.

218Richmond/Colonial Secretary 1/11/43 in lA 1 volume, pp 75-77. 90 The Company now insisted its selected reserves were sufficient for all three purposes.219 Sometime around the end of 1843 and beginning of 1844, though,

Clarke (the Crown) told Te Atiawaffaranaki the Company-selected reserves

"have never been alienated - they have been pointed out as the lands to which

[they] are to resort for the purposes of cultivation when their present cultivations

are useless."

Clarke sen., as both Chief Protector and as one of the "Trustees for Native Education and Improvement" had reported as early as October that

"the majority of native reserves at Wellington ... [are] unfit for cultivation, and

ineligible for leasing, in order to raise funds for their subsistence," or for the

"amelioration" of their moral and physical condition, as it must be remembered

that the [reserves] having water frontages ... are mostly native pahs, or spots at

present inhabited by natives, and which, as they were never alienated, are not in

the power of trustees."

The local settlers believed that Stanley's conditional grant would enable Spain and

FitzRoy to solve it all by temporarily setting aside "occupied" lands, and unilaterally

219WakefieldIDirectors 23/12/43 in CO 208 pp 78-81. Somes/Stanley 14/2/43 in A31 P 214. New Zealand Gazette and Spectator 4/10/43, in Crown Law volume of extracts 1842-44, p 26. An article in ibid. 23/12/43, P 30 erroneously claimed the Company had selected the "tenths" with the whole iwi's subsistence in mind. It argued presciently that country reserves were for present and future occupation, while town reserves were to generate funds. Cf. WakefieldlDirectors 5/2/42 in CO 208 P 45, where he mentions the "comparative advantage" of urban reserves. See 1844 Select Committee Report Resolution #18 in A31 P 14, and Minutes: Molesworth testimony 25/6/44, Qn 3555, pp 108-109; Earp testimony 18/6/44, Qn 2607-2610, pp 66-67 and Qn 2630-2639 p 69. 91 deciding compensation for all the rest, regardless of niceties of vendors' agreement or sufficiency of reserves.220

In conclusion, prior to the 1844 releases Te Atiawaffaranaki certainly understood and treasured the Crown protection of their occupied lands for them. By 1844, though, they

apparently also demanded I a sufficiency of then-unoccupied reserves and unsurveyed lands for their future needs. When signing the releases, Kaiwharawhara, Te Aro and

Waiwhetu all complained bitterly of the inadequacy of their existing reserves for sustaining them, until all received additional reserves under Grey.221 Te

Atiawaffaranaki did not agree that "unoccupied" Company-selected reserves were to vest in the Crown or trustees to fund maori charities. Rather, it appears that by 1843 both Crown and maori had glimpsed, at least dimly, the difference between protection

(e.g. the Crown's role in excluding sufficient lands from purchase) and paternalism (e.g. the Crown's vesting of "unoccupied" lands in itself and trustees).

220New Zealand Gazette and Spectator 30/9/43, in Crown Law volume of extracts 1842-44, p 24, and 28/2/44, p 35.

221Te aro, see Minutes of Meeting 23/2/44 in Doe All Appendix, passim; Waiwhetu see Spain Final Report A10(a) Doc 6 p 25. 92 Maori Release Their Claims Against the Company

Into this stepped FitzRoy in January 1844, proclaiming the old principle in his inaugural address to Port Nicholson settlers: "not an acre, not an inch of land belonging to the natives shall be touched without their consent." He emphasized, "none of their pahs, cultivated grounds, or sacred burial sites shall be taken from them." On the 29 January, though, FitzRoy met privately with Wakefield, Clarke, Forsaith, Richmond, Hamilton and Commissioner Spain. Together, these seven pakeha settled on a definition of maori

"cultivation" and "pa." "Cultivation" was to mean "tracts of country which are now used by [maori] for vegetable productions, or which have been so used by [maori] since the establishment of the colony."222

The definition was obviously narrow in several respects. One of its omissions was finnly established amongst Company settlers - that maori labours in clearing land did not bestow occupation rights.223 Yet, as we have seen, Te AtiawatTaranaki did value cleared land as bestowing rights similar to those derived from planting, and arguably rotated cultivations within large cleared areas like Wellington.224

Further, Col. Wakefield only assented to even the narrow definition of "cultivation" if the agreement incorporating the definition would "prospectively, at least, provide for the cession of any such lands as already ... have been allotted to individuals or .. .for public

222AI0(a) Doc 6 p 18.

223Note, though, G. B. Earp considered Molesworth's "clearing" of land to be "cultivation," and advised the equivalence as a principle for taxing uncultivated land; see testimony to 1844 Select Committee 13/6/44 Qns. #2249-50 and 2612-13 in Doc A31 pp 57 & 67. 224 93 purposes.,,225 He later denied even that, saying that he had only agreed to exclude the pa and plantings outside "those lands which the Commissioner shall report to be fairly purchased from the Natives."226

Anxious for settlement, though, Governor PitzRoy regarded such agreement as sufficient

to proceed. He directed Clarke "to impress upon [maori] minds the comparatively valueless nature of their lands when the settlement was formed," and to "be as moderate

as justice will allow."227 He gave Wakefield "the very decided assurance" that he must pay what Spain awarded, or no grant would be made -leaving Wakefield "no alternative but to pursue the negotiation for each district without further delay."228

As umpire, Spain had commended Clarke's earlier proposed compensation of 1500

pounds to Lord Stanley in July 1843 (who presumably conveyed such information to

PitzRoy).229 At the time he first proposed the 1500 pounds, Clarke was under

instructions to assess compensation (including sufficiency of reserves) with the 15-20%

of Crown land sales in mind - i.e. largely excluding any need for reserves to generate

funds for charitable purposes.230 He described the method by which he arrived at the

sum thus:

225Wakefield/Clarke jun. 113/43, in AI0(a) Doc 5 p 33.

226WakefieldlRichmond 15/6/46 in CO 208 volume p 397.

227Minutes of meeting 2911144, in AI0(a) Doc 6 p 18.

228WakefieldlDirectors 19;2/44, in A31 P 406.

229Spain/Shortland 31/5/43 encl in Shortland/Stanley 13/6/43 in A31 P 200. Note the 1500 pounds evidently did not reflect the "extravagant prices" that Clarke was disposed to advise. It was Spain's preferred sum, not Clarke's or Te Atiawa!Taranaki's.

23oPreeman/Clarke 27/1/43 in A31 P 181. 94 "Having previously obtained the general consent of the natives to accept of a fair

award, I based my estimate of it upon what I deemed to have been the fair

marketable value of the land at the time when Colonel Wakefield commenced

to treat about the sale of it."231

Thus, Clarke renewed, and Wakefield reluctantly accepted, the old offer of 1500 pounds for the lands surveyed or under survey, excluding Te Atiawaffaranaki occupations.

On the 23 to 26 February, at FitzRoy's insistence, Te Aro accepted their share of the

1500 pounds, and released their claim against the Company of "all their land in the neighborhood of Port Nicholson." They did so only under much immediate pressure.

It might be said, only to honour their agreement that the arbitration would be binding.232 Here, the full effects of the waiver of pre-emption were felt: the context of arbitration had enabled Spain to promise Wesleyan cross-claimants exchanges of

Company lands in return for dropping their vast & complex claims to Te Aro - based in agreements structured according to maori custom.233 And now, in what was clearly stated to be the final meeting of the arbitration, Interpreter/protector Forsaith badgered

231Clarke jun/Clarke sen 29/6/44, in A32 P 44. Clarke also had to calculate how the consideration would be divided between vendors: in this he weighed who had already received how much consideration in 1839.

232Spain's word to Waiwhetu was typical: "I wish you to remember what you formerly said that you would leave the question of compensation for your lands entirely with me and abide by my decisions." Minutes of proceedings of Commissioner's Court, 15/3/44, in Crown Law IAl extracts, p 159.

233John Roberts, "The Wesleyan Land Story at Te Aro," (Unpublished paper) August 1991 pp 10-11 in Doc A42 pp 74-5. 95

Te Aro maori that the Crown could have taken their lands without any compensation based upon these same (by then abandoned) Wesleyan agreements.234

After Te Aro signed, Kumutoto, Pipitea, and Tiakiwai followed that same day.

Waiwhetu signed on 15 March. Kaiwharawhara and Pakuao on 26 March. Waiariki and Te Ikamaru signed on the 29th, then Oterongo and Ohau on the 30th. Ngauranga and Pitone both refused to sign the release, as they felt it would detract from their 1839 sale.

Thus were the Company's 1839 Principal Agreement and its 1840 arrangement with the

Crown "completed." The Releases gave effect to the 29 January arrangement and its definitions. They embodied the Crown's principle and pledge to protect Te

Atiawa!Taranaki's "cultivations" [nga ngakinga],235 "pa" and "sacred places" [wahi tapu], excluding them from sale by the expression, "will remain alone for us" [anake e toe ki a matou]. Such areas therefore remained under native title, confirmed [or acknowledged in exchange] by deed in 1847. Notably, in the same sentence, the

Releases excepted the "places reserved" [wahi rongoa], clearly referring to the

Company-selected lands already partially surveyed, sign-posted, and promoted for Te

Atiawa!Taranaki occupation. Hence, the Releases stopped short of distinguishing between the mode of excepting "occupations" and "places reserved" from the Company's estate. What is more, the Releases stated positively that both were merely "to remain

234Gilmore Appendix p 7

235Note, ngakinga probably translated more accurately to "clearing" than "cultivation." See Williams, Dictionary of the Maori Language, seventh edition, p 228. The decision to narrow the exception even this far was quite intentional: mahinga kai was in use in Wellington at the time; see Dr. Fitzgerald's Report 10/5/46, in Crown Law volume of 1A1 extracts, p. 283. 96 alone for" Te Atiawa/Taranaki. One needs to search elsewhere than the Releases, then, for any grounds for the Crown's later claim of title to the unoccupied "places reserved."

The Te Aro Release and the others modelled on it received a wide reading before all the maori communities in the region. Spain reported that "it has been fully explained to them that the reserves are made for the benefit of the natives generally." Spain's explanation, though, was in response to Te Atiawa/Taranaki's refusal to cultivate or occupy reserves in other hapu's rohe, and so does not imply any explanation of either a Crown claim of ownership or of a Trust for the benefit of iwi from outside Wellington region.236 Rather, on this more general level, Spain stated that "the use, extent and appropriation of the Reserves were never understood, and to this moment are not appreciated by the natives for whose benefit they were designed."237 Given Te

Atiawa/Taranaki's clear preference for occupation reserves - and their rejection upto this time of pakeha Trusteeship of their reserves - Spain's remark probably refers to a difference of understanding of the reserves "appropriation," not a lack.

The exceptions exemplify FitzRoy's desire to accommodate maori "un-boxed" relationship with land. For example, in April 1844, when Governor FitzRoy consulted

Lord Stanley on how then to effect the Company's 1840 agreement, he noted difficulties in the requirement that the Company select lands in parallelogram blocks. Maori at

236Spain Final Report AlO(a) Doe 6 p 4. Note according to Molesworth testimony 20/6/44, Qn #3442-3444, in A31 P 102, in maori tradition, only slaves would cultivate land over which someone else held ultimate rights of alienation. This may have been another reason for maori reluctance to relocate onto Company- or Crown-administered reserves.

237Spain Final Report A10(a) Doc 6 p 2. 97 Wellington had complained to him that this had left large absentee-owned Country

District lands unavailable for firewood (and no doubt for food resources).238 FitzRoy's response, approved by Stanley in November, was first, to holdover granting on Spain's awards (expecting the Company's affairs to be tranferred to the Government, who would then re-arrange the settlements),239 and second, to waive the 'blocks' requirement for future purchases.24o In the case of Wellington, Spain's and FitzRoy's exceptions would have left a heritage of curved, topography- and tradition-influenced, property boundaries breaking up the Company's grid.

Neither FitzRoy's definitions nor the releases themselves resolved the unsettled question of the fate of the unselected and unsurveyed lands in the region. The deeds themselves release only claims to lands included in appended schedules of surveyed land in the

Town, Ohiro, Karori, Harbour, etc. Districts. About 60,000 acres in all.241 On the other hand, the plan accompanying Spain's award shows an external boundary matching that of the 1839 Port Nicholson deed. But this plan was only completed 7/10/44, about eight months after the vendors signed the releases. - Some might also observe that the releases stated, "The only places left for [maori] are those above mentioned." But given the Protectors' recent understanding that the Company-selected reserves would be

238FitzRoy/Stanley 15/4/44, in A32 plO.

239Stanley/Grey 6n/45 , in A32 P 63. Besides the problems caused by laying their survey grids over lands occupied and forested by maori, the Company's "Town Acres" had long been seen as defeating E. G. Wakefield's own system of concentrated colonial settlement. See e.g. Surveyor-General's Report 20/10/41, in A30 P 109.

24°Stanley/FitzRoy 30/11/44, in A32 pp 19-20.

241Schedule at AlO(a) Doc 2 p 2. Note, when reporting his acceptance of Clarke's proposed compensation, Col. Wakefield observed that the 1500 pounds amounted to sixpence per acre. This sum assumes that compensation was for 60,000 acres. WakefieldlDirectors 19/2/44, in A31 P 406. 98 complemented by lands outside those awarded to the Company, and given the umpire's clear intention at the outset of negotiations that compensation was only to extinguish native title to the surveyed & selected lands, the remark probably referred to the exceptions within the Company's award.242

In further evidence of this, a few days after the last releases were signed, Clarke wrote to his father, discussing the sufficiency of the reserves:

"There is a large portion of land within the district unsurveyed - and which

therefore belongs to the natives and which they can cultivate ... but...by far the

greater part [of this] could not be surveyed on account of its comparative

inaccessibility, and most of the remainder is utterly useless. ,,243

About the same time, Clarke asked the Company-Crown team of surveyors to exclude the mouth of the Wainuiomata River from their March-May 1844 surveys "that it might be left for the natives." Accordingly, Brees drew a line on the map extending from the southern boundary of the settler allotments, east across the hills to Muka Muka Nui - enclosing one of Clarke's to-be-arranged supplementary exceptions. This area, of course, was later confirmed as excluded by McCleverty's 1847 assignments.244

242See above pp 95-96, citing Spain/Stanley 29/1/43 in A31 P 192. In Spain/FitzRoy 13/4/44, Spain referred to the line around the districts contained in Clarke's Schedule as "the external line" and "the line of demarcation between the Europeans and the natives."

243Clarke jun/Clarke sen 1/4/44 in Crown Law volume of extracted All Clarke letters 1842-1844, p 67-68. Clarke sen incorporated the point in his own Report 31n/44, in A32 P 42.

244BreesIWakefield 26/4/44, in A42 pp . This report also explains that Brees drew the dotted lines around the Wainuiomata sections to indicate he had "not set out the sections, but it can be done at any time either in 100 or 25 acre allotments." The joint 99 On their Protector's advice then, upon signing the 1844 releases, Te Atiawaffaranaki almost certainly understood that their interests to lands outside the Company's surveyed and selected lands remained unextinguished, until the Crown had set aside further lands to complement the reserved exceptions within the Company's award.

On the same advice, Te Atiawaffaranaki probably doubted these unsurveyed lands' capacity to make up the shortfall in maori-held reserves, aggravated by the leasing of urban reserves for trust purposes. Te Aro, Waiwhetu, Kaiwharawhara, etc. objected strenuously that the releases' reserves provisions were insufficient. But, as Spain reminded them at virtually every signing of the releases, they had agreed to abide by the decision of the umpire.245

One must conclude that maori signed the releases weighing two opposing dangers: if they settled, they would probably be left with too little land; if they did not settle, the current climate of "enmity between the races" would probably boil over into war. Their fears soon proved warranted - war erupted, hundreds of Te Atiawaffaranaki left

Wellington regIon altogether, and several kainga had to purchase "reserves" for themselves.

Company-Crown Plan, 7 October 1844, Wai 145 Doc A9E.

245See Crown Law volume of IA1 excerpts, Forsaith "True Account of the proceedings of the Commissioner's Court," at Waiwhetu 15/3/44, "insufficiency" at p 155, "binding decision" at p 159. At Kaiwharawhara 26/3/44, "insufficiency" at pp 178-179. Spain at Oterongo 29/3/44, in response to "the usual argument" (insufficiency?): "the land would be awarded to the Europeans whether they consented or not," at p 184. The "same arguments and persuasions" at Ohaua, p 185. 100 After the Releases: The Ascendence of Crown Paramountcy Over Te Atiawarraranaki

Rangatiratanga in Determining Titles to Land

We have followed the track of agreement quite closely, whereby Te Atiawaffaranaki's claims against the New Zealand Company would have been voluntarily relinquished, freeing the Crown to grant to the New Zealand Company the surveyed and selected lands, subject to Te Atiawaffaranaki retaining possession of the Company-selected reserves, their occupied lands, and a sufficiency of the unsurveyed lands. In theory, all that remained after the releases were the mechanical details of surveying the exceptions, settling on some form of reserves administration, and issuing the Company's grant.

After the releases, though, dissent over the purchase agreement grew faster than efforts to consolidate it. The tenuous balance between occupation, services, and trust-fund notions of reserves was upset. By the time news arrived that the Company Directors had formally rejected the agreement (31 March 1846), it had already collapsed locally. From about May 1844 to mid-1846, two concurrent series of events contributed to the collapse, and reformulated both the balance between notions of reserves and the purchase negotiations as a whole: disputes over cultivations especially in the Hutt, and the change of Governors.

FitzRoy remarked on his arrival in Wellington, he was 101 "sorry to find that the natives in this neighborhood [were] not so advanced in

civilzation as those in the northern part of the island, and that so little has been

done for their instruction and improvement. ,,246

Having soon relieved the Bishop of his uncertain Trusteeship, FitzRoy worked from

June to October 1844 on an ordinance to erect a trust to receive lands and funds for

"assimilating as speedily as possible the habits and usages of the Native to those of the

European population." The Ordinance was passed, with some apprehension about religious sectarianism, but as it was never Gazetted, and further, as it relied in its preamble upon "provision [being] made for the appropriation of certain lands and moneys for the purposes aforesaid" - and such provision had not been made - the

Ordinance was only ever a dead letter. 247

Administration of the Company-selected reserves ground to a virtual halt. Due to

FitzRoy's instructions, and then to McCleverty's exchange activity, the only further leases of reserves prior to mid-1848 were:

- Town acre 574 leased to Cameron in September 1845;

- Town District Sections 6 & 7 (Island Bay) and Ohiro 26, all leased to Bethune and Hunter in September 1845; and

246FitzRoy Address to Settlers, 29/1/44, in A32 P 27.

2470rdinance Introduced to Legislative Council 1/6/44, in A32 P 28, debated 22/6/44 pp 30-32 and again 27/6/44 p 33, passed 29/6/44. Royal Assent sought 22/10/44: "Until legal authority is given to ... trustees, no step can be taken in respect of land reserved for the future benefit of the aboriginal race, and no fund can be raised .. .for education or for the care of the sick." Royal Assent 13/8/45, p 133. Ordinance purpose and premise: A21 p 1. "No provision" see R. v Fitzherbert in A7(b) P 28. "Dead letter," see Bishop/Dommett 10/12/48 in A40 P 275. 102 - Town acre 605, leased to Cameron in June 1846.148

Out of all of St. Hill's leases, the only ones that actually paid rents prior to 1849 were

Halswell's two at Barrett's (s. 514), Bolton's (s. 636 Tinakore Road), and Bethune and

Hunter's at Ohiro and Island Bays. With the exception of 7 pounds to a carpenter at

Pitone's Chapel, all rents from 1843 until June 1848 went to pay St Hill's commission.249

Also after the releases, Assistant Government Surveyor Fitzgerald began surveying and cutting boundaries around excepted lands within the Company's surveyed districts. He completed his surveys of Karori district in September 1845, reporting that "in almost every case the natives lay claim to... the old cultivations" (i.e. clearings). Consequently, he was trying to include them in his mapping.2so He had completed mapping all the recent cultivations in all the districts, and had only to map the old cultivation spots in all the districts other than Karori. On 26 December 1845, he filed his scathing report on the Company-selected reserves, estimating they contained only 1530 acres of arable land.251 Soon after, though, Fitzgerald stopped surveying cultivations, having become too busy with other work (e.g. roads)?S2

248Board of Management accounts 18/12/48, in A40 P 284 and St Hill Accounts p 297. Reason for inactivity, St Hill/Colonial Secretary 31/12/47, in A40 pp 289-90.

249See St Hill's accounts 10/48 in A33 P 91. St Hill collected and kept 54 pounds in 1844, 64 pounds in 1845, 79 pounds in 1846 and again in 1847, and 75 pounds upto June 1848. These were for Barrett's (54 pounds pa.), Section 636 (10 p.pa.), and Town District 6, 7 and Ohiro 26 (15 p.pa.). 370 pounds (plus change) total.

25°Pitzgerald/Richmond 18/9/45 in A40 pp 27-29.

251Fitzgerald/Richmond 26/12/45, in CO 208 volume, pp 129-141.

252Pitzgerald/Richmond 16/6/46, NM 8/46/310 A40 pp 55-58. 103 Isolated encroachment disputes continued. On 27/12/44, two maori "from the Hutt" forced settlers off land near Oterongo.253 About February 1845, Maniera of Te Aro cleared bush and planted at Boulcott's Section 28 in Karori.254 On 9/8/45, while sUlveying Waiwhetu's cultivations and reserves, Fitzgerald pointed out their Company- selected reserve to them, and Waiwhetu maori just laughed.255 Around 1/9/45, maori stopped a settler in Wainuiomata from felling bush, saying "they wish to keep it for themselves," and planted out one of his existing clearings.256 On 23/8/45, soldiers of the 56th regiment stole goods from Te Aro. On 24/8/45, they stole from Pipitea.257

These incidents probably indicate, if anything, that the agreement was developing apace, with an unsurprising residue of misunderstanding and racial tension.258

253Vincent et al/Richmond -1/1/45, NM 8/45/62 A40 pp 5-8.

254London/Grey 2/4/46, NM 8/46/115 A40 pp 39-40.

255Fitzgerald/Richmond 11/8/45, NM 8/45/318 A40 pp 17-19.

256DicklRichmond 8/9/45, NM 8/45/366 A40 p23-25.

257Kemp/Richmond 26/8/45, A40 pp21-22.

258See e.g. Clarke sen. Report 31n/44 in A32 p 42: "although a decided improvement has taken place with reference to the Company's claims, ... there is still a very bitter feeling existing in the minds of the settlers, generally, towards the natives." 104 Negotiating the Hutt

Serious difficulties remained only in the Hutt. Around early 1843, Taringa Kuri had moved from Kaiwharawhara, and planted-out lands just inland from Tawhitikura at

Petone. His reasoning was familiar: the initial sale of his interests had been voided by the Company's violation of the terms of that sale. He told Clarke:

"Instead of confining themselves to the district they had fairly purchased, the

Company had disposed of his land at Kaiwharwhara; that they had hot reserved

every alternate section for the natives, ... that the reserves they had made were

unfit for cultivation ... [and] that his planting grounds had been overrun by horses,

pigs and cattle of the white men."259

Kaiwharawhara under Taringa Kuri were accompanied in their move by Wanganui under Kaparatehau (some of whom were relations from Ohariu), and Rangatahi. The move was "instigated" by Rangihaeata and Te Rauparaha, who wished t6 press old claims to the upper part of the Hutt Valley.260 Note, though, that Ngati Toa also shared a bond of common complaint with Kaiwharawhara, both having major

259Clarke Report 14/6/43, in A31 P 396.

260"Instigated" is Clarke's term. Today, we might say Ngati Toa "enabled" the move, by offering protection. Clarke Report 29/6/44 in A32 P 44. Spain/Shortland 13/4/44 in A32 P 117. Spain's motive in paying 300 pounds to Ngati Toa was to remove their protection of Taringa Kuri and Rangatahi, not to compensate any just claims. See ibid. Te Rauparaha claimed that he had agreed to 300 pounds compensation for Wellington only, not the Hutt. lA 1/44/1683, Forsaith report 8/3/44, in Crown Law IAl extracts, Volume 1 p 129. 105 cultivations near roads used for livestock transport, and hence subject to damage by the same.261

In March 1844, when others were signing releases, Kuri cut a line across the Hutt, beyond which white settlement would not be allowed.262 Anticipating difficulties,

Governor PitzRoy promoted the local Police Chief, Major Richmond, to

"Superintendent ofthe Southern Division," investing him "with sufficient executive power to enable him to act upon any emergency" in the Governor's absence.263 However,

PitzRoy instructed Richmond that "with so very small an amount of physical force at command, the greatest prudence, forbearance, and deliberation are absolutely necessary."264

Hence, upto December 1844, Commissioner Spain and Superintendent Richmond tried negotiating to appease Te Rauparaha's and Te Rangihaeata's challenge, i.e., to remove their "protection" of Kuri and Kaparatehau.265 Insulted at being offerred less compensation (and later) than Kumutoto, though, Te Rauparaha and Te Rangihaeata rejected offer after offer.266

261Grey/Stanley 7/4/46 in A32 P 171. Ngati Toa's tapu of their road formed the bone of contention that eventually led Governor Grey to seize Te Rauparaha. See Grey/Gladstone 23/6/46 in A32 P 195-96.

262Porsaith Report 8/4/44, in Crown Law Volume of IAl extracts, Volume 1 p 115.

263PitzRoy.Stanley 15/4/44, in A32 pp 8-9.

264pitzRoylRichmond Instructions (n.d. - 4/6/44) in A32 P 25.

265Clarke jun Report 29/6/44 in A32 P 44.

266Ibid. P 128. 106 In these negotiations Richmond made it abundantly clear that the Crown would compensate Kaparatehau's and Taringa Kuri's crops only, and would not heed any claims to land itself. Wards summarised, Richmond "made no allowance for any rights that Kaparatehau or Taringa Kuri may have accrued, and gave no thought to the future location of these chiefs and their people." By December, Richmond, Rauparaha and

Rangihaeata had finally agreed that Kuri and Kaparatehau were to be out by March

1845.267

As the deadline approached, it became clear that Kaparatehau and Taringa Kuri were not going to leave so easily, and that Rangihaeata was apparently still assuring them protection against the Crown. Everyone began preparing for a fight. While Heke's war raged up north, Port Nicholson settlers, Land Commissioner Spain and even the missionary Rev. Hadfield goaded Superintendent Richmond and Governor FitzRoy for a show of strength here to reverse the pakehas' show of weakness at Wairau.268

If there was to be a fight between pakeha in Wellington and Ngati Toa coming into the

Hutt via Pauatahanui, Ngati Tawhirakura in Petone were going to be caught in the middle. Without belittling Te Puni's real loyalty to the Crown under the Treaty, he simply had to choose sides at this point. Any choice but the Crown (now with 200 soldiers and 800 militia at Wellington) would have been absurd, so in April 1845, he asked Richmond for protection and offerred assistance in any fighting.269

267Richmond/FitzRoy 24/12/44 in A32 P 123-124. Ian Wards, p 228 in Doc A42 P 119.

268Heke: mentioned in Clarke sen. Report 1/1/45 in A32 P 125. Settlers and Spain: Spain/Fitzroy 12/4/44 and 2n/44 in A32 pp 54-55. Hadfield: Richmond/FitzRoy 24/12/44.

269Ian Wards, p 232 in Doc A42 P 120. 107 The standoff continued throughout 1845, with fortifications and preparations for fighting throughout. Governor FitzRoy evidently gave up his hopes of breaking up the

Company's settlement, and on 29 July 1845 offered the Company a grant based closely on Spain's award.270 In February 1846 the other rangatira of Te Atiawa!Taranaki, as well as those of Ngati Toa and Ngati Raukawa joined Te Puni's call for the Crown decide matters.271 By May, the rest of Te Atiawa!Taranaki and even David Puaha

(Ngati Toa) had joined Te Puni's offer of helping to fight, if necessary.272

270Grant at A32 p 106.

271Salutations to Governor Grey, 19/1/46, 17/2/46, and 21/2/46 in A32 pp 151-153. lan Wards, p 241 in Doc A42 P 123.

272David Puaha/Grey 3/3/46 in A32 pp 168-169; Richmond/Colonial Secretary 19/5/46 in A32 p 181. 108 A Change of Governors

In August 1844, before hearing of FitzRoy's "completion" of the Port Nicholson purchase, Stanley forwarded FitzRoy copies of the 1844 Select Committee results, urging,

"I cannot go with them in directing you 'forthwith to establish the title of the

Crown to all unoccupied land,' except, indeed, under the extensive qualification

of the following words of the Report, 'as soon as this can be safely

accomplished.' On this fundamental point depends the whole of the arrangement

with the New Zealand Company.tl273

Stanley observed that the Company's claims under its 1840 arrangement were as against the Crown, not maori. He stressed that the Crown could only grant lands to which, according to Commissioners' inquiries, Native Title had been extinguished.274

On the 30 April 1845, FitzRoy was recalled.275 On 6 May, Spain filed his final report

on the Port Nicholson claim. The next month, 13 June 1845, Captain George Grey was appointed Lieutenant-Governor. On the 29 July, FitzRoy issued a grant to the New

273Stanley/FitzRoy 13/8/44, in A32 P 3.

274Stanley/FitzRoy 13/8/44, in A32 pp 4-5. See Hight and Bamford, Constitutional History of New Zealand, pp 228-229 in Doc A43 p 257. Recall Russell's 1840 guarantee of a grant of four times as many acres of land as pounds spent by the Company in its colonising operations.

275Notice arrived in New Zealand 6 October 1845. G 22/1 P 45. 109 Zealand Company premissed on the 1839 Principal Agreement, the 1844 Releases and

Spain's award under the Land Claims Ordinance 1841.276

On 17 June 1845, Lord Stanley's and the Colonial Office's lukewarm implementation of the Select Committee's recommendations led Charles Buller, on behalf of the

Company, to open the famous three-days' debate in the British House of Commons on the state of New Zealand. The debates focussed the British public's attention on New

Zealand - and especially on Hone Heke's war up North - and galvanized opinion against the Treaty. Together with troubles in the Canadian colonies, the debates almost single­ handedly led to Gladstone's replacement of Lord Stanley as Secretary of State for the

Colonies.277

A few weeks after the debates, Stanley sent initial instructions to Lieutenant-Governor

Grey. Having just learned through the Company's reports published in England that

"an arrangement with the natives in [Wellington region] had been effected," Lord

Stanley instructed Grey to issue a grant as soon as possible for the land "to which Mr.

Spain considers the Company to be entitled." The enclosed schedule informed Grey that the 1,500 pounds was specifically "for a tract comprising about 54,000 acres to

60,000 acres, excluding native pahs and cultivations."278

276PitzRoy grant in A32 pp 105-106

277E. Wilson p 36 in Doe A43 p 252.

278Stanley/Grey 6n/45 , in A32 pp 62-63. 110 Spurred by the debates, on the 7 August Lord Stanley undertook to still the controversy over Treaty-versus-1840 Agreement by putting the Company in possession of lands awarded or arbitrated by Spain. He offerred to the Company,

when the circumstances are such that the acquiescence or consent of the natives

is necessary to enable the New Zealand Company to obtain possession of the

lands comprised in these purchases, the Governor will aid and co-operate with

the Company's agent in bringing to a prompt and satisfactory conclusion the

negotiations with the natives for the purchase or extinction of their rights."

He proposed McCleverty's commission, in rough:

With a view, therefore, to facilitate this object, Lord Stanley would (if the

Company were to desire it) despatch forthwith to the colony a properly qualified

person, whose duty it should be to give his best assistance to the Company in

their selection of land, to aid in surveying the exterior boundaries of such

selections, and to judge of the reasonableness of the terms of any purchase which

the Company might make from the natives, with reference to the Company's

right to reimbursement in land in respect of moneys paid for such purchase.,,279

The Company Directors accepted the next day. The next week, Stanley forwarded his offer of assistance to the Company (above) as instructions to Lieutenant-Governor Grey.

Against his personal preference, expressed the day before, for "maintaining strictly the

Crown's right of pre-emption as conceded by the Treaty of Waitangi," Stanley

279Hope/lngestre 7/8/45 GBPP-NZ 4 pp 3-5 in Doe A43 P 260. 111 instructed Grey to waive pre-emption in the Company's districts, to enable the Company to effect their selections of lands under the proposed Commissioner. It should be remembered that at this point, Stanley still believed Wellington to have been finally arranged, so these arrangements were initially intended for the Company's purchases elsewhere.28O

In their letter accepting Stanley's offer, the Company enclosed schedules of their claims against the Crown's estate under Russell's 1840 arrangement. Based on Pennington's award, they estimated their total claim to be 1.2 million acres, and deducting from this the lands already in their possession, they estimated the future purchases and payments required to obtain this amount of land under Stanley's proposed special commission.

In Port Nicholson, they claimed only the estimated 60,000 acres awarded by Spain, for which they had paid the 1500 pounds compensation. The Company anticipated making

(and made) no further deductions from their awarded 1.2 million acres for any portions of the unsurveyed lands in the region.281

On 27 November, still assuming the Port Nicholson purchase to be all-but-settled,

Stanley forwarded these estimates to Grey, instructing him to admit the Company's claim against the Crown's estate of (now) 1.3 million acres - which the proposed

Commissioner was to help acquire, select, and survey. Grey was to "take this decision as the rule for [his] guidance in dealing with this question.,,282

28OPreference, Stanley/Grey 14/8/45, in A32 P 134. Waiver & Commission instructions: Stanley/Grey 15/8/45, in Doc A43 pp 262-266.

281Young/Stanley 8/8/45, in A32 pp 136-137.

282Stanley/Grey 27/11/45, in A32 p 135. 112 These were Stanley's last relevant instructions before being replaced by Gladstone.

Before leaving, though, he dispatched Major William Anson McCleverty as the special commissioner.283 Thenceforward, McCleverty's exertions and Grey's despatches on the

Port Nicholson purchase "relate[d] almost exclusively to the ascertainment of the extent and position of the native cultivations, the indefinite allusion to which in the deed of grant executed by FitzRoy had rendered that deed unavailable."284

When first coming onto the scene in early 1846, though, Lieutenant-Governor Grey was under clear instructions to effect Spain's award. Neither Company nor Home

Government appear to have been pressing any claim to the lands outside the boundaries of the Company's surveyed and selected areas. This was soon to change.

283Doe A18 P 11.

284Harrington memo 7/4/48 GBPP-NZ 8 P 148 in Doe A42 P 137. 113 Grey Finishes the War

All through October-December 1845, the standoff in the Hutt continued, with FitzRoy fully informed of Rangihaeata and Kaparatehau's desire for an award of land in the

Hutt. Wakefield put up resistance to FitzRoy's grant, and soon formally declined to accept it.

In the new year, January 1846, Superintendent Richmond briefed incoming Lieutenant­

Governor Grey of all official correspondence on the matter. "He concluded by urging the belief that force would have to be displayed and that no tranquility was possible until the valley was completely evacuated." Likewise Spain insisted the Government now "firmly carry out and compel the absolute cession to the Europeans of the land in this purchase, comprised within the boundaries of my award."285 Grey received

Richmond's briefing shortly after his victory over Hone Heke at Ruapekepeka, and came south on 5 February with 500 soldiers on 4 ships.286

In his first despatch to Lord Stanley from Wellington, Grey expressed confidence that

"the strength of the force at my disposal," and the reports of his Northern victory would alone clear the Hutt.287 Two days later, Grey reported Taringa Kuri had assured him personally that his people would clear the Hutt the next week. Grey assured Ngati Tama compensation for their 300 acres of potatoes only after they had met his conditions, and

285Spain Final Report, A10(a) Doe 6 p 12.

286Ian Wards, pp 238-9 in Doe A42 P 122.

287Grey/Stanley 12/2/46, in A32 p 148. 114 moved off the land.288 Later still in the week, Grey forwarded letters from the principal rangatira of Ngati Toa, Ngati Raukawa and Te Atiawa/faranaki, expressing

"their desire that the laws of the Queen should be firmly ... established among them."289

All was going well.

Kuri removed from the Hutt, and so, before returning to Auckland in mid-April, Grey authorised the compensation negotiated earlier by Richmond. Further, to meet Kuri's complaints of inadequate excepted lands, Grey bought out James Smith's lease of part of the Otari block of Company-selected reselVe land (80 pounds), purchased Harbour section 4 (350 pounds), and gave Kuri the lOO-acre site of the Governor's country residence.29O

Grey also learned at this time that Waiwhetu maori could not remove from their settler- claimed cultivations, as the only suitable Company-selected reselVe was leased and another reselVe was "ineligibly" positioned. To resolve the difficulty, Grey bought out the lease on their reselVe section 58 (75 pounds), and purchased section 19 on

288Grey/Stanley 14/2/46, in A32 P 150.

289Grey/Stanley 17/2/46, in A32 pp 150-152.

290Summary of Grey's dealings in Grey/Gladstone 20/6/46, in A33 pp 2-5 & 14. Compensation: Grey memo 2/4/46 in A40 P 143. Purchase of section 4: CliffordIRichmond 7[1/46 in A40 pp 79-82 & 107-109; Grey minute 9[1/46 A40 P 109; CliffordIRichmond 18[1/46 in A40 pp 83-84; HartIRichmond 16/10/46 in A40 pp 89-91; CliffordlRichmond 21/10/46 in A40 P 93. In 1845, Ngapapa and Aperahama (Ngati Tama) leased part of the Otari block to Burling and Smith, with Richmond's consent. In August 1846, Governor Grey rejected the arrangement in order to complete his arrangements with Taringa Kuri. See Burling and Smith/Grey 18[1/45, in A40 pp 85-87; GreyIRichmond 8[1/46, in A40 pp 77-78, and correspondence completing the arrangements - July 1846 to December 1847 in A40 149-159. 115 Waiwhetu's own direction (350 pounds, planned to be re-imbursed from the 'Native

Trust Fund').291

At the same time as making these peaceful arrangements, though, Grey faced off against

Kaparatehau. In March and April of 1846, there were ambushes, skirmishes, ransackings

and the murder of settlers.292 Also, in the first week of April, Te Aro maori cut and burned several acres of firewood on Boulcott's section 28 Karori, and Ngauranga maori pulled down a settler's house near their cultivations at Harbour section 7.293

One suspects that Grey began to grasp the delicacy of the Port Nicholson situation. On

the one hand, sometime in these first few months, Colonel Wakefield complained to

Grey about the exceptions in FitzRoy's grant, and informed him that he was awaiting

the Directors' decision on whether or not to accept it. 294 On the other hand, the

Crown Solicitor, R. D. Hanson, advised Grey of the ambiguous legal status of

Kaparatehau's and Taringa Kuri's cultivations - being arguably reserved as occupied

lands under the agreements and grant as they stood thus far. 295 Grey evidently

complained of being "more like a bailiff turning out poor natives from their pretty

cultivations than a British Governor."

291Purchase of section 19: correspondence -April-May 1846, in A40 pp 47-51, and LSW 65(20 entry for Hutt 19 (cannot photocopy). Section 58 lease: in A40 139-141. Reimburse: Grey/Gladstone 20/6/46, in A33 P 2.

293London/Grey 2/4/46 and WakefieldIRichmond 3/4/46, both in A40 pp 39-42.

294See Grey/Gladstone 14/9/46, in A33 P 15-16. Note that Grey does not mention the exceptions as originating in the deeds of release, but refers to the whole as "FitzRoy's arrangement."

295Ian Wards, pp 241-2 & 246 in Doc A42 pp 123-125. 116 To meet Wakefield's complaints, and to circumvent his own military problem, he proclaimed martial law, and annulled FitzRoy's grant.296

Reflecting in January 1845 on the strife emerging at both Russell and the Hutt, George

Clarke sen. had reported,

"The Chiefs, who for many years have shown themselves friendly to Europeans,

have now lost their influence over their people, and are looking to the

Government to keep the peace among their tribes.,,297

Similarly reflecting on his first three months in Wellington, Lieutenant-Governor Grey now concluded,

"the younger men and the slaves have almost wholly emancipated themselves

from the authority of the older chiefs, while, the Government having set up no

authority in the place of that which had been destroyed, a number of reckless

young chiefs have sprung up."

He outlined arrangements for his absence over the winter. He stressed the confidence brought to the region by his large military presence, observing "that since the arrival of the that force, we have stood somewhat in the position of conquerors." As no physical force alone could be sufficient, though, it was "incumbent upon the civil Government...to support the naval and military authorities by civil establishments."298

296Mulgan, p 129 in Doc A43 P 238; Grey/Gladstone 14/9/46, in A33 pp 15-16.

297Clarke Report 1/1/45, in A32 P 125.

298Grey memorandum to military authorities 19/4/46, in A32 P 177. On 27 June the previous year, the Governor's Office had received news of a substantial increase of military forces from Britain, and on 23 July, Stanley had approved FitzRoy's 1845 Ordinance providing for compulsory civilian militia service in New Zealand settlements. 117 Grey returned to Auckland. While there, he received Richmond's grim reports of skirmishing and chasing Rangihaeata and Kaparatehau around Pautahanui (and apparently the Tawa Flat/Ohariu area), with the reluctant "mercenary" assistance of Te

Puni's people. Six soldiers died, about 200 settlers fled the Hutt, Wellington was fortified and an additional 180 'volunteers' concentrated there. The only bright spot was

Captain Russell's commencement of wide military roads into the Hutt, to which Te

Rauparaha's men naturally applied themselves with zea1.299

Grey requested additional troops from New South Wales, confident that "accomodation for them can be readily procured at [Wellington]," and returned himself to Wellington 3 as soon as weather permitted. °O

He soon discovered Te Rauparaha's love of military roads had not extended to lifting his tapu of the critical road past Taupo pa - and so took him prisoner on 23 July.3Dl

Throughout July-August, then, Te Atiawaffaranaki under Wi Kingi helped Grey block

Wanganui maori coming down the coast to help Rangihaeata; Te Atiawaffaranaki

Troop placements as Grey left them are given at A32 p 178.

299Grey/Gladstone 20/6/46, enclosing LastlRichmond 18/5/46 & Richmond/Grey 19/5/46; Grey/Gladstone 20/6/46, enclosing Richmond/Grey 2/6/46 [evacuation and town troops] & SinclairlRichmond 20/6/46 & Superintendent of Military Roads, Russell/Grey (n.d.); [maori on roads] Grey/Gladstone 20/6/46, enclosing Richmond/Grey 3/6/46 and LastlRichmond 8/6/46 [maori mercenaries]; Grey/Gladstone 21/6/46, enclosing Mamake/Wanganui maori; all in A32 pp 179-187. General cooperation of Te Rauparaha at this stage, see Grey/Gladstone 7/4/46, in A32 P 17l.

300Grey/Gladstone 20/6/46, in A32 P 180. Returned: Grey/Gladstone 25/6/46, and Grey/Gladstone 2n/46, in A32 p 188.

3DlSuspicious of Rauparaha: Grey/Gladstone 9n/46; Grey/Gladstone 20n/46; Grey/Gladstone 21n/46, all in A32 pp 190-195; seizure: Grey/Gladstone 23n/46, in Ibid. p 196. 118 under Te Puni helped fight Rangihaeata at Pauatahanui and Horokiwi; and Ngati Toa under David Puaha fought at both the Hutt and up the Coast.302

Thus, by the end of August, Grey cleared the region of Ngati Toa and Wanganui

"rebels," and returned to Auckland, leaving no doubt as to who was now "Chief' in

Wellington region.303

The war brought the end of patience on all sides for continued disputes over mana whenua, title and encroachment. It both marked and contributed to Te

Atiawarraranaki's desire for the Crown to assume a united, tighter control - greater protection of their habitations and title, now against rival iwi in addition to the settlers' encroachments.304 This, at precisely the time when both Home and Colonial

Government wished to assert such tighter control. Maori acquiesced and the Crown hardened in the valorisation of settled cultivations over "waste." This was possibly a reversal of Te Atiawa/faranaki's traditional values30s - a revaluation of mahinga kai

302Mulgan, pp 137-141 in Doc A43 pp 239-241. The military reports that we have seen indicate, contrary to popular belief, that Ngati Toa fought a bit longer and harder than Te Atiawaffaranaki both at Pauatahanui and up the Coast. See Richmond/Colonial Secretary 1/9/46 in A32 pp 203-204, Stanley/Colonial Secretary 23/8/46, Ibid. P 205; Servantes/major Last 24/8/46, in Ibid. P 207. Richmond's extensive reports in Archives NM10 series might clarify the point better.

303Grey/Gladstone 31/8/46, in A32 P 197; Grey/Gladstone 18/9/46, in A32 P 203.

304See e.g. Richmond Minute 16/8/46, in A32 P 198: "the settlers and ... native allies .. .felt they were one people, bound together by common interests."

30SE. Wilson Wilson, Land Problems of the New Zealand Settlers of the 'Forties, p 204, in Doc A43 p 253a. In 1850, Kemp reported, "the natives are scarcely for many months together staionary; and so with regard to their cultivations; it frequently happens that the same individual has cultivations in two or three different parts of the country as his inclination guides him, or the locality is good." Kemp Report 1/1/50 in A33 p 138. In setting aside four large blocks of unsurveyed "wild lands," perhaps the 1847 exchanges did not so much settle titles as peoples. 119 at the precise time when both Home and Colonial Government were about to claim them once-and-for-alI in the arrangements promoted by the new Special Commissioner, and the Constitution promoted by the new Secretary of State for the Colonies. 120 Preparing to Re-negotiate

By April 1846, both the Government and the Company surveyors reported only 1530 to

1980 acres of arable land in all the Company-selected reserves.306 Wakefield fOlwarded these estimates to Superintendent Richmond, along with a revisionist defence of the Company's reserves' capacities. He claimed the Company-selected reserves were

"most ample, not only to supply the 500 natives residing in this District with

convenient places of residence and land for tillage ... , but to furnish a very

considerbale revenue for their physical and moral amelioration.,,307

He still blamed the complaints and fears of shortage entirely upon the Government's early rejection of the Company's purchase, and the confusion which had prevented the

Company from developing their own reserves system.308

He also retained detailed opinions on where tangata whenua ought to live: he suggested to Richmond that maori at Waiwhetu could move to Hutt Sections 16 & 20, those at

Ngauranga to Kinapora 7, 8 and 9. Pipitea, "besides the excellent town acres in a block at the back of their pa," could cultivate part of the Otari block. Kumutoto, "in addition to the large patches they occupy in the Town Belt," could join Te Aro at Polhill Gully,

Newtown and Ohiro. And he added,

306Both reports included in Willis Report 4/4/46, in Crown Law volume of C0208 extracts, p 193.

307WakefieldIRichmond 13/4/46, in Crown Law volume of C0208 extracts, p 150.

308Ibid., pp 150-152. 121 it must be borne in mind that they nearly all possess cultivations outside the

lands surveyed and allotted by the Company and some to a very considerable

extent, and that they participate in cultivations with their relations in other places

[e.g. Parangarau, Muka Muka, and Warepapa]."

He dismissed tauranga waka as "ancient prejudices" to be replaced by a public wharf.

Wakefield concluded, "No want of food could possibly arise therefore from these natives being restricted to their [Company-] reserved property."309

In addition to maori complaints and pakeha controversy over the reserves, in May

Governor Grey received Dr. Fitgerald's discouraging report on maori health in the region. The Doctor told Grey that maori were "astonished" at his healing powers

(especially surgical techniques), but that their health continued deteriorating due to simple things:

"The prevailaing diseases are those of the chest, aggravated and hurried to a fatal

termination by the use of the blanket as clothing, a meagre diet, and filthy

habits. ,,310

Fitzgerald's recommendations reflected the diversity of a frontier doctor's concerns:

The remedies I propose are first to discourage by every means the use, or

rather abuse, of blankets, except at night. Secondly, to try and introduce some

clothing which will protect equally all parts of the body. This I intend enforcing

in the Hospital which Your Excellency will be the first to establish. I have

309Ibid. pp 152-156.

310Sinclair sum 7/9/46, of Fitzgerald Report 10/5/46, in Crown Law volume of lA1 extracts, p. 279. Astonishment" p 291. 122 written to Nelson to find out whether the material manufactured there would be

suitable for Hospital dress and if so whether it could be produced cheap enough

to enable the Natives to purchase suits on leaving the Hospital. If so I have no

fear that on my recommendation a demand for them would be created, for the

sick on recovery will be afraid to take to their blankets again.

This will benefit the Natives, and create a new want, which will tend to

make them more industrious to procure the means wherewith to purchase

clothing, the importance of which they already see. The only draw back is that

our clothing is too expensive. This is the only objection that they have for they

are quite sensible of the ill effects of the blanket. This plan will also benefit the

white people from the demand for it (the material) if once it succeeds of which

I have little doubt as far as the Natives are concerned.311

The planned hospital was to provide "practical illustrations of the comforts of a cleanly and civilized life, which would tend very much to wean them from their old habits."312

The doctor prescribed "patience and steady perseverence" in moving maori into

European-style housing.313

Similarly diffuse concerns drove Grey's intensive road-building to Porirua and the Hutt.

The road-works introduced many Te Atiawa/Taranaki into waged labour for the first

311Pitzgerald Report 10/5/46, in !Al extracts, pp 298-99.

312Pitzgerald Report 10/5/46, in Ibid. P 289.

313The 1842 "Ordinance for Imposing a Tax Upon Raupo Houses" had provided for occasional Proclamations levying fees of 20 pounds per raupo dwelling, and fines of 100 pounds for building any new raupo dwellings. See Wai 145 A7(b) pp 1-2. No Proclamation appears to have been issued at Wellington, though, where maori still had only 9 weather-boarded houses and 202 "huts" at the end of 1849. See Kemp Report 1/1/50, in A33 P 143. 123 time, using European-style machinery and organisation - some under W. B. D. Mantell's direction.314 By 1848, Lieutenant-Governor Eyre wrote to the Superintendent of

Military Roads, Captain Russell, as if to a missionary:

"His Excellency desires me to add he is rejoiced to find that the exertions of

yourself and the Superintendenants under you have been so successful in the

management of the native race, and to learn that the wild, uncontrolled, and

indolent habits of savage life are rapidly being exchanged by almost a whole

people for those of order, cleanliness and industry."315

Paying 2/ per day to mostly maori labourers (up to 3/ for rangatira), the roads brought about 15,000 pounds to Wellington district every year from 1846 to 1849.316 To give a sense of scale, a maori worker could have purchased with his occasional day's wage: two pounds of pork, three loaves of bread, 1;2 pound of butter, and a pound of sugar -

apparently a classic subsistence wage. A goat or pig would have cost about five full days' wages.317 In June 1847, Captain Russell reported he had paid out 3274 pounds to the approximately 350 maori he had employed up to that time.

The money thus acquired appears to have been peacefully expended in the

purchase of flour, European clothing, agricultural implements, mills, cooking

utensils, and occasionally in the purchase of breeding cows and mares. In

314Ian Wards, pp 258-262 & 264 in Doe A42 pp 127-130.

315Eyre/Russell 3 February 1848 NM 5/1/48/35 in Doe A43 P 250.

316Wage estimate based on Russell/Grey -7/46, in A32 P 184. Wages did not generally rise between 1846 and 1848: see Census Table No. 26 in A33 P 110. Expenditure at Table No 28 p 112.

317See Table No 26 in A33 P 110. 124 Wellington, the sale of blankets is fast giving place to that of trousers, caps,

boots, blue shirts, etc.,,318

Doubtless also around this time, in one of his "many interviews" with the Governor,319

Col. Wakefield impressed upon Grey the urgency of finally securing the Company's

"title." The Company settlers' titles to land in the region had remained insecure for seven years - and now the war had threatened even their physical possession. Who would buy land from a Land Company that could not secure its purchases even after seven years? The Company was in crisis. It had suspended trading once, and had re- opened for business only on the hope of a Crown bail-out (which soon arrived in the form of the 1846 & '47 Loan Acts).

According to Miller, little settler land in the region was under cultivation or being developed. Loans remained difficult as long as the Company's purchase remained unsecured by grant.320 The main source of finance in town, the Union Bank of

Australia, soon found itself stretched by its advances to the Government to fund the fighting.321 By late 1846, Wakefield and the Company were generally reviled by their

318RusseWGrey 24/6/47, in A33 P 35. Note in August, Major Richmond reported over 600 maori working under Russell and Fitzgerald. Richmond/Grey 1/8/47. In January 1850, Kemp estimated Wellington maori were spending at a rate of 25 shillings per person per year on "articles of European manufacture," totalling about 6000 pounds for the district (including the Coast and Wairarapa). See Kemp Report 1/1/50, in A33 p 139.

319Wakefield/Directors 10/9/46, in Crown Law volume of CO 208 extracts p 110.

32°Miller, Victorian New Zealand, p 173; P 55 cites GreylEarl Grey 12/4/47 reporting Te Atiawaffaranaki in Waikanae were underselling settlers - Doe A42 pp 226 & 222 respectively. See also CO 208 volume, p 326.

321See Archives NM 5/1 Volume of Eyre/Grey correspondence for August - November 1847. 125 own settlers and investors, and threatened with costly lawsuits in the Colony as well as at Home.322

On 16 June 1846, Grey informed Wakefield of Major McCleverty's appointment. He assured that McCleverty's first task would be to effect "the speedy selection of lands to be chosen by the New Zealand Company" around Wellington.323 Characteristically,

Wakefield reported to his Directors that McCleverty was to "facilitate the speedy acquisition ... of the lands excepted from the grant of the Port Nicholson Block."324

Grey had already dabbled in addressing insufficiencies in the existing reserves and stopping settler/maori encroachment in Karori, Ngauranga, Otari and Waiwhetu. He knew more problems remained: by this time even Te Puni complained that the reserves in Taita were unavailable, having been occupied by settlers.325

By this time, Te Atiawarraranaki were in the position - almost unique amongst maori -

of having already been, numerically, a vastly "minority" group in their own Whanganui a Tara for about five years. By 1843, they were outnumbered five- or even seven-to- one.326 The ratio only worsened from there, as pakeha numbers levelled off around

1846 (at around 6000), and Te Atiawarraranaki steadily declined for the next few decades (hitting 161 in the 1874 census). The significance of this needs to be

322Miller, Victorian New Zealand, pp 112-113 in Doe A42 P 224.

323Sinc1airIWakefield 15/6/46, in Crown Law volume of C0208 extracts, pp 86-87.

324WakefieldlDirectors 18n/46, in C0208 extracts p 85.

325Mulgan, p 127 in Doe A43 p 237a.

326See settler populations in A33 p 99, and maori populations from Dieffenbach (1841) and Canterbury Times (1842) in A42, pp 126 emphasized here, not because it is subtle, but because it is might escape notice due to its uniqueness for this period in New Zealand history: probably, by the start of Grey's

Governorship, to be maori in Whanganui a Tara meant already to be confronted with a daily personal choice of 'remaining maori' (and risk being alien from the majority) or

'becoming pakeha' (and risk being alien from your family and friends). It is difficult to imagine what in traditional maori society would have prepared Te Atiawaffaranaki individuals for this rapid shift to a characteristically insecure, modern self-understanding.

Likewise, Te Atiawaffaranaki ngakinga had been insecure for as long as the settlers' titles, on average being gardens of a few acres surrounded by hundred-acre settler claims.327 Plus, pastoralism had begun to take hold over the preceding three years:

1200 more horned cattle had moved into the settlement (almost doubling numbers); in

1846 alone over 8,000 more sheep arrived (again almost doubling the total).328 The trend was clear, and both rangatira and Kawana knew all too well the problems livestock brought to relations between the races.

Now on 10 September 1846, Wakefield notified Grey that the Company Directors had formally refused to uplift FitzRoy's grant.329 He pressed upon Grey the Directors' recommended alternative. Only two kinds of lands should be excepted: those which had been in continuous cultivation from before pakeha settlement to the present, and those taken into cultivation after settlement, still in cultivation, and not claimed by the

327See McCleverty Report 21/4/47, in A26 P Dll.

328See New Munster Statistics. 1841-48, in A33 pp 97, 102 and 103.

329Wakefield/Grey 10/9/46, in Crown Law volume of CO 208 extracts, p 118-122. Refusal itself: Directors/Gladstone 28(2/46, in A32 P 143, and DirectorslWakefield 31/3/46, in Crown Law volume of C0208 extracts, p 349, where the Directors praise Wakefield's "firmness and moral courage" in backing out of the agreement. 127 Company.330 The Directors' alternatives are nothing short of bizarre, though. Given soil depletion, the first category was empty virtually by definition, and the second category was equally empty, given that Fitzroy's grant only comprised lands selected and sold by the Company. In short, Wakefield urged Grey to make no reserves out of the

Company's claim other than those already selected by the Company.

Incredible as such a stance (at such a juncture) seems in hindsight, Wakefield again reported to his Directors as if Grey had actually approved:

"The Governor has instructed Mr. Commissioner McCleverty to act, in concert

with myself, to induce the natives occupying [the excepted cultivations] to yield

them up upon being put in possession of their own reserves and receiving

compensation so far as the sum of 400 pounds ... will effect the object."331

Note that because they had been away at Rangiteke during the first round of releases in 1844, Ohariu only now signed their release on 27 August 1846.332 Wakefield and

Richmond, both present at the signing, knew by then that the Company Directors were likely to reject the terms of the release. Lieutenant-Governor Grey probably knew that the Company had rejected the terms of Ohariu's release even as he minuted his approval of it.333 Apparently Company and Crown nevertheless wished to move

330Wakefield/Directors 10/9/46, in Crown Law volume ofC0208 extracts, pp 116-117.

331Wakefield/Directors 10/9/46, in Crown Law volume of C0208 extracts, p 113.

332Away see Spain/FitzRoy 13/4/44, in A32 P 114. Deed of Release 27/8/46, in Crown Law volume of IAl extracts, pp 303-304.

333Both present: Richmond/Sinclair 14/9/46, in Ibid. pp 301-302. Grey's approval (n.d., but presumably later than 14/9/46), p 302. Henry St. Hill and Dr. Fitzgerald were also present. The release only differs from the 1844 versions in that it substituted "at Ohariu and Makara" for "at Port Nicholson." 128 Ohariu onto the same footing as the other maori in the region, so that McCleverty could deal with them more efficiently.

In sum, Governor Grey had learned much by the time he was faced with the Company's repudiation of the existing purchase agreement. He had learned that the lands excepted so far were ill-defined and insufficient (unless adequately supplemented by lands in the unsurveyed areas). But he had heard Wakefield's all-embracing plan for maori resettlement, throwing into the balance Te Atiawa.{faranaki's ngakinga in the lands

"outside the lands surveyed." He had learned of Te Atiawaffaranaki social and physical malaise, but had heard how roadworks could remedy effete tribalism and landlordism -

and how a hospital could replace old ways with new wants, and build a cleaner and healthier maori society. 129 What was to be Done

Soon after arriving in New Zealand, around February 1846, Grey began "altogether to remodel" the Protectorate. He made George Clarke sen. sole Protector, Clarke jun. the sole Interpreter, and promised that all former employees of the Protectorate would be considered for "appointments to native schools or institutions."334

The sole Protector, meanwhile, was quick to complain to the Home Government of

Captain Grey "being so constantly with the troopS."335 In his turn, Grey complained the Protector was not "fitted ... to watch over and promote the interests of the natives. ,,336

By the end of the wars, Governor Grey decided upon more sweeping changes. He altogether abolished the Protectorate, and in its place created a Native Secretariat - in

Wellington converting Superintendent Richmond's Personal Secretary, Henry Tacy

Kemp, into a sort of "Colonial Secretary of Native Affairs, with no separate establish- ment of his own, being an officer mixed up with the general Government.,,337 He began building Dr. Fitzgerald his hospital (see next section). He resurrected the function of Crown Prosecutions of criminal offences, created Resident Magistrates'

334Cannot photocopy: old bound volume lA 4/271 CS outward letters to Protectorate, Sinclair(Grey)/Clarke Sen. 5/2/46 pp 199-200.

335Grey/Gladstone 20/6/46, in A32 P 184.

336Grey/Gladstone 4/2/47, in A33 plO.

337Grey/Earl Grey 4/2/47, in A33 P 92. Information on Kemp from 1847 New Munster Blue Book. .. 130

Courts for civil disputes involving under 100 pounds, and doubled the frequency of

Supreme Court sittings for larger civil disputes. He prohibitted sale of guns to maori, and employed them in roadworks.338

In 1848, the streamlined Resident Magistrate's court in Port Nicholson saw civil cases involving maori almost weekly - most initiated by maori. And the maori assessors in St

Hill's court were appointed in September 1847, right in the middle of McCleverty's arrangements.339 We will see that Grey located his hospital, begun at the same time as McCleverty's inquiries, conveniently behind Pipitea pa (where Kemp recorded in

1850, "the mortality... within the last two or three years was very great.") Built with a

Parliamentary grant340 at the behest of their friend Dr Fitzgerald, it naturally appeared quite a boon for the first few years.

The Cambridge history summed Grey's approach:

"By pensions and gifts and the spell of his magnetic personality, he acquired

among chiefs an influence which no white man had previously obtained. This

influence, being almost entirely personal, served to disguise the fact that Grey's

approach was based on a wrong principle. It is now generally acknowledged that

the best method of treating the Maoris would have been to preserve as far as

possible their own tribal organisation and to maintain the mana of the chiefs.

338Grey/Gladstone 4/2/47, in A33 pp 10-12.

33~ables 40 and 42, New Munster Statistics, in A33 P 116.

340NM Blue Books 1848 - 1853, pp 131 Grey replaced the prestige of the chiefs by his own personal authority, and, when

that was removed, native troubles quickly broke out again."341

More important in the long run for Te Atiawatraranaki, though, than the gifts, the roadworks, the hospital or the courts, Governor Grey decided to re-negotiate the Port

Nicholson purchase agreement virtually from the ground up. On 14 September 1846, he issued instructions to Colonel McCleverty regarding the survey and exchange of cultivations.342 Despite its central importance, though, it would obviously be facile to treat Te Atiawatraranaki's "acquiescence" in McCleverty's resettlement arrangement as in any sense isolatable from these other innovations of Grey's.

Conversely, McCleverty's work was determined by Grey's perception of the situation.

In particular, Grey's "long interviews" with Wakefield quite clearly influenced his instructions to McCleverty. The instructions began with a justification of Grey's official repudiation of the existing agreement.343 He described Te Atiawatraranaki's existing exceptions as "very vague," claiming an inability to discriminate between cultivations begun after the releases' signing (1844), and cultivations begun before the formation of the Colony (1840).

341Cambridge History, p 87. In fairness to Governor Grey, no matter how much his approach suited his personality, it did simply reflect his instructions to "stand in all matters between the colonists and the natives." Gladstone/Grey 31/1/46 in AJHR 1883 A3 pp 4-5.

342A26 pp AI69-73.

343In 1844, FitzRoy overrode Te Atiawatraranaki's complaints against the 1500 pounds compensation, with stern reminders that they had agreed to enter binding negotiations, and so now must abide by the umpire's (Spain's) decision. No such reminders appear to have been imposed upon the Company, who were not penalised for backing out of negotiations in May 1843, and in 1846 positively benefitted from repudiating the central terms of the purchase agreement. 132 Note, though, the definitions had not apparently pained or confused the official charged with physically pegging the resultant boundaries to the land, the Assistant SUlveyor, T.

H. Fitzgerald.344 Rather than any official confusion, Grey cited settlers' discontent with the sUlveyors' decisions. One can confidently infer from Fitzgerald's 1845 Karori report that the releases' ambiguities could have only made a difference, at most, of 100 acres out of the 2500 acre Karori district.345 Indeed, McCleverty later determined that

FitzRoy's arrangement entitled Te Atiawaffaranaki to only 639 acres of pa, cultivations and burial grounds within the Company's 71,900 acre purchase area. Even if

McCleverty had been twice as generous in his application of the "vague" definitions, the difference would have only amounted to about 1 % of the Company's claim. One must conclude that "vagueness" per se was not Grey's great problem.

Grey offerred McCleverty other background information. He explained that, as the

1839 purchase had been followed by loose settlement, maori had continued prior to

1844 to clear new cultivations on lands the Company had sold to absentees. At the same time, the titular trustees of reserves had "let some of the best of the [Company- selected] reserves on very long leases to Europeans." Hence, "having no other lands to go upon," maori could not remove from their cultivations and onto the reserves.

Here again, though, Grey's link between exception of cultivations and the inadequacy of the Company-selected reserves was quite specious.346 In January 1844 Wakefield complained to Governor FitzRoy against excepting Te Atiawaffaranaki's "new

344Fitzgerald/Richmond 18/9/45, in A40 pp 27-32.

345Fitzgerald/Richmond 18/9/45, in A40 pp 27-32.

34~roughout, refer also to Grey's understanding of his early exchanges at Waiwhetu and Otari in Grey/Gladstone 20/6/46, in A33 p 2. 133 cultivations," and was promptly told that they would "unquestionably" be excluded from the Company's claims.347 Being previously excepted from the Company's purchase then, these lands posed no problems in 1846 of resettlement for Te Atiawa. They did not exacerbate any insufficiency caused by the leasing of reserves. (Quite the opposite!)

They did, however, promise lawsuits for the Company.

Grey explained to McCleverty how he had approached the situation so far, effectively instructing McCleverty to do likewise. First, where maori were to be removed from non-excepted cultivations the "bona fide property of settlers," Grey had purchased adequate reserves for them "in spots selected by themselves." This must have referred to Grey's handling of either Taringa Kuri or else of Waiwhetu. But Kuri's Hutt cultivations were by no means the "bona fide property of settlers" when he entered upon them in late 1842, and as we have seen, probably were not even at the time of Grey's

1846 arrangement. Again, Grey's instructions appear to have missed the mark.

Next, Grey instructed that where legitimately excepted cultivations interfered with settlers' claims, but were surplus to the maori owners' requirements, McCleverty was simply to encourage maori to sell them to the settlers "at a moderate price." This was precisely what Clarke, Spain and Shortland had refused to do for Wakefield in 1843 - include occupied lands in the negotiations for purchase. In 1844, Governor FitzRoy had

347Discussions, see Forsaith minutes, 1/2/44, in AlO( a) Doc 6 bottom of p 17 to top of P 18. This decision was subsequently reflected in the wording of the exceptions in Spain's award and FitzRoy's grant. Wakefield questioned it, though, in his letter to Richmond 15/6/46, where he denied that FitzRoy had excepted any post-colonisation cultivation which were "included in those lands which the Commissioner shall report to be fairly purchased from the natives." He saw this limitation on exceptions as "practically acknowledged by His Excellency Governor Grey taking possession for the settlers of the Valley of the Hutt" in 1846. 134 sternly reminded Wakefield that such a course of action would have contravened Lord

Stanley's views. 348

Finally, if legitimately excepted lands (pa, cultivations or sacred places) interfered with settlers' claims, and the maori had insufficient lands elsewhere, McCleverty was to persuade maori to remove to sections they selected themselves, which the Government would purchase (and recover compensation for from the Company).

Obviously, the Company's new license to negotiate for the purchase of the lands that maori currently occupied and used for sustenance was frought with potential for abuse -

especially negotiating under a waiver of pre-emption. It was a course of action quite consciously avoided by Grey's predecessors. Equally obviously, though, Grey towed a

Company line in his instructions to McCleverty: he raised "vague definitions" but acted upon "disputed by settlers;" he pleaded "insufficient reserves" but then addressed

"expensive lawsuits;" he indicated lands as "legitimately excepted" but then declared them "included in negotiations."

Even to be included in negotiations, though, lands must first be adequately defined.

Given that "the Government were pledged ... to secure ... all the pahs, burial places, and grounds actually in cultivation," Grey directed McCleverty to settle "at once ... what lands are included in Governor FitzRoy's arrangement," i.e., "to ascertain exactly which lands the natives are entitled to."349

348Forsaith Minutes 112/44, in A10(a) Doe 6 p 17.

3490f course, if McCleverty could "ascertain exactly which lands the natives are entitled to" under FitzRoy's arrangement, then couldn't he have implemented that arrangement? 135 Grey advised further,

"it would be essential that every exchange of this kind should be one which is

rather advantageous to the natives than otherwise.... Such an arrangement can be

only carried out by the immediate expenditure for the purchase of the requisite

lands, on the part of the Government.350

It would be very expensive settling all the disputed excepted lands in the same manner that Grey had approached the Hutt and Waiwhetu. Hence, Grey explained,

"If such an expenditure were never to be refunded, I should feel justified ID

incurring it. A settlement of this vexatious question ... will save a large military

and naval expenditure, and will extensively promote internal production and

commerce - but the fact is, that besides producing these advantages, the expense

incurred may very soon be refunded to the Government from the sale of some

of the native reserves .... In lieu, therefore, of these at present unavailable reserves,

the Government is about to put them in possession of lands adapted to their

wants, in other words, to exchange certain lands for reserves, which will

consequently not be needed for the future wants of the native population, and

will therefore ultimately form a source from whence the Government may

reimburse itself for the expenditure at present incurred.351

In other words, Grey planned to sell Te Atiawa!Taranaki's most profitable excepted lands (those already leased) to purchase relocation-sites onto which Te Atiawa!Taranaki

350Grey memo, A26 p A170 (emphasis mine).

351Grey memo, A26 p A170 (emphasis mine). 136 could move from their traditionally occupied lands. Te Atiawaffaranaki would lose both their lands with greatest use value, and those with the greatest exchange value.

To effect this extraordinary scheme, Grey advised "judicious management." In order to avoid "creating any combination amongst the natives," he encouraged McCleverty to sell only one excepted area at a time "as the Europeans require the land." McCleverty was to get it all down on paper and registered, specifically so that "the Government would be enabled to ascertain the portions of country to which the natives had valid claims, and those portions which might be regarded as waste lands belonging to the Crown."352

McCleverty Sets to Work

While in the end McCleverty's work did determine which lands would remain with maori and which lands would be claimed by the Crown, it did not overly closely resemble Grey's planned approach. For instance, there were no more purchases of sections for exchange. Probably because oLthis, the Crown also did not claim leased and "unavailable" reserves in order to sell them; it claimed them in order to supply its own military, eleemosynary, ecclesiastical, and educational needs.

Still, Grey's 1846 instructions provide our best available picture of McCleverty's initial aims, his first impression on Te Atiawaffaranaki - and probably a hint of his methods -

352Grey also mentioned maoris' refusal to occupy reserves in other hapus' rohe. He directed McCleverty not "to sanction the purchase of any large district" without setting aside adequate future cultivation lands in areas selected by maori themselves. The reference to "purchase" probably indicates Grey was referring here to problems in Wairau and Nelson - as in the preceding and following paragraphs. Still, the instruction seems to have informed McCleverty's arrangements of large blocks at Ohariu, Korokoro, Parangarahu and Orongorongo. 137 in re-negotiating the Port Nicholson purchase agreement.353 He does not seeO to have gotten off to a fast start. After arriving at Wellington on 23 September,

McCleverty apparently spent the first several weeks on military duties, e.g. assuming some sort of oversight, as senior military officier, of Court Martial proceedings against maori "rebels" captured in the recent disturbances.354 Sometime in the first two months, McCleverty also heard and approved the Royal Engineers' plans to build temporary barracks at Mount Cook.355

In December 1846, McCleverty wrote to Wakefield about "facilitating their [Te

Atiawatraranaki's] willing removal from land required by the settlers." He apparently suggested using blocks of land "in the unsurveyed land within the Port Nicholson grant."356 By this time, McCleverty would have gotten his own taste of Port Nicholson purchase politics: a dispute arose over Te Aro maori moving onto lands awarded them in 1844 (upon which a settler had begun building a house); this dispute elicited a challenge from Daniel Wakefield that Commissioner Spain had never been duly sworn as Land Commissioner, and so exceptions under his award could be ignored.357

353McCleverty recorded only a couple of actual negotiations (at Te Aro and Ngauranga, where maori refused to negotiate) - and apparently kept no minutes of meetings. Almost all we have are his summary reports containing his own view of the resettlement he was implementing. Crown Law have apparently found a lone letter in MA 7 series, regarding "old cultivations" at Te Aro. We have not yet seen this. The surveyor, Park's, Field Book #43, at Wellington District DOSLI, might record part of resettlement discussions at Waiariki (n.d., no page numbers), but is almost practically unintelligible.

354Minutes of Hearing held 23/9/46 -13/10/46, in A40 pp 97-106. It is not clear what McCleverty's role was beyond authorising the results.

355CollinsonlRichmond 4/12/46, in A42 pp

356Wakefield/McCleverty 18/12/46, in Crown Law volume of CO 208 extracts, pp 407- 408.

357D. WakefieldlRichmond 21/12/46, in A40 pp 115-119. 138 Military engagements apparently then distracted McCleverty for until early the next year.358

McCleverty's work on the Port Nicholson purchase appears to have begun in earnest in

February 1847. On 4 February, McCleverty had met with Wakefield, and on 17

February, he told Grey he was apprehensive as Wakefield had insisted on gaining

possession of Te Aro pa. McCleverty had run into the real problem with the 1844

agreement - in fact the opposite of what Grey reported as 'vagueness:' the 1844

agreement rather too specifically excluded particular lands from sale/purchase - many which Te Atiawa!Taranaki absolutely refused to sell, and some which the Company

positively insisted on buying.

However, the remarkable aspect of this early report is not Wakefield's old intransigence,

but the unguarded description of his task which McCleverty had now adopted:

"the removal of natives from the country sections belonging to Europeans."359

Indeed, the next month, a settler at Ngauranga wrote to Superintendent Richmond,

asking about reports that

"an arrangement has been made for the Maories to locate upon the Native

Reserves and quit the sections they occupy in the neighborhood of the town

claimed by land purchasers under the New Zealand Company."

358Grey!Earl Grey 26/3/47, in A33 P 21.

359McCleverty/Grey 17(2/47, in A33 P 28. 139 Richmond responded "that Col McCleverty is endeavoring to make arrangements so that all the sections belonging to settlers in this District may be freed from Native

Cultivation."360 Just five days later, along with McCleverty and Kemp, Richmond signed the first deed, "freeing" settlers' sections from Te Aro's cultivations.

Perhaps we cannot, after all, characterize McCleverty's aims more accurately than

Wakefield did (above): McCleverty did not come to negotiate, but to "facilitate the speedy acquisition ... of the lands excepted from the grant of the Port Nicholson Block."

Which rather forcefully begs the question, where so many before them had failed, how now did Governor Grey and Lt. Col. McCleverty gain Te Atiawaffaranaki's "willing removal" from their traditional ngakinga and mahinga kai?

36°HartlRichmond 17/3/47, in A40 P 131; RichmondlHart (via Grimstone) 17/3/47, in Ibid. P 132. 140 Resettling Tangata Whenua

In 1848, the Wellington District Registrar labelled some of the McCleverty's 1847 deeds merely "contracts," and others more specifically as "exchanges." From time to time,

Governor Grey, Lieutenant Governor Eyre and Lieutenant Colonel McCleverty each characterised the 1847 arrangements removing TeAtiawa/faranaki from their Company- claimed ngaldnga as, alternately, "compensation" and "exchanges." In the balance, though, the exchange perspective predominated. As a result, the Crown's parameters for evaluating the 1847 arrangments, handed down to us even today, firmly settled upon those for evaluating commercial exchanges. For various reasons, though, we will see that it is doubtful how much the arrangements ever resembled "exchanges," and whether tangata whenua would have understood or evaluated the arrangements in such terms.

McCleverty's final report on the arrangements, 20 November 1847, definitely presented them as a process of exchange.361 McCleverty started the report with a description of the four forms accompanying: forms A and B were to "exhibit the lands excepted and reserved" (and with minor corrections became the schedules drawn on to the Crown

Grant, themselves effecting the exceptions). The other two forms,

tIC and D serve to elucidate the cause of lands, in unsurveyed Districts and on

the Town Belt, being extended in quantity to the Natives, beyond what they

originally possessed. ,,362

361Note also in Eyre's letter conveying McCleverty's report to Colonel Wakefield. See CO 208 excerpts, pp 250-261.

362See McCleverty 20/11/47, in CO 208, pp 262-263, and the forms: "D" at 274, "A" at 275-76, "B" at 277-78, and "c" at 279-280. Note McCleverty's appellations for the Company-selected reserves in schedule "A" are their New Zealand Company Preliminary 141 He continued, summarising the forms, describing Te Atiawa/faranaki's ngakinga

"relinquished" or "excepted" - at points sounding every bit the Victorian Quartermaster, offended at such "scattered ... cultivations of most irregular forms and various sizes."363

The bulk of the report then goes to describing and defending the arrangements, characterising them throughout as "exchanges." McCleverty described, for example, how

Ngauranga (who had refused to relinquish the ngakinga immediately surrounding their pa) "agreed to relinquish" about 45 acres of "good land," for which "in return they receive"

- 100 acres of Native Reserve, Harbour section 6 - "on which there will not be as much land available for cultivation as relinquished by them"

- and "they join the Natives of Petone in the fishing station at Parangerau."364

In the end, the report stressed three aspects of the arrangements: first, that the exchange equivalents (as is clear from the deeds) were on the one hand "cultivations on settlers sections", and on the other, reserves and unsurveyed lands.

Second, that "the exchange had been much in favour of the Natives" in order to obtain their "willing acquiescence ... to relinquish the cultivations on settlers sections, which, in

Order numbers (order of selection), not their Town Acre numbers. Eyre's cover begins similarly, Ibid., pp 250-252.

363Ibid, P 264, although later in the report, (p 269) McCleverty conceded that it was because the traditional ngakinga lands were "the very best" that they were "therefore scattered."

364Ibid. pp 264-265. Cf. Eyre's cover, summarising the exceptions at ibid., pp 253-54. 142 quantity so much preponderated over those on Native Reserves and on unsurveyed land., ,,365

And third, that beyond this effort to obtain Te Atiawaffaranaki's "willing acquiescence,"

McCleverty had been concerned that

"If the cultivations and gardens only had been surveyed, defined and ultimately

assigned to the Natives, under the general meaning of Captain FitzRoy's

arrangment, the Natives would altogether have been deprived of fuel except by

purchase from the European Settlers, which I do not believe to have been

contemplated. "

And so, the exchanges had

"as far as practicable, and in convenient localities of their own selection, reserved

for their future wants, facilities for obtaining firewood and their future attention

to cattle. ,,366

But lest Wakefield should think McCleverty had been too generous with the Company's newly-acquired "demesne" (see below), McCleverty closed by tempering his assessment:

"The Lands now relinquished by the native are the very best selected on account

of soil, aspect, and vicinity to their homes, and are therefore scattered over a

large extent of country. The Land they receive in exchange, has not these

advantages, and it was therefore necessary to obviate some difficulty arising from

this, by reserving for them larger blocks."367

365Ibid., P 267, summarises paragraph beginning on p 265, describing and defending "the four large blocks at Orongorongo, Parangerau, the Korokoro, and Ohariu."

366Ibid., pp 267-68.

367Ibid., P 269. 143 He pointed out how generous Pipitea had been:

"Some of the natives of Pipitea Pah in the Town of Wellington are leasing

ground at the rate of 5/ per acre on a section belonging to Mr Alzdorf, on the

Lower Hutt, as they had no land to cultivate wheat on, having given a willing

acquiescence to relinquish their gardens on settlers sections. ,,368

He reminded Wakefield how reasonable both Crown and maori had been in the arrangements:

"The Natives are now put in possession of certain tracts of lands which the

Government had at disposal, either by purchase, or by a proprietary title to the

waste lands, or through the means of the Native Reserves; the Natives

relinquishing their cultivations, and in one case a small Pah on settlers country

sections. ,,369

McCleverty closed, summarising the cases where maori had not willingly removed, and defending the result:

"The exceptions on 5 Country sections and on the Town Reserves at Te Aro

were guaranteed to the Natives as their homes before and after the arrival of the

368Ibid., P 271. Eyre remarked "This is a remarkable occurrence and very forcibly shows that the Natives have not a sufficiency of land reserved for them in suitable localities, that they will not go to unsuitable ones, and that they are so rapidly advancing in civilisation and improvement and in industry, as to require a larger provision for them than was formerly considered necessary." Ibid. p 261.

369Ibid., P 271-2. McCleverty's implication, of course, was that it was now the Company's turn to be reasonable, by accepting a grant with the remaining exceptions. This was a strong message in Eyre's covering letter: see ibid., pp 255-59. 144 first settlers by Captain FitzRoy, and they refuse most decidedly to abandon

them.

I have the honour to be Sir ... "370

McCleverty's tone was efficient and fair but firm.

Unlike the proceedings preceding the 1844 releases, McCleverty's meetings with Te

Atiawaffaranaki were not of a judicial nature, and were not minuted. Similarly,

McCleverty and his surveyor, Scroggs, did not make plans of the ngakinga they were trading, which might, say, have been compared to those completed by Fitzgerald (which seem to have been lost). Of course, much information regarding, and general continuity with, the 1844 agreements was lost when Grey removed George Clarke jun. in early

1846. Hence, there are limited means with which to check McCleverty's own verSIOn of events, his figures, or his comparisons with the earlier agreement.

Yet, it is a version which "stuck," later informing Eyre's policy of claiming Company- selected reserves for the Crown, and then alienating many of those to fund public purposes. And we will see that Grey, McCleverty and Eyre's "exchange" also informed

Heaphy's estimates of compensation for the lost reserves in the 1870's. As such, the statements, figures and comparisons comprising this overall "exchange" presentation demand close attention.

37°Ibid., pp 272-73. Ngauranga pa and immediately surrounding ngakinga affected 3 Company-claimed sections, and Kaiwharawhara and Waiwhetu pa each affected one section. The remaining two acres of Te Aro pa affected three Company-claimed Town Acre sections. See column five on schedule B, p 278; or the schedules accompanying the grant maps Wakefield sent to the Directors, WakefieldlDirectors 28/2/48, in CO 208 excerpts pp 314-315. 145 McCleverty's table of "Cultivations at Port Nicholson" in his April 1847 report is almost identical to his Table C, dated January 1 1847, and enclosed with his final report in

November. Further, his district-by-district figures in this Table C match exactly his figures given ngakinga-by-ngakinga in Table D, which is also dated January 1 1847.

Hence, by January 11847, McCleverty had identified all the 528a Or 12p of Company- claimed ngakinga that were to be considered in his arrangements, ascertained their

'owners,' and measured each one to within l/160th acre.

McCleverty's figures for ngakinga - especially his statement that about 85 of the total

639 acres of ngakinga were "on Native Reserves"371 - do vaguely resemble R. D.

Hanson's 1842 estimates:

"in the immediate vicinity of the harbour there are perhaps about 500 or 600

acres which might be considered as occupied by the natives for the purpose of

cultivation. " and

"Of this quantity certainly not one third has been reserved for them [tangata

whenua]; I believe I might say not one sixth."372

One can readily spot anomalies, though: in both forms C and D McCleverty showed eleven cultivations in the Karori District, totalling 89a 2r 38p, all on settlers' sections -

about 43 acres belonging to Te Aro, 13 to Kumutoto, and 31 to Pipitea. Yet, in his

371In his first report, April 8 1847, in Turton Epitome, pp Dllff, and in his Table C in the final report, in CO 208 excerpts, p 280.

372Hanson letter of 24 May 1842, in Wellington Gazette and Spectator excerpts, p. 27 (first column). 146 report of all cultivations in the same district, 18 September 1845, T. H. Fitzgerald mapped and described only six cultivation grounds, totalling 132a 1r 34p. Just one of

Fitzgerald's grounds, which he reported was "one of the Principal Cultivations from which the Natives of Te Aro draw their supplies," comprised 101 acres - more than all of McCleverty's total for the District.373

The second column of McCleverty's Form C supposedly provided the acreages of cultivations in the unsurveyed areas. Although not the focus of his later "exchanges," these figures formed part of McCleverty's estimate of Te Atiawarraranaki's regional subsistence requirements (roughly 639 acres required for 633 people), upon which he claimed to have based his "exchanges.,,374 But here again, McCleverty's total of 233a

3r 8p of cultivations in Ohariu and Makara could not amount to half of the area of

"Gardens" shown on Fitzgerald's plan of 1843, covering almost all 1400 acres of the two

Ohariu blocks McCleverty later assigned (plus several large 'Gardens' behind the

Kaiwharawhara block that McCleverty did not assign).375

Similarly, McCleverty's figures included no cultivations on unsurveyed lands in

Wainuiomata, yet when later assigning this area to Petone, McCleverty himself claimed that part of its value to maori was that it already contained "extensive cultivations and other vegetable productions." The same was true of the unsurveyed Korokoro block, which contained no cultivations according to McCleverty's forms C and D and his April

373Fitzgerald/Richmond 18/9/45, in A40, pp 27-32.

374Report, 8/4/47, in Turton's Epitome, A27 p D10.

375See Fitzgerald, January 1843, in A43 P 147 report, but by his final reports contained "one or more cultivations of more than 20 acres. ,,376

What then can be made of McCleverty's estimates and provisions for Te

Atiawa!Taranaki's regional cultivation requirements?

On a more fundamental level, these same figures determined how much unsurveyed and

Town Belt land constituted fair compensation for Te Atiawa!Taranaki's Company- claimed ngakinga. In December 1846, McCleverty apparently confirmed that Wakefield was willing "to assent to the selection ... of a block or blocks of land ... in the unsurveyed land within the Port Nicholson Grant."377 This is an odd reference, as at the time the

Company pressed no claim to lands outside the surveyed and sold sections compensated, awarded and granted.378 By the time of his April 1847 report, McCleverty had decidedly "conceive[d] the... 137,472 [acres not specifically mentioned in FitzRoy's grant] includes the Town Belt and other unsurveyed lands as waste and pertaining to the

Crown. ,,379 Hence, their assignment to maori would represent an "exchange."

In fact, though, "exchanging" its title to the large excepted blocks of unsurveyed lands was the Crown's earliest clear assertion of a proprietary title to such unsurveyed lands in Wellington region. We have seen, first, that the 1844 agreements did not explicitly extinguish title to these lands - and that they had definitely not been compensated. And

376McClevertylEyre 26/11/47, in CO 208 P 266.

377Wakefield.McCleverty 18/12/46, in CO 208 excerpts, p 407.

378See above, p . It is difficult to guess McCleverty's intentions here without seeing his letter, which has not been located. 379 A26 P D13. 148 second, that most of the unsurveyed lands "exchanged" by McCleverty were occupied lands, most probably the very lands already slated as supplementary exceptions to the ngalcinga excepted from the releases in 1844.380 Hence, there was a strange circularity in McCleverty's claim to have "given up" any of the unsurveyed lands - let alone those that were already occupied by maori.

It is particularly unclear by what means the Crown could have claimed the unsurveyed lands or Company-selected reserves, after the 1844 agreement had been repudiated.

Any Crown claim to the unsurveyed areas as "surplus" at least presumed a valid prior purchase - the prior extinguishment of Te Atiawa/Taranaki title (as determined by a

Land Claims Commissioner). However, the Company's repudiation of the central terms of the prior purchase agreement, award, and grant - together with Grey and

McCleverty's determination to throw these very terms up for renegotiation - must have had the effect of at least suspending all but the vendors' interests in the region. The

Crown's claim to a proprietary title to any of the region could only then have been secure after agreement had been restored. Yet here, McCleverty claimed to restore agreement by "exchanging" the very title secured by that restored agreement. . The large

380See FitzRoy's concern to provide firewood, above, p 105. Spain's intention that the Crown follow "similar proceedings" - set aside compensatory reserves - prior to vesting the unsurveyed remainder, p d. Clarke's assumption that unsurveyed lands would supplement the exceptions from the 1844 releases (presumably including those already most heavily used, as at Ohariu), p . And Clarke's specific request to set aside the mouth of the Wainuiomata River, and Brees and Fitzgerald's apparent demarcation of the very area McCleverty claimed to have given in "exchange" in 1847, P These lands combined indicate that probably 13,127 of the 14,340 acres of unsurveyed land "exchanged" by McCleverty - (the 1432 acres in Ohariu, the 4705 acres at Parangarahu, and the 6990 acres at Orongorongo) had already been identified as supplementary exceptions prior to McCleverty. 149 blocks of unsUlveyed lands seem a shakey sort of exchange equivalent for traditional ngakinga, for which the Crown had repeatedly pledged its protection.381

As pointed out by Gilmore, the same applied to the Company-selected reserves, which

Grey, McCleverty and Eyre all counted as part of the exchange equivalent for nga ngakinga - lands to which Te Atiawarraranaki held clear customary title, even by the most miserly construction of the Treaty and earlier agreements. Hobson, FitzRoy,

Shortland and Stanley had all refrained from any strong assertion of Crown claims to the reserves, pending settlement of the land question. Grey and McCleverty, instead, settled the land question by "exchanging" these very interests which would only have vested (if at all) after the land question had settled.

It seems particularly perverse that most of the Company-selected reserves so

"exchanged" were also ngakinga - hence doubly secured to Te Atiawarraranaki in the

1844 releases, Spain's aw.ard and FitzRoy's 1845 grant. It hardly seems any new benefit to Te Atiawarraranaki over 1843-44, for instance, that the Company-selected reserves at Polhill Gully - almost wholly occupied and cultivated - were confirmed as Te Aro's by their 1847 deed.382 Petone's Hutt sections 1, 2, 3, 19, 20 and probably 57 and 58

(20 and 57 being shared with Waiwhetu) also contained cultivations.

381There seems to have been an aspect to this of "selling refrigerators to Eskimos," especially considering the Secretary of the Company's statement in 1848 that the Company could not sell and did not want these unsurveyed lands. See Harrington/Grey 7/4/48 GBPP 8 P 148, Doc A42 P 137.

382See D.L.R. Deeds Vol 1 Fol 311, copy in Turton Doe A27 on reverse of p 98. Dotted lines show areas under cultivation. These were apparently Te Aro's "favourite garden grounds." See New Zealand Gazette and Spectator 4/10/43, in Crown Law volume of extracts 1842-44, p 25. 150 Across the Harbour, as we saw above, McCleverty claimed Ngauranga had "agreed to relinquish" about 45 acres of ngakinga on Harbour sections 10, 11 and 12 because "in return they received" section 6. Yet, in 1842, Harbour sections 5 and 6 "were reserved at the express desire of Warepori," and contained "a large tract of native clearing."383

It is difficult to accept that Te Atiawa!Taranaki would have regarded the assignment of such ngakinga as a cost to the Crown, or as representing any new addition to their firmly-established title to their traditional cultivations. It is difficult to take the

"exchange" at face value.

Perhaps most problematic of all, though, was the simple self-contradiction in

McCleverty's claim to have identified and measured all ngakinga, when both Grey and

McCleverty stated in their official reports that the resettlement arrangements were necessitated by the vagueness of the 1844 agreement's definitions of pa and ngakinga.

Ifnga ngakinga had been found to be definite enough to "exchange" equitably (and even to measure in 160ths of an acre) then they must have been definite enough to equitably except from the Company's grant. Or alternatively, if ngakinga had actually been "too vague" to equitably exclude from the Company's estate, they would also have been too vague to equitably exchange out of Te Atiawa!Taranaki's estate.

One is led to wonder, if not vagueness, then what moved McCleverty? And if not equitable exchange, then what moved tangata whenua to cooperate in yet another renegotiation - not just including the previously non-negotiable pa and ngakinga, but this time focussing on those pa and ngakinga? By November 1847, Te Atiawa!Taranaki

383 Anon. response to Hanson letter, 4/10/43, in Wellington Gazette and Spectator extracts, p 25 (column 4). 151 had removed from and relinquished claim to 49 cultivations totalling 460 acres, leaving only 107 acres in 8 of their original ngakinga that had been claimed by settlers.384

This did not represent a large portion of Te Atiawaffaranaki's total reserves, but given their determination earlier to hold onto these very lands, and considering how unlikely it was that McCleverty offered them much less or much more land than they would have already expected, their "acquiescence" in removing from nga ngakinga demands explanation.

There are several possibilities. First, some of these same aspects of McCleverty's work that raise the fundamental question of whether there was any "exchange" at all, also indicate that there was an abstract quality to McCleverty's acknowledgement of ngakinga. FitzRoy's 1844 definition of "cultivation/occupation" already obscured matters, limiting the scope for considering maori cropping methods, and especially for respecting traditional ngakinga which had been left even shortly before pakeha settlement. When calculating the regional gross acreage required for Te

Atiawaffaranaki's subsistence, though, Lt. Col. McCleverty did acknowledge Te

Atiawaffaranaki's "imperfect mode of cultivation."385 He reported that the older cultivation areas formed "one of the greatest difficulties." Although they were "worn out and unfit for their uses," McCleverty found that maori were "unwilling to relinquish them without having others." Hence, he apparently tried to consider the role of old ngakinga in calculating a regional reserve requirement.386

384Eyre/Wakefield 25/11/47, NM 5/1/169 P 115-18 in Doe A43 pp 306-307. 385 A26 P D11.

386 A26 P D11. In April, McCleverty suggested "that an average value per acre [for clearing done by maori] should be paid by the settler or Company on being put in possession by Government of these portions." Presumably, this would have helped the Crown to compensate maori for the cost of their resettlement - perhaps to be kept by 152 However, this acknowledgment of the relatively migratory maori way went little further than calculating gross regional requirements. McCleverty's imperfect mode of calculation did not extend to protecting particular old ngakinga - apparently even some quite important ones which had been left to regenerate only after the early 1840's. None of the 1847 deeds, for instance, mention Te Atiawa/faranaki's recent labours in clearing and cultivating Raurimu and Haukawakawa, or in establishing kainga both at the mouth of Tiakiwai and at Raurimu itself.387 By consistent application of either the British or maori principles which gave priority to "possession" and "occupation," Raurimu and

Haukawakawa should have been accorded the Crown's closest protection as Te

Atiawa/faranaki "occupied" reserves, held under registered native title.388

However, Raurimu and Haukawakawa were only a few out of about 1400 acres of such

Company-selected reserves unmentioned in McCleverty's arrangements. Those at the fairly barren Newtown ridge, for instance, were evidently deemed "unoccupied" and not assigned to tangata whenua by any of the 1847 arrangements.389 Similarly, the 200 acres at Island Bay and the 200 acres at Lowry Bay/Wainuiomata, would have possibly the Crown to reimburse the purchase of lands to replace the lost ngalcinga. Governor Grey dismissed McCleverty's suggestion outright, though, as settlers "regard the number of years during which they have been kept out of possession ... as a loss which is by no means compensated for by their having this land now given to them cleared."

387Ward, Early Wellington, p 308 in Doc A42 P 220, citing NZ Journal 10/3/1849; also Adkin pp 60, 75-6, in Doc A42 pp 231-233. Wakefield/Directors27/2/40 in CO 208 P 2. WakefieldlRichmond 13/4/46, C0208 P 390 refers to the "excellent town acres in a block at the back of their pa, which they formerly cultivated with success."

388We will examine possible reasons the 1847 arrangements passed over Raurimu and Haukawakawa, and how the Crown claimed them, in the section on "Expropriating Reserves for Public Purposes."

389Note this was later contested; see sections entitled "Trouble at Te Aro" and "An Assent at Work," below. "Unoccupied" see New Zealand gazette and Spectator 4/10/43, in Crown Law volume of extracts 1842-44, p 25; Hanson seems to refer to this block as suitale for grazing land, which was its first use in the 1860's (see below). 153 only become of particular value to maori at the same time they became valuable to the pakeha investors who, in each case, purchased them in the 1860's (see below). Several other large blocks which were not mentioned in the 1847 deeds, including Makara 22 and 24 and Kaipakapaka/Ohiro 19 and 21, were only sparcely cultivated in the 1840's.

In these cases, confusion and dispute arose later.390

The Crown's intention in not mentioning such lands in any of the deeds no doubt rests in its prospective claim to them: in his instructions to McCleverty, Governor Grey explicitly anticipated claiming and selling Company-selected reserves to re-imburse the

Crown for the expense of removing Te Atiawaffaranaki from their cultivations. If one tries to ascertain the meaning of non-mentions for maori, though, one discovers an interesting aspect to Te Atiawaffaranaki's "acquiescence" in the overall arrangments:

Governor Grey also specifically instructed McCleverty to deal "with individual cases upon their own merits" because "there will be much less probability of creating any

combination amongst the natives, or extortionate demands from them." It is unlikely, then, that McCleverty discussed the overall "balance sheet" of his "exchange" with any maori while it was unfolding. Hence, it cannot be safely assumed that during the

resettlement any particular maori group knew whether any particular Company-selected

reserve had been assigned in somebody else's deed.

A second consideration in Te Atiawaffaranaki's "acquiescence" is that in mid-1847, their

native title suddenly and substantially deteriorated. All but two of the resettlements

390In 1872, Commissioner Heaphy decided a dispute over the receipt of the rents on Makara 22 & 24 on the basis of who had cultivated there. See Wai 145 A36 P 148. Kaipakapaka, see below. 154 were effected after May 1847, when news of the 1846 Constitution was received in New

Zealand - Earl Grey's preface to which scoffed at the notion that

"the aboriginal inhabitants of a country are the proprietors of any parts of the

soil of which they have been accustomed to make any use, or to which they have

been accustomed to assert any title.,,391

The Constitution gave a broader definition to the Crown demesne, and empowered proposed Provincial Governors to make grants out of it. Chapter 13 of the Instructions,

"On the Settlement of Waste Lands of the Crown," called for the compulsory registration of all maori interests in land. Lands not registered by a certain date would be investigated by a Land Court, and unless "occupied" - ie. successfully claimed "by means of labour expended" on the land - would revert to the Crown as "waste."392

The Constitution gave full sway to the principles which underlay Earl GreyNiscount

Howick's 1844 Select Committee recommendations; introducing it to Governor Grey,

Earl Grey stated:

"From the moment that British domination was proclaimed in New Zealand, all

lands not actually occupied ... ought to be considered as the property of the

Crown.,,393

391E. Wilson, p 208, Doc A43 P 255. This alone could explain how the large outlying blocks of unsurveyed lands were accepted as exchange for cultivations.

3921846 Royal Instructions Chapter 13 Clause 9 in Doc A43 P 284; Foden, pp 146-48 Doc A43 pp 268-269; E. Wilson, p 208 Doc A43 P 255.

393Earl Grey/Grey 23/12/46, Doc A43 P 277. 155 Earl Grey's despatch accompanying his Constitution strongly supported Dr. Arnold's principle "that labour alone conferred a proprietary title, a right which God had inseparably united with industry and knowledge."394

Overall, the new Constitution laboured under an over-complicated machinery, and an over-confident assertion of Crown authority viz. maori both in the North and the

South.395 It marked a clear shift in British policy and law away from the course set by the Treaty of protecting Te AtiawatTaranaki's possession of all their lands, and then by Hobson, of mediating claims of the Company and Te AtiawatTaranaki. FitzRoy, too, had been led by temperament, instructions, and sparce military resources, to follow a policy of respecting maori custom.

Now the concern was to erect Colonial self-government, assert a more general sovereignty, and "induce [maori] as quickly as possible to adopt European ways.,,396

Grey wrote in December 1847,

"The general line of policy I have endeavoured to adopt in reference to the

subject of legislation for the mixed races inhabiting this country has been to

convince the natives that their traditional customs had, in reference to their own

present state, and that of the country generally, become obsolete and

useless ... With this view, I felt that it would, perhaps be better not to require our

394Earl Grey/Grey 23/12/46, Doc A43 P 277; Foden, p 158 Doc A43 P 270.

395Cambridge History of the British Empire, Vol VII Part 11, pp 94-7 Doc A43 pp 291-292.

396 Alan Ward, A Show of Justice, p 220 in Doe A43 P 304 - HobsonlWakefield, 6 September, 1841, letter basis of policy up to close of 1845; quote from Cambridge History pp 86-87 in Doe A43 P 290. 156 Courts in any way to recognize the barbarous customs of the native race, as I

feared that, if they were required to do so, a mixed class of laws might grow into

existence, which, ultimately becoming mixed up with the tenure of property, the

customs of trade, and the prejudices of the people, might be found difficult to

dispense with or abolish.397

The 1846 Constitution soon failed primarily due to its extreme denials of maori title and maori participation in Government. Earl Grey notified Governor Grey of the planned suspension of the Constitution's provisions for representative Government in November

1847, and the suspension was effected in March 1848.398

One can only speculate what use McCleverty made, if any, of the Constitution in his discussions with maori. Its potential was obviously large. At the very least, though, the

Constitution caused confusion and apprehension regarding the purchase negotiations -

long a critical factor in the Port Nicholson purchase. This was brought about in

Wellington region by the "Act to Promote Colonisation in New Zealand and to

Authorise a Loan to the New Zealand Company" (10 & 11 Victoria, 1847 Cap. 112) passed 23 July 1847. The first section of this Act suspended the 13th Chapter of the

1846 Instructions in New Munster - except all of the offensive provisions requiring registration of Te Atiawarraranaki's interests, establishment of the Land Court, and empowering individual maori to sell any lands held in severalty under native title.

397GreylEarl Grey 15/12/47, in A33 P 49. Compare Grey's view with PitzRoy's (above, p 17) that "Native law and Native custom ... are respected by English legislature and English courts."

398Poden pp 159 & 175 in Doe A43 pp 270 & 271b. 157 The second section then vested the Crown demesne - with all of these "Rights, Powers and Authorities of Her Majesty" arrogated in the 1846 Instructions - in the Company.

The rest of the Act provided a minimum price and purposes for which the Company could sell the demesne, called for a receiver-like Commissioner to oversee the

Company's financial restoration, and authorised the Treasury to advance a loan. Section

14 empowered the Governor-in-Chief to make grants of land to the Company. Section

19 provided for the Company's estate to revert to the Crown in 1850, subject to subsisting contracts.

Armed with the 1846 Constitution's apparent denial of Te Atiawatraranaki's customary title, the Loan Act resurrected old doubts (similar to those raised by Russell's 1840

Agreement) as to who did own such lands - the Company, or the Crown - and what control the Crown could exercise locally over the Company's purchase activities. For instance, after news of the Loan Act arrived around October-November 1847, Eyre apparently felt it constrained him to doing the Company's bidding, understanding it to provide that the Colony of New Munster was to execute grants and leases "for which the

Court of Directors and Commissioner shall engage." In effect to grant upon demand, regardless of maori rights or sensibilities. Like Bishop Selwyn, Chief Justice Martin, and the Wesleyans, he complained to Governor Grey of the absurdity of London trying "to ascertain or divine what are the just rights of the Natives, and ... how utterly impracticable it would be to put the New Zealand Company in possession of the lands which might be granted to them, unless those rights are first acknowledged and satisfactorily disposed of. ,,399

399Eyre/Grey 28/10/47 NM 4/l/47nl pp 85-6, Doc A43 P 308. 158 Governor Grey reassured him, though, that he understood

"the Crown has only undertaken to place its own rights at the disposal of the

Company, and that there is therefore nothing in the [1847 Loan] agreement

which would bind the Crown to any interference with the just rights of any third

party, whether Natives or Europeans."400

Later, there emerged the question, how was the Governor to grant that which was already vested in the grantee? Eyre and McCleverty resolved this question by directing

"that the Crown Solicitor in preparing the [Port Nicholson] Deed of Grant to let

it embrace the whole area comprised within the limits of the purchase (excepting

the lands reserved) without reference to any specific quantity to which the New

Zealand Company laid claim or which had been awarded them in that particular

district. ,,401

If these "sea changes" caused such consternation in Lieutenant-Governors, one must assume they undermined confidence in maori negotiating the sale of their lands.

Indeed, by this time, prolonged insecurity was a strong inducement ensunng Te

Atiawaffaranaki cooperation in the Grey's and McCleverty's resettlement scheme. We have seen how already in early 1846 rangatira of Ngati Toa and Te AtiawaITaranaki pleaded with the new Governor for "the laws of the Queen" to be established, to calm the tensions after Wairau and to settle the conflicts over cultivations in the Hutt. We will discuss the point further in the next section, but here it is noteworthy that the

4°OEyre/Grey 28/10/47 and GreylEarl Grey 20/11/47, in A33 pp 44-45.

401Eyre/Grey 24/12/47, in A43 P 159 commencement of McCleverty's resettlement work coincided with the commencement of Grey's hospital;402 and not only was this a time of "very great" mortality from introduced diseases,403 but 1847 turned out to be the very year when Te

Atiawaffaranaki "suffered severely, in conjunction with the white population, from the effects of the epidemic so prevalent here. ,,404

To people whose society ran on 'utu,' the fact that George Grey was the man who, at such a time, finally expanded medical care for them must have greatly affected the character of "exchanges" desired and proposed by that man. Earlier in the decade, Dr.

Fitzgerald reported near-religious loyalties toward him in return for his ability to deliver even simple care. Indeed, in May 1846, the month before Grey ordered the start of the surveys for the hospital, Dr. Fitzgerald told him a story:

"On my arrival in Port Nicholson on board the Oriental and before I had

landed, 'Puakawa' the Principal Chief of that portion of the Ngatiawa tribe

residing in the 'pa' at the mouth of the 'Waiwhetu' or Starry Water River, came

on board, and seeing me attending to some sick persons, said he had a sick child

on shore and asked me to give it some medicine.

I told him through an interpreter I would do so, and accordingly went on

shore to his 'Pa.' When I arrived there the child was produced which was

certainly very ill from the effects of teething. I examined it and during this

402Survey began about June 1846; see FitzgeraldlRichmond 16/6/46, in A43 p Construction began in February 1847 (see above).

403Kemp census, 1/1/1850, in A33 P 130. Kemp stated mortality in the pa "within the last two or three years" had been "very great." See similar remarks for Ohariu, Te Aro, and Kaiwharawhara.

404See below, p . Epidemic, see Fitzgerald report 21/1/48, in A33 p 52. 160 process I believe every man woman and child in the pa assembled round me

eagerly watching everything I did.

Seeing me apply a stethescope to the child's chest they uttered

exclamations of extreme surprise, and when I had finished took the instrument

and examined it in every part, imitating me by applying it to each others chests.

This instrument has since got the name "Mea wakarongo" or thing to listen with.

From the few successful cases in which I have had occasion to use this

instrument the natives suppose it possesses some wonderful power.

Mer the recovery of Puakawa's child the Father was in the habit of

bringing off frequently baskets of Potatoes to me. One day as this old Chief

went to his Mahinga Kai or Potatoe ground to get potatoes to bring off on board

[to me], he was surprised while picking them up, by a party of the Ngati Kahuni

Tribe, who knocked him down, cut off his head and took out his heart and fled,

leaving the body behind. This act was perpetrated as an 'utu' or payment for

some of their party who had been killed by this Chief and his followers nearly

five years before.

From that time forward, I was taken under the especial care of this old

man's son and all his people, who look upon me to this day as their particular

Pakeha in consequence of the great 'aroha' or love which the old chief bore to

me for having cured his child."405

Not only does this show how effective the conjunction in time must have been:

Puakawa's people at Waiwhetu were the same hapu that occupied Pipitea pa, the very spot Grey chose to build a hospital for "their pakeha" Dr. Fitzgerald. In this light, Mr.

405Fitzgerald "Medical Report" 10/5/46, in IA1 Volume 2, pp 282-283. 161 Justice Atkin's 1872 assessment - that in building the hospital the Crown asserted its proprietary title to the land underneath - appears to state quite the opposite of how Te

Matehou probably understood the act.

Boundaries of lands remained another source of anxiety. Late in the exchange negotiations, in October 1847, Lieutenant-Governor Eyre still feared that "many of the

Native Reserves and cultivations are not defined at all, whilst others are very imperfectly done and though mapped ... I am afraid that whenever the survey comes to be verified ... very few will fit into their supposed places."406 We find amongst extended correspondence trying to hurry along McCleverty's surveys, the comment that the

"natives are anxious that the [Ngauranga] boundary lines should be surveyed and cut."

Early in 1848, Wi Tako wrote to Eyre expressing the same anxiety over Hutt cultivations.407

Later, on the 1851 anniversary of the Treaty of Waitangi, 58 rangatira of Ngauranga wrote the Queen in praise of Grey's decisiveness and ability to get things done:

"Let Governor Grey alone lay down the law for this island. It will not be

well that there should be many counsellors for the land. No; let there be but

one! that our thoughts may be right, and that the people be not distracted ....

o Mother! it is to the policy of our father Grey that we all owe our

welfare. ,,408

406Eyre/Grey NM 4/1/47/59 P 72 in Doe A42 P 95.

407NM 5/1 No 63 pp 43-5 in Doe A43 P 305; NM 8/48/201 Wi TakolEyre 10/3/48 in A40 pp 167-171.

408Chiefs of Ngauranga/Queen 6/2/51, in A33 P 128. 162 In short, Governor Grey offered clarity, transforming Te Atiawalfaranaki's cultivation disputes, failing health, and insecure titles into support for an expedient security. This is the thrust of Grey's own summaries of affairs. First, in May 1848, he summarized steps he had taken to implement the 1846 Constitution:

"I have therefore deemed it inexpedient to disturb the tranquility of the

Country by calling upon the natives generally to register their claims to land [as

required by the 1846 Constitution]; but I have taken care, in as far as possible,

to keep the land purchases of the Government so far in advance of the wants of

the European settlers, as to be able to purchase the lands required by the

government for a trifling consideration. What has then been done was to

extinguish absolutely the native title to the tract purchased, but to reserve an

adequate portion for the future wants of the natives which reserves were

registered as the only admitted claims of the natives in that district, and they

have been furnished with plans of these reserves and with certified statements

that they were reserved for their use -- which documents are somewhat in the

nature of a Crown title to the lands specified in them, are much esteemed by the

natives, and accustom them to hold land under the Crown which is an extremely

desirable object to attain.

This mode of proceeding also renders the labour of registering very

trifling, secures the perfectly accurate registration of all such claims as are

entered, and gives to the act of registration the appearance of a boon conferred

by the government instead of clothing it with a compulsory character.,,409

409GreylEarl Grey 15/5/48 NZC In pp 398-99 in Doc A42 pp 131-132. 163 In this way, Grey and McCleverty's exchanges - and especially McCleverty's prescient

"provisional registration" of Te Atiawa/faranaki's interests in March 1848 - anticipated

Fenton's 1859 prescriptions for the proposed Native Land Court:

"Crown grants cannot, except in rare instances, be issued .. .for the native owner

will not accede to a proceeding which infers that his own title is imperfect. The

instrument of primary assurance must therefore be in the nature of a certificate

testifying that the parties named therein are the owners of the lands therein

described. ,,410

Grey concluded his above memo, stating that in Port Nicholson ID particular, Te

Atiawa/faranaki were clearly aware

"that the real payment which they receive for their waste lands is not the sum

given to them by the government, but the security which is afforded that

themselves and their children shall for ever occupy the reserves assured to them,

to which a great value is given by the vicinity of a dense European

population. ,,411

Hence, by late 1847, it is not too much to say that Port Nicholson settlers and maori probably attached an almost talismanic power to McCleverty's pukapuka, the surveyed

410McCleverty registration 6/3/48 NM 8/48/188 A40 pp 165-166; Fenton, "Scheme for the Partition and Enfranchisement of Lands Held under Native Title," in Turton, p F10 Doe A42 P 16.

411 15 May 1848 Gov Grey/Earl Grey NZC In pp 398-401 (Earl Grey concurrence 16 November 1848) Doe A42 pp 131-132; cf. Doe A37 OLC 1/1041 Dommett 2/9/50 p 42. 164 plans depicting the areas to be secured by the Crown to the signatories and their descendants forever. Sovereignty settled, and property guaranteed.

A fortnight after Grey had eased Eyre's worries over the Loan Act, McCleverty had settled the thorniest remaining resettlement: Ngauranga agreed to give up three cultivations on Harbour sections 10, 11 and 12, in return for receiving registered customary title to all of Harbour section 6. He reported to Eyre that Wakefield would agree to a grant excepting the reserves as they then stood.412 McCleverty set to titivating the plans and schedules to be attached to the grant of the entire district to the

Company, with exceptions.

412Eyre!McCleverty 28/9/47, NM 5/1 No 63 pp 43-5, Doe A43 P 305. 165 The Port Nicholson Crown Grant

The plans soon completed, the grant was signed by Governor Grey on 27 January 1848, and forwarded by Lt-Governor Eyre from Government House directly to the Acting

Registrar, Mr. Grimstone, on the the next day. It seems noteworthy that we are dealing with what was registered as "Special Grant No 1.,,413

The Grant's sole condition precedent, its "whereas clause," was that the New Zealand

Company had acquired "full and valid cession of all rights of [the] aboriginal natives ... subject to the reservations ... made."

Unlike FitzRoy's unsuccessful grant, it unambiguously granted the entire Port Nicholson

District to the Company - 209,247 acres or thereabouts, only roughly described in the grant itself but "more particularly delineated in the plan attached,"

"excepting and always reserved out of this present Grant the reserves and

exceptions, all of which reserves and exceptions with their boundaries and

abuttals are particularly delineated and described in the said plan and in the plan

of the Town of Wellington and in the schedules of the said plans attached

hereto."

The two plans were called simply "A" and "B": the first plan drawn at 100 chains to the inch, and depicting the exterior boundary of the purchase and the Country Districts comprised within it; the other plan enlarging the Wellington Town and Town Belt area to 10 chains to the inch, including from Pipitea in the North to Berhampore in the

413Grant at A10(a) Doe 10 pp 1-2. 166 South, and from Mount Victoria in the East, to the Town Belt above Tinakori in the

West. On each plan was printed a schedule of reserves and exceptions.

The plan of Country Districts named the districts (Korori, Makara, etc.) more-or-Iess surveyed into lOO-acre blocks (though in most areas only a main survey line had been cut, and exterior bounds projected from it). The Northwestern hilly 'District of

Terawite' was marked as "unsurveyed" and excepted from the grant. Native title to this area was extinguished in 1853 and 1873 in purchases by McLean and Heaphy.414

The schedule on this plan was headed "Lands reserved and excepted by Government from the Area comprised within the Block claimed by the New Zealand Company in the

Port Nicholson District exclusive of those in the Town and Belt...and of native cultivations on unsurveyed land [in Terawite District]."

The schedule on the Town Acres plan was headed, "Lands reserved and excepted by

Government from the Area comprised within the Block claimed by the New Zealand

Company in the Port Nicholson District within the Boundaries of the Town Belt."

Together, the plans and schedules excepted 4310 acres of Company-selected reserves, and 14,679 acres reserved in the 1847 arrangements - 18,989 acres in all. The rest of the 209,247-acre district, minus a few defense reserves and small individual European claims, went to the Company.

414Turton Doc A27 pp 115-116, 413-414; Doc A36 Heaphy Minute Book 1867-1879, pp 152-156, 160-62. 167

Despite their headings, though, the focus of the grant & plans throughout was to clarify only what was to go to the Company as against either Crown or Te Atiawatraranaki.

Neither grant nor plans attempted a complete disposition of interests as between Crown and maori in Te Atiawatraranaki's ReselVes. Both plans coloured "Native ReselVes" yellow - regardless of whether these had been assigned to maori in 1847. Both plans cloured other exceptions dark green - again regardless of whether they had originated as pa and kainga (explicitly excepted from the 1844 agreements) or as supplementary blocks outside the sUlVeyed and sold lands (identified and assured in 1844, but only formally set aside in 1847).

Due to the "occupation" principle, it turned out that of the 4310 acres of yellow (old reselVe) areas on the regional plan, 2850 (68%) were assigned to hapu by inclusion in one of the deeds of exchange in 1847. Only 1350 had not been assigned, later being treated as vesting in the Crown. The Crown sold 450 of these acres - 200 in Lowry

Bay/Wainuiomata and 250 in Island Bay around 1860. Before 1880, it assigned another

600 sheep-acres in Ohariu and Makara to individual maori. The remaining 300 in

Upper Hutt were assigned in the 1880's and in 1907. Clearly, control over Company­ selected res elVes in the Country Districts tended to pass to tangata whenua.

By contrast, in town, of the 110 yellow Company-selected reselVes, only 45a 2r 37p

(-41 % including pa) were assigned to hapu, signatories of 1847 exchanges. 2a Or 27p

(-2%) were eventually granted to Wi Tako and Ihaia Porutu. The majority (62a Or 14p or - 57%) were not assigned, but taken administration of by the Crown's Board of

Management (the administration in the 1840's having become very ad hoc, in the hands 168 of Henry St. Hill with no real shape or legal authority).415 Of these 62 unassigned acres, the Crown gave away (to endowments, churches and military) just under 25 before 1855.

Mer the 1848 Crown Grant, the Crown took pains to tabulate the reserves according to their various origins. The Crown was short of land in the region, so its main concern in tabulating was to determine the extent to which its title to any particular reserve remained encumbered by native title. If encumbered, the Crown could not dispose of interests as freely as it could if unencumbered.

Accordingly, the New Munster officials worked to solidify the distinction between

Company-selected reserves which had not been assigned in 1847 (and so, to which native title was extinguished) and the 1847 Reserves which had been assigned to maori in 1847

(and so, to which native title was not extinguished).416 "According to Lt. Col.

McCleverty only the lands not occupied by natives, but reserved for their use, [went] to the native trustees as native reserves proper."417 Hence, Lt. Governor Eyre claimed the "unoccupied" Company-selected Reserves, which had not been mentioned in any of the 1847 deeds, and instructed that the new Board of Management was to administer them for Te Atiawaffaranaki's benefit - but that any major disposition of the lands still required Te Atiawaffaranaki consent.418

415Jellicoe A24 P 303, citing Eyre memo.

4160LC 1041 Dommett 2/9/50 Doc A37 pp 41-42.

4170LC 1041 Doe A37 p31, emphasis mine.

4186 October, 1848 Colonial Secretary Dommett's memo to Boards of Management, A26 p D14. 169 In the case of both "occupied" Company-selected and 1847 reserves, Te Atiawa!Taranaki customary interests in them had been safeguarded in the 1847 deeds, registered at the

Crown's Land Office in accord with the 1846 Instructions. Any alienation could only be via the Crown, and any major disposition required the Crown's complicity (and by implication, consent) in evading the 1846 Native Lands Purchase Ordinance.419 But unlike the Board of Management's claims, these protections were slow in coming.

For instance, the entire Pipitea Pa Reserve fell within the bounds of Company-selected and Crown Reserves, most of which (eg ss. 542 & 543) were treated as belonging to the

Reserves "Trustees" (ie Board of Management) for the benefit of Te Atiawa!Taranaki.

Even on the 1848 Crown grant plans, the pa reserve was not distinguished from

Company-selected reserves, as only pa and cultivations that had been cross-claimed by the Company needed to be shown.420 So it remained to be settled later that, because the fenced-in Pipitea pa was "occupied" (by Crown standards), it would be respected by the Board of Management as belonging to Te Atiawaffaranaki under their own ture.421

Clearly, this taxonomy of reserves locked Crown and tangata whenua into close partnership. The Crown's duty to consider Te Atiawa!Taranaki's benefit and to obtain their consent for alienations of "unoccupied" Company-selected Reserves kept it before

419NLPO 1846, Doc A42 pp 132a-132b; OLC 1041 Doe A37 P 31.

42°OLC 1041 McClevertylDomett 11/9/50, Doe A37 P 52.

421See Attorney General Wakefield memo 17n/50 in OLC 1041 Doc A37 p 35: "the land .. .is within the boundary of the pah pipitea and the native title to it has never been extinguished by purchase." Note in Harrington/Grey, GBPP/NZ 8:1852 (570) pp 145-6 in Doe A42 pp 133-142, the NZCo/1846 Instructions' provision for such "assigned" lands held in severalty being dealt with directly with settlers. 170 the tribunal of Te Atiawaffaranaki custom and usage. The fact that Te

Atiawaffaranaki's "native title was extinguished" to these reserves meant Te

Atiawaffaranaki enjoyed only such rights of entry, occupancy or management as anybody.

Likewise, Te Atiawaffaranaki's need to register transactions and obtain a Crown-based title for alienations of the reserves registered as theirs kept them before the tribunal of

Crown custom and statute. The fact that Te Atiawaffaranaki's "native title was not extinguished" to these Reserves primarily meant the Crown enjoyed only such rights of entry, occupancy or management as to any maori lands.

And we have seen that this categorisation of reserve lands erected after the 1848 Crown grant was underlain by a more fundamental distinction. The distinction between reserves which were to go to the Crown's administration and reserves which were to remain under Te Atiawaffaranaki custom and control was actually rooted in the earlier debate over the Treaty's "land guarantee," ie. over distinguishing between lands to which customary possession was to be protected, and lands to which the Crown had acquired title by virtue of sovereignty alone. 171 The Grant Debacle

By far the grant's single most damaging deficiency was not in it per se but in its later interpretation. In his Supreme Court findings in Regina v Fitzherbert, Johnston found the grant had issued too late - ie., four days after the expiration of the six month deadline provided in section XIV of the Imperial Act of 1847 "An Act to Promote the

Colonization of New Zealand, and to authorize a Loan to the New Zealand Land

Company."422 Presumably, this finding directly contributed to the judges' conclusion that the Crown had made no solemn act to bind its estate with a trust to dispose of the interests in the reserves in Thorndon area for the benefit of maori in particular.

Judge Johnston's finding is a mystery, though, as the relevant section of the mentioned

Act hardly supports it:

XIV. 'And whereas doubts have arisen as to the Power of the Governor of New

Zealand to' make and issue Grants of Land to any Corporate Body for the

Purposes for which it is incorporated under the Provisions in that Behalf

contained in the Royal Letters Patent granted by Her Majesty, and issued under

the Great Seal on the Sixteenth Day of November in the Fourth Year of Her

Majesty's Reign, for the Purpose of erecting New Zealand into an independent

Colony, or under the said recited Royal Letters Patent of the Twenty-third Day

of December in the Tenth Year of the Reign of Her Majesty, and it is expedient

that such Doubts be removed; be it enacted, That all Grants of Land to the New

Zealand Company or to any other Corporate Body by the Governor for the Time

being of New Zealand which have been or shall be made and issued before the

422Court of Appeal Report A7(b) p 24. 172 Expiration of Six Calendar Months after the passing of this Act, and which have

been or shall hereafter be accepted by the said Company or other Corporate

Body, shall be deemed good and valid Grants in manner and on the Terms, if

any, therein stated and declared; and further, that it shall be lawful for the

Governor-in-Chief of New Zealand for the Time Being at any Time or Times

hereafter to grant and assure to the said Company, or to any other Body

Corporate, any lands to which the said Company or any such Body Corporate as

aforesaid now is or may be at any Time or Times hereafter be or become

entitled. ,,423

The Act passed 23 July, 1847. The Port Nicholson Crown Grant, signed by Grey as

Governor-in-Chief, issued six months and four days later, on 27 January 1848. By the special provision for grants by the "Governor for the Time being," the grant was, as

Johnson found, four days too late. But Governor-in-Chief Grey was clearly empowered under the last sentence of the provisions to make such a giant to the Company "at any

Time ... hereafter. "

Johnson's finding is all the more peculiar, given that the original grants of nearly all lands in Wellington region issued pursuant to investigations and reports by

Commissioner F. D. Bell, under powers given by the Ordinance of 1851, No 15 Victoria

Sess. XI, "to ascertain the Contracts and Engagements entered into by the New Zealand

Company for the Disposal of Certain Lands in the Islands of New Zealand, and to provide for the completion of such Contracts and Engagements by the Colonial

423New Zealand Company Loan Act, Doe A43 pp 311-317. 173 Governm ent. "424. This 1851 Ordinance recites in its preamble that "whereas certain lands claimed to have been purchased by [the New Zealand Company] from the aboriginal native owners have been conveyed to the said Company by grants from the

Crown ... " and continues, reciting the 1847 Loan Act's vesting of the demesne in the

Company, the Company's subsequent failure to legally convey lands to its settlers out of that estate, and the 1850 reversion of the estate to the Crown "subject.. to any contracts which should be then subsisting in regard to any of the said lands:' and finally, the need for "deeds of grant... [to ], as speedily as may be, be issued to all persons ... found legally entitled thereto."425

Hence, all grants in Company settlements issued under this 1851 Ordinance were premissed upon the 1848 grant to the Company. Commissioner Bell was not empowered to extinguish native title, nor to issue grants out of the Crown demesne generally - only out of those areas already successfully granted to the Company. If the

1848 grant was invalid, what could be the status of all these other, derivative grants?

But if the 1848 grant was valid, as we maintain, then the Crown's later grants of lands clearly shown as "native reserve" on the plans and schedules attached to the 1848 grant to the Company raise the question whether such grants were made "subject to any contracts ... then subsisting in regard to any of the said lands."

The question rightly falls back onto the covenants and provisions reached in the track of agreement between the Company and Te Atiawatraranaki: specifically, none of these contracts created any right of the Company's or Crown's in the Company-selected

424Commissioner Bell's Report, LSW 68/1/69 P 1, Doe A43 pp 318-321.

425New Zealand Company's Land Claimants' Act in Doe A43 pp 322-331. 174 reselVes at Raurimu and Haukawakawa. Te Atiawaffaranaki had not released their interests in these lands in the 1844 releases, and in 1847, only gave up interests in ngakinga on sections claimed by settlers. neither of these included the Company­ selected reselVe areas of Thorndon. 175 The Expropriation of Native Reserves for Public Purposes

After the grant, the Reserves no longer served as Te AtiawaITaranaki's anchor to the shadow of the land. The Reserves became their anchor to the land itself. At the beginning of the 1850's Crown officials - by whom over 77 acres of Te AtiawaITaranaki's town reserves were alienated for public purposes - showed scant understanding or regard for this. They cast Te AtiawaITaranaki adrift.

The Reserve lands taken in the period included Town Acres:

89 & 90 Mt Cook Barracks (Ordnance Department)

270 - 72 Wellington College endowment

278 - 79 " " "

" 539 Wellington Hospital endowment

" 545 " " " 574 " " " Pt 580 " " " Pt 584 " " " Pt 594 " " " 591 - 92 " " " 636 " " "

601 - 608 mixed Hospital and College endowments

pt. 514 Anglican School

" 542 Anglican Church 176 These sections total 24a 3r 18.5p.426

In the 1850's, most of the takings were confirmed with "very informal" and possibly invalid Crown grants:

Hospital endowment 5/11/51 total 12a Or 1p

Grammar School" 7/10/53 total lOa 1r 32p

Cathedral site 20(1/53 part s. 542

Anglican school 13/8/53 part s. 514.427

Along with these lands taken, in this same period the urban reserves of Kumutoto were obtained by the Crown for similar purposes. Kumutoto, however, managed to receive purchase money and rents. In August 1846, Lieutenant Governor Grey's special Armed

Police assumed occupancy of a house at Kumutoto's Town Acre 487 as barracks, promising rents to Wi Tako. In late 1847, Lieutenant Governor Eyre obtained initial approval of the arrangement, and in mid-1848, the Police paid back-rents and finalised a three-year lease. By the exertions of Wi Tako Ngatata, the then-unique situation arose

426Doe A39 P 175 & draft at 180 19/3(14: Heaphy to Native Department Undersecretary (Schedule A of lands to value for compensation at p 183).

427Validity: Doe A39 p 213 Frederick Whitaker memo, 21/3/64; also Litchfield unpublished paper "Wellington Reserved Tenths" February 1988, Doc A43 pp 332-340; also AJHR 1870 A3 piii, Doe A43 P 341; Doe A39 pp 246-47, 20/8(13: Heaphy Valuation memo; the acreages given by trustees in the 1869 Royal Commission are Hospital 12a Or 1l.5p and College lOa 3r 17p AJHR 1870 A3 pp17-18; Cathedral 17p and school 38p; ibid pp 6-7. 177 where he obtained the Crown grant for the section (in 1853) and continued receiving the rents on it for many years.428

At the same time, in October 1852, in a climate of pressure to restore the Town Belt,

Governor Grey purchased Kumutoto's 52 and 3/4 acre cultivation reserve at the top of

Waipiro Stream (now the Botanical Gardens) for 160 pounds. Sixteen days later he granted it to the Methodist Mission to endow a native school. If Wi Tako agreed to the sale in anticipation of having the school nearby, he was disappointed: the Church sold the still-vacant land to the Provincial Government thirteen years later for 3500 pounds

(in installments), and used the proceeds to fund a school in Foxton and to lend on church buildings around the region.429

Finally, Te Aro Reserves 89 and 90 differ slightly from the others in that they were not

Crown granted to the Ordinance Department until 1874, subsequent to payment of 500 pounds to Wi Tako and 34 others (mostly of Te Aro). These acres must be considered together with the endowment lands, though, because they were taken in the same period, for similar purposes and under some of the same authorities. Further, we will see that the Crown treated the discussions and compensation for these acres together with its discussions and compensation for the others.

428Police barracks: Eyre/Grimstone/Crown Solicitor 5/11/47, NM 8/47/870 in DocA40 pp 145-147, and Eyre!Durie!Dommett -May-June 1848 NM 8/48/571 A40 pp 185-187; grant & after: WAI 145 A26 pp D18 & 22,and AJHR 1865 E-7 in Doc A43 pp 364-366.

429WAI 145 AI0(a) Doe 3 pp 28-9; "climate" see 29(2/48 despatch of Sec. NZCo to Earl Grey in "Adjustment of Land Questions of the New Zealand Company, 1848" Stewart and Murray Old Bailey:London, 1848, pp 67-68, Doc A43 p 366a; and "Colonial Botanic Garden, Wellington" ATL Cartographic Collection 832.4799gbbVNI875/Acc 2751 Doe A43 P 366b; WAI 145 A26 P 19; on resale see "History of Wellington Methodist Charitable and Educational Endowments Trust,'· (unpublished paper) pp ll­ B, in Doe A43 pp 367-370. 178 In total, then, about 77 acres of urban land were removed from reserve in the first few years after their final "creation" as reserves. This represented about a quarter of the

340a 2r 22p of town lands reserved or granted as gifts for Te Atiawaffaranaki by 1850 -

nearly all of the town reserves close to the harbour and developing city centres.

Significantly, none of the otherwise thorough accounts of these takings - the judgement in Regina v Fitzherbert, Heaphy's Reports and memoranda, MacKay's history, nor the office of the Public TrusteelRoland Jellicoe's account - claims that Te Atiawaffaranaki consented to them. Heaphy instead noted that he could find no clear indication of maori opinion.430 Likewise, we could find no indication of the Crown seeking or inviting maori opinion.

It is perhaps pertinent, then, to seek the reasons for such a dirth of communication between Treaty partners over these alienations. We will see that in every insJance the alienations themselves proceeded in cloudy, piecemeal fashion, and so occasioned neither questions of consent nor opportunity for dissent. The issue of Te

Atiawaffaranaki's consent to the Crown's early seizures of Te Atiawaffaranaki reserves for public purposes turns out to be a red herring.

430Doc A39 P 202 Heaphy "Remarks," 29/8n3. 179 Military Seizures

The point can hardly be overemphasized that about a third of the reserved lands lost -

and importantly, the first third - were initially taken for military purposes in time of near-war. Early, the Crown's policy of mixing military with maori was proclaimed on the map. The Surveyor-General, Felton Mathew's, map of Wellington in 1842 showed three "watch-house" sites chosen by Lieutenant Governor Hobson - one inside Pipitea

Pa, one adjacent to Te Aro pa, and one on the Newtown Ridge.431

The first wave of takings was to provide sites for fortifications following the Wairau incident in June 1843, where 20 pakeha were killed. In the mood of near-panic that followed, Wellington townsfolk built the first Thorndon redoubt immediately adjacent to Pipitea pa.

"It stood very close to the cliff above Pipitea [pa] , between the present steps at

the foot of Pipitea St [ie, Moore St.] and the English Church of st. Paul's, but

much nearer Pipitea St. than the church. Just below it on the beach front, now

Thorndon Quay, was the police station."432

At the same time, they "formed a working party, cut a track to the flat top of the hill

[ie, Clay Point, roughly now Plimmer's Steps], and dragged up three of the New Zealand

431GBPP/NZ Vol 3(583) pp 183-187 & map, Doe A43 pp 371-379.

432James Cowan, New Zealand Wars and the Pioneering Period Vol 1: 1845-1864, pp 92-3, Doe A43 P 380. 180 Company's guns - ship's howitzers (18 pounders) on wooden carriages." Together with the nine-foot trenches surrounding it, the work was named "Waterloo Redoubt."433

The Government was not wholly inactive, either. The Thorndon Barracks were proposed for the Raurimu cultivation area in 1844.434 The next wave of fortifications ensued from the 1845-66 war between the Crown and "rebel" maori in the Hutt and

Porirua over the rights to Hutt-area cultivation reserves. In April, 1845, Thorndon Fort was erected on Town Acre 597 (now roughly Hobson Crescent - not a Native Reserve, though probably a post-1840 cultivation area), and a fort at Te Aro "immediately to the

West of the pallisaded Te Aro pa."435 The proposed barracks at the Raurimu cultivation reserves were soon approved and completed as well. When approving the siting of the barracks on the Raurimu cultivation reserve, Governor Grey informed the military that "land better suited to the natives and which they prefer will be set apart for their exclusive use in exchange forthe[se] reserves."436

One can imagine the overall impression upon Te Atiawa!Taranaki "townies:" by April

1845, three detachments of regulars were posted at Thorndon, Te Aro and the Hutt - about fifty soldiers at each. They drilled regularly with about 200 Wellington militia authorized under FitzRoy's Militia Orrdinance. By March, 1846 every day a guard of

433Cowan p 93, Doe A43 P 380; L. Ward p 132, Doc A42 P 216; and Mulgan p 125, Doe A43 P 237.

4341844 prop. Barracks sketch ia(cs)1!26. 1844/645: tracing with detail of stream of Acres 591, 592, 601, 602, 603-608, attached to letter: 21 Feb. 1844 from Div'l Sec'y J.W.Hamilton to Lieut. Bennett, Commanding Royal Engineers at Wellington, Doc A43 pp 381-385; Thorndon cultivations see ego Ward, Early Wellington, p 308, Doc A42 p 220, citing NZ Journal 10/3/1849.

435Cowan p 92, Doe A43 P 380; I. Wards p 233-4, Doc A42 P 120.

436ia(cs)1!26. 1844/645, Doc A43 P 383. 181 twelve Militia mounted at Thorndon Fort, and every morning from 5:00 to 7:00 am,

Companies of five men went out from the forts at Thorndon, Te Aro and Clay Point, patrolling "in the rear of the town."437 Of course, they were watching for suspicious movements of maori.

Perhaps the spirit of the takings of reserves for fortification was put best by Dommett, looking back coolly from 1865:

"Nothing... could be conceived more thoroughly and even poetically (ie ideally)

just than that the natives should be made to contribute some slight portion

towards the maintenance of those troops whose presence was necessitated by

their turbulence. ,,438

4371. Ward pp 235-6, Doe A42 pp 121-122; L. Ward p 132, Doe A42 P 216.

438A34 P 59 Dommett to Mantell, 27/1/65, emphases his; we would stress that Te Atiawaffaranaki were not "turbulent" in these wars, but actually fought alongside the Crown's forces. 182 Getting Better Tenants

The shift from barracks to a native school as "tenant" of the Raurimu and Haukawakawa flat reserves must have appeared as a turn for Te Atiawa!Taranaki's benefit.

The Hospital must have also seemed a welcome tenant and neighbor, compared to the redoubt adjacent to it and the Fort behind. Like the school, Grey's hospitals, though

"mixed" European and maori, were originally conceived as offering more benefits to maori than the Protectorate department, which they partially replaced. In February

1847, Governor Grey reported to Earl Grey that hospitals were being built at Taranaki,

Wellington, Wanganui, and Auckland. He characterised them as efforts "to provide medical assistance for the natives," and expressed the hope that they would "produce very beneficial effects on the Native race." The Wellington Colonial Hospital opened in October 1847, with a large surgery, sick ward and offices on the ground floor and a large ward the length of the building on the first floor. 439

The hospital was initially a great convenience - a public service built upon Te

Atiawa!Taranaki's reserve - not Te Atiawa!Taranaki's reserve taken away to endow that service. At least in the first few years, then, the hospital and the "free" accommodation and medical care it offered were warmly welcomed. Grey's 1847 report on hospitals enclosed the testimonial of (Chief) Hiangarere of Waikanae - the first patient at

Wellington who had had a tumour removed surgically.440 Impressive numbers of

439Doe A39 Enclosure D of Heaphy's memo ND 73/5398, 29/8n3 p 214; Hospitals: Doc A33 p 18 (GBPP/NZ Vol 7 pp 92-93, GreylEarl Grey, 4(2/47); L. Ward pp 286-7 citing N.Z. Journal, 20/5/1848, Doe A42 pp 217-218.

44°AJHR 1870 A-3 p22; L. Ward also cites a satisfied customer, a rangatira from Porirua, Te Hiko-o-te-Rangi, who desired his death bed to be at the hospital. 183 maori received treatment at the hospital. 85 from the hospital's opening on 14/10/47 to 31/12/47; 180 in 1848, 340 in 1849; 497 in 1850 and 408 in 1851. Heaphy later claimed maori were treated for injuries sustained in battle at Waikanae and Waitotara in 1839-40.441 More importantly, though, Te Atiawa(faranaki were hit hard by the epidemic of whooping cough and influenza that struck Wellington in 1848.442 It is hardly surprising, then, that in April 1849 an impressive array of rangatira from throughout the region toasted the hospital's work at a gala unveiling of a portrait of

Queen Victoria given by Earl Grey.443

More privately, though, Colonial Surgeon Dr. J. Johnson admitted the initial response of maori to the hospital was mixed, remarking that "no measures introduced by a civilized nation amongst a half-barbarous people for their improvement and good can be expected to meet with entire success at first." Given the earlier opposition to a pakeha trust administering their reserves, one can readily infer the nature of complaints

Dr. Fitzgerald was receiving from the specific remedy he proposed: sharing control of the hospital with maori. He nominated twenty-one Wellington-area rangatira to form a Board of Visitors.444

Medical treatment was not the sole benefit Grey's hospitals were intended to bestow.

Throughout his endowments programme, Governor Grey stressed the importance of the hospitals for acquainting maori with "European houses, food and comforts - and also

441Doe A39 P 202.

442R ob erts , p12

443L. Ward p 286, Doe A42 P 217.

444Doe A39 pp 217-8. Report by Dr. Fitzgerald to Gov Grey, 21/1/48; note he listed patients from Otaki to Manawatu. 184 as a means of gaining their attachment to the British Government and British race."445

Hence, neither the school nor hospital were merely part of a resurrected reserves "trust plan," as part of Lieut. Governor Grey's plans to "altogether remodel the Protectorate

Department, and to expend such portion as the Colony can afford of the large sum that establishment has hitherto cost annually, upon schools, hospitals and other institutions for the Natives.,,446 They were of a piece with Grey's simultaneous measures opposing continued instruction in reading maori, and providing instead for English language and industrial education.447

445Doe A39 P 221 Grey to Earl Grey 6(2/51 and 222-24 Grey to Earl Grey 13(2/52 and 6(2/51.

446Jellicoe A24 P 292; IA 4(271 - 5(2/46 Colonial Sec Andrew Sinclair to Chief Protector Geo. Clarke sen., Doe A43 pp 386-387.

447Jellicoe A24 p 300-302; also Education Ordinance of 1847 A7(b) pp 8-9. 185 "One Slice at a Time"

Alongside its claims of military necessity and maori health, the Crown sweetened the initial occupations of reserves by formulating some of the seizures as only temporary, others as lease arrangements, or others as exchanges for other lands. For instance the

1846 siting of military barracks on Te Aro's sections 89 & 90 - and later the hospital and school - were all initially planned to be only temporary, at least in the sense that "it was the intention of the Government to pay compensation for them and restore the value if not the actual sections.,,448

Town Acres 89 and 90 were first approved in December 1846 - just as McCleverty was beginning his resettlement work - by Superintendent Richmond, upon Lt Col.

McCleverty's recommendation, "as eligible sites for the [powder magazme and temporary wooden barracks for a hundred men]." By "temporary" was meant a

"defensible post" designed to last from ten to fifteen years.449

By February 1848, though, the Major General Commanding in New Zealand had

ordered a permanent military post for 500 soldiers in Wellington. The Ordnance

448Hospital at Heaphy "Remarks" 29/8{73, in A39 P 203.

449Collinson, Royal Engineers to Superintendent, 4 December 1846 A34 P 82 & 83; also NM 8/46/569 with Richmond's approval minuted on reverse, Doc A43 p 387a; and A39 pp 134-5 1/6/50 Lt. Col Bolton, Commander of Royal Engineers to Inspector General of Fortifications. 186 requested Crown grants from Lieut-Gov. Eyre for sections 89 and 90, as well as for the

Thorndon barracks at Raurimu/Haukawakawa (Town Acres 591, 592, 601-604).450

Lt Governor Eyre forwarded the request to the Governor-in-Council, who decided it was "essential to the safety of the Town and prosperity of the Province that Wellington should be made the principal Military depot." William Fitzherbert later testified to a

Royal Commission that the trustees of Wellington College did not protest against the

Ordnance's occupation of the Raurimu/Haukawakawa lands because "strong local influences were brought to bear not to press this point, lest it should be taken hold of as a reason for not sending troops here."451

In the end, the Executive Council promised a grant of section 89 and 90 subject to the

Ordnance Department submitting plans and other particulars. They declined to grant the lands on Thorndon Flat, but promised to "allow the Ordnance to occupy them until they are required for any other purpose by the Government" - probably alluding to the conflicting school plans - and undertook to compensate the Ordnance for any improvements. The Ordnance was simply to purchase outright other non-reserve sections on the other side of the Te Aro barracks site and at the Colonial Gao1. 452

The Council reasoned "the question of the mode [by] which the interests of the native population should be protected from any loss they might sustain from this arrangement

450Royal Engineer Capt. Y.B. Collinson to Col Sec'y of Southern Province 22;2/1848, Doc A34

451Evidence to 1869 Religious and Educational Endowments Commission, AJHR 1870 A-3 P 18, Doc A43 P 355.

452Eyre to Collinson 25;2/48 A34 pp 35-37 & 66-68; and 25n/1848, A34 pp 64-65. 187 [was to be] left for the future consideration of the Government when a return has been made of the sums already advanced and expended by Great Britain for the benefit of the Natives in the erection of Hospitals, the purchase of reserves for them, etc etc [and] has been laid before the Executive Council."453

This was the germ of Lt Governor Eyre's explicit policy of taking reserves for public purposes, stated fully in his famous memorandum of the 23 June of that year.454

There Eyre described the fluid situation of the reserves, how the trustees had ceased acting and squatter/tenants were occupying the lands. He recommended full

Government control by local Boards of Management.

Eyre reasoned:

"it is essential that the Government should retain in their own hands all control

over the reserves, because circumstances have made it desirable that in some

instances total alienation of the lands should be sanctioned, as for ordinary

purposes, or to similar indispensable purposes, or to provide sites for hospitals,

for churches, for public offices, or for other similar indispensable objects of

general and public utility, the Government having no land left them in the

Province of New Munster available for such important and available purposes."

Eyre justified taking reserves for public purposes on grounds that the Government had:

1. "given up to [maori] 100 acres reserved as a domain,"

453Extract from Minutes of the Executive Council 24/2/48, A34 pp 105-107.

454Jellicoe A24 pp 303-304, citing Eyre memorandum, Mackay's Compendium, Vol 2, p 278). 188 2. purchased lands for them,

3. bought out leases to give vacant possession to natives,

4. spent large sums "to advance the welfare and interests of the Native race

generally."

"Already many instances have unavoidably occurred in which the original intention of the reserves has necessarily been departed from":

i. some were given up to the maori themselves,

ii. some were exchanged for other lands,

iii. some were put to other [ie military] purposes "unavoidable from the

circumstances of the colony and the anomalous position of a Government in a

new colony without an acre of land at its disposal for the most important public

purposes."

Controverting his own pnor arguments to Col. Wakefield justifying McCleverty's exch~nges in 1847, Eyre now argued that "since the original plan of native reserves was first brought into operation, many and large additional blocks of land not then contemplated have been given over to the natives."

Therefore, he concluded, the Government ought to "reimburse itself from the lands originally set apart as reserves." As if unconvinced himself, however, he allowed that

"the Native Reserve fund should be compensated by the Government, allowing a fair and reasonable rate of purchase-money for the land taken." 189 Granting ReselVes Away

By October 1848, Colonial Secretary Dommett sent to the vanous Boards of

Management of Native ReselVes a clear set of guidelines and procedures for letting or selling native reselVes. He reported frequent applications to let or sell reserves. The

Crown, it had been decided, would authorise sales upon certain conditions:

1. Maori didn't need the land

2. Government approved the arrangements or terms

3. all money was paid to Government for reinvesting in land

4. short term leases only, with good security for arrears

5. maori may receive rents themselves.

Eyre proposed specific procedures:

1. Maori inform Native Secretary they wish to Jet or sell;

2. Native Secretary learns location, acreage, parties, and the lands intended for

lease or purchase;

3. Native Secretary tells this to the Board of Management, who decide the

wisdom of sale;

4. and possibly arrange tenders or auction with initial offer as upset.455

. Eyre's clear guidelines and justifications for alienating reserves appear to have been consulted in the 1870's when the Crown finally attempted to calculate the "fair and

455Colonial Secretary Dommett's memo to Boards of Management, 6 October 1848, A26 P D14. 190 reasonable rate of purchase-money" for the reserves taken for barracks and endowments.

We will examine them further in that context.

Apparently the guidelines were not applied, though, in the case of Thorndon and Te

Aro reserves at the time they were taken. Rather, Lt. Governor Eyre and Governor

Grey appear to have approved the various takings of Te Atiawaffaranaki reserves as payment for "the sums already advanced and expended by Great Britain for the benefit of the Natives in the erection of Hospitals, the purchase of reserves for them, etc etc" -

as announced by Eyre to his Executive Council in February 1848.456

There is no evidence that Te Atiawaffaranaki had agreed to pay for the erection of the hospital with lands that they had agreed would "remain alone for [them]" (in the 1844

Releases). One would expect a record of such a gift or agreement. Further, it seems bizarre to propose that Te Atiawaffaranaki would have voluntarily paid again for the purchase of some of their reserves; the 1847 deeds of exchange stated that they had already "given up" certain reserves "in exchange for receiving" others. Presumably, if further payments or lands had been agreed upon, there would have been a record of this.

The Ordnance Department prepared the plans of sections 89 and 90 the month after

Eyre's "alienation" memorandum, and forwarded them to the Colonial Secretary in the month of Col. 's death, September 1848. 457 No grants ensued immediately, possibly because the writing was on the wall for the Crown shortly to

456Extract from Minutes of the Executive Council 24/2/48, A34 pp 105-107.

457MA 17/1 pp 70 - 75 191 resume the estate of the New Zealand Company, which gave rise to much discussion in the region about the status of lands and grants generally. When the proposal was finally submitted to Attorney General Daniel Wakefield on 6 July, 1850, Eyre and the

Ordnance received a rude shock. Wakefield had arrived at the opinion that the reserved lands "cannot be granted without the consent of the natives beneficially interested in them. ,,458

As an interim measure, Governor Grey directed that a lease be offered to the Ordnance

Department "at a nominal or peppercorn rental" on terms similar to the Thorndon arrangement, ie. "for such time as they shall be required for any Ordnance purposes.,,459 He later recalled that he intended the Ordnance to "occupy these reserves for a time, the Government then resuming them for the native owners.,,460

At this time also, it was proposed that the Government assume the lease of Section 514 from the Board of Management of Native Reserves "to arrange [the premise] into court house, public offices, Legislative Council Chamber, Res. Magistrate's Court, etc." This

Barrett's Hotel lease was one of the reserves' success stories, dating from April 1842, and bringing in 54 pounds 5 schillings a year.461 Between May and October 1849, the

458Eyre/Wakefield and WakefieldlEyre 6/6/50, A34 pp 91, 92 and ff.

459Dommett to Ordnance 16/1/52, A34 pp 137-8.

460Rolleston Memo 12(2/68, A34 P 28. 461A26 P 3. 192 Government Offices were moved into the Hotel, a lease arranged, and remained there for many years.462

But around this time, the Crown's protection of Te Atiawaffaranaki's interests in the

"temporary" occupation of Town Acres 89 and 90, the lease of Section 514, and the

"temporary" siting of the school and hospital all begin looking somewhat hollow. First, even the "nominal" rent for the Mt Cook and Thorndon Barracks was not collected.

Even if it had been, though, the possibility of Te Atiawaffaranaki occupation or control of the lands had clearly passed. By the end of 1850, the reserves were fully enclosed in the Crown's own administrative framework, being rented as demesne of the Crown.

Procedures had been established whereby rents were collected by the reserves managers

(or their agent) and paid in to the Colonial Treasurer, who then debited payouts to owners subsequent to his authorisation.463 The rental procedure was for some reason rejected initially by the Treasurer, but then successfully effected.464 In the 1860's and

1870's, both Swainson and Heaphy reported Te Atiawaffaranaki complaints against these very procedures as being inconvenient and humiliating.465

462Eyre to Grey 9/6/49 in GBPP VII, P 85. Note: the whole matter of rents on reserve/endowment section 514 will be clarified soon by Crown Law Office submissions of NM8 and T1 archival materials.

463Desmesne: Dommett memo 16/1/4 in NM 8/50/1151, A40 pp 243-245; procedures: MacKay's Compendium p.278, 5 July 1848 EyreIDommett to Nelson Board of Management.

464NM 10/9/1849 P 742, Doc A43 P 387b.

465MA_MT 1I1M8 11n/65 SwainsonlMantell with Marginal Note by Heaphy, 16/9n3, Doc A43 pp 388-400. 193 The advantageous lease arrangement on Section 514 was lost in 1851, when the section was included in the endowment of the Hospital, and the lease transferred to that institution.466

Similarly, the Hospital turned out not to be temporary - even being rebuilt in 1851 after being damaged in the 1848 earthquake. That same year on the 29 January Governor

Grey wrote asking Earl Grey's approval to endow hospitals and schools, but failing to mention that some endowments were to come out of Native Reserves. Earl Grey approved, and on 11 November the Governor granted the hospital site along with about

11 other acres of reserve to the trustees of the hospital.

The original endowment was itself somewhat "sweetened," though. In a report made shortly after it had opened, Governor Grey had characterised the Colonial Hospital as one "in which the Maoris and Europeans were to be alike received and treated.,,467

After the 1851 Endowment grant, though - according to one of the original Trustees,

William Fitzherbert - maori and European were not received and treated alike:

"In pursuance of [their] powers, [the Trustees]. ..let portions of the land ... The

money [was] devoted to the repairs of the hospital and in payments to the

Provincial Government towards its maintenance in respect of Maori patients."468

So although the lands had been taken, at least their rental was to pay for maori medical care.

466rJ'ransfer: A26 p D22; Doe A39 29/8n3: Heaphy "Remarks" ND 73/5398 P 211.

467Grey to Earl Grey 8/11/47, A39 P 218.

468Evidence of William Fitzherbert to Commissioner Mr. Domett, 15 November 1869, AJHR 1870 A-3, pp 17 & 18, Doc A43 pp 354-355. 194 Remarkably, though, so was the rental of the other reselVes in the Crown's possession.

In Wellington, by 1854, the Board of Management even requested to Colonial Secretary

Dommett that Provincial Superintendent Featherston appoint new Hospital Trustees with expanded powers so that they could "act as a Board of Management for the unappropriated reselVes, thus relieving the General Government of some expense."

They proposed that "as those [rents] derivable for the hospital endowment are not at present sufficient to cover the expenses of the Native patients, the former rents [on the unappropriated reselVes] should also be so appropriated."469 Their proposal appears to have succeeded, as later still, the Provincial Surgeon in charge of the Hospital, Dr.

Alexander Johnston, complained "the revenue arising from the Native ReselVes IS scarcely sufficient for, and has always been expended upon landlord's repairs."47o

In effect, Te Atiawaffaranaki's loss did not end with the initial hospital endowment; maintenance of that endowment and subsidisation of the "free" medical services for maori consumed the entire monetary benefits from their remaining reserves as well.

Finally, where the Ordnance Department had failed in obtaining a grant for

Raurimu/Haukawakawa cultivation area, on 13 August 1853, Wellington College succeeded. The College was granted this area plus an additional five acres of Te Aro reselVes to endow their institution.471 Such was the reversal of the reselVes' fate generally that by 1854, it appears the main barrier to the Royal Engineers being granted

Town Acre 89 and 90 for their barracks was the administrative confusion that followed

469 A26 P D21.

47°AJHR 1870 A3 p22, Doe A43 P 359.

471Doe A39 P 247, Heaphy valuation. 195 Grey's departure in 1853. In 1854, the officer administering the Government, Colonel

Wynyard, apparently could not locate the files necessary to reply to the Royal

Engineers' continued demands for the grant.472

Negotiators have a strategy they call "the salami:" one wins what one wants - one slice at a time. Perhaps the endowments of Wellington Hospital and Wellington College can be seen as taking lands one slice at a time: even supposing Te Atiawaffaranaki knew nothing of the Crown's intentions that the barracks/school site would be exchanged for better land, or that the hospital siting was to be only temporary -- siting a school or hospital for maori on their own reserved land differed fundamentally from taking that reserve permanently to endow the school or hospital, or later, from retaining the endowment long after it had ceased contributing specifically to the cost of treating tangata whenua. Likewise, leasing a site for government offices delivering services to maori differed from taking the site. And throughout~he period when the initial grants were being made, the Crown's stated policy was to compensate the takings - which it did not begin to do for over twenty years.

472McLean and Sinclair memos, 22/5/54, in A34 P 128. 196 Conflicting Engagements at Pipitea Pa

Moreover, the alienations occurred in a fluid period of adjusting, balancing and exchanging myriad individual claims, the Company and the Crown trying to fulfill their existing contracts and commitments.

One such commitment was to the Anglican Church. In 1844, an Anglican Church was built upon what are now Parliament Grounds.473 In 1848, work began in earnest converting the area into the Lieutenant-Governor's town-residence, leaving insufficient space for the Church's planned Cathedral and school. Colonial Secretary Domett wrote to the Rev. Robert Cole,

"His Excellency therefore desires me to say that he proposes, if it meets your

views, that you should select a site upon one of the Native Reserves, which you

may consider suited to the purpose, which to the extent of an acre will be

surrendered to the Church of England, the Government compensating the Native

Trust Fund in some way to the value of the land thus applied. You will perhaps

therefore look over the map and acquaint me for His Excellency'S information

which acre among the Native Reserves you are desirous to obtain.,,474

The Church chose the site of Old Saint Paul's, purchasing part of section 542 (Tod's grant area) plus being granted 17p from the Reserve-part of the section on 20 July 1853.

They also received 38 perches of Reserve section 514, granted to the Lord Bishop of

473 A. Murray-Oliver, Historic Thorndon, 1971, p 4, Doe A43 p 401. 474NM lOn p 82 RichmondlRev Cole 25/6/47 and NM 10/8: p 224 DommettlRev Robert Cole 26/4/48, both in Doe A43 pp 402 & 403-404 respectively. 197 England for their school on 13 August 1853.475 The use of these "bits" of 1839/44

Reserves to settle Crown accounts with the Anglicans resembles the loss of part of sections 542 and 543 to George Moore's neighboring subdivision (see next section).

The losses to the Church and Mr. Moore occurred in the context of a complete re­ survey and re-shuffle of the Pipitea pa area between 1848 and 1852. Even the streets were completely redrawn, closing off the bottom of Pipitea and Hobson Streets, and drawing in three more - Moore Street, Moturoa Street, and Davis Street. The exercise was occasioned by a combination of the Crown's undertakings to guarantee Pipitea pa, to provide a Public Market Reserve, to reward te Puni's loyalty, to prevent half-caste unruliness, and to meet the New Zealand Company's obligations to its settlers upon resuming their estate under the 1847 Colonisation Act and the 1851 "New Zealand

Company's Land Claimants' Act."

Probably, the cluster of reserves at Pipitea on Mein-Smith's first Plan of the Town of

Wellington (August 1840) roughly reflected the boundaries of Pipitea pa. There are three notable exceptions, though: first, Mein-Smith laid out streets in a pattern almost

'shattering' the pa area; second, the land above the North-facing beach, Te One-i­

Haukawakawa, was not reserved for maori but for a public market; and third, there is a 'hole' in the pa reserves - Town Acre 544. These exceptions are in a sense the beginning of the problems that occasioned the later re-shuffling.

A second fundamental point, before examining the re-shuffling of the pa area, is the

1844 Releases' definition of "pa" as the area fenced in and the whare immediately

47SHeaphy valuation Doe A39 p 247. 198 around the fence, "including land in cultivation or occupation around the adjoining houses."476 This definition roughly matches maori village layout as described by Alan

Ward: prior to the pressures of pakeha encroachments, a kainga-type "pa" such as

Pipitea was probably not so much "fenced in," as having low fences in the kainga divided compounds of whare occupied by various whanau.477

In April 1845, T. H. Fitzgerald surveyed Pipitea pa (and Te Aro) according to a minimal definition, whereby a red exterior boundary in large part followed a fence line and hugged close to whare shown. At no point does the boundary extend out to cultivated or occupied lands, as FitzRoy had initially directed.478 Fitzgerald's plan - not

FitzRoy's definition - attached to McCleverty's 1847 deed of exchange for Pipitea

(District Land Registry Deeds Vol 1 Fol 304), and so officially defined the pa in the

Crown's subsequent boundary shuffles.

Neville Gilmore has explained quite fully the grant to R. Tod/A. MacDonald, 9 July,

1845, and introduced the grant in 1852 to Worser Heberley and family.479 We have told a little of the Crown's fortification of the pa area from the time of earliest

European settlement.

There were also two early "background" transactions of land in the pa area. First, the two Town acres 607 A and 608A, immediately to the north of the pa at the intersection

476A10(a) Doe 6 p 18.

477A. Ward p 5, Doe A43 P 296.

478Crown Land Office/Heaphy House Wellington deeds file 73/530, tracing Doc A43 p 405. 479Doe All pp 32 - 41. 199 of Hobson and Davis Streets, were apparently initially named 607 and 608. In April

1840 the New Zealand Company gave these sections to the Anglican missionaries Rev.

Henry Williams and Reihana RewetilDavis in exchange for Williams and Davis relinquishing their claim to most of Pipitea/Haukawakawa.

In its selection of lands in July, the Company apparently moved the appellations "Town

Acres 607 and 608" to two sections up near Tinakore Road. It is difficult to tell from the sources available whether Native Reserve allocation applied initially to the first 607

& 608 or the revised 607 & 608. Until 1870 at the latest, the Anglicans' sections near the pa were generally shown as without numbers. Then they re-emerged as 607A and

608A, which they remain today.480

Second, Thomas Barker claimed before Commissioner Spain to have purchased from

Reihana Davis in June 1839 most of section 543 and across the proposed Pipitea Street into 584. His claim was disallowed, and so did not affect any boundaries. Barker's claim remains of interest, though, because by it we learn that the lands were definitely cultivated in the early 1840's, and so should be assumed to have been excepted from purchase, and to have remained in native title.481

48°Exchange: LS-W 65/12 sections 607 and 608 (no copy); also Crown Land Office Original Deed #9, 29 April 1840, Doc A43 P 406; no number, see ego GBPP/NZ Vol 3(583) pp 183-187, 1843 Mathew "Plan of City of Wellington," Doc A43 p 377; also Wai 145 Doc L.A9(a), 1847 Crown Grant plan; 1870 see ego 1870 Heaphy "Block Plan of City of Wellington" (to be submitted); contemporary, see Wai 145 Doc L.A9(c), DOSLI Wellington City Block Sheet 33A].

481Tonk pp 166-67 Doc A42 pp 45-46; and OLC 1/635, Doc A42 pp 175 (map) & 193 (one amongst many references to the recent cultivation of the land claimed in OLC 635). 200 Finally, in August 1852, the Crown undertook to grant lands out of the pa to Worser

Heberley's children and to Honiana te Puni. Heberley's grant must be seen in light of the Crown's concern, according to Native Secretary Kemp, that "the race of half-castes now fast springing up" would fall between the cracks of society. Kemp had observed in

1850 that "several of the members of these children are likewise anxious to have the lands and property given them in right of their mothers, duly registered, and otherwise legally secured to them," and recommended to the Colonial Secretary that it be done.

Otherwise, Kemp warned, they were "not unlikely to become troublesome, if not dangerous members of society."482

Likewise the Crown's grant to te Puni of Pipitea pa lands perhaps fulfilled a moral obligation of the Crown's more than it reserved any customary rights of Te

Atiawaffaranaki's. Shortly before the missionaries and settlers arrived at Whanganui a Tara, Ngati Tawirikura under Te Puni, at Pito-one had tried to occupy Pipitea pa!Haukawakawa. They had been repelled by their close relations Te Matehau under

Moturoa and others, who were living there when pakeha arrived in 1839.483 Sub- protector Clarke regarded this dispute as a key element in Wi Tako's resistence to te

Puni's claim to the right to sell the region.

It is interesting, then, to find Honiana Te Puni accepting a grant in 1853 of 33.5 perches of land adjacent to Pipitea pa as laid out by Fitzgerald in 1845. The Crown granted him the section, just across Pipitea Stream, to reward his loyalty and services rendered in the

482GB PP 1851 (1420) P 241 Kemp Report on Maori settlements, 15/6/50, Doc A33 p139.

483Clarke Report, 13/12/1843 in A29 p 363. 201 wars of 1845-7 against Rangihaeata and Kaparatehau.484 It is tempting to posit Crown

"favouritism," or even use of the old rivalry to aid in unsettling/removing maori from the urban pa.485 However, interpreting such maori-maori rivalries is tricky: for instance,

Kaparatehau, the "rebel" of 1846, still occupied in 1850 the very cultivations from which he'd been driven in 1846 - and apparently was now attended formal hospital functions, welcomed by Crown, Te Atiawaffaranaki and Ngati Toa.486

Without positing any mischievous play of Petone-off-Pipitea, though, one can see that the Crown clearly killed two birds with one stone with the grant of this piece of pa: it

"guaranteed" the land for Te Atiawaffaranaki, and it met its moral obligation to an heroic citizen.

484District Land Registry Deeds Vol 14 Fol 711, 16/8/53, copy in A43 P 407.

485Doe A18 pp 25, 32 & 37.

4861. Wards p 243, Doe A42 P 124; and L. Ward p 286, Doc A42 P 217. 202 A New Section

The central surviving problem in the pa area was posed by the shift of the boundary between sections 542, 543 and 544.487 The shift resulted in a loss of one-fifth to two thirds of an acre of Te Atiawaffaranaki's currently most-valuable Reserve lands, currently owned by Government Property Services.

Sections 542, 543 and 544 were laid out in Mein Smith's 1840 Plan of the Town of Port

Nicholson. In the initial selection of Town Acres, under Mein Smith, Section 543 was chosen as a Native Reserve. Section 544 was selected by Henry Moreing. Moreing claimed the section in the usual way, under New Zealand Company Land Orders, purchased in the initial sale of 1839, and allotted to him in the 1840 Preliminary

Selection.488

Section 544 was developed quite early. Park's 1841 plan of the section shows the section shaped as on Mein-Smith's original plan, and as holding only Wade Tavern, with some outbuildings.489

In 1843, Henry Moreing mortgaged the section to Henry Evans. The plan drawn on the mortgage shows the section as on Mein-Smith's original plan.490

487See Swainson's survey of the pa WAr 145 A9(f).

488LS_W 68/1/69 Doe A43 P 318-32l.

489S0 10303, Doe A43 P 408.

490District Land registry Deeds Vol 1/142, tracing in Doc A43 P 409. 203 In April 1845, Assistant Surveyor T.H. Fitzgerald drew plans of both Te Aro and Pipitea

Pa, pursuant to the 1839/44 Reserves agreement and Spain's award. The plan he drew of Pipitea pa excluded any mention of Pipitea St., which according to Mein-Smith's 1840 plan ofthe Town of Wellington, would have gone straight through the pa. On the south side of the pa there is a four-sided section, shaded red in McCleverty's 1847 copy, and marked as "given in October 1846 and is on a Native Reserve." This was probably

Heberley's award, for which the boundaries were later altered, apparently to preserve

Moore St. 491

In 1847, McCleverty's Pipitea deed enclosed a copy of Fitzgerald's 1845 plan, and the

1846 gift, again guaranteeing the pa to the Pipitea maori.

Crown Land Office's Wellington Deeds file 290-B at Heaphy house is an attested copy of Moreing's grant of Power of Attorney to Daniel Wakefield, dated 9 August 1851.

This grant recited that Moreing had contracted with George Moore, Merchant, for 200 pounds for s. 544 in Wellington "so described in the map or plan of the said Town of the said Surveyor General of the New Zealand Company."492 Moreing also granted

Wakefield power of attorney over the rest of the contract for the sale of Hutt section

7, Ohiro section 20, three 100 acre blocks in Waikanae (Kapiti) District, and Town

Acres 134, 785 and 787. Seven hundred pounds, all up. Moreing did so because he was leaving for Sydney on urgent business before completing his conveyance. The grant was of a special agency only for conveying these properties.

491NM 8/50/908 Grimstone/Heberley 30/9/50, A37 P 53.

492Doc A43 P 411. 204 So, on 11 August 1851, Wakefield sold section 544 to George Moore, along with the several other sections in the region. The deed of sale included a plan of section 544 - a four-sided section exactly as in all previous title instruments we've described. The deed text, like the grant of Wakefield's power of attorney, referred to section 544 as it was "described on the map or plan of the said Town of Wellington of the Surveyor

General of the New Zealand Company."493

Two months later, in October 1851, Moore had Town Acre 544 surveyed for subdivision.

This survey does not resemble the Town Acre 544 "shown on the survey of the Town of Wellington," nor on Park's survey, nor on Moreing's mortgage, power of attorney, or deed of conveyance. Instead, it depicts a five-sided section - still named 544 - subdivided into 10 parcels.494

Moore's subdivision lots were auctioned the same month, with Moore more than doubling his 200 pounds investment. The purchasers' claims were then heard together by Commissioner Bell on 14 January, 1852 - except Harding, whose case was heard 12

April. On 24 April, Bell recommended grants.495

It is perhaps noteworthy that while hearing the claims to section 544, Bell wrote to the

Colonial Secretary about a "piece of land it might be serviceable for the Gov to purchase" nearby. He wrote telling of the recent auction of Tod's grant, placing much of the neighborhood into speculators' hands, who wanted to sell at reasonable prices.

493Doe A43 pp 415-422.

494S0 10490, Doe A43 P 424.

495Bell's Report, LS-W 68/1/69, Doe A43 P 318-321. 205 Bell was concerned, as Commissioner of Crown Lands, to consolidate the town acres in the area after Tod's grant had thrown them out of kilter.496

Further, pursuant to the procedures laid out in 1848 for disposing of native reserves

(above), Colonial Sec'y Dommett wrote to Native Secretary Kemp on 24 September

1851 that two requests had been made to lease or sell Pipitea pa lands. One request was "an intended lease of some of Parata's land to the Rev. Mr. Duncan," and the other was a conveyance to Worser Heberley's wife and children. Governor Grey instructed

Kemp to tell Pipitea folk "if they will divide the said land into individual properties, in such manner as may satisfy you that no future diffculties respecting the ownership of the several portions will arise, His Excellency will cause individual grants to be issued to them of the several properties, with power to lease the same, subject to the approval of the Government."497

Three weeks later, Kemp wrote to Colonial Secretary Dommett that "in the presence of the native proprietors and the other parties concerned, the spots of ground at Pipitea pa were severally pointed out and marked, for which Crown grants have been requested by the chief Parata, on an intended lease to the Rev. J. Duncan, of this place, and by

Heberley on behalf of his wife and children; in the arrangement of which all parties expressed themselves well satisfied."498

496NM 8/52(27 Be11!Dommett 8/1/52, and NM 8/52/1793 BelllDommett 30/12/51, in Doe A40 pp 400-409.

497A26 P 17.

498A26 P 17. 206 No better explanation of this change in section 544 has been found than simply that with all the changes occurring in the vicinity, Bell regarded rough estimate of loss and gain sufficient to enable Moore's grant to be made. If so, his calculations for were a bit too rough. The net result was definitely a loss of Te Atiawaffaranaki's reselVe land in this valauable area.

The 1847 exchanges and 1848 Crown grant had left the Crown with obligations in the pa area pertaining to streets, Native ReselVes, the market reselVe - and now to make a special grant to Heberley's half-caste children, and to grant section 544 under the New

Zealand Company Land Claimants' Act, 1851 - all the while guaranteeing the pa (as provided in the 1847 Pipitea exchange).

We need to pause briefly to explain how we have quantified this somewhat slippery set of exchanges and boundary re-definitions.

Areas lost or gained in the reorganisation of Pipitea can be estimated by using tracings of the Wellington SUlVey District Block Sheet 33A. We have taken a scale off the Block

Sheet by tracing the exactly-2-rood section Pt. 596. Laying this over sectional paper, we count 143.5, and then 145.25 and then 145.5 unit-squares in the 2-rood area, an average of 144.75 units per two roods, making 289.5 units equal to 1 acre. 499

499A note on Swainson's reconstruction on ML 3140 (dotted line on W AI A9(f) of some of the original boundaries: according to Park 1841 (SO 10303) the boundary between 544 and Native ReselVes 543 and 542 passed through the shed behind Wade Tavern, on section 544. Placing the boundary accordingly on Moore's plan of 544 1851 (SO 10490) matches Swainson's 1867 reconstruction. Swainson's southeastern boundary between Acre 544 and Thorndon Quay shows a 57 degree angle formed by the Western and Southeastern boundaries. This roughly matches Mein-Smith 1840, who shows a 58 degree angle and the Block Sheet 33A which shows about 59. Only Park's 1841 Plan, SO 10303, 1841 Plan of 544 differs, showing a 50 degree angle. This difference would only throw the calculations of gains and losses out about a tenth of an acre. 207 We start with the areas gained and lost in guaranteeing the pa, as mapped by Fitzgerald.

This obviously entailed closing off the end of Pipitea and Hobson Streets, and

"converting" most of the Native Reserve sections 584 and 593, and most of the

Company/Crown's proposed Market Reserve. On the face of it, the Crown and Te

Atiawarraranaki have off-setting claims here. The Crown might claim that they "gave up" 503.75 units/1.75 acres of land in the Eastern ends of Pipitea and Hobson Streets and the market reserve. But equally, Te Atiawa!Taranaki's might claim that they "gave up" an area of 706 units/2.44 acres of land already reserved to them (including the existing Native Reserves 593, 545 and pt. 584 & 594, all converted to Moore & Moturoa

Streets, Thorndon Quay, and the pa reserve.

Both claims have their strengths and their weaknesses. If we simply take them as cancelling each other, though, we are free to focus on the changes surrounding

Heberley's and Moore's grants.

We find that by Bell's award Moore gained 125 units out of reserves 543 an 542. Minus the 63.5 lost to Heberley, Moore St., and Porutu, he lost 61.5 units, and minus further the 48 units lost to Thorndon Quay, makes a negligible net gain for Moore of 13.5 units/.05 acres.

Alternatively, Te Atiawarraranaki lost the 125 units to Moore plus 1.5 to Moore Street plus the 81.5 to Thorndon Quay - a gross loss of 208 units/.72 acres. Between Heberley and Forutu, they gained 31 units, making a net loss of 177 units/.61 acres in the creation of Moore's and Heberley's neighboring grants, with streets laid out. 208 In sum, Commissioner Bell left Moore's estate roughly the same as it was, and decreased Te Atiawaffaranaki's by about two-thirds of an acre. Even excluding the widening of Thorndon Quay, Moore's estate increased by about a fifth of an acre, and

Te Atiawaffaranaki's decreased by about a third of an acre.

The loss remains uncompensated - thereby challenging the Crown to provide what Te

Atiawaffaranaki have not been able to find: justification for taking, by mere survey, one-fifth to two-thirds of an acre of some of the choicest Native Reserve land (now owned by Government Property Services).

To resolve such a claim requires exhausting all plausible sources of evidence of such proper consideration. In the course of his investigations, Commissioner Bell ordered all the records relating to such claims organised into numbered series. This series forms by far the best organised and most comprehensive body of information regarding the initial European ownership of lands in Wellington region. We have found no discussion of this boundary shifting in the OLC files for sections sharing the disputed boundary.

Likewise, there is no particular attention given to this boundary in any of the maps or plans in the collections of both Lands and Survey and the New Zealand Company, or in private or Local Body maps and plans. Researchers have consulted DOSLI collections at Head Office, District Office (all plans, surveys, Field Books and Traverse

Record Books shown near section 544 on the Record Sheet 33A, plus most of those surveys' reference maps) and National Archives; New Zealand Company surveys and plans in both National Archives and the Turnbull collections. We have searched private 209 possibilities at the Turnbull manuscript collection. At least 100 maps and plans were thus consulted.

Further, we have found no trace of discussion or consultation regarding this boundary shift in the correspondence of both Lands and Survey and the New Zealand Company

Land Office between 1847 and 1851.

Where we do find discussion of a discrepency in boundaries in this neighborhood, it tends to indicate that the boundary between sections 544 and 543 simply shifted by

Commissioner Bell's decree. In 1848, Colonial Secretary Dommett wrote to ask

Wakefield about a supposed discrepency between the Company's 1840 Selection map and the 1847 Crown grant plan, reported by Assistant Surveyor Scroggs while laying out the Hospital grounds to the Northwest of Pipitea Street. Dommett also asked Wakefield which map ought to be the map of record in Qoundary disputes. Wakefield replied:

"Mr Fitzgerald and I have this morning carefully examined the two original maps

in the Company's Survey office and can find no difference of any kind."

Wakefield referred the matter back to Scroggs, who replied that the difference lay between the plans and the ground, not between any two plans. The emigration reserve had been laid out on the ground as if Pipitea St. were much wider than planned.

Scroggs had "therefore laid out the Sections according to the plans from Pipitea Street which is one of the oldest points in the survey of the Port Nicholson District."soo

SOONM 8/48/880 Eyre/Dommett 4/8/48; NM 10/9/222 DommettlWakefield 4/8/48; ibid. 5/8/48, Wakefield/Domett; ibid. ScroggsIWakefield 8/8/48, all in Doc A40 pp 195- 200. 210 There is at least one positive indication that evidence of correspondence or discussion over the boundary shift does not exist. In 1864, Swains on noticed discrepencies in boundaries around Pipitea point, and wrote to Colonial Secretary Shortland, asking

"whether a portion of Native reserve acre 543 marked A has been disposed of by the

Government." Hon. Mr. Fox was consulted, who referred the matter to the

Commissioner of Crown Lands and to the Chief Surveyor, "both of whom report that no source of information on the subject can be found, nor any record of a grant having been made for portion A of section 543."S01

As mentioned before, the burden of evidencing consent in this case must finally fall upon the Crown.S02 We have consulted as many sources as time and resources have allowed.

S01Shortland to Swainson 29/8/64, MA 4/6 P 387, Doe A43 p 424a: Swainson's plans appear no longer extant, so we cannot be certain whether Swains on was referring to the lost portion of 543, or to the middle portion, which remained Reserve. S02A34 P 92. 211 Conflict, Confusion and Consent

The final reason that "consent" is difficult to gauge for all of these early Te

Atiawarraranaki losses rests in the fact that the reselVes scheme was not yet working for Te Atiawarraranaki or the settlers. Conflict appears to have been rife, confusion the norm. From the start the reselVes scheme threw traditional rohe into confusion.

In the early forties, Te Atiawatraranaki resisted occupying certain reselVes because they were rival hapu's lands.503 In the mid-forties, settlers had stepped-up their encroachments of traditional cultivations, and begun leasing 1839/44 reselVes. In the late forties, the largest cultivations that Te Atiawarraranaki exchanged had been those near town in Karori.504 Between 1847 and 1848, maori cultivation in the region

apparently dropped from over 800 acres to about 300 - nearly 65%.505

Now around 1850, hapu from Kumutoto and Te Aro were moving out to the Hutt to find sufficient cultivation lands. Te Aro maori had warned of this at Spain's court held

24-26 February 1844, before hesitantly agreeing to the 1844 Releases. Reports of the

Wesleyans at Te Aro corroborrate the picture. In 1849, Rev. Aldred wrote that "the

Natives have generally speaking, left town through scarcity of land." Rev. James

Watkins, in 1851, wrote that "some of our Natives have to go fifteen miles to cultivate

potatoes on land rented from the white men." And, "some of the Maori are saving

money to buy back some of the land of which a few years ago they were the

unquestioned masters ... I don't think they got sixpence an acre, ... what must they give to

503Spain Final Report A10(a) Doe 6 p 4; McCleverty to Eyre, 167/2/47, A26 P 8.

504Doe A18 pp 31, 40-42, citing Kemp 1850 and Watson and Patterson, 1985.

505See Table No 10 in A33 p 102. 212 get it back, at least two pounds." The Wesleyan Circuit Report in 1853 noted maori who had moved to the Hutt, "for purpose of raising food, which many of them do on land which they rent from Europeans."506

There can be no doubt that by 1850, Te Atiawa!Taranaki felt a growing sense that there was no future for maori in the town: some of the most renowned kaka snare areas had been c1eared,507 the best cultivation and pasture at Raurimu & Haukawakawa taken for barracks and the hospital. By 1852 plans were set and work begun on filling-in Te

Atiawa!Taranaki's mooring grounds, pipi beds and other sources of kai moana at

Wellington. This last was specifically cited in petitions many years later as a grievance arising "after the time the management of these tenths were taken over by the

Government of Wellington" and they "began to disappear."

In addition to the sheer lack of resources, official pressures apparently increased to remove pa from the town.508 The Court of Directors of the New Zealand Company, with just three of their purchasers now demanding almost as much in compensation for their still-unavailable 'properties' in Te Aro pa, directed William Fox to make every effort to obtain the pa.

"It..occurred to them that, with the cooperation of the Government and the

Trustees of Native Reserves, those Reesrves may supply a ready mode of

effecting an equitable arrrangement, which, by removing the present occupants

506A26 pp D99; John Roberts, "The Wesleyan Mission at Te Aro, 1839-1877," pp 12- 13, in Doe A43 pp 426-427, citing Methodist Archives: Aldred to W.M.S., 8/1/1853; Watkins to W.M.S., 14/8/1851 (both Archives Auckland); the Report of the Southern District Meeting, 12/10/1853 (Archives Christchurch).

507G. Adkin pp 57 & 95, Doe A42 pp 230 & 234.

508Doe A18 pp 36-37 citing Earl Grey to Grey, 9/11/1849, GBPP 1849. 213 of Te Aro to a less crowded locality, may at the same time contribute materially

to the permanent improvement of the town.,,509

Lt.-Governor Eyre offerred that

"the Local Government are prepared to cooperate with the agent of the N.Z.

Company in endeavouring to obtain possession of Te Aro Pah for that Body

upon reasonable and just conditions."51o

In short, there was a whole Te Atiawarraranaki economy of the reserves at this time which space does not permit us to examine fully, but which readily indicates pressures on Te Atiawarraranaki to leave town.511

These pressures - together with pulls from other areas - led many to leave the region altogether - about 200 Ngati Tama left in the mid-forties; Wi Kingi's 587 Te

Atiawarraranaki returned to Taranaki in 1848. The impulse to return to Taranaki arose partly from Gov. Grey's repudiation of FitzRoy's award. Tonk summarized the situation:

"The Governor [Grey] decided that FitzRoy had been wrong to set aside the

Commissioner's recommendation [of an award of 60,000 acres]. Although the

Maori claimants told him that they would stand by FitzRoy's award and would

not sell anymore land, Grey ignored their warning - the 60,000 acres was Crown

509Directors/Fox in CO 208 (Crown Law volume) pp 367-370.

510Eyre/Dommett to Fox 15n/1850, NM 8/1850/858 in A40 P 227.

5l1ATL map 832.4799a: A1851: ACC.630: Royal Engineers' plan of selZlng waterfront to south of Pipitea Point, Doc A43 p 433a; 5/8/1895: Petition #234 of Enoka te Taitu (via Mr. Wi Pere) and p 96, copy of Petition #629 (via Mr. Taipua, II Session 1891), Doc A39 P 71. 214 land, he said, it would be surveyed, and compensation of no more than Is 6d per

acre would be paid to the Maoris. In the face of Ati Awa opposition, however,

Grey had to back down, and resort to repurchase. The Government managed

to buy over 27,000 acres at New Plymouth between 1847 and 1848. However,

attempts to make more purchases in the area were abandoned by 1849 because

they had soon led to inter-tribal disputes, and the Ati-Awa exiles who had

resettled on the Waitara River's south bank in late 1848 became increasingly

opposed to Government land-buying activities in their vicinity."512

For the remainder of Grey's administration, then, many Te Atiawa/Taranaki in

Wellington no doubt felt the pull of returning to Taranaki to help re-establish customary rights and to protect them from Government purchase. Immediately after Grey's

513 departure, purchases resumed , re-formulating the pressure, as only by returning could one be sure of gaining a share in a reserve-portion of land by being signatory to the sale of the bulk of it. Due to this and the other forces mentioned, by the end of the

1850's Te AtiawaITaranaki's numbers in the Wellington region had declined by probably over a third.514

In conclusion, the possibility of withholding consent for the granting of reserves could not have seemed very real to Te AtiawaITaranaki at the time when the reserves were being taken. By the time the question would have been put - if it was - the lands had already been occupied either decisively (by the military) or rather benevolently (by

51uronk pp 308-9, Doe A42 pp 69-70.

5l3WAI 145 Doe A26 pp 24-5

514Doe A18 P 39. 215 churches, schools and a native hospital). They were under the exclusive control of a closely-regulated Board of Management, who were in turn under the strong, fatherly hand of George Grey. And in the fluid environment of the late 1840's, the proposed grants' finality probably did not appear to Te Atiawaffaranaki any more certain or real than their legality appeared to certain officials.

This is not to say that the lands did not hold deep significance for Te Atiawaffaranaki.

In 1874, when accepting compensation for the lands taken, Wi Tako asked movingly,

"Where are our ancestors? Where? They all lie at Waipiro, [the stream running from the Kumutoto cultivations reserve down Sydney Street to the harbour], in the grave yard. They sleep with their Fathers who lived before them."sls

SlSA39 P 128. 216 The Rivalries and the Quest

Alan Ward described how, in the early 1860's, "direction of policy was still awkwardly divided between Governor and Ministers." In particular, "relations between Civil

Commissioner and Resident Magistrate were uncertain and sometimes unhappy.,,516

We will show that likewise, Te Atiawaffaranaki's reserves became a bone of contention in rivalries between Provincial and National Government, and between the newly formed Native Land Court and the Native Secretary/Department.

At the same time for Te Atiawaffaranaki, the Conference at Kohimarama renewed interest in the Treaty, while the wars raged in Taranaki and confiscations of "rebels'" and Kingites' lands took hold. The signatories to the reserves agreements in the 1840's grew old and the first generation of successors matured, just as the Native Land Court held its first sittings in Wellington. By the end of the sixties, the reserves became a key object of Te Atiawaffaranaki's quest for secure lands.

The Government's rivalries and Te Atiawaffaranaki's quest converged in the Court of

Appeal case, Regina v Fitzherbert.

While Te Atiawaffaranaki in Wellington District remained mostly friendly to the

Government in the early 1860's, as iwi they were deeply involved in both the Hauhau and Kingite movements. Ropiha Moturoa and Wi Tako were both prominent Kingite leaders.s17 Tarred by the same brush as so-called "rebels" elsewhere, their moderate

516Ward, Show, pp 131-132

517AJHR 1861 E-1D pp3-5, Doe AXX pp 434-436; A26 P A186 217 Kingism brought to Wellington the threat of confiscation of their reselVes. In a meeting at Waikanae 3 June 1864, Colonial Secretary Fox told Wi Tako,

"Yon are liable, as well as the rest, to have all your lands taken from you. But

if you are prepared today to make your submission - to give up Kingism forever

and sign the declaration of allegiance - the Government will not touch any of

your lands or punish you in any way."

Wi Tako replied that "It was I who commenced Kingism here... From the first time my

Kingism was clear and good, but Waikato put it wrong and now it is crushed and dead.

My advice was always put aside, and their plan took a different shape from mine."

Accordingly, Wi Tako renounced Kingism, and the Crown refrained from seizing his lands. 518

The Crown hoped to shift from Imperial to Ministerial control of "native affairs" at the time - though this objective was tempered on the one hand by the desire to retain

Imperial control over Imperial forces in the wars, and on the other by Grey's "new institutions" seeking a measure of maori self-management.519 The broad shift to

Ministerial control appears to have wrought some confusion over who was to do what with maori reselVes. Fundamental Native Affairs policies changed almost annually.520

Between 1859 to 1863, for instance, the Native Department sometimes regarded the

ReselVes Commissioners' main job to be gathering and assessing assents to have 1847

518MA 24/22 excerpt from Wellington Spectator, 22 June 1864, Doc AXX pp 437-438

519Camhist 106-109; A. Ward, ego pp 131-132 and 170-188

520Colonel Russell, "Statement on Native Affairs," 26/6/1866, 1866 AJLC P 3-5, Doc AXX pp 439-446 218 Reserves brought under their control. Commissioners were sent forms for ascertaining such assent. Major decisions were to be. referred to the Native Secretary.

In other general instructions, though, Commissioners were to arrange the issue of

Crown grants on reserves. They were sent a package of blank grant forms. Major decisions were to be referred to the Land Purchase Officer, Provincial Councillor

Fitzherbert. Later, Commissioner Swainson was instructed by Native Minister Fox not to issue Crown Grants to "avowed Kingites."521

Similarly, in 1865 Colonial Treasurer Fitzherbert sought to restore the old system of rent collection. He requested that Swainson forward all rents to the Treasury, by whom rents were to be brought to account and payouts authorized. Swainson protested to

Mantell, who intervened along with Richmond and Under-Secretary Rolleston. The

Native Secretary (now Department) established instead a system of advances to

Swains on with payouts under Swainson's delegated Governor's authority. 522;" 11 July,

1865: Swainson to Hon. Mantell; 30n/65 memo of Rolleston; 31n/65 Richmond memo;

Treasurer memo 5/8/65; all in MA-MT 1IIA/28]

The situation was muddier still, as circumstances demanded that Reserves

Commissioners wear many hats. For instance, the Commissioners under the first Acts

521MA 4/4 P 90 20 April, 1859 Asst NSec T.H.Smith to Comm'rs of Reserves Wellington; MA 4/4 P 279 - (-Feb. 1860) circular forwarding forms for ceding lands under cl 17; MA 4/4 pp 563-4, 7 April,1862 W. Fox to all Comm'rs of Native Reserves to put Reserves administration "on a proper footing"; MA 4/5 p213-215, Domett to Swainson, 11/10/62; MA 4/6 p203: NO to Swainson, fwding "50 blank Crown Grants; MA 4/6 P 206: Shortland to Swainson, 11/12/63; no Kingite grants, MA 4/6 P 441: halse (Acting Native Sect'y) to Swain, 17/10/64, all in Doe AXX pp 446-449

5227 July, 1865 Colonial Treasurer Wm. Fitzherbert "Memorandum for the Honorable the Attorney General [Henry Sewell 219 resigned en masse in 1861 (after an attempt to bolster them by adding Resident

Magistrate Wardell to the Commission - perhaps an appointment under Grey's 'new institutions'). In order to encourage survey, partition and granting of reserves in the region, they were replaced by the District Surveyor, G. F. Swainson. He was appointed under the 1862 Native Reserves Act as the Governor's delegate in whom the reserves would vest. Upon assuming his position, Swainson found no accounts published, and no "absolute distribution of the rents annually."523 He found the available means of resolving succession disputes confused and/or too cumbersome, and so was also warranted to conduct investigations under the Intestate Natives Succession Act. 524 To encourage more "assents," he was appointed Searancke's successor as Native Land

Purchase Commissioner.525 Remarkably though, despite their abundance of official roles, Swainson and Heaphy both reported that the majority of their time was spent in administering 1847 Reserves - an unofficial role.526

In the early sixties, therefore, while Te AtiawatTaranaki lands in Taranaki were threatened by war and confiscation, their Wellington reserves were caught up in confused responses to Kingism and to the shift from Imperial control. Certain forces pulled reserves toward the hands of Native Secretary, Treasury, and Cabinet, while others pulled reserves toward Native Land Purchase Commissioner, Provincial Council,

523"Lel/1882/6 Native Affairs Select Committee Papers p 13, MacKay testimony 26n/82; also MA-MT 1/1A/28 11 July, 1865: Swainson to Hon. Mantell

524MA 4/6 pp 392 & 422, Doe AXX p 450

525A26 P D54

526 A26 P D53-55 Swainson Report 21/5/66; Heaphy "nine-tenths," MA-MT 1/1A #12, Doc AXX pp 451-454 220 and Land Court. Neither set of forces, though, particularly encouraged direct Te

Atiawarraranaki control. An almost impossible variety of roles was required of

Reserves Commissioners. And just as the office of Protector of Aborigines had been divided between protection and purchase in the 1840's, so now the Reserves

Commissioner was also the Land Purchase Commissioner.

Differences simmered slowly between the Crown and tangata whenua over the apportionment of control (both legal and practical) over the 1839/44 Reserves versus the

1847 Reserves. By 1850 the "theory" was certainly clear to some: the Crown controlled the 1839/44 Reserves and 1847 deed signatories controlled the 1847 Reserves. But cracks in the theory emerged immediately: we have stressed how in 1850 Attorney

General Wakefield declared that native title remained unextinguished over the

"occupied" 1839/44 Reserves, and so constrained the Crown's administrative control.527

Similarly, until 1865 the 1846 Native Lands Purchase Ordinance technically prohibitted

Te Atiawarraranaki leasing their 1847 Reserves themselves, so constraining the tangata whenua's administrative control.

Later, the question arose whether the Board of Managment required Te

Atiawarraranaki's formal "assent" (under the 1856 Native Reserves Act provisions) to administer 1847 Reserves. In December 1859, Attorney General Whitaker stated that, without such assent, the 1847 Reserves were not under the authority of the Board. The correspondence surrounding Whitakers opinion, though, clearly depicts a relationship

5270LC 1041 P 35 221 of close, but guarded, cooperation between maori and Managers over both sorts of

reserves.528

The distinction between 1839/44 and 1847 Reserves arose again in 1865, when Attorney

General Sewell, believing the 1847 Reserves had been included in the 1848 grant,

decided they had effectively been "granted" to Te Atiawa/Taranaki. Commissioner

Swainson pointed out that the 1847 Reserves were merely excluded from the 1848 grant,

and suggested further that "native title has not been extinguished in the tenths of land

set aside by the New Zealand Company." Attorney General Sewell noted the legal

niceties were of little practical importance, and like his predecessor, suggested that the

Commissioner obtain authority over them by 1856 Reserves Act "assents."529

Despite such continued urgmgs, though, the only such formal "assents" for

.,_ administration of 1847 Reserves in Wellington region were obtained not by Reserves

Commissioners, but by the Native Land Purchase Commissioner, William Searancke, in

1859 in Ohariu.530 Instead, around 1860 the Commissioners often treated the

supposedly different kinds of reserves quite similarly. For instance, Island Bay (Town

District sections 6 & 7), Ohiro Bay (section 26) and Wainuiomata [section 1 or 4] all

were sold under authority of the Governor Grey shortly after his return to office at the

end of 1861. The Island Bay sale - to Grey's old friend, George Hunter Jr. - had been

firmly rejected just three years before by Native Minister C. W. Richmond and

Governor Gore-Browne, who stated their "opinion that it is very undesirable that

528 A 26 pp D33-4

529 A26 P D46-8 21/4/65 Swainson/Sewell, 26/4/65 SewelVSwainson, 16/6/65 Swainson/Mantell, 17/6/65 Mante11!Sewell, and 19/6/65 Sewe11!Mantell

53o.yurton deeds A27 pp 109-111 222 reserves of this class [ie., Crown-held 1839/44 Reserves] should be alienated, except in very special cases and that a preferable arrangement would be to lease such lands even at low rents and for long terms, but that such leases should not contain purchasing clauses." Yet, the 1860 sale bundled the Island Bay 1839/44 Reserves with Ohiro Bay

1847 Reserves - and apparently treated 50 acres of Ohiro 26, an 1839/44 reserve, as merely Crown land. More remarkably, at about the same time Island Bay was being sold as "unallotted," Commissioner St. Hill actually assigned the 1839/44 Reserve sections Ohiro 19 and 21 - just several hundred metres away from Island Bay 6 & 7 - over to Hemi Parae's administration when he'd "returned from the treaty at

Kohimarama." This is also the time when sections 1 & 4 in Wainuiomata sold to

Fitzherbert and Dick, ending in the current anomaly of 'Wellington Tenths' being in

Palmerston North. 531

In conclusion, despite the appearance of careful distinctions between reserves presented in Swainson's and Heaphy's reports to Parliament, the real operative distinction between

1839/44 Reserves and 1847 Reserves remained quite informal right upto the 1870's. It

531MA 4/4 P 179 and 259; MA 4/4 P 241 Native Secretary/Commissioners 7/12/59; NO 1/63/666 Swainson/Native Secretary re Island Bay and Wainuiomata (registry entry only); NO 1/63(299 March 3, 1863 Swainson/Native Secretary re Wainuiomata (registry entry only); NO 1/63/1659 October 28, 1863 forwarding deeds for both (registry entry only); "Crown Land" see District Land Registry, where Ohiro 26 was never recorded as being Native Reserve; "proceeds" see Jellicoe A24 p 314 (no citation given); Scholefield, Dictionary of New Zealand Biography. Vol1, pp 420-21, Doc AXX pp 456-458. Irvine­ Smith, Streets of My City, P 261, mentions Hunter's "Happy Valley Station, Doc AXX p 459;" "unallotted" see Swainson Report 1867 AJLC A25 P 8; Hemi Parae see 1874 AJLC No 7 A25 P 27; Wainuiomata 1 & 4 - Jellicoe A24 p 314, dates their sale in 1866, citing Parliamentary Paper G-7, 1883 and Native Trust Office Records 6/58 (memo. by A Mackay). The Palmerston North Maori Reserve Commission. 1952-3, Appendix p 1 places the sale of Lowry Bay 1 & 4 in 1864 and 65, citing "1866 Report of the Commissioner of Native Reserves" see A26 p D55. MA 4/6 pp 340: Shortland to Swainson 17/5/63 and Halse to Swainson 16/11/64 p 459 clearly show Fitzherbert and Dick were near purchase in 1863-4. 223 is perhaps well to remember that ReselVes Commissioners - like Resident Magistrates - had to "live with" Te maori, being called in to tribal succession disputes, health matters and medical crises, questions of house and home. Ward summarized the situation at this time for Resident Magistrates: "There was usually some willingness to accommodate the demands of Pakeha law but it was still expected that the pakeha should acknowledge

Maori standpoints also." Indeed, around 1865, Commissioner Swains on characterised his role in Te AtiawafTaranaki's 1847 ReselVes as "shepherding." 532

532Archives MA 24/21 Swainson memo ca. 1865, Doe AXX pp 460-464; cf. Resident magistrates, ego Ward, Show, pp 74-75 and 175. 224 Straightening Accounts

Just before the Wellington Commissioners resigned en masse in 1861, Native

Department Under-Secretary Donald McLean (just before he resigned, too) requested that they apply the 400-odd pounds in the Native Reserves Fund to the construction of a Native Hostel "in the Native Reserve near Government grounds in Wellington." The

Commissioners approved the scheme, but resigned before providing estimates and plans requested.533

In 1863, W. B. D. Mantell picked up the proposal, suggesting to Native Minister F. D.

Bell the old idea that they "enlarge the powers of the [Hospital] Trustees" so that they could legally rent the proposed site of the hostelry to the Native Reserve Commissioner.

Perhaps to apply pressure to Bell, Mantell wrote

"you are aware that this section 574 with many adjacent ones, was originally a

native reserve, but that they have been granted to a Hospital and to a College

which does not exist, rightly or wrongly matters little, as it will be cheaper to pay

the rent than to try the question. But I regret that the Raurimu sections which

would have made such an excellent paddock for the maories' horses, are already

leased by the Trustees. Perhaps you will kindly let us know by return mail

whether the Government consent to rent this Section in order that the building

may be begun. ,,534

533MA 4/4 p 191 4 May, 1861 NSec Don McLean to Commr's of NR, Wgtn; and p 394 - 7 Sept 1861 rn Smith to Comm'rs NR Wn: ref to Commr letter 25 June, Doc AXX p 465

534Mantell to Bell, June 26, 1863, Turnbull Library Mantell Family MS Papers 83/219, Doc AXX pp 465-467 225

Apparently Mantell was not the only person to notice the irony of Te Atiawaffaranaki paying rent on their own ex-reserve with funds from their remaining reserves. Eight months after Mantell's mention of the grants to Bell, Attorney General Whitaker wrote that he thought the Hospital and College grants were "very informal and I think invalid."

He recommended special legislation, and requested that the Secretary for Crown Lands collect any necessary information. 535

The next year, Governor Grey directed Commissioner Swainson to forward funds from the Native Reserve Fund to the Minister for Native Affairs, Mantell, for building the proposed Native hostelry.536

The Native Hostel was only one important project at the time. Swainson and Mantell had also been working to develop and exploit Te Atiawaffaranaki's reserves generally.

For instance, in February 1863, they had tried unsuccessfully to purchase Pipitea's entire

80 acre reserve in Tinakore for public purposes. 537 Swainson rented three other reserves in rapid succession - Kaipakapaka and 2 parts of Town Acre 543 in April 1864,

December 1864 and July 1865, respectively.

In October, 1863, Swainson set about finding a favourable arrangement for the previously un-let 29 acres of reserves along the ridge at the south of Newtown. Seeing the loss of pasturage at Pipitea due to the College Endowment, and to complement the

535 Doe A39 P 213, 29/8fi3: Heaphy "Remarks" ND 73/5398 "Enclosure C," Fred'k Whitaker memo 21/3/64

536A26 P D 46 Grey/Swainson 7 April, 1865

537 Doe A34 pp 38-9 Mante11!Swainson 2/2/63 and Swainson/Mantell 10/2/63 and 17/2/63 226 passage of Kaipakapaka (Ohiro 19 & 21) into Te Aro hands, he leased the 11 east acres to Hemi Parae for five years at 1 pound 6 s. - "nominal rent authorised by Mr. Mantell."

A year later, he advertised for tenders for the west 18 acres (Town Acre 872-898 inclusive). Mantell's was the only tender. The month before he became Native

Minister, then, Mantell entered a 21 year lease at 24 pounds p.a., raised to 32 pounds p.a. the second seven years, and 36 pounds p.a. the third seven. Probably the whole was arranged for Hemi Parae's purposes, since although Mantell's lease technically prohibitted subletting, he allowed Hemi's pasturage of the east 11 to extend over to the west 18, owing to "his aroha for him." 538; MA 17/6 pp 315-17 Mante11!Swainson

15/11/1864 and pp 184-89 Heaphy/Fox 30/5n9; aroha MA 17/6 P 314 Heaphy memo nd.]

The most striking aspect of the 1839/44 reselVes which Swains on would have

encountered in his early efforts was simply how few of them were left. Swainson set

about trying to find out why. In October 63, he and Mantell began inquiring by what

authority Town Acres 89 and 90 were occupied by the War Department. They only

discovered that they had initially been given by Governor Grey. 539 On December 3,

Mantell moved in the House of Representatives for papers explaining the situation.540

The only immediate response to Mantell and Swainson's inquiries came from Colonial

Secretary William Fox in November 1863. He suggested to Governor Grey that the War

538MA 17/1 pp 9-10; 1867 Return of ReselVes (AJHR A-17)

53~ 17/1 pp 38 - 54

54°MA 17/1 P 58 & 61 227 Department be allowed to continue their occupancy so long as required, paying "the

Native Trust a reasonable rent." Not content with Fox's proposal, in January Mantell forwarded to Attorney General Sewell the papers on the matter, and requested an opinion. Sewell consulted Dommett, who remarked on the "poetic justice" of the case, and suggested an exchange. For his part, Sewell merely acknowledged that the

Government had got itself in a bind, and hoped "the Native Minister will suggest some solution." 541

Mantell did so before the Cabinet, putting up two options for discussion: the

Government could either return the land - "a course which might immediately be adopted by permitting the Commissioner of Native Reserves to bring an action in the

Supreme Court" - or else buy the sections, for which "the minimum price could not be fixed at less than 1000 pounds ... Government would of course take credit for this amount in settlement with the Imperial Government.,,542 Instead, Mantell's suggestions were minuted, "to be considered in Executive Council." There the matter appears to have lain until resurrected in 1867.

In June, 1865, orders were gazetted reguiring Swainson to advance 600 pounds from the

Native Reserve Fund to pay for the construction of the Native Hostelry on Town Acre

574.543 Like the Native Office on Town Acre 514, the Hostelry would add insult to injury, requiring Swainson to pay rent to the Hospital Trustees for using land that had been given them out of Te Atiawa!Taranaki's reserves. Together with the Treasury's

541MA 17/1 pp 43, 59

542MA 17/1 P 55, Mantell Cabinet memo 22/3/65

543 A26 pp 45-6 228 demand that rents be deposited to their account (July 7), the bill for the Native Hostelry prompted Swainson to plea the impecunity of the Reserves Fund. Swainson reported that, after deducting the Native Hostelry building expenses, the Fund would have only

69 pounds, 6 schillings, minus the 25 pounds that would pay the rent collector's salary.544

Alongside Swainson's pleas, but of more far-reaching significance, from 1 July Mantell

and Swainson decided to withhold the rent on the Native Office on Town Acre 514, in

order to force a legal test of the earlier grant of the land in the Hospital endowment.

This action ended in the 1872 Court of Appeal case, Regina v Fitzherbert (see below).

545

By the mid-1860's, the Religious, Charitable, and Educational Institutions Commission

had begun their their inquiries and reports.546 In 1865, the Hospital Reserves Act had

safeguarded the doubtful Trustees' titles. Now, in keeping with his efforts at

regularizing, plus his pleas of poverty, and the rent-strike on the Native Office, in

August 1866 Swainson submitted to Native Minister J. C. Richmond a valuation of only

the Reserves "appropriated for the Hospital and a non-existent College & Grammar

School."

544MA_MT 1I1A/28 Swainson memo to Mantell; note the one account apparently lumped together Te Atiawatraranaki and Ngati Toa reserves at least up to Waikanae; see MA 17/1 pp 9-12

545Heaphy Report, A26 p D81; Note Heaphy only mentions "the Government" witholding the rent, but considering their propensity for the same tactic in the cases of the Newtown reserves (below) and section 89 and 90, Swainson and Mantell were probably behind the rent strike. 546 AJHR 1870 A-3 passim 229 Guided by the Town Board Assessment 1863, and by consulting knowledgeable persons,

Swainson calculated a total unimproved value of 11,270:5:0 (with imrovements,

18,280:5:0). He called the Town Board's 140 pound value suggested for the endowment lands at'Clapham's PaddoeklHaukawakawa-Raurimu "absurd," given that in 1865 an arbitrator had valued nearby sections at 700 pounds per acre. He used "a fair average" of 500 pounds per acre, noting that all the sections involved were "most valuable as building sites." 547

Probably of equal importance was Swainson's Report to Parliament of the sam~ month.

Its tone also was similarly bitter: "No College or Schools exist that might derive benefit from these lands, nor have the Natives received compensation for or benefit from their annexation." And later,

"In many cases the property so endowed has been purchased from private

individuals for the purpose; but in cases where land has been ceded by the

natives or diverted from original native purposes, as in the case of

Hospital and Grammar school, Wellington, no compensation has been

given or payments made.

Swainson hinted at deception:

In these latter cases, the wording of the grants, that such lands 'have been

marked out and distinguished on the charts of the New Zealand Islands

as College, &c. (or Hospital) reserved lands,' would lead to the supposi­

tion that they had always been so reserved, whereas, on the contrary, they

were, as already noted, portions of lands reserved for the natives under

547 Doe A39 pp 248-50, Swainson to Native Minister, 13/8/66 (no ND number) 230 the New Zealand Company's Settlement Scheme, and were only

constituted College or Hospital ReselVes at the time and by the issue of

the grants conveying them as such. ,,548

In general, the central issue with Grey's school endowments had become racial segregation. The national Government pushed for integrated races, endowing and funding schools upon condition that children of all races attend, and the Provincial

Governments pushed for segregation, asking for assistance in establishing separate

Maori schools.549 In Wellington, the problem appears also to have been, as with the reselVes, disinterested Trustees - since about the time of Swainson's report the choicest of the College Endowment lands remained unlet, and the rest brought in only 121 pounds rent per year.550

Amazingly, though, only six short months after Swainson's complaining report to

Parliament, a Wellington College was fully established. On 4 February, 1867 the

Trustees of the endowment obtained a school on Woodward Street run by Rev. H.E.

Tuckey and W. S. Hamilton, and it became Wellington College. They soon moved the

school to the old military barracks on the endowed lands in Thorndon (Fitzherbert

Terrace), and shortly after to a site in Clifton Terrace, made available by the Wesleyans,

who also had not built a school on their 52 acre Kumutoto reselVe/endowment.

Construction of the school between 1867 and 1869 consumed the entire accumulated

548AJHR 1866 D-16, "Return of Grants of Land to Religious Bodies in the Province of Wellington." 549 A. Ward, p212

550AJHR 1870 A3 pp 22 231 Trust funds (436 pounds) plus required a debenture of 750 pounds. (In 1874 the

College was removed to its present site, an area taken from the town belt. )551

In the same reports, Swainson attempted to raise the question of Porutu's award in

Pipitea's 1847 Exchange of the "portion of 542 occupied by Native owner," and his

"portion of 543 and also part of 542 ... aftelWards included in a grant to M.S.Moore"

(owner of s. 544).552

After hearing this report, on 13 September, 1866, Hop.. Mr Mantell moved to "Table copies of aD correspondence, minutes, and tracings, relative to a portion of Town Acres

542 and 543, Wellington ... given by Crown Grant to George Moore, of Wellington, Esq.

Also, for information as to the cause of this transaction; and as to the course by which the Government has arranged and proposes to arrange the matter." 553 On the 18th, it was so ordered.

The matter appears to have been dropped, though. Neither the Native Affairs nor the

Public Petitions Committees' papers for that year or following years contain any proceedings relative to the property. The only response we have found came on 1

October, when Johnston tabled five small papers: a letter from Swainson briefly describing the situation, a memo from Mantell to Attorney General H. Sewell asking

"How can justice be done in this case?" Third, a curt reply from SeweD: "By giving compensation in money or land." Fourth, Mantell: ''To which of the claimants?" and

551Mulgan, pp 188-9; AJHR 1870 A3 pp 22

552Swainson Report A24 p 37

553JLC, 1866, P 69-70, Doc AXX P 468 232 Fifth: an extract from McCleverty's deed, evidently showing that Porutu's claim centred on section 542 - not 543. Whatever the outcome regarding Porutu's part of 542, the parts of 1839/44 Reserve sections 542 and 543 lost to Moore's 1851 survey were certainly not returned.554

Early in 1867, slowed in his duties by consumption, Swainson was fired.555

Upon Swainson's dismissal, Mantell stopped paying rent on his lease of the Newtown reserves. Heaphy later reported three reasons for Mantell's withholding: there was no completed lease; boundaries had never been pointed out, (and could not be, as the survey pegs in the area had gone missing); and finally, Mantell maintained there was no person legally qualified to receive his rent. Indeed, in the 3-year interegnum between

Swainson and Heaphy, the Reserves were managed by the rent collecters, first Baker, then E. W. Puckey, and then T. E. Young - authorized only by circulars from the Native

Ministers.556

In 1868 Henry Halse reported that Mantell was withholding his rent "in consequence

of Mohi Ngaponga's application to Mr. Mantell to give up his lease as the natives need

the land for cultivation." 557 Mohi Ngaponga's sister and family had returned from

Opotiki in 1867-68, occasioning his extended campaign for the west 18 acres of

5541866 AJLC, P 69-72, Doe A25 P 3

555MA 17/1 pp 13-21; also MA 17/1 small NS 66/982 file

556Heaphy/Native Minister 30/lOnl in MA 17/6 pp 308 - 314 and 286-288; note that also in March - November, 1867 Ngauranga maori were arrested and fined for pulling up survey pegs, see MA 17/1 pp 22-25; MA 17/1 pp 6-8

557MA 17/6 Halse/puckey 30n/68, pp 304-5 233 Newtown reserves for a "maori kainga." 558 Ngaponga's efforts were probably intended to link with Hemi Parae's pasturage of the east 11 acres and cultivations at

Kaipakapaka. 559

Rent Collector Puckey and Under-Secretary G. S. Cooper's initial response was that it seemed unjust to the others interested to give the reserve over to Mohi's project J. C.

Richmond, however recommended an open meeting to gauge the assent of other maori interested, and if sufficient, to draw up a lease.560 Apparently before this could happen, though, Ngaponga's wife, a close relation of Wi Tako's, fell ill. Ngaponga was already 82 pounds in debt to the Native Department from having hosted the lIold men liberated from New Castle," and could not afford an appropriate tangi. Mantell wrote on his behalf to Premier Fox, asking that he order 30 pounds for Mohi from the Native

Reserve Fund and debit it to Mantell's withheld rent account.561

Halse understood that Mantell IIwould be willing to hand over his lease to the

Government on receiving the amount of rent already paid (50 pounds) and a discharge for any rent that may be due." He recommended "if the natives will undertake to fence and cultivate the reserve, it would be a great boon to obtain the lease and let them have the land." 562 On this basis, in 1870 Ngaponga renewed his request for a kainga in

558MA 17/6 pp 292-3; cf. Moturoa's request for land for Mohi and his wife Hera in January 1865, A24 P D45

559See Halse note re: Hemi Parae. Ngaponga and Maranga~ (n.d.) directing Puckey to "take a letter to Manihera and Moturoa." MA 17/6 p307

560Puckey/Richmond 2/9/68, Cooper/Richmond 5/9/68, and RichmondlPuckey 3/9/68, MA 17/6 pp302-3

561MA 17/6 Mante11!Gisborne & Fox (nd) p297-300; and Cooper/Gisborne 23/12/69

562MA 17/6 HalselPuckey 30n/68, pp 304-5 234 Newtown.563 In May 1871, Halse suggested to Bell that as Ngaponga could not pay

Mantell's back rent, perhaps it could be written off.

The next month, though, Judge Prendergrast recommended to the Native Minister that

Heaphy demand Mantell's rent upon threat of suit.564 This done, Mantell agreed to pay his rent, and Heaphy drew up a proper IS-year lease to effect the remainder of the initial lease (at the same terms).565

563MA 17/6 Ngaponga/McLean 31/12nO and 26/Snl

564MA 17/1 P 291 1/6n1

565MA 17/6 P 277 Heaphy/Native Minister McLean 23/11/1871. 235 Battle of the Barracks

At the same time that Mohi Ngaponga was seeking to develop the Newtown reserves,

Swainson's 1867 Reports had successfully resurrected the debate over sections 89 and

90. Swainson mentioned the lack of authority for the military's occupation of these reserves, and remarked to the Legislative Council that the owners had "received no compensation or payment for the occupation of these sections during the past eighteen years."566

Two months later, Under-Secretary Rolleston asked Stafford, "Should not His

Excellency be requested to state what was the intention as to how long the reserves were to be held?"567 Stafford asked, and Governor Grey replied, "It is I think quite clear that I had neither the power nor the intention to do more than occupy these reserves for a time, the Government resuming them for the native owners paying for any buildings upon them. Clearly after such a length of time they should be given Up."568.

On the strength of this reply, Native Minister Richmond requested the Governor to

direct the Officer Commanding the Troops to give up the reserves 89 & 90 in three months from that date.569

566A25 P 6

567Rolleston/Stafford, 30/10/67; StaffordlRolleston 30/10/67 in MA 17/1 P 103

568MA 17/1 Rolleston memo, 13/2/68 p 28

56~ 17/1 P 103, Native Minister J.c. Richmond memo 27/11/67 236 Governor Grey so directed. The Commander of Forces in New Zealand, Col. R. S.

Beatson, replied acknowledging the Governor's "request," but forwarded instead copies of the 1848 correspondence between Collinson and Dommett, assuring a Crown Grant would be made. "On the faith of that unconditional promise, several thousand pounds have been expended by the Imperial Government" on buildings on section 90. He demanded full compensation for the War Department, and hoped that "under those circumstances, His Excellency may be pleased to reconsider the request alluded to.,,570

Ever-ready Under·,secretary Rolleston outlined a rebuttal of the War Department's

"promise" argument, that Dommett's wording could equally be interpreted as "meaning merely that the Ordnance would be put in possession of the sections." He re-iterated

Attorney General Wakefield's legal opinion that the Crown had no authority to make such a grant without explicit consent. But especially, he stressed the benefits of returning the lands:

"The alienation of their reserves in Wellington without their consent and

in contravention of engagements expressed and implied is a constant source of

grievance to the natives and the cause of much of the discontent and disloyalty

which prevails.

I submit that whatever promises may have been made or supposed to have

been made in respect of this property cannot take away the reserves from the

natives - the restoration of their property to them as recently called for is the

first step - the buildings being given to them as back rent.... I know of nothing at

57~O 68/44129/1/1868 Commander of Forces in new Zealand Col. R.S. Beatson to Private Sec'y of Governor in MA 17/6 pp 31-32 237 the present time which would give more satisfaction than the recognition of their

rights in respect of these reserves.,,571

A few days later, Native Minister Richmond pleaded to the Governor:

"I entirely adopt Mr. Rolleston's minute. There has been in this case and in

many others within this town a gross and arbitrary violation of the equitable

rights of the natives. In Nelson reserves of a similar kind to those in this town

are yielding upwards of 1000 pounds a year. Here in a larger and more growing

town they yield a mere trifle. The choicest lots have been granted to endow

institutions by which the Europeans are ahnost alone benefited - Hospital,

Grammar School - Others have been occupied as in this case of the barracks on

the mere dictum of the Government of the day. It is time to commence

rectifying this abuse. The question of payment for buildings is one to be settled

between the Imperial and Colonial Governments. The Crown cannot decently

refuse to allow the true owners to recover [?], nor can it ask to remove

improvements which are the sole payment for twenty years trespass.,,572

The matter went to Cabinet the next week, with a rousmg speech by Richmond

reviewing the history of the "Tenths" reserves. But as can be seen from Richmond's

plea to the Governor, the issue had by now been joined with the others we have traced

upto this point. Sections 89 and 90, the Hospital Endowment, the endowments to

Wellington College and to the Wesleyans, the Cathedral site, and the site of Thorndon

Parish School now came under scrutiny together.

571Rolleston memo 13/2/68 in MA 17/1 pp. 27-30 572GET 238 Braodly speaking, there were three fruits to the seeds of discontent sown by Swainson,

Mantell and Te Atiawa!Taranaki. First, their efforts were swept into the flurry of Native

Reserves legislation which began in 1867 and lasted until 1882. The 1867 Native Lands

Act had provided for the Native Land Court to determine interests in, and recommend grants of Te Atiawa!Taranaki's 1839/44 reserves and their 1847 "McCleverty" reserves.

Even with the provisions enabling restrictions on alienability, for some the Act no doubt raised the spectre of further land losses.

Moreover, when the Native Land Court had initiated sittings at Wellington in 1866,

several attempts were made to claim title to 1839/44 Reserve lands (eg. Ohariu 12 & 13,

Pakuratahi).· It fell upon Commissioner Swainson to attend all hearings to defend the

Crown's claim to such lands under the Native Reserve Acts of 1856 and 1862. On

September 9 1867, Ropiha Moturoa claimed title to the ex-reserve lands at Tiakiwai and

Raurimu. Commissioner Swainson, along with Robert Hart on behalf of the Hospital

Trustees, disputed the claim, and won its dismissal. 573 Probably for many, these Court

actions provided the first clear public statement of the Crown's position as legal owner

of the 1839/44 Reserves.

Next, in October 1869, prematurely implementing Fenton's 1869 Native Reserves Bill,

Native Minister McLean offerred Major Charles Heaphy the job of Commissioner of

Native Reserves. Heaphy was to assemble a picture of the various reserved lands all

around the country, with a view to clarifying the trusts and duties attaching to each, as

573MLC Minute Book Wairarapa 1, pp ,Doe AXX pp 469-471 239 provided in Fenton's Bill. He was also to recommend lands to be rendered inalienable as necessary for sustaining the owners.574

On 15 August, 1870, though, the Committee reporting on this Bill, chaired by Henry

Sewell, recommended against its passage. While acknowledging the quality and importance of Heaphy's work inventorying the existing reserves, the Committee recommended appointing local administrators, who were to be under the "direct control" of Government.575 The Committee acknowledged that Government ought to immediately accept more responsibility for Native Reserves, but also recommended an

.investigation and report on the matter. In the interim, as lands were already coming through the Court under the 1867 Act, they successfully proposed the office of a Native

Land Frauds Prevention Commissioner, who was Heaphy.

When he finally reached Wellington, Heaphy worked out a new classification scheme for the reserves, began tidying leases on 1847 reserves,576 re-issued Mantell's lease of west Newtown, and tried to arrange a rental on the still unresolved sections 89 and

The second main product of the sixties was the 1869 Report of the Religious, Charitable and Educational Trusts Commission, which the Reserves efforts fuelled. Although the

574A24 pp 51-53

575A25 pp 20-21, Sewell Report on the Native Reserves Bill, 1870, 15/8/1870, 1870 AJLC pp 8-9. 576MA_MT 1/1A/12

577NS 70/1426 in MA 17/1: 4 October, 1870 Heaphy to Native Minister Richmond, Doc A34 pp 1-5; Note, we deal with the Reserves legislation of the 1870's in the next section, when focussing on Te Aro reserve lands 240 Commission's report to the House of Representatives ran to over 90 pages, covering trusts and endowments made from Te Atiawaffaranaki's Reserves, the Commission's focus was the lack of action taken on most of the endowments - not on their origins.

So the Commission's main impact on the Reserves was to add current information highlighting the original injustice.

Regarding the hospital, for instance, the Provincial Surgeon, Dr. Alexander Johnston

.testified that maori preferred to stay at the Native Hostel nearby, even though they could stay at the hospital free of charge, their fees paid out of the Provincial

Government funds, combined with the Native Reserve rental accounts.578 This no doubt lent credence to Richmond's speech to Cabinet the year before, where he had made the same point:

"Maoris never have adopted our hospitals save in rare exceptional cases; they do

not attend English church services; they have had no opportunity of attending an

English grammar school and if and when such institutions are opened in

connection with the endowments in question, it is certain they would not be

practically available for their Maori. The estate might more properly have been

employed for the construction of a public highway open to persons of all races." 579

578 AJHR 1870, A-3, p.22.

579Native Minister J. C. Richmond memo 25/2/68 241 The Commission made no firm recommendations regarding Wellington Hospital because, as of late November 1869, when the Commission reported, the grants were subject of a suit in the Supreme Court.580

5801870 AJHR, A-3, pp.17 & 18. Evidence of William Fitzherbert to Commissioner Mr. Domett, 15 November, 1869. 242 Regina versus Fitzherbert

This suit was the third, and most important fruit of the sixties. When, in 1865 the

Government had begun withholding rent from the Hospital Trustees on the site of the

Native Offices, it was with the intention of eventually testing the 1851 endowment grant.

It now came to be tested under a writ of scire facias.

The writ is prominent in New Zealand's history, being the same one used in R. v

Symonds to test grants made under FitzRoy's waivers of pre-emption, in R. v Clarke to test grants made with FitzRoy's extensions of boundaries awarded by the Land Claims

Commissioners, and in R. v MacAndrew to test the validity of the Provincial Council's grant of the Princes Street reserve in Dunedin.

Generally, a writ of scire facias

"is a judicial writ founded upon some matter of record, requiring the person

against whom it is brought [in this case, the Hospital Trustees] to show why the

party bringing [the action] should not have the advantage of the record, and in

the case of a scire facias to repeal a Crown grant, why the record should not be

annulled and vacated." 581

In 1869, Wi Tako took up a subscription amongst Te AtiawafTaranaki to pay Charles

B. Izard to sue for "nga whenua ngaro" at Te Aro and Wellington.582 Izard had recently represented Ngai Tahu in the Princes Street Reserve action. Soon after Pipitea,

581Hackshaw, p 119

582Peti Ruri to Native Land Court, Aotea Distrcit MLC, Old File for Wellington Te Aro Block, Correspondence, 1866-1908,93/1610, Doc AXX pp 472-475 243 G. E. Barton, who represented the Hospital Trustees in this action, represented Wi

Parata in the similar case of Wi Parata v The Bishop of Wellington. On the 15 July

1869, Izard filed Wi Tako's declaration in the Supreme Court at Wellington.583

Before the declaration went to trial, there were at least two contemporary bids for control of the endowment lands. From 2 December 1870 to 24 June 1871, Tamati

Pirimona (Ngati Mutunga) sought a re-hearing of Ropiha Moturoa's 1867 Native Land

Court claim to Tiakiwai and Raurimu. He disclaimed the rights of Wi Tako, Te

Ropiha, Porutu and Te Puni to this part of the Hospital and College endowment lands.

Pirimona's claim never reached Court, though, as Judge Smith informed Chief Judge

Fenton, "the N.L. Court has no jurisdiction and has already so declared in the case of the claim of Ropiha Moturoa & ors (N.L.C. 66(2076) which included these reserves ...

The real question which is sought to be raised is the validity of the grants of these

Reserves to the Hospital and/or Trustees, and is one which cannot be dealt with by the

Native Land Court."584

Shortly after this - perhaps to circumvent the costly Court of Appeal option - Wi Tako tried another alternative for retrieving the lost lands. On 9 October 1871, Wi Tako & four others petitioned the House of Representatives for return of the lands. His complaint was discussed briefly, but action was postponed to see what came of the actions in the Native Land Court and Supreme Court.585

583p A7(b) P 16

584MLC Aotea District, 12 July 1988, inventory and descriptive list of Special File of extracts from Wellington 139; also Smith/Fenton 24/6n1 in this file, Doc AXX pp 476- 480

585Le 1/1871/8, Doe AXX pp 481-482. Note Wi Parata participated in the Leg Council's discussion. 244 The 1872 Court of Appeal report of the ensuing case outlined the introduction of a record (as above) in Wi Tako's declaration, followed by Supreme Court trial of issues in the declaration, with two amendments to the declaration introduced during the trial

(12-16th & 19 March 1872, Johnston Judge). The Supreme Court (and Native Land

Court) findings upon the issues were then entered at the Court of Appeal on 15 April, argued 14 June and the 11-13th November, and decided 4 December 1872.

As we have sketched in our first section, the initial declaration reduced to three points: first, the 1839 purchase (including its covenant to reserve) was sound. Second, the purchase was allowed by the Crown (though the declaration failed to say exactly how).

And third, the Crown's resumption of the Company's estate therefore saddled it with the Company's covenant of a trust to reserve. The Hospital Trustees were called to

"show cause ... why the [1851 Endowment grant] ... ought not to be cancelled, vacated, and disallowed. ,,586

The defendants, ie. the Hospital Trustees (Fitzherbert, etc) denied all three points. First, the signatories of the 1839 deed were not the true owners of the region, and so the purchase had been disputed by other rangatira, by the C.M.S., and by other purchasers - and even repudiated by some of the signatories. As a result, contrary to the declaration's second main claim, the 1839 deed per se was not allowed by the Crown under the 1840 and '41 Land Claims Ordinances.

Before their third denial, the Trustees set out their version of the statutory foundations of their own 1851 grant. They started with Gipps' October 1840 arrangement for the

586pp 146-47 245 Company to be allowed quiet occupancy while their case was pending, followed by the

November 1840 Charter giving Lieutenant Governor Hobson general powers to grant, and his December 1840 Instructions, directing the disposal of waste lands for public purposes such as hospitals. These were followed by the 1846 New Zealand Government

Act and December 1846 Instructions, re-establishing that power to grant, especially to hospital trusts. They concluded that the 1851 endowment was such a grant of waste lands.

They closed with a firm denial that any such comparable grant, deed or document had declared a trust for the benefit of Te Atiawatraranaki affecting the hospital lands.

The declaration and the initial plea, between them, raised at least 21 of the issues decided in the Supreme Court - over half of the total 38. The Court of Appeal decision appears to have hinged on the same three points.

In examining the crucial arguments surrounding the declaration's three main points, it must be observed that the first point - that the 1839 purchase and covenent were sound

- represented a remarkable about-face from the view of the 1839 purchase which Wi

Tako had presented in 1842 in Land Commissioner Spain's court. In May 1842,

Commissioner Spain had asked Wi Tako, "Did you sell your land to Col. Wakefield, and when?" Under oath, Wi Tako answered in a word, "No."587 Upon further

examination, Wi Tako explained that both Dicky Barrett and Warepouri had told him

that Wakefield's 1839 payment was for anchorage, that his name would go to the

587p 78 20/5/42 246 Queen, and that Wakefield only wanted access to the harbour, not land. 588 In his next day's testimony, Wi Tako firmly stated that none of the rangatira at Pipitea or

Tiakiwai were willing to sell their land. He told how he had exchanged angry words with Warepouri, arguing that no one would follow Warepouri any longer if he sold the land.589 Wi Tako's denial of the sale was amply supported by other rangatira throughout the Old Land Claims records.590

For whatever reason, the 1869 declaration had averred that the Company's 1839 bargain and sale was sound, thereby focussing argument upon the "tenth reserves" covenant therein. Ironically, it was the Hospital Trustees who now denied that the "parites to the said deed ... had... title to the said lands." 591 Judge Johnston referred the issue to the

Native Land Court. There, on 24 October 1871, Wi Tako threw his lot in with declaration, ie. with the initial 1839 purchase. He testified that Te Puni, Warepouri and

Matangi "were entitled to deal with the land according to maori custom." He stated,

"There was but one sale. The Government gave us further payment to condemn what

Wakefield had done."592 Mohi Ngaponga supported him, claiming "We took the money because it was offered. We did not ask for it. The payment of Wakefield was very correct.. .. We all considered the land had gone over to Wakefield."593 Both Wi

588p 82-3 & 97: 20/5/42

589pp 102, 104-5, 110 & 114: 21/5/42

590see ego Te Awakite Penaha's testimony in OLe 635, Doc AXX pp 185-188

591A7(b) pp 15 & 17

592X6 P 6 & 8, 24/lOnl; p 9 24/10nl

593X6 p 17 & 18, 25/10nl 247 Tako and Mohi now played down the various interferences with Company surveys in the

1840's as isolated actions of old women and young men.594

Perhaps this remarkable about-face was somehow related to the 1871 Ngati Mutunga

cross-claims. Depending on the strength of these (which we cannot judge), Wi Tako

might have risked a pyrrhic victory in restoring the endowment lands to reserve status,

if doing so cast doubt upon the 1839 purchase, opened the whole matter of tangata

whenua status and beneficial ownership, and led to losing more areas in the Native

Land Court (to Ngati Mutunga) than he gained in the Court of Appeal (from

endowments). Mohi Ngaponga plainly needed land, and around 1870, was seeking it

. in various ways.

More simply, Wi Tako's about-face might have been required by more immediate

circumstances: initially the 1869 declaration had neglected the whole question of

whether the Crown had formally allowed the 1839 purchase, but had "been held bad on

demurrer" until resubmitted with this averment. Hence, at the time of initial

declaration, perhaps Izard's plan of how to argue the grant's invalidity remained

unformulated. Then, after amending the declaration when required to do so, he and

Wi Tako found themselves with an untenable, 1839 deed-based argument.

Certainly, when the purchase point was challenged by the defendants, Wi Tako and

lzard specified (rather weakly) that the Crown had formally allowed the purchase in

Chapter 13 of Lord Russell's 1840 Agreement, in an 1843 despatch from Lord Stanley

594X6 P 14 25/10nl: pp 21,22,24-25 26/lOnl 248 to Company Secretary Somes, and in FitzRoy's and Grey's Port Nicholson grants. 595

Brandon (for the Hospital Trustees) saw these for what they were: the Stanley dispatch was no "final settlement," and the other three (the 1840 agreement and the two grants) each implied that the reselVes were created by the Crown from its own demesne, without proving the existence of any specific allowance or trust.

The defendants had a field day. They argued that Russell's 1840 Agreement, like the

1839 deed and 1845 grant, was ambiguous and had never been fully effected. Instead,

Earl Grey's 1846 Instructions had required maori to register their interests in land, and

Te Atiawaffaranaki's interests in the endowment lands had never been so registered (as the 1847 ReselVed lands had). The 1839/44 ReselVes thereby became certainly mere

Crown demesne, supporting the defendant's initial plea. And finally, as the 1848 Crown grant of the region had issued four days too late (finding 31), the Company (and then

Crown) had not acquired the region by it, but by the 1847 Act Authorising a Loan to the Company, which had vested the demesne in New Munster in the Company.

(acceptance of argument probably implicit in finding 29) The specific provisions of the invalid grant were irrelevant.

It is clear that Brandon was in control of the arguments from the first. The findings on the issues raised in the replication and rejoinder all favoured the Trustees. Wi Tako won the issue of whether the 1839 purchase was valid -largely determining Native Land

Court perceptions and interpretations of the creation of the reselVes upto the present day - but lost the issue of whether the Crown had directly allowed the 1839 purchase per se (findings 3,16 and 11). If the Crown had not directly allowed the purchase, then

595A7(b) pp 19-20 249 of course it could not have declared the express trust in that purchase agreement

(finding 23). In place of any formal allowance or express trust, though, Judge Johnston found that the reserves had been "indicated and treated" and "acknowledged" as such

(findings 6, 22,23 & 29), and were not to be granted (finding 11).

Public interest was such that Judge Johnston's findings were somehow published locally on the 21 March, two days after the last day of arguments - although they were only delivered to the Court on the 25th March.596

Heaphy ventured a common-sense reading of the case as it stood at the time he submitted his August 1872 Report to Parliament. He observed that the Supreme Court finding on

"certain issues .. .is in favour of the view that the compact between the New

Zealand Company and the Natives in the original purchase of the Port Nicholson

District was a valid one; that by it certain lands were set apart for the future

benefit of the selling natives; and further, that the lands at Thorndon granted by

Sir George Grey to the Hospital Trustees were a part of such lands. The

remainder of the points in dispute - the misapplication or otherwise of the

proceeds in their use by a public charity - has yet to be determined"

He ventured that

"it is proper to be prepared for a finding adverse to the interests of the charity....

With this VIew, I would recommend that an Act of the

Legislature should be obtained to authorise the claims of the Natives in respect

596A7(b) P 22 250 of such lands to be sent to a legally constituted reference to determine the

amount of money to be given in lieu of occupation. A private member of the

general Assembly is, I believe, about to introduce such a measure, and I have

furnished a list of the lands that would probably come under such an ACt."597

Heaphy's reading of the findings proved incorrect, and the planned Act proved unnecessary. The Court of Appeal reached its decision about three months later, to the effect that there had been no allowance and so no express trust, and so there could be no legal right enforceable by scire facias. 598 The Court adopted the Hospital

Trustees' view that the reserves were Crown demesne.

It is both ironic and tragic that, in the end, Te Atiawa(faranaki lost their claim and their land because (partly due to Wi Tako's testimony) in 1842 the Crown had found

the 1839 purchase "incomplete," and so refused to sanction it - and then in 1871 (partly

due to Wi Tako's new testimony) the Crown found the same purchase ''valid," but did

not enforce it because it had not sanctioned it before.

The 1871-2 arguments, findings and decision lacked much consideration of why the

Crown's officers had "indicated and treated" and "acknowledged" the reserves as Te

Atiawaffaranaki's. As we have shown, the reasons boil down to the Treaty of Waitangi.

In particular, the Crown in the early 1840's tried to honour its guarantee of Te

Atiawaffaranaki's possession of their lands and resources until that possession had been

relinquished by fair and meaningful agreement - which was not reached until just before

597 A24 P 55 1872 Report, 16 August 1872

598A7(b) P 29 251 January 1848. The Crown's officers "acknowledged" the reserves because (as Land

Commissioner Spain had observed) "no reserves, no meaningful purchase agreement."

There had been no express trust declared because at the time the reserves were set aside, the Crown's overriding fiduciary duty still lay in the Treaty - protecting Te

Atiawaffaranaki's lands from un-fair purchase by the Company - not in any administrative trusteeship of the lands proposed to be reserved from the purchase. 599

Indeed, in the early 1840's climate of respect for customary land interests, any Crown claim to such a hands-on controlling interest in the reserves would have probably aroused resistance and actually prevented agreement.

Hence, the Crown's initial occupation of Raurimu/Haukawakawa (the Hospital endowment lands) was not, as Judge Arney believed, a benign assertion of the Crown's title to its demesne. It was a war-time expedient.600 Similarly, the manner in 1848 in which the Crown took of control of, and soon alienated, Raurimu/Haukawakawa did not reflect any clear title of the Crown to the lands, but merely the Home Government's post-Earl GreylLord Howick disregard for the Treaty, and for Te Atiawa/Taranaki's customary possession of the lands.

Thereby, the period preceding the 1872 Native Reserves Act ended with the reserves no longer merely loosely organised. They had now been torn from their roots in the

Treaty, and declared non-existent but by the grace of the Crown.

599 A10(a) pp 5:3-4

6OOA7(b), p 173 252 "Brought Into System and Simplified"

[Heaphy Report 1877, in Turton D p 106.]

After the judgment in Regina v Fitzherbert, the Commissioner of Native ReselVes in

Wellington, Charles Heaphy, paid the Hospital Trustees their 110 pounds back-rent on the Hostel.601 On 29 July, the Commissioner of Native Reserves in Nelson, Alexander

MacKay, acting in a private capacity outside work-hours, submitted to the Native and

Defense Department a 74-page (handwritten) memo arguing that despite their loss in

Court, Te Atiawa/faranaki deserved compensation for their lost ReselVes.

On the 20 August, Commissioner Heaphy submitted an inventory of all reserves taken for public purposes, and a copy of Swainson's 1867 valuation of some of them.

Heaphy's valuation covered:

Barrett's Hotel 1849 Section 514

Hospital site 1849 Sections 584 & 594

Hospital endowment 5/11/51 total 12a Or 1p

Grammar School" 7/10/53 total lOa 1r 32p

Cathedral site 20n/53 part s. 542

Anglican school 13/8/53 part s. 514

601Report 1872, A24 P 55. 253 Several months later, Heaphy also included sections 89 and 90 in his schedule of lands to be valued for compensation. This brought the total acreage up to 24a 3r 18.5p.602

Heaphy's 1873 valuation began by dividing the Hospital endowment lands into four value-sets: for the largest value-set, bounded by Murphy and Hobson and Tinakore and

Pipitea, he averaged six nearby sale-prices between 1855 and 63, finding a value of 381 pounds 13:4 per acre section - or 3148:15:0 for the 8a 1r Ip of reserves in this set.

He used the same six sales to value two sections at the corner of Pipitea and Murphy

Streets (539 and 580) - 642 pounds.

Next, he averaged two other sales, in 1855 and 1865, to value section 636 (near the

Botanical Gardens) at 145 pounds.

And finally, he accepted the Town Board and Swainson's value for s. 514 - 2500 pounds.

Hence, his total value for the Hospital endowment was 6,435 pounds 15:0.

He used his initial six Thorndon sale-prices to value the College and Grammar School lands near Tinakore Road (Haukawakawa, now called "Clapham's Paddock"). Heaphy estimated these 5a lr 32p at 2099:3:4. Based on the average from two nearby sales (136 pounds/section) in 1863 and 64, he valued the five acres at Te Aro at 680 pounds. The total of the Grammar School and College was therefore 2779:3:4.

602Doc A39 pp 175 & 180, 19/3n4: Heaphy to Native Department Undersecretary, Schedule A of lands to value (lost and reconstructed 31/3n4). 254 The Church of England School (pt s. 514) and Cathedral sites (pt s. 542) were valued at 980 pounds - 750 pounds for the School and 230 for the Cathedral. He based these on Town Board estimates, and a sale of land adjacent to the Cathedral.603

So, Heaphy's 1873 valuation totalled 10,194:18:4 pounds, about 450 pounds/acre. For comparison, recall that the 1853 Town Board had assessed Town sections at 140 pounds/acre, about 3500 pounds total for the endowment lands. Swainson had estimated

Town sections in 1867 at 500 pounds/acre, about 12,364:5:0 total.

Note the compensation calculations altogether excluded the 52 and 3/4 acres of

Kumutoto's 1847 Reserve, which they had sold in 1852 (probably specifically to enable

Grey to endow a native school right there near the pa). It would have been difficult to assign a dollar value to Kumutoto's loss: they had received 160 pounds for the land, as agreed - but no nearby native school, as reasonably expected.

The same day that Heaphy submitted his valuation, Mantell forwarded a copy of the

Regina v Fitzherbert decision to the House of Representatives.604 The next week Wi

Tako and 17 others petitioned the Governor:

"This is a petition from us to you about the Reserves which were set apart by the

New Zealand Company for the Maoris and of which the Europeans have

despoiled us. We wish the control of those lands to be in our hands. We have

taken the case before a legal tribunal and we ask you to consent to have these

lands adjudicated upon in the name of the Queen the Protector of our lands and

60320/8n3: Heaphy Valuation memo, Doe A39 p 232.

604A 24 pp 79-82. 255 of the maori people. We ask you to give a just consideration to this our petition

which we lay before you in order that you may know of our grief and

lamentation. it is for you to say who is to relieve the maoris who are aggrieved

in this case." signed:

Wi Tako Ngatata Hiori Tamati

Ihaia Porutu Pehira Aokantere

Waka te Huka Henare Arapeta te Teira Watakore Ihaia te Whiu

Wi Hapi Pakau Paratene te Wheoro

Te Waka Houtipu Paiura Tatu

Ropiha Moturoa Henare Pumipi

Rapana te Owiro Erueti Tohi te Teretiu Paora Hone te Putu605

The Governor referred the petition to "the ministers" for comment and recommendations. Native Minister McLean requested a history of the Reserves from

Heaphy. 606 Heaphy obliged with a 24-page memo "Being remarks on Mr A. MacKay's

Paper," as well as another two page summary of Swainson's valuation of the hospital, college and cathedral lands. 607 Heaphy's "history" was a pros-and-cons recitation, seeking primarily to add to MacKay's version "facts and occurences on what, for the

60521/8n3, Doe A39 p 161.

60626/8n3: Note on Wi Tako petition, Doe A39 p 161.

60729/8n3: Heaphy memo ND 73/5398, Doc A39 pp 184-208. 256 sake of distinction, may be called the Company's side of the question."608 About four of its 24 pages merely quoted Lt Governor Eyre's June 1848 memo justifying the taking of reserves for public purposes. In the end, though, Heaphy acknowledged that neither the Crown had made compensation, nor the Maori made much use of the Hospital or

Cathedral. Nor had maori benefitted from the Grammar School endowment. He concluded that "the good faith and honor of the Crown appears to be involved in carrying out the intention of the Government [to compensate Te Atiawaffaranaki for the lands taken] as expressed in Lt. Governor Eyre's financial minute of 10/5/49, and his memo of 23 June 1848."

Of his valuation, Heaphy claimed it was "much more to be depended upon than

Swainson's as it [was] from actual sales of adjacent lands got out item by item from

Registrar of Deeds Books." He neglected to mention he'd consulted only ten sales from all over town, and spaced over a ten-year period. 609

By this series of efforts, the question of whether to compensate was replaced by the question of "how much?" The next year's correspondence on the lost lands focussed entirely on valuations.

For the Hospital and the College Trusts, the Regina v Fitzherbert decision had lifted the clouods surrounding their titles, enabling them to exploit their endowments more

608Doc A39 P 186.

609Doc A39 P 153, 29/8n3: Clarke to Heaphy requesting memo; p 244ff, 29/8n3 Heaphy to Native Minister ND 73/4796, enclosing a 2-page summary of Swainson's 3- page valuation report, and adding Heaphy's own 344 pound valuation of the Cathedral site (part s. 542) excluded from Swainson's report. 257 fully.610 For instance, in May 1873 (subsequently authorised under the Wellington

College Vote in Aid Act 1873) the Provincial Council resolved to give Wellington

College four thousand pounds over four years to pay for a Headmaster and some science lectureships. The next year, the Governors of Wellington College Incorporated raised a loan of 5000 pounds on their endowment lands under authority of the

Wellington College Act 1872 and the Wellington College Loan Act 1873.611 About three months later, 21 May 1874, the College's five acres at Te Aro were leased to the

Wellington Land and Building Company Ltd., who that same year raised 4000 pounds on the value of their leasehold interest. 612 Suddenly, the College had become a sound investment.

Similarly, the Wellington Hospital Loan Act passed in 1874, authorising the Hospital

Trustees to mortgage or sell the endowment lands as they thought fit, to raise 12,000 pounds to build a new Hospital. 613 A sample of their activity reveals the boon conferred by Regina v Fitzherbert to Wellington's public health system: between 25

April and 4 September 1876, the Trustees sold five small Endowment parcels totalling just 1 acre 1 rood 14.5 perches for 5100 pounds - more than Te Atiawaffaranaki eventually received in compensation for the whole 24 acres of lost reserves. 614

610Dr. Johnston testimony 30/11/69 1870 AJHR A3 P 22, Doc A43 P 359.

611Wellington District Land Registry, Vol 29 Deed 506-7 in Doc A43 p 484;Wellington College Acts in Doe A43 P 485-491.

612D.L.R. Deeds VoI31n32-735, Doe A43 p 492.

613Wellington Hospital Loan Act, Doe A43 pp 493-494.

6141r 8p and 1r 16pILot #1 and 3 of TA 591 Wgtn District Land Registry Deeds Vol 45/361; 22 112p of TA 580 on north side of Pipitea st. Deeds Vo1391271; 34p of TA 539 on the south side of Pipitea St. Deeds Vol 40/158; lr 24p of TA 514 at Charlotte St. and Sydney st. Deeds Vo14012; 30p of TA 514, frontage to Charlotte St. Deeds Vo138/667 - none copied. 258 259 Day-to-Day Administration

At the same time that Regina v Fitzherbert was running its course, Heaphy was settling into the day-to-day administration of the remaining reselVes. A rough analysis of the state of reserves in 1867 and in 1874 indicates that Te Atiawa/faranaki obtained as favourable leases on their 1847 Reserves as either Swainson or Heaphy did on "their"

1839/44 Reserves. In his 1867 Return, Swainson reported about 418 pounds rent being paid on all the Te Atiawa/faranaki reserves. This figure included only one-third of the leases actually extant, as it excluded 18 leases on which he did not know the terms.

Swainson had leased 8 reserves bringing 109 pounds 6 schillings, and six others remained unlet. None of those under his care were shown as occupied by Te Atiawa/faranaki.

By contrast, Te Atiawa/faranaki had direct control over 27 leases, bringing in 307 pounds on just the 9 leases on which Swainson had information. They also occupied

or used 10 reserves themselves (counting Te Aro pa, which Swainson excluded entirely from his Return). Only three remained unlet. 615

Understandably, then, Swainson had little success convincing Te Atiawa!Taranaki to

bring their 1847 Reserves under his control. In addition to this, an 1866 Native Land

Court hearing on the Ohariu reserves (assigned to the Commissioner's administration

in 1859) showed tangata whenua that once formally assigned, even the Native Land

Court would not interfere with the Commissioner's control of them. 616 The only

arguments in favour of "assignment" were that until 1865, the leases on 1847 Reserves

6151867 Return, A24 pp 36-40.

616MLC Minute Book Wairarapa 1 p (not copied yet) Doc A43 p 495. 260 remained technically illegal under the old Native Land Purchases Ordinance, and that the practice of maori receiving advances of rents sometimes got messy, leading to at least one land-sale to pay a debt to a storekeeper. 617

Mid-way in Heaphy's tenure, we find the general situation little changed. Excluding the

Porirua-area reserves, he reported about 711 pounds rents received in the year 1874-75.

258 of it came from leases on Te Aro/polhill Gully 1847 Reserve, which were shown as

leased by Te Atiawaffaranaki in 1867 (rents unknown). Another 355 of it came from

leases of desirable Ohariu/Johnsonville reserves - but two of these sections had already

been leased in 1867 direct from the maori owners for 130 pounds per annum. Another

was let by Swainson for 40 pounds, and two others by maori with rentals unknown to

Swainson (one of which was to R. Bould, just across Porirua Road from a similar

section for which he paid 100 pounds per year to Te Aro maori). It seems safe to

conclude that excluding the town and Ohariu sections he'd brought under account since

1867, Heaphy's rent rolls had increased between 30 and 50 pounds per year - an

increase largely accountable to old 21-year leases having entering their second and third

seven-year rent-hikes.618 Again, Te Atiawaffaranaki self-management roughly appears

to have worked as well as Crown management.

Yet, despite this apparent capacity for virtual self-management of the reserves,

Commissioner Heaphy claimed that he spent nine-tenths of his time settling disputes

over interests to 1847 Reserves leased direct from Te Atiawaffaranaki. One first must

617A24 pp 37-40; NLPO see A. Ward pp 134 & 185, Doc A43 pp 300 & 302; Mere Pawa see All p 58.

6181874 Report, A24 pp 86-88. 261 question the accuracy of the claim; it conflicts somewhat with Heaphy's published reports that most of his time was spent collecting and distributing rents. 619

If it is accepted that Heaphy must have involved himself deeply in 1847 Reserves, one must wonder why: Commissioner Heaphy worked with both the clear desire620 and the official mandates to bring Te Atiawaffaranaki's 1847 Reserves under his own administration. He was initially appointed and given instructions pursuant to Fenton's proposed 1869 Reserves Act, which would have, in a single stroke, given the

Commissioner "general power to manage and administer" the 1847 Reserves.621

That Act having failed, though, Heaphy worked under the letter of the 1873 Native

Reserves Act until at least December 1875, and followed its spirit until the 1882

Act.622 This 1873 Act, like Swainson's and Heaphy's instructions before, provided that it was the Commissioner's "duty... as soon as conveniently may be" to bring the 1847

Reserves through the Native Land Court, and preferably under the Commissioner's

adminstrative control. Upon determination of title and of the purposes to which the

owners desired the land to be applied, the Governor was to vest the reserve in either

the Commissioner or the maori, "as he may think fit." 623.

619"9/10" see MA-MT 1/1N12, Doe A43 p 454; own reports: ego A24 p 56.

620A24 P 56.

621See A24 p 42-3; 1869 Act Ch 7 & 17 in Doe A22.

622Letter: MA-MT 1/lN15 26/3{74 Heaphy "Memo on the Mode of Bringing the Act into Operation," Doe A43 pp 502-55; A34 'letter' p 202 and 'spirit' p 244.

62337 Victoria No 60 Ss 55-57, WAI 145 A21 P 24. 262 It is not far-fetched to conclude that Commissioner Heaphy kept an eye on 1847

Reserve transactions because he had his eye on those same reserves. 263 Seeking An Assent

The underlying assumption in the Crown's provisions for voluntary "assents" and for

Land Court determination of title, of course, was that the Crown could help Te

Atiawalfaranaki use or manage the reserves better than they could themselves. The fact that Te Atiawalfaranaki did not avail themselves of the Crown's "assents" or determinations perhaps reflects both their desire and capacity to retain as much control over their reserves as possible.

An agreement whereby a reserve was ''voluntarily placed... with" Heaphy - mentioned in his 1873 & 4 Reports - therefore provides an interesting, well-documented middle­ ground case. It is an instance of Te Atiawalfaranaki explicitly seeking the Crown's hands-on "partnership" in the reserves. The example bears close examination, as it reveals something of Te Atiawalfaranaki's "ideal" of the Commissioner's role at the

time.

This semi-formal "assent" was obtained at a meeting of owners (i.e., signatories of the

1847 deed of exchange) at J. H. Wallace's store, 6 May 1873. Heaphy phrased the

agreeement,

"1st, that the [lands] should be placed in the hands of the Commissioner of

Native Reserves, for administration, and notice given to the tenants thereof. 2nd,

that Waaka Houtipu should be the 'kaikorero' to assist [the] Commissioner with

tenants and to place him in possession of papers, plans, etc. 3rd, that the natives

named in the margin should for the future 'share and share alike' in the rentals 264 of the lands now set forth .. Ath, [the] Commissioner is empowered to let the

unused land at Polhill's Gully." 624

Heaphy's brief minute of the assent was vague, but definitely fell short of stating that by it, the lands were to legally vest in the Governor. The assent appears intended by both Heaphy and the owners at the time as much more narrow than a "vesting" or even

"entrusting."

The significance of Waaka Houtipu's role as 'kaikorero' is difficult to assess.

Traditionally, nga kaikorero are people of high mana acting as family spokesmen or representatives, with speaking rights on the marae. The term 'Kaikorero' contrasts semantically with 'kaimahi,' the word for the people undertaking the practical tasks - although the title 'Kaikorero' in itself does not imply authority over 'kaimahi.' Fairly clearly, Waaka Houtipu was spokesperson for the owners.625

Heaphy's role and status in the arrangement is intimated first in the title he used in a deed of that same year at Orongorongo: "Kaiwhakarite," or "caretaker."626 More specifically, we find that after the 6 May assent, Heaphy submitted regularly to Hemi

Parae's and others' directions for distribution of rents on the Polhill Gully reserves.627

Further, Heaphy's "power" under the "assent" to "let the unused land" was heavily qualified, or even non-subsisting; two days after the "assent," he sought the signed

624Heaphy Minute Book, A36 p 164.

625Metge, pp 85, 189, 256, 258, 337, Doe A43 pp 506-511,

626Crown Lands Office/Heaphy House, file on Orongorongo, Doc A43 pp 512-513.

627Eg. Minute Book A36 pp 165, 175 & 178. 265 authorisation of the 'kaikorero' and Henare Pumipi before even showing some empty sections to prospective tenants.628 Similarly, in January 1874, Heaphy asked Te Aro to "ratify" his lease of an acre-part of their reserve.629

Heaphy was to assume the practical tasks of receiving and distributing rents. Formerly,

Te Atiawaffaranaki seem to have assigned individual maori to receive rents on particular sections of these 1847 Reserves.630 In November 1873, the first rent payout after the assent, Heaphy paid each of the 17 named beneficiaries 3:3:6, and thereafter rents were evenly distributed.631 This 'share and share alike' provision of the assent mayor may not have reflected the maori rent-receivers' former practice.

Most telling of all, six months after the "assent," a difference of opinion arose between

Heaphy and the owners over the mode of arranging, and the terms of, a lease of 8

Polhill Gully acres to Dr. Johnston. Wi Tako, Henare Pumipi and 12 others wrote to

Heaphy "that they had resumed control of [the] 82 1/2 acres at Polhill's Gully." 632 Te

Atiawaffaranaki saw Heaphy's agency, in other words, as fully revocable - and Heaphy

agreed. Coupled with the other evidence, it seems Te Atiawaffaranaki's "ideal

Commissioner" was to be a sort of iand agent of theirs.

628 A36 p 165.

629 A36 P 175, cf. P 184.

630Eg. Minute Book, A36 p 165; also A24 p 55-6. 631A36 P 169.

632 A36 pp 173-4. 266 Trouble at Te Aro

The events surrounding this revocation of "assent" link directly to later dissent against

Heaphy's handling of the 1839/44 Reserves in Newtown, now leased by the Wellington

Board of Education, illuminating current problems there.

In May 1873, lots at Te Aro pa began to be sold to the Provincial Council. Apparently, in November 1873, the inner-harbour coastline from Te Aro clear around to Evan's Bay was granted for reclamations.633 Most of the reclamation didn't eventuate, but if the extent of proposed reclamation was known by Te Atiawa!Taranaki, it may have contributed to their sale of many of the pa sections (title determined 1866) to the

Provincial Council. Also, in 1874, one of Te Aro's most notable rangatira, Ropiba

Moturoa died.634 The Mayor's "slum clearing" of the pa area in 1874 may have also contributed, along with driving Taranaki Street through the middle of the pa in

September 1875.635 By 1877, Heaphy had an established policy of approving sales of pa lots, as he regarded Te Aro "a nest of immorality."636 By 1882, 14 of the 27 pa lots had sold.637

633Ia 36/128/1873 is a large approved plan for the "proposed grant." We have not yet confirmed that it was granted.

634John Roberts, "The Wesleyan Maori Mission at Te Aro 1839-1877," p 18, Doc A43 P 430; also Bell Gully Izard to A Mackay, NLC Greytown, 1888/466 in Aotea District, Old File on Wellington Te Aro Block, Correspondence 1866 -1908, Doc A43 P 514.

635"Slum clearing," Mulgan p 207, Doe A43 P 247.

636Heaphy/Clarke NO 78/3743, Doc A43 P 516.

637J. Roberts p 18, Doe A43 P 430. 267 As we have seen, Te Aro had emerged from the 1840's with too little land to sustain themselves. In 1852, Hemi Parae had begun cultivating sections 120 and 121 in Upper

Hutt on a lease-to-buy arrangement under Governor Grey (in effect, purchasing their own reserve). In the sixties to early 70's, Hemi Parae and Mohi Ngaponga had sought to obtain more direct control and use by Te Aro of existing reserves closer to town - both Native and Public. Hemi Parae included Kaipakapaka (Ohiro 19 & 21) and

Waitangi (from to the harbour) as lands he had successfully applied for control over in the 1860's. Others were Ngakaru, Patahuna, sections 89 and 90, and some "Te Aro Town" acres.63S ' Clearly, control of many reserves had been passing to

Te AtiawaITaranaki prior to Heaphy's administration.

Now, during the demise of the pa, and shortly after the assent, on 7 July 1873, control shifted briefly the other way. Heaphy obtained Hemi Parae's and Waaka Houtipu's

agreement to extend the 6 May 1873 "assent" to the Wiremutaone (J ohnsonville 7 & 8)

and Kaipakapaka (Ohiro 19 & 21) reserves.639 In doing so, Heaphy mixed the

administration of 1847 Reserves (Wiremutaone and Polhill Gully) with 1839/44 ReselVes

(Kaipakapaka), as Swainson had before him with Ohiro 26 and Island Bay 6 & 7.

It is remarkable that Island Bay 6 & 7 were sold around 1861 as un allotted and

proceeds deposited in the Native Reserves Fund, while at about the same time at

Kaipakapaka, just a few hundred metres away, rents were diverted from the Native

Reserve Fund altogether. MO St Hill's old Kaipakapaka arrangement with Parae

63SAJLC Petition 1874 A25 P 27.

639"Extension" Minute Book A36 p 168.

MOJellicoe, A24 p 314. 268 apparently continued under Heaphy, with rents paid to Hemi Parae "under Mantell's

authority," and 25 acres occupied by Te Aro maori.641 The arrangement no doubt underlay Mantell's later "aroha" sublease for pasturage on Newtown ridge, as well.

A rough overview of the long-term dispositions of interests in 1839/44 Reserves shows

how "mixed" the distinction was between reserves held under Te Atiawaffaranaki

tikanga and reserves held by the Crown. Part of Ohariu 12 and 13 (1839/44 Reserves) was promised to Paiura Rangikatata in 1867, disputed, and then granted to him in 1877, with the remainder eventually vesting in the Native Trustee in 1930 to be sold in 1964.

Makara 22 & 24 (also 1839/44 Reserves) were mostly "allotted" to Wi Tako, with 5 acres

"usufruct" given to Parata te Kiore. Hokowhitu/Upper Hutt 120/121 (land purchased

by Te Aro) was briefly proclaimed a Native Reserve before being "conveyed" to its

purchasers. Ngati Tama under Taringa Kuri leased Upper Hutt 98 and 102 (1839/44

Reserves) to a sawyer, Thomas Burt - and then were Crown-granted the sections in

1871. In 1908 the Maori Land Board vested Mangaroa/Upper Hutt 132 (another 1839/44

Reserve) in Hamapiri Tarikama of Kakariki and Hemi Kuti (James Cootes) of

Otaki.642 Kaipakapaka (originally a 1839/44 Reserve) eventually vested in the Native

Trustee in 1930, but proceeds were still apportioned to the descendents of the seventeen

6 May assentees. In fact, of the 13 and 1/2 Country District 1839/44 Reserves taken

administration of by the Crown in 1848, four and a half were sold early on, and the

other nine were eventually vested in maori similarly to 1847 Reserves. Hence, as noted

641Doc A24 p38.

6420hariu A24 p 112, Jellicoe A24 p 306n, citing Native Trust Records 6/50, Cert. Title 401/280 in Doc A43 pp 517-518; Makara see Minute Book A36 p 183; Hokowhitu see ibid p 191; Upper Hutt 98 & 102 see Heaphy 1871 Report A24 p 51, and Jellicoe A24 p 314 citing Heaphy's 1871 Report, and D.L.R. Deeds Vol 40/217, in Doc A43 P 519; Mangaroa see District Land Registry, Transfer 67226, Doc A43 pp 520-523. 269 before, the norm for rural 1839/44 ReselVes was for strong traditional claims eventually to override the Crown's claims - so different from the fate of such urban 1839/44

ReselVes as those now under claim.

In this broader context, the picture in South Wellington in the 1870's was of Ministers

Mantell and McLean and Commissioners Swains on and Heaphy reaffirming Te Aro's traditional authority over reselVe lands in the area. Like Governor Grey at Pipitea in the 1850's, their motives were partially economic, Te Aro having been left a "poor subsistence" - and partially evangelical, cleai:ring up maori "immorality" and introducing modern European land use and management.643

643poor: see NO 78/3743, Doe A43 P 516. 270 An Assent at Work

Into this picture in 1873 stepped the Colonial Surgeon, Dr. Alexander Johnston, wanting a respectable estate in the area. In 1871, Mohi Ngaponga's hopes for a kainga upon the

Newtown reselVes had died with him, and Mantell's lease had re-issued. In 1872

Mantell paid up his rents, and now in July 1873 he assigned his lease of the west half of Newtown ridge to Dr. Johnston. Johnston considered the parcel a "white elephant" on its own, so on 28 October, he asked Heaphy to lease him the east eighteen, including a right to a sixty year lease of at least two acres. Heaphy responded with an approval for the assignment from Mantell, and a public tender for the east eighteen acres.644

Johnston tendered on the 14th, and on the 18th Heaphy notified him that his tender for a regular 21 year lease of the Newtown east-eighteen had been accepted. (It was the highest tender).645 The owners of Polhill Gully later complained that they had had no notice of Heaphy's advertisement, and had missed the opportunity to tender themselves.

646

The same day that Johnston obtained the Newtown sections, he called at Heaphy's office with a group of Polhill Gully owners, proposing to lease eight acres there including a purchase option on three (Wi Tako's personal Crown granted section 19 and two others). Heaphy objected that reselVes "that were tenths" could not be sold.

Evidently, Heaphy now construed the 6 May agreement as being an assent under the

644Transfer see A36 p 169; white elephant 19/11n3 Johnston/Heaphy A34 p 275; request A34 pp 259-61.

645 A34 pp 262-276.

646Le 1/1882/6, A38 P 1. 271 Native Reserves legislation - once formally acknowledged by the Governor, vesting the reserve in the Crown. 647

Their positions were set: the reserves in south Wellington being under "mixed" administration, Te Atiawa(Taranaki now claimed a greater role in administering the

Newtown 1839/44 reserves than Heaphy would allow, and Heaphy now claimed greater authority over 1847 Reserves than Te Atiawaffaranaki would allow. Dr. Johnston's planned estate, on both 1839/44 and 1847 reserves, was their bone of contention.

Heaphy's lease of the east eighteen to Johnston may have been part-strategem to appease Johnston's desire to build without requiring the sale of Polhill reserves.

(Section 19 was sold, but the other two simply went in with the rest of Johnston's Polhill lease.)

Te Atiawaffaranaki and Heaphy temporarily parted ways; on the 21 November Henare

Pumipi sent Heaphy "a letter to state that they had resumed control of 82 1/2 acres at

Polhill Gully in order to let it to Dr. Johnston, and that they did not wish a newspaper advertisement respecting the letting."648 Their lease to Johnston was signed five days later. 649

Their purpose accomplished, though, on 9 February 1874, the Polhill Gully assentees rescinded their revocation, restoring the 6 May agreement. 650

647A36 pp 172-4.

648A36 P 174.

649District Land Registry Deeds Volume 42/854, Doe A43 P 524.

650 A36 P 178. 272 Two years later, Johnston wrote to Heaphy reminding him of his initial plans to build, and requesting a 60 year extension under the 1873 Native Reserves Act. Heaphy conceded the desirability of long-term building leases on urban reserves; Wellington's population had doubled now to around 8000, and Newtown was being subdivided and built upon. The 21 year terms limited the class of dwellings to be erected on the reserves.651 He rejected Johnston's proposal, though, for while the 1873 Act had enabled long term leases (s 19), it also required the consent of a Board of

Commissioners to any such leases (s 7). No such Board having been constituted,

Heaphy did not believe he could authorise such extensions.652 Native Minister

McLean agreed.653

Johnston continued for a few years to press for extension as Wellington sought to develop its suburbs. The railways reached the Hutt in 1874, Upper Hut in 1876. The

Town Belt was leased out in 1877. And in Wellington South, the Evans Bay Road and the Tramroad through Newtown were opened. In 1878 George Hunter Jr's Happy

Valley Station - including 300 acres purchased in -1862 out of Te Atiawarraranaki's

Island Bay/Ohiro reserves - sold to Jacob Joseph (& ors) for 18,400 pounds. Joseph's group re-surveyed and subdivided 200 of the 300 reserve acres, making what is today central Island Bay. "Lots 1 to 582 were offered for sale by Mr. J. H. Bethune in 1879."

The place quickly filled with summer holiday homes.654

651A. Mulgan pp 205, Doe A43 P 248; A34 pp 245 and 253.

652A34 pp 259-60.

653 A34 P 253.

654Rails see A. Mulgan p 232, Doe A43 P 249; Town Belt cite A TL map 832.4799aA/1877/Acc 6059, Doe A43 pp 525-528; south roads A34 p 189; Louis Ward, Early Wellington, p 235, copy in Doe A42 P 219 - citing New Zealand Encyclopedia of 1895, vol 1 P 799. 273 The Minister and Heaphy remained charry about 60-year leases of the Newtown reselVes, though, as no such long-term leases had yet been approved on any res elVes in

New Zealand.655 Instead, a new 21 year lease was issued privately for Johnston in

January 1878 to effect a more modest three-year extension, perhaps to hold out for new legislation. 656

Then in March 1879, the Native Office arranged a compromise.

"An extension of the lease for 42 years to be offered by public auction - the present

value of [Johnston's] lease to be ascertained by some competent person and made

a premium to be paid by the purchaser of the extension. If [Johnston] buys, of

course there will be no premium to pay. If other persons buy [the lease], they will

pay the present lessees the amount of such premium - who will thereupon surrender

their lease."

The premium was set at 3,721 pounds. The 6 May assentees obselVed that, by Johnston setting off this premium against his rent, they would be precluded from deriving any profit from the lands.657 Heaphy recommended to the Native Department that he seek the Governor's assent under the 1856 Act before the auction, but then proceeded to advertise on only the Cabinet's approva1. 658

Piqued at having their statutory role by-passed, and apparently having received

"remonstrances made on behalf of [Te Aro]," the Executive Council, under Grey,

655"Charry" see A34 p 244.

656A34 P 187.

657A34 pp 225-226; premium p 219; precluded see A38 p 1. 658A34 pp 216 and 182. 274 overrode the Cabinet's approval, and the auction was abandoned. While the

Government changed, debate ensued over whether Commissioners were to act under

Ministerial direction, or as independent agents of the Imperial Governor in cooperation with the Ministers.659 Meanwhile, Heaphy challenged the premium & valuation and arrived at a new figure of about 1539 pounds.660

J ohnston eventually assenting to the new valuation, an auction was proposed for 1

October 1880. Heaphy was to offer the reserve in two lots (11 and 18 acres), for 42-year leases (to be built upon and improvements left to the reserve at the end of the term), with no premium (but instead a rent rebate equal to the value of Johnston's remaining interests if he won the tender).661

Before the auction, though, Wi Tako, Waaka Houtipu (kaikorero) and four other May

'73 assentees, and Paora Teretiu and W. Tamati te Wera wrote to Native Minister

Bryce: "We the people of Te Aro are quite satisfied as to those lands being ours.

Friend Mr. Bryce, we will never lose sight of those reserves, whatever Government may be in Office."662

Omitting reference to his own allocations of Kaipakapaka and Wiremutaone, [now

N.L.C. Judge] Heaphy reported from Wanganui that

659piqued see A34 pp 160-183; remonstrances see Le 1/1885/6, A38 P 1 and Papers p 4.

660 A34 P 125.

661A34 pp 50 and 72-3.

662A34 P 62-64. 275 "the lands referred to are general reserves that have never, like McCleverty's

awards, been allocated to any particular native or family ... The income derivable

from them is available for general purposes connected with the administration of

Native reserves, Hostelries, etc, for passages for natives, and their occasional

pecuniary assistance."

He recommended giving them fifty pounds for the winter, "as they have several older persons to support."663

Te Aro re-iterated and clarified their position on 13 August. They wrote to Bryce,

"We disapprove of the lease of our land being renewed or sold by auction. We wish

to retain it as a permanent place of residence for ourselves [hei kainga tuturu mo

matou]." 664

One of the protesters, Ahanihi Himiona (Agnes Simeon), resident at Te Aro pa with her pakeha husband, had also recently protested against Heaphy's approval of the sale of non-resident Waaka Houtipu's pa lot.665

By this time, J ohnston was supposed to have surrendered his old leases to enable the auction of new leases. He had already abandoned his planned Newtown estate, and built in Wadestown around 1876-77 instead. [note the house is the famous "banana house" on Goldie's Bray] Now Johnston was holding the leases back. No doubt

663Heaphy/Lewis 9/8/80, A34 P 59.

664 A34 P 55-57.

665NO 78/3743, Doc A43 P 516. 276 retaliating against Te Aro's growing opposition to the deal, Johnston withheld his rent on Polhill Gully - for which "maoris [were] annoying.,,666 The next month, though, 4

October 1880, Johnston surrendered the leases. On the 22 October, Heaphy had the surrenders registered. 667

The auction was set for 6 December 1880, with Johnston the planned winner, able to bid a rent which would, upon acceptance, be reduced by the rebated value of his surrendered lease. On the 30 November, though, Te Aro informed Native Minister

Bryce of the approaching auction, and protested

''we have not asked him to do this nor have any Maori Commissioners [under the

1873 Act] agreed to his doing so, and we feel sure that his object is to acquire the

reserves for the Crown. Be it known now that we intend to manage our own

reserves and we will either bring the question before Parliament or the Supreme

Court as our solicitor advises. We now therefore apply to you to stop the sale of

those reserves [leases] until it is ascertained whether the land is ours or the property

of the Crown. ,,668

The signatories were both prominent and mostly assentees under the 6 May 1873 agreement, including the kaikorero: te Teira Whatakore Taare Tohua (obscure)

Ropana Te Owhiro Paora Teretiu·

Ihikaira te Wai Ihaka Te Rou

666A34 P 69.

667A34 pp 33-38.

668A34 pp25-26. 277 Wi Tako Ngatata Te Waaka Houtipu

W. Tamati te Wera

Heaphy responded again with his unimplemented 1879 Royal Commission recommendation that heads of families receive equal shares of rents. Moreover, he now stressed "Waaka Houtipu and the other natives have at present no equitable right in the

Reserves beyond what any native in the Wellington District may claim to have." He argued to their solicitor, Seivwright, that the reserve was 'vested in the Governor."669

Johnston now trying to cash out altogether, the auction was rescheduled for 29

December 1880. At the start of the auction, though, Mr. Seivwright read Te Aro's protest. The auction proceeded, but the upset prices for the Newtown reserves were not bid.

Seivwright forwarded the protest to the Native Department to be laid before the

Executive Council.670 The same day, Ahanihi Himiona and several of the other

protesters moved onto the reserves to take possession. Heaphy set to work disclaiming

the registered surrenders, so as to reinstate Johnston's leases (and remove doubt in

planned trespass proceedings.671

The petition was not considered by the Select Committee on Native Affairs until

seventeen months later, in July 1882. In the interim, Te Atiawaffaranaki resolutely

669 A34 pp 27-29; "vested" see p 17.

670A34 pp 16 and 20.

671A34 pp 3-11; disclaiming see Lel/1882/6, A38 Papers pp 11-12. 278 retained occupancy of the land. In September 1881, Dr. Johnston filed a complaint of trespass, and criminal proceedings began in the Supreme Court. The proceedings went slowly - possibly due to the ambiguities surrounding the surrenders, the lack of any Land

Court determination of ownership toTe Atiawaffaranaki's reserves, the administrative limbo created by the 1873 Act, and by the lack of formal "assent" given to the Governor in Council for these reserves to be administered under the 1856/62 Reserve Acts.

As it was still under adjudication when the Select Committee met, the Committee

deigned not to act. We know from the Court Register that the Court found against the maori protesters, and they were evicted. Johnston got his lease, without extension, but

under the 1882 legislation, the lease was assigned to the Queen and apparently leased

back to J ohnston.

Before returning to the settlement of the dispute over sections 89 and 90, and the

compensation for the endowment lands, it is worth summarising this saga of the reserves

in South Wellington. In it, the Crown's view of the reserves - roughly the view most of

us hold today - took shape. This modern view builds upon the ambiguities in the 1848

grant and on the decision in Regina v Fitzherbert. It holds the 1839/44 Reserves to

have soundly vested in the Governor under the 1856 Act - when in fact, they remained

arguably under native title as exceptions to the 1844 Releases - claimed by the Crown

under no specific authority or agreement, and not formally assigned as trust-style

reserves until the 1896 Native Reserves Amendment Act. This modern view holds that

rents on Te Atiawaffaranaki's reserves were properly lumped-in with those of maori

from Whenuakura to Wairoa672 and slavishly applied to administrative and charitable

672See eg A24 p 93. 279 purposes anywhere in-between, when in fact proceeds from many 1839/44 reserves were successfully hapu-ized in the 1860's and beyond - and Te Atiawaffaranaki pressed for more even to the point of illegally seizing lands. And finally, the view holds that the reserves were to be administered with no specific regard for Te Atiawaffaranaki custom

or authority, Commissioners or Kaikorero, when in fact such authority was recognised

early by Heaphy, albeit in one-sided fashion to facilitate the Crown's control over

Kaipakapaka, Wiremutaone and Polhill Gully - while allowing little "interference" in

administration of Newtown. The authority of the kaikorero under the 1873 Act was

apparently still raised by Te Atiawaffaranaki even in the 1882 Committee on Native

Affairs hearings.

These views form the doppleganger of Regina v Fitzherbert - the presumption of the

Crown's right and duty to administer Te Atiawaffaranaki's reserves - and the presentist

fallacies projecting that presumption back much further into time than evidence

warrants. Right upto the 1882 legislation, the Commissioners of Native Reserves (and.

the Ministers and Governors under whom the Commissioners acted) often - though

inconsistently - recognised and sanctioned traditional Te Atiawaffaranaki authority over

the reserves. From the mid-1870's, though, such support amongst Crown officials all but

disappeared.

Te Atiawa/Taranaki have continued to this day to seek self-management of their

reserves, finally obtaining it in 1987 - albeit subject to the statutory straight-jacket of

perpetual renewals, 21-year rent-reviews and rent ceilings. 280 Settling Accounts

In the midst of the 1870's vying for control of Te Aro reserves, the Crown continued to try to settle its debt for the lands taken in the 1840's and 50's. The matter of lost lands was pressed upon Heaphy in his first years as Commissioner. He had first raised the question of sections 89 & 90 in October of 1870.673 Before the decision in Regina v Fitzherbert, Heaphy sought a single settlement of this question with the other lost lands. In April 1871, he pressed for a response from McLean, who considered the matter "large" and referred it to Cabinet.674 In his 1872 Report a few days later,

Heaphy recommended a two-pronged total solution: the Government should offer rent for sections 89 and 90 (taken for the Mount Cook barracks) and for the Native Office

and Government stables (both on section 514). In addition, maori should be given free medical attendance at the Hospital to compensate their loss by its endowment. 675

Heaphy read Johnston's findings published in the Wellington Independent, 21 March

1872, and surmised Te Atiawa!Taranaki were probably going to win their case. He

pressed his recommendations for rent, and now, instead of free medical care, a cash

settlement - it being "impracticable to restore the reserves to native use." He reported

the Government had "intimated an intention" of paying rent for the Barracks. 676

673Heaphy/McLean 4/lOnO A34 p 1.

674Heahpy/McLean 20/4n1 and McLean/Heaphy 24/4n1, in A34 pp 3-5.

675Heaphy Report 5/5n1 A24 p 46.

676Heaphy Report 16/8n2, A24 p 55. 281 In December 1872, though - before the barracks rent was arranged and before Heaphy's recommended Act was introduced - Te Atiawaffaranaki's courtroom attempt to have the Hospital endowment lands returned finally failed, throwing the whole question open once again.677

At some point earlier, possibly during preparations for Regina v. Fitzherbert, Hemi

Parae had "applied to the Assembly" for sections 89 and 90 "to be placed in [Te Aro's] hands." Because "the lawyer who conducted the Land Reserves case for us" had assented to his application, Hemi Parae understood the sections to have been given over to him. Perhaps Parae overestimated Charles Izard's official capacities and powers. In the light of the other fluid and relatively informal arrangements being made at the time for reserves administration in South Wellington, he can hardly be blamed.

In January 1874, Hemi left to visit Taranaki, deputing his daughter Ahapera to receive his rents in his absence.678 While he was away, Heaphy summoned Te Aro pa owners in a circular letter, and on 24 March, purchased sections 89 and 90 from Wi Tako and

34 others for 500 pounds. The payment supposedly included back rent, although

Mantell had estimated in March 1865 at "not less than one thousand pounds." Ahapera signed for her father, Hemi Parae.679

677Judgment A7(b) p25; judgment published in New Zealand Mail August 1874, A24 P 79. 678A36 P 175.

679ManteWCabinet 22/3/65 in A34 P 55; Ahapera see original deed 24/3n4 Crown Lands Office #6 - overlooked in Turton's copy. 282 When Hemi Parae returned and found 'his' land sold, in August 1874 he petitioned W.

B. D. Mantell that these lands had been assigned to his authority, and that Wi Tako

[and presumably the others] had no authority to sell them. Ever Parae's ally, Mantell ordered papers relating to the transaction to be tabled - but the petition does not appear to have elicited much response. The sections 89 and 90 remain today owned and occupied by the Ministry of Defense.

The low compensation for sections 89 and 90 is explained by the same correspondence directing valuation and payment of the compensation for the other lost lands; between

August 1872 and October 1875, Commissioner Heaphy directed to the Ministers and valuers involved in arranging compensation nine separate arguments for adjusting compensation as low as possible.

1. First (and finally) in his 1872 Report, Heaphy stated it was "almost impracticable" to

restore the reserves to maori use, as Te Atiawa/Taranaki sought, as other interests had

grown Up.680

2. Heaphy's initial August 1873 valuation of 10,194 pounds did "not embrace the idea

of interest being chargeable," presumably thereby excluding consideration of any interest

which Te Atiawa/Taranaki might have earned had the assets remained in their hands. 681

680A24 P 55.

681Heaphy Valuation memo 20/8n3, Doe A39 p 239. 283 3. Similarly, Heaphy's rather slim market sample in August 1873 (ten sales from all over

town) lead him to reduce Swainson's valuation (12,364 pounds) by "about one fifth."682

4. His "Remarks on McKay's Paper" the next week, for McLean, remarked that

"diligent search" of Native Records revealed no Te AtiawaITaranaki protests over "the

building of the Hospital on a Native Reserve." On the contrary, he found maori

appreciating medical attention at the hospital for injuries sustained in fighting at

Waikanae in 1839-40. A year later, therefore, Heaphy directed the valuer, Mr. J. H.

Wallace, to consider the benefits Te Atiawa/Taranaki had received and were yet to

receive from the Hospital and College (apparently ignoring the fact that the Hospital

had for many years received all of the monetary benefits of Te AtiawaITaranaki's entire

1839/44 Reserves estate). Wallace's valuation noted the benefits accordingly. 683

5. Heaphy's August 1873 "Remarks" also laid great stress on

"The extent of land which the natives obtained in various ways outside of the

scheme of the tenths, as well as cash payments for land taken should be noticed, in

order that a just estimate may be formed of the liability of the Crown towards the

natives."

Without a trace of irony, Heaphy complained that "Col McCleverty found as much

difficulty in persuading the natives to vacate their clearings on settlers' sections as Col.

Wakefield and Mr. Clarke had in inducing them to surrender their claims for

[compensation]."684

682Heaphy Valuation memo 20/8n3, Doe A39 pp 232-239.

683Heaphy memo ND 73/5398 29/8n3, A39 p 202; Heaphy to J. H. Wallace 20/8n4, A39 p 172; WallaceNaluer's Report 26-27/8n4, Doe A39 P 152.

684Heaphy memo 29/8n3, Doe A39 pp 184, 186 & 196. 284 6. Overall, Heaphy's "Remarks" cast Te Aro's "obstinate possession" of their pa, and even Petone's retention of their cultivations as pakeha-incited repudiations of the presumed-complete 1839 purchase.685 Later, while his memo of October 1875 pointed out that the Government would "heal up much soreness" by compensating, it similarly cast the compensation as practically a "gift" to Te Atiawa/Taranaki, observing that

"in law the natives can have, I think, no valid claim for the Hospital and Grammar

School lands taken, as they had, themselves, broken the written compact of the deed

of cession" (ie., "they had not removed from their old cultivations on to the tenths

provided for them, nor had they allowed the tenants to whom the administrators of

the tenths had let some of those reserves ... to occupy them."686

7. In his August 1874 instructions to the valuer,. Heaphy directed Wallace not to consider any increase in land values after 1866-69 due to "municipal or other improvements." As a result, Wallace remarked in his report, that most of the increase in value since 1870 (in many cases 50 - 100%) was due to the "Public Works Policy and to the fact that the City Corporation have pushed on improvements in the city, and as the natives have not contributed to this, the final [valuation] may be subject to some modification." 687

8. Having flagged the notion with the Native Department Under-Secretary in March

1874, Heaphy further instructed Wallace, in two separate memos, that what was desired

685Doc A39 P 184f, 29/8n3: Heaphy memo pp 193-96.

686Doc A39 pp 131-135, 11/10n5: Heaphy memo.

687Doc A39 p 172, 20/8n4: Heaphy to J. H. Wallace; p 152, 26-27/8n4: WallaceNaluer's Report. 285 was not an "actual value" but a sum which would reflect the judgment in Regina v

Fitzherbert - which had

"so affected the position of the natives, as claimants that it is probable that they

would be satisfied with a much smaller amount."

He enclosed a copy of the judgment and suggested 200 pounds an acre. Wallace calculated his "equitable valuation, adjustment or compromise" accordingly, at 250 pounds per acre. 688

9. When informed of Wallace's 250 pound per acre "compromise," the persistent Heaphy reduced the sum again by a fifth, without explanation, remarking only that Wallace agreed the "slight modification might be proper."689

Throughout, Heaphy's impulse to compensate seemed rooted mainly in references to

Eyre's 5 July 1848 memorandum promising such, and in similarly constant references to the quieting of discontent.690 Native Minister McLean, however, added another motive, writing to his Under-secretary:

"The matter is to be referred to Cabinet before any action is taken. The settlement

of this old question would lead to the acquisition of large tracts of country in the

Taranaki district. ,,691

688Doe A 39 P 175 & 180, 19/3n4: Heaphy to Native Department Undersecretary; A39 p 172, 20/8n4: Heaphy to J. H. Wallace, requesting valuation; A39 p 171, 21/8n4: Heaphy memo on valuation, NO 74/4357; A39 P 152, 26-27/8n4: WallaceNaluer's Report.

68925/8n4 Heaphy/(Native Minister?) Doe A39 p 170.

690U/l0n5: Heaphy memo Doe A39 pp 131-135.

69127/8n4: Donald McLean memo to Clarke, Doe A39 p 156. 286 Indeed, the first three hundred pound installment on the compensation came out of the

"Land Purchases" account.692

For some reason, the remainder - 4173 pounds - was only paid two years later on 18

January 1877.693 There were about 100 Ngatiawa present at the payment; Taranaki were invited but did not attend. McLean, recently dead, was eulogized.

The 1877 receipt for the payment does not mention the Cathedral lands - only the

Hospital and Grammar School. The 36 Signatories were:

(* = signed by mark, witnessed by Gilbert Mair, Interpreter.)

Wi Tako Ngatata Hori Ngakapa*

Wi Hapi Pakau * Henare te Puni*

Henare Pitt Porutu Karena te Hau

Ihaia Porutu Tutaumouri te Manukapanganui*

Manihera te Ngatoro* Hone Ngakaka

Te Teira Whatakore* Ngakora Manukarioi*

Henare Pumipi Wiremu Rangiawhio*

Tipene te Raro Paiura te Rangikatatu

Paratene te Poho Ihikiera te Waikapoariu*

Mohi Puketapu Rapana Owhiro*

Enoka Hohepa Hapurona Hamana*

Tahana Ngairo* Mawene Hohua

Hare Parata* Tare Tahana*

6924/9n4 and 8/9n4 Clarke notes, Doe A39 pp 157.

69323/1n7: ND [obscured] 20/1n7: Halse to Native Minister Doc A39 pp 120-128. 287 Matene Tauware Te Waaka

Hone te Pune Te Whakaruru

Mete Kingi Paetahi* Ihaka te Rou*

Pene Manara Paora Teretiu *

Tiaki Te Wera Hori Pipi*

In return for the 4473 pounds payment, Wi Tako and the 35 other signatories agreed

"on behalf of ourselves and our heirs to indemnify the Government from all further claims of whatsoever nature or by whomsoever made on account of the aforesaid land."

In this way, in 1877 the Crown "fully" compensated Te AtiawafTaranaki with just over

4400 pounds for lands which had been valued in 1867 - arguably conservatively - at over

12,000 pounds.694

In 1852, Governor Grey had crowed to Earl Grey that his hospitals were costing the

Government little because of their "considerable endowments." The endowments saved the Government from raising taxes to pay for public health. In 1991 alone, rent on the eight Te Atiawa!Taranaki reserve properties still owned by Wellington Area Health

Board subsidized the region's public health system by almost $600,000. Over the years, the properties have doubtless supplied many millions of dollars to the Government's health care system.695

Compare this with the Public Trustee's 1896 protest that rental income on the Reserves in his care was already too small to be distributed to Te AtiawafTaranaki owners - "from

694Minutes of meeting, with receipt for compensation and notes of meeting: Doc A39 pp 118-122.

695Enclosure D in 29/8n3: Heaphy "Remarks" ND 73/5398, 13/2/52 Grey to Earl Grey Doe A39 pp 222-224; Wellington Area Health Board Regional Service Unit Endowment Property Descriptions 1991, A43 P 529. 288 less than a penny to a shilling a week" - and that he had already used 523 pounds for

"rations to poor distressed Natives" and 610 pounds for "medical attendance" in the last

3 years.696

So for decades, the Crown not only subsidized public health by giving Te

Atiawaffaranaki's reserved lands to the hospital, it then charged Te Atiawaffaranaki's

remaining reserves to pay for medical fees.

696Doc A39 P 24, 19/2/96: Public 1hIstee to Justice Undersecretary. 289 Conclusion

The interpretation of events marking the introduction of British law into New Zealand

has followed one of two general paths, depending on whether one regarded it as a case

of acquisition of sovereignty by settlement or by cession.697 If maori were taken not

to have had a sovereign "state" at international law prior to the Treaty, then British

sovereignty came by settlement, and "British subjects who settle... take the English law with them." 698. If maori were taken to have exercised a prior sovereignty, then one

interprets ours as a situation of cession (by treaty), and "the law in force at the time of

cession ... remains in force unless and until it is altered by or under the authority of the

Sovereign."699

The distinction between the two interpretive paths is not really so marked. Even in the

case of sovereignty by "settlement," the Crown's established principle in extending its

sovereignty into the settled territory has been to give due regard and respect for "local

circumstance." The effect is much the same as in a case of cession: instead of the "law'

remaining in force until altered, local customs are to remain intact until altered.

McHugh has recently tried to move beyond this whole rather monocultural British

Constitutional perspective, by foeussing upon the principles that underlay the distinction.

Upon these principles, from early on the British treated New Zealand as something in­

between either simply settled or ceded. Maori were not seen as being a "scattered

697Roberts-Wray pp 99-104, in Doe A42 pp 4a-4d, summarizing and critiquing Foden.

698Roberts-Wray p 540, Doe A43 P 7.

699Roberts-Wray p 541, Doe A42 P 7. 290 people" in Vattel's phrase, but neither were they seen as one of the "civilized nations."

So, in acquiring and exercising sovereignty over New Zealand, the British were guided by the contractualists' principle of consent which underlay the mid-nineteenth century

British notion of sovereignty or imperium (government) itself. In promulgating and entering the Treaty of Waitangi, "the Crown conducted itself on the basis that the erection and exercise of any power of government over non-Christian societies required their (normally, formal) agreement."

Interestingly, McHugh's return to basic principles leads him to a similar question to the

settled-or-ceded distinction's. Accepting that sovereignty originates in the consent of

the subject, does it also then subsist in the consent of the subject?700 If it doesn't,

then the "concession of sovereignty to the Crown is final and irrevocable." If it does,

there may be "limitations upon the sovereignty of the Crown.I001

We leave the theoretical debate to more able hands. We only note that expert

commentators acknowledge the importance - and the difficulty - of deciding whether or

how far the Crown's exercise of its legal and/or political sovereignty ought (according

to its own principles) to be limited or tempered by consideration of maori custom and/or

rangatiratanga.

Early on, Te Atiawa!Taranaki in Wellington region recognised the inadequacy of Te

Atiawa/Taranaki custom for regulating commerce and employment, and fully welcomed

700p. G. McHugh, "Constitutional Theory and Maori Claims," Waitangi, p 33, Doe A42 P 11.

701p. G. McHugh P 33, Doe A42 P 11. 291 the introduction of British kawanatanga facilitating such matters.702 We have shown, further, that they welcomed kawanatanga in land matters, particularly in settling fencing and boundary disputes, in protecting possession of their pa, cultivations and wahi tapu, in moderating/regulating the Company's initial claims, and in defending traditional claims in the Hutt. Here, though, the question is, who wouldn't have?

The crunch in Wellington region came in the late 1840's and early 1850's - after the

Crown, Te Atiawaffaranaki, and the Company had finally settled the larger boundary issues, finally marked out pa and cultivation reserves, and finally sanctioned and granted a portion of the Company's claims. After this, the Crown found itself without sufficient

(cheap) land for its planned public health and education services. Armed with a large military presence, an angry settler-majority, and unsympathetic Home Government and

Constitution, Grey's Government interpreted the 1844 Releases of Te Atiawaffaranaki's title very loosely. Where Te Atiawaffaranaki had agreed to the sale of the region subject to the "places reserved ... remaining alone for [them]," the Crown claimed the legal estate of the choicest reserves for itself. It used Native Reserves which thus came into its possession for public purposes. How "limited" by Te Atiawaffaranaki rangatiratanga ought the Crown's sovereignty have been in this action?

When Te Atiawaffaranaki claimed the taken reserves in 1872, the Court of Appeal looked only for actions authorised by the Crown alone - disregarding the Treaty-based consensual actions which had in fact created the reserves. How "limited" by Te

702Roberts-Wray pp 535-36, Doe A42 pp 5-6, notes this is common "gap" in indigenous law, usually the first field sown by introduced British law. 292 Atiawa/faranaki rangatiratanga ought the Crown's sovereignty have been in this action?

McHugh gives two instances from colonial New Zealand where the "strong" view was forwarded that the Crown's sovereignty ought not only have been "limited" to some extent, but "divided" between Crown and tribes. One was Attorney General Swains on in 1842-43, and the other was the Secretary of State for the Colonies, urging in 1869 that Hauhau should be not be fought as "rebels" wanted dead-or-alive (like Titokowaru), but rather as foreign hostiles according to the "usual laws of war."703 Neither

Swainson's nor the Secretary of State's "strong" view prevailed in the colony, but it is noteworthy that both views arose in defense of tribes and individuals who are beneficial

owners of the reserves under claim (Te Atiawa, Taranaki, and Ngati Ruanui).

Being prominent amongst the earliest, most moderate and methodical of Kingites in the

fifties, Te AtiawatTaranaki displayed an abiding fidelity to sustaining and asserting their

rangatiratanga in the modern colonial setting. Whether Wi Tako's, Moturoa's and

others' Kingism advocated in particular merely a "limited" sovereignty or a "divided"

sovereignty we leave to others more qualified to comment.

But these responses to the Crown's "rate of asserting" sovereignty - and all that we have

seen regarding Te AtiawatTaranaki's reserved lands - indicates that, while Te

Atiawa/faranaki welcomed the Crown's "limited" protection and assistance, they sought

more their own independent, "divided" control.

703A26 P 193. 293 Regardless of the technical illegitimacy of their view under British constitutional theory of the day, at least prior to the 1880's, Te Atiawa/faranaki appear to have desired, and wherever possible exercised, the fullest measure of independent control attainable under the Treaty, while remaining cognizant of the Crown's duty to govern for all New

Zealanders.

In particular, we have shown Te Atiawa!Taranaki's cognizance of the Crown's obligations in their "acquiescence" in the loss of their claim to their "unoccupied" lands subsequent to the 1844 Select Committee report and 1846 Constitution. Te

Atiawa/faranaki appear by that time more interested in securing and exploiting what lands they could, arid in continuing to undercut pakeha in Wellington's markets.

Throughout the 1840's, they appear eager for the new religion, new work methods, new health institutions, new learning. They welcomed church, road-crew, hospital and school onto their lands.

They did not welcome the Crown's expropriation of those lands to finance those new institutions, nor its arrogation of control over Te Atiawa!Taranaki's reserved lands. We have shown that these actions Te Atiawa!Taranaki fought, right from 1842 up through the 1870's. In the 1870's, the decade when the Treaty was declared "simply a nullity," Te

Atiawa!Taranaki lost decisively and unjustly on both fronts - in the struggles for return

of (and failing that, compensation for) nga whenau ngaro, and in the struggles for a greater share of control in the remaining reserves claimed by the Crown.

That Te Atiawa!Taranaki continue to suffer - and the Crown to benefit - from these

past actions is virtually self-evident. The reserves lost to Grey's endowments were the 294 best urban lands of the lot. While Wellington Area Health Board and the Crown enjoy use and rents of prime ex-reselVes in Thorndon, the Wellington Tenths Trust falls

deeper in debt with its Newtown remnants.

The community of Wellington has itself suffered: by Grey's endowments and the Court's

failure to nullify them, instead of having 25 acres of maori land at its heart, Wellington was made a literally Euro-centric city. Wellington was left with two decadent pa on its

edge, their cultivations removed, and their access to the sea "reclaimed." To require Te

Atiawaffaranaki to fully enumerate the ways this has prejudiced them in their life in

that city, would unnecessarily burden the present claim for the endowment lands' return.