\NQ) School of Social Policy and Social W~
PURANGATAUA WHANAU TRUST CLAIM
THE ALIENATION OF INTERESTS IN 11 HAURAKI LAND BLOCKS
A report commissioned by the Waitangi Tribunal for Wai 754
IVED I/V,:\!
TRACY TULLOCH
March 2000
All opinions expressed are those of the author only.
Massey COLLEGE OF HUMANITIES & SOCIAL SCIENCES 2
TABLE OF CONTENTS
Table of Figures ...... 5 Abbreviations ...... 6 Author ...... 7 Introduction ...... 8 The Claim ...... 8 The Commission ...... 8 Methodology and Structure ...... 8 Chapter 1: Whenuakite ...... 13 1.1 Location ...... 13 1.2 Pre-Native Land Court Purchase ...... 13 1.3 Issues arising ...... 14 Chapter 2: Te Pepe ...... 17 2.1 Location ...... 17 2.2 Title investigation ...... 17 2.3 Alienation ...... 18 2.4 Issues arising ...... 19 Chapter 3: Whangamata 5 ...... 23 3.1 Location ...... 23 3.2 Existing research ...... 23 3.3 Preparation for title investigation ...... 23 3.4 Title Investigation ...... 25 3.5 Timber lease ...... 25 3.6 Alienation ...... 26 3.7 Issues arising ...... 27 Chapter 4: Whangamata 2 ...... 30 4.1 Location ...... 30 4.2 Title Investigation ...... 30 4.3 Restrictions ...... 30 4.4 Proposal to sell ...... 31 4.5 Sale negotiations ...... 33 4.6 Issues arising ...... 35 Chapter 5: Kahuwera ...... 40 5.1 Location ...... 40 5.2 Title Investigation ...... 40 5.3 Timber lease ...... 42 5.4 Alienation ...... 42 5.5 Succession applications ...... 44 5.6 Issues arising ...... 44 Chapter 6: Kuaotunu ...... 47 6.1 Locations ...... 47 6.2 Existing research ...... 47 6.3 Crown purchase of interests in Kuaotunu ...... 49 6.4 Title Investigation ...... 49 6.5 Kuaotunu lA ...... 51 6.6 Kuaotunu IB ...... 52 6.7 Kuaotunu lA and IB: issues arising ...... 53
Wai 754 3
6.8 Kuaotunu 1D ...... 55 6.9 Alienation of 1D1 to the Crown ...... 65 6.10 Kuaotunu 1D: issues arising ...... 66 6.11 Kuaotunu 2 ...... 67 6.12 Kuaotunu 2B: issues arising ...... 70 6.13 Kuaotunu 5 ...... 70 6.14 Kuaotunu 5: issues arising ...... 72 Chapter 7: Te Kauanga Whenuakite 1, 3, 6 ...... 76 7.1 Locations ...... 76 7.2 Te Kauanga Whenuakite 1-7 ...... 76 7.3 Te Kauanga Whenuakite 1 ...... 78 7.4 Te Kauanga Whenuakite1: issues arising ...... 79 7.5 Te Kauanga Whenuakite 3 ...... 79 7.6 Te Kauanga Whenuakite 3: issues arising ...... 82 7.7 Te Kauanga Whenuakite 6 ...... 83 7.8 Alienation 1961 ...... 86 7.9 Te Kauanga Whenuakite 6: issues arising ...... 87 Chapter 8: W aipatukahu ...... 91 8.1 Location ...... 91 8.2 Title Investigations ...... 91 8.3 Existing research ...... 93 8.4 Waipatukahu 5A ...... 93 8.5 Waipatukahu 1 & Waipatukahu Tapu ...... 94 8.6 Waipatukahu 1B2B: issues arising ...... 109 8.7 Waipatukahu Tapu and Waipatukahu 1C: Incorporation & Alienation ...... 111 8.8 Waipatukahu Tapu and Waipatukahu 1C: issues arising ...... 115 8.9 Waipatukahu 5B ...... 120 8.10 Residence site licences: Waipatukahu 5B's experience ...... 122 8.11 Residence site licence settlement: issues arising ...... 129 8.12 Uneconomic interests ...... 129 8.13 Bulk ofWaipatukahu 5B not alienated ...... 130 Chapter 9: Rautawhiri 0 te Ao ...... 134 9.1 Location ...... 134 9.2 Title Investigation ...... 134 9.3 Invalid sale ...... 135 9.4 Alienation ...... 135 9.5 Issues arising ...... 136 Chapter 10: Te Kauanga ...... 138 10.1 Location ...... 138 10.2 Title investigation ...... 138 10.3 Survey lien ...... 138 10.4 1907 controversy over ownership and successions ...... 139 10.5 Land deducted for roading ...... 141 10.6 Roading: issues arising ...... 142 10.7 Ownership 1964 ...... 142 10.8 Amalgamation into Whakapoi 2 ...... 144 10.9 Vesting in trustees ...... 145 10.10 Alienation ...... 146
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10.11 Issues arising ...... 147 Chapter 11: Onepu 1 ...... 150 11.1 Location ...... 150 11.2 Title investigation ...... 150 11.3 Land ceded for mining purposes ...... 151 11.4 Roadway order and partition ...... 151 11.5 Onepu 1B: residence site licenses ...... 152 11.6 Alienation 1986 ...... 153 11.7 Issues arising ...... 154 General Conclusions ...... 157 12.1 Introduction ...... 157 12.2 The Crown's purchasing advantages ...... 157 12.3 Crown conduct ...... 159 12.4 The costs to Maori of participating in the Land Court process ...... 160 12.5 Goldfields policy and administration ...... 161 12.6 Public works policy ...... 162 12.7 The adequacy of the Crown's protective mechanisms ...... 162 12.8 The rate and extent ofland loss in Hauraki ...... 163 12.9 Conclusion ...... 165 Appendices ...... 166 Appendix 1. Chronological order of alienation ...... 166 Appendix II. Crown and private purchases ...... 167 Appendix III: Land affected by roading ...... 168 Appendix IV: Wai 754 Claim ...... 169 Appendix V: Wai 754 Commission ...... 171 Bibliography ...... 172
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TABLE OF FIGURES
Figure 1. Location ofWai-754 blocks 11
Figure 2. Whenuakite 16
Figure 3. Te Pepe 22
Figure 4. Whangamata 5 29
Figure 5. Whangamata 2 39
Figure 6. Kahuwera 46
Figure 7. The Kuaotunu blocks 48
Figure 8. Te Kauanga Whenuakite 1,3,6 90
Figure 9. Waipatukahu 1 and Waipatukahu Tapu 117
Figure 10. Waipatukahu 1 118
Figure 11. Waipatukahu Tapu 119
Figure 12. Waipatukahu 5 132
Figure 13. Residence Site Licence 8745 133
Figure 14. Rautawhiri 0 te Ao 137
Figure 15. Te Kauanga, Whakapoi 2 149
Figure 16. Onepu IB 155
Figure 17. Onepu IB and the Tapu area 156
Wai 754 6
ABBREVIATIONS
AJHR Appendices to the Journals of the House of Representatives
BOF Block Order File
CCF Closed Correspondence File
CT Certificate of Title
LINZ Land Information New Zealand
MA Maori Affairs
MA-MLP Maori Affairs: Maori Land Purchase Department
MB Minute Book
MLC Maori Land Court
ML Maori Land Court Plan number
NA National Archives
PR Provisional Register
ROD Record of Documents
RSL Residence Site Licence
Wai Waitangi Tribunal Claim number
Wai 754 7
AUTHOR
My name is Tracy Tulloch. In 1997 I completed a doctorate in late nineteenth and early twentieth century New Zealand history at the University of Canterbury. Since December 1998 I have been employed as a contract researcher in the Department of Social Policy and Social Work at Massey University, Albany. I researched and wrote a report for Wai 704 (July 1999: Wai 686, Il).
Wai 754 8
INTRODUCTION
The Claim
This is a report for Wai 754 commissioned by the Waitangi Tribunal on 20 October 1999 for the descendants of Purangataua Taiporutu (also known as John Patrick Cooney). On 18 September 1998 the descendants of Puran gat au a Taiporutu submitted a claim to the Waitangi Tribunal. The claimants argued that they
have been and continue to be prejudicially affected by acts; omissions; policies and practices of the Crown and legislation and regulations made by the Legislative Council. The aforementioned are inconsistent with the Treaty of Waitangi and principles of the Treaty of Waitangi. 1
The claimants included the following blocks in their claim: Tairua, Kahuwera, Rautawhiri-O-Te-Ao, Whenuakite, Te Pepe, Whangamata No.2 and No.5, Waipatukahu, and Onepu. They stated that, to their knowledge, 'the interests of the descendants of Rawiri Taiporutu, Matahera Whakatau and Eparaima Kingi (who had substantial interests in these blocks) [were] not represented in claims currently before the Tribunal. Purangataua Taiporutu is the mokopuna of the above named' .2
The Commission
I have been commissioned to complete a report covering the alienation of the interests of Rawiri Taiporutu, Matahera Whakatau, and Eparaima Kingi in the following blocks:
• Kahuwera • Onepu • Rautawhiri -o-te-ao • Te Kauanga Whenuakite • Whenuakite • Kuaotunu • Te Pepe • Whangamata 2 • Waipatukahu • Whangamata 5
The Tairua block mentioned in the statement of claim is not examined in this report. Research carried out for the Wai 754 scoping report failed to uncover any information linking the named tipuna or their successors to the block.3
Methodology and Structure
This report is primarily based on research carried out in the following archives and offices:
1 Letter, Garrick Cooper to Registrar, Waitangi Tribunal, 18 September 1998 2 Ibid. Purangataua was also known by his father's name: Tutokatea Kuni. 3 Tracy Tulloch, Wai 754 Scoping Report, September 1999 (Wai 686, Jl)
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• National Archives: Auckland and Wellington branches • Land Information New Zealand: Auckland, Hamilton offices • Hamilton Maori Land Court • Office of the Maori Trustee, Hamilton • University of Auckland
The claimants also provided some of the information used in this report.
The report examines the eleven blocks listed above in approximate chronological order of their alienation, or the alienation of their first subdivision, from Maori ownership. Chapters contain narratives of alienation for each block followed by a discussion of issues arising from each alienation. A General Conclusion at the end of the report places the alienations in the wider context of land loss in Hauraki between 1859 and 1986 and discusses the implications of Crown policy for the claimants and their tipuna.
1.4 Profiles of the original titleholders of the Wai 754 blocks
1. Rawiri Taiporutu
Rawiri Taiporutu had interests in six of the Wai 754 blocks:
• Te Pepe • Whangamata 2 and 5 • Kahuwera • Kuaotunu 2 and 5 • Rautawhiri 0 Te Ao
Rawiri derived his interests in the blocks from several different lines of descent and tribal affiliations including Ngati Karaua hapu of Ngati Whanaunga and Ngati Parekaiata hapu of Ngati Hei. Rawiri had a daughter, Harata Noki Taiporutu, and a son, Wiremu Karaka Taiporutu. Harata and Wiremu inherited Rawiri's interests in Whangamata 2 and Rautawhiri 0 Te Ao. Harata and Wiremu also appear in Te Kauanga Whenuakite 6 and may have derived their interests in the block from Rawiri. Rawiri died before the land went through the Native Land Court. Harata and Wiremu also had interests in Kuaotunu ID: Harata independently and through succession to Ruihana Kawhero, and Wiremu through succession to Ruihana Kawhero. Rawinia Taiporutu, Rawiri's wife (possibly his previous wife's sister) had interests in Kuaotunu 1. Te Ataiti Taiporutu inherited Rawinia's interest in Kuaotunu IDI.
2. Matahera Whakatau.
Matahera Whakatau (Ngati Hei) had interests in Kahuwera. Matahera was married to Eparaima Kingi.
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3. Eparaima Kingi.
Eparaima Kingi (Ngatirangi hapu of Ngati Tamatera) and his successors had interests in Waipatukahu, Te Kauanga Whenuakite and Onepu. Eparaima's father, Wiremu Kingi, had interests in a block called Whenuakite which was purchased by the Crown in 1859.
Spelling: Names in this report are generally spelt according to how they were recorded in the relevant documents. As a result, spellings are not always consistent and may differ from spellings used by the named person's descendents.
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Figure 1: Locations ofWai 754 blocks
Coromandel Peninsula
Kuaotunu 1
• Whenuakite • Te Kauanga \ Onepu 1 Te Kauanga W nuakite 1,3,6 Kahuwera Waipatukahu 1 Tapu • Waipatukahu Tapu
Waipatukahu 5
Thames
Whangamata 2 Whangamata 5
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Table 1: Summary of alienations of the Wai 754 blocks
Chapter Block Date sold Area when Price Purchaser sold I. Whenuakite 1859 4166 acres £250 Crown
2. Te Pepe 1871 212a.0r.20p £106 W.B. Jackson
3. Whangamata 5 1873 5889 acres £1300 Crown
4. Whangamata 2 1891 5487 acres £2194.16.0 Crown
5. Kahuwera 1878 426 acres Not known. Mercury Bay Deed SawMill missing Company 6. Kuaotunu lA 1878 1451a.2r.Op Unspecified Crown debts & survey fees Kuaotunu IB 1881 1151 acres £288.15.0d Crown
Kuaotunu IDI 1896 122a.2r.27p £244.19.0 Crown
Kuaotunu2B 1886 (invalid) £120 R. Comer 1894 811 acres £565 Crown Kuaotunu5 1916 3 acres £5 e.G. Bond
7. Te Kauanga 1955 1a.0r.30p £26.8.9 J.S. Clark Whenuakite 1 Te Kauanga 1902 3160 acres £790 Crown Whenuakite 3 Te Kauanga 1962 42 acres £850 L.C. Oliver Whenuakite 6
8. Waipatukahu 1930 4a.0r.38p £380 D. Mackay IB2B Waipatukahu 1 C 1967 30 perches £900 P.L. Phillips
Waipatukahu 1967 8a.3r.20p $4000 Tirau Builders TapuB Waipatukahu 5B 1986 4046 square $15,455 Crown (part only) metres
9. Rautawhiri 0 te ao 1964 31a.2r.Op £450 C.P. Oliver
10. Te Kauanga 1974 4a.1r.16p $1500 Dalgety NZ
II. Onepu IB2B 1986 2a.0r.30p $152,995 Crown
Wai 754 13
CHAPTERl
Whenuakite
Summary Title awarded: Pre Native Land Court purchase Ownership: Ngati Hei tribe. 4 representatives, including Wiremu Kingi (Eparaima Kingi's father) Alienation: 1859 Area: 4166 acres Price: £250 Alienation title: Turton's Deeds, Deed 312, pp.383-384 Plan: ML 15834
1.1 Location
At Whitianga, alongside the eastern bank of the Whenuakite River.4
1.2 Pre-Native Land Court Purchase
In August 1859 the Crown purchased a block called Whenuakite from 'the Chiefs and People of the Tribe Ngati Hei'. Four Ngati Hei representatives signed the deed: Wiremu Te Huia, Ereatara Tinirau, Reupena Tahura and Wiremu Kingi (Eparaima King's father5). The Crown's representative, District Land Purchase Commissioner J ames Preece, signed the Deed on behalf of the Crown and paid £250 for the block. The Ngati Hei representatives acknowledged that the block had been sold to the Crown and declared that they had received the full £250. James Preece and Weedon Adamson, a tutor, witnessed the sellers' signatures.6 The extinguishment of the Native title to the block was notified in the New Zealand Gazette in 1862.7
The Deed described the block as follows:
commencing at Okuau and going in a South Easterly direction to Motutapere, Terangaheketoro and Ruruhurutakina - it then proceeds until it reaches Te Rape, whence it goes in a North Westerley direction outside of the Mangrove trees until it arrives at Okuau. 8
The Deed did not record the block's acreage. However, a survey plan recorded Whenuakite as having an area of 4166 acres.9
4 Turton's Deeds, Deed 312, pp.383-384 5 Conversation with Garrick Cooper, 3 September 1999, Tauranga 6 Turton's Deeds, Deed 312, pp.383-384 7 NZ Gazette, 1862, pp.13-15, cited in David Alexander, The Hauraki Tribal Lands: Part II, vo1.8, Wellington, 1997, p.69 (Wai 100, A8) 8 Turton's Deeds, Deed 312, p.384. 9 Hamilton MLP 15834, cited in Alexander, Part II, p.69
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1.3 Issues arising
Very little is known about the specific circumstances under which the four Ngati Hei signatories signed the deed transferring Whenuakite to the Crown. There is no specific evidence to suggest that the Maori owners of Whenuakite were treated unfairly or improperly by the Crown within the systems operating at the time. However, it is worth examining the environment surrounding this and similar transactions in order to place the sale in its wider context.
Pressure to sell
The general context of sales in the late 1850s has been examined in Robyn Anderson's wide-ranging report on the Hauraki tribes. Anderson has described increased pressure for speedy acquisition of Maori land for settlement in Hauraki during the 1850s and the Crown's reluctance to pay a full and fair price for the land.lO J ames Preece, a man appointed to negotiate with Coromandel Maori because he was well known and trusted by them, was instructed to 'use every endeavour to carry on the purchase of land in the Coromandel district as vigorously as possible'.11 Preece was expected to 'have due regard to the interests of the Natives' but made the most of his influence to encourage Maori to sell in the belief that Hauraki mineral resources could not be developed until Native title to the land was extinguished.12 Anderson writes that Preece 'recommended that the Government buy land at prices that would deprive Maori of its fair value'.13 Other purchase commissioners working in the area advocated the purchase of large blocks on the grounds that Maori were satisfied with the apparently large sums paid although the actual price per acre was low.1 4 The price per acre paid for Whenuakite is unclear given that the Deed did not record the block's acreage.
Tribal consultation and consent
Kate Riddell's study of pre-1865 Crown purchases in Hauraki/Coromandel has highlighted a number of other defects in deeds signed in this period including vague boundary descriptions and little detail recorded about the signatories. 15 Alan Ward has also raised questions about the signing of deeds. In particular, he has questioned the extent to which the wider tribes represented by signatories were consulted about and agreed to permanent alienation of land. Ward describes the willingness of some Hauraki purchase officials to buy land from small groups despite opposition from others within the tribe. He quotes Drummond Hay, Thames District Commissioner during the 1850s, on this point:
10 Robyn Anderson, The Crown, the Treaty and the Hauraki Tribes, 1800-1885, vol.4, Hauraki Maori Trust Board, Wellington, p.302 pp.89-98 (Wai 100, A6; Wai 406, CIS) 11 McLean, Chief Commissioner, to Preece, 7 October 1857, cited in Anderson, vol.4, p.90 12 Anderson, vol.4, p.90 13 Ibid, p.94 14 Ibid. 15 Kate Riddell, 'Pre-1865 Crown Purchases - Hauraki/Coromandel', Waitangi Tribunal Rangahaua Whanui Series, 1996 (Wai 686, A4), pp.5-9, cited in Anderson, p.94
Wai 754 15
The Natives were told distinctly that if any Natives, however few, could prove a sound title to land that they wished to sell, the offer would be entertained; and if opposed by the tribe on no better grounds that that the land should not be sold, such opposition would carry no weight with it; also in the case of the whole tribe being concerned in the offer, some few individuals alone demurring, their title would be fairly investigated, and their rights respected, however much the tribe might insist otherwise. 16
It is not known to what extent the wider tribe were consulted about the sale of Whenuakite in 1859 or if any members of the tribe objected to the transaction.
Crown pre-emption
Whenuakite was purchased at a time when the Crown was a monopoly purchaser of Maori land under the Native Land Purchase Ordinance 1846 which had re-established Crown pre-emption in the purchase and lease of Maori land. 17 Ward has argued that perhaps the 'most serious Treaty breach by the Crown' between 1840 and 1865 'was its jealous opposition to Maori efforts to foster their own economic development through leasehold and joint-venture arrangements',1 8 Ward has suggested that 'the great period of Crown monopoly of land purchase, from 1840 to 1865, worked to marginalise Maori from the commercial economy, which was largely based on owning and letting land, both in rural areas and in the main towns' .19 David Williams has also suggested that 'manipulation' of the 1846 Ordinance by Crown officials 'was a key factor in the conclusion of many deeds of sale by Maori to the Crown'.
Rather than directly enforce the Ordinance against the squatters who had entered into 'informal leases' with Maori hapu in areas such as Wairarapa and Hawke's Bay on the east coast of the North Island, Crown officials put pressure on Maori and insisted that hapu were only entitled to sell their land to the Crown and that they could not earn income from leases to squatters .... [The Ordinance] served to frustrate those hapu who wished to retain their tribal lands but enter the new cash economy by earning rents from leases to sheep and cattle run holders. 2o
Conclusion
It is not known why Whenuakite was sold in 1859. However, the fairness of the transaction under the Treaty is questionable given the general context of increased pressure to sell land, the often low prices paid by the Crown, Crown willingness to purchase in the face of opposition from members of affected tribes, and prohibitions against direct sale or leasing of land to settlers which severely restricted the ability of Maori to engage fully in the growing commercial economy.
16 Hay to Chief Commissioner, 4 July 1861, Turton, Epitome, p.338, cited in Alan Ward, An Unsettled History, Wellington, 1999, p.119 17 Ward, p.99 18 Ibid, p.123 19 Ibid. 20 David Williams, 'Te Kooti Tango Whenua': The Native Land Court 1864-1909', Huia Publishers, Wellington, 1999, p.125
Wai 754 16
Figure 2·. Wh enuakite21
.. ~ ..--.:~~~-.~'. - . ' ...: i ..
21 ML 15834, LINZ, R.unilton
Wai 754 17
CHAPTER 2
Te Pepe
Summary Title awarded: 1867 Ownership: Rawiri Taiporutu and 8 others Alienation: 1871/1872. To W.B. Jackson. Area: 212 acres 0 roods 20 perches Price: £106 Alienation title: Deeds Book DI, pp.779-781 Deeds Book 27D, pp.703-705 Plan: ML323
2.1 Location
Te Pepe (212 acres 0 roods 20 perches) lies inland of the mouth of the Tairua Harbour on the eastern side of the Coromandel Peninsula. It is bordered on its western and northern sides by the Pepe Stream. A survey plan produced in 1866 indicated that the southern portion of the block was timbered.22
2.2 Title investigation
On 3 August 1866 Rawiri Taiporutu, Arama Whakatau, Takeri, Te Kiripua and Ereatara Ranga Whenua applied to have the title of Te Pepe investigated. 23 When Miriama Pehi became aware of the impending title investigation through a notice in the Panuitanga she wrote to Native Land Court to protest against the hearing. Miriama argued that 'Rawiri Taiporutu and his Europeans' had clandestinely surveyed 'Pepe, a portion of Tauruia'. She stated that the land belonged 'to herself' and that she did not wish to have its title investigated.24 A note on the letter stated that Miriama should be told to apply to the Court to have her allegations investigated.25 Miriama, as Miriama Pukukauri, was accepted as a title holder in Te Pepe when the title was investigated in 1867.
The Native Land Court investigated the title to the block on 19 July 1867. Rawiri Taiporutu spoke at the hearing. He stated that he belonged to Ngatimanukarere and Ngatiparekaiata and gave the names of some of those claiming the title: himself, Arama Whakatau, Takerei, Te Kiripua, Ereatara Ranga Whenua, Wiremu Te Huia and Miriama Pukukauri. He declared that he had not ordered the survey of the block - 'the European ordered the survey' - but he had pointed out the boundaries to the surveyor.
22 MLP 323, LINZ, Hamilton 23 Application for Title Investigation, 3 August 1866, Hamilton MLC BOF C101 24 Letter and translation of letter from Miriama Pehi to Native Land Court, 19 June 1867, Hamilton MLCBOFC101 25 Ibid.
Wai 754 18
'The European', he noted, was married to his (Rawiri's) sister. 26 Rawiri could not remember the surveyor's name. 27 The surveyor was not present at the Court hearing, however, a Samuel Harding signed a plan of the block on 18 September 1866.28 Rawiri claimed to have lived on the block for the past three years and recited his genealogical links to the land Karauruia challenged Rawiri's claim to the land and argued that it belonged to himself, not Rawiri, through ancestry. Although Matenga also disputed Rawiri's claim to the land, Anaru Pahapaha supported it and argued that he too had a right to the land through the ancestors named by Rawiri. 29
Judge John Rogan ruled that the counter claimants had not provided sufficient evidence to overturn Rawiri's claim. However, as Rawiri accepted Miriama Pukukauri's claim to the land, her relatives - Karauruia and Tikaokao - should also be included in the title. Judge Rogan also agreed to include Anaru Pahapaha in the block. He awarded the title to the 212 acre block to the following nine claimants and counterclaimants: 30
• Rawiri Taiporutu • Te Kiripua • Wiremu Te Huia • Anaru Pahapaha • Tikaokao • Karauruia • Arama Whakatau • Miriama Pukukauri • Ereatara Ranga Whenua
The Court charged the title-holders court costs of £3.31 No restrictions were placed on the alienation of the block.
2.3 Alienation
On 3 June 1871 all of the owners except Karauruia and Tikaokao sold their interests in the block to William Benjamin Jackson for £106. 32 Rawiri Taiporutu's signing of the Deed of transfer was witnessed by shipwright W. Robinson and licensed interpreter W.J. Young. Young declared that he had faithfully interpreted the deed for all the signatories. 33 Miriama Pukukauri and Tuokioki succeeded to Karauruia and Tikaokao's interests in the block in December 1871. They sold these interests to Jackson on 22 November 1872.34
In December 1873 Miriama Pukukauri and Hori Kerei Tuokioki, provided the Trust Commissioner with statements confirming that they had signed the deed and had received payment for their interests in the block. Tuokioki stated that the other
26 This European may have been John Middlemass who married Ani Urokotia. Verbal communication by Garrick Cooper, Tauranga, 10 March 2000 27 Hauraki MLC minute book 1, 19 July 1967, pp.129-131 28 ML 323, LINZ, Hamilton 29 Hauraki MLC minute book 1,19 July 1967, pp.129-131 30 Ibid, p.133 31 Title Order, 19 July 1867, Hamilton MLC BOF ClOl 32 Deeds Register Book ID p.llO, Deeds Book DI, pp.779-781, LINZ, Auckland 33 Deeds Book DI, pp.779-781, LINZ, Auckland 34 Application No. 21733C, LINZ, Hamilton
Wai 754 19 grantees had signed a similar deed. 35 Tuokioki also declared that he believed he was 'of the full age of twenty one years'. However, E.W. Puckey, the Native Agent who witnessed the statements, wrote a note to Trust Commissioner Dr Daniel Pollen, under Tuokioki's statement. Puckey noted that 'It has been considered necessary in respect of other lands that Tuokioki should have a trustee' .36 Nevertheless, the Trust Commissioner who finally approved the deed, T.M. Haultain, appears to have been satisfied that Tuokioki was of age. He certified the deed in January 1874.37
2.4 Issues arising
Pressure to take the land through the Court?
Rawiri Taiporutu's assertion that 'the European ordered the survey', and Miriama Pehi's allegation that Rawiri and 'his Europeans' clandestinely surveyed the block, raise questions about who organised the survey in 1866 and why the block was taken through the Land Court in 1867. The Native Land Act of 1865 removed Crown pre emption in the sale and leasing of Maori land, prompting a 'rush of interest' in taking land before the Court. 38 Te Pepe may have been caught up in this rush. The Act also required that a block be surveyed before a title could be issued. Alan Ward has suggested that many blocks taken before the Court after 1865 'were already subject to deals with settlers or land agents, who had, in many cases, assisted claimants with the fees and survey costs' .39 Robyn Anderson has argued that surveys could be used by settlers or Crown purchase agents as a lever to purchase land.4o James Mackay, the main Government land purchase agent in Hauraki, outlined this process in 1872:
It will be found in many instances, especially outside the proclaimed Gold Field that the Natives will agree to survey their lands long before they agree to sell them; but the survey once completed the difficulty of defraying the money advanced for the survey will gradually compel them to sell part of it.41
Samuel Harding, with Rawiri's assistance if not with Miriama Pehi's consent, completed the survey of Te Pepe on 18 September 1866. It is not known who paid for the cost of the survey. Harding did not attend the title investigation and no survey lien appears to have been issued for the block. It is possible that the unnamed 'European' who ordered the survey may have initiated and paid for the survey with the intention of leasing or purchasing the land. However, it is also possible that a burdensome private arrangement was reached with the surveyor or his employer regarding the paying back of the cost of survey by the owners. This is, however, purely speculation.
35 Statement by Miriama Pukukauri, 16 December 1873, and Statement by Wini Kerei Tuokioki, 18 December 1873. Papers for Application 1873174. Trust Commissioner Auckland's 1873 Papers, cited in Alexander, Part II, p.86 36 Ibid. 37 Deeds Book 27D, pp.703-705, LINZ, Auckland 38 Alan Ward, National Overview, volume II, Waitangi Tribunal Rangahaua Whanui Series, 1997, p.228 39 Ibid. 40 Anderson, volA, pp.I78-179 41 Mackay letter, 24 January 1872, MA-MLP 1 85/18, cited in Anderson, volA, p.l79
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It cannot be firmly established whether the costs of taking the land before the court, including having the block surveyed, contributed to its sale to Nicholson in 1872.
Adequacy of protective mechanisms
The adequacy of the protective mechanisms incorporated in legislation dealing with the sale of Maori land have often been criticised by historians. In the case of Te Pepe, the most important protection for the Maori owners was the requirement under the Native Lands Frauds Prevention Act 1870 that all sales of Maori land be scrutinised by a Trust Commissioner. The Trust Commissioner was required to ensure that the following legal safeguards were observed before an alienation could be confirmed:42
1. the alienation was not 'contrary to equity and good conscience', 2. the alienation was not in contravention of any trusts, 3. the alienation was not paid for by the sale of liquor or arms, and 4. the Commissioner was satisfied that the vendors had sufficient land remaining for their support.
The trust commissioners have been criticised as being careless in their duties and as lacking the inclination and resources to investigate alienation transactions thoroughly.43 David Alexander has examined the activities of the Auckland Trust Commissioner between 1874 and 1884. He notes that the Commissioner refused very few applications for a certificate and suggests that inquiries made were frequently patchy. Alexander argues that,
the context in which [questions] were asked, and answers were given, worked against any strong sense of protectionism on the part of the Crown, or any desire to leave Maori with a large land base fit for meeting the growing needs of many future generations.44
Jenny Murray has also suggested that the trust commissioners were not encouraged to investigate alienations in any great depth:
It is difficult not to read a certain ambivalence, indeed a half-heartedness, in the general instructions to trust commissioners. The Crown's intention was to protect, but not to protect with much vigour. The opening section warned officers not to throw difficulties in the way of bone fide transactions. They were told to give certificates as a matter of course unless there was reason to believe illegality was present. Their inquiries need not be, in ordinary cases, 'too minute'. The Commissioners were, in effect, cautioned against too much enthusiasm. [footnotes omitted]45
T.M. Haultain, the Trust Commissioner who investigated the sale of Te Pepe does not appear to have examined the circumstances of the sale in any great depth. Although
42 Sections 4 & 5, Native Lands Frauds Prevention Act 1870 43 Ward, National Overview, Vol. II, p.232; Williams, p.212 44 David Alexander, 'Appendix III: The Activities of the Trust Commissioner', in Anderson, vol.4, p.329 45 Jenny Murray, Crown Policy on Maori Reserved Lands, 1840 to 1865, and Lands RestrictedJrom Alienation, 1865 to 1900, Waitangi Tribunal Rangahaua Whanui Series (working paper: first release), Wellington, 1997, p.34
Wai 754 21
Haultain confirmed the deed of transfer signed by Miriama Pukukauri and Hori Kerei Tuokioki in 1872, neither he nor his predecessor Dr Pollen appear to have examined or signed the deed signed by the majority of the vendors in 1871.46 Haultain appears to have been satisfied with the statements from the last two vendors that their co owners had signed a similar deed the previous year. It is not known whether Haultain inquired into the amount of lands retained by any of the vendors. Haultain's usual practice for Thames deeds was to have E.W. Puckey, the Native Agent at Thames, make local inquiries.47 No record of any such inquiry, or any such information provided to Haultain, has been found.
Under the Treaty the Crown had a duty of active protection of Maori. While it incorporated a measure of protection in legislation from 1870 requiring that trust commissioners confirm all alienations to private parties, this mechanism was deeply flawed. Haultain's approval of the Te Pepe alienation is no guarantee that the transaction was not 'contrary to equity and good conscience'.
46 Deeds Book DI, pp.779-781. Deeds Book 27D, pp.703-705, LINZ, Auckland 47 David Alexander, 'Statement of Evidence for the Rauraki Claims: The Operation of the Maori Land Court in Rauraki' (Wai 100, E3; Wai 686,E3), p.58
Wai 754 22
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It 'I' ("/~;..,,::~~ t" .... ~f. l. .• ':.. , .~ I Jjat..r".l 'eu-..4.s j: ....1 48 ML 323, LINZ, Hamilton Wai 754 23 CHAPTER 3 Whangamata 5 Summary Title awarded: 10 January 1873 Ownership: 63 owners: 10 on title, 53 registered Alienation: 1873. Sold to Crown. Area: 5889 acres Price: £1300 Alienation title: Auckland Deed 251 Turton's Deeds: Deed 371, p.496-504 Plan: 3033-3039. Turton's Deed Plans. 3.1 Location Whangamata 5 lies on the south-eastern side of the Coromandel Peninsula. Whangamata 2 lies between Whangamata 5 and Whangamata Harbour. 3.2 Existing research The histories of the Whangamata blocks have been examined in reports by David Alexander, Robyn Anderson and Paul Monin. Alexander has outlined the title investigation and alienation of the Whangamata blocks in The Hauraki Tribal Lands.49 Robyn Anderson has examined the general context surrounding the title investigation and alienations of the Whangamata blocks in her reports for the Hauraki Maori Trust Board and in her evidence to the Waitangi Tribunal (Wai 100).50 Paul Monin has focused on the Whangamata blocks awarded to Ngati Pu. However, his Wai 355 report also covers events surrounding the title investigation of the wider block which are relevant to the Wai 754 claim.51 The account below summarises material contained in these reports but is also augmented by primary research undertaken for the Wai 754 claim. This research focuses upon the interests of Rawiri Taiporutu and his children, Harata Noki and Wiremu Karaka. 3.3 Preparation for title investigation Crown interest in the Whangamata blocks The Whangamata parent block attracted Crown interest during the early 1870s. The block, together with the nearby Hikutaia lands, had strategic value for the Crown. The 49 Alexander, Part II, Wellington, 1997, pp.99-l12 50 Robyn Anderson, 'Statement of Evidence for the Hauraki Claims' (Wai 100, A13; Wai 686, A47), pA8; The Crown, the Treaty and the Hauraki Tribes, 1800-1885, Volume 4, Hauraki Maori Trust Board, Paeroa, 1997 (Wai 100, A6; Wai 406, CIS); The Crown, the Treaty and the Hauraki Tribes, 1880-1980, Volume 6, Hauraki Maori Trust Board, Paeroa, 1997 (Wai 100, A7; Wai 406, C16) 51 Paul Monin, Ngiiti Pit Historical Report: Wai 355, Te Runanga 0 Ngati Pli, 1999 (Wai 355, AI) Wai 754 24 Hikutaia and Whangamata blocks lay to the north of the gold-bearing Ohinemuri and Te Aroha lands of Ngati Tamatera and Ngati Hako. The Ohinemuri owners had strongly resisted the opening up of their lands to mining, European intrusion and Crown control. Robyn Anderson has argued that this stance, 'ran directly counter to the policy and intention of the government which directed its purchase officer [James Mackay] to make those specific blocks, and the goldfield areas in general, his first priority.' 52 David Alexander has similarly argued that the 'Hikutaia and Whangamata blocks were crucial to Mackay's strategy of encircling and putting pressure on the Ohinemuri owners to come to an arrangement with the Crown' .53 Tensions between two tribes residing on the Whangamata lands, Ngati Karaua and Ngati Pu, also played a part in the lead up to the title investigation of the blocks. In his recent report for Ngati Pu, Paul Monin has described how old animosities and at times violent competition between the tribes had led to 'an uncomfortable and tense stalemate'. 'These', he argues, 'were the circumstances in which the Native Land Court thrived' .54 In late 1870 Ngati Pu approached James Mackay for help in taking Whangamata through the Court.55 David Alexander has suggested that while Mackay was employed 'ostensibly by Ngati Pu' it was more likely that he was employed by 'the Seccombe brothers, to whom Ngati Pu had agreed to lease the timber rights' .56 Mackay subsequently entered the Crown's employ as a land purchase agent. The Government agreed to let Mackay complete private dealings he had entered into prior to becoming an agent of the Crown. He thus had a dual role to play in the Hikutaia Whangamata negotiations as the 'employee' of Ngati Pu and as a Crown land purchase officer. 57 Survey In January 1872 Mackay reported to the Minister that he had been instructed by 'the principal owners of the block', presumably his Ngati Pu 'employers', to survey the land and have the title investigated by the Maori Land Court. However, he informed the Minister that he intended to delay the survey until the laying of the Auckland to Wellington telegraph had been completed. Title to the block was highly disputed and Mackay did not wish to disrupt the laying of the line by embarking on a potentially controversial survey of the land. 58 After much negotiation with the disputing parties, Ngati Karaua and Ngati Pu, Mackay arranged the survey of the block and a Court hearing to determine ownership of the land.59 The survey, he told the Minister, was to be the 'first charge on the land, and the successful party or parties are to sell the land 52 Anderson, 'Statement', pA8 53 Ibid, p.23 54 Monin, p.74 55 Ibid, p.82 56 Alexander, 'Operation of the Maori Land Court', p.23 57 Monin, p.85 58 J. Mackay, Auckland, to Minister of Public Works, 24 January 1872, MA-MLP 1885/18, NA, Wellington. Monin, pp.75-77 59 Monin, pp.85-86 Wai 754 25 to the Crown'. Mackay noted that the rate per acre had not been fixed, but that he considered it 'fairly worth 3/- per acre, including the cost of survey' .60 3.4 Title Investigation The Native Land Court heard the competing claims to the Hikutaia and Whangamata blocks in late 1872 and early 1873.61 James Mackay and J.W. Preece represented Ngati Pu. Edward Tole, J.C. Young, G.T. Wilkinson, Mohi Mangakahia and others represented the counter-claimants: Ngati Tamatera, Ngati Hako, Ngati Karaua and Ngati Whanaunga. Tole had carried out a separate survey of the block for the counter claimants.62 On 10 January 1873, after hearings spanning 5 weeks, Judge H.A.H. Monro awarded the title to Whangamata 5 (5889 acres) to Ngati Karaua and Ngati Matau, subject to the Inspector of Surveys approving the survey plan shown in Court. Monro largely based his decision on the locations of the claimants' and counterclaimants' cultivations.63 Monro placed 10 names on the title and registered a further 53 persons as owners under Section 17 of the Native Land Act 1867.64 Rawiri Taiporutu was one of the 10 people listed on the title for Whangamata 5. The other 9 people named on the title were: 65 • Ruihana Kawhero • Anaru Pahapaha • Karaitiana Kihau • Riria Karepe • Haora Tupaea • Hemi Titiparu • Hone Mahia • Timoti Piritaha • Huni Te Weu Rawiri's children, Harata Noki and Wiremu Karaka, were among the 53 people registered as owners under Section 17.66 No restrictions were placed on the block. The Court charged the title-holders court costs of £7. 67 Monin records that both Ngati Pu and Ngati Karaua were dissatisfied with Judge Monro's rulings and considered appealing the judgment.68 Neither appear to have done so. 3.5 Timber lease Whangamata 5 was subject to a 21 year lease of the timber cutting rights on the block to Richard Seccombe and John Carroll Seccombe. James Mackay had negotiated the lease for the Seccombes before he had taken up his role as a Crown land purchase 60 J.Mackay, Auckland, to Minister of Public Works, 22 June 1872, MA-MLP 18811246, NA, Wellington 61 See Alexander, Part II, pp.100-1Ol. 62 Monin, p.86 63 Hauraki MLC minute book 8, pp.161, 163 & Thames Advertiser, 19 December 1872, p.4, both cited in Monin, p.87 64 Hauraki MLC minute book 8,10 January 1873, p.187 65 Title Order, 10 January 1873, Hamilton MLC BOF H866 66 Schedule of Registered Owners, 10 January 1873, Hamilton MLC BOF H866 67 Title Order, 10 January 1873, Hamilton MLC BOF H866 68 Monin, p.88 Wai 754 26 agent. 69 The lease was made in January 1873 for 1600 acres of the 5889 acre block. The Seccombe's purchased the timber for £103, 'plus an annual rental of 1/- "if and when demanded".' The Trust Commissioner certified the lease in November 1873,70 3.6 Alienation J ames Mackay purchased Whangamata 5 for £1 ,300 on behalf of the Crown in January 1873, subject to the continued existence of the timber lease over part of the block,71 The names of Rawiri Taiporutu, Harata Noki and Wiremu Karaka all appear on the deed of sale. Licensed interpreter J.W. Preece witnessed Rawiri and Wiremu's signatures or marks. He also declared that he had correctly interpreted the deed to them and that they had understood the nature of the transaction. Licensed interpreter W.A. Graham similarly declared that he had seen Harata set her mark on the deed. Mr Graham, however, did not record that he had translated the document to Harata before she set her mark upon it,72 The block was declared Waste Lands of the Crown in December 1873,73 The Trust Commissioner certified the sale of Whangamata 5 in June 1885,74 The records relating to the Trust Commissioner's inquiries have not been located and may have been destroyed. It is not known how thorough his inquiries were into the sale of the block or how many of the 63 owners he asked about the transaction. However, Ripeka Titiparu's signature was not obtained until September 1885 when she was paid £20,75 A Trust Commissioner certified the sale of Ripeka's interest in the block in October 1885,76 Succession applications Although Whangamata 5 had been sold in 1873, Judge Scannell issued a succession order in 1889 for Mare Teretiu and Tamara Rotorua to succeed to the interests of their brother Eruera Teretiu in the block,77 Scannell's error may have confused others who considered themselves successors to those who had held interests in Whangamata 5. In 1890 Harata Noki (Rawiri's daughter and one of the 53 people registered as an owner in 1873) applied to succeed to Rawiri's interests in Whangamata 5. At least eight other people also applied to succeed to interests in the block during the 1890s. However, their applications were dismissed on the grounds that the block had already been sold to the Crown.78 69 J. Mackay to Trust Commissioner Auckland, 4 October 1873. Papers for Application 18731120, Trust Commissioner Auckland's 1873 Papers, cited in Alexander, Part II, p.102. 70 Timber Lease, 13 January 1873, Turton's Deeds, Deed 371, pp.SOl-S04 (Alexander ROD T2.143- 146) 71 Alexander, Part II, p.102 72 Turton's Deed No.371, pp.496-501 73 New Zealand Gazette, 1874, pp.I-3 74 Auckland Deed 251, cited in Alexander, Part II, p.l02 75 Ibid. 76 Alexander, Part II, p.l03 77 Succession Order, 15 November 1899, MLC BOF Whangamata S (not numbered) 78 Harata Noki, Application to Succeed, 2 June 1890 & miscellaneous applications, 1889-1894, Hamilton MLC BOF H866 Wai 754 27 3.7 Issues arising Costs of attending Court hearings The Native Land Acts required Maori claimants and counter-claimants to attend title investigation hearings in person. As a result claimants were compelled to abandon their cultivations and other income-producing activities in order to defend their interests in land, regardless of whether they themselves had initiated Court proceedings. The cost of attending Court hearings could place intense pressure on Maori to sell land in order to pay Court charges, interpreters and lawyers fees, survey costs and living expenses. Lengthy hearings, such as that held for the Whangamata blocks, could result in an accumulation of debt which could only be settled through the immediate sale of land.79 As Monin has argued in his Ngati Pu report, the Whangamata hearings took place 'at a critical time in the agricultural year normally devoted to late planting and early harvesting'. 80 The claimants and counter-claimants were thus exposed to the dual costs of taking labour away from cultivations at a critical time while having to purchase supplies while at the hearing. Monin has noted that Mackay issued Ngati Pu £120 in raihana, or rations, in December 1872 to help cover the costs of procuring supplies and accommodation during the hearing. Ngati Pu also faced a survey charge of £464. 81 No record of raihana, survey charges or the legal and interpreters fees incurred by Ngati Karaua and Ngati Matau has been found. However, they too would have been subject to heavy costs in order to secure titles to the Whangamata blocks. As Monin has argued for Ngati Pu, 'Only through selling land could [the titleholders] hope to discharge the debts generated by a judicial process which they had no hope of avoiding.' 82 Although there is no direct evidence of the costs to Ngati Karaua of defending their interests in Whangamata 5 it is possible that costs incurred as a result of the title investigation process may have placed pressure on the title-holders to sell the block to the Crown. Crown pressure to sell The Crown's eagerness to purchase the Whangamata blocks also placed pressure on the newly recognised title-holders. The Crown was eager to purchase land in the area in order to take advantage of its mineral potential and to place pressure on the owners of the mineral-rich Ohinemuri lands. As noted above, prior to the title investigation, James Mackay arranged with the putative owners of the blocks that survey fees would be the first charge on the land and that successful parties would sell some of the land to the Crown. The fairness of this arrangement is questionable given that the interested parties had no choice but to take part in the hearing and incur the associated survey and other costs if they were to have any chance of defending their interests in the blocks. 79 Anderson, vol.4, p.l77 80 Monin, p.95 81 Ibid. 82 Ibid. Wai 754 28 Value of lands obscured Whether the Maori titleholders received adequate compensation for the sale of Whangamata 5 is also open to question. Robyn Anderson has argued that 'As in the case of Nelson and Coromandel, the Government deliberately sought to obscure the full value of [Whangamata 1, 3 and 5] from Maori during negotiations.'83 In seeking to purchase the freehold of the blocks after titles had been issued, the Crown was not willing to pay any more than absolutely necessary for the blocks. In his capacity as Crown land purchase agent, Mackay discouraged private prospectors from moving onto the Whangamata blocks too precipitously in case it encouraged the owners 'to press for a lease arrangement or to increase their selling price' .84 Mackay clearly had a conflict of interest here as Ngati Pu's representative and as the Crown purchase officer. His reluctance to pay any more than absolutely necessary would also have had a negative impact upon his Maori clients' rivals, the Ngati Karaua and Ngati Matau owners of Whangamata 5. The Crown was reluctant to consider less drastic ways of dealing with Maori-owned auriferous lands than complete alienation. Where possible it preferred to purchase the freehold of potential goldfields rather than settle for a cession of mining rights or leasing of the land, two options which may have better suited the Maori titleholders. Mackay described this attitude in 1876 when he wrote that it was too bad to have to pay enormous rents to the natives in the shape of Miners' Rights fees, and furthermore, the freehold ought to be acquired in order to give stability to mining operations and induce the investment of the large capital ready to fall into the [Hauraki] district. 85 By purchasing the freehold of the blocks, the Crown denied the title-holders the potential benefits of participating in the future economic development associated with gold bearing lands. The Crown's unwillingness to offer fair and full prices for land with the potential for a significant rise in value, and its reluctance to consider arrangements other than purchase of the freehold, suggest a lack of good faith in the conduct of one Treaty partner to another in the purchase of Whangam at a 5. However, it should be noted that the gold-bearing potential of the Whangamata blocks proved to be very limited. Although the Crown extended the boundaries of the Hauraki Gold Mining District to include the Whangamata blocks it had purchased in 1873 prospectors failed to find payable gold on the blocks.86 83 Robyn Anderson, 'Goldmining: Policy, Legislation, and Administration', Waitangi Tribunal Rangahaua Whanui Series (working paper: first release), Wellington, 1996, p.40 84 Monin, p.92 85 Cited in Monin, p.91 86 Monin, pp.100-101 Wai 754 29 Figure 4. Whangamata 587 .... ar.> to) 0 .... :> Z ~ ~ til ~, < Q) 't, t- ~ v,) ~ .. ~ <:) .. 't ~ ~ < .. tI c::a CO :E ~ ~ ...... ~ >'1: .. 4( 0') ~ ..." co ca U co ~ ~ "'":> Z It) t() < a::~ - ~ ~ -, ~ ~ ./ ~ ~ ~ ~ ~ ~ 87 Turton's Deed Plans, in Alexander ROD, T3.73 Wai 754 30 CHAPTER 4 Whangamata 2 Summary Title awarded: 10 January 1873 Ownership: 10 names on title, including Rawiri Taiporutu Alienation: 1891. Sold to Crown. Area: 5487 acres Price: £2194 16s Od Alienation title: Auckland Deed 1730, CT 9/63 Transfer No. 12131 Plan: ML 3033-3039 4.1 Location Whangamata 2 is bounded towards the north-east by the Whangamata Harbour and the Wairoa River. It is bordered to the south-east by Whangamata 5. 4.2 Title Investigation See Whangamata 5, above, for an outline of the processes by which the Whangamata parent block was taken through the Native Land Court. On 10 January 1873 Judge Monro awarded a certificate of title for Whangamata 2 (5487 acres) to ten people (Ngati Karaua and Ngati Matau) including Rawiri Taiporutu. Rawiri's fellow title-holders included: • Hone Mahia • Hera Kaimanu • Anaru Pahapaha • Ruihana Kawhero • Hori N gakapa Whanaunga • Riria Karepe • Mere Kaimanu • Hemi Wa • Tukukino In contrast to Whangamata 5, no other individuals were listed as having interests in the land. The order was made subject to the approval of the survey plan by the Inspector of Surveys and the title was not issued until 19 September 1874.88 The Court charged fees of £8 for the hearing. 89 4.3 Restrictions On 10 October 1872 the Crown had issued a proclamation which imposed restrictions upon the sale or lease of a number of Hauraki blocks, including Whangamata 2, under the Immigration and Public Works Act 1871. The proclamation prevented private purchasers from purchasing or acquiring any interests in the affected blocks for two 88 Title Order, 10 January 1873, Hamilton MLC BOF H 1375. Hauraki MLC minute book 8, 10 January 1873, p.187 89 Hauraki MLC minute book 8, 10 January 1873, p.187 Wai 754 31 years on the grounds that the Crown was itself negotiating to purchase the blocks.90 At the title hearing in 1873 the Native Land Court imposed a second set of restrictions upon Whangamata 2 when Judge Monro ordered that Whangamata 2 be restricted from sale or lease for a period of 21 years. In February 1873, one month after the Native Land Court had awarded Whangamata 2 to Rawiri Taiporutu and his fellow title-holders, the owners sought to have the block taken out from under the provisions of the 1872 Proclamation. Hone Mahia (also known as John Davis) stated that he and his fellow title-holders wished to lease the block to Europeans.91 In a report to the Auckland Civil Commissioner, Native Agent E.W. Puckey noted that the 'The object the writers have in view is to cut up a portion of the land lying near the Harbour into a township which would then be leased'. Puckey recommended that the Proclamation be lifted in accordance with the owners' wishes.92 The Civil Commissioner agreed and the Native Minister approved the removal of the Proclamation.93 However, it was found that a plan of Whangamata 2 had not been prepared subsequent to Judge Monro's awarding of the title in 1873. As a result, 'the Proclamation could not properly define the block [and] it was not possible to complete and notify the Proclamation'.94 Alexander notes that 'the plan had apparently still not been prepared when the Proclamation lapsed in October 1874 after its two years in operation' .95 An undated plan of the block is shown on the 1890 deed of alienation. The plan, prepared by surveyor E.F. Tole, bears the ML number 3034 but is a more detailed map than the plan of that number held by LINZ Hamilton.96 4.4 Proposal to sell In 1886 some of the owners applied to have the restrictions imposed at the title investigation removed from the block so that they could sell it to the Crown. A letter signed by Anaru Pahapaha and Ruihana Kawhero explained that the owners had sufficient other lands on which to support themselves: This is an application of ours requesting that the restriction may be removed from our land, Whangamata No 2, 5487 acres, so that we may be enabled to sell it to the Government. We do not care much for that land, and do not live on it. We have a considerable quantity of land at Coromandel and other places to live on. On these grounds we ask that the restrictions may be removed.97 90 New Zealand Gazette No.51, 10 October 1872, p.763 91 Telegram, Hone Mahia, Grahamstown, to Native Minister, 3 February 1873, MA MLP 189118; Telegram, Hone Mahia, Grahamstown, to Native Minister, 12 February 1873, MA MLP 189118. See Alexander's text (Part II) for quoted extracts of correspondence between Hone Mahia and Crown representatives, pp.104-105. 92 Native Agent Thames to Civil Commissioner Auckland, 4 March 1873. MA MLP 189118. Alexander, p.105 93 Alexander, Part II, p.l05 94 Ibid 95 Ibid. 96 Auckland Deed 1730 (Alexander ROD, AI99). ML 3034, LINZ, Hamilton. 97 Anaru Pahapaha, Ruihana Kawhero and others, Tikouma, 20 August 1886. MA MLP 189118, cited in Alexander, Part II, p.107 Wai 754 32 A second letter highlighted the block's advantages: That place would make a very good harbour for ships. It contains the only harbour there and is close to some Crown lands and to the auriferous district. If the Government are willing to purchase the land, we can together arrange the price.98 G.T. Wilkinson, the Government Native Agent, suggested that the letters be treated with some caution. He noted that only two of the owners had signed a letter requesting that the restrictions be lifted. 'I am very doubtful', he commented, 'that they speak for important chiefs like Tukukino, Hori Ngakapa Whanaunga and Riria Karepe who are also owners'.99 Wilkinson suggested that he would need to check with all the owners to make sure that a majority at least wished to have the restrictions removed.1°o Wilkinson also suggested that the 10 names inserted on the title in 1873 were probably there to represent the rest of the tribe, who would also have had ownership rights over the land.1 01 He wrote to the Under Secretary of the Native Department (Land Purchase Branch) on this point in 1887. Wilkinson commented that he thought the block was intended to be a permanent reserve for the two tribes involved: When this block with others in the vicinity passed the Court in 1873 it was intended that this one should be retained as a permanent reserve for the Ngatikaraua and Ngatiwhanaunga tribes, and I think, but I may be wrong, that the 10 grantees were put in the Grant to represent other owners as well as themselves ... .1 02 However, when the issue of ownership was checked with the Native Land Court in 1888 it was found that the ten owners were not trustees for a wider group of owners. H.P. Edger informed the Native Office that while a perusal of the notes of evidence and proceedings at the hearing of the case gives the impression that the names appearing in the Certificate were chosen as representing the tribe .. there is no statement that the natives were to hold [the land] as trustees. 103 The Native Land Court's failure to invoke the trustee provIsIOns of section 17 evidently surprised Wilkinson. Nevertheless, it seems that officials in the Native Department did not think it necessary to inquire into why the Court had acted in this way or to investigate further to see if an error had been made when the title was issued. 98 Ibid. 99 G.T. Wilkinson, Government Native Agent, to Under Secretary Native Department, 3 November 1886. MA MLP 1 189118, NA, Wellington 100 Ibid. 101 Ibid. 102 G.T. Wilkinson, comment on letter from Hone Mahia (John Davis) forwarded to Under Secretary Native Department, Land Purchase Branch, 5 August 1887, MA MLP 1 189118, NA, Wellington 103 H.P. Edger, for the Registrar of the Native Land Court, to T.W. Lewis, Native Office, 5 May 1888, MA MLP 1 189118, NA, Wellington Wai 754 33 4.5 Sale negotiations Note: David Alexander has described the negotiations leading up to the sale of Whangamata 2 in detail. Readers are advised to consult his report for a fuller account of the negotiations including large sections of Native Department correspondence quoted verbatim. 104 The Native Department proceeded with some caution regarding the purchase of Whangamata 2. The Crown initially declined to take up the owners' 1886 offer to sell the block. IOS The mid-1880s was a time of economic depression and the Government had less money available for Crown purchases.106 Nevertheless, officials were interested in the block's gold-bearing potential, particularly after new information emerged about gold discoveries on nearby land in 1888.107 However, as in the case of Whangamata 5, they did not wish to pay the owners more than was absolutely necessary for the block. In May 1888 T.W. Lewis asked Charles Dearle, Clerk to the Mining Warden's Court at Thames, to find out whether the owners would sell to the Crown at a 'reasonable' rate, or failing that, whether they would consent to cede the mining rights and have the block proclaimed as part of the goldfield. 108 A comment from DearIe suggests that the Native Department was reluctant to reveal to the owners just how valuable the block was believed to be. Dearle noted that Hone Mahia (John Davis) was likely to be the most difficult owner to deal with as 'he is living on or near the land and [is] conversant with what is going on in regard to goldmining, in this locality' .109 The other owners listed on the title were scattered. Two lived in Kupata Thames, six lived in different parts of the Coromandel District, one lived at Ohinemuri and one was dead,1lo DearIe proposed that Davis be offered a fee to assist the Crown purchase of the block: I think the best course to pursue would be to consult John Davis in this matter, as I think he has the confidence of the other grantees, and see if some reasonable arrangement for purchase of the block could not be arrived at; failing any satisfactory arrangement with him, you might then try and deal independently with the others, but I think by securing Davis' services and making him a fair allowance for same, that a satisfactory issue could be arrived at. lll The Native Department's apparent reluctance to deal openly with the owners is further highlighted by a communication from the Under Secretary to a Land Purchase Officer on 21 September 1888: 104 Alexander, PartH, pp.105-110 105 Under Secretary Native Department to Native Minister, 12 November 1886, on cover sheet to file NLP 1886/451, MA-MLP 1891/8, NA, Wellington, cited in Alexander, Part II, p.106 106 David Alexander, 'Statement of Evidence for the Hauraki Claims: Summary of Crown Purchase Activity' (Wai 686, F4/5), P/35 & 36 107 Alexander, Part II, p.106 108 Telegram, T.W. Lewis, Native Department, to Charles DearIe, 17 May 1888, MA MLP 1 1891/8, NA, Wellington 109 Charles Dearle, Wardens Office, Thames to T.W. Lewis, Native Department, Wellington, 31 May 1888, MA MLP 1 1891/8, NA, Wellington 110 Ibid. 111 Ibid. Wai 754 34 What is desired is that you should see the owners and ascertain whether they are willing to sell, and the price, and report on the subject as soon as possible ... You will have to be very careful in your negotiations and inquiries not to raise the cupidity of the Natives or give them an exaggerated idea of the value of their land. 112 After some negotiation, Hone Mahia agreed to assist with the purchase for a fee of £80.1 13 The Crown purchased all interests in the block between October and December 1889, including those of Harata Noki/Taiporutu and Wiremu KarakaiTaiporutu, at the rate of 8/- per acre. 114 It paid a total price of £2,194.6.0d for the block. 115 Rawiri Taiporutu had died on or about 4 May 1889 and Harata and Wiremu succeeded to his interests in the block on 29 October 1889.1 16 Harata and Wiremu also succeeded to their uncle Ruihana Kawhero's interests in the block. l17 Wiremu and Harata each signed the deed of sale twice in their capacities as the successors to Rawiri (as Harata and Wiremu Taiporutu) and as the successors to Ruihana Kawhero (as Harata Noki and Wiremu Karaka). Wiremu signed his name to the deed and Harata set her mark upon it. Licensed interpreter G.T. Wilkinson and a Justice of the Peace (signature illegible) declared that the deed had been properly explained to Harata and Wiremu and that they appeared to understand its effect. 118 On the application of a majority of owners in the block the Governor in Council removed the restrictions against alienation of Whangamata 2 on 22 July 1890 under the provisions of the Native Land Act 1888.1 19 As the Crown was the purchaser the Trust Commissioner was not required to examine the transaction. 120 Irregularities It appears that the legislative requirements were not strictly adhered to with regard to the sale documentation. An unsigned note attached to the transfer document states that the 'attestation does not certify that the Native signed in the presence of witnesses' and that the 'Maori translation does not certify to be a true copy of the deed' .121 Although the attestations did not state that the vendors had signed in the presence of witnesses, each attestation was signed by two witnesses who affirmed that the Deed had been translated to, and was understood by, the vendors. 112 Under Secretary Native Department to Land Purchase Officer Butler, 21 September 1888, MA MLP 1 1891/8, NA, Wellington 113 Telegram, Under Secretary Native Department to Native Agent Otorohanga, 12 September 1890, MA MLP 1 1891/8, NA, Wellington 114 Alexander, Part II, pp.109-110 115 Transfer 12131, LINZ, Hamilton 116 Succession Order, 4 May 1889, Hamilton MLC BOF H1375. Transfer 12131, LINZ, Hamilton. Alexander, Part II, pp.109-110 117 Transfer 12131, LINZ, Hamilton. Conversation with Garrick Cooper, 3 September 1999, Tauranga 118 Auckland Deed 1730 (Alexander ROD, A199) 119 Order in Council, 22 July 1890, Hamilton MLC BOF H1375. NZ Gazette, No.41, 24 July 1890, p.829. Section 5, Native Land Act 1888. 120 Section 8, Native Land Frauds Prevention Act 1881 Amendment Act 1888 121 Transfer 12131, LINZ, Hamilton Wai 754 35 Registration of the transfer The registration of the transfer was delayed when it was found that a caveat had been lodged against the sale by Mr Septimus Vickers Coulthard of Awitu. Coulthard argued that he had leased the estate and interests of Rawiri Taiporutu and Ruihana Kawhero in Whangamata 2 (approximately 40 acres) for 14 years from 17 July 1885.1 22 Coulthard was informed that he should take proceedings in the Supreme Court if he wished to have the caveat upheld, otherwise the caveat would expire in 14 days.123 Coulthard failed to take action and the caveat lapsed. The transfer was duly registered and Whangamata 2 was declared Crown Land in January 1891.1 24 4.6 Issues arising Titleholders not trustees for wider tribe Given the size of Whangamata 2 (5487 acres), and the fact that the Native Land Court placed restrictions on the block when it awarded the title to 10 persons in 1873, the Court's failure to use section 17 of the Native Land Act 1867 to include other owners in the title is of concern. Under the Native Land Act 1865 no more than 10 owners were included in titles issued by the Native Land Court. Although many Maori expected such grantees to hold the land in trust for a wider ownership, the Courts interpreted the legislation to mean that the grantees had absolute and independent rights in the land. The 10 named owners were thus entitled to alienate the land without reference to all customary owners. Section 17 of the 1867 Act was introduced as a means of protecting the interests of the wider hapu. Under this amendment, the Court could register all the customary owners on the title. 125 However, Robyn Anderson's study of the experiences of the Hauraki tribes has shown that most judges in Hauraki avoided using section 17. Anderson argues that 'Where the legislation was utilised, it reflected the carving up of larger territories, and apportionment of interests between various iwi as part of the process of selling to the Crown'. The application of this section 'did nothing to assist Maori to hold onto the land, only ensuring a wider distribution of the payments made for it' .126 Judge Monro's application of section 17 to Whangamata 5, a block promptly sold to the Crown, would seem to bear this out. It is not known why Monro did not apply section 17 to Whangamata 2. Crown officials were certainly surprised to find that the 10 named Whangamata 2 owners were not recorded as being trustees for a wider group of people. George Wilkinson's concerns prompted an investigation in 1887 into the nature of the title awarded by Monro. However, Monro's failure to state explicitly that the 10 owners were trustees for others in their tribes meant that when the block was sold to the Crown in 1889 the title-holders and their successors, including Harata and Wiremu Taiporutu, were treated as absolute owners. There are several possible reasons for why Monro failed 122 Caveat, 8 October 1887, attached to Native Agent, Alexandra, to Under Secretary Native Department, 29 November 1889, MA MLP 11891/8, NA, Wellington 123 Under Secretary Native Department to District land Registrar Auckland, 28 July 1890, MA MLP 1 1891/8, NA, Wellington 124 NZ Gazette, No.5, 23 January 1891, p.64 125 Anderson, volA, pp.180-182; Ward, Overview, Vol.II, p.229 126 Anderson, volA, pp.l81-182 Wai 754 36 to apply section 17 to Whangamata 2. He may have been philosophically opposed to the provision (as was Judge Fenton127) or he may have simply forgotten to state that the 10 persons named were trustees. A third possibility is that no other prospective title-holders came forward to be registered. However, given the size of the block and the application of section 17 to other large blocks at the hearing, it must be asked whether Monro should have recorded that the 10 named owners were trustees rather than absolute owners of the block. Furthermore, given Wilkinson's concerns, and H.F. Edger's impression 'that the names appearing in the certificate were chosen as representing the tribe', it could be argued that the Crown had a duty under the Treaty to re-examine the granting of the title to just 10 people. The Crown's interest in the block's potential as gold bearing land, and its later purchase of the block, may have discouraged a deeper investigation of the block's ownership. Although Harata and Wiremu Taiporutu, the claimants' tipuna, were recognised as owners of Whangamata 2, omissions by Monro and the Crown may well have disadvantaged a wider group of customary owners in the block. Restrictions As noted above, Whangamata 2 was subject to two sets of restrictions. The first set of restrictions were derived from the 1872 proclamation against the purchase or acquisition of interests in Hauraki lands by parties other than the Crown. Under section 42 of the Immigration and Public Works Amendment Act 1871, the Crown had the power to gazette a notice of intention to purchase which excluded other buyers from entering into negotiations in specified geographical areas. Notices lasted for two years but could be re-issued after they lapsed,128 Proclamations issued under the 1871 Act in 1872 and 1874 covered the bulk of the Coromandel Peninsula, including Whangamata 2.129 The Crown thus became a monopoly purchaser in Hauraki. As a result, those title-holders who wished to sell their interests were denied the opportunity to negotiate with a range of potential purchasers in order to gain the best price for the land. If they wished to sell they were obliged to sell to the Crown at its lower prices. 130 In the case of Whangamata 2, the owners wished to lease part of the block but were prevented from doing so under the proclamation. Although the proclamation lapsed in 1874 it does not appear that the plan to lease part of the block for a township went ahead before the block was sold to the Crown in 1889. None of the documents examined for this report refer to a township on the block. Had a portion of the block been leased for a township before it was sold to the Crown it seems likely that this would have been mentioned in correspondence between the owners and the Crown during negotiations for the sale of the block between 1886 and 1889. No such references have been found. Whangamata township was, however, eventually established on the eastern coast of the block. The prohibitions against sale or leasing to non-Crown parties in effect re-imposed the Crown's right of pre-emption. However, they were not introduced as a means of protecting Maori from the depredations of unscrupulous settlers. Rather, they were 127 Ward, Overview, vo .. II, pp.228-232 128 Section 42, Immigration and Public Works Act 1871 129 Anderson, vol.4, p.201 130 Ibid, p.302 Wai 754 37 intended to benefit the Crown. 131 The Crown was reluctant to allow land with mining potential to end up in private hands. Its introduction of the prohibitions protected its own interests at the cost of Hauraki Maori. Whangamata was also subject to restrictions placed on the block by Judge Monro in 1873. The placing of restrictions on block titles offered Maori title-holders some protection from pressures to sell land. However, this tended to be of short term benefit to the owners.132 Although Wilkinson considered that the block was intended to be retained as a 'permanent reserve' for the two tribes, alienation restrictions were generally intended to delay alienation rather than create permanent reserves. I33 If, as happened in the case of Whangamata 2, a majority of owners agreed to the lifting of the restrictions, the Governor in Council was empowered to remove them under section 5 of the Native Land Act 1888. Lack of open dealing Native Department correspondence cited above suggests a lack of open dealing on the part of the Crown when it entered into negotiations to purchase Whangamata 2. The attraction of block for the Crown lay in its gold-bearing potential. However, as occurred in the purchase of Whangamata 5, Crown officials were reluctant to discuss Whangamata 2's potential with the Maori owners and to compensate them accordingly. In suggesting in 1888 that Hone Mahia would be the most difficult owner to deal with over the proposed sale of the land, Dearle implied that Hone's awareness of local gold mining activity would alert him to the enhanced value of the land. Dearle presumably considered that the other widely scattered and less informed owners would be more likely to settle for a lesser price. A high degree of absentee ownership of a block tended to foreshadow the future alienation of the land. It would appear that it could also be used by the Crown to pay dispersed owners a reduced price for their interests. The Crown employed a 'divide and conquer' technique to overcome the potential problem posed by Hone Mahia's knowledge of local conditions. By paying Hone a separate fee to induce him to persuade his fellow owners to sell their interests, the Crown undermined the collective interests of the owners. The Native Department Under-Secretary's instruction to a Land Purchase Officer in 1888 that he not 'raise the cupidity of the Natives' also raises questions about the Crown's willingness to negotiate on open and equal terms with Maori land owners. Absentee owners' distance from lands sought by the Crown set them at a disadvantage in negotiations over price. The Crown's willingness to exploit this, and its readiness to pay individual owners to persuade others to sign, suggest a lack of fair dealing between one Treaty partner and another. Reduced opportunities to participate in economic development of goldfield blocks As discussed in the previous chapter, the purchase of the freehold of gold-bearing blocks prevented Maori land owners from participating in the future economic development of the blocks. 131 Ibid, p.201 132 Ibid,p.182 133 Williams, p.21S Wai 754 38 Carelessness in the completion of the Deed The irregularities noted in the transfer documentation are of some concern. The attestations should have stated that each vendor signed in the presence of two witnesses and the Maori translation should have certified that it was a true translation of the Deed. However, it is possible that these irregularities were the result of clerical carelessness rather than any deliberate attempt to mislead the vendors. While the attestations did not affirm that the vendors signed in the presence of the two witnesses, witnesses did affirm that the Deed had been properly explained to each of the vendors and they were fully aware of the effect of the transfer. Wai 754 39 Figure 5. Whangamata 2134 v .r. 3 t .2 ...3 :l 11 ~ .:.:: • 0 .. ~ w -... 0>-: 'Z h "'C 0 0 ~ ~ N 't: \.!:l C:: ~ ::t:: $' --;- , :- .#~ ~ ( 05 W H A NGAMATA I'f 134 From Transfer 12131, LINZ, Hmnilton Wai 754 40 CHAPTERS Kahuwera Summary Title awarded: 1 December 1877 Ownership: 6 owners, including M. Whakatau & R. Taiporutu Alienation: 1878. To Mercury Bay Saw Mill Company. Area: 426 acres Price: Not known. Deed missing. Alienation title: PR 24/327 (Court Order), CT 55/137 Plan: ML4014 5.1 Location Kahuwera is a land-locked block which lies in the middle of the Coromandel Peninsula between Waipatukahu on the west coast and the mouth of the Tairua River on the east coast. The block borders the southern-most point of Te Kauanga Whenuakite 3. 5.2 Title Investigation On 4 December 1877 the Native Land Court awarded Kahuwera, a 426 acre timbered block, to six people including Rawiri Taiporutu and Matahera Whakatau: 135 • Rawiri Taiporutu • Rahera Tanui • Rehara Whakatau • Matahera Whakatau • Mita Whakatau • Erana Te Oneone The title holders were charged £3 in Court fees. The block was brought before the Court by Rahera Tanui and others of Ngati Hei. They claimed the block through their ancestor Tinirau and through their unchallenged use of the land. Rahera explained that the claimants had not cultivated the land because it was in the mountains but they had gathered gum there up until the present time. Rahera declared that no-one had ever interfered with them when they gathered gum and she did not expect anyone to contest the claim. She provided a list of five people whose names should go on the title: herself, Matahera Whakatau, Mita Whakatau, Rehara Whakatau and Erana Te Oneone.136 Rawiri Taiporutu also attended the hearing. He argued that he too had a valid claim to the land. Rawiri stated that he belonged to Ngati Parekaiata and that he had an interest in the block through ancestry and use of the land. Rawiri explained that he too was descended from Tinirau. He described his whakapapa through five generations back to Tinirau and his wife Parekaiata. Rawiri further declared that he 135 Title Order, 4 December 1877, Hamilton MLC BOF C158 136 Coromandel MLC minute book 3,3 December 1877, p.12 Wai 754 41 had dug gum on the block until 1875, no-one had challenged his right to do so and he had not paid the claimants any of the money he received for the gum. As part of his evidence, Rawiri described his relationship with Arama Whakatau, the father of some of the claimants. Rawiri had lived for a time with Arama at Waiwaha and Ohoka. During this time the two men had quarrelled and in the course of the dispute had argued about land. The dispute had gone on for some time but they had later resumed their friendship and dug gum together. When fighting broke out with Ngati Maru over Whangamata Arama remained at Whitianga but Rawiri went to Hauraki. Rawiri did not return to Whitianga until Arama had died due to the 'trouble about Whangamata' .137 Rawiri explained that his name was not in any of the adjoining blocks because he had been unable to attend the relevant hearings. He was particularly concerned that his name had been omitted from titles issued for the neighbouring blocks Oteao 1 and 2. Rawiri had sold timber from Oteao 1 and 2 and argued that Arama Whakatau had made no objection: the implication being that Arama accepted that Rawiri had a valid claim to the land through ancestry and usage, and by extension, a valid claim to Kahuwera through ancestry and usage. 138 Mita Whakatau opposed Rawiri's claim to Kahuwera. He argued that Rawiri had no claim to Kahuwera through Tinirau. He also declared that he was not aware that Rawiri had dug gum on the block. If he had known this he would have demanded a royalty from the proceeds. Furthermore, he denied that Rawiri had any right to sell the timber on Oteao and stated that he and his father (Arama) had objected to Rawiri's action. Mita stated that Rawiri had given Arama a horse as recompense for selling the timber 'by stealth'. He acknowledged that Rawiri had lived with Arama but stated that he had done so as a guest. 139 Rehara Whakatau and Rahera Tanui also opposed Rawiri's claim to the land and denied that he was descended from Tinirau. 140 Wiremu Te Huia also gave evidence at the hearing.141 He was not a claimant himself but he knew the parties involved and had some knowledge of their relationship with the land in question. Wiremu agreed with the general testimony offered by Rahera and Mita but he also accepted that Rawiri had an interest in the land through Tinirau. Although he did not know how Rawiri was linked to Tinirau his elders had spoken of the connection. Wiremu declared that he had not seen Rawiri dig gum on the block but believed his testimony on this point. With regard to the Oteao timber sales, Wiremu stated that Rawiri had given Arama the horse as part payment for the timber and that Rawiri had given a second payment of flour, rice and tobacco to the whole of Ngati Hei and Ngati [illegible]. He suggested that the claimants and counterclaimants go into Kahuwera together. 142 137 Ibid pp.12-14 138 Ibid, pp.15-16 139 Ibid, pp.16-17 140 Ibid, pp.18-20 141 A Wiremu Te Huia was one of those who signed the 1859 Whenuakite deed of sale. See Chapter 1. 142 Coromandel MLC minute book 3,3 December 1877, p.14 Wai 754 42 Anaru Pahapaha argued that he too should be included as a title holder in the block. In contrast to Rawiri who described his relationship to the land and other owners in some detail, Anaru based his claim on ancestry alone. He admitted that he had never been on the land before the Court but argued that if Tinirau was an ancestor in Kahuwera then he had an interest in the block. Anaru commented that he had not known anything about this ancestor until told about him by Rawiri. 143 The Judge was not convinced by Anaru's case. However, he evidently felt that Rahera's party and Rawiri had established valid claims to Kahuwera. On 4 December 1877 he awarded the block to Rawiri and the five members of Rahera's party. No restrictions were placed on the block. No reference was made to any survey costs.1 44 5.3 Timber lease The owners appear to have granted a timber lease on the block to the Mercury Bay Sawmill Company on 1 July 1878. On 18 September 1878 solicitor E.T. Dufaur forwarded the lease to the Chief Clerk of the Auckland Native Land Court with a request that he assess the duty payable under the Native Lands Duties Act 1873. 145 According to notes made on Dufaur's letter the deed was placed in a safe, possibly on 28 February 1883.146 No other documentation regarding the timber lease has been found and it is not known under what conditions the lease was granted or what payment was made to the owners. 5.4 Alienation The circumstances surrounding the sale of Kahuwera are also unclear. No deed of sale or other documentation signed by the owners has been located. Land Information New Zealand holds a court order signed by Judge E.W. Puckey of the Native Land Court in place of a deed of sale. On 15 July 1889 Puckey issued an order which declared that the Mercury Bay Sawmill Company had purchased Kahuwera from the Maori title holders: The Court doth order and declare that the land in the District of Coromandel in the Provincial District of Auckland in the Colony of New Zealand known as Kahuwera containing four hundred and twenty six acres a little more of less described and comprised in the Memorial of Ownership of the said land issued by this Court dated the fourth day of December 1877 shall from and after the day of the date of this order be held in freehold tenure by the Mercury Bay Sawmill Company Limited of Auckland in the Provincial District of Auckland aforesaid the purchaser of the said land from the native owners thereof named in the said Memorial of Ownership. 147 143 Ibid, p.14 144 Ibid, p.23 145 E.T. Dufaur,Auckland, to Chief Clerk, Native Land Court, Auckland, 18 September 1878, Hamilton MLC CCF C352 146 Unsigned note on letter, Hamilton MLC CCF C352 147 Judge E.W. Puckey, Court Order, 15 July 1889, Hamilton MLC BOF C158. PR 24/327 LINZ Hamilton Wai 754 43 On 30 September 1889 a certificate of title based on the order was issued to the Mercury Bay Sawmill Company.148 Neither the order nor the certificate of title refer to the amount the block was sold for, whether the transaction was properly explained to the owners or whether they actually received the money for the block. The original deed of sale is, however, referred to in documents found in the Hamilton Maori Land Court closed correspondence files. On 29 March 1889 E.T. Dufaur informed the Registrar of the Native Land Court that he was forwarding to the Court 'the instrument' which transferred the Kahuwera block from R. Tanui and others to the Mercury Bay Saw Mill Company. Dufaur asked that the Registrar have the document registered on the Court Rolls of the Native Land Court.149 A second letter to the Registrar written on 27 June 1889, signed by E.T. Dufaur and Chas MacCormick, refers to a deed dated 4 October 1878 which transferred ownership of the block from 'R. Tanui and others to the Mercury Bay Sawmill Company'. The letter noted that the Trust Commissioner had approved the transaction: All duties having been been paid on the instrument named in the margin hereof [4 October 1878, R. Tanui and others to the Mercury Bay Sawmill Company, transfer of Kahuwera block Whitianga] and such instrument having duly passed the Trust Commissioner I have the honour to request that you will cause an order of freehold tenure to issue to the Mercury Bay Sawmill Co. Ltd for the land comprised in the said instrument. 150 The Auckland Trust Commissioner's records show that the Commissioner, T.M. Haultain, examined and approved the sale on 30 April 1879. The record book does not contain payment details and does not record what inquiries were made into the transaction. 151 According to notes on Dufaur's 1889 letter, H.P. Edger was requested to examine the deed on 29 June 1889. Presumably having examined the document, Edger signed his initials on the letter on 4 July 1889. Judge E.W. Puckey appears to have directed that the block be registered: his undated signature appears under the single word 'Register'. On 15 July 1889, the day Judge Palmer issued his Court Order regarding ownership of the block, Edger recorded on the letter that endorsements of freehold tenure had been made on the memorial. 152 It is not known why Dufaur requested the deed be registered on the Court rolls more than a decade after the deed of sale had been confirmed by the Trust Commissioner. 148 CT 551137, LINZ, Hamilton 149 E.J. Dufaur, Auckland, to E. Hammond, Registrar Native Land Court Auckland, 29 March 1889, Hamilton MLC CCF C352 150 EJ. Dufaur & Chas MacCormick to Registrar Native Land Court Auckland, 27 June 1889, Hamilton MLC CCF C352 151 Auckland Trust Commissioner Bound Record Book, 1878-1885, BBOP 10115 la, NA, Auckland 152 Notes on letter, EJ. Dufaur & Chas MacCormick to Registrar Native Land Court Auckland, 27 June 1889, Hamilton MLC CCF C352 Wai 754 44 5.5 Succession applications Two succession applications submitted to the Court after Puckey issued his order suggest that successors of the blocks' original owners were not aware that the block had been sold in 1878. In 1897 Renata Kingi applied to the Native Land Court to succeed to Matahera Whakatau's interests in the block. The application was adjourned sine die in 1899. No further action appears to have been taken and it was recorded on the form that the land had been sold.1 53 In March 1908 Harata Noki Taiporutu wrote to the Native Land Court about Kahuwera. 154 She asked that her application for succession be gazetted in order to make the alleged purchaser of the block produce the deed of sale. The Registrar had apparently refused to gazette the application on the grounds that the land had been sold. 155 The Chief Judge, Jackson Palmer, inquired into the matter but was informed by the Registrar of the Court that a 'transfer from all the owners to the Mercury Bay Sawmill Company of Auckland has been registered', and that 'An Order for freehold tenure has also been issued to the Company' .156 Judge Palmer subsequently asked a Mr Waitai to reply to Harata that 'the deed to the Mercury Bay Sawmill Company is registered in the Land Transfer Office in Auckland and can be seen there' .1 57 No further correspondence has been found regarding this issue. 5.6 Issues arising Adequate compensation? Given that the deed of sale is mlssmg few conclusions can be drawn about the adequacy of compensation paid to the owners. While the Trust Commissioner T.M. Haultain approved the transfer, and in doing so affirmed that the alienation was not 'contrary to equity and good conscience' and was not paid for by the sale of liquor or arms, his enquiries, as discussed in Chapter 2, were unlikely to have been extensive. Robyn Anderson has examined the leasing and sale of a range of Hauraki timbered blocks in the 1870s. Anderson writes that timber leases typically allowed saw milling companies to enter land, remove the timber, re-route water-courses and build access roads. While she notes that the value of Hauraki timber purchased privately cannot be known, Anderson argues that Clearly, ... an increasingly valuable resource was acquired very cheaply by Pakeha companies in this period. At the same time, the freehold of such land was greatly devalued, in terms both of the stripping of its assets and the environmental impact, especially on rivers. 158 153 Succession Application, 7 Hurae 1897, Hamilton MLC BOF C158 154 Harata Noki Taiporutu, Kuaotunu, to Native Land Court, 20 March 1908, Hamilton MLC CCF C158 155 Translated summary of Harata Noki Taiporutu's 20 March 1908 letter, on file cover page, 26 March 1908, Hamilton MLC CCF C158 156 Notes on file cover page, Chief Judge J. Palmer to AJ. Holland, Registrar Native Land Court, 31 March 1908, and Holland to Palmer, 6 April 1908, Hamilton MLC CCF C158 157 Notes on file cover page, Chief Judge J. Palmer to Mr Waitai, 13 April 1908, Hamilton MLC CCF C158 158 Anderson, volA, p.240-241 Wai 754 45 While Anderson's findings may apply to the leasing and sale of Kahuwera in 1878, the lack of surviving documentation means that no firm conclusions can be drawn on the fairness or otherwise of the transactions. Successors' awareness of the alienation Given that the deed of sale is missing and the signatures and consents of the owners to the sale cannot be checked, Harata Taiporutu and Renata Kingi's applications to succeed in the block raise some questions about the sale of the land. Again, however, firm conclusions cannot be drawn about their lack of awareness of the alienation. While it is possible that those they wished to succeed to may not have signed the deed, it is equally possible that Harata and Renata were simply unaware that the sale had occurred. Their applications were submitted in 1897 and 1908, over two decades after the alienation. Wai 754 46 Figure 6: Kahuwera159 .., .. '-:.-'\; ~- !. t',.· • -;- . ~ .. -' '" , "., ;i. ~o . , " - -;. '," .. \, . i . ~," 4 t:. ...., ,'~"1' ...... ~ ... ~\ 'I. . ,.' l, ,0 ;' '1' . ! 159 ML 4014, LINZ, Hunilton Wai 754 47 CHAPTER 6 Kuaotunu Summary - Kuaotunu 1 Kuaotunu lA Kuaotunu lB Kuaotunu lDl Title awarded: 1878 1881 1891 Ownership: 13 owners 11 owners 6 owners H. Taiporutu H. Taiporutu H. Taiporutu Alienation: Crown 1878 Crown 1881 Crown 1896 Area: 1451a.2r.Op 1151 acres 122a.2r.27p. Price: To cover debts, £288.15.0d £244. 19.0d advances, survey fees Alienation title: Deed not located Auckland Deed 1361 Auckland Deed 1931 PR 25/50 Transfer 18271 Plan (ML): 3549 (1) 3549 3549c Summary - Kuaotunu 2 & 5 Kuaotunu2B Kuaotunu5 Title awarded: 1889 1878 Ownership: 5 owners Rawiri Taiporutu & 1 other Rawiri Taiporutu Alienation: Invalid sale to R. Comer 1886. 1916 transfer of H. Taiporutu's Purchased by Crown in 1894 at successors' interests to e.G. Bond. forced auction. Declared no longer Maori land 1968 Area: 811 acres 3 acres Price: Comer: £120. Crown: £565. £5 Alienation title: Transfer 15585 Transfer 97146 Plan (ML): 3549 (4) 3550 (3) 6.1 Locations The Kuaotunu blocks lie to the east of Whangapoua Harbour on the north-eastern side of the Coromandel Peninsula. 6.2 Existing research The account below focuses upon the interests of Rawiri Taiporutu and his children Harata Noki Taiporutu and Wiremu Karaka Taiporutu. See David Alexander's Kuaotunu block histories in The Hauraki Tribal Lands: Part I for a broader overview of proceedings. See also Grant Young's comprehensive account of the histories of Kuaotunu 1 and 2 in his report on the mining township at Kuaotunu. 160 160 Grant Young, 'The Mining Township at Kuaotunu' (Wai 686, J7), October 1999 Wai 754 47 CHAPTER 6 . Kuaotunu Summary - Kuaotunu 1 Kuaotunu lA Kuaotunu lB Kuaotunu lDl Title awarded: 1878 1881 1891 Ownership: 13 owners 11 owners 6 owners H.Taiporutu H. Taiporutu H. Taiporutu Alienation: Crown 1878 Crown 1881 Crown 1896 Area: 1451a.2r.Op 1151 acres 122a.2r.27p. Price: To cover debts, £288.15.0d £244. 19.0d advances, survey fees Alienation title: Deed not located Auckland Deed 1361 Auckland Deed 1931 PR 25/50 Transfer 18271 Plan (ML): 3549 (1) 3549 3549c Summary - Kuaotunu 2 & 5 Kuaotunu2B Kuaotunu5 Title awarded: 1889 1878 Ownership: 5 owners Rawiri Taiporutu & 1 other Rawiri Taiporutu Alienation: Invalid sale to R. Comer 1886. 1916 transfer of H. Taiporutu' s Purchased by Crown in 1894 at successors' interests to C.G. Bond. forced auction. Declared no longer Maori land 1968 Area: 811 acres 3 acres Price: Comer: £120. Crown: £565. £5 Alienation title: Transfer 15585 Transfer 97146 Plan (ML): 3549 (4) 3550 (3) 6.1 Locations The Kuaotunu blocks lie to the east of Whangapoua Harbour on the north-eastern side of the Coromandel Peninsula. 6.2 Existing research The account below focuses upon the interests of Rawiri Taiporutu and his children Harata Noki Taiporutu and Wiremu Karaka Taiporutu. See David Alexander's Kuaotunu block histories in The Hauraki Tribal Lands: Part I for a broader overview of proceedings. See also Grant Young's comprehensive account of the histories of Kuaotunu 1 and 2 in his report on the mining township at Kuaotunu. 160 160 Grant Young, 'The Mining Township at Kuaotunu' (Wai 686, J7), October 1999 Wai 754 48 Figure 7: Kuaotunu tA, tB, tDt, 2B, 5161 PACIFIC OCEAN E A. Kuaotunu lA B. Kuaotunu IB C. Kuaotunu 2B D. Kuaotunu IDl E. Kuaotunu 5 MERCURY BAY 161 Based on plan of Kuaotunu blocks in Young, p.5 Wai 754 49 6.3 Crown purchase of interests in Kuaotunu In July 1876 the 'Pitoone Block', later known as Kuaotunu 1 and 2, was surveyed and judged to have an area of 4642 acres. In April 1878, having purchased a number of interests in the Kuaotunu block, the Crown applied to the Native Land Court to have its interest defined. 162 The following month the Crown placed a notice in the New Zealand Gazette stating that it had paid money for interests in 'Pitoone, Kuaotunu or Waimoka', an area of approximately 9,528 acres, and was negotiating the purchase of the block.l63 Under the 1877 Native Land Purchase Act, once the Crown had declared its interest in a block of land in this way private parties were barred from negotiating with the Maori landowners. 164 6.4 Title Investigation A Kuaotunu block of 4886 acres was subsequently brought into the Native Land Court on 3 July 1878.1 65 A 'Pitoone' block had also been called that day, but the case was postponed when it was found that the plan of the block was not available. Ruihana Kawhero claimed the Kuaotunu block on behalf of his tribe Ngati Karaua through the ancestor Ponui. He produced a plan of the block and presented the Court with a list of names to go on the title. However, several other Maori present challenged his list. 166 The plan placed before the Court also came under attack. Reupena Tahura declared that he had been unaware that a survey had been carried out and argued that representatives from both Ngati Hei and Ngati Karaua should have been present to explain the boundaries to the surveyor. Ruihana Kawhero subsequently rejected the plan he had shown the Court. He explained that the plan differed from that which he had seen at Kapanga and stated that the plan before the Court showed land which was not his. He did not know who had surveyed the land. He declared that the plan was in Mr Mackay's office and that he had been deceived by Mr Preece. Ruihana proposed that the case be dismissed until a new survey of the block could be carried out. The Court agreed to delay the hearing and ordered that the case be postponed. 167 The title investigation resumed on 9 September 1878. At this hearing Ruihana Kawhero claimed the land for Ngati Karaua hapu of Ngati Tamatera through a different ancestor, Ahikaroa. He also stated that he had houses and cultivations on the block. He had lived there 'till the time of Hauhauism, sometime after the Waikato war' and no-one had interfered with him while he lived there. Ruihana again submitted a list of owners to the Court. On this occasion Hohepa Mataitaua argued that part of the block belonged to him and his party, also of Ngati Karaua hapu of 162 David Alexander, The Hauraki Tribal Lands: Part I, vo1.8, Wellington, 1997, p.234 163 New Zealand Gazette, No.44, May 16 1878, pp.600, 607 164 Section 1, Native Land Purchase Act 1877 165 Application to have Crown Interests Defined, 8 April 1878, Hamilton MLC BOF C507 (1); Hauraki MLC minute book 10, pp.321-323, cited in Alexander, Part I, pp.234-235 166 Anaru Pahapaha, Henare Whakarongohau, Maihi Te Manu and Penearnine Tanui: Alexander, Part I, p.234 167 Ibid. Wai 754 50 Ngati Tamatera. Ruihana accepted the validity of Hohepa's claim and the Court agreed to divide the block between the two parties. 168 The Court awarded Ruihana's party Kuaotunu 1 (3111 acres) and Hohepa's party Kuaotunu 2 (1367 acres). Although Rawiri Taiporutu's name was on the list of Kuaotunu 1 owners submitted to the Court by Ruihana Kawhero his name was not included in the list of owners subsequently issued by the Court. 169 It is not known why he was excluded from this block. According to evidence given at a Court hearing in 1890, Rawiri had houses on the block and had relatives buried in the urupa there.170 However, while Rawiri's name was not included in the list of Kuaotunu 1 titleholders, his daughter Harata, and his wife Rawinia Taiporutu (possibly his previous wife's sisterI71 ), were included in the block. Rawiri was included as an owner in Kuaotunu 2. During a partition hearing in 1891 Rawiri's daughter Harata gave evidence that Rawiri 'had no claim to No.2, but that he was included because he conducted the case for [her] mother'.172 The full lists of owners of the blocks were as follows: Kuaotunu 1: 173 3111 acres 13 titleholders • Ruihana Kawhero • Peeti Patene • Ripeka Rangi Tokona • Wi Patene • Karaitiana Kihau • Katerina Hauruia • Hohepa Parone • Taumaha Kara174 • Rawinia Taiporutu • Wikitoria Rangipihi • Maraea Ripeka • Harata Taiporutu • Te Reiti Maihi Kuaotunu 2: 175 1367 acres 10 titleholders • Rawiri Taiporutu • Kawhena Rangitu • Anaru Taipa • Mohutu • Ripeka Titiparu • Wiremu Karaka • Katerina Hauruia • Hemi Wa • Hohepa Mataitaua • Hawea TeAhu On 14 September 1878 the Court also awarded Rawiri Taiporutu an interest III Kuaotunu 5: 176 • Kuaotunu 5: 3 acres 2 titleholders: Rawiri Taiporutu and Takerei Katipo 168 Hauraki MLC minute book 11, 9 September 1878, pp.346-347 169 Extracts from Hauraki MLC minute book 10, p.32I, July 3 1878 & minute book 11, p.346, 9 September 1878, Hamilton MLC BOF C507 (1). 170 Young, p.53 171 Conversation with Garrick Cooper, 3 September 1999, Tauranga 172 Young, p.59. 173 Order of the Court, 14 September 1878, Hamilton MLC BOF C512 174 An adopted daughter of Rawiri Taiporutu: conversation with Garrick Cooper, 3 September 1999, Tauranga 175 Order of the Court, 10 September 1878, Hamilton MLC BOF C508 176 Title Order, 14 September 1878, Hamilton MLC BOF C329/C511 Wai 754 51 Kuaotunu 5 was cut out of Kuaotunu 3 (4916 acres) and awarded to Rawiri and Takerei at the request of Henare Whakarongohau of Ngati Hei. Henare claimed Kuaotunu 3 for himself and his co-claimants from the ancestor Te Repongaiwaho. He did not say why he asked that Kuaotunu 5 be cut out for Rawiri and Takerei or explain how they derived their right to the land. No restrictions were placed on the block. 177 6.5 Kuaotunu lA Partition and transfer to Crown Four days after the title to Kuaotunu 1 had been awarded to Ruihana Kawhero's party, the Crown's interest was partitioned out ofthe block as Kuaotunu 1A:178 • Kuaotunu 1A: 1556 acres. Awarded to the Crown. • Kuaotunu 1: 1344 acres and 211 acres (two separate pieces of land). Awarded to the Maori title holders of the parent block. The area awarded the Maori title-holders was not given a new number. There was some dispute over the boundary line between Kuaotunu 1 and 1A. The line needed to be surveyed before the titles to the blocks could be issued. However, the Maori owners objected to some aspects of the survey and prevented the surveyor, Edward Dean, from completing his work. It seems that Dean's boundary line came out at a point on the sea coast which cut Kerehama's cultivation out of Kuaotunu 1. It is not known how the dispute was resolved. However, a completed survey plan was approved in 1879 and the areas were revised as follows: 179 • Kuaotunu 1A: 1451 acres 2 roods • Kuaotunu 1: 1558 acres (1361 acres and 197 acres) The Crown received 1A as payment for debts incurred by the titleholders. During a Court hearing in 1890 regarding the events of 1878, Hohepa Mataitaua stated that the land was transferred to the Crown to cover Rawiri's debts, survey costs and money given to Hohepa by the Crown: The land passed the Court in 1878. Mr Mackay appeared on behalf of the Government, in consequence of a debt. We applied for a partition of the part belonging to the Government ... There was a selection made of the people who were to convey it to the Government, and I was appointed by my elders to do so. I went into a separate room in a part of the building in the old Courthouse at Shortland, and the portion was set apart to pay for Rawiri's debts, and for the 177 Alexander, Part I, p.285 178 Hauraki MLC minute book 12,14 September 1878, p.9 179 Alexander, Part I, p.237 Wai 754 52 surveys, and for the money that was given to me on behalf of the Government. The money given me was £300. 180 Survey charges The survey charges for the Kuaotunu and Pitoone plans were quite substantial. As David Alexander has noted in his block history, On 9 September 1878, the same day that the Court opened its adjourned hearing, Percy Smith, the Chief Surveyor in Auckland, informed George Wilkinson, a land purchase officer in Thames, that there was a survey charge of £123-3-0d owing on a Kuaotunu plan, and a charge of £117-6-0d owing on the Pitoone plan.... In addition the following day Percy Smith referred in a telegram to James Mackay to a sum of £156-1O-0d already paid, which may have been cash advances to the owners of Kuaotunu. 181 6.6 Kuaotunu IB Partition and transfer to Crown The Crown had acquired half of the parent Kuaotunu 1 block in 1878. However, it soon cast an acquisitive eye over that part of the land which had remained in Maori ownership. The Crown's land purchase agent George Wilkinson obtained the signatures of seven owners of this 'very good land' in 1880.182 By March 1881 the Crown had purchased the interests of 11 of the 13 owners of Kuaotunu 1 for a total of £288.15.0d. Wilkinson hoped to purchase the two outstanding interests in the block before the block was taken through the Court to have the Crown's interests defined. However, the two remaining owners, Maraea Ripeka and Katerina Hauruia, evidently declined to sell. On 12 December 1881 the Court divided the 1361 acre part of Kuaotunu 1 between the Crown and the non-sellers: 183 • Kuaotunu IB: 1151 acres. Awarded to the Crown. • Kuaotunu 1C: 210 acres. Awarded to Maraea Ripeka and Katerina Hauruia. George Wilkinson, in his capacity as a licensed interpreter, and a Justice of the Peace witnessed the signing and marking of the deed by the sellers, including Harata Taiporutu. They affirmed that the transaction had been explained to the sellers and that they appeared to understand its nature.1 84 Kuaotunu IB was declared Crown land the following year. 18S 180 Hauraki MLC minute book 24, 8 July 1890, p.87 181 Alexander, Part 1. p.235 182 Land Purchase Officer Thames to Under Secretary Native Land Purchase Department, l3 January 1880, MA-MLP 1880/58, cited in Alexander, Part I, p.237 183 Hauraki MLC minute book 14,12 December 1881, p.7 184 Auckland Deed l361 (Alexander ROD Al38) 185 NZ Gazette, No.30, 30 March 1882, pp.498-501 Wai 754 53 6.7 Kuaotunu lA and IB: issues arising The Crown acquired the 1451 acres of Kuaotunu lA through several rather dubious mechanisms: purchasing interests before the land passed through the Native Land Court, providing cash advances to the owners, and taking land in lieu of survey costs. The Crown also benefited from legislation which gave it the status of a monopoly purchaser in Kuaotunu and which enabled it to take land through the Court at its own convenience. Each of these mechanisms operated in favour of Crown interests rather than those of Maori land owners. The Crown as a monopoly purchaser As was the case in the alienation of Whangamata 2, the Crown had the advantage of being a monopoly purchaser when it acquired Kuaotunu lA. However, it enjoyed this advantage under different legislation. Section 2 of the Government Maori Land Purchases Act 1877 gave Government the authority to bar private purchasers from intervening in negotiations where the Crown had purchased interests in a block. 186 The Crown declared its interest in the Kuaotunu block in this way in May 1878. 187 If the Kuaotunu owners wished to sell their interests they had no choice but to accept the Crown's price for the land. The legislation served Crown interests rather than the interests of Maori landowners. Timing of Court hearings Under section 6 of the Native Land Act Amendment Act 1877 the Crown was entitled to purchase interests in Maori land before it had passed through the Native Land Court. Unlike private purchasers who had to have bought all of the interests, it could then apply to the Court to have its interests defined and partitioned OUt. 188 The Crown could thus decide when land should be taken through the Court, without any regard to whether the timing suited the interests of the Maori rightholders. The Crown initiated the alienation hearings in this way for both Kuaotunu lA in 1878 and Kuaotunu IB in 1881. Cash advances As described above in Hohepa Mataitaua's testimony to the Court in 1890, Kuaotunu lA was set apart for the Crown to cover survey costs and Government advances. Robyn Anderson has criticised the Crown's practice of providing cash advances or 'raihana' to Maori in advance of land passing though the Land Court as leading to 'a slow, insidious loss of control' by Maori over their lands. She argues that Crown agents succeeded in locking Maori right-holders into owing the Crown substantial amounts which, after the early 1870s , could only be paid off in land - the sole major asset remaining to Maori as their mineral and timber resources had been 186 Alexander, 'Operation of the Native Land Court', pAO 187 New Zealand Gazette, NoA4, 16 May 1878, pp.600, 607 188 Alexander, 'Operation of the Native Land Court', pp.38-39 Wai 754 54 almost all leased, and as the income from miners' rights and fees from the Thames gold field began to drop.189 Crown agents such as James Mackay provided Maori rightholders with goods-orders they could use in local stores and with cash advances to cover survey charges. Maori were often unaware of the extent of their indebtedness until the time came for Crown interests in their land to be defined. Rightholders later argued that the Crown had exploited the indebtedness resulting from the raihana, or 'rations', system of advances. In 1882 Rawiri Taiporutu, the Wai 754 claimants' tipuna, condemned the practice. Rawiri complained that Mackay had scattered money amongst rightholders 'like maize to the fowls', and argued that they were not always aware of what the money was fOr. 190 Anderson has compared the practice to the practice of 'tamana' in the north and 'takoha' at Taranaki. These practices have been criticised by the Waitangi Tribunal as 'an unfair practice designed to purchase land as quickly and cheaply as possible, and incompatible with the Crown's fiduciary duty under the Treaty' .191 The role of the Native Land Court David Alexander has also criticised the role played by the Native Land Court role in defining the Crown's interest in blocks carrying raihana debts. He argues that this role 'can generally be said to be characterised by neglect or minimal inquiry.' Having applied to have its interest defined by the Court, the Crown would often negotiate with affected Maori rightholders and come to an arrangement before the Court hearing had begun. Hohepa Mataitaua may have been describing such an arrangement in his testimony cited above. Alexander has argued that the fairness of such negotiations should have been examined by the Court and recorded in its minute books. He cites Kuaotunu lA as one of a number of Hauraki blocks 'passed through the Court [in 1878] and awarded directly to the Crown, without a title being awarded to their Maori owners, and without a hint of any substantial Court inquiry'. The Court's failure to investigate such arrangements 'suited the Crown's purpose admirably' .1 92 Survey costs Under section 73 of the Native Land Act 1873 the Court could award the Crown land to pay for advances provided to Maori to cover survey costS.193 The Crown acquired Kuaotunu lA in this way. The fairness of that, and similar acquisitions, is open to question. Although both parties supposedly benefited from the transaction, the survey costs fell unequally upon the vendors rather than evenly between vendor and purchaser. The system of defining the Crown's interests in land was already weighted in the Crown's favour through its agents' fostering of indebtedness among Maori, its ability to call in its debts at will and the failure of the Court to investigate pre-hearing 189 Anderson, vol.4, p.204 190 Rawiri Taiporutu at Te Paeroa meeting, 21 May 1882. In Ohinemuri Gold Fields special block file, MA 13/54a, NA, Wellington, cited in Anderson, vol.4, p.204 191 Waitangi Tribunal, Te Roroa Report, p.60, cited in Anderson, vol.4, p.204 192 Alexander, 'The Operation of the Native Land Court in Hauraki', pp.40-41 193 Ibid. p.39 Wai 754 55 negotiations. The imposition of survey costs on Maori vendors placed them at an even greater disadvantage in their dealings with the Crown. 6.8 Kuaotunu ID The Court failed to take the second piece of Kuaotunu 1 (197 acres), into account when it partitioned the larger portion of the block in 1881. This error was rectified in 1889 when the Court issued an order for the 197 acres in favour of the 13 original owners of Kuaotunu 1.194 The block was renamed Kuaotunu 1D: • Kuaotunu 1D: 197 acres • Ruihana Kawhero • Peeti Patene • Ripeka Rangi Tokona • Wi Patene • Karaitiana Kihau • Katerina Hauruia • Hohepa Parone • Taumaha Kara • Rawinia Taiporutu • Wikitoria Rangipihi • Maraea Ripeka • Harata Taiporutu • Te Reiti Maihi Hohepa Mataitaua, representing the Kuaotunu 2 owners, argued that 1D1 was a part of Kuaotunu 2 not Kuaotunu 1. However, the Court did not accept his claim.1 95 This dispute is discussed below (Partition of 1D). Existing research The history of Kuaotunu 1D from the late 1880s has been examined in two important reports. David Alexander, in his wide-ranging study of Hauraki land for the Hauraki Maori Trust Board, has commented on the establishment of a township at Kuaotunu on Maori owned land: Kuaotunu 1C, 1D and 2A.196 In a statement of evidence for the Hauraki claims based on this study, Alexander stated that the township was illegal. He suggested that the Warden, H.W. Northcroft, had laid out the township on the incorrect assumption that the land was part of a recently proclaimed mining district and that he was thus empowered under the Mining Act 1886 to survey and set aside land for this purpose. However, a mining district could only cover Crown land or land where the mining rights had been ceded to the Crown. This was not the case for the three Kuaotunu blocks owned by Maori. Their owners had not ceded mining rights to the Crown when Northcroft laid out the township over their land. Alexander comments further that '[the] Maori owners employed James Mackay to set up a system of regulation of gold mining activity on their land, thereby doing without the need to cede their lands to the Crown.'197 Alexander goes on to argue that Mackay subsequently 'betrayed their wishes by negotiating secretly with the Crown.' 198 The 194 Alexander, Part I, p.238. 195 Young, pp.44-58 196 Alexander, Part I, p.239. Grant Young's report on the Kuaotunu township contains a detailed account of Hohepa's claims and the subsequent court hearings: see pp.44-58. 197 Alexander, 'Crown Purchase Activity', paras 37-38. 198 Ibid. Wai 754 56 land was later sold to the Crown after the Mining Warden obtained a cession of mining rights to the land. Grant Young has recently produced a detailed report for the Waitangi Tribunal on the establishment of the Kuaotunu township. His report examines the issues raised by Alexander and the history of Kuaotunu 1D in depth.199 In order to avoid duplication of research the discussion of Kuaotunu 1D below relies heavily on Young's comprehensive account of the history of the township. Declaration of a goldfield & cession of mining rights In the late 1880s gold was discovered at Kuaotunu by Kawhina on the Try Fluke Claim. The Crown declared the goldfield - which included Crown and Maori land (Kuaotunu1C, 1D and 2A) - to be part of the Hauraki Mining District in January 1889.200 However, its right to do so was later questioned by the Crown Law Office as the mining rights to the land had not been ceded by the Maori owners at that time. 201 Under the Mining Act 1886, the definition of a Mining District was restricted to Crown land or to land where the mining rights had been ceded to the Crown. The Government subsequently investigated the possibility of purchasing the freehold of the Maori owned blocks or gaining the cession of the mining rights if the owners did not wish to sell the land outright. In early 1890 the Surveyor-General recommended that the Government offer to buy the land at £2 per acre. However, there were several impediments to the successful purchase of the freehold. The Under-Secretary of the Native Department, T.W. Lewis, noted in correspondence with the Native Minister, Edwin Mitchelson, in April 1890 that a number of minors held interests in the land and that it was possible that the Supreme Court would not approve the sale of their interests by their trustees. Lewis was also doubtful whether the Maori owners would accept the offer of £2 per acre for their land. He suggested that it be left to the local Mining Warden, H.W. Northcroft, to decide whether purchase of the freehold was feasible or whether the cession of mining rights only should be attempted. 202 In the meantime some owners expressed a willingness to cede to mining rights to the Crown. In March 1890 AJ. Cadman, the Member of the House of Representatives for Coromandel, informed the Minister of Mines that Kawhina had offered to cede Kuaotunu 2 for mining purposes.203 Northcroft also noted in his annual report of April 1890 that a number of owners appeared to favour ceding the land to the Crown for mining purposes in order to provide more secure titles to mining claims.204 The Warden evidently felt that purchase of the freehold was not likely to be acceptable to the owners and he focused his efforts on obtaining signatures for a deed 199 Grant Young, 'The Mining Township at Kuaotunu' (Wai 686, 17), October 1999 200 NZ Gazette, 1889, pp.73-74 201 Alexander, Part I, p.239 202 Young, pp.27-28. 203 Ibid, 28-29 204 Ibid, pp.26-27 Wai 754 57 of cession of mining rights. 205 Between 19 April 1890 and 31 October 1891 Northcroft obtained signatures to two copies of a deed of cession of mining rights. The Warden encountered considerable difficulties in gaining all the necessary signatures. The large number of owners involved, the number of deceased owners for whom successors needed to be appointed and the dispersal of the owners around the Coromandel Peninsula and Northland all contributed to delays in completing the deeds. Nineteen individuals ultimately signed the deeds: including Harata and Wiremu Taiporutu on 5 August 1890 at Thames. The documents record that the Warden paid each of the signatories 10 shillings. 206 In February 1892 Kuaotunu lC, ID and 2A were declared to be open for mining purposes.207 The surviving records regarding the collection and distribution of mining revenues on Maori ceded lands are patchy. However, Young has identified one Treasury file containing details of payments made to the Kuaotunu title-holders between 1890 and 1895.208 The following table shows money collected for Kuaotunu ID during these years by the Receiver of Gold Revenue, Coromandel, and the Kuaotunu Postmaster: 209 £ s. d. 1 May 1891 to 30 April 1892 12 0 0 13 May 1892 to 23 July 1893 25 1 0 1 May 1892 to 22 July 1893 28 10 0 24 July 1893 to 21 July 1894 10 0 0 22 July 1894 to 20 July 1895 15 0 0 22 July 1894 to 20 July 1895 31 0 0 Total £121 11 0 Establishment of the township As noted above, David Alexander has questioned the legality of the mining township established in 1890 at Kuaotunu. Under the Mining Act 1886 the Warden was empowered to set aside and survey land within a declared mining district for the purpose of a township. Northcroft arranged for the survey of the new Kuaotunu township on an area incorporating Crown and Maori owned blocks during August and September 1890. The township was opened on 24 October 1890.210 However, until 31 October 1891 when the Crown obtained the last signature to its deeds of cession, the three Maori owned Kuaotunu blocks were not subject to the provisions of the Mining Act. Grant Young's report specifically addresses the question of the legitimacy of the Warden's actions in establishing the mining township. He has concluded that a definitive answer cannot be given regarding the legality of the Warden's actions. While Young notes that Northcroft had the township surveyed and allowed claims to be marked out before the deeds of cession were completed, he states that 'it is clear 205 Ibid, pp.27-28. 206 Young, pp.24-25 207 Alexander, Part I, p.249 208 Tl 94/1797, NA, Wellington: located and cited by Young, p.107 209 This table is based on a series of more detailed tables incorporated in Young, pp.1 08-11 0 210 Young, pp.33-36 Wai 754 58 that the Warden did not adjudicate on the applications for residence sites and mining claims [on the Maori-owned blocks] until the owners had ceded the land to the Crown for mining purposes' .211 Northcroft delayed hearing the applications for sites on these blocks until October 1891 when he had received the permission of the Maori landowners to do so through the completed deeds of cession. 'In this way', writes Young, the Maori owners 'were not prejudiced by his actions'.212 Young further argues that N orthcroft was faced with a very difficult task in collecting signatures from the large number of Kuaotunu block owners but that despite all the difficulties, Northcroft appears to have acted honourably and fairly to the Maori landowners. Moreover, there is no evidence to suggest that any pressure was used to encourage the owners to sign the deed [of cession of mining rights]. In fact some of the owners, at least, indicated a willingness to do so.213 Young has also commented that there is some confusion over whether the land had to be proclaimed subject to the Mining Act by the Governor after the deed of cession had been signed in order for the Warden to have any jurisdiction over the land: 'The Under Secretary of the Mines Department was not sure that this was necessary, but the Crown Law Office considered the move advisable. It is not clear as a result if it was required under the provisions of the Mining Act in force at the time' .214 James Mackay's role & Lanigan's lease Young considers James Mackay's involvement with the Kuaotunu blocks as being rather more problematic than the activities of the Mining Warden. Prior to their signing the Crown's deed of cession of mining rights, the Maori owners had agreed to allow a number of miners to undertake mining activities on their lands.21s James Mackay, a private land purchaser and negotiator who had previously been employed by the Crown, had assisted the owners with the task of drawing up conditions for mining on their land. On 4 April 1890 Mackay informed the Native Minister that he had taken part in a public meeting to arrange the terms for mining and that he had arranged for miners to lease 39 mining claims, 2 agricultural holdings, and 11 town lotS.216 As stated above, David Alexander has argued that Mackay worked with the Maori landowners to arrange mining leases on their land without the need for them to cede the mining rights to the Crown but that Mackay then 'betrayed' the landowners by negotiating secretly with the Crown. Alexander is presumably referring to Mackay's suggestion to the Minister in his letter of 4 April 1890 that the Warden was likely to have difficulties obtaining the cession of mining rights to the blocks and that the Crown should instead seek to purchase the freehold of the land.217 211 Ibid, p.113 212 Ibid. 213 Ibid, p.114 214 Ibid, p.36. See also p.l13 215 Ibid, pp.13-14. 216 Ibid, p.15 217 Ibid, pp.26-27 Wai 754 59 Young has examined Mackay's activities in some depth and has been able to shed more light on the circumstances surrounding Mackay's role as the Maori landowners' agent. Mackay described himself as the agent for the Maori landowners in his communication with the Minister.218 However, Mackay was also acting as an agent for Pierce Lanigan, a European who had arranged with some of the Kuaotunu ID owners to lease part of the block before Northcroft began collecting signatures for the deed of cession.219 Lanigan and Mackay believed that the Warden's actions in laying out the township and issuing residence and business licenses threatened Lanigan's own arrangements. Lanigan had sub-let parts of the land and stood to lose a significant amount of money if his lease with the Maori owners was not recognised. However, several of the ID owners had refused to sign Lanigan's lease and until they did so - thus enabling Lanigan to formally register the lease - the Warden would not recognise or support Lanigan's claim.220 Young has suggested that when Mackay proposed that the Crown purchase the Kuaotunu blocks in April 1890 he was more interested in protecting his own and Lanigan's interests than in representing the interests of the Maori landowners.221 It seems that Mackay and Lanigan favoured Crown purchase of the land as this would have made the process of legalising Lanigan's claim far simpler.222 Mackay was also concerned about his own legal position. On 20 April 1890 he asked the Government to indemnify him 'from loss and actions which may be brought for breach of arrangement made with the Natives through my agency' .223 Mitchelson, the Native Minister, was not sympathetic and did not act on Mackay's request. While Mackay may have represented his own and Lanigan's interests rather than the interests of the Maori landowners for whom he had arranged the early mining leases, his actions do not appear to have had a significant impact on the Maori landowners. The Warden decided not to attempt the purchase of the blocks and he resisted Mackay and Lanigan's attempts to have the incomplete lease recognised. Furthermore, Young notes that the new agreement reached between the Warden and the Maori landowners 'was more generous in financial terms than the 'lease' negotiated by Mackay for Lanigan. '224 The urupa on Kuaotunu 1D The area leased by Lanigan had contained an urupa. However, Lanigan had the bodies exhumed before he commenced work on the land. In 1890 he explained to the Mining Warden that with the agreement of the owners he had exhumed a number of bodies on the block and re-interred them 'where their relatives desired them to be placed' .225 218 Ibid, p.26 219 Alexander, Part I, p.240 220 Young, pp.36-43 221 Ibid, p.114 222 Ibid, p.43 223 Mackay to Mitchelson, 21 April 1890, MA-MLP 1, 90/144, cited in Young, p.27. 224 Young, p.1l5 225 P. Lanigan, Auckland to Mining Warden Thames, 30 December 1890, attached to P. Lanigan, Auckland to Native Minister, 5 January 1891, Mines Head Office File 1894/401, cited in Alexander, Part I, p.240 Wai 754 60 However, some of the owners argued that they had not agreed to the exhumations. On 24 April 1890 Harata Taiporutu, Wiremu Taiporutu and Hohepa Mataitaua complained to the Native Minister that 'the remains of our matuas on that block have been exhumed by the Europeans without being told to do it'. 226 This assertion was challenged by Kereama Matai of Ngati Porou in July 1890 during a court hearing concerning the ownership of the block. Kereama, the husband of Katerina Hauruia (an owner in Kuaotunu ID), stated in Court that Katerina and Harata Noki had arranged for the bodies to be removed because of the lease of the land to Lanigan. Kereama also declared that no one had objected to the exhumation and reinterment of the dead. 227 The exact circumstances of the exhumation of the urupa remain uncertain due to the conflicting accounts offered by Lanigan and Kereama, and Harata, Wiremu and Hohepa. The matter was briefly raised during the 1890 court hearing but Harata, Wiremu and Hohepa do not appear to have pursued the matter further. It was not raised when the block was alienated in 1896. 1D Court hearings 1890-1894 The 1890 Court hearing at which Kereama gave evidence about the urupa was the first of three hearings involving Kuaotunu ID between 1890 and 1894. The 1890 hearing concerned the validity of the original title investigation, a second hearing (1891) partitioned ID into four blocks and a third hearing (1894) re-examined the 1891 partitions. Grant Young has examined the records of the three hearings in detail in his report of the Kuaotunu township.228 He suggests that disputes between the Maori owners which led to the hearings were in part the product of the Crown's land tenure system which proved unable to deal with changes in the status of land.229 Young's report contains a comprehensive account of the three hearings. The main events are briefly summarised below and it is recommended that readers turn to Young's report for a more thorough account of proceedings. 1889-90: inquiry into title investigation of 1D As noted above, the Native Land Court failed to take the 197 acre Kuaotunu block into account when the larger portion of the block was partitioned in 1881. In 1882 Patrick Sheridan of the Native Land Purchase Office sought to clarify the status of the forgotten piece of land. The divided nature of the Kuaotunu 1 block caused some confusion. Kuaotunu 2 lay between the 197 acre section of Kuaotunu 1 and the rest of the block. Sheridan understood the block to be part of Kuaotunu 1. However, George Wilkinson, a land purchase officer, believed the 197 acres to be part of Kuaotunu 2. In 1883 Sheridan conferred with the Registrar of the Native Land Court who agreed with him that the evidence indicated that the block was indeed a part of Kuaotunu 1. 230 Judge Brookfield confirmed their understanding of the situation when, 226 Translation of letter from Hohepa Mataitaua, Wiremu Taiporutu and Harata Taiporutu to Native Minister, 24 April 1890, MA-MLP 1 1903/102, NA, WeIIington 227 Judge Scannell minute book 17,16 July 1890, pp.l60-161 228 Young, pp.44-70 229 Ibid, p.67. See also Alexander, Part I, pp.228-239. 230 Young, p.46. See also Alexander, p.238. Wai 754 61 at some time between 1883 and 1889, he issued an order for the 197 acres in favour of the original owners of Kuaotunu 1.231 In 1889 Hohepa Mataitaua prompted a new investigation into the status of the 197 acres when he argued that the block was a partition of Kuaotunu 2 and that it had been awarded to the wrong people. One letter reciting Hohepa's concerns about the ownership of the block was also signed by Wiremu Taiporutu and Harata Taiporutu. It was in this letter that the trio expressed their concerns about the exhumations described above.232 In May 1890 Hohepa applied to the Chief Judge of the Native Land Court to have the title to the block re-examined. At the hearing Hohepa argued that the block had been excluded from the order for Kuaotunu 2 at his request because it contained a burial ground. He declared that the block should not be held by the thirteen Kuaotunu title holders (who included Harata) but should be awarded to Harata and Wiremu Taiporutu (whose deceased father Rawiri Taiporutu had been awarded interests in Kuaotunu 2), Peneamine Kawhena and himself. Hohepa did not live on the block but gave evidence that his brother, mother and father's sister had houses on 1D.233 J ames Mackay cross-examined Hohepa at the hearing. He informed the Court that Harata had two and a half shares in the block (as one of the original Kuaotunu 1 owners and through succession) and that if Hohepa succeeded in his case he would gain an interest but that Harata would lose hers. Mackay then asked Hohepa if he had told Harata 'that if she agreed to put the others out you would put her in'. Hohepa replied that he accepted that Harata had a valid interest in the block but did not accept that the others had any rights to the land. The Court adjourned for several days. When it reconvened Mackay now appeared for Harata and Wiremu as well as the other Kuaotunu 1 titleholders and Hohepa represented just himself and Peneamine Kawhena.234 Wiremu Taiporutu was not one of the original title holders but together with Harata had inherited interests in the block from his uncle Ruihana Kawhero in 1889.235 Harata also succeeded to Ripeka Rangitokona's interest in the block.236 Rawiri Taiporutu and Harata's mother had lived on the block but Rawiri and Harata had since moved to Whitianga.237 The Court heard detailed but often conflicting evidence from Hohepa and from Kereama Matai of Ngati Porou, Katerina Hauruia's husband, concerning the occupation of the land, ancestral ties to the land, the circumstances surrounding the surveying of the block, the handing in of lists of names at the original title hearing and the recent rise in value of the land due to gold discoveries. Kereama stated that Hohepa had raised his objections only after gold had been discovered on the land. Young notes that '[Kereama] also told the Court that Hohepa Mataitaua had sold his 231 Registrar Native Land Court Auckland to Accountant Native Department, 17 October 1889, on Hammond, Registrar Native Land Court Auckland to Sheridan, Chief Clerk Native Land Purchase Department, 1 March 1883, MA-MLP 1903/102, NA, Wellington. 232 Translated letter, Hohepa Mataitaua, Wiremu Taiporutu and Harata Taiporutu to Mitchelson, Native Minister, 24 April 1890, MA-MLP 1903/102, NA, Wellington. 233 Young, pp.49-S0 234 Ibid, p.50 235 Succession Order, 28 October 1889, Hamilton MLC BOF CS12 236 Succession Order, 28 October 1889, Hamilton MLC BOF CS12 237 Young, pp.S1, 6S. Wai 754 62 interest in Kuaotunu No.2 and would hold no other interests in the Kuaotunu blocks unless he could establish his claim to ID'238: the implication being that Hohepa's actions were prompted by the recent rise in the value of the land due to the discovery of gold. The Court also examined minutes from the original title investigation which indicated that the 197 acre block and the larger Kuaotunu 1 block were indeed two parts of the same block. Having reviewed the minutes and considered the evidence presented Judge Scannell warned Hohepa that he would be liable for the costs of the case if he was unable to show that the plan and certificate referred to in the original Court minutes were in error. Hohepa subsequently withdrew his case with the intention of taking it to the Supreme Court.239 Judge Scannell presented two reports on the hearing to the Chief Judge. He concluded that Hohepa was in error concerning the ownership of the 197 acre block: [having] considered the evidence given at this Court, the minutes of former Courts as well as the plans and other documents relating to the case, the Court is of the opinion that Hohepa Mataitaua has failed to substantiate the statements made in his application that an error was committed in recording the names of the owners of Kuaotunu No.lD.240 In Scannell's opinion the 197 acre block, ID, was part of the larger Kuaotunu 1 block and was rightly owned by the original Kuaotunu 1 titleholders.241 1891: partition of 1D The second of the three hearings involving Kuaotunu ID took place the following year. In 1891, at the request of Harata Noki (Taiporutu), Wiremu Taiporutu, Taumaha Kara, Eru Maihi and Katerina Hauruia242 Kuaotunu 1D was partitioned into four blocks:243 • Kuaotunu 1D1 122 acres 2 roods 27 perches 6 shares, 6 owners • Kuaotunu 1D2 40 acres 3 roods 22 perches 2 shares, 2 owners • Kuaotunu 1D3 20 acres 1 rood 31 perches 1 share, 1 owner • Kuaotunu 1D4 13 acres 4 owners Harata and Wiremu's interests were placed in Kuaotunu 1Dl. The partition hearing was not straightforward. Hamiora Mangakahia represented the applicants and argued that seven of the other owners in 1D did not have a valid claim to the land as they held interests by 'aroha' alone. He suggested that these owners should be awarded only two acres each. Those who did have a legitimate claim to the 238 Ibid, p.52. Young also records that Kereama was not entirely correct in this belief. Hohepa subsequently gained an interest in Kuaotunu ID through succession to the interest of his wife, Peeti Patene. 239 Young, pp.50-56 240 Scannell to Seth-Smith, 1 September 1890, Kuaotunu miscellaneous file, Waikato-Maniapoto Maori Land Court, Hamilton, cited in Young p.58. 241 Young, pp.56-58 242 Coromandel Native Land Court minute book 5, 11 December 1891, p.89, cited in Young, p.58 243 Young, pp.61-62 Wai 754 63 block included Ruihana Kawhero (whose interests had been succeeded to by Harata and Wiremu), Ripeka Rangitokona, Rawinia Taiporutu, Katerina Hauruia, Taumaha Kara and Harata Taiporutu.244 Hohepa Mataitaua, who had inherited an interest in the block through his wife Peeti Patene and who represented the interests of the successors of Wi Patene, challenged Hamiora's case on the grounds of ancestry. He argued that the ancestor for the land was Ahikaroa and not Ponui, the ancestor named by Hamiora. Hohepa argued that those who had a valid interest in the land through Ponui included Ruihana Kawhero, Ripeka Rangitokona, Rawinia Taiporutu, Peeti Patene and Wi Patene.245 Having heard the cases presented by Hamiora and Hohepa the Court heard evidence from Harata Noki (Taiporutu). Harata was subjected to detailed questioning from Hamiora and Hohepa concerning the two ancestors and their links to ID. Following additional questioning by the judge and assessor the Court adjourned. When it reconvened the two parties had reached an agreement. They informed the judge that they had settled that eight owners would receive a share in the block and five would receive a set area. 246 As noted above, the block was divided into four parts and Harata and Wiremu's interests were placed in IDl, a block of 122 acres 2 roods and 27 perches. The shares in this block were allocated as follows: 247 1. Harata Noki Taiporutu - original interest 2124 - as successor to Ruihana Kawhero 2124 - as successor to Ripeka Rangitokona 2/24 8124 2. Rawinia Taiporutu (deceased) 4124 3. Taumaha Kara 4124 4. Katerina Hauruia 6124 5. Wiremu Taiporutu 2124 - as successor to Ruihana Kawhero 1892-1894: re-hearing of partition In 1892 the IDI titleholders applied to the Chief Judge, H.G. Seth-Smith, for an inquiry into the circumstances surrounding the partition of Kuaotunu ID the previous year. Frederick Earl, the titleholders' representative, alleged that due to illness Hamiora Mangakahia had not understood the effect of the partition lines pointed out on the map by the judge. As a result the block had been incorrectly subdivided to the detriment of the IDI titleholders. The valuable township portion of the block had been wrongly included in ID2 (Hohepa's block) and IDI was now of little value to its owners. Judge Scannell supported the application. He told Seth-Smith that Hamiora 244 Ibid, p.58 245 Ibid, p.58 246 Ibid, pp.58-60 247 Ibid, pp.61-62 Wai 754 64 had been 'ill and confused suffering from a severe bout of Rheumatism and did not really know what was done' .248 A re-hearing of the 1891 partition was not held until 1894 when Hamiora Mangakahia again represented Harata Noki (Taiporutu), Wiremu Karaka (Taiporutu) and Katerina Hauruia. Mr Luintal appeared for opponents of the rehearing: Hohepa Mataitaua, Te Tiki Patene and Mata Patene. Harniora explained that the parties concerned had come to an agreement in 1891 regarding the boundaries of the partitioned block but that the judge had erred when he laid the lines out on the plan. Questions concerning ancestry and occupation of the land were again addressed and the drawing of the survey lines discussed. As had happened in 1891, the parties subsequently adjourned and reached an agreement amongst themselves regarding the boundaries of the blocks. The Chief Judge endorsed the newly agreed boundaries and ordered that the original decision be amended accordingly. The redrawn boundaries granted both sides of the dispute a part of the valuable township land.249 Significance of the 1890-1894 hearings Young argues that the litigation of the early 1890s was 'Clearly ... a result of the increasing value of the land on which the township was located'. He suggests that the litigation was the product of a deeply flawed system which produced an ownership structure which failed to 'adapt to the changing circumstances of the land and the owners and ensure the land was worked in their interests' .250 Absentee ownership, a by-product of the flawed land tenure system, significantly contributed to the Court's problems in determining ownership of ID and its subdivisions. It seems that a substantial community had lived on the land but this community had dispersed by 1890. The majority of the owners no longer lived on the block when they took their disputes to the Court between 1890 and 1894. Occupation, the usual measure of a claim of ownership, was of little use in this situation. At both the 1891 and 1894 partition hearings the Court proved unable to resolve the disputes between the claims of people who did not actually live on the land. In both cases the litigants were told to come to an agreement amongst themselves, which they duly did. 251 Young concludes that the 'Native Land Court judges attempted to impose order on complex rights and in doing so undermined the ability of Maori landowners to work their land to their advantage' :252 [The] system of land tenure did not allow the Maori landowners to speak collectively with one voice. In doing so it prevented effective governance of the land in the interests of the Maori landowners particularly where there were significant resources. The Native Land Court attempted to impose a rigid structure on Maori customary rights but in doing so generated chaos. Though not always evident it is certainly clear in the case of the Kuaotunu blocks.253 248 Scannell to Seth-Smith, 20 February 1892, Kuaotunu miscellaneous file, Waikato-Maniapoto Maori Land Court, Hamilton, cited in Young, p.64. 249 Young, pp.63-66 250 Ibid,67 251 Ibid, pp.67-68 252 Ibid, p.67 253 Ibid, p.118 Wai 754 65 Whatever the motivations of the contesting 1D owners, the land tenure system applied by the Native Land Court proved an inadequate means of enabling Maori titleholders to make the best use of their land. With regard to the various arguments advanced during the Court hearings, Young concludes that 'it is difficult to make any substantive comments'. 254 The validity of Hohepa's claim that 1D was part of Kuaotunu 2 remains unclear; the relationships between the owners have not been fully established (no whakapapa has yet been located to explain the links between the owners); and the circumstances surrounding the exhumation of the urupa remain confused due to the contradictory nature of the evidence provided by interested parties. 6.9 Alienation of IDI to the Crown Kuaotunu 1D1 was sold to the Crown in 1896. Young has covered the alienation in detail in his report on the township and readers are advised to examine his and David Alexander's accounts of the proceedings. The main events are summarised here. In October 1893, before the dispute over the subdivision of the block was resolved, Harata Noki Taiporutu and Hohepa Mataitaua offered to sell the whole of 1D (197 acres), including its accumulated goldfield revenues, to the Crown for £1000. Their offer was presented by a Mr Tizard of Thames. Tizard informed Native Minister A.J. Cadman that if the Government agreed to purchase the block the application for the rehearing of the 1891 partition orders would be withdrawn and Harata and Hohepa would arrange for all the owners to sign a deed of sale. In January 1894 Wiremu Taiporutu also offered to sell his and his daughter's interests to the Crown. Crown inquiries into the offers revealed that Harata owed Tizard over £100. In February 1894 Charles DearIe, the registrar of the Resident Magistrate's Court in Thames, suggested that this debt may have led Harata and Hohepa to seek to sell the land at an absurdly high price. He informed Sheridan that the land was only worth £2 per acre (£394) and that he held £90 worth of accumulated goldfield revenues for the block. In November 1894 Wiremu Taiporutu again offered to sell his interest in 1D. On 16 January the following year the Thames land purchase officer was instructed to negotiate to purchase interests in the block for 40 shillings (£2) per acre. 255 The Crown purchased Wiremu and Harata Taiporutu's interests in 1D1 in 1895. The sale was concluded in 1896 when the Crown purchased the final interests in the block.256 The Crown paid a total of £244.19.0 for the interests of the block's five owners. The purchase money was distributed as follows: 257 254 Ibid, p.68 255 Alexander, Part I, pp.251-253. Young, pp.73-77 256 Certificate of Title, 12 August 1896, BACS A806/45 (C50817), NA, Auckland; PR 25/50 & Transfer 18271, LINZ Hamilton 257 Payment schedule in Young, p.76 Wai 754 66 Owner Shares £ s d Payment date 1. Harata Taiporutu aka Harata Noki 2124 as successor to Ruihana Kawhero 2124 as successor to Ripeka Rangitokona 4124 (8124) 81 15 0 17.6.95 2. Te Ataiti Taiporutu As successor to Rawinia Taiporutu 4124 40 15 0 5.3.95 3. Taumaha Kara 4124 40 17 6 14.3.95 4. Katerina Hauruia 6124 61 2 6 10.4.96 5. Wiremu Taiporutu As successor to Ruihana Kawhero 2124 20 9 0 16.2.95 TOTAL (122 acres, 2 roods, 27 perches) 244 19 0 Crown Purchase Deed 1931 has not been located. It was, however, submitted to the Land Transfer Office for registration. 258 Kuaotunu 1D1 was declared Crown Land in July 1896.259 6.10 Kuaotunu ID: issues arising Several issues of concern have already been discussed above: the legality of the township, James Mackay's negotiations with the Crown, the interference with the urupa and the litigation of the early 1890s stemming from a deeply flawed system of dealing with Maori land. Two other issues are, however, worthy of comment: the administration of mining revenues and the impact of debt on Maori. Mining revenue Grant Young's report on the Kuaotunu township has identified major problems regarding the administration of mining revenues on Coromandel blocks. He suggests that although Government ministers and officials recognised the importance of paying revenues to Maori who had ceded mining rights to their land, the systems in place to do so were chaotic. While the Mining Warden tried to ensure payments were made, he was severely overworked. 26o The Kuaotunu 1D owners may have suffered consequent delays in receiving money owed them. As noted above, revenues of £90 had accrued on the block by 1894. Harata's debt Harata Taiporutu appears to have been under severe financial pressure to sell her interests in Kuaotunu 1D. It is not known how she became indebted to Tizard to the amount of £100. It is possible that some of the debt derived from the costs associated with attending the Court hearings of the early 1890s: hearings which, as has been described above, were largely the product of a defective system of administering Maori land. However, this is simply speculation. There is no direct evidence to indicate how Harata's debt came about. 258 Young, pp.76-77 259 Alexander, Part I, p.253 260 Young, pp.93-111 Wai 754 67 6.11 Kuaotunu 2 Kuaotunu 2 was the 1367 acre block awarded to Rawiri Taiporutu and nine others in 1878. Partition and Alienation of 2B to the Crown In 1886 Robert Comer and Hori Ngakapa Whanaunga jointly purchased 6Yz of the 10 interests in Kuaotunu 2 for £70. One of these shares was later found to be invalid. Hori later sold his interest in the block to Comer for £50. Three years later, in May 1889, Comer applied to the Native Land Court to have the 5Y2 'valid' purchased shares partitioned out of the block. The Court subsequently divided Kuaotunu 2 between the sellers and the non-sellers: 261 • Kuaotunu 2A: 544 acres. Awarded to the non-selling owners. • Kuaotunu 2B: 811 acres. Awarded to those who had sold interests to Comer. The selling owners included Rawiri Taiporutu, Anaru Taipa, Hohepa Mataitaua, Mohutu and Wiremu Karaka. The Trust Commissioner certified the transfer of interests to Comer and Hori Ngakapa Whanaunga in June 1889. The following month Hori N gakapa Whanaunga sold his interests to Comer for £50 and the Trust Commissioner certified the transaction in November.262 The original survey lien on the block, £23.0.8, was paid on 23 August 1889.263 Comer, however, failed to follow the proper processes under the legislation. Patrick Sheridan summarised Comer's faulty purchase procedure in 1894: Mr Comer purchased certain shares in Kuaotunu No.2 block then held by Natives under Memorial of ownership. A partition was afterwards made by the Native Land Court to correspond with his deed. As the purchase of the shares took place prior to the partition the transaction was invalid - sections 48 and 49 N.L. Act 1873 and Poaka v. Ward. Despite this, Sheridan commented that 'there was no want of equity about the purchase' .264 The Trust Commissioner, D. Scannell, was evidently of the same mind as he had approved the transactions as fulfilling all other requirements under the legislation.265 Comer's error, compounded by an unauthorised survey of the subdivisions,266 meant that he was unable to have his title to Kuaotunu 2B registered and his ownership of 261 Alexander, Part I, pp.255-256. See also, Young, pp.85-88, for a more detailed account. 262 Alexander, Part I, pp.255-256 263 Memo, J.K. Johnston to Sheridan, 7 October 1889, ABWN 6095 W5021 244, NA, Wellington 264 P. Sheridan to A.J. Cadman, 18 April 1894, on Memo from AJ. Cadman to Mr Eliott, 17 April 1894, ABWN 6095 W5021 244, NA, Wellington 265 Copies of Deeds dated 30 November 1886 and 29July 1889 supplied to Native Minister 19 April 1890, ABWN 6095 W5021 244, NA, Wellington 266 Memo, P. Sheridan to T.W. Lewis, 17 April 1890, ABWN 6095 W5021 244, NA, Wellington Wai 754 68 the block confirmed.267 In April 1890 Native Office Under Secretary T.W. Lewis informed Comer that his title to the block appeared to be 'bad' as 'at the time of purchase you only acquired the interest of a portion of the whole of the owners of the Block included under Memorial of Ownership'. 268 Lewis suggested that Comer take his case to the Commissioner of Crown Lands. He also told Comer that, unless the Survey Department had objections he was unaware of, the Native Minister was willing to accept the unauthorised survey of the line between 2A and 2B. 269 On 21 August 1891 Comer wrote to Colonel Fraser, a member of the House of Representatives, regarding his case. He had taken the case before the Commissioner, Judge Edwards, who had ruled that the partition of the land should have been made before Comer bought any shares. In defence of his actions, Comer informed Fraser that 'before I could compleat [sic] the purchase of the Block Government passed an Act suspending Europeans from treating with the Natives after a date',27o Fraser in turn wrote to Lewis. He suggested that if Judge Edwards had indeed ruled that Comer had no legal claim to the land then Cadman could perhaps refund Comer's money and 'take the land for goldfield'. 271 Cadman subsequently agreed to take any offer from Comer to the Cabinet for consideration. He also noted that a Native Land Bill which had recently come before the House would probably have enabled Comer to validate his title but the Bill had failed to pass the House. 272 Comer does not appear to have presented an offer to the Cabinet before he was overtaken by events involving an alleged outstanding survey lien. The Crown acquired Kuaotunu 2B in 1894 but not on terms negotiated with Comer or with the original Maori landowners who had remained the legal owners of the land. In 1891 the surveyor J. Cameron obtained a charging order for survey costs of £31 lOs against Kuaotunu 2B. Comer later claimed that he had paid Cameron all costs due to him, a total of £60, in several instalments.273 Nevertheless, Edmund Thomas Dufaur obtained the charging order and gained the approval of the Supreme Court to have the block put up for sale by auction on the grounds of non-payment of the order. 274 The auction took place on 3 April 1894 and the Crown purchased the block for £565: nearly 14/- an acre.275 The charging order and auction fees were paid out of the purchase money leaving a balance of £451.16.0 which was paid into a trust account 267 Alexander, Part I, pp.256-258 268 T.W. Lewis, Under Secretary Native Office to Robert Comer, 26 April 1890, ABWN 6095 W5021 244, NA, Wellington 269 T.W. Lewis, Under Secretary Native Office to Robert Comer, 26 April 1890, ABWN 6095 W5021 244, NA, Wellington 270 Robert Comer, Thames, to Colonel Fraser, 21 August 1891, ABWN 6095 W5021 244, NA, Wellington 271 Colonel Fraser to T.W. Lewis, 27 August 189, note on letter from Robert Comer, Thames, to Colonel Fraser, 21 August 1891, ABWN 6095 W5021 244, NA, Wellington 272 A.J. Cadman, Native Office, to Colonel Frazer, Thames, 5 October 1891, ABWN 6095 W502l 244, NA, Wellington 273 J.A. Miller (on behalf of Comer), Thames, to the Minister for Mines and Justice, 11 April 1894, ABWN 6095 W5021 244, NA, Wellington 274 Alexander, Part I, p.262 275 Telegram, H.W Northcroft, Thames, to Under Secretary Mines Department, 3 April 1894, ABWN 6095 W5021 244, NA, Wellington & ALEXANDER deeds REF Wai 754 69 held by the Registrar of the Supreme Court. 276 Kuaotunu 2B was declared Crown Land in July 1894.277 Comer protested against the transaction and issued a caveat against the registering of the title278 but the Crown's title was, nevertheless, registered.279 He then argued that the balance of the purchase money ought to be paid to him as the rightful owner of the block, despite the 'technical defects' which had prevented him from registering his title.28o Comer submitted a formal petition to the Government (No.746) in October 1894 seeking relief for the difficult situation he found himself in. 281 He also wrote directly to Cadman describing how he had expended a total of £336.7.6 on the block in land taxes, stamp duties, survey, court and legal fees and other expenses associated with his purchase of 2B, but that he had received considerably less money from the rental of mining claims on the block - £158. 'In fact', he declared, 'this Block of land has been to me nothing but a troublesome and costly affair through not having my title completed in its due course.'282 Cadman was not unsympathetic to Comer's situation and offered him a conditional recognition of his claim to the remaining purchase money. If Comer could prove to the Registrar of the Supreme Court's satisfaction that he had the necessary authority from the Maori titleholders to receive the money, the Government would accept his right to collect the £451.16 balance.283 The original Kuaotunu 2 titleholders appear to have supported Comer's claim to the block. On 21 April 1894 Hohepa Mataitaua sent a telegram to Cadman stating that the 'Kuaotunu No.2B block was sold by my family to Robert Comer and belongs to him. '284 In November 1894 Comer appears to have obtained a signed authority from some of the Maori owners who had sold their interests to him, or who were successors of those who had sold interests, including Hohepa Mataitaua, Mohutu, Wiremu Karaka and Harata Noki.285 The authority on its own, however, was not acceptable to the Registrar. Two of the original sellers, Rawiri Taiporutu and Anaru Taipa, had died and successors had not been appointed to their interests. It seems that Wiremu Karaka and Harata Noki signed the authority in their capacities as probable successors to Rawiri, and Hohepa signed as Anaru's executor.286 Their signatures, however, 276 Telegram, c.c. Brewer, Registrar Supreme Court, Auckland, to the Under Secretary, Department of Justice, Wellington, 1 May 1894, ABWN 6095 W5021 244, NA, Wellington 277 Alexander, Part I, p.265 278 J.A. Miller (on behalf of Comer), Thames, to the Minister for Mines and Justice, 11 April 1894; Memo, W. Coleman, Solicitor, to Registrar Supreme Court, 5 May 1894; Telegram, J.A.Tole, Crown Solicitor, to A.J.A. Eliott, 9 April 1894, ABWN 6095 W5021 244, NA, Wellington 279 Telegram, H.W. Northcroft, S.M. Auckland, to Under Secretary Mines Department, 2 May 1894, ABWN 6095 W5021 244, NA, Wellington 280 W. Coleman, Solicitor, Auckland, to Registrar Supreme Court, 5 May 1894, ABWN 6095 W5021 244, NA, Wellington 281 Copy of petition No.746, ABWN 6095 W5021 244, NA, Wellington 282 Robert Comer to AJ. Cadman, 22 November 1894, ABWN 6095 W5021 244, NA, Wellington 283 Cadman to Comer, 12 December 1894, ABWN 6095 W5021 244, NA, Wellington 284 Telegram, Hohepa Mataitaua, Thames, to Hon A.J. Cadman, Wellington, 21 April 1894, ABWN 6095 W5021 244, NA, Wellington 285 The signed authority has not been located but is referred to in Native Deparment file notes. Notes on file cover, P. Sheridan to J.W. Browne, Registrar, 21 November 1894, and Browne to Sheridan, 29 November 1894, ABWN 6095 W5021 244, NA, Wellington 286 Ibid. Wai 754 70 carried little weight given that the successions had not gone through the Native Land Court. The file on the Kuaotunu 2B sale is incomplete and it is not known if Comer was able to satisfy the Registrar of the validity of his claim or if he did receive the money he believed himself entitled to. However, the original Maori titleholders appear to have been under the impression that Comer did not receive the money. On 15 March 19lO solicitors Earl and Kent wrote to the Under Secretary of the Native Department on behalf of Hohepa Mataiataua 'and others' seeking clarification of the situation. The block had been sold for £565.lO/-, they wrote, 'and our clients understand that a considerable amount of this money is available for them' .287 The Under-Secretary of the Lands Department, William Kensington, replied the money had been deposited with the Registrar of the Supreme Court who ought to be able to tell them how it was disposed of. He commented, however, that the previous Maori owners 'had no moral claim to any of the proceeds in question as they had already sold the land to a Mr Robert Comer [whose] representatives would appear to have an equitable claim to any amount which remained after the charging order, and the Auctioneer's expenses were provided for' .288 The records end at this point and it is not known if Comer or the original Maori owners received any of the money deposited with the Registrar. 6.12 Kuaotunu 2B: issues arising , Comer's problems securing his title stemmed from technical errors which appear to have caused Crown officials more concern than the Maori owners from whom Comer 'purchased' the block. Although some of the Maori owners later inquired after the Crown's purchase money, the support offered to Comer in earlier years by Rawiri's children Harata and Wiremu and by Hohepa Mataitaua suggests that the Maori owners were satisfied with the transaction. 6.13 Kuaotunu 5 As described above, the Native Land Court awarded the title to Kuaotunu 5, a block of 3 acres, to Rawiri Taiporutu and Takerei Katipo in 1878. In 1896 a survey lien of £6 was charged against Kuaotunu 5. Alexander notes that this was 'apparently the minimum that could be charged' .289 Nothing appears to have been done about the lien for another ten years. However, between 1906 and 1908 the Crown applied to the Maori Land Court to have all survey debts paid off or recovered in the form of land. 29o In August 1906 the Crown applied to the Native Land Court to have Kuaotunu 5 (3 acres) awarded in lieu of the £6. As the land was valued at £3 the Crown requested that it be awarded the whole block. The Court accepted the Crown's request and awarded it the land in lieu of the survey lien. However, when the outstanding survey 287 Copy ofletter, Earl & Kent to Under Secretary, Native Department, Wellington, 15 March 1910, ABWN 6095 W5021 244, NA, Wellington 288 W. Kensington, Under-Secretary Lands Department, 3 May 1910, ABWN 6095 W5021 244, NA, Wellington 289 Alexander, Part I, p.285 290 Alexander, 'Operations of the Native Land Court', p.82; 'Summary of Crown Purchase Activity', para.5l Wai 754 71 charge was paid the following year the Court reversed its decision and cancelled the 1906 order. 291 Successions On 13 January 1917 a new Certificate of Title was issued for Kuaotunu 5 in the names of Rawiri Taiporutu and Takerei Katipo. A memorial on the title recorded that Rewi Tahura (15 years) had succeeded to Rawiri's interest in the block in 1889. A second memorial recorded that Harata Taiporutu had succeeded to Rewi Tahura's interest in the block that same year. In 1899 (Harata) Noki Taiporutu and Ani Urukotia succeeded to the interest of Takerei Katipo (as from 1895). Harata died in 1913 and in 1915 her interests in Kuaotunu 5 were inherited by: 292 Successors Shares Hare Tutokatea 3/16 (.1875) Taumaha Kara 3/16 (.1875) Pakaihaku Te Anini 3/16 (.1875) Tuihana Te Anini 3/16 (.1875) Ani Urukotia held the remaining 1,4 share in the block. 293 Alienation of Rawiri' s successors' interests In 1916 Harata's four successors sold their interests in the block to Catherine Gardiner Bond, a married woman of Auckland. Ani Urukotia did not sell her interest. Mrs Bond paid the four sellers the government valuation of the block: £5 (12/6 each). 294 She also paid three shillings and two pence in outstanding rates. 295 A licensed interpreter and a solicitor witnessed the signatures on the Memorandum of Transfer and affirmed that the sellers had sufficient knowledge of English to understand the nature of the transaction. The Waikato-Maniapoto District Maori Land Board confirmed the alienations of the four sellers' interests on 14 September 1916.296 As part of its deliberations the Board received two schedules of other lands owned by the vendors. The schedules recorded the sellers as having shares in the following blocks: 297 Seller Schedule A Acres, roods, Schedule B Acres, roods, Total area Block perches Block perches 'other lands' Taumaha Kara Te Kauanga 70.0.00 Whakaau 5.0.00 77 acres Whenuakite 7 Tihiouou 2.0.00 Pokaihau Te Kariori 3 12.2.05 Whakaau 5.0.00 -58-65 Anini acres 291 Alexander, Part 1, p.285 292 Certificate of Title 14D1l07, LINZ Hamilton 293 List of owners and shares, BCAC AllO 7905 box 102, NA, Auckland 294 Transfer 97146, LINZ, Hamilton 295 Rates receipt, 10 October 1916, BCAC AllO 7905 box 102, NA, Auckland 296 97146, LINZ, Hamilton 297 Schedules of other lands owned by Maori vendors, BCAC AllO 7905 box 102 Wai 754 72 Tihiouou 4.0.00 Tihiouou 2.0.00 Whakaau 5.0.00 Kariori 3 12.2.00 Okewa2 3.3.10 Te Kauanga 1.2.00 Whenuakite 6 Puhangteuru 1 3.0.00 Ngatitangata 17.0.00 Tuihana Te Asfor P. Te Asfor P. -58-65 Anini Anini Te Anini acres Hare Tutokatea Whakaau 5.0.00 Whakaau 5.0.00 -20 acres Okewa2 3.3.00 Tihiouou 2.0.00 Te Kauanga 1.2.00 Whenuakite 6 Puhangateuru 3.3.00 Whakaau and Tihiouou appeared in both schedules but with different areas recorded. The histories of these duplicated blocks have not been examined for this report and it is not known which listed acreages are the more accurate. On 23 August 1940 Mrs Bond's interests in the block were transferred to Toha Winiata, a farmer of Whitianga, via May June Webber and Percy Bond of Otorohanga. On 23 July 1968 the ownership of Ani Urokotia's outstanding interest in the block was updated. Ani's interest in the block was transferred to Harriet I. Sampson via Papu Tararoa (Robert Tararoa Middlemass).298 On that same day the Land Registrar issued a declaration under Part I Maori Affairs Amendment Act 1967 that Kuaotunu 5 was no longer Maori Land. 299 Under Section 6 of the Act the Registrar could issue a change in the status of land if the following conditions had been met: the land was owned by less than five owners, no interest in the land was subject to a trust, none of the owners were under a legal disability, the owners were not deceased, the land was 'suitable for effective use and cultivation', and a plan, description or diagram had been certified by the Chief Surveyor. 6.14 Kuaotunu 5: issues arising The Native Land Act 1909 Rawiri Taiporutu's successors' interests in Kuaotunu 5 was sold under the provisions of the Native Land Act 1909. Under the 1909 Act Maori land owned by less than ten owners could be sold in the same way as European land. Private purchasers and the Crown could negotiate directly with individual owners to purchase their interests in the land. 30o Interests in the land did not have to be purchased all at once. They could be purchased on a case by case basis as each title-holder decided to relinquish their rights over the land. 298 Certificate of Title l4DIl07, LINZ Hamilton 299 Certificate of Title 14DIl07, LINZ Hamilton 300 Donald Loveridge, Maori Land Councils and Maori Land Boards: A Historical Overview, 1900 to 1952, Waitangi Tribunal Rangahaua Whanui Series (working paper: first release), Wellington, December 1996, pp.84-85 Wai 754 73 The 1909 Act incorporated a series of provlSlons intended to provide some safeguards for Maori land owners. Section 220 required that the following criteria be met in the case of private purchases: (a) the instrument of alienation had to be properly executed; (b) the alienation could not be 'contrary to equity or good faith or to the interests of the Natives alienating'; (c) no Native could be made landless ('within the meaning of this Act') by the alienation; (d) the payment had to be 'adequate' [this was to be assessed by reference to a valuation carried out under the Valuation of Land Act 1908.301 ]; (e) in the case of a sale the purchase money had to have been 'either paid or sufficiently secured'; (f) the person obtaining the interest had to be able to do so under Part XII of the Act (relating to limitations on area); (g) the alienation could not result in any breach of any trust; and (h) it could not be 'otherwise prohibited by law' .302 The 1909 Act did not define 'landlessness' in terms of acreage. It simply stated that there must be a 'sufficiency for maintenance' .303 David Alexander has argued that this was 'generally taken to mean that a seller had at least 30 acres - no consideration was given to quality of land, number of parcels or the needs of future generations' .304 Under section 217 of the 1909 Act no alienation of Maori land was to have 'any force or effect' until it had been formally confirmed by a district Maori Land Board. The Board had to be satisfied that the criteria listed above had been met. Confirmation of the alienation of Kuaotunu 5 The Waikato-Maniapoto Land Board confirmed the alienations of Rawiri Taiporutu's successors' interests in Kuaotunu 5 in 1916. That same year the Native Minister William Rerries described the requirements for private purchasers to obtain confirmation of alienation in a speech in Parliament: First of all he has to pay money to the Board, or to give satisfactory receipts, so that the Board would be perfectly satisfied that the Maoris have got the money. Then he has to make a formal declaration to show that he has not got more land, including the land he is intending to buy, [over about 5000 acres] .... He then has to show that the Native he is purchasing from is not landless. It is his business to find that out, and generally that takes some time to do. Further, he has to show that the transaction is all right for the Natives, and it is for the Board to judge whether it is in the interests of the Natives to sell. Eventually he has to show that the price is adequate, the Government valuation being taken as a guide. The conditions, therefore, are fairly onerous.305 301 Section 223, Native Land Act 1909 302 Loveridge, p.83 303 Section 2, Native Land Act 1909 304 David Alexander, 'Statement of Evidence for the Hauraki Claims: Overview' (Wai 100, A14; Wai 686,48), p.15. 305 NZPD, 3 August 1916, vol. 177, pp.737-738 Wai 754 74 Mrs Bond's application for confirmation satisfied all of these requirements. Sufficient other lands Although the technical requirements for confirmation of alienation were met in this case, one of these requirements requires further consideration. As noted above, under section 220 of the 1909 Act, 'no Native could be made landless ('within the meaning of this Act') by the alienation'. The 1909 Native Land Act did not define the number of acres a Maori land-holder had to have in order not to be considered 'landless'. Nor did an amending Act passed in 1913 refer to a specific acreage. Under section 91 of the Native Land Amendment Act 1913, landlessness 'did not occur where the land being sold would not in any event provide sufficient support to the Maori owner and also where a vocation, trade, profession or other form of income could provide an alternative adequate income' .306 The Act did not define the level of an 'alternative adequate income' . In 1907 the Stout-Ngata Commission defined the amount of land required for support as being approximately '25 acres of first-class land, or 50 acres of second-class land, or 100 acres of third-class land for each man, woman or child' .307 However, as noted above, David Alexander has suggested that the Boards generally considered 30 acres to be sufficient. 308 In his work on the Maori Land Court and Maori Land Boards, Tom Bennion has argued that, it is difficult to discover what criteria the boards actually used. The Tairawhiti board and the Waikato-Maniapoto board do not seem to have had a fixed number of acres in mind. The test appears to have been whether they would be able to continue to support themselves, or whether they would become a burden on the state. Given this ambiguity, and the push for land sales to encourage European settlement, it is perhaps not surprising that the test of landlessness appears to have been set fairly 10w.309 Given the extent of Maori land loss in Hauraki by this time this low test of 'sufficiency' is of concern. In the case of Kuaotunu 5 Mrs Bond provided the Board with two lists of the vendors' other lands. These indicated that three of the sellers had over 58 acres of other lands. However, the lists recorded that Hare Tutokatea had only 20 acres of other lands, 10 acres below Alexander's figure and well below those acreages recommended by the Stout-Ngata Commission in 1907. Moreover, the schedules contained no information regarding the quality of the land. The Waikato-Maniapoto Maori Land Board does not appear to have relied upon any other information about the vendors' other lands apart from that provided in the schedules. John Hutton's study of the Board suggests that this low level of 306 Bennion, Maori Land Court, p.30 307 R. Stout & A. Ngata, 'Native Lands and Native Land Tenure: General Report on Land Already Dealt with and Covered by Interim Reports' AJHR, 1907, G-IC, p.8 308 Alexander, 'Overview', p.15 309 Tom Bennion, The Maori Land Court and Land Boards, 1909-1952, Waitangi Tribunal Rangahaua Whanui Series (working paper: first release), Wellington, July 1997, p.29 Wai 754 75 investigation was typical of its approach to the sale of Maori freehold land.310 Given that the Board does not appear to have inquired into the wider circumstances of the sales it is difficult to argue that the Board could have properly gauged whether the sale of the vendors' interests was 'contrary to equity or good faith, or in the interests of the Natives alienating'. The Board's failure to take note of the low acreage remaining with Hare Tutokatea is of particular concern. However, under section 7 of the Native Land Act Amendment and Maori Land Claims Adjustment Act 1915 the Maori Land Board could grant confirmation, 'notwithstanding the fact that any of the Natives may become technically landless' ,31l if it considered that the land was not likely to be a material means of support to the owners. Given the very small size of Kuaotunu 5, just 3 acres, the Board was unlikely to consider that its loss would make a material difference to the vendors. However, apart from the 70 acres of Kauanga Whenuakite held by Taumaha Kara, the other lands held by the vendors largely consisted of small blocks like Kuaotunu 5, or small shares in multiply owned blocks. Hare Tutokatea's share in the 42 acre block Te Kauanga Whenuakite 6, for example, amounted to just 1 acre and 2 roods. This situation, in which Hauraki Maori were left with small interests in scattered uneconomic units which could be progressively whittled away, will be discussed in more detail in the General Conclusions at the end of this report. 310 John Hutton, The Operation of the Waikato-Maniapoto District Maori Land Board', report commissioned by the Crown Forestry Rental Trust, May 1996, cited in Bennion, p.28 311 C.B. Jordan to Registrar Waikato-Maniapoto Maori Land Board, 29 May 1917, MA-MLP 1 1913/107 Wai 754 76 CHAPTER 7 Te Kauanga Whenuakite 1, 3 & 6 Summary Te Kauanga Te Kauanga Te Kauanga Whenuakite 1 Whenuakite 3 Whenuakite 6 Title awarded: Urupa (10 acres) 1899 1899 Ownership: 3 owners 3 trustees for wider 7 owners. tribe H & W Taiporutu Alienation: 1955 J.S. Clark 1902 Crown 1962 L.c. Oliver. Area: 8 acres 3 roods 10 3160 acres 42 acres perches Price: £26.8.9 £790 £850 Alienation title: CT 1215/96 Deed 3479 PR 39/90 CT 110/171 Transfer S229175, also Transfer 29093 77686 part transfer to W.B. Nicholson Plan (ML): 6646 6646 6646 7.1 Locations Te Kauanga Whenuakite 1,3 and 6 are located near Kapowai, south of Mercury Bay, on the Coromandel Peninsula. 7.2 Te Kauanga Whenuakite 1-7 Titles were awarded to seven Te Kauanga Whenuakite blocks in 1899. Three of these, blocks 1, 3 and 6, are relevant to the Wai 754 claim. The commission for this report does not refer to Te Kauanga Whenuakite 1 but this block is included as the claimants identified this latter block as being of concern to them while the report was being written. Title Investigation In 1899 the Court investigated the title of a large block named Te Kauanga Whenuakite and divided it into 7 parts: 312 Block No. Acres Titleholders 754 blocks 1. 10 3 Urupa 2. 490 8 - 3. 3160 Vested in 3 people To pay survey costs 4. 3000 13 - 5. 1298 2 - 6. 42 7 Equal shares 7. 280 4 - Total area I 8280 I 312 Alexander, Part II, p.15 Wai 754 77 Te Kauanga Whenuakite 1, a 10 acre urupa, was awarded to Raima Te Hemoata, Naata (Haata?) Tiaia and Hapimana Hikipiki in equal shares.313 Chief Judge G.B. Davy ordered that the block be made 'absolutely inalienable' .314 The block was a main burial site for Ngati Hei. Some of the Wai 754 claimants' tipuna are buried on this block: Matahera Whakatau, Rereiana Aperahama (nee Eparaima) and some of Rereiana's siblings.315 The Court vested Te Kauanga Whenuakite 3 (3160 acres) in Rahera Tanui, Erana Te One one and the Chief Surveyor Auckland in trust, to raise funds by the sale of the said Te Kauanga Whenuakite 3 to pay all just charges made in respect of the survey of and the expenses in investigating the title of Te Kauanga Whenuakite in the Native Land Court, and to deposit the balance if any of the said funds with the Public Trustee.316 Te Kauanga Whenuakite 6 (42 acres) was awarded to seven people, including Rawiri Taiporutu's daughter, Harata Noki, and son, Wiremu Taiporutu, in equal shares:317 1. Rahere Tanui 5. Harata Noki 2. Erana Te Oneone 6. Taumaha Kara 3. Ani Urukotia 7. Wiremu Taiporutu 4. Rapata Taraioa As in the case of Te Kauanga Whenuakite 1, Te Kauanga Whenuakite 6 was to be 'absolutely inalienable' .318 No fees were charged for the title to Te Kauanga Whenuakite 1 but the Court charged and received fees of 20 shillings each for Te Kauanga Whenuakite 3 and 6. 319 Title challenge In 1901 Mita Whakatau, Henare Aperahama, Raima Te Hemoata and others appealed without success against the issue of titles to the Te Kauanga Whenuakite blocks. Henare Aperahama provided a list of interested parties including some of Eparaima Kingi's successors: Renare Aperahama, Hori Eparaima, Hera Eparaima, Wiremu Eparaima and Mita Eparaima.320 Henare was Rereiana Eparaima's husband. He had no blood links to the area himself.321 Judges H.F. Edger and H.D. Johnson affirmed the original decision on 13 July 1901 and ordered that a total of £4 be paid to the Public Account out of the money deposited as security for the costs of appeal by 313 List of owners from order dated 22 March 1899, MA-MLP 1902/67, NA, Wellington 314 Court Order, title investigation, 22 March 1899, Hamilton MLC BOF C488 315 Email from Garrick Cooper, 24 February 2000 316 Order of the Court, 22 March 1899, MA-MLP 1902/67, NA, Wellington 317 Particulars of Te Kauanga Whenuakite Blocks, September 1901, reference to Order dated 23 March 1899, MA-MLP 1902/67, NA, Auckland 318 Court Order, 22 March 1899, Hamilton MLC BOP C488 319 Court Orders, 22 March 1899, Hamilton MLC BOP C488 320 Notices of Appeal, 3 May 1899,17 May 1899, 6 June 1899: BACS A622 12b C488, NA, Auckland 321 Verbal communication from Garrick Cooper, Tauranga, 10 March 2000 Wai 754 78 Raima Te Hemoata, Henare Aperahama and others. The judges also ordered that the £5 deposited as security by Mita Whakatau and others be paid to W.N. Stehr of Coromandel on behalf of the respondents to cover costs incurred in defending their titles to the blocks.322 As will be seen below regarding Te Kauanga Whenuakite 3, the £5 awarded to the respondents did not cover the costs of defending the original award. 7.3 Te Kauanga Whenuakite 1 Land taken for roading In 1920 1 acre 0 roods and 30 perches was taken for a road from Te Kauanga Whenuakite 1 under the Public Works Act 1908 although, under section 94 of the Act, Maori land occupied by any burial site was not to be taken for public works.323 The land taken left a balance of 8 acres 3 roods and 10 perches.324 The following year Native Land Court Judge MacCormick awarded compensation of £1 10 shillings to Hapimana Hikihiki, Miria Teko and Waara Tiaia (10 shillings each).325 Neither the Department of Lands and Survey nor the Waikato-Maniapoto District Maori Land Court had any record of the claimant's addresses.326 However, on 10 February 1922 the Registrar of the Court informed the Under Secretary of the Lands Department that under the circumstances the Waikato-Maniapoto District Maori Land Board was prepared to distribute the money.327 It is not known if the Land Board located the claimants and paid them the compensation owing. Alienation & return to Maori ownership The remaining 8 acres 3 roods and 10 perches of Whenuakite 1 was purchased from 'James Hudson and others' by John Steele Clark, a farmer of Coroglen, on 13 July 1955 for £26.8.9 (£3 per acre). The Waikato-Maniapoto District Maori Land Court approved the transaction on 25 February 1955.328 The block was later returned to Maori ownership when it was transferred to Reo Moana Turoa.329 The Turoa whanau were descended from Paraku Rapana (a contemporary of Rawiri Taiporutu, Matahera Whakatau and Eparaima Kingi) who had Ngati Hei interests in the Coroglen area. 330 322 Court Order (investigation of title), 13 July 1901, Hamilton MLC BOF C488 323 Section 94, Public Works Act 1908, cited in Maori Land Legislation Manual, CFRT, Wellingon, 1994 324 NZ Gazette 32,4 June 1920, p.1806. Plan SO 20450, LINZ, Hamilton 325 Compensation Order, 26 October 1921, Hamilton MLC BOF C488 326 Under Secretary, Lands and Survey Department, to Registrar, Waikato-Maniapoto District Maori Land Court, 9 December 1921, Hamilton MLC CCF C488 327 Registrar, Waikato-Maniapoto District Maori Land Court, to Under Secretary, Lands and Survey Department, 10 February 1922, Hamilton MLC CCF C488 328 CT 1215/96 (copy); Approval of Alienation form, 9 March 1955, Hamilton MLC BOF C488 329 S.182140, reference on Memorial Schedule, Hamilton MLC BOF C488 330 Email from Garrick Cooper, 24 February 2000 Wai 754 79 7.4 Te Kauanga Whenuakitel: issues arising The deduction of roading from Te Kauanga Whenuakite 1 and the subsequent sale of the block in 1955 are of concern given that Te Kauanga Whenuakite 1 was an urupa which had been deemed 'absolutely inalienable' when its title was awarded in 1899. Restrictions placed on Maori lands during the late nineteenth century were progressively eroded during the 1900s. Section 207 of the Native Land Act 1909 'invalidated all existing restrictions on the alienation of Maori freehold land, whether imposed by "any Crown grant, certificate of title, order of the Maori Land Court, or other instrument of title, or by any Act". '331 Given the significance of urupa to Maori, the removal of the 1899 restrictions on Te Kauanga Whenuakite, the failure to give the block the status of a burial reserve, and the taking of part of the land for roading, despite its being an urupa, suggests a lack of consideration on the part of the Crown for Maori whose tipuna were buried on the block. 7.5 Te Kauanga Whenuakite 3 Alienation Expenses incurred at the title hearings and rehearings of the Te Kauanga Whenuakite blocks placed pressure on the Te Kauanga Whenuakite 3 trustees to sell the block to settle the associated debts. In August 1901 Rahera and Erana Tanui asked land purchase officer Gilbert Mair, if the Crown was interested in purchasing Te Kauanga Whenuakite 3. 332 In a letter informing Sheridan of the offer to sell, Mair noted that the pair had been offering the block to the Crown for sale 'for some years' and that it was 'a very desirable block to acquire'. The land was near new mines at Kapowai. 333 Although Sheridan informed Rahera that the Government was not buying Maori land 'at present' and suggested that she seek out a private purchaser, he was interested in the price she wanted for the land.334 Rahera promptly informed him that the block was 'good gold field land, auriferous' and 'cheap' at ten shillings per acre. 335 Mair explained to Sheridan that Rahera and Erana were under considerable pressure to sell the block in order to pay for costs incurred at the title investigation and rehearings. They had borrowed money from Europeans who had since taken steps to have Te Kauanga Whenuakite 4 and 5 sold to recover their money. [Rahera and Erana] are quite ready and anxious to sell as if they do not do so they will probably lose the No.4 and 5 blocks which they reserved for themselves and their children and asked the Court to make inalienable. They explain that owing to very heavy expenses incurred in carrying on the investigation of titles of these blocks, also rehearings of, they borrowed money from certain Europeans who have since obtained judgments and have taken the 331 Ibid, p.82 332 Telegram, Rahera Tanui and Erana Teonerere to Captain Mair, 26 August 1901, MA-MLP 1 1902/67, NA, Wellington. 333 Mair to Sheridan, 28 August 1901, MA-MLP 11902/67, NA, Wellington. 334 Telegram, P. Sheridan to Rahera Tanui, 30 August 1901, MA-MLP 1 1902/67, NA, Wellington 335 Telegram, Rahera Tanui to P. Sheridan, 4 September 1901, MA-MLP 1 1902/67, NA, Wellington Wai 754 80 necessary steps to have Kauanga-Whenuakite Nos. 4& 5 sold by order of the Sheriff of the Supreme Court in Auckland on December i h [1901] at Cochranes [illegible].336 Survey liens imposed in error on blocks 5 and 6 may have added to the pressure felt by Rahera and Erana. The Court awarded liens of £50.48 on No.5 and £1.12.8 on No.6 (both with 5 per cent interest for 5 years to be computed from 2 March 1899) in favour of the surveyor A.L. Foster. In doing so, the Court overlooked the fact that all survey costs were to be paid for by the sale of Te Kauanga Whenuakite 3. 337 Foster appears to have sought payment by attempting to sell No.5 through the Registrar of the Supreme Court.338 Just who would receive the proceeds of any sale of Te Kauanga Whenuakite 3 caused Government officials some concern. Inquiries into the status of the land revealed that Rahera and Erana held the land as co-trustees with the Chief Surveyor and that the proceeds of sale were supposed to pay for the survey and other costs associated with the Te Kauanga Whenuakite title investigations. There was some concern expressed that Rahera and Erana wished 'to get the manipulation of the funds into their own hands' as they did not appear to have consulted their co-trustee, the Chief Surveyor, about the sale of the block.339 In a letter sent to W.E. Nicholson - who had written to MHR James McGowan on Rahera and Erana's behalf - McGowan stated that if the two women 'will confer with their co-trustee, the Chief Surveyor at Auckland, arrangements can probably be made for the purchase of the land by the Crown'. However, he stressed that 'they cannot under any circumstances be allowed to assume the rights of beneficial ownership or to appropriate any portion of the proceeds of sale to their own personal use'. 340 The Chief Surveyor, Gerhard Mueller, recommended to Rahera and Erana that they sell the block for five shillings per acre, half the amount Rahera had initially proposed.341 Five shillings per acre was, according to Sheridan, the recommended minimum to be paid for lands in the Thames gold fields. Sheridan had thought that the block might be worth a little more given its proximity to the new Kapowai goldfields.342 However, the Warden had advised Mueller that the new fields were not yet assured of success and he did not think that the Government should pay more than the recommended five shillings per acre.343 336 Gilbert Mair, Gisborne, to Sheridan, 20 November 1901, MA-MLP 1 1902/67, NA, Wellington 337 Record of liens on Te Kauanga Whenuakite 5 and 6, MA-MLP 1 1902/67, NA, Wellington 338 Telegram, Jas W. Broone, Registrar (NLC?) to P. Sheridan, Land Purchase Department, 26 September 1901, MA-MLP 1 1902/67, NA, Wellington 339 P. Sheridan to Premier Seddon, 20 September 1901, note on letter from Katerina Nokorima to Premier Seddon, 16 September 1901, MA-MLP 1902/67, NA, Wellington 340 Hon James McGowan to W.B. Nicholson, Gumtown, 30 September 1901, MA-MLP 1902/67, NA, Wellington 341 Telegram, Gerhard Mueller, Chief Surveyor to P. Sheridan, Native Department, 25 October 1901, MA-MLP 1902/67, NA, Wellington 342 Telegram, P. Sheridan, Native Department to Gerhard Mueller, Chief Surveyor, 4 October 1901, MA-MLP 1902/67, NA, Wellington 343 Telegram, Gerhard Mueller, Chief Surveyor to P. Sheridan, Native Department, 28 October 1901, MA-MLP 1902/67, NA, Wellington Wai 754 81 Once the price of the block was settled, Sheridan wished to ensure that the payment for the block was distributed appropriately. He advised the Chief Surveyor that '[a]fter paying all accounts in strict accordance with the order of the Court the balance should be paid over to the Public Trustee with a statement of amounts disbursed' .344 Mair had earlier informed Sheridan that he did not know if the Court had 'fixed the beneficiaries who are to share in any residue', but noted that, 'there are only a half a dozen and they are mostly the children and grandchildren of Rahera and Erana' .345 In light of this, Sheridan added to his advice to the Chief Surveyor that 'the Court will probably have to amplify its order by directing how the amount (if any) handed over to the Public Trustee is to be disposed of' .346 The Crown paid a total of £790 for Te Kauanga Whenuakite 3 in December 1901. After survey liens, court fees and debts amounting to approximately £440 had been paid, the balance of £349.15.5 was paid to the Public Trust Office. The £440 deducted from the purchase money including £65 paid for a new survey of the block,347 £59.13.9 paid for outstanding survey charges on Te Kauanga 5 and 6, and £200 was paid to W.B. Nicholson as a 'refund for monies advanced'. 348 The final distribution of the remaining purchase money is unclear. On 24 May 1902 Raunui Tanui and Erana Tanui signed a document consenting to the payment of the purchase money to Erana Te Oneone and Rahera Tanui. Rea Tawhiti and Hohepu Pou signed the same document on 21 June 1902.349 On 12 August 1902 the Native Land Court ordered the balance of the purchase money to be paid to Rahera and Erana.350 In a letter to Sheridan, Gilbert Mair commented that Rahera and Erana had had to wait in Thames for two weeks for the Court hearing. He noted that 'they were ill and hadn't a penny so I advanced them £10 privately which I am doubtful of ever seeing again'. Mair also stated that the women had often told them that they owed money to a Mr Dugald Bryce.351 Bryce had written to the politician James McGowan on 22 August 1902 to ask him to stop payment of the money to Rahera and Erana who owed him £29.10.0 and £40.10.0 respectively. Bryce informed McGowan that he had got an order in the Resident Magistrates Court on 15 January 1901 for the two women to pay him if they subsequently sold land to the Crown. He had heard that they had received several hundred pounds in December but his money had not been paid.352 On 11 September 1902 McGowan replied that they money was still in the hands of 344 P. Sheridan to the Chief Surveyor, 22 November 1901, draft on letter from Gilbert Mair to P. Sheridan, 20 November 1901, MA-MLP 1 1902/67, NA, Wellington 345 Gilbert Mair to P. Sheridan, 20 November 1901, MA-MLP 1 1902/67, NA, Wellington 346 P. Sheridan to the Chief Surveyor, 22 November 1901, draft on letter from Gilbert Mair to P. Sheridan, 20 November 1901, MA-MLP 11902/67, NA, Wellington 347 Correspondence between P. Sheridan and R. Gill, 15 & 17 January 1902, on back of Memo, Registrar Native Land Court, to P. Sheridan, 10 January 1902, MA-MLP 1 1902/67, NA, Wellington 348 Breakdown of purchase money and charges, Assistant Surveyor General to H.F. Edger, Judge, Native Land Court, 16 April 1902, BACS A622 12b c488, NA, Auckland 349 Document consenting to Court directing whole of balance of purchase money to be paid to Erana Te Onene and Rahera Tanui, signed 24 May 1902 and 21 June 1902, BACS A622 12b c488, NA, Auckland 350 Court Order, 12 August 1902, Hamilton MLC CCF C488. Gilbert Mair to Sheridan, 6 September 1902, MA-MLP 1 1902/67, NA, Wellington 351 Gilbert Mair to Sheridan, 6 September 1902, MA-MLP 1 1902/67, NA, Wellington 352 Dugald Bryce, Mercury Bay, to the Hon Mr McGowan, 22 August 1902, MA-MLP 1 1902/67, NA, Wellington Wai 754 82 the Public Trustee who would, 'no doubt, as far as possible, meet any lawful order made upon it'. He noted, however, that '[s]uch order should be sent to the Public Trustee at once as the money will, in the course of a few days, be payable to the Natives on demand.'353 The Public Trustee, in reply to a query from Sheridan, stated that the remaining money, £349.15.5, had been telegraphed to Auckland to Rahera and Erana's solicitor Mr F. Earl on 8 September 1902. On 15 September Sheridan informed the Public Trustee that the order of the Court 'does not mature for 3 months that is until 12 November'. 'If possible', he asked, could the Trustee 'in the meantime try and arrest payment to Mr Earl': presumably in order to sort out the outstanding debts to Dugald Bryce.354 The file ends at this point. It is not known if Bryce received his money or if Rahera and Erana received the full amount from their solicitor. 7.6 Te Kauanga Whenuakite 3: issues arising Survey costs and pressures to sell Approximately 38 per cent (3160 acres) of the total area of the Te Kauanga Whenuakite blocks (8280 acres) was set aside at the 1899 title investigation to pay for all the survey and other expenses incurred by the titleholders. This was a significant proportion of the total area of the parent block. Robyn Anderson has argued in her study of Hauraki lands that survey costs incurred in the course of title investigations could result in the need for titleholders to sell far more land to cover the costs than they had anticipated. She notes that in 1899 one land purchase officer in the district described the surveyors as 'rapacious pakehas' .355 Such a comment gives rise to questions about the fairness of survey charges imposed on Maori who were compelled under the legislation to have their land surveyed if they wished to secure their interests in land by clothing it in a Crown title. The survey and other debts incurred on the blocks placed pressure on Erana and Rahera to sell the block promptly in order to retain other blocks under threat from Europeans from whom they had borrowed money. They were thus in a very vulnerable position when they approached the Crown and asked it to purchase the block. Rahera had wished to sell the block at 10 shillings per acre. However, she and Erana were in no position to bargain with the Crown when it offered the minimum of 5 shillings per acre for the block. Gilbert Mair's comment in 1902 that the pair were ill, 'hadn't a penny' and needed to borrow £10 from him to cover the costs of waiting two weeks in Thames to receive the purchase money demonstrates the plight of the women. Erana and Rahera were at a severe disadvantage in their dealings with the Crown and with those to whom they were indebted. The survey and associated costs incurred in 1899 imposed a burden which prevented them from negotiating with the Crown on anything approaching an equal or balanced footing. They were in no 353 James McGowan, Office of the Minister of Mines, to Dugald Bryce, Mercury Bay, 11 September 1902, MA-MLP 1902/67, NA, Wellington 354 P. Sheridan, Land Purchase Dept, to the Public Trustee, 15 September 1902, note on the back of telegram from Native Land Court Registrar lW. Browne(?) to Sheridan, 15 September 1902, MA-MLP 1 1902/67, NA, Wellington 355 Robyn Anderson, The Crown, the Treaty and the Hauraki Tribes, 1880-1980, vo1.6, Hauraki Maori Trust Board, Paeroa, 1997, p.65 (Wai 100, A7; Wai 406, C16) Wai 754 83 position to refuse the purchase price determined by the Crown, and agreed to by their co-trustee, the Chief-Surveyor, in 1902. One Treaty partner clearly had a tremendous advantage over the other in the transaction. Robyn Anderson has described the dissatisfaction felt by Hauraki Maori in the late nineteenth century over their 'inability to hold onto their land and resources' and 'the liabilities under which they laboured when it did come to selling - most especially, court and survey costs, and the Crown's quasi-monopoly on price' .356 She also notes that the Crown had been advised by its own officers in the 1870s and 1880s that 'Maori were in danger of "impoverishing themselves" and becoming a burden on the state' .357 Given this state of affairs it can be argued that the Crown had a duty to ensure that Maori were not placed under the sorts of pressures placed on Erana and Rahera to sell large areas of ever-diminishing tribal land in order to secure Crown titles to land previously held under customary rights. Distribution of the purchase money Crown officials went to some lengths to ensure that the purchase money was distributed appropriately. However, the vague nature of the Native Land Court's 1899 order regarding the distribution of the money created some difficulty in determining who was entitled to receive the money left after all debts had been paid. The sale of the block was intended to pay for all costs associated with the seven Te Kauanga Whenuakite blocks. However, it is not clear whether Rahera and Erana, and their children, were intended to be the sole recipients of the remaining money, or whether they, as trustees, were to distribute the money more widely amongst the owners of the seven blocks. The Court in 1902 apparently considered it appropriate to hand the money over to Rahera and Erana. However, no evidence has been found to show the exact amount of money they received or whether it was distributed to the other Te Kauanga Whenuakite owners. 7.7 Te Kauanga Whenuakite 6 Partial alienation of interests During the 1910s a local settler purchased several shares in Te Kauanga Whenuakite 6. On 26 April 1912 Rapata Taroroa sold his interest in the block to William Begg Nicholson, a settler of Gumtown, for £3.6.0. Dugald Boyce, a Justice of the Peace, witnessed Rapata's signature and declared that he had sufficient knowledge of English to understand the nature of the deed he had signed. The Waikato-Maniapoto Maori Land Court confirmed the alienation of Rapata Taroroa's share on 9 December 1913.358 Wiremu Taiporutu also sold his share to Begg but while the transfer was confirmed on 26 February 1915 it was not registered. 359 356 Ibid, p.177 357 Ibid. 358 Transfer 77686, LINZ, Hamilton 359 Memorial Schedule, Hamilton MLC BOF C488 Wai 754 84 Begg's purchase of interests in the block prompted an updating of successions in the block. On 12 December 1916 the Court issued succession orders for Harata Noki Taiporutu's interest in Te Kauanga Whenuakite 6. Her interest was inherited by the following people in equal shares: 36o Successor Payment from W.B. Nicholson 1915, 1916361 1. Taumaha Kara F. £4 (15/2/16) & 10/- (24/2/16) 2. Tutokatea Kuni, aka Hare Tutokatea M. 12 years £1.13.0 (14/9/15) 3. Tuihana Te Anini F. - 4. Pokaihaku Te Anini M. £1.13.0 (6/9/15) The Court appointed Hohepa Mataitaua as the trustee for Tutokatea Kuni362 and received a fee of 3 shillings for the succession order. Hare Tutokatea (also known as Tutokatea Kuni) , Pokaihaku Te Anini and Taumaha Kara transferred interests to Begg and received provisional confirmation of the transactions on 25 December 1915 and 8 June 1916.363 Some of the money they received for their interests is recorded in the table above. An undated and unsigned note on the Court's memorial schedule for Te Kauanga Whenuakite 6 recorded that although purchase money 'had been accounted for', the status of these transfers was uncertain given they had only been provisionally confirmed.364 The block had been valued at £21 in 1912. Nicholson paid for interests at a rate based on between £23 and £25 total value. However, a new valuation in 1915 set theblock's value at £95.365 A note on the Maori Land Board file cover noted that the price was to be increased to £95 and that confirmation would not be endorsed until 'a small sum of interest' was paid.366 Subsequent events suggest that Begg failed to complete the purchase of these shares in the land and did not attempt to purchase the entire block. Harata's successors retained their interests in the block despite having received partial payments from Nicholson. An undated list of owners, possibly drawn up in 1919, recorded the following owners as having shares in the block (including Taumaha Kara's successors: Ngawhira Tanui, Miriama Tanui, Maraea Tiki Winiata, Newara and Toko Nikitini367).368 360 Succession Order, 12 December 1916, Hamilton MLC BOF C488 361 Receipts, witnessed and signed by licensed interpreters, BCAC AIlO 7973 box 104, NA, Auckland 362 Trustee Order, 12 December 1916, Hamilton MLC BOF C488 363 Memorial Schedule, Bamilton MLC BOF C488; Applications for confirmation of transfer of interests, BCAC AIlO 7973 box 104, NA, Auckland 364 Memorial Schedule, Hamilton MLC BOF C488 365 Valuations; Applications for confirmation of transfer of interests, BCAC A110 7973 box 104, NA, Auckland 366 Registrar Waikato-Maniapoto Maori Land Court to Under Secretary Public Works Department, 26 January 1920; Note on file cover, 8 June 1916, BCAC A110 7973 box 104, NA, Auckland 367 Hauraki MLC minute book 92, pp.39-40, cited in email correspondence from Garrick Cooper, 28 February 2000 368 List of owners, 19 July (year missing), Hamilton MLC CCF C488 Wai 754 85 1. W.B. Nicholson 2 2. Papu Tararoa M. 1 3. Tutokatea Kuni M. lA 4. Pokaihau Te Anini M. % 5. Eru Poti Perepe M. 1128 6. Pane Poti Perepe F. 1128 7. Hoki Poti Perepe F. 1128 8. Kio Poti Perepe F. 1128 9. Piri Poti Perepe M. 1/28 10. Timi Poti Perepe M. 1/28 11. Mereana Poti Perepe F. 1128 12. Ngawhira Tanui (Reweti) F. 9/16 13. Maraea Tiki Winiata F. 9/16 14. Newara Hikitini M. 9/32 15. Toko Nikitini M. 9/32 16. Miriama Kauwhata F. 9/16 17. Leah Helena Duffy F. Yz 18. Rachel Braun aka Rahera F. Yz Porona aka Rahera Poroni Total shares 7 Roading On 16 March 1920 the Crown took 1 acre 2 roods and 7.5 perches from Te Kauanga Whenuakite 6 for a road under section 389 of the Native Land Act 1909.369 This section preserved existing rights to take Maori land for roads under sections 92 to 96 of the Public Works Act 1908 and sections 70 to 72 of the Native Land Court Act 1894. Under section 389 (2) the Crown was not required to pay any compensation for land taken. The deduction of the land for roading left a balance of 40 acres 1 rood and 32.5 perches. In 1963 the owners' solicitors, Phillips and Powell, wrote to the Coromandel County Council seeking compensation for the taking of the land for the road. 370 The Chief Surveyor informed the County Clerk that under section 389 of the 1909 Act 'no compensation should be payable by reason of such taking'. He advised the Clerk to refer the matter to the Ministry of Works before making an application to the Maori Land Court for assessment of compensation.371 A review of LINZ records of compensation awarded for public works takings in South Auckland did not contain any references to Te Kauanga Whenuakite 6. No other evidence has been found to show if the owners eventually received compensation for the taking of the land. 369 Extract from NZ Gazette 32, 25 March 1920, Hamilton MLC BOF C488. SO 20450, LINZ Hamilton 370 Quoted extract in letter from H. Krogh, County Clerk, Coromandel County Council, to Chief Surveyor, Auckland, 23 January 1963, File 690011091 (Kauanga Whenuakite Blocks), LINZ, Hamilton 371 D.B. Hopcroft, Chief Surveyor (South Auckland), to the County Clerk, 29 January 1963, File 690011091 (Kauanga Whenuakite Blocks), LINZ, Hamilton Wai 754 86 7.8 Alienation 1961 In 1961 L.C. Oliver applied to have a meeting of assembled owners of Te Kauanga Whenuakite 6 held to discuss the sale of the block. Oliver owned land adjacent to the block and proposed to farm Te Kauanga Whenuakite 6 as a sheep and cattle unit. 372 Documents included with Oliver's application included a certified list of owners (including the same names recorded in the 1919 list above), a list of successors to be appointed to deceased owners, a statement that the block was unoccupied and valuation details.373 The list of likely successors included the Wai 754 claimants' tipuna 'Purangatawa Raweri Taiporutu' as successor to Tutokatea Kuni and Pokaihaku Te Anini, with a total share in the block of 0.5/7.374 A valuation carried out on 6 April 1961 recorded the capital value of the block as £760: £700 unimproved value, £30 worth of fencing and £30 worth of grass and cultivation.375 On 24 August 1961 an assembled owners meeting was held in Auckland to discuss the sale of Te Kauanga Whenuakite 6 for £850. The following eight owners attended the meeting in person or were represented by proxy. Owners present Shares 1. Maraea Tiki Winiata .5626 2. Rebecca Fleet .0625 3. Blake Davis .0625 4. Lilian Myrtle Edmonds McLeod .1250 5. Leah Henrietta Te Oneroa Badeley .1250 6. Rachel Margret Mills .1250 7. Joseph Davis .0625 8. Valerie O'Neil .0156 Total shares 1.1406 of 7 shares At the meeting Oliver's representative, Mr Walker, stated that the block was mainly covered in gorse and blackberry and informed those present that Oliver was prepared to pay any outstanding rates in addition to the £850 offered. The owners present unanimously agreed to sell the block to Oliver for the price proposed.376 On 18 December 1961 the Maori Land Court confirmed the owners' resolution to sell. The Maori Trustee subsequently carried out the alienation as the agent of the owners on 1 February 1962.377 The Office of the Maori Trustee received the payment money on 25 372 Declaration in support of application for confirmation of transfer of interests, 4 November 1961, BCAC A187 17/630 box 205, NA, Auckland 373 Miscellaneous papers, BCAC A187 17/630 box 205, NA, Auckland 374 List of successors to succeed to deceased owners, from H.O. Mc. Walker to Registrar Waikato Maniapoto Maori Land Court, 8 March 1961, BCAC A187 17/630 box 205, NA, Auckland 375 Registrar, Waikato-Maniapoto Maori Land Court, 6 April 1961, BCAC A187 17/630 box 205, NA, Auckland 376 Statement of proceedings of meeting of assembled owners, 24 August 1961, BCAC A187 17/630 box 205, NA, Auckland 377 Transfer 229175 & PR 39/90, LINZ, Hamilton Wai 754 87 January 1962. £4.16.9 was deducted for 'perusal fees' and the balance was distributed to the owners on 12 March 1962.378 7.9 Te Kauanga Whenuakite 6: issues arising Nicholson's attempts to purchase interests in the block Although W.B. Nicholson acquired two shares in Te Kauanga Whenuakite 6, the Native Land Board declined to approve his purchase of the shares of Harata Taiporutu's successors in the face of a significantly higher valuation of the block and Nicholson's failure to pay interest owing. In this case, the Board's action protected the Wai 754 claimants' tipuna from alienating their interests at a price well below the current valuation of the block. Roading: the Native Land Act 1909 The taking of the land from Te Kauanga Whenuakite 6 for roading, apparently without compensation, is of concern. The taking may have breached legislation in place at the time. Under sections 387 to 389 of the Native Land Act 1909, and section 127 of the Native Land Amendment Act 1913, the Governor 'could "without the consent of any person, and without liability to pay compensation to any person" layout and take roads on customary land where the Native Land Court had issued a freehold order within 15 years from the date of the order' .379 It could take a maximum of 5 per cent of the total area of the block. In Te Kauanga Whenuakite 6's case, approximately 3.75 per cent of the land was taken. However, the right to take land for roading was 'not exercisable after 15 years from the date title was ascertained on investigation "by the Native Land Court or otherwise'" .380 The title to Te Kauanga Whenuakite 6 had been issued in 1899, 21 years prior to the taking of the land for roading. The block thus fell outside the 15 year time limit specified in the legislation. In her report on public works takings of Maori land Cathy Marr has argued that the restrictions on the Crown's right to take land without compensation, such as the 5 per cent maximum and the 15 year time limit, 'appear to have been widely misunderstood or ignored' .381 Marr argues that the Crown failed to carefully supervise such takings and thus failed to ensure available protections were enforced.382 The discriminatory provisions which allowed the Crown to take Maori land without compensation were eventually abolished in the Native Land Amendment and Native Land Claims Adjustment Act 1927.383 This was, however, seven years too late for the owners of Te Kauanga Whenuakite 6 who may, in any case, have had land taken in breach of protections within the legislation. 378 Record of money received and distributed, Bound Ledger Account, Office of the Maori Trustee, Hamilton 379 Cathy Marr, Public Works Takings of Maori Land, 1840-1981, Waitangi Tribunal Rangahaua Whanui Series (working paper: first release), Wellington, May 1997, p.71 380 Ibid, p.71 381 Ibid, p.72 382 Ibid. 383 Ibid, p.71 Wai 754 88 Alienation procedure 1961 Te Kauanga Whenuakite 6 was alienated under the provisions of the Maori Affairs Act 1953. Under the Act, where land was owned by more than 10 owners the purchaser was required to apply to the Maori Land Court to call a meeting of assembled owners to discuss a resolution to sell the block for a specified price. The Registrar of the Court was required to notify owners of the reason for the meeting and provide a copy of the resolution. The Registrar was, however, not obliged to ensure that all owners received notice of the meeting. Failure of an owner to be notified about the proceedings did not nullify any resolutions passed by those who did attend a meeting.384 The Act required that a quorum of at least three owners with voting rights be present for the entire proceedings. Owners unable to attend meetings could appoint proxies to represent their interests.385 Resolutions could be accepted, rejected or amended and dissenting owners could record their objections on a memorial of dissent. 386 In the event that a resolution was agreed to, an application would be made to the Court for the resolution to be confirmed. The Court was required to examine details of the transaction and consider issues of fairness and equity similar to those incorporated in the Native Land Act 1909. The purchaser was required to file a current government valuation of the land. However, the 1953 Act did not require the purchaser to provide evidence that the vendors had sufficient other lands on which to support themselves.387 Assembled owner meetings In the case of Te Kauanga Whenuakite 6, the purchaser, L.c. Oliver, fulfilled all the legal requirements and the Land Court confirmed the alienation. However, the low quorum requirements under the legislation require some consideration. The minutes of the assembled owners meeting held in 1961 did not record the total number of owners in the block. The most up-to~date list of owners contained in the Maori Land Court block order file recorded a total of 18 owners in the block in 1919, including W.B. Nicholson. The 8 owners who did attend the 1961 meeting, in person or by proxy, together held 1.1406 out of a total of 7 shares in the block. Their individual shares ranged from .0156 shares to .5626 shares. That some owners held such small interests in the block suggests that ownership had risen exponentially since 1919. The total number of owners in the block may have exceeded 100 people. The low quorum requirements under the 1953 Act meant that it was possible that a small number of individuals could determine the fate of land held by many more owners. The lack of any legal requirement to ensure that all interested parties were notified and had an opportunity to attend assembled owner meetings also undermined the interests of owners who, for whatever reason, were not aware of the proposed alienation of the land and were unable to voice their objections. Successors who had not yet been appointed to the interests of deceased owners were not entitled to vote at assembled owner meetings. In the case of Te Kauanga Whenuakite 6, this meant that the Wai 754 claimants' tipuna 'Purangatawa Raweri Taiporutu' would not have been 384 Section 307 Maori Affairs Act 1953 385 Section 309 Maori Affairs Act 1953 386 Sections 312 and 313 Maori Affairs Act 1953 387 Sections 315,318, Part XIX, Maori Affairs Act 1953 Wai 754 89 entitled to vote at the meeting had he attended. Although the eight Te Kauanga Whenuakite 6 owners who did attend the meeting voted unanimously in favour of the resolution to sell the block, it should not be assumed that all owners, or even a majority of those who held interests in the land, necessarily agreed that the land should be sold. Wai 754 90 Figure 8: Te Kauanga Whenuakite 1, 3 and 6388 WHENUAKITE [j GJ""TOwj Rautawhiri 0 Te Ao 388 Based on survey map in Hamilton MLC CCF C488. Inset: Title Order, 22 March 1889, Hamilton MLC BOFC488 Wai 754 91 CHAPTERS Waipatukahu Summary Waipatukahu Waipatukahu Waipatukahu Waipatukahu lB2B le Tapu SB Title 1922 (parent block 1958 1889 1895 awarded: 1870) (with urupa) Ownership 48 owners, 'The people of 'The people of 11 owners, including Eparaima N gatitamatera' N gatitamatera' including 8 Kingi's successors. (313 owners) (313 owners) successors to Eparaima Kingi Alienation 1930 1967 1967 1986: residence D. Mackay (for Finlay Lloyd Partial alienation site licence sold Thames County Phillips to Tinirau to Crown. Council)389 Builders Ltd Bulk retained (Tapu B). (31.1608 Urupa retained hectares) (Tapu A) Area: 4a.0r.38p. 30 perches TapuB: Site licence: 8a.3r.20p. 4046 sq. metres Price: £380 £900 $4000 $15,455 Alienation PR 176/36 CT 8A11234 CT lOD/32 Transfer title: Transfer 241881 Transfer S.397398 H.916397.2 Plan 14942 18206 20023 4500 (ML): 8.1 Location Waipatukahu Tapu, Waipatukahu 1C and Waipatukahu 1B2B lie north of Thames between the old township of Hastings (Tapu) and the west coast of the Coromandel Peninsula. Waipatukahu 5 lies inland from Tapu. 8.2 Title Investigations 1870: Waipatukahu 1 The Native Land Court awarded a small series of blocks along the Waikawau coast to Ngati Tamatera in 1870. Among these blocks was Waipatukahu 1, a block of 10 acres 3 roods 10 perches. The block was 'made inalienable by sale, gift or mortgage,or by 389 Clerk and Rate Collector for Thames County Council, Hamilton MLC BOF C600 Wai 754 92 lease for a longer period than twenty one years until subdivided' .390 10 people, including Wiremu Kingi, the Wai 754 claimants' tipuna, were included in the title of the block:391 1. Tanumeha Te Moananui 6. Haora Tupaea 2. Wiremu Kingi 7. Tahana Potiki 3. Ereatara Taraia 8. Pereoka Te Putu 4. Haora Tareranui 9. RakenaKawa 5. Ni Marata 10. Nepihana These people, together with the following 12 individuals, were also registered as owners under section 17 of the Native Land Act 1867:392 1. Hirawa Te Moananui 7. Titi Kawhena 2. Te Poroa 8. Wairakau 3. Teretiu 9. Hiriana 4. Eparaima Kingi 10. Pita Te Heihei 5. Renata Kingi 11. Reria Karepe 6. Mihi Keiti 12. Tara? (illegible) 1878: the Waikawau reserves (Waipatukahu 5, Waipatukahu Tapu) In 1878, following six years of purchase negotiations, the Native Land Court awarded 44,246 acres of the Waikawau block to the Crown. However, it also set aside a number of blocks, to be issued with Crown Grants, that were intended to be inalienable reserves. These reserves inc1uded:393 • Waipatukahu Tapu 15 acres 2 roods Held in trust for the people of Ngati Tamatera. • Waipatukahu 5 1020 acres. 19 owners, including To still be subject to the Eparaima Kingi, with equal Goldfields Cession shares. Agreement Eparaima Kingi's fellow Waipatukahu 5 titleholders inc1uded:394 1. Meha Te Moananui 11. Mihi Keeti Tamati 2. Te Tihitapu Te Moananui 12. Titikawhena Tamati 3. Hirama Te Moananui 13. Teretiu Tamati 4. Heneri Te Moananui 14. Te Poroa Kingi 5. Te Papu Makuiri 15. Eparaima Kingi 6. Peke Te Moananui 16. Rerepo Kingi 7. Kara Te Moananui 17. Marara Kingi 8. Aperahama Te Reiroa 18. Ereatara Taraia 390 Court Order, 18 November 1870, Hamilton MLC BOF C198; Alexander, Part I, p.354 391 Certificate of Title, 18 November 1870, Hamilton MLC BOF C198 (2) 392 Court Order and list of owners registered under section 17, 18 November 1870, Hamilton MLC BOF C198 393 Alexander, Part I, p.363 394 Grantees, Waipatukahu Reserve, MLC BOF C398, Hamilton MLC; Alexander, p.369 Wai 754 93 9. Aihe Pepene 19. Te Eniana te Ahu 10. Reha Aperahama The reserves were vested in the Crown under an order of the Native Land Court in trust for the Maori owners. Grants could not be issued for them in this situation without rendering the trusts inoperative. However, this arrangement did not suit the owners who wished to lease some reserves but were unable to do so. A provision inserted in the Native Promises and Contracts Act 1888 rectified the situation and titles were issued for Waipatukahu Tapu on 14 May 1889 and for Waipatukahu 5 on 19 August 1892. The delay for the latter title was due to errors made in the 1878 survey.395 Under the Act the reserves were to be 'inalienable except by lease of twenty one years, without the assent of the Governor' .396 8.3 Existing research David Alexander has summarised the proceedings of the 1878 title investigation in his report on the Hauraki Tribal lands. 397 Matthew Russell has analysed the proceedings, their significance and their implications in more detail in his 1997 report on the Waikawau Reserves.398 Readers are recommended to consult Russell's report regarding the ownership of the blocks, the nature of the trusts imposed on them and the wider question of a tribal endowment. Alexander and Robyn Anderson have also examined the wider question of the Crown's purchase of Waikawau in 1878.399 The alienation of the Waikawau block was not included in the commission for this report. Readers are advised to consult Alexander and Anderson's reports regarding the history of the Waikawau block. 8.4 Waipatukahu SA Alienation The restrictions placed on the Waikawau reserves, including Waipatukahu 5, proved of limited use as mechanisms to keep the blocks in Ngati Tamatera hands. The Crown removed the restrictions on at least eight of the blocks between 1889 and 1893. It proceeded to purchase eight blocks: one in 1889 and seven in the mid-1890s.4oo The Crown began purchasing interests in Waipatukahu 5 in December 1892 and removed the restrictions from the block in February 1893. However, the eight successors of Eparaima Kingi and three of the six successors of Marara Kingi declined to sell their interests. On 1 August 1895 their interests were partitioned out and the block divided as followS: 401 395 Alexander, Part I, pp.363-364; Matthew Russell, Waikawau Reserves, report commissioned by the Waitangi Tribunal for Wai 418, November 1997 (Wai 418, A2; Wai 686, A13), pp.12-14 396 Russell, p.14 397 Alexander, p.361 398 Russell pp.11-12 399 Alexander, Part 1, pp.353-362; Anderson, vol.4, pp.218-221, 347-248 400 Russell, p.15 401 Alexander, Part I, pp.368-370. Wai 754 94 • Waipatukahu 5A 988 acres Awarded to the Crown.402 • Waipatukahu 5B 78 acres Awarded to the non-sellers. 5B non-sellers403 Sex, age Share Eparaima Kingi' s successors 1 share 25 March 1893 1. Reriana Eparaima F.adult 1/8 2. Hori Eparaima M.adult 1/8 3. Hera Eparaima F.adult 1/8 4. Wiremu Eparaima M.adult 1/8 5. Aka Eparaima M.14 1/8 6. Ani Eparaima F.12 1/8 7. Mama Eparaima F.13 1/8 8. Pakira Eparaima F.(grandchild) 1/8 3 of Marara Kingi's 6 successors 112 share 4 April 1883 1. MarataHape F.9 1/6 2. Ani Parete F.7 1/6 3. Piringa Moke F.5 1/6 5B has not been alienated although a small part of the block was purchased by the Crown in 1986. See below for a discussion of the later history of 5B. 8.5 Waipatukahu 1 & Waipatukahu Tapu Pressure to purchase land for a recreation reserve ill September 1911 the Government received a petition from 31 'Ratepayers, Electors and Residents of Tapu' asking that it purchase 'the piece of Native Land lying between the foreshore and the Main Road at Tapu' .404 The blocks involved were Waipatukahu 1 and Waipatukahu Tapu. The petitioners gave the following grounds for seeking the purchase of the land by the Crown: 1. Several petitioners had lived on the land for over 25 years 'without any title thereto other than that of occupation'. 2. The Maori owner did not utilise the land, and had not utilised it for 'some considerable time past.' 3. The wharf at Tapu was on the land and could only be accessed by crossing the blocks. 4. Part of the land had been used as a recreation ground by the petitioners and local school students. 5. The cemetery at Tapu was on the land. 402 Auckland Deed 1938 (Alexander ROD A250.5-A250.7) 403 Succession Order, 25 March 1893; List of succession orders made, undated; list of non-sellers, undated, MLC BOF C398, Hamilton MLC 404 Petition to Thames County Council, received 5 September 1911; Letter forwarding petition, County Clerk, Thames, to E.H. Taylor, MP, Wellington, 15 September 1911, MA-MLP 1 13/9, NA, Wellington Wai 754 95 6. In summer large numbers of visitors from Thames and the Auckland district camped on the land. and, perhaps of most concern to the petitioners, 7. 'the owners of the said land are liable to close the same for Public use at any time as they have done other lands similarly situated within this district' . The petitioners wanted the Crown to purchase the land 'with a view to having [a] portion set aside for residence and business sites and the balance for a Public Recreation Ground and Reserve' .405 The Thames County Council favoured the proposed purchase 'as the matter would be placed in a far more satisfactory state if the Council had control of the land, enabling them to effectively protect the wharf and main road and thus give a better outlet by the sea than at present exists'. The County Clerk also noted that the Council had already used a Government subsidy to protect the Tapu Wharf.406 J.W. Shannon, a Crown Lands Ranger, advised the Commissioner of Crown Lands that the land should be acquired for the purpose specified as soon as possible. He had been unable to identify the owners of the 10 acre block (Waipatukahu 1) but understood that 'Te Mananui' (Meha Te Moananui) was the only surviving owner of the 15 acre block (Waipatukahu Tapu) and that he was willing to sell 11 acres.407 Shannon believed that Te Moananui was one of three original owners of Waipatukahu Tapu. However, his understanding was later found to be incorrect. The block, as noted above, had been placed in trust for the people of Ngatitamatera. W.e. Kensington, the Under Secretary of the Land Department, forwarded the report to the Thames County Council on 4 January 1912 and advised that the land was valued at £7 per acre. He suggested that the best option would be for the Council take the land under the Public Works Act: . .. the only thing I can suggest is that the Thames County Council should exercise the powers conferred by the Counties Act and take the land for recreation purposes under the Public Works Act, leaving it to the Native Court to assess the compensation payable. It would then be quite in order for the Council to approach the Government and ask for a subsidy towards the purchase of the recreation ground, the same as has been done in numerous other cases. 408 The Council, however, did not act on Kensington's suggestion. 405 Petition to Thames County Council, received 5 September 1911 (forwarded to Government), MA MLP 1 13/9, NA, Wellington 406 County Clerk, Thames, to E.H. Taylor, MP, Wellington, 15 September 1911, MA-MLP 1 13/9, NA, Wellington 407 Report, J.W. Shannon, Crown Lands Ranger, to Commissioner of Crown Lands, 8 December 1911, MA-MLP 1 13/9, NA, Wellington 408 W.e. Kensington, Under Secretary Lands Department, to Thames County Council Clerk, 4 January 1912, MA-MLP 1 13/9, NA, Wellington Wai 754 96 Crown action to purchase Waipatukahu 1 and Waipatukahu Tapu In April 1913, prompted by a second petition submitted by Tapu residents, the Native Land Purchase Board decided to take action to purchase the Waipatukahu blocks.409 Waipatukahu 1 (lOa.3r.lOp) and Waipatukahu Tapu (l5a.2r.Op) were valued at £200 and £75 respectively.410 On 17 May 1913 the Crown submitted offers to the Waikato-Maniapoto District Maori Land Board under section 355 of the Native Land Act 1909 to purchase the two blocks at their government valuation. It also submitted applications to summon meetings of owners of the blocks under Part xvm Native Land Act 1909.411 These meetings do not appear to have taken place. On 28 July 1914 the Native Department Under Secretary, Thomas Fisher, informed the Native Minister W.H. Herries that nothing seemed to have come of the meeting directed on 17 May 1913.412 On 18 June 1914, just over a year after the Board had been directed to submit the Crown's offer to the owners of the two blocks, Native Department Land Purchase Officer W.H. Bowler reported on the blocks' ownership. He advised Under Secretary Fisher that the one identified surviving owner of Waipatukahu Tapu (Te Moananui) was reluctant to sell as some of his relatives were buried on the land. The European cemetery was also on this block. Bowler observed that 16 of the 23 identified owners of Waipatukahu 1 were dead and suggested that the Native Land Court be asked to appoint successors to their interests. This was the block the residents wished to have acquired by the Crown as a recreation reserve. 413 The Native Land Court duly appointed successors to the deceased owners of Waipatukahu 1 on 2 December 1914. Judge Holland issued a succession order listing 15 successors to Eparaima Kingi's share in the block. These 15, together with several others, also succeeded to the interests of Wiremu Kingi, Wairakau and Te Poroa. The shares of these three owners were allocated to their successors as follows: Successors Interests from: Eparaima Wiremu Wairakau Te Kingi Kingi Poroa 1. Hara Merehana F 118 1124 1124 1124 2. Hori Eparaima M 118 1/24 1124 1124 3. Hera Eparaima F 118 1124 1124 1124 4. Mita Eparaima M 118 1124 1124 1/24 5. Merehana Eparaima F 118 1124 1124 1/24 6. Ani Eparaima F 118 1124 1124 1124 409 Petition from Tapu residents to Crown, received 7 January 1913; T.W. Fisher, Under Secretary Native Department, to W.H. Bowler, Land Purchase Officer, Native Department, Auckland, 26 May 1913, MA-MLP 1 13/9, NA, Wellington 410 Valuations: Waipatukahu 1, 31 March 1913; Waipatukahu Tapu, 29 April 1913. Valuer General to Under Secretary Native Department, 3 May 1913, MA-MLP 1 13/9, NA, Wellington 411 Orders by Crown to purchase Native land; applications to summon meetings of owners (Waipatukahu 1, Waipatukahu Tapu), W.H. Herries, Native Minister, to Waikato Maniapoto District Maori Land Board, 17 May 1913, MA-MLP 113/9, NA, Wellington 412 TW Fisher, Under Secretary Native Department, to Native Minister, 28 July 1914, MA-MLP 1 13/9, NA, Wellington 413 WH Bowler, Land Purchase Officer, Auckland, to Under Secretary Native Department, Wellington, 18 June 1914, MA-MLP 1 13/9, NA, Wellington Wai 754 97 7. Petia Aperahama F 1/48 11144 11144 11144 8. Eparaima Aperahama M 1148 11144 11144 11144 9. Rina Aperahama F 1148 11144 11144 11144 10. Herni Aperahama M 1148 11144 11144 11144 11. Akarana Aperahama M 1196 11288 11288 11288 12. Keriana Aperahama F 1196 11288 11288 11288 13. Tutokatea Kuni414 M.10 1/48 11144 11144 11144 14. Te Arani Wiremu Eparaima F 1116 1/48 1148 1148 15. Te Kiriwera Eparaima 1116 1148 1148 1148 16. Renata Kingi M - 113 113 1/3 17. Puumu Marara M - 1/9 119 1/9 18. Ani Marara F - 119 119 119 19. Wairakau Pirika F - 1/27 1127 1127 20. HuraPirika M - 1127 1127 1/27 21. Pomana Pirika M - 1127 1127 1127 Note:- table does not include all titleholders in Waipatukahu 1 Following the issuing of the succession orders, Native Department Under Secretary Fisher requested the Waikato-Maniapoto District Land Board to proceed with the Minister's 1913 directive to summon a meeting of assembled owners for Waipatukahu 1.415 Prohibitions against private purchase of interests in Waipatukahu blocks In his letter of 18 June to Fisher, Bowler also advised that the Crown issue a proclamation to prevent private parties from negotiating with the owners to purchase the blocks.416 Bowler's warning of the need to guard against private purchase of the blocks was echoed by local resident Arthur Jones a few days later on 25 June 1914. Jones informed T.W. Rhodes, the Member of Parliament for Thames, that two private persons were attempting to buy the blocks and that the Crown needed to ensure the land was bought as a common for the people of Tapu.417 The first of a long series of Orders in Council prohibiting the private sale of Waipatukahu 1 and Waipatukahu Tapu was subsequently issued on the recommendation of the Native Land Purchase Board on 21 December 1914 under section 363 of the Native Land Act 1909.418 As shown below, similar orders were regularly reissued upon the expiry of prior orders well into the 1920s. Blocks Dates of Orders & Period extensions419 W. Tapu, W.l 21 December 1914 12 months 414 Hohepa Mataitaua was appointed trustee for Tutokatea Kuni. Trustee Order, 2 December 1914, MA-MLP 1 13/9, NA, Wellington 415 TW Fisher, Under Secretary Native Department, to WH Bowler, Land Purchase Officer, Auckland, 9 January 1915, MA-MLP 1 13/9, NA, Wellington 416 WH Bowler, Land Purchase Officer, Auckland, to Under Secretary Native Department, Wellington, 18 June 1914, MA-MLP 1 13/9, NA, Wellington 417 Arthur Jones, Tapu, to T.W. Rhodes, MP, Wellington, 25 June 1914, MA-MLP 1 13/9, NA, Wellington 418 NZ Gazette, No.1, 7 January 1915, p.31 419 Extracts from NZ Gazette, 1917-1927, Hamilton MLC BOF C198 Wai 754 98 W. Tapu, W.1 6 December 1915 6 months W. Tapu, W.1 12 June 1916 6 months ------3 month gap - no Order ------Tapu, lA, 1B 19 March 1917 12 months Tapu, lA, 1B 11 March 1918 6 months Tapu, lA, 1B 3 September 1918 18 months 1A,lB 21 March 1920 12 months 1A,lB 21 March 1921 12 months 1A,lB 13 February 1922 6 months 1A,lB 21 August 1922 18 months 1B2A,IB2B 24 March 1924 12 months 1B2A,IB2B 25 August 1925 18 months 1B2A,IB2B 13 April 1927 12 months Owners' reluctance to sell The owners of the two blocks were not eager to sell the land to the Crown. No succession orders were issued for Waipatukahu Tapu in December 1914 as the putative owners reportedly did not wish the applications to be proceeded with.420 The Waipatukahu Tapu owners' apparent reluctance to sell the block was firmly echoed in the response of the Waipatukahu 1 owners to the assembled owners meeting called to discuss the sale of the block to the Crown. Approximately 40 owners attended the meeting on 31 March 1915. They unanimously rejected the resolution to sell the block to the Crown at the government valuation.421 Fisher was undaunted by the owners' unwillingness to sell to the Crown. Despite the Waipatukahu Tapu owners' opposition to having new succession orders issued for the block, Fisher encouraged Bowler to get the Court to produce new orders so that the purchase process could continue: With regard to the Waipatukahu Tapu Block, I note that no succession orders have yet been made, and that certain Natives do not want the applications proceeded with. I think, however, that you should make endeavour to have the Court supplied with sufficient information to enable it to make the succession orders. It is desirable that the block should be acquired.422 Fisher similarly disregarded the unanimous opposition of those who attended the Waipatukahu 1 assembled owners meeting. On 26 May 1915 he directed Bowler to attempt to purchase individual interests in the two blocks at the government valuation.423 420 WH Bowler, Land Purchase Officer, Auckland, to Under Secretary Native Department, Wellington, 21 December 1914, MA-MLP 1 13/9, NA, Wellington 421 EP Earle, Registrar Waikato-Maniapoto District Maori Land Board, to Under Secretary Native Department, 18 May 1915, MA-MLP 1 13/9, NA, Wellington 422 TW Fisher, Under Secretary Native Department, to WH Bowler, Land Purchase Officer, Auckland, 9 January 1915, MA-MLP 1 13/9, NA, Wellington 423 TW Fisher, Under Secretary Native Department, to WH Bowler, Land Purchase Officer, Auckland, 26 May 1915, MA-MLP 1 13/9, NA, Wellington Wai 754 99 The relatively low government valuations given the blocks were perceived by several officials to be a major stumbling block in the Crown's purchase negations. In August 1915 Bowler informed Fisher that the few owners he had been able to contact would not consider selling for the small amounts offered. He also noted that owing to recent succession orders there were now 'upwards of 150 owners' .424 Two years later, having failed to purchase any interests in the blocks, Bowler informed C.B. Jordan, the new Under Secretary of the Native Department, that he thought he might meet with better success if the price were raised: 'The last valuations seemed to me to be very low in comparison with the prices realized for other sections along the coast, and I would suggest that new valuations be made' .425 Jordan evidently agreed that the prices offered appeared to be impeding progress. On 5 March 1917 he asked the Under Secretary of the Lands and Survey Department to give an estimate of 'the highest price the Crown can afford to offer' .426 On 30 March 1917 Crown Lands Ranger R.C. Pollock supplied new valuations to the Commissioner of Crown Land. He suggested that Waipatukahu 1 had a value of £30 per acre. Had it been required for subdivisional purposes it would have been worth £100 per acre. However, as it was wanted for a recreation reserve £30 was more appropriate. Pollock considered Waipatukahu Tapu to be worth £20 per acre.427 On 15 May 1917 Under Secretary Jordan informed Bowler that the Native Land Purchase Board had decided to offer 'considerably enhanced prices for the land' and would offer the £30 and £20 per acre recommended by the Lands Department.428 In Jordan's letter to the Lands and Survey Department Under Secretary he noted that Waipatukahu 1 had recently been subdivided and 'numerous successors have been placed in the title. It may be found', he considered, 'that the new owners are willing to sell their interests to the Crown' .429 Waipatukahu 1 was partitioned several times between 1916 and 1922. The interests of the claimant's tipuna were placed in the following partitions:43o Partition Block Area No. owners Wai 754 tipuna Alienation 1916 1A 2a.3r.32p. 10 No 1921 (part)431 IB 7a.3r.18p. 56 Yes 424 WH Bowler, Land Purchase Officer, Auckland, to TW Fisher, Under Secretary Native Department, Wellington, 14 August 1915, MA-MLP 1 13/9, NA, Wellington 425 WH Bowler, Land Purchase Officer, Auckland, to CB Jordan, Under Secretary Native Department, Wellington, 1 February 1917, MA-MLP 1 13/9, NA, Wellington 426 CB Jordan, Under Secretary Native Department, to Under Secretary Lands and Survey Department, 5 March 1917, MA-MLP 1 13/9, NA, Wellington 427 RC Pollock, Crown Lands Ranger, to Commissioner Crown Lands, 30 March 1917, MA-MLP 1 13/9, NA, Wellington 428 CB Jordan, Under Secretary Native Department, to WH Bowler, Land Purchase Officer, 15 May 1917, MA-MLP 1 13/9, NA, Wellington 429 CB Jordan, Under Secretary Native Department, to Under Secretary Lands and Survey Department, 5 March 1917, MA-MLP 1 13/9, NA, Wellington 430 Miscellaneous records, Hamilton MLC BOF C198 431 R.N. Jones, Under Secretary Native Department, to Under Secretary for Lands, 27 April 1923, MA-MLP 1 13/9, NA, Wellington Wai 754 100 1919 1B1 Oa.2r.19p. 1 No432 1921/22 IB2 6a.lr.30p. 55 Yes - 1922 1B2A 2a.3r.lOp. 10 No 1930 IB2B 4a.Or.38p. 48 Yes 1930 Private purchase of interests in Waipatukahu Tapu & Crown opposition The Crown had regularly renewed the proclamations against private purchase of interests in Waipatukahu Tapu and Waipatukahu 1 between 1914 and 1916 under section 363 of the Native Land Act 1909 and section 111 of the Native Land Amendment Act 1913. However, when one of these prohibitions expired on 21 December 1916 the Crown was unable to immediately replace it with a new prohibition as no interests had been acquired in the block. Fresh prohibitions could not be placed on the blocks unless completely new negotiations were commenced.433 Having decided to enter into new negotiations and attempt to purchase the blocks at a higher price, the Crown imposed new prohibitions against the private purchase of interests in Waipatukahu lA, 1B and Waipatukahu Tapu for 12 months on 19 March 1917.434 The three month gap between the prohibition which expired on 21 December 1916 and the new prohibition imposed on 19 March 1917 left a window of opportunity open to private purchasers. The Tapu hotel-keeper, a Mr McCarthy, took advantage of this to purchase two-thirds of an undivided interest in the Tapu block for £15 per acre. 435 The purchased shares had belonged to Papu Te Putu, who had succeeded to Takerei Te Putu's interest, and Meha Te Moananui.436 McCarthy also obtained a signature from a successor to the outstanding share in the block.437 The Waikato Maniapoto District Land Board agreed to confirm the sale of two of the interests if McCarthy lodged the purchase money with the Board within six weeks and filed an affidavit stating that the deed was signed while the prohibition was not in force. 438 Given his desire for the Crown to purchase the block for the benefit of the wider Tapu community, Under Secretary Jordan was reluctant to allow McCarthy's private purchase to proceed unchallenged. He informed the Native Minister on 26 May 1917 that if the Minister approved, he would oppose the confirmation of the transfer to the publican on the grounds that confirmation was not in the interests of the native owners 432 Owned by Tihitapu Te Moananui and sold to Joseph Brennan 1921: R.N. Jones, Under Secretary Native Department, to Under Secretary for Lands, 27 April 1923, MA-MLP 1 13/9, NA, Wellington 433 CB Jordan, Under Secretary Native Department, to WH Bowler, Land Purchase Officer, 7 February 1917, MA-MLP 1 13/9, NA, Wellington 434 NZ Gazette No.52, 22 March 1917 435 JG Bendeley (for Commissioner of Crown Lands) to Under Secretary Lands Department, 21 May 1917; WH Bowler, Land Purchase Agent, Auckland, to Under Secretary Native Department, 22 May 1917, MA-MLP 113/9, NA, Wellington 436 Russell, p.22 437 WH Bowler, Land Purchase Agent, Auckland, to Under Secretary Native Department, 22 May 1917, MA-MLP 113/9, NA, Wellington 438 Ibid Wai 754 101 as they would receive a higher price if they sold to the Crown.439 On 28 May Jordan advised Bowler to take 'urgent steps to oppose the completion of the confirmation of the proposed alienation to Mr McCarthy' .440 He also informed the Waikato Maniapoto Board that the Crown opposed the proposed confirmation.441 Jordan's instructions placed Bowler in a difficult position. Bowler had temporarily taken up the role of President of the Board while the permanent president was absent. He informed Jordan that he was in the anomalous role of being directed to oppose the confirmation while having a duty as the acting President of the Board to be impartia1.442 Bowler set the case aside until the return of the permanent president, Charles MacCormick. Bowler and MacCormick were both of the opinion that the Crown had no valid grounds for opposing the confirmation.443 The Board subsequently confirmed the purchase of the two-thirds interest in Waipatukahu Tapu in May 1918.444 The identity of the purchaser of the two-thirds undivided interests in Waipatukahu Tapu is not entirely clear. Correspondence in 1917 between Bowler and Jordan refers to the purchaser as the publican McCarthy. However, later documents refer to the purchaser as Daniel McLennon.445 Although the Crown was unable to prevent the Land Board confirming McLennon's partial purchase of interests, it was able to prevent the purchase being registered with the Land Registry. On 30 September 1918 the Under Secretary of the Native Department informed his counterpart in the Lands Department that a question had arisen as to the beneficial ownership of Waipatukahu Tapu. He asked that the Department investigate an allegation that the three named owners held the land in trust for others not named in the title.446 The Solicitor General, JW Salmond, confirmed that the land was held in trust as a burial reserve for the people of Ngatitamatera. He also stated that the registration of the title should be prevented, although he noted that it would be too late to take action if registration had already occurred.447 The Under Secretary of the Native Department subsequently wrote to the District Land Registrar to ask that a caveat be placed on the certificate of title for Waipatukahu Tapu. He explained that the Land Board had erred in confirming the title: 439 CB Jordan, Under Secretary Native Department, to Native Minister, 26 May 1917, MA-MLP 1 13/9, NA, Wellington 440 CB Jordan, Under Secretary Native Department, to WH Bowler, Land Purchase Officer, 28 May 1917, MA-MLP 113/9, NA, Wellington 441 Ibid. 442 WH Bowler, Land Purchase Officer, to CB Jordan, Under Secretary Native Department, 7 June 1917, MA-MLP 113/9, NA, Wellington 443 Earle, Registrar Waikato-Maniapoto District Maori Land Board, to Under Secretary Native Department, 12 July 1917; Chas MacCormick, President Waikato-Maniapoto District Maori Land Board, to Under Secretary Native Department, 3 September 1917, MA-MLP 1 13/9, NA, Wellington 444 Under Secretary of the Native Department to DLR, Auckland, 8 January 1919, S.256048 (HLR File 1730) cited in Russell, p.22 445 S.256048, LINZ, Hamilton 446 Under Secretary Native Department to Under Secretary Lands Department, 30 September 1918, MA-MLP 1 13/9, NA, Wellington 447 JW Salmond, Solicitor General, to Under Secretary, Native Affairs, 4 January 1919, MA-MLP 1 13/9, NA, Wellington Wai 754 102 The question of the trust in the Order of the Native Land Court in respect of this block is under consideration and the Crown Law Officers have advised that the confirmation of the Board should not have been given. 448 Fortunately for the Crown, the title had not been registered prior to its request for the caveat. Under sections 210 and 371 of the Native Land Act 1909 private purchasers were not allowed to purchase undivided interests in Maori Land. McLennon had failed to complete the purchase of the outstanding one-third share in the block and as a result, the Board's confirmation of the purchase of the two-thirds shares of Meha Te Moananui and Papu Te Putu had not been forwarded to the District Land Registrar. McLennon's failure to complete the purchase meant that the caveat placed on the title effectively nullified his earlier purchase of a two-thirds undivided interest in the block.449 Although officials in the Native Department and the Crown Law Office had raised questions about the beneficial ownership of Waipatukahu Tapu, neither body appears to have taken the matter further.45o Continued attempts to purchase Waipatukahu 1 At the same time it was seeking to purchase Waipatukahu Tapu, or at least prevent it falling into private hands, the Crown continued to explore the purchase of the subdivided Waipatukahu 1 blocks: 1A (2 acres 3 roods 32 perches) and 1B (7 acres 3 roods 18 perches). As 1A had only 10 owners it could be purchased by approaching individual title-holders. 1B, however, had 56 owners and an assembled owners meeting had to called if the Crown wished to purchase the block. A meeting was duly called by the Waikato-Maniapoto District Maori Land Board to discuss the Crown's offer of £30 per acre for the block. At the meeting, held in Thames on 13 September 1917, the owners unanimously rejected the offer. The Land Board President informed Jordan that '[t]he owners at present were contemplating partitioning the land and were not desirous of selling the Block at present at any price'.451 On 5 October 1917 Jordan informed Bowler that given the unanimous rejection of the offer, 'the Native Land Purchase Board has now decided to take no further action at present' to purchase the block.452 Bowler replied to Jordan that on its own the smaller 1A block was not worth purchasing and informed the Under Secretary that he would take no further action regarding the purchase of individual interests in the block.453 448 Under Secretary of the Native Department to DLR, Auckland, 8 January 1919, S.256048 (HLR File 1730) cited in Russell, p.23 449 Russell, pp.22-23 450 Ibid, p.23 451 Resolution Passed by Assembled Owners, 13 September 1917, forwarded to Native Department by President Waikato-Maniapoto Land Board, MA-MLP 1 13/9, NA, Wellington 452 CB Jordan, Under Secretary Native Department, to WH Bowler, Land Purchase Officer, 5 October 1917, MA-MLP 113/9, NA, Wellington 453 WH Bowler, Land Purchase Officer, to CB Jordan, Under Secretary Native Department, 10 October 1917, MA-MLP 1 13/9, NA, Wellington Wai 754 103 Consideration of acquiring the blocks under public works legislation The possibility of acquiring the Waipatukahu blocks under public works legislation became an increasingly attractive option as the Crown carne up against the Maori owners' continued resistance to selling the land. As noted above, in 1912 the Under Secretary of the Lands Department suggested to the Thames County Clerk that the Council could take the Waipatukahu blocks under the Public Works Act. The possibility of using public works legislation to acquire the blocks was raised again in 1917. On 3 September 1917 Charles MacCormick, President of the Waikato Maniapoto District Maori Land Board, informed the Under Secretary of the Native Department that while he felt obliged to endorse the confirmation of McCarthy's two thirds purchase, he thought the Crown could make use of the Public Works Act to acquire the land: I would point out that if this land is now required for a Cemetery and Recreation Reserve there is nothing to prevent the Crown taking it under the Public Works Act. If that course be contemplated it would not be to the Crown's interest to cause the price to be raised.454 This latter statement presumably referred to the Crown's argument that confirmation of McCarthy's two-thirds purchase was not in the Maori owners' interest as the Crown was willing to pay £20 an acre for the block as opposed to McCarthy's £15. MacCormick's advice to the Crown does not sit well with his role as a protector of Maori interests in land. It should also be noted that MacCormick's advice was given before the question of Waipatukahu Tapu's beneficial ownership was raised. He does not appear to have been aware that the block was a burial reserve. This lack of awareness of the nature and ownership status of the block is of concern. It suggests a serious lack of communication between the Board and the Native Land Court. As Matthew Russell has argued in his Waikawau Reserves report with regard to a similar case around the same time: The failure of the Waikato-Maniapoto Land Board to uncover the trust intended for [in this case, Waipatukahu Tapu] raises serious doubts as to the ability of the Board to meet its statutory obligations under section 220 of the 1909 Act. These doubts are heightened by the fact that the Waikato-Maniapoto Land Board and the Native Land Court do not appear to have enjoyed a close working relationship, even though the obligations of the Board under section 220 [of the Native Land Act 1909] would seem to have made such a relationship very important. 455 Under section 220 of the Native Land Act 1909 the Board was required to be satisfied that 'the alienation is not in breach of any trust to which the land is subject'. The Board could easily have ascertained whether Waipatukahu Tapu was subject to a trust had it asked the Native Land Court to examine the minutes of the original title 454 Charles Mac Cormick, President Waikato-Maniapoto District Maori Land Board, to Under Secretary, Native Department, 3 September 1917, MA-MLP 1 13/9, NA, Wellington 455 Russell, p.20 Wai 754 104 investigation to see if the land was subject to a trust. Its failure to do so, and its subsequent confirmation of McCarthy's two-thirds purchase, suggests that the Board's inquiries were of a rather shallow and unsatisfactory nature. In the event, as the purchase was later nullified, the Maori owners were not harmed by the Board's actions. This episode, however, undermines the credibility of the Board as a protector of Maori land interests. The Under Secretary of the Native Department picked up MacCormick's advice regarding taking the land under the Public Works Act. On 11 September 1917 he replied to MacCormick that it seemed the only course now open to the Crown and that he had referred the suggestion on to the Lands Department with a view to action being taken under the legislation.456 Land Purchase Officer W.H. Bowler appears to have received a memo from Jordan suggesting that this course also be taken with regard to Waipatukahu 1B after the assembled owners meeting rejected the Crown's offer to buy the block on 13 September 1917. The memo has not survived but Bowler suggested to Jordan that if this course was adopted for Waipatukahu Tapu and 1B, then it should also be adopted for 1A.457 The Chief Surveyor also supported the proposal to take the three blocks under the Public Works Act. On 16 October 1917 he argued in a letter to the Under Secretary of the Lands Department that the Crown should continue its efforts to acquire the land 'notwithstanding the Natives' disinclination to deal'. He suggested that: If you consider that the Public Works Act might be held to apply to the acquisition of areas of this description for recreation purposes, then these areas might be acquired under these provisions. If, however, it is held that they do not apply, then I beg to suggest that both pieces be taken as Scenic Reserves.458 He also reminded the Under Secretary that the Crown had already spent £500 on protective works as the land was subject to erosion. However, in November 1917, according to a memo received by Jordan from the Under Secretary of the Lands Department, the Minister directed that the matter of purchasing the land under the public works legislation be allowed to stand over for the moment.459 Revived interest in taking Waipatukahu lA and lB under public works legislation No further action appears to have been taken on this matter until 1920 when the Native Land Purchase Department decided to ask the Lands Department to take the necessary action to acquire 1A and 1B, now referred to as 'Tapu Flat', under the Public Works Act.46o The Crown's revived interest in the blocks appears to have been prompted by representations from local settlers. In July 1919 Thames member of 456 CB Jordan, Under Secretary Native Department, to President Waikato-Maniapoto District Maori Land Board, 11 September 1917, MA-MLP 1 13/9, NA, Wellington 457 WH Bowler, Land Purchase Officer, to CB Jordan, Under Secretary Native Department, 10 October 1917, MA-MLP 1 13/9, NA, Wellington 458 Chief Surveyor to Under Secretary Lands Department, 16 October 1917, MA-MLP 1 13/9, NA, Wellington 459 Under Secretary Lands Department to Under Secretary Native Department, 9 July 1918, MA-MLP 1 13/9, NA, Wellington 460 CB Jordan, Under Secretary Native Department, to WH Bowler, Land Purchase Officer, 22 April 1920, MA-MLP 1 13/9, NA, Wellington Wai 754 105 Parliament T.W. Rhodes advised the Minister of Lands, D.H. Guthrie, that the Tapu settlers wished to erect a memorial on Tapu Flat (Waipatukahu lA and IB) to those who had fought in the recent war. 461 Arthur Jones, a long-time local advocate of Crown purchase of the blocks, wrote directly to the Prime Minister regarding the memorial on 18 October 1919. Jones feared that the Maori owners of the block might sell the land and that locals living on the land would suffer as a result: I may say that some of the Parents have occupied part of this Flat for the last 40 years and I think it would be very hard if the Government let the Maoris sell this land over their head, after their boys fighting for their Country and then their parents turned out with nothing.462 Jones may well have had himself in mind. After meeting the Tapu settlers in February 1920, W.H. Bowler informed the Under Secretary of the Native Department that Jones occupied part of the block and had built two cottages and a motor shed on the land (about 1 acre). Jones did not have a title to the land he occupied but had been born on the block and had lived there with his father for around 50 years. Bowler noted that Jones was prepared to give up possession if he was paid for the cost of his buildings: around £300 to £400.463 As in previous years, the willingness of officials to purchase the land, or take it under public works legislation, resulted in little immediate action. Under Secretary Jordan informed Bowler on 22 April 1920 that the acquisition of lA and IB (Tapu Flat) was considered by the Native Land Purchase Board and 'it was decided that the Lands Department be asked to take the necessary action to acquire the land under the Public Works Act' .464 However, while officials made inquiries regarding the status of the blocks in 1921, no action was taken to take the land under the public works legislation for several more years.465 Private purchase oJ interests in lA and lBl While the Crown prevaricated some of the Maori owners sold interests in 1A and 1B 1 to a private individual, Joseph Brennan. The relevant signatures were acquired on 14 and 15 February 1921, before the gazetting of the 21 March 1921 Order in Council prohibiting all private alienations of interests in the lA and IB blocks.466 The Wai 754 claimants' tipuna did not have interests in lA and IBI. Their interests had been placed in IB2 in 1919. 461 TW Rhodes, MP, to DH Guthrie, Minister of Lands, 14 July 1919, MA-MLP 1 13/9, NA, Wellington 462 A. Jones, Tapu, to Prime Minister, 18 October 1919, MA-MLP 1 13/9, NA, Wellington 463 WH Bowler, Land Purchase Officer, to Under Secretary Native Department, 16 February 1920, MA-MLP 1 13/9, NA, Wellington 464 C.B. Jordan, Under Secretary Native Department, to W.H. Bowler, Land Purchase Officer, Auckland, 22 April 1920, MA-MLP 1 13/9, NA, Wellington 465 Chief Surveyor to Under Secretary for Lands, 9 February 1922, MA-MLP 1 13/9, NA, Wellington 466 R.N. Jones, Under Secretary Native Department, to Under Secretary for Lands, 27 April 1923, MA-MLP 1 13/9, NA, Wellington Wai 754 106 In 1922 Waipatukahu IB2 was partitioned and Eparaima King's successors' interests were placed in IB2B, a block of 4 acres 0 roods and 38 perches. They constituted 15 of the block's 48 owners. Eparaima Kingi' s 1914 In 1B2B (1922) Shares successors467 1. Hara Merehana F Y 19/72 2. Hori Eparaima M Y 19/72 3. Hera Eparaima F Y 19/72 4. Mita Eparaima M Y 19/72 5. Merehana Eparaima F Y 19/72 6. Ani Eparaima F Y 19/72 7. Petia Aperahama F Y 19/432 8. Eparaima Aperahama M Y 19/432 9. Rina Aperahama F Y 19/432 10. Hemi Aperahama M Possibly included 19/432 as Hemi Eparaima 11. Akarana Aperahama M Y 19/864 12. Keriana Aperahama F Y 19/864 13. Tutokatea Kuni468 M.18 Y 19/432 14. Te Arani Wiremu Eparaima F Y 19/144 15. Te Kiriwera Eparaima Possibly included 191144 as Te Kiriwera Aperahama 16-48. 33 other title holders -- - Total shares 8.31/36 shares The Native Land Court issued charging orders for survey costs for Waipatukahu lA (£6.12.6), IE 1 (£3.10.0) and IB2 (£11.0.10) in 1924.469 Thames County Council attempts to take land under public works legislation The Lands Department agreed with Native Department that it was highly desirable that Tapu Flat (IA and IB) be purchased for public use as a recreation area. However, its officials suggested that the Thames County Council, rather than the Lands Department, should act in the matter and take the land under the Public Works Act. On 20 March 1924 the Under Secretary of the Lands Department reminded the Minister of Lands of decisions made and correspondence entered into on the matter in recent years. He noted that the Minister and his officials had suggested on several occasions since 1921 that the local authorities move to take the land under the Public Works Act. The authorities had, however, 'been somewhat lax in allowing matters to drift so long'. The Under Secretary suggested that if the local authority acquired the land under the Public Works Act 1908 then the Government should give favourable consideration to granting a subsidy to help with the costs 'on the condition that the land is transferred to the Crown and created a public domain under Part IT of the Public Reserves and Domains Act, 1908.' He quoted from Crown Land Ranger 467 Partition Order, Waipatukahu IB2B, 12 July 1922, MLC BOF C 198 (2), Hamilton MLC 468 Hohepa Mataitaua was appointed trustee for Tutokatea Kuni. Trustee Order, 2 December 1914, MA-MLP 1 13/9, NA, Wellington 469 Charging Order for Cost of Survey, 23 October 1924, Hamilton MLC BOF C198 Wai 754 107 Pollock's description of the block in 1920 as a reminder of why the land was wanted for public use: This area has been used as a people's common for the greater part of 50 years, and is very much used by the people of Thames Borough and County as a summer seaside resort. It is also used by many motorists and their families from districts south of Thames and who run down there for the day, generally on Sundays and holidays. This area is now the only flat area on the beautiful Thames coast that is free to all and where picnic parties and campers can go without trespassing. All the other camping flats have been acquired by speculators and cut up into allotments and sold at fancy prices for summer residences. I consider it would be nothing short of a calamity to the public if speculators get this piece of land from the Native owners and cut it up for sale, as the people would be deprived of a healthful place of recreation.47o The Under Secretary also noted that the prohibition against alienation of the blocks would shortly expire and that swift action was required to prevent the land 'falling into the hands of private speculators' .471 Another Order in Council prohibiting the alienation of those blocks still in Maori ownership, IB2A and IB2B, for one year was subsequently issued several days later on 24 March 1924.472 The order was extended for six months in March 1925 and for eighteen months on 25 August 1925.473 In 1925 the Thames County Council took action to acquire IB2A,lB2B and the privately purchased lA and IB 1 blocks for a recreation reserve under section 4 of the Public Works Act: a total area of approximately 10 acres 1 rood and 34 perches. The Department of Lands agreed to provide a subsidy to help with the acquisition.474 Notice of the Council's intention to acquire the land was published in the New Zealand Gazette on 12 March 1925.475 The Council appears to have initially overlooked the legal requirement to obtain the consent of the Native Minister to the taking of Maori land in this way. However, once informed of the requirement by the Under Secretary of the Native Department the Council sought and obtained the consent of the Minister under section 14 of the Public Works Act 1908 as amended by the schedule to the Public Works Amendment Act 1910.476 In a letter seeking the Minister's consent to the taking of the IB2 blocks, the Council's solicitors, Miller and Son, declared that 'The native owners of [lB2] have, we understand, expressed their willingness for this area of land to be used for a recreation ground.' 477 470 Ranger Pollock, 1920 Report, quoted in Under Secretary Lands Department to Minister of Lands, 20 March 1924, MA-MLP 1 13/9, NA, Wellington 471 Under Secretary Lands Department to Minister of Lands, 20 March 1924, MA-MLP 1 13/9, NA, Wellington 472 Extract from NZ Gazette No.20, 3 April 1924, in MA-MLP 1 13/9, NA, Wellington 473 NZ Gazette, No.62, 3 September 1925, p.2514 474 Under Secretary Lands and Survey Department to Under Secretary Native Department, 6 May 1925, MA-MLP 1 13/9, NA, Wellington 475 NZ Gazette, No.17, 12 March 1925, p.779 476 Under Secretary Native Department to Under Secretary for Lands, 21 May 1925; Native Minister to Messrs Miller & Sons, Solicitors, 22 December 1925, MA-MLP 113/9, NA, Wellington 477 Miller & Sons, Solicitors, to Minister for Native Lands, 25 November 1925, MA-MLP 1 13/9, NA, Wellington Wai 754 108 However, although the Minister gave his consent for the Council to take the Maori owned Waipatukahu IB2A and IB2B blocks on 22 December 1925,478 no further action appears to have been taken to acquire the blocks under public works legislation. Although the Order in Council prohibiting private purchase of interests in the blocks was extended for a further 12 months on 13 April 1927, the blocks remained in Maori ownership until 1930. Waipatukahu IB2B: Alienation On 16 October 1929 Daniel Mackay, County Clerk for the Coromandel County Council, applied for an assembled owners meeting under Part xvnr of the Native Land Act 1909 to be held to consider a resolution to sell the block (4 acres 38 perches) to Mackay for the government valuation or £60 per acre, whichever was the greater sum.479 Although the application was made in Mackay's name rather than the Council's, he informed Judge c.B. MacCormick of the Maori Land Court that the area was wanted by the Council for 'a Memorial Park for recreation purposes'. The Government had offered the Council £350 towards the purchase price but the offer had to be taken up before 31 March 1930. Mackay's purpose in writing to Judge MacCormick was to ask for his assistance in 'enabling dealing to be completed by that date' .480 The Judge subsequently agreed to issue a special panui advertising the meeting.481 A meeting of assembled owners was held on 15 January 1930 in Thames. Seven or eight of the block's 48 owners attended the meeting: • Hewari Peke • Pita Te Moananui • Te Kiriwera Aperahama • Pita Te Teira • N gahoma N gamene • Pahipahi Piahana • Heha Potiki • Paru Piahana A note on the list of attending owners suggested that Pita Te Moananui and Pita Te Teira might be the same person. Miria Potiki was represented by proxy. The attending owners unanimously passed the resolution to sell the block.482 Documents in the alienation file record that there were 48 owners and 8 31/36 shares in the block and that the claimants' tipuna Tutokatea Kuni held 19/432 shares in the land.483 The £380 paid for the block was considerably more than the government valuation of the land. The block had a capital value of £120 at 18 February 1930 but only £20 of this - the block's unimproved value - was owned by the titleholders. The remaining 478 J.G. Coates, Native Minister, to Messrs Miller & Sons, Solicitors, 22 December 1925, MA-MLP 1 13/9, NA, Wellington 479 Application for assembled owner meeting, 16 October 1929, BCAC A203 14079 b.323, NA, Auckland 480 Daniel Mackay, County Clerk, to C.E. MacCormick, Native Land Court, October 1929, BCAC A203 14079 b.323, NA, Auckland 481 Registrar, Waikato-Maniapoto Maori Land Court, 8 November 1929, BCAC A203 14079 b.323, NA, Auckland 482 Minutes of meeting, 15 January 1930, BCAC A203 14079 b.323, NA, Auckland 483 Particulars of title, BCAC A203 14079 b.323, NA, Auckland Wai 754 109 £100 improved value referred to a number of buildings erected by Arthur Jones, a European, who had squatted on the block for many years.484 Not all of the £380 went to the Maori owners. Outstanding survey fees of £10.3.11 and rates of £29.2.9 (for 1926-1930) were deducted from the purchase money before it was distributed to the titleholders.485 As part of the confirmation process Mackay provided a declaration affirming that the transaction was in accord with all legal requirements.486 A second Thames clerk, Henry Bush, also provided a declaration under section 91 of the Native Land Amendment Act 1913. Bush declared that he knew the land, it was unsuitable for occupation by the owners, it had not been used by the owners for many years, they had not shown any interest in using it, and only one owner, with a very small share in the block, resided within many miles of the land.487 The Waikato-Maniapoto District Maori Land Board confirmed the resolution to sell the block on 12 March 1930. It also acknowledged that it had received the money as the owners' agent and confirmed the transfer of the block.488 Mackay also purchased Waipatukahu IB2Al in 1930.489 8.6 Waipatukahu IB2B: issues arising Pressures to sell The Waipatukahu 1 owners, and the putative owners of Waipatukahu Tapu, came under considerable pressure to sell their coastal blocks to the Thames Council between 1911 and 1930. Despite the owners' obvious reluctance to sell, Crown and Council officials considered taking the land compulsorily on the grounds of 'public interest' on several occasions. They also attempted to facilitate the sale process by requesting the Native Land Court to update successions in the block. In the case of Waipatukahu Tapu, Under Secretary Fisher showed considerable disregard for the wishes of the Maori owners when he encouraged the Court in 1915 to issue updated succession orders when the owners had clearly expressed their opposition to the issue of such orders. As noted above, Fisher was also undeterred by the unanimous resolution passed at an assembled meeting of owners against the sale of Waipatukahu 1 the same year. Under section 112 of the Native Land Amendment Act 1913 the Crown was not required to call assembled owner meetings in order to purchase interests in land owned by more than 10 people. If, as happened in this instance, the Crown's wishes were thwarted by a group of owners it had the option of targeting individuals who might prove less resistant to selling their interests in the land. This 484 Valuation, 18 February 1930, BCAC A203 14079 b.323, NA, Auckland 485 Account for survey fees, Buchanan and Purnell, Solicitors, to Registrar, Native Land Court, 27 March 1930; Rates deduction, Buchanan and Purnell, Solicitors, to Registrar, Native Land Court, 14 April 1930, BCAC A203 14079 b.323, NA, Auckland 486 Declaration in support of application for confirmation, Daniel Mackay, Thames County Clerk, 11 March 1930, BCAC A203 14079 b.323, NA, Auckland NA, Auckland 487 Declaration, H.R. Bush, Thames Clerk, 11 March 1930, BCAC A203 14079 b.323, NA, Auckland 488 Transfer 241881, LINZ, Hamilton. Registrar Waikato Maniapoto Maori Land Board to Registrar Native Land Court, 15 May 1930, Hamilton MLC BOF C198 489 Registrar Waikato Maniapoto Maori Land Board to Registrar Native Land Court, 15 May 1930, Hamilton MLC BOF C198 Wai 754 110 obvious lack of regard for the wishes of the Maori owners does not sit well with the Crown's duty to treat its Treaty partner with respect. Prohibitions against private sales The Crown and the Council were aided in their attempts to acquire Waipatukahu 1 by the series of proclamations issued between 1914 and 1927 under section 363 of the Native Land Act 1909. The proclamations prohibited the alienation of interests in the block to parties other than the Crown. The Crown's ability to restrict sales in this way gave it a major advantage over other purchasers. Section 363 effectively re introduced the Crown's right of pre-emption over Maori land. Richard Boast has commented that This may seem innocuous enough until it is grasped that 'alienation' as far as the statute was concerned meant a range of land dispositions not ordinarily thought of as alienations - in fact any 'transfer, sale, gift, lease, licence, easement, profit, mortgage, charge, incumbrance, trust or other disposition.49o As a result owners could do 'virtually nothing' with their land once a proclamation had been issued.491 The owners may have wanted to utilise their land in some way. The several partitions of the block between 1916 and 1922 suggest an active interest in the land. While the owners were clearly not interested in the Crown's low valuation of their land, they may have been interested in higher private offers to purchase. As discussed above, R.C. Pollock considered Waipatukahu to have a value of £100 in 1917 for subdivisional purposes. He informed the Commissioner of Crown Lands in March 1917 that 'land across the road [lately] sold at from 25/- to 30/- a foot' .492 The Maori owners may have wished to pursue the option of selling or leasing the land for subdivisional purposes rather than having to settle for the Crown's recreational reserve offer of £30 per acre. However, the Crown's pre-emptory use of section 363 to exclude other interested parties from negotiations prevented the Maori owners from exploring this option, if indeed, they wished to sell the land at all. Assembled owners meeting Although the Crown and Council seriously considered using public works legislation to take the subdivided Waipatukahu 1 blocks, and indeed embarked upon the process in 1925, Waipatukahu 1B2B was eventually acquired by the Council in 1930 under the Native Land Act 1909. As happened in Te Kauanga Whenuakite 6, a resolution to sell the block was passed at a meeting of assembled owners attended by a minority of the block's owners. In the case of Waipatukahu 1B2B, seven or eight out of 48 owners passed a unanimous resolution to sell the block to the Crown for £380. The ease with which a small group owners could sell land on behalf of all owners is of concern. As Alan Ward has suggested, the assembled owners provision 490 Richard Boast, in P. Spiller, lFinn & R. Boast, A New Zealand Legal History, Brookers Ltd, Wellington, 1995, p.161 491 Ibid. 492 RC Pollock, Crown Lands Ranger, to Commissioner Crown Lands, 30 March 1917, MA-MLP 1 13/9, NA, Wellington Wai 754 111 commonly meant that the owner group as a whole was not consulted .... Giving meetings of assembled owners full power to deal with the land, even by sale, may be seen as a part fulfilment of Treaty rights: but it also bypassed the need for a full consensus of the owners (or even a clear majority of the owners) and ignored or overrode the wishes of owners not present at a crucial meeting.493 Given that a significant majority of owners did not attend the meeting it cannot be assumed that the sale of the block was agreed to by all those with interests in the block. However, their lack of attendance rendered them voiceless. Under the legislation a meeting was not rendered invalid if an owner did not receive a notice about the meeting and was unaware that his or her interests might be sold.494 Voluntary participation in the process? The Waipatukahu IB2B owners had managed to hold onto their land despite two decades of Crown and Council pressures to sell. It is not known why at least some of the owners changed their minds in 1930. However, the significantly higher price offered at a time of economic depression - when the owners may well have been under significant financial stress - may have tipped the balance. The very real threat from the Council to take the land under public works legislation may also have had an impact. Those who consented to the sale may have considered that they would be better off to take the price offered rather than have the land forcibly taken under the Public Works Act. However, the extent of the owners 'voluntary' participation in the sale is highly questionable given the Council's apparent readiness to use public works legislation. The threat of action under the Public Works Act may have placed undue pressure on the owners to sell their interests in 1930. Sufficient other lands Under the Native Land Act 1909 the district Maori Land Boards were not supposed to confirm alienations which would render the Maori owners landless. However, under section 91 of the Native Land Amendment Act 1913 'landlessness' was not considered to occur 'where the land being sold would not in any event provide sufficient support to the Maori owner'. 495 The question of whether the Waipatukahu IB2B block owners had sufficient other lands to support themselves does not appear to have been addressed in any great detail by the Waikato-Maniapoto Land Board. The Board appears to have been satisfied with Thames Clerk Henry Bush's declaration under section 91 that the land was not suitable for occupation by the owners and that they had not shown any interest in using it. Section 91 effectively absolved the Board of the responsibility of ensuring Maori retained interests in the remnants of tribal lands left to them in the early 1900s. 8.7 Waipatukahu Tapu and Waipatukahu Ie: Incorporation & Alienation The Crown's attempts to purchase Waipatukahu Tapu appear to have ceased following the investigation and subsequent nullification of McLennon's partial 493 Ward, Overview, vol.lI, p.390 494 Bennion, p.19 495 Ibid, p.30 Wai 754 112 purchase of interests in 1918. Official records relating to the block trail off at this point but re-emerge in the 1940s. 1940s: Rates, proposed extension of the urupa On 22 April 1940, in his capacity as Clerk and Rate Collector for the Thames County Council, Daniel Mackay applied for a charging order for payment of rates of £9.1.10 for Waipatukahu Tapu (Sec. 13 Block XI Hastings Survey District) for the period 1938 to 1939. Margaret Tasker was listed as the owner/occupier who appeared on the Rate RoI1.496 The Native Land Court issued a charging order and Mrs Tasker was sent a rates demand for payment of the total sum within 14 days. The block's unimproved value was listed on the rates demand as £145.497 The sum had not been paid by 6 November 1942 and Daniel Mackay, as Clerk to the Thames County, was appointed the receiver of the property.498 However, he does not appear to have taken any action regarding the block and the order was cancelled on 18 December 1961.499 Waipatukahu Tapu had a Maori burial ground on the block. In 1944 the Thames County Council sought to extend the burial ground so that both Maori and Europeans could continue to use it. 500 Judge Beechey provided the Registrar of the Maori Land Court with an opinion which appeared to favour the taking of the land under special legislation: The Court can set aside a further area for a Native burial ground readily enough, but it would not be available to Europeans without the consent of the natives .... Mr McKay informed me that there are practically no natives living there now and as far as they are concerned the extension of the burial ground is probably unnecessary. The land, however, is Native land and not alienable and it may be that the Native owners may desire in the future to inter relatives in this area. The County might acquire additional land for a public cemetery and set off one portion for the use of Natives, or it might acquire the land under the Public Works Act or by other process, or it may require special legislation. I think it would be best if the County had special legislation passed enabling it to take the land for the purposes of a public cemetery. Interments of both Europeans and Natives would then be in order and the County would be able, as the owner of the cemetery, to keep the premises in order.501 Given the significance accorded urupa by Maori, Judge Beechey's recommendation that the County have special legislation passed to enable it to take the land is of concern. However, despite this suggestion, it does not appear that the extension was made. 496 Application for Charging Order for Rates Owing, 22 April 1940, Hamilton MLC BOF 600 497 Rates Demand, Hamilton MLC BOF 600 498 Appointment of Receiver, 6 November 1942, Hamilton MLC BOF 600 499 Memorial schedule, Waipatukahu Tapu, Hamilton MLC BOF 600. Hauraki MLC minute book 77, 18 December 1961, pp.176-178 500 Correspondence, Judge Beechey to Registrar Native Land Court, 23 March 1944; Registrar Native Land Court to Thames County Council, 27 March 1944, Hamilton MLC BOF 600 501 Judge E. Beechey, 23 March 1944, to the Registrar, Waikato-Maniapoto Maori Land Court, Hamilton MLC BOF C600 Wai 754 113 Investigation of relative interests in Waipatukahu Tapu and Waipatukahu 1 C As noted above, in 1878 the Native Land Court ordered that Waipatukahu Tapu be held in trust for 'the people of Ngatitamatera'. In 1958 the beneficial owners of Waipatukahu Tapu and Omawhiti Tapu, another burial reserve held in trust, sought to have the trusts recognised and their beneficiaries identified. This part of Waipatukahu Tapu's history is examined and analysed in Matthew Russell's report on the Waikawau reserves.502 Readers are recommended to consult this report regarding the issues surrounding ownership of the block. At an assembled owners meeting held in 1958 the beneficial owners of the blocks passed a resolution to have the owners of Waipatukahu Tapu incorporated under the provisions of Part xxn of the Maori Affairs Act 1953. The Maori Land Court approved the incorporation and established an interim committee to identify the trust's beneficiaries. The committee subsequently applied under section 30 (l)(B) of the Maori Affairs Act 1953 for the Maori Land Court to 'determine the relative interests of the owners in common, whether at law or in equity', of Waipatukahu Tapu and Waipatukahu 1C. Waipatukahu 1C, an area of only 30 perches, lay alongside Waipatukahu Tapu. Judge M.A. Brook of Waikato-Maniapoto Maori Land Court issued a freehold order for the block on 12 September 1958 which listed 313 beneficial owners in the block. The list recorded the Wai 754 claimants' tipuna Purangataua Taiporutu (also known as John Cooney) as having .57013/133.78758 shares in the land.503 Lengthy hearings and delays meant that the Court did not release its decision on the beneficial interests until 1 March 1961. Having heard evidence from a number of parties the Court determined that Waipatukahu Tapu and Waipatukahu 1C belonged to the 'successors to the persons collectively named in the Court Order of 5/8/1878 as "the people of N gatitamatera".' 504 The Court subsequently compiled a list of 313 current successors to the people named in the 1878 schedule. This included the descendents of the claimants' tipuna Eparaima Kingi.505 In December 1961 the Court ordered that the order of incorporation covering Waipatukahu Tapu be extended to cover Waipatukahu 1C and Omawhiti Tapu.506 Consolidated orders identifying the beneficial owners of Waipatukahu Tapu, Waipatukahu 1C and Waipatukahu 5B were issued on 14 July 1965 under section 445 of the Maori Affairs Act 1953.507 Following confusion over the legal status of the Committee of Management for the Incorporation, a new Committee of Management was appointed on 13 December 1966.508 502 Russell, pp.24-28 503 Freehold Order, 12 September 1958, Hamilton MLC BOF C198(2) 504 Judge M.A. Brook, Decision re Waipatukahu Tapu and Waipatukahu 1C, pA, 1 March 1961, Hamilton MLC BOF 600 505 Compiled list of owners as at 12 September 1958, Hamilton MLC BOF C198 506 Russell, pp.26-27 507 Hauraki MLC minute book 79,14 July 1965, p.107 508 James Shepard, for Registrar, Department of Justice, to District Land Registrar, Land Registry Office, Hamilton, 23 November 1992, Alienation File 17/325 (C600), Hamilton Maori Land Court; Court Decision, Judge, K. Gillanders Scott, 26 September 1966, S.256048, LINZ, Hamilton; Hauraki MLC minute book 79, 13 December 1966, pp.313-314 Wai 754 114 Roadway In 1962 a proclamation was issued declaring part of the block used as a roadway (2 acres and 23.5 perches) to be a road. This reduced the total area of the block from 15 acres and 2 roods to 13 acres 1 rood and 16.5 perches.509 Alienation of Waipatukahu 1 C On 19 February 1967 the Proprietors of Waipatukahu Reserve sold Waipatukahu 1C to Finlay Lloyd Phillips, a solicitor, for £900, pursuant to a resolution of the Committee of Management. The Chairman of the Proprietors (Pani Atarau Raukopa) and four other members signed the Memorandum of Transfer (Eileen Parakau, illegible, F. McCaskill, Mereana Te Putu). Maori Land Court Judge M.A. Brook confirmed the alienation of the block to Phillips on 24 August 1967.510 In 1974 the Crown acquired Waipatukahu lC under the Land Act 1948. It set the block apart as a reserve for recreation purposes (as part of the Tapu Flat domain) under the Reserves and Domains Act 1953.511 Alienation of part of Waipatukahu Tapu In 1967 the beneficial owners of Waipatukahu Tapu successfully applied to the Maori Land Court to have the urupa partitioned out of the block. On 7 June 1967 the Court subdivided the block as follows: 512 • Waipatukahu Tapu A 1 rood 20 perches (urupa). To 408 persons.513 • Waipatukahu Tapu B 8 acres 3 roods 20 perches To 408 persons. The area containing the urupa was retained. However, the owners sold the residue, Waipatukahu Tapu B, to Tirau Builders Limited on 14 June 1967 for $4000.514 The purchasers paid the survey costs of $22.98 and accrued rates on the block of $578.05. The Thames-Coromandel District Council subsequently purchased this part of the block for use as a recreation reserve.515 Together, Waipatukahu Tapu A and Tapu B make up 9 acres 1 rood and 10 perches. The rest of the original 15 acre block (less the area declared a road in 1962) appears to have been sold to a Paul Russel on 4 May 1962 (4 acres 2 roods 28 perches).516 This alienation was identified late in the writing of this report and has not been investigated. 509 Memorial, 22 March 1962, citing Order S.229513, on copy of CT 531285, Hamilton MLC CCF C600 510 Transfer S397398, LINZ, Hamilton 511 Note on CT 8AJ1234, LINZ, Hamilton 512 Record Sheet, MLC BOF C600 513 Partition Order, 7 June 1967, Alienation File 17/325 (C600), Hamilton Maori Land Court 514 Alienation Notice, 21 August 1967, Alienation File 17/325 (C600), Hamilton Maori Land Court 515 Russell, p.28 516 Note on Memorial Schedule, Hamilton MLC CCF C600 Wai 754 115 8.8 Waipatukahu Tapu and Waipatukahu Ie: issues arising Credibility of the Waikato-Maniapoto Land Board As discussed above, the Waikato-Maniapoto Land Board failed to uncover the trust intended for Waipatukahu Tapu when it confirmed Daniel McClennon's purchase of interests in the block 1918. The Board's failure to work closely with the Native Land Court to ensure such errors were not made undermines the Board's credibility as an effective protector of Maori interests in land. The credibility of the Board is also undermined by the dual role played by W.H. Bowler. That Bowler could take up a position as temporary president of the Board while he was acting on behalf of the Crown in the proposed purchase of Waipatukahu Tapu is of concern. While Bowler recognised that his role as temporary president was compromised by his role as land purchase agent and did not exploit his position, it is highly debatable whether he should have been allowed to take up the temporary role at all. Waipatukahu Tapu development potential In 1919 the District Land Registrar placed a caveat on the certificate of title for Waipatukahu Tapu in order to prevent McClennon from registering his purchase of interests in the block. The caveat remained on the title until the Order of Incorporation for Waipatukahu Tapu was registered in 1961. The caveat prevented the block from being alienated. However, it had a similar effect to the proclamations preventing private purchase of interests in Waipatukahu 1. The caveat 'prohibited the registration of any lesser 'instrument', such as a lease, that might potentially have benefited the block' .517 This situation changed in 1961. The duties of the body corporate established under the Order of Incorporation included duties to: (b) secure whatever revenue may be procured by letting small parcels of the land as camp sites over the approaching summer. (d) Upon the beneficial owners being determined to call a meeting of such owners to consider [amongst other things ... ] The laying off of reserves, the division of any part amongst the owners and the lease or sale of any portion as may seem desirable. 518 In his report on the Waikawau reserves Matthew Russell has argued that while Waipatukahu Tapu presented some development opportunities, these should not be overemphasised: These opportunities derived from the coastal location of the block and the fact that only a small definable portion had been used as an urupa. It is important, however, not to overstate the development potential of Waipatukahu Tapu. The block was highly susceptible to flooding and drainage problems in the winter months. Indeed, in the words of one valuer, the problems presented by these characteristics were 'so onerous as to render the success of any [subdivision] venture the matter of conjecture' [footnotes omitted],519 517 Russell, p.27 518 Order of Incorporation, 10 December 1958, cited in Russell, p.28 519 Russell, p.28 Wai 754 116 The beneficial owners may well have shared this assessment when they agreed to sell the block. However, by partitioning the block prior to the alienation the beneficial owners retained the urupa. Waipatukahu lC Waipatukahu 1C was sold to the solicitor Finlay Lloyd Phillips in 1967 by a Committee of Management of beneficial owners. Phillips acted in his professional capacity as a lawyer on behalf of many Maori landowners in Hauraki. As will be seen below, he represented the owners of Waipatukahu 5B, many of whom were also beneficial owners in Waipatukahu Tapu. Wai 754 117 Figure 9: Waipatukahu 1 and Waipatukahu Tapu520 9· 150·0' 0 8 , ,:. .; 3 '14~'.O • a ":." 150'0' a n 3'" , .\ :. COM E1. L.N LITTLE .. I JESSIE \. ,L:H\: a7:3'~~~ . I 'L . ( l/ iN'/', ./ -< 520 MA-MLP 1 13/9, NA, Wellington Wai 754 118 Figure 10: Waipatukahu 1521 <:'" '1\ ,111 < ~'" £ "'~II\ ...... -:'~:' .. Pl.ilN of WAIPA"UlfAt{1J I f I; I • .. :~'.' .... 521 Sketch ofWaipatukahu lA and 1B blocks intended to be t.1ken for a recreation reserve, MA-MLP 1 13/9, NA, Wellington Wai 754 119 Figure 11: Waipatukahu Tapu522 Blk XI Hastings S.D. Thames County Hauraki Culf B .5 -3-20 Waipatukahu-Tapu B Blk 522 Hamilton MLC BOF C600 Wai 754 120 8.9 Waipatukahu 5B As recorded above, Waipatukahu 5B was the 78 acre balance left over from the Crown purchase of interests in Waipatukahu 5 in the early 1890s. The owners included the eight successors of Eparaima Kingi and three successors of Marara Kingi. Goldfield cession agreement As part of the Waikawau block, Waipatukahu 5 was subject to goldfield cession agreements reached between the Crown and Ngati Tamatera in the nineteenth century.523 The many grievances of Hauraki Maori arising from these arrangements have been examined by Robyn Anderson in her reports for the Hauraki Maori Trust Board.524 A full assessment of these grievances as they relate to the owners of Waipatukahu 5 falls outside the scope of this commission. Readers are advised to place the following history of Waipatukahu 5B against the broad context of grievances outlined in Anderson's report. One issue, however, does require particular attention. This concerns residence site licenses issued on a number of Coromandel blocks including the Wai 754 blocks Waipatukahu 5B and Onepu 1B. Residence site licenses The continued existence of Government-issued resident site licences on Maori ceded lands constituted a major grievance for Hauraki Maori in the twentieth century. Robyn Anderson has summarised the situation as follows: Such licences had been originally intended to provide places of residence for miners in townships such as Shortland, Coromandel, and Te Aroha, but that purpose had fallen away with mining productivity. Nonetheless, the district remained subject to the Government's gold field jurisdiction as a result of the cession agreements, and in the late 1920s, the mining warden utilised his powers under section 103 of the Mining Act 1926 to grant a number of resident site and business licences for Thames and Coromandel properties, which were subsequently used to run stock, for holiday accommodation, or general commercial purposes. That meant as little as 5/- and at most £2 per annum was received for properties which might generate as much as £5 per annum at that time. In return for this small annual payment, a licensee received a renewable right to occupy a section, to build upon it, and to assign those rights [footnotes omitted].525 Anderson notes that '51 licences were identified as still operating on Maori ceded lands' on 16 blocks in the 1960s. Her list of blocks includes Onepu 1 which is discussed in a later chapter in this report. It does not include Waipatukahu 5B.526 This block was, however, similarly burdened with unwanted resident site licences. 523 Alexander, Part 1, p.353 524 Anderson, volA, pp.165-173; Anderson, vo1.6, pp.141-175 525 Anderson, vo1.6, p.l72 526 Ibid. Wai 754 121 Two residence site licenses were issued on Waipatukahu 5B: RSL 8211 and RSL 8745. It is not clear whether licenses were issued prior to the 1930s. Licenses were issued, however, in 1930 and 1933, pursuant to the Mining Act 1926: 527 RSLno. Date of licence Area Licensee Period Annual rental No. 8211 25? 1930 1 acre Ivan Matiu Curin, 42 years 5 shillings a farmer of Tapu No. 8756 10 October 1933 1 acre David Rattray Curin, 42 years 5 shillings a miner of Tapu RSL 8211 expired on 24 June 1972, twenty years after the licensee died intestate. The licence subsequently reverted to the Maori owners of the block.528 RSL 8756 covered an area of 4046 square metres and was regularly renewed at a rental of 50 cents per annum into the 1980s when the Crown purchased the area concerned from the Maori owners.529 This transaction is discussed later in the chapter. As Anderson has argued, such licences were an anachronism. They provided 'leases with a right of renewal for trivial rentals. In the meantime, Maori had no power to remove such lands from the gold field and the Government's jurisdiction' .530 Inequities recognised The inequities associated with the resident site licences were drawn to the Government's attention in 1948 by its own departmental and Maori Land Court officers. Judge Beechey of the Auckland Maori Land Court recommended that areas where mining no longer occurred should be taken out from under the Government's jurisdiction. He observed, It is difficult to imagine that when the lands were ceded for goldmining the Maori owners contemplated that the provisions of the Mining Act would apply so as to give anyone the right to obtain the occupation of Maori lands in this way. In the event it is not fair to the Maori owners that lands once required for residence sites in connection with mining should now be retained for residence sites for use apart altogether from mining. 531 Despite the recognition in 1948 that serious inequities did exist, no action was taken to remedy the situation for the Maori owners until the late 1960s. During these decades of Government inaction Hauraki Maori began to seek renewed control over blocks remaining to them. In 1967 the Hauraki Goldfield Trust Committee formally requested that all the affected blocks be returned to Maori control and ownership. The following year Government departmental officers 'decided that the Crown should 527 Copy of License for a Residence Site (8756), File MTM 75, LINZ Hamilton; CT 4D/467 (8211), File 19110/4, LINZ Hamilton 528 R.M. Velvin, Commissioner of Crown Lands, to Messers Phillips and Powell, Barristers and Solicitors, Otorohanga, 14 December 1977, File MTM 75, LINZ Hamilton 529 Licence for a residence site (RSL 8745), 10 October 1975, File 19/10/4, LINZ Hamilton 530 Anderson, vo1.6, pp.172-173 531 Memo. For Under Secretary Department of Maori Affairs, 28 September 1948, cited in Anderson, vo1.6, p.173 Wai 754 122 renounce its rights under the original cessions'. However, all 'rights and titles granted by the Crown within ceded lands were ... to be excepted from that renunciation, and thus, tenants under the residence site licences would be left undisturbed.' 532 Formation of Maori Ceded Lands Committee Hauraki Maori's dissatisfaction with a Mining Bill intended to update outmoded mining laws led to the formation in 1971 of the Maori Ceded Lands Committee. Anderson has described the Committee's stance: [The Committee] argued that the control of the goldfield blocks should be returned to Maori, and objected before the Parliamentary Committee which was examining the Bill that the draft legislation preserved an inequitable and exploitative arrangement which had locked Hauraki Maori into rent levels set over 100 years previously. Hauraki iwi argued that the Crown had 'failed lamentably in the responsibility it assumed to the ... owners through neglecting to revise rentals at suitable intervals', and that it was 'the duty of the Crown to ensure that the land [was] returned free of any equitable claims and certainly free of any so unjustly created' .533 Nevertheless, although the Mining Act 1971 'renounced the Crown's rights under deed of cession [it] preserved the arrangements established under them. '534 The beneficial owners of the affected blocks turned to negotiations with the Crown and eventually accepted a settlement package. This has been summarised by Anderson as follows: Under some pressure from the Minister of Lands who was threatening to terminate negotiations, the Maori owners agreed that the Government would buy out lessees on sites where there were no buildings so that the land could be returned. In occupied sites where this was considered impossible, the Government would buyout the interests of the Maori owners at current valuation (unimproved) or make exchange for Crown-owned lands situated elsewhere. Monetary compensation was also offered, that sum being formulated to take account of the inadequacy of past rentals, and to include a solatium of $100,000 for the fact that the owners had been placed in a position in which they had no alternative but to agree to purchase by the Government. That sum was deposited with the New Zealand Guardian Trust to manage. 535 8.10 Residence site licences: Waipatukahu SB's experience On 9 August 1972 the Maori Land Court heard an application from Paani (Barney) Raukopa (president of the Hauraki Goldfield Trust Committee) and four others to vest 532 Anderson, vo1.6, pp.173-174 533 Ibid, p.174, citing Evidence before the Labour and Mining Committee, 12 March 1970, AAMK 8691202A. 534 Anderson, vo1.6, p.174 535 Ibid, p.175 Wai 754 123 the following blocks in trustees pursuant to Section 438(1) of the Maori Affairs Act 1953. • Moehau4AI • Pohaua 1 and 2B2 • Te Hape North 2 • Harataunga East 2B2B, 2C • Te Horo • Onepu IB • Te Kapua Part, Te Kapua 2 Although Waipatukahu 5B was not mentioned on this occasion, it was later included in the Court order issued in response to the 9 August application.536 Onepu IB is one of the blocks discussed in this report but is dealt with on its own in Chapter 11. The applicants proposed that the following five persons be named as trustees for the blocks: 1. PaanilBamey Atarua Raukopa 2. Mairehau Williams 3. Toko Renata II 4. Betty Nicholls 5. Henare Te Moananui Only Henare Te Moananui had an interest in any the blocks.537 The applicants wanted to establish the trusts to assist the titleholders to negotiate with the Crown over unwanted residence site licences on the blocks. Finlay Lloyd Phillips spoke in support of the application. He stated that the applicants wished to have trustees appointed 'to give them some standing in negotiations with the Crown'. Phillips explained that the blocks had different owners but that when the land involved was ceded to the Crown the undivided titles had not been determined. Separate titles to the blocks had since been issued. He suggested that a good case could be made for the cancellation of the site licenses on the blocks and noted that the applicants had already asked the Crown to take this step. Phillips stated that an exploratory meeting had been held between himself, Mr Briffault and Mr Fitzgibbon, the Assistant Commissioner, and that the present application was intended to clear the way for a settlement for each block.538 Judge K.B. Cull issued his ruling on the applications on 6 October 1972. He noted that the purpose of the proposed trusts was to negotiate with the Crown on behalf of the owners of the blocks for the return of Maori lands ceded to Her Majesty the Queen for goldmining purposes long before the tum of this century and for compensation for loss of revenue and land over which Residence Site Licences have been 536 Rauraki MLC minute book 82, p.170 537 Renare Te Moananui had a minor interest in the Tutukaka block. Rauraki MLC minute book 82, 6 October 1972, p.50 538 Rauraki MLC minute book 82, 9 August 1972, pp.24-25 Wai 754 124 granted under the provisions of the relevant Mining Acts in force from time to time over the ensuing years. 539 Judge Cull noted that the powers requested by the trust - powers to negotiate with the Crown, exchange land, and claim compensation - were very comprehensive, 'more particularly when the majority of the trustees are not even owners in the Blocks affected'. He suggested that the New Zealand Insurance Company would be a more appropriate trustee: This is a case where clearly the responsible trustee or trustees should be a person or persons experienced in dealing with Maori lands and with the knowledge and facilities available to execute a trust of this kind. It is only after considerable thought that the Court has come to the conclusion that a trustee of the calibre of the New Zealand Insurance Company Limited Trust Department is the trustee best equipped to act as the responsible trustee in these negotiations. 540 However, Judge Cull observed that the persons whose names had been put forward as trustees could still play a valuable role. He appointed them as advisory trustees and issued an order vesting the blocks in the New Zealand Insurance Company.541 Waipatukahu 5B became subject to this court order on 19 April 1973 when the Maori Land Court appointed the New Zealand Insurance Company (Trust Department) as trustee for Waipatukahu 5B pursuant to section 438 (1) of the Maori Affairs Act 1953.542 The Court appointed three advisory trustees for the block: Paoni Atarau Raukopa, Betty Nicholls and Henare Te Moananui. The New Zealand Guardian Trust Company replaced the New Zealand Insurance Company as trustee of the affected blocks in 1986.543 Roading and Right of Way Until the late 1970s there was no legal access to Waipatukahu 5B from the Tapu Coroglen road. Although on plans the block appeared to be bordered by the road, high cliffs separated the twO. 544 Practical access to the block was achieved through a track which ran through the neighbouring Waipatukahu 5A block which had long ago passed out of Maori ownership. The track ran through the 5B block to RSL 8745 which lay in the middle of the block.545 On 19 June 1979 an agreement was reached between the New Zealand Guardian Trust and the affected 5A owners to create a formal right of way through a Memorandum of Transfer and Grant of Right of Way Easements.546 The Crown appears to have carried the cost of arranging the right of 539 Hauraki MLC minute book 82, 6 October 1972, p.50 540 Ibid, p.56 541 Ibid; Order Vesting Maori Freehold Land in Trustees, Document H715853, LINZ, Hamilton 542 Order vesting Maori freehold land in trustees, H.248070, LINZ Hamilton 543 Memorial schedule, Hamilton MLC BOF C398. CT 36D/172, LINZ Hamilton 544 Minutes of meeting of Benefical Owners ofOnepu 1B and Waipatukahu 5B, 12 July 1986, p.1, File 19/10/4, LINZ, Hamilton 545 R.M. Velvin, Commissioner of Crown Lands to Messers Phillips & Powell, Barristers & Solicitors, Otorohanga, 14 December 1977 546 Memorandum of Transfer and Grant of Right of Way Easements, H.243565.2 & H.243565.3, LINZ, Hamilton Wai 754 125 way. In a letter written in 1985 regarding negotiations between the Crown and 5B owners, a representative of the Commissioner of Crown Lands reminded the owners' solicitors that 'the Crown at no expense to any of the Waipatukahu 5B owners reserved for them a right of way over [Waipatukahu 5A] so that they could have legal practical access out to the Tapu Coroglen Road.' 547 Crown purchase of Resident Site License As noted above, the purpose of the trust set up in 1973 was to negotiate with the Crown to resolve grievances regarding residence site licenses on the block. In 1981 the Commissioner of Crown Lands approached the licensees of RSL 8745, and asked if they were prepared to sell their interests in the site licence to the Crown for $800.548 The licensees declined to sell and in 1986, as part of a wider settlement package, the Crown purchased the area subject to the licence (4046 square metres) from the Maori owners ofWaipatukahu 5B. On 14 February 1985 the Commissioner of Crown lands submitted a settlement proposal to the Waipatukahu 5 lawyers for the consideration of the owners. The proposal, based on valuations supplied by the Valuation Department, contained the following suggestions: 549 1. That the residence site licence be transferred to the Crown. The site licence had a land value of $3000 as at 16 January 1985. 2. That the owners grant the Crown a right of way over part of the block to provide legal access to the residence site licence. Compensation was assessed at $5000. 3. The Crown proposed to make a payment for past sub economic rents received for the residence site licenses. A total of $172.20 was arrived at based on a rental set at 6% of the land value for the years 1961 to 1984. Land value Period Rent at 6% 1.10.61 $60 2 years $ 7.20 1.11.66 $60 5 years $ 18.00 1.1.72 $50 5 years $ 15.00 1.7.76 $200 5 years $ 60.00 1.7.81 $400 3 years $ 72.00 Total $172.20 4. The Crown also proposed to make a solatium payment of $1200 'because the owners are considered to be unwilling sellers'. 547 G.L. Vendt, for Commissioner of Crown Lands, to Messers Phillips & Powell, Barristers & Solicitors,Otorohanga, 14 February 1985, File 19/10/4, LINZ, Hamilton 548 C.S. Christie, Commissioner of Crown Lands, to Messers L.R. & C.S. Taylor, New Plymouth, 18 September 1981, File MTM 75, LINZ, Hamilton 549 G.L. Vendt, for Commissioner of Crown Lands, to Messers Phillips & Powell, Barristers & Solicitors, Otorohanga, 14 February 1985, File 19/10/4, LINZ, Hamilton Wai 754 126 In summary, the Crown offered the Maori owners Land value $3,000.00 ROW compensation $5,000.00 Sub-economic rent $ 172.00 Solatium payment $1,200.00 Total $9,372.20 G.L. Vendt, for the Commissioner, stated that the owners had the option of accepting a total cash settlement or accepting a settlement partly in cash and partly in land. 55o A meeting of the beneficial owners of Waipatukahu 5B and Onepu 1B was held at Puru on the Thames Coast on 12 July 1986 to discuss the Crown's proposals regarding the two blocks. See Chapter 11 below regarding Onepu 1B negotiations. The meeting was attended by 20 beneficial owners and members of their families listed below. The names have been taken from a list of attendees' signatures. Some people's names, and place names, are unclear and may be misspelled here. The names have been checked against schedules of owners issued for Waipatukahu 5B in 1978 and 1991 and for Onepu 1B in 1962. Onepu 1B, like Waipatukahu 5B, had been vested in the New Zealand Insurance Company Limited, later the New Zealand Guardian Trust Limited. A member of New Zealand Guardian Trust, Mr P. Proverbs, and three Advisory Trustees for the blocks - Mr H. Tukukino, Mrs Mairehau Williams and Mrs Emily Paki - attended the meeting. Messrs R. Barnaby and R. Schwass from the Department of Lands and Survey and lawyer Finlay Lloyd Phillips were also present.551 Beneficial owners Address Waipatukahu Onepu lB attending 5B interests552 interests553 1. A. Reta (?) Kerepehi ? 2. Mairehau Williams Paeroa? 3. Huey Makini Te Paeroa Moananui alias? Keeti 4. Heraputea Williams Te Kuiti Yes 5. S.M. Gregory Ngaruawahia 6. J? Reta Kerepehi ? 7. Mita Gregory Ngaruawahia 8. Julie Gregory N garuawahia 9. Colin? Gregory Ngaruawahia 10. Ripeka Paruhia TePuru 11. Barbara Fraser Thames 12. Ara? Hudson Whakatane ? 13. Ben Hudson Whakatane 550 Ibid. 551 Minutes of meeting of the Beneficial Owners of Onepu 1B and Waipatukahu 5B blocks, 12 July 1986, File 19/10/4, LINZ Hamilton 552 From 1978 and 1991 schedules of owners: Schedule of owners attached to Document H.243565.3 (1978, Memorandum of Transfer and Grant of Right of Way Easements), LINZ Hamilton & Schedule of owners attached to Consolidated Order, 25 September 1991 (Hauraki MLC minute book reference 93/52-55), Hamilton MLC BOF C398 553 From 1962 schedule of owners: PR 282/128. LINZ Hamilton Wai 754 127 14. J ossie Hawkins Te Puru 15. H? Tuku Huia? TePuru 16. Jack Hine Thames 17. R. Cruller? Auckland 18. Henrietta Tiwai-Lopa? Papakura (nee Campbell) 19. Te 0 Kura M.(Levet) West Tamaki Turner? 20. Wilson Tutmer? West Tamaki No Waipatukahu 5B owners appear to have attended the meeting. Mr Phillips expressed his regret at the low turnout but expressed the opinion that this might be because the cost of attending may have been greater than the value of individual shares in the blocks: we put in the notice an estimate of how much each particular person would receive [if their share was sold to the Crown]. A lot of those owners who were not present had only small shares and probably thought that the value of their share was less than the cost of travelling to the meeting. However at least they all have had the opportunity to come.554 At the meeting Mr Phillips explained how the proposed solatium payment had been arrived at. He stated that 'after a great deal of negotiating with Government, it had finally paid the sum of $100,000 to be divided among the owners involved in the ceded lands claim. This had been allocated amongst the blocks by your trustee apportioned according to the way in which each block had been affected by the resident site licences.' Phillips then discussed the land available to the owners should they wish to settle their claims in land rather than in cash. He also informed the attendees that the settlement money could not be paid out until successors were appointed to deceased owners in the block. 555 On 22 September 1986 Phillips and Powell, Barristers and Solicitors, informed the Chief Surveyor that the Maori owners of Waipatukahu 5B 'were happy to accept the settlement offered by the Crown'. However, they suggested that as a year had passed since the settlement was offered an additional year's payment for inadequate rental was required. In addition, they believed that compensation for inadequacy of rental was also due for the expired residence site licence number 8711 for the period 22 November 1960 up to 24 June 1972. 'We note', they concluded, 'that this may only be a comparatively small sum, but we particularly do not wish to leave any loopholes whereby owners may query the settlement in years to come.' 556 On 1 October 1986 the Chief Surveyor provided New Zealand Guardian Trust with a revised settlement offer. 557 The offer included a considerably higher land value for 554 Minutes of meeting of the Beneficial Owners of Onepu 1B and Waipatukahu SB blocks, 12 July 1986, p.S, File 19/10/4, LINZ Hamilton 555 Ibid. 556 Phillips & Powell, Barristers & Solicitors, Otorohanga, to Mr Schwass, Chief Surveyor, Department of Lands and Survey, Hamilton, 22 September 1986, File 19/10/4, LINZ, Hamilton 557 R.F. Schwass, for Chief Surveyor, to the Trust Officer, N.Z. Guardian Trust Co. Ltd, 1 October 1986, File 19/10/4, LINZ, Hamilton Wai 754 128 the area covered by the remaining resident site licence: $12,000, as opposed to the 1985 valuation of $3,000. It also incorporated increased compensation for inadequate rentals: $455 as opposed to $172. The period covered now extended back to 1956 and the total included compensation for the expired residence site licence. The $455 was derived from the following calculations:558 Land value Years Amount at 6% RSL 8745 31.10.56 $40 1 $ 2.40 1.10.61 $60 5 $ 18.00 1.11.66 $60 5 $ 18.00 1.1.72 $50 5 $ 15.00 1.7.76 $200 5 $ 60.00 1.7.81 $400 4 $120.00559 1.7.85 $3000 1 $180.00 RSL 8211 31.10.56 $40 1 $ 2.40 1.10.61 $60 5 $ 18.00 1.11.66 $60 5 $ 18.00 1.1.72 $50 1 $ 3.00 Total $454.80560 The blocks' owners agreed to these changes and an Agreement for Sale and Purchase was drawn up incorporating a total purchase price of $15,455.561 Land $12,000.00 Right of way compensation $ 3,000.00 Inadequate rent for RSL 8745 $ 455.00 and RSL 8211 $15,455.00 $13,910 (90 per cent of the purchase price) was paid to the New Zealand Guardian Trust Company as a deposit on 12 November 1986.562 The remaining $1,545 was to be paid once the exact area of the residence site licence had been defined and a plan deposited. The original area (4046 square metres) was an awkward 'c' shape and the boundaries were redefined with the agreement of the licensee, the Crown and the Trustee. The owners also agreed to grant the Crown a right of way to the purchased area. The Board of Maori Affairs, pursuant to section 252 of the Maori Affairs Act 1952, approved the purchase and its provisions. 563 It is not clear when the final 558 Rental calcualations attached to R.F. Schwass, for Chief Surveyor, to the Trust Officer, N.Z. Guardian Trust Co. Ltd, 1 October 1986, File 19/10/4, LINZ, Hamilton 559 This should have been $96 but the overpayment of $24 was overlooked. 560 Rounded up to $455.00 561 Agreement between New Zealand Guardian Trust Company Ltd and Minister for Lands on behalf of the Crown, 11 November 1986, File 19/10/4, LINZ, Hamilton 562 NZ Guardian Trust Account, to Department of Lands, Hamilton, undated, File 19/10/4, LINZ, Hamilton 563 Agreement between New Zealand Guardian Trust Company Ltd and Minister for Lands on behalf of the Crown, 11 November 1986, File 19/10/4, LINZ, Hamilton Wai 754 129 payment was made, however, correspondence in the Land Information New Zealand file suggests that it was paid between October 1989 and January 1990.564 The licensees ofRSL 8745 surrendered the licence to the Crown on 26 June 1994.565 8.11 Residence site licence settlement: issues arising Although a settlement was reached with regard to grievances stemming from the residence site licenses, two issues are of concern. First, the Crown's very slow response to the situation and its reluctance to fully address the concerns of the Maori owners as articulated by the Ceded Lands Committee. As noted above, the Committee had argued that the Crown had a duty to return the affected lands 'free of any equitable claims and certainly free of any so unjustly created'. 566 The Crown, however, preserved the leases on the blocks. The second issue of concern is the lack of involvement of all interested parties. The Wai 754 claimants have suggested that there may have been a lack of consultation with individual Maori who had interests in the blocks. As seen above, attendance at at least one meeting held to discuss the offer was very small and no Waipatukahu owners appear to have participated. There may also be issues concerning the mandate of those driving the case for compensation and their accountability to the individual owners. 567 However, a detailed examination of the appointment and conduct of the representatives who negotiated with the Crown lies outside the scope of this report. The conduct of the negotiations is, perhaps, worthy of a separate study which could encompass all the blocks burdened by the anachronistic site licences. 8.12 Uneconomic interests In 1955 the Maori Trustee took over Hera Eparaima's interest in the block as an 'uneconomic interest'. Section 137 of the Maori Affairs Act 1953 required the Maori Trustee to purchase 'uneconomic' interests, 'defined as interests under £25 in Maori land and sell them to individual Maori or Maori corporations' .568 Hera's interest does not appear, however, to have been sold. She had five successors in the block:569 564 Memo, Richard Barnaby, District Manager, Department of Lands, to Mr Cayless, ADG HO, 3 October 1889; Barnaby to District Valuer, Valuation NZ, Hamilton, 3 January 1990, File 19/10/4, LINZ, Hamilton 565 CT 45A!284, LINZ, Hamilton 566 Evidence before the Labour and Mining Committee, 12 March 1970, AAMK 8691202A, cited in Anderson, vo1.6, p.174 567 Email correspondence with Garrick Cooper, 28 February 2000 568 Order Vesting Uneconomic Interest in the Maori Trustee, and attached schedule of successors, 19 April 1955, Hamilton MLC BOF C198. G.V. & S.M. Butterworth, The Maori Trustee, Wellington, 1991, pp.69-70 569 Order Vesting Uneconomic Interest in the Maori Trustee, and attached schedule of successors, 19 April 1955, Hamilton MLC BOF C198 (minute book reference: Hauraki MLC minute book 74/300) Wai 754 130 Successor Age/sex shares Value of shares 1. Ani Harihona F. 1,4 £3.0.0 2. Iwa Harihona F. 1,4 £3.0.0 3. Wiremu Harihona M. 1,4 £3.0.0 4. Rere Karawhiu F.8 1/8 £1.10.0 5. Panapa Karawhiu M.6 1/8 £1.10.0 It is not clear why the Maori Trustee allowed succession to the uneconomic interest vested in itself. At least one of Hera's successors (Ani Harihona) appears in a list of owners issued in 1991. 8.13 Bulk of Waipatukahu 5B not alienated The remainder of Waipatukahu 5B (31.1608 hectares) has remained in Maori ownership. A 1991 schedule of owners listed 33 owners including the claimants' tipuna 'Tutoko Akuni or Purangatawa Kuni or John Cooney' who held 0.3125 of 1.5 shares in the block.57o John Cooney inherited half of Hori Eparaima's interest and the whole of Mama Eparaima's interest in the block in 1951.571 This 1991 schedule contains the following names: Owners Shares 1. Abraham Mita M. .0156 2. Alice Rangitutia F. .0061 3. Ani Harihona or Rawha or Paekau F. .1250 4. Ann Kati F. .0062 5. Bruce Rangitutia M. .0062 6. George Pomana or Hori Pirika M. .0070 7. Henry Mita M. .0156 8. Hera Eparaima F. .1250 9. Hine Mafi F. .0246 10. Hori Mita M. .0246 11. Jack or Tiaki Pomona or Jackie Pirika M. .0070 12. Joseph Tuki M. .0062 13. Leonard Ranitutia M. .0061 14. Leslie Pomana or Rahiri Pomana or Leslie Pirika M. .0069 15. Linda Rangitutia F. .0061 16. Lucy Mita or Simok F. .0246 17. Mariana Bouland F. .0370 18. Mary McKirdy F. .0061 19. Mereana Bidois F. .0245 20. Norman Pomona or Pirika M. .0069 21. Pakira Eparaima F.D .1250 22. Parengata Kaiki F. .0245 23. Rangi Hemmingson F. .0246 24. Renata Pereki M. .0742 25. Robert Alexander Tuki M. .0062 570 Schedule of owners attached to Consolidated Order, 25 September 1991 (Hauraki MLC minute book reference 93/52-55), Hamilton MLC BOF C398 571 Hamilton MLC BOF C398 Wai 754 131 26. Tai Tuki M. .0062 27. Tang Tuki .0062 28. Tutoko Akuni or Pungatawa Kuni or John Cooney M. .3125 29. Urikore Makaore Pirika or Aperaniko M. .0278 30. Yvonne Wiki Mita F. .0156 31. Te Waewae te Rekereke or Arawahia M. .2221 32. Wire Parete or Wiremu Kingi II M. .0740 33. Wiremu Aperahama M. .0938 Total shares 1.5000 Wai 754 132 Figure 12. Waipatukahu 5572 "'f . ,,'. ," ':'.... "':'-'.i(. ". >. \' . .' I ... . f~... ' , i O( .\ .. l' i. , " Q o III <:t .. I· ~ ul C .. :;. r (. ,,;' I .," I" ~. I[ i~ P \ , ~ 572 ML4500 Wai 754 ~ u. ~ ~ ...... ::9 @ ~g :;--::r-"-en 'TjO / ..... ~ .....~ (t S' I1Q ...... oq ...... ~~ =~ ooq ~ ~ E5" • I:> ~ t:E; Zn ~ t-ll:> Lot 1 til o Waipatukahu 5B Block DPS 15909 U64113 a: ~ ~i == =':0; N#tIF' I '>10 'lISIt I ~ - n I § ~ I r.n @ " I ..... I .... 36 ~ ~. I I' CD /RS.L.8745. ' t"'" ~ ...... (S. z ~ I " 4046m I / ~ ~ I I -t:. g Lot 4 ~== @ I " Pit Toil" I I ~ I " I \ I ..J 00 \ . 1oaShfd' ~ , lad Qr9nMtuO j: _-' / \lOft(r,t, ~ f~~ _ ,-Tria_ ...., A ~ \Irr~.:--.'-a.op-~ _..,..- ::.!.crn __ - !Jl ":I::;.-'t~--~~-,-"- - Proposed Right sg WI" , a«h \lWwcl, IShrllIf ~ """ , of Way t,j c.. \\~ 1 >6. ,JI \ 1155m 8. \ \ ~ \ \ (l.1tYd tMJ , ;~~il~.£ .... , \ j , \ =~ \ \ ::dfU g \ \ ~ c.. \ \ ------,I .·::nr·:~~ \ I !Jl= 'El \ I . ~\ ~ J; co \ , I '-" X ______..J U. -.l ~ v.> 8. ::l. oq ::r .... Plan of LOCAL AUTHORITY Thames - Coromandel Dist g, I--" Residence Site Licence 8745 & Proposed Right I.my.d by B.Coleman (,;) of Wayan Waipatukahu 5B Block lui. 1: 750 Dill Nov. 1964 (,;) 134 CHAPTER 9 Rautawhiri 0 Te Ao Summary Title awarded: 30 July 1883 Ownership: 6 owners (1883) including Rawiri Taiporutu Alienation: Sold in 1964 to c.P. Oliver Area: 31 acres 2 roods 0 perches (1883) Price: £450 Alienation title: PR 256110, CT 4A/985 Transfer No. S307385 Plan: Not yet located 9.1 Location Rautawhiri-o-te-ao, a block of 31 acres and 2 roods, lies near the town of Coroglen, south of the Whitianga Harbour. It borders the Oteao Stream and lies to the west of the Te Kauanga Whenuakite blocks. 9.2 Title Investigation The Native Land Court investigated the title to Rautawhiri-o-te-ao in August 1883. Mita Arama Whakatau of Ngati Hei introduced the claim. He argued that he and his co-claimants had a right to the land through ancestry and through occupation. He also declared that they had never been disturbed in their occupation of the land.574 Mita stated that the ancestral claim had already been covered in the title investigation of another block: Taumarawahine. In that investigation Mita described his whakapapa across eight generations stretching back to Tinirau.575 Rahera Tanui and Hohepa Mataitaua wished to be included in the list of co-claimants but Mita Whakatau rejected Hohepa's claim.576 Henare Whakarongohau initially wished to state his own claim 'in absolute opposition' to the claimants. However, on 9 August he withdrew his opposition to the claim before the Court.577 Rawiri Taiporutu also spoke at the title investigation. He stated that he was of the Ngati Parekaiata hapu of the Ngati Hei tribe. He knew the land as part of the ancestral estate of Tinirau. Rawiri argued that his rights to Tinirau' s estate had previously been acknowledged by the Court when other blocks had come before it. On occasion, he noted, he had come into the Court and found a case proceeding and had claimed and obtained admission. Although he was never acknowledged by Mita Whakatau and 574 Coromandel MLC minute book 3, 1 August 1883 575 Ibid, p.268, & 31 July 1883, p.259 576 Ibid, p.269; 9 August 1883, pp.328-330 577 Ibid, p.270; 9 August 1883, p.328 Wai 754 135 others of his party in these cases, the Court had recognised his claims.578 The Court accepted that Rawiri had a valid interest in the block and included him in the following list of title-holders of Rautawhiri 0 Te Ao. 1. Mita Arama Whakatau 4. Rahera Tanui 2. Reriana Eparaima (Kingi) 5. Erana te Oneone. 3. Hera Eparaima (Kingi) 6. Rawiri Taiporutu No restrictions were placed on the block. The new title-holders were charged court costs of £1. Succession Harata Taiporutu and Wiremu Rawiri Taiporutu succeeded to Rawiri Taiporutu's interests in Rautawhiri-o-te-ao on 26 October 1889. The Court awarded them half shares in Rawiri's one-sixth share in the block.579 The interests of Reriana EparaimaiKingilMatahera, a descendent of Eparaima Kingi, were inherited in 1922 by: • Riria Henare Aperahama • Eparaima Henare Aperahama • Rina Henare Aperahama • Tutoko Te Akuni (minor: 13yrs) • Keriana Henare Aperahama (Trustee: Rina Renare Aperahama) 9.3 Invalid sale W.B. Nicholson 'purchased' Rautawhiri-o-te-ao in 1894 for £18.15.0. He applied for confirmation of the sale on 4 April 1895. Mita Whakatau's name appears on a declaration stating that he and others had signed a deed transferring the land to Nicholson on 9 April 1894. However, a handwritten note on Nicholson's application states that it was dismissed by the Court on 5 December 1898.580 Nicholson applied again for confirmation of the sale in 1915.581 An undated note in the Block Order File states that the Deed was dated 9 April 1894 but that this was prior to the Native Land Court Act 1894 and therefore the requirements of the Act did not apply.582 Nicholson proved unable to have his purchase confirmed and registered and the block remained in Maori ownership. 9.4 Alienation Rautawhiri was alienated on 22 December 1964 when it was sold to Charles Frederick Oliver.583 Oliver farmed alongside the block and had cleared ragwort from it.584 At a 578 Coromandel MLC minute book 3, 9 August 1883, p.330 579 List of Succession Orders made, n.d., Hamilton MLC BOF C181 580 Application for Confirmation of Alienation of Interests of Mita Whakatau and Others in Rautawhiri-o-t-au, 4 April 1895, Hamilton MLC BOF C181 581 Hamilton MLC BOF C181 582 Handwritten note, n.d., not signed, Hamilton MLC BOF C181 583 Transfer S307385, LINZ, Hamilton. CT 4A/985, LINZ, Hamilton 584 Extract of Minutes from AH Alienation Minute Book vol 2: folio 274, 30 September 1964, in BBHW 4958/888g, NA, Auckland Wai 754 136 meeting of assembled owners at Paeroa on 3 September 1964 the owners passed a resolution agreeing to the alienation. Oliver paid £450 for the land to the Maori Trustee as the owners' agent. 585 He also paid outstanding rates on the block of £15.18.2.586 The Department of Maori Affairs examined and approved the transfer documents.587 The Office of the Maori Trustee received the purchase money in December 1964 and distributed it to the owners on 24 February 1965.588 In a letter dated 3 September 1964 the claimants' tipuna Purangataua Kuni authorised the Maori Land Court to pay his share of the purchase price to his solicitors Messrs McGregor, McPherson and Brake, Morrinsville.589 9.5 Issues arising Alienation procedure and assembled owner meetings The issues arising regarding the alienation of Rautawhiri are very similar to those raised in Chapter 7 regarding the alienation of Te Kauanga Whenuakite 6. Rautawhiri was also alienated under the provisions of the Maori Affairs Act 1953 through the mechanism of an assembled owners meeting. Interestingly, W.B. Nicholson who had failed in an attempt to purchase Te Kauanga Whenuakite 6 in 1910 also failed in his bid to purchase Rautawhiri in 1894. The two blocks were near neighbours. The alienation file held by National Archives does not record the numbers of owners who attended the assembled owners meeting which voted to sell the block.59o However, it is possible, as occurred in the case of Te Kauanga Whenuakite 6, that this meeting was similarly poorly attended. The successful completion of all technical requirements for confirmation of alienation was, as argued elsewhere in this report, no guarantee that all owners were fully consulted about, and agreed to, the alienation of their interests in land. 585 Transfer S307385, LINZ, Hamilton 586 Extract of Minutes from AH Alienation Minute Book vol 2: folio 274, 30 September 1964; Country Clerk, Coromandel County Council, to Messrs Gilchrist, Burns & Johnston, Solicitors, 11 December 1964; Gilchrist, Burns & Johnston, Solicitors, to Maori Trustee, 18 December 1964, in BBHW 4958/888g, NA, Auckland 587 Maori Affairs Department to Gilchrist, Burns & Johnston, Solicitors, 24 December 1964, BBHW 4958/888g, NA, Auckland 588 Record of money received and distribute, Bound Ledger Accounts, Office of the Maori Trustee, Hamilton 589 Purangataua Kuni to Registrar Waikato-Maniapoto Maori Land Court, 3 September 1964, BBHW 4958/888g, NA, Auckland 590 BBHW 4958/888g, NA, Auckland Wai 754 137 Figure 14. Rautawhiri 0 te A o591 S.D. , Rautawhll"'i " ScaJe: 1 inch 10 chQins 591 CT 4N985, LINZ, H,unilton Wai 754 138 CHAPTER 10 TeKauanga Summary Title awarded: 1883 Ownership: 18 owners including Eparaima Kingi's descendents. Alienation: 1974 - as Western severance of amalgamated block Whakapoi 2 Area: 4a.lr.16p. Price: $1500.00 Alienation title: CT 18D/330, Transfer H32320 Plan (ML): 5297B 10.1 Location Te Kauanga (4a.lr.16p) is located south of the Whitianga Harbour, within a bend of the Waiwawa River. The block is bordered on its eastern side by the Te Parangahau block.592 10.2 Title investigation In July 1881 Eparaima Kingi applied to have the title to Te Kauanga investigated by the Native Land Court.593 However, Eparaima appears to have died before the block went through the Court. On 1 August 1883 the Court issued a title to a 4 acre block named Te Kauanga (Mercury Bay) to 18 title-holders, including some of Eparaima Kingi's descendants: 1. Reriana Eparaima 10. Hori Eparaima 2. Hera Eparaima 11. Wiremu Eparaima 3. Mita Eparaima 12. Witika Eparaima 4. Hekiera Eparaima 13. Merehana Eparaima 5. Ani Eparaima 14. Haara Merehana 6. Te Arawahie Marara/Kingi 15. Hiria Marara/Kingi 7. Niheha Puma Marara/Kingi 16. Marara Hape Marara/Kingi 8. Ani Parere Marara/Kingi 17. Piringa Moke Marara/Kingi 9. Mere Kingi 18. Wira Erana The block was to be inalienable by sale, mortgage or lease for 21 years.594 10.3 Survey lien The block incurred a £6 survey lien.595 On 25 July 1896 Judge H.P. Edger issued a charging order for the costs of survey in favour of the Chief Surveyor. 596 The lien was 592 Map, Hamilton MLC BOF C222 593 Application for Title Investigation, 16 July 1881, Hamilton MLC BOF C222 594 Title Order, 1 August 1883, Hamilton MLC BOF C222 Wai 754 139 paid in two instalments: in March 1903 (£4) and April 1907 (£2 balance).597 The final payment was probably made in response to a request from the Chief Surveyor in 1906 to have land taken to pay for the outstanding £2.598 The payment of the balance of the survey costs resulted in the release of the lien on 15 April 1907.599 10.4 1907 controversy over ownership and successions In 1907, during a Maori Land Court hearing of an application for succession orders for the share of Reriana Eparaima in Te Kauanga, the Court heard evidence regarding the alleged sale of shares in the block to Erana Meroiti (Mrs Grant). Reriana's husband Henare Aperahama, who was not an owner in the block, had applied to the Court to have her children appointed as successors to her share in the Te Kauanga block. Reriana died on 29 May 1898. Henare gave evidence that he, as the children's trustee, together with four other owners in the block (Hera, Hori, Wiremu and Mita Eparaima) had transferred shares in the block to Erana on 30 May 1898, the day after Reriana's death, and had received stores and a cheque for £10. Erana had leased the block since 1892 for 2/6 per week. Henare stated that 'we did not agree on the price for the land. I did not sign any deed'. However, he also declared that 'We thought we were selling the land tho we did not sign any deed'. Henare argued that he had not known at the time of his wife's death that the block was inalienable. However, he had since found that this was the case and was now trying to secure the land for his children. I say Grant can't get the land because it is inalienable. I can't say how Mr Grant is to get his money back. That is no business of mine. 600 Erana's lawyer, a Mr Moresby, opposed the application for succession orders. He argued that Henare, who had no interests of his own in the block, had no right to apply for the orders as Reriana's children were all of age and they did not support Henare's application. Moresby suggested that Henare was trying to get control of the land in order to sell it to a Mr O'Connor for £300.601 Moresby argued that block had been leased to Mrs Grant who had paid rent (£6 per annum) up until Reriana's death 1898 when she had given £10 cash and £5 worth of stores to some of the owners. Since then, each of the 18 owners in the block had been paid £2.10.0. Hera Eparaima had received £20 as the trustee for the children of Wiremu Eparaima. Moresby asked the Court not to approve any succession orders until the Maori Land Board had had time to remove the restrictions on the block. He also asked that Erana (Mrs Grant) be appointed Reriana's successor in Te Kauanga.602 595 Survey Lien, 24 July 1883, Hamilton MLC BOF C222 596 Survey Lien Charging Order, 25 July 1895, Hamilton MLC BOF C222 597 Receipt for £4 towards survey lien, 27 March 1903, Hamilton MLC BOF C222 598 Chief Surveyor, Request for Land to in Lieu of Survey Fees, 30 August 1906, Hamilton MLC BOFC222 599 Notice of Release of Lien, 15 April 1907, Hamilton MLC BOFC222 600 Hauraki MLC minute book 55, 14 June 1907, p.198-202 601 Ibid, pp.201-202 602 Ibid, p.203 Wai 754 140 Hori Eparaima, Reriana's brother, also gave evidence. He confirmed that Erana had provided money and supplies for the tangi and stated that 'We gave her the land in payment in return for her aroha to us'. Ani Eparaima stated that Hori had informed her of the 'tuku' to Erana. She had received £10 from Erana and had signed a deed of transfer. Ani also gave evidence that Pirika, whose children had shares in the land, had recently suggested that the owners 'should take the land away from Erana Meroiti' and that he and Henare 'had decided to hand the land to O'Connor'. Ani rejected Pirika's proposal and stated that she wished the 'tuku' to Erana be given effect. Renate Kingi also supported the 'tuku' of the land to Erana and had rejected Pirika's proposal to sell the land to O'Connor.603 The Court rejected Henare's application for the succession orders. The Judge declared that Henare had no right to make the application and that he was acting in bad faith. He also noted that Mrs Grant (Erana) had paid at least £200 to various owners of the block and that several owners desired to carry out the arrangements for settling the land on her. The Grants had, however, been poorly advised in expending large sums on the block, including £800 worth of buildings erected, when they had no title to the land. The Judge declined to issue any succession orders unless the persons entitled to succeed applied on their own behalf. He also stated that the proposed sale of the block to Mrs Grant would depend on whether she could get the restrictions on alienation of the block lifted. However, that was not an issue before the Court at that moment.604 It does not appear that the restrictions on the alienation of the block were lifted before the Native Land Act of 1909 removed restrictions from Maori owned blocks en masse. Although Erana's husband William had indicated during the succession hearing that he wanted to secure his wife's interests in the block, neither he nor his wife appear to have pursued the matter further, or if they did, to have had any success in the matter. The block remained in Maori ownership until the 1970s and Reriana's successors retained their interests in the block. The Court did not issue succession orders for Reriana Eparaima's share in Te Kauanga until 1921. The orders were to date from 1899. Reriana had five successors in Te Kauanga including the claimants' tipuna Tutoko Te Akuni: 1. Riria Henare Aperahama 2. Eparaima Henare Aperahama 3. Rina Henare Aperahama 4. Tutoko Te Akuni 5. Keriana Henara Aperahama The Court appointed Rina Henare Aperahama as trustee for Tutoko Te Akuni who was recorded as being 13 years 01d. 605 603 Ibid, pp.203-207 604 Ibid, pp.214-216 605 Succession & Trustee Orders, 27 October 1921, Hamilton MLC BOF C222 Wai 754 141 10.5 Land deducted for roading In 1905 22.4 perches (3.6 per cent of the block) was deducted from Te Kauanga for roading under Part IV, Section 88 of the Public Works Act 1894.606 Section 88 of the Act dealt with Native lands which were not held or occupied under a title derived from the Crown. However, Te Kauanga's title was derived from the Crown. As seen above, the Native Land Court investigated the block's ownership in 1883 and awarded the title to 18 Maori rightholders. The Crown thus took the land under the wrong part of the legislation. This was a serious error. The 1894 Act's provisions for taking land for public works distinguished between European and Maori land, and between Maori customary land and that derived from the Crown. The provisions relating to Maori customary land were harsher than those relating to the other categories of land. Section 88 did not require authorities to advertise the proposed takings to the same extent required under provisions affecting other lands. Nor did it require notice to be served on the owners or occupiers as was required elsewhere.607 Taking the land under section 88 disadvantaged the Maori owners by giving them far less warning of what was about to occur on their land. Under the provisions of the 1894 Act up to 5 per cent of Maori land could be taken for public works without compensation if it was taken within 15 years of the issue of a grant or certificate of title for the land. Although the amount of land taken from Te Kauanga fell below the 5 per cent threshold, it was taken outside the 15 year time period.608 However, given that Te Kauanga was taken under section 88 of the 1894 Act, under the mistaken assumption that it was customary land, the time limit would not appear to have applied. Even if Te Kauanga had been taken under the correct section of the Act there was no guarantee that its owners would be compensated for any loss or inconvenience. Getting compensation for land taken from Maori land was not a straightforward process and differed significantly from processes utilised for European land. All compensation claims for Maori land had to be heard by the Native Land Court. Claims were to be filed by the party taking the land rather than the owners themselves: The Minister, in the case of a Government work 'may at any time', and the local authority in the case of local work, 'shall, not later than six months after the date of the first gazetting' of the Order in Councilor proclamation taking the land, cause application to be made to the Native Land Court to ascertain compensation payable, persons entitled, and the exact land involved (s.90(1)). 609 Owners of European land could make claims on their own account to the Crown or local authority concerned. If the claim was accepted a Compensation Court would determine the amount of any compensation owing. If the party taking the land rejected the claim the owners could take their case to the Supreme Court.610 606 NZ Gazette, No.92, 26 October 1905, p.2495. Road shown on plan S.0.13399. 607 Sections 17 & 88 Public Works Act 1894. Marr, pp.112-114 608 Sections 92 & 94 Public Works Act 1894 609 Marr, pp.112-114 610 Sections 37-49, Public Works Act 1894 Wai 754 142 In 1968 solicitors Phillips and Powell wrote to the Registrar of the Native Land Court regarding the land taken for a road 63 years earlier. Phillips and Powell stated that no application appeared to have been made to the Court 'to fix the amount of compensation payable to the owners' but that 'it was intended that the loss of land should be made up by vesting in the owners an area of closed land to the west.' The solicitors asked the Registrar to let them know if any application for compensation had been made before they took the next step and approached the Commissioner of Lands to have the area of closed road incorporated in the Maori Land title.611 The Registrar informed them that the Court had no record of a compensation application or award.612 No other documentation regarding incorporation of the closed road has been located. 10.6 Roading: issues arising Several issues are of concern here. As noted above, the application of an inappropriate, and harsher provision to the taking of land for a road disadvantaged Te Kauanga's owners. The fact that customary land could be dealt with under much harsher provisions than those affecting European land or Maori lands with Crown titles is on its own a serious Treaty issue. The owners of Maori land taken in this way were deprived of full notification of what was about to happen to their land and were thus less able to challenge inappropriate or illegal takings. The apparent failure of the Crown to compensate the owners for the loss of land is also of concern. Whether the owners were entitled to compensation under the 1894 Act is not clear. Cathy Marr has commented in her Rangahaua Whanui report on public works takings on the confusion generated by the many laws and their amendments affecting Maori land. Marr argues this confusion 'encouraged evasion of compensation even when it was due and the confusion surrounding various provisions provided a tempting means of evading what little protections and restrictions applied [to Maori land]' .613 This confusion, combined with the discriminatory nature of the 1894 Act, placed Te Kauanga's owners in a highly vulnerable position when it came to public works takings. 10.7 Ownership 1964 There is a large silence in the documentation regarding Te Kauanga between 1905 and the late-1960s. However, the following 49 owners were recorded as having interests in Te Kauanga in 1964: 614 611 Phillips & Powell to Registrar Maori Land Court Hamilton, received 7 October 1968, Hamilton MLCCCFC222 612 Registrar Maori Land Court Hamilton to Phillips & Powell, Barristers & Solicitors, Otorohanga, 8 October 1968, Hamilton MLC CCF C222 613 Marr, cited in Ward, 'Overview', vol.II, p.312 614 List of owners, 23 August 1964, Hamilton MLC BOF222 Wai 754 143 Owners Share (E. Kin i Wai 754 descendents underlined)615 1. Abraham Mita (Trustee: Keru Mita) m.1974 .2001 2. Ani EparaimaiKingi f.dcd 1.8000 3. Ani Harihona (Mrs Rangi Paekau) f.a. .2000 4. Ani Parete MararaiKingi f.a. 1.0000 5. Ani Rawha f.a. .1250 6. Te Arawahia MararaiKingi 1.0000 7. Bunny Te Moananui m.a. .0793 8. Haara Merehana 1.0000 9. Hare Merehana m.a. .8000 10. Hatara Moananui m.a. 1.0000 11. Herni Hirawani m.a. .1582 12. Henry Mita (Trustee: Keru Mita) m.1974 .2003 13. Hine Mafi f.a. .1000 14. Hiria MararaiKingi 1.0000 15. Te Hohi Kingi f.a. .1111 16. Hori Mita (Trustee: Keru Mita) m.1967 .1000 17. Hori Pomana m.a. .0417 18. Iwa Harihona @ Iwa Herekiuha f.a. .2000 19. Kohitu Eparaima m.a. .2000 20. Kura Hirawani f.a. .1582 21. Kura Rangitutia f.a. .1000 22. Lucy Mita @ Lucy Simok f.a. .6000 23. Marara Kingi f.a. .1111 24. Marata Hape MararaiKingi 1.0000 25. Mere Kingi f.a. 1.0000 26. Mere Rawha f.a. .1250 27. Mereana Bidois f.a. .1000 28. Merehana Eparaima f.a. 1.0000 29. Ngaiwa Rawha f.a. .1250 30. Norman Pomana m.a. .0417 31. Parengatu Kaiki f.a. .1000 32. Piringa Moke MararaiKingi 1.0000 33. Poki Hirawani f.a. .1582 34. Punapa Karawhiu m.1966 .1000 35. Purangatawa Kuni @ Jack Cooney m.a. .1332 36. Rahiri Pomana m.a. .0417 37. Rangi Hemmingson f.a. .1000 38. Rere Karawhiu f.1968 .1000 39. Rina Te Moananui f.a. .0793 40. No name recorded 41. Tiaki Pomana m.a. .0417 42. Tutoko te Akuni m.a. .2000 43. Urikore Aperaniko m.a. .1666 44. Te Waewae te Arawahia m.a. .3333 615 The identification of owners in this table as descendents of Eparaima Kingi should not be considered authoritative. The people marked as descendents of Eparaima Kingi have been identified using a Descendency Chart dated 3 September 1999 provided by Wai 754 claimant Garrick Cooper. As a number of people listed in the table and on the chart used different names at different times it is possible that some of those recorded in the table may not have been correctly identified as Eparaima's descendents. Wai 754 144 45. Wiremu Aperahama m.a. .6332 46. Wiremu Eparaima II m.a. .5000 47. Wiremu Harihona m.a. .2000 48. Wiremu Kingi m.a. .1111 49. Yvonne Wiki Mita (Trustee: Keru Mita) f.1970 .2000 Total shares 18.0000 Of these, at least 13, with an combined 4.6025/18 share, were descended from the Wai 754 claimants' tipuna Eparaima Kingi. 10.8 Amalgamation into Whakapoi 2 On 23 January 1970 Te Kauanga was amalgamated with eight other blocks near Coroglen under Section 435 of the Maori Affairs Act 1953 to form Whakapoi 2 (373a.0r.26p) on the grounds that 'the whole of the land comprised in the said titles could be more conveniently or economically worked or dealt with if it were held in common ownership under one title' .616 The fragmentation of Maori land over the preceding decades had reached 'unmanageable proportions' by the 1950s.617 Amalgamation was seen as one of a number of ways of bringing usable land into production. The first moves towards amalgamation of the block appear to have been taken two years earlier. On 16 October 1968 solicitors Phillips and Powell informed the Wai 754 claimant's tipuna John Cooney that a number of other owners in the area had asked the law firm to apply for amalgamation of titles. Phillips and Powell believed that 'this will have the effect of considerably increasing the value of the land and will minimise the present danger of the owners having their shares taken on conversion as being uneconomic.'618 The eight other blocks incorporated in Whakapoi 2 were: • Huhurahi 2B 1 • Te Korarere • Huhurahi 2B2 • Taumatawahine • Huhurahi 1 • Whakapoi • Oteao 4B • Huhurahi 2A (European land) A list of owners of Whakapoi 2 compiled in November 1975 contained 116 owners, including at least 36 of the 49 people named as owners in Te Kauanga in 1965.619 Several of the Te Kauanga owners, including descendents of Eparaima Kingi, also had interests in the 96 acre Whakapoi block.62o The 1975 list of Whakapoi 2 owners lists the claimants' tipuna 'Tutoko te Akuni', also known as 'Purangatawa Kuni' or John Cooney, as holding 2.9619 of the 100 Whakapoi 2 shares. 10 of the 13 owners 616 Amalgamation Order, 23 January 1970, Hamilton MLC BOP C207 617 Butterworth, p.84 618 Phillips & Powell, Barristers & Solicitors, Otorohanga, to John Cooney, Te Puna, Tauranga, 16 October 1968. Correspondence held by Garrick Cooper. 619 Compiled List of Owners ofWhakapoi 2 as at 12 November 1975, Hamilton MLC BOP C207; Compiled List of Owners ofTe Kauanga as at 22 January 1965, Hamilton MLC BOP C222 620 Compiled List of Owners ofWhakapoi as at 19 March 1940, Hamilton MLC BOP C207 Wai 754 145 identified as descendents of Eparaima Kingi in the 1964 list of owners above appear in the Whakapoi 2 list of owners. These 10 owners held a combined total of 11.2948/1 00 shares in the block. 621 It is unclear what happened to the shares of the other three descendents of Eparaima Kingi identified in the 1964 list of Te Kauanga owners (Ani Eparaima/Kingi, Marara Kingi and Merehana Eparaima). 10.9 Vesting in trustees On 26 June 1970, under section 438 of the Maori Affairs Act 1953, the Maori Land Court vested Whakapoi 2 in three trustees: title-holders John Patrick Cooney (the Wai 754 claimants' tipuna), Meremaata Bidois and Pareraukawa Judith Bansom.622 Under the legislation the Court could appoint the Maori Trustee or a commercial trust company as trustee.623 As noted in previous chapters, a commercial trust company was appointed as trustee in the cases ofWaipatukahu 5B and Onepu lB. However, in the case of Te KauangafWhakapoi 2, the block remained in the hands of the beneficial owners. The purpose of such a trust was to overcome problems in administering Maori land resulting from the individualisation of Maori titles and the proliferation of owners within blocks. Judge E. Durie has described section 438 trusts as a 'utilisation' device intended to facilitate management of individual blocks or groups of small blocks: . .. the Court has been largely responsible for promoting such forms of management as that conceived under section 438. When the Court is hearing an application and it appears that the block of land involved in not under any proper management, is neglected, or is being used in a manner that is unfair to owners or any section of them, then the Court becomes concerned to ensure that some form of management is eventually settled upon and established. Sometimes, if the individual block is not an economic unit by itself, the Court will endeavour to establish several blocks in the vicinity under the one system of management. And so there are a variety of trusts, from the small family ones, to larger and more tribal concerns. In this way too, the Court has been able to effectuate the Maori propensity to do things as a body or group.624 As suggested by Durie, and as shown in the case of Whakapoi 2, the amalgamation of blocks and their subsequent vesting in trustees often occurred as two parts of the same process. G.V. and S.M. Butterworth have described some of the alleged benefits of section 438 trusts in The Maori Trustee. These included that 'Maori individuals remained closely identified with their land' and that 'communication between trustees and owners is likely to be facilitated' .625 However, vesting the land in this way did not guarantee that the land would remain with the beneficial owners. Durie's 'utilisation' trusts, 621 Compiled List of Owners ofWhakapoi 2 as at 12 November 1975, Hamilton MLC BOF C207 622 Memorial Schedule, Whakapoi 2, Hamilton MLC BOF C207 623 Section 438 (2) Maori Affairs Act 1953 624 Judge E. Durie, submissions to the Royal Commission on the Maori Courts during its Rotorua hearing March 1979, p.37, cited in P.O. McHugh, The Fragmentation of Maori Land, Legal Research Foundation Inc., Publication No.18, 1980, pA5 625 Butterworth, p.106 Wai 754 146 could act as 'alienation' trustS. 626 Under sub-section 438 (9) trustees had the 'same powers of alienating the land or any part of the land comprised in the trust as if the land were Maori freehold land not subject to a trust, and as if the trustees were the beneficial owners thereof.' 627 The issue of individualisation of Maori titles, the implications of multiple ownership and the fragmentation of Maori land from the 1860s will be discussed in more detail in the General Conclusions at the end of this report. 10.10 Alienation In 1971 Finlay Lloyd Phillips, a lawyer with interests in Whakapoi 2 (3.00801100 shares), applied under the Land Settlement Promotion and Land Acquisition Act 1952 for consent to the sale of the bulk ofWhakapoi 2 (351 acres 3 roods 16 perches). The purpose of the Land Settlement Act was to: provide for the closer settlement of farm land, and for the acquisition of farm land that is, or when subdivided and developed, will be, capable of substantially increased production [and] to prevent the undue aggregation of farm land, and to require that, for a period of three years from the passing of this Act, persons acquiring farm land shall personally reside on and farm the land.628 Under Part II of the Act a Land Valuation Committee had to give its consent to the sale of farm land in order to prevent undue aggregation and to ensure the personal residence requirements of the legislation were fulfilled. The Committee gave its consent to the sale of two parts of the block on 15 January and 10 May 1971.629 Phillips' application did not apply to the whole of Whakapoi 2. A third part, the western portion of the block which contained Te Kauanga, does not appear to have come under the provisions of the Land Settlement Act. On 16 February 1972 the trustees reached agreements to sell the whole block in three parts. The sales were carried out on 28 June 1974 to the following purchasers: 63o • Dalgety New Zealand 3a.2r.llp (1.441 ha) $1500 Western severance • Kapowai Farms Ltd 17a.0r.1O.p (6.9049 ha) $870 Eastern severance • B.W. and N.A. Readhead Balance (l42.6643ha) $4000631 626 McHugh, pA5 627 Section 438 (9) Maori Affairs Act 1953 628 Title, Land Settlement Promotion Act 1952 629 Order of Land Valuation Committee, Supreme Court of New Zealand, 18 May 1971, attached to Memoranda of Transfer H037061 & H032319, LINZ, Hamilton 630 Memorial Schedule, Whakapoi 2, Hamilton MLC BOF C207 631 CT 17D/97 (Whakapoi 2), CT 18D/328 (eastern severance), CT 18D/330 (western severance), CT 19A/282 (balance), Hamilton MLC BOF C207. Memorandums of Transfer H32320 (Dalgety purchase), H037061 (Readhead purchase), H032319 (Kapowai Farm purchase) LINZ, Hamilton Wai 754 147 Te Kauanga made up the western portion of Whakapoi 2 sold to Dalgety New Zealand. The three trustees each signed the Memorandum of Transfer in the presence of witnesses. The solicitor for the transferees certified that Part II of the Land Settlement Act did not apply to the transaction, and the Deputy Registrar of the Waikato-Maniapoto District Maori Land Court noted that the Memorandum had been produced and noted in the records of the Court in accordance with section 233 of the Maori Affairs Act 1953.632 Dalgety New Zealand had built saleyards on Te Kauanga before it was amalgamated into Whakapoi 2, although, according to solicitors Phillips and Powell, 'they knew perfectly well that they were making use of the property without any proper tenure'. However, Dalgety subsequently paid the owners' solicitors rent to cover its use of the land prior to the alienation of the block.633 Although the government valuation of Te Kauanga was $1900, this included 'a very considerable sum for the improvements effected by Dalgetys', and the trustees accepted the reduced figure of $1500 offered by the firm.634 Before the trustees accepted Dalgety New Zealand's offer they were informed by their solicitors that a Mr Daggar was prepared to pay $2300 for the land. The solicitors noted that while Dalgety had made use of the block when it knew it did not have proper tenure, it 'had an equitable claim to a substantial portion of the improvements in that they apparently erected the saleyards'. The solicitors asked the trustees to advise them on whether to accept Daggar's offer. 635 As the block was subsequently sold to Dalgety New Zealand it would appear that the trustees rejected Daggar's higher offer. However, no documentation relating to this apparent rejection has been located. 10.11 Issues arising Amalgamation and alienation Given the short time frame between amalgamation, the appointment of trustees and the sale of Whakapoi 2, it seems likely that the blocks were amalgamated in order to increase their sale value. The 1970s was a time of booming land values.636 Those pushing for the sale of the land may have wished to take advantage of the increased prices for agricultural land. The amalgamation of small multiply owned blocks and their subsequent vesting in trustees has been commended by Judge Durie and others as a means of improving the administration of these blocks by the Maori owners themselves. However, as shown above, a side-effect of making blocks more economically viable was to make them more attractive to prospective purchasers. The beneficial owners of Whakapoi 2 may have benefited in the short term from a higher 632 Transfer H32320, LINZ, Hamilton 633 Phillips & Powell, Barristers & Solicitors, Otorohanga, to John Cooney, Te Puna, Tauranga, 10 September 1970. Correspondence held by Garrick Cooper. 634 Phillips & Powell, Barristers & Solicitors, Otorohanga, to John Cooney, Te Puna, Tauranga, 24 July 1970. Correspondence held by Garrick Cooper. 635 Phillips & Powell, Barristers & Solicitors, Otorohanga, to John Cooney, Te Puna, Tauranga, 10 September 1970. Correspondence held by Garrick Cooper. 636 Butterworth, p.100 Wai 754 148 price paid for their amalgamated lands. However, in doing so they lost yet another part of a severely diminished Maori land base. Extent of Maori land loss Te Kauanga, as the western severance of Whakapoi 2, was alienated in the same year that Government passed the Maori Affairs Amendment Act 1974. 'The basic philosophy underlying the parts dealing with alienation was "that the continued alienation of Maori land to non-Maori ought not to be facilitated'" .637 The Act represented a new governmental recognition of the damage done to Maori by the extensive alienations of the past. Alan Ward notes that the Act significantly curtailed the loss of Maori land in following years. Its passage 'marked a major reversal of the philosophy and law which had governed Maori land since 1862'. However, its passage, and the rise of a new official philosophy, occurred too late to have any impact on Te Kauanga. 638 Te Kauanga was alienated under the old philosophy which saw the alienation of ever diminishing reserves of Maori land as an acceptable price to pay for efficient economic use of the land. However, the cost to Maori was extremely high. In 1920, a full 54 years before Te Kauanga was alienated, C.B. Jordan, the Under-Secretary of the Native Department, carried out an inventory of land remaining to Maori. He calculated that there remained an 'average of 19 acres per head for the 47,000 Maori of the North Island and their descendents' .639 Jordan concluded, 'instead therefore, of there being a huge area of Native land available for general settlement, it would seem that there is barely sufficient for the requirements of the Natives themselves. ' 640 Despite this recognition of the scale of alienation, the Crown continued to facilitate the sale of Maori land until the 1974 reassessment. Te Kauanga, was one of many Hauraki blocks alienated during these years. This extent of Maori land loss in Hauraki between 1859 and 1986 is discussed in more depth in the General Conclusions at the end of this report. 637 Ward, 'Overview', vol.II, pA03, citing NZPD, 1974, vol.394, pA777 638 Ward, 'Overview', vol. II, ppA03-404 639 Ibid, p.387 640 Cited in Ward, vol.II, p.387 Wai 754 149 Figure 15. Te Kauanga, Whakapoi 2641 A. Te Kauanga B. Whakapoi 2 I(AIJA.NGA e.LJ;: ~; I: 16 1> P So. 9..95 1-t(JI4V~Hl :2.e,1 (~!'I.{~) -1~~ fg'3:qO HVHU~HI ~£:2.. t. (U>JSURK'YE..D) 'til: 0 • 0-0 641 A: ML 5297B, LINZ, H Wai 754 150 CHAPTER 11 Onepu IB Summary Title awarded: 1869 (3 acres 1 rood) Ownership: 48 owners including Wiremu and Eparaima Kingi. Partitioned: 1962: IB cut out Alienation: 1984-87. Crown settlement (resident site licences). Area: IB: 2 acres 0 roods 30 perches Price: $152,995 Transfer document: H.765098 Plan: ML 21737, ML 18530 11.1 Location Onepu lA and IB stretch along the south side of Tapu Creek in the Hastings Survey District, Thames County. Onepu lA lies alongside the creek. The Tapu-Coroglen road lies between Onepu IB and the Tapu River. 11.2 Title investigation The Native Land Court heard uncontested evidence from Anam Te Poroa, Wiremu Kingi and Ereatara Taraia regarding ownership of Te Onepu 1 (3 acres 1 rood) on 29 March 1869. Anam Te Poroa, from Ngatitangi of Ngatitamatera, introduced the title claim. He explained that the claim was based on ancestry and that Mr W. Graham had surveyed the land at the claimants' request. He also asked that no restrictions be placed on the block as the owners had had the block surveyed in order to lease the land. The Court ordered that a certificate of title, with no restrictions, be issued in favour of the following owners:642 1. Anam Te Poroa 2. Wiremu Kingi 3. Ereatara Taraia 4. Mihi Keiti 5. Titi Kawhena 6. Teretiu 7. Eparaima Kingi 8. Renata Kingi 9. Hiria Wairakau Court fees of £3 were charged for the hearing. 642 Coromandel minute book 1, 29 March 1869, pp.126-130 Wai 754 151 11.3 Land ceded for mining purposes Onepu 1 was subject to the same goldfield cession agreements which affected Waipatukahu 5B. Chapter 8's discussion of the implications of these agreements applies equally to Onepu 1 and is not repeated here. 11.4 Roadway order and partition On 4 October 1961 a roadway order was made under sections 415 and 418 of the Maori Affairs Act 1953 to lay a road across Onepu 1 to give access to the block.643 On 3 July 1962 Maori Land Court Judge M.A. Brook partitioned Onepu 1 to create two separate blocks divided by the roadway. Judge Brook divided the parent block between two sets of title holders as follows: 644 Area a. r. p. 1. Onepu lA 0 1 36 10 owners Total shares 0.0991 GV £170.645 2. Onepu IB 2 0 30 48 owners Total shares 0.9009 GV £1550. 646 3. Roadway 0 2 14 Total: Onepu 1 3 0 1 Eparaima Kingi's descendents' interests were placed in Onepu IB (2 acres 0 roods 30 perches) which had a total of 48 owners. Their names are underlined in the list of IB owners below. 647 Owner Share Owner Share 1. Anam Te Poroa .1111 25. Rapata Te Moananui M .0042 2. Ani E12araima E .0159 26. Ratana Kaaho M .0101 3. Arani Eparaima F .0079 27. Rawiri Kaaho M.d .0101 4. Haare Te Moananui M .0041 28. Renata Kingi .1111 5. Hemoaka Kam M .0007 29. Rikirangi Te Moananui M .0023 6. Hera E12araima E .0159 30. Te Rina Eparaima F .0032 7. Heraputia Williams F .0093 31. Tamara Te Moananui M .0023 8. Hoone Reta M .0005 32. Tamati Te Moananui M .0023 9. Huria Wairakau .1111 33. Te Tauanga Mita M.d .0159 10. Karawa Reta M .0005 34. Tawhaki Te Moananui M .0042 11. Te Kohitu Eparaima M .0032 35. Thni Eparaima M .0032 12. Matewhanau Kaaho F .0101 36. Warana Williams M .0093 643 Hauraki MLC minute book 77,4 October 1961, p.157 644 Hauraki MLC minute book 78,3 July 1962, p.9 645 Ibid. PR 255/135, LINZ, Hamilton. 646 Hauraki MLC minute book 78, 3 July 1962, p.9 647 PR 282/128, LINZ, Hamilton. Wai 754 152 13. Merehana E12araima E .0159 37. Whakaarahia Hudson F .0092 14. Mihi Keiti .1111 38. Whare Herehere Reta M .0005 15. Mihi Ngawaka F .0555 39. Wharepapa Te Moananui M .0124 16. Ngahorowai McKenzie M .0101 40. Wiremu E12araima II M .0079 aka Archie McKenzie II 17. Oriwa Te Moananui F .0042 41. Wiremu Kingi .1111 18. Paea Karu F .0007 42. Wiremu Ratana Te Moananui M .0042 19. Petia Eparaima F .0032 43. Moetu Pakinga F .0112 20. Porite Kaaho F.d .0101 44. Hema Pakinga F .0111 21. Purangataua Kuni M .0031 45. Kare Brunt F .0111 22. Rakapurua Reta F .0005 46. Huia Pakinga F .0111 23. Rakuraku Reta F .0005 47. Linda Richardson F .0111 24. Rangiawatea Karu F .0007 48. Poki Himiona Harawini .0159 Total shares .9009 Following the partitioning of Onepu 1 the Court recommended that the roadway indicated on Maori Land Plan 18530 be declared a road under Section 421 of the Maori Affairs Act 1953. This recommendation was conditional upon obtaining the consent, in writing, of the Main Highways Board. This consent was given. The Ministry of Works paid for the survey.648 The road took 2 roods and 14 perches from Onepu 1. 11.5 Onepu 1B: residence site licenses As was the case for Waipatukahu 5B, Onepu 1B was subject to a number of residence site licenses. In this case, the entire area of the block was subject to total of nine such licences. One of these has been examined. Resident site licence number 7454 (1 rood 12 perches) was granted in December 1923 for a period of 42 years at a rental of £1 per annum.649 It, together with another eight licences, was regularly renewed until the 1980s when the Crown negotiated a settlement with the Maori owners of the block. Appointment of Trustees On 8 April 1972 the owners of a number of blocks ceded for gold mining purposes and subject to residence site licences, including Onepu 1B, held a meeting in Tapu to discuss the setting up of trusts to negotiate with the Crown over the licences. The meeting was attended by approximately 130 owners, the local member of Parliament for Rauraki (Mr Schultz), lawyer Finlay Lloyd Phillips and Mr Briffault, an Officer of the Department of Lands and Survey. At the meeting Paani (Barney) Raukopa, Betty Nicholls and several others were appointed to a committee to address concerns about the land.65o As discussed in Chapter 8, the New Zealand Insurance Company, later New Zealand Guardian Trust, was subsequently appointed as trustee for a number of Coromandel blocks affected by residence site licences including Onepu 1B and Waipatukahu 5B. 648 Hauraki MLC minute book 78,3 July 1962, p.9 649 RSL 4D/547, LINZ, Hamilton 650 Hauraki MLC minute book 82, 9 August 1972, pp.24-26; Hauraki MLC minute book 82, 6 October 1972, pp.50-52 Wai 754 153 11.6 Alienation 1986 On 20 December 1985 the Commissioner of Crown Lands submitted a settlement offer to the lawyers for the Onepu IB owners. As the entire block was covered by residence site licences the Crown proposed purchasing the whole block for a total of $98,500.651 This sum was derived from valuations agreed upon by the district valuer and a valuer representing the owners.652 The Crown also offered to pay the owners $48,765 for past sub economic rents covering a period of 25 years: 1960 to 1985. Issues relating to the settlement were raised on 12 July 1986 at the meeting of beneficial owners of Onepu IB and Waipatukahu 5B discussed in Chapter 8. At the meeting, lawyer Finlay Lloyd Phillips commented that Onepu IB was not as valuable as other land in the area as it was prone to severe flooding and had been 'twice devastated by floods, the last being in February 1985 when one house was completely swept off its foundations' .653 The owners' accepted the Crown's offer of $98,500 for the land but requested compensation for an additional year's rental. 654 The total of inadequate rental subsequently agreed upon, covering a period of 26 years, was $54,495. The Agreement for Sale and Purchase thus came to a total of $152,995. Because the Maori Land Court title for Onepu IB had not been completed by a plan and diagram the Crown arranged for payment of 90 per cent of the purchase price ($137,695) on receipt of a signed agreement for sale and purchase. The remaining 10 per cent ($15,300) was to be paid after the issue by District Land Registrar of a certificate of title and the receipt by the Lands and Survey Department of a registrable memorandum of transfer. The Crown was to pay for the survey and arrange for its registration at the Land Transfer Office. The Board of Maori Affairs approved the purchase pursuant to section 252 of the Maori Affairs Act 1952.655 A cheque for the final 10 per cent of the payment was given to New Zealand Guardian Trust on 23 November 1987.656 The owners of Waipatukahu 5B received a solatium payment as 'unwilling sellers' as part of the settlement of their claim. However, while the Crown offered the Onepu IB owners solatium payments totalling $10,800 on 10 December 1984,657 correspondence in the Land Information New Zealand file suggests that this part of the settlement was dealt with in a different forum. In a letter containing a revised settlement offer in 651 R.F. Schwass, for Commissioner of Crown Lands, to Messrs Phillips & Powell, Barristers & Solicitors, Otorohanga, 20 December 1985, File 19/10/3, LINZ, Hamilton 652 D.D. Woolley, District Valuer, to R.F. Schwass, Commissioner of Crown Lands, Department of Lands and Survey, Hamilton, 27 November 1985, File 19/10/3, LINZ, Hamilton 653 Minutes of meeting of the Beneficial Owners of Onepu 1B and Waipatukahu 5B blocks, 12 July 1986, p.4, File 19/10/4, LINZ Hamilton 654 Phillips & Powell, Barristers & Solicitors, Otorohanga, to the Chief Surveyor, Hamilton, 22 September 1986, File 19/10/3, LINZ, Hamilton 655 R.F. Schwass for Chief Surveyor, to the Trust Officer, N.Z. Guardian Trust Co. Ltd, Hamilton, 1 October 1986; Agreement made between the New Zealand Guardian Trust Company and the Minister of Lands on behalf of the Crown, 11 November 1986, File 19/10/3, LINZ, Hamilton 656 Memo, R.W. Barnaby, Manager, Department of Lands, to Trust Officer, New Zealand Guardian Trust, Hamilton, 23 November 1987, File 19/10/3, LINZ, Hamilton 657 G.L. Vendt, for Commissioner of Crown Lands, to Messrs Phillips & Powell, Barristers & Solicitors, Otorohanga, 10 December 1984, File 19/10/3, LINZ, Hamilton Wai 754 154 1985, R.F. Schwass, for the Commissioner of Lands, noted that solatium payments were being dealt with 'as a separate issue' and consequently, he had not provided an assessment of any such payment for Onepu 1B.658 The purchase price agreed to by the owners did not contain any solatium payments and the file makes no further reference to any such compensation. 11.7 Issues arising See the 'issues arising' section (Waipatukahu 5B) in Chapter 8. The same issues arise here. 658 R.F. Schwass, for Commissioner of Crown Lands, to Messrs Phillips & Powell, Barristers & Solicitors, Otorohanga, 20 December 1985, File 19/10/3, LINZ, Hamilton Wai 754 155 Figure 16. Onepu IB659 Block XI Hastings S.D. lham 21A 504098 DPS· 28815 \ Pt. WaikaWBL \ \ Block \ , J!v '\ Te One.pu IB Block ME.':':U:-.:,::.:c;rrs AflE "1ETr. M.L .2!.Z3.'Z...•.•.... _...... 659 PR 2821128, LlNZ, Hamilton Wai 754 156 Figure 17. Onepu 1B and the Tapu area660 Onepu IS PT 2fi / PT Wi\I~AWAIJ 6' TAPU 0 01..1 U'.L..I..I .\,.\ .l..1 "'-, .L; -'-I .J..1'.l..?_0_:-:::--_2..J.?_0 ___---'3 9 Metres 5000 660 File 19/10/3, LINZ, Hamilton Wai 754 157 GENERAL CONCLUSIONS 12.1 Introduction This section of the report discusses key themes arising from the histories of the 20 alienated blocks in this report. The Wai 754 alienations span a period of 130 years. Nine blocks were alienated between 1850 and 1900 and eleven passed out of Maori ownership during the twentieth century. The Crown purchased ten blocks: seven during the nineteenth century and three between 1902 and 1986. Private purchasers acquired the remaining ten blocks: two in the 1870s, three between 1910 and 1960, and five between 1960 and 1975. Crown purchases Private purchases 19th Century 19th Century Whenuakite 1859 TePepe 1871 Whangamata 5 1873 Kahuwera 1878 Kuaotunu lA 1878 20th Century Kuaotunu IB 1881 Kuaotunu 5 1916 Kuaotunu 2B 1894 Waipatukahu 1B2B 1930 Whangamata 2 1891 Te Kauanga Whenuakite 1 1955 Kuaotunu IDI 1896 Te Kauanga Whenuakite 6 1962 20th Century Rautawhiri 0 te Ao 1964 Te Kauanga Whenuakite 3 1902 Waipatukahu 1C 1967 Waipatukahu 5B (part only) 1986 Waipatukahu Tapu B 1967 Onepu 1B 1986 Te Kauanga 1974 Although circumstances surrounding the alienations varied considerably, a number of key themes have emerged. They include: • The Crown's purchasing advantages • Crown conduct in purchasing Maori land • The costs to Maori of participating in the Land Court process • Goldfields policy and administration • Public works policy • The adequacy of the Crown's protective mechanisms • The rate and extent of land loss in Hauraki 1850-1986 12.2 The Crown's purchasing advantages As seen in this report the Crown enjoyed a number of purchasing advantages in its dealings with Maori land owners. The Crown's ability to take up the role of quasi monopoly purchaser was one of the most powerful of these. It took up this guise through the mechanism of issuing proclamations declaring its interest in specified blocks and prohibiting the transfer of interests to parties other than the Crown. Whangamata 2 and 5, Kuaotunu lA and Waipatukahu IB2B were all affected by the Crown's use of proclamations: Wai 754 158 • Whangamata 2 and 5 Section 42, Immigration and Public Works Act 1871 • Kuaotunu lA Section 2, Government Maori Land Purchases Act 1877 • Waipatukahu IB2B Section 363 of the Native Land Act 1909 Such proclamations could be issued at the Government's pleasure without consultation with the Maori owners of the affected blocks. The prohibitions effectively reimposed the Crown's right of pre-emption in the purchase of Maori land. However, they were used to protect Crown interests in Maori land rather than to protect Maori from unscrupulous private purchasers. If Maori wished to sell land they had little choice but to sell at the Crown's lower prices.661 Such prohibitions also limited their ability to utilise their land. As Richard Boast has argued with regard to section 363 of the Native Land Act 1909, the prohibition against transfers to a private party might seem 'innocuous enough until it is grasped that 'alienation' as far as the statute was concerned meant a range of land dispositions ... in fact any 'transfer, sale, gift, lease, licence, easement, profit, mortgage, charge, incumbrance, trust or other disposition'. Owners could do 'virtually nothing' with land affected by the legislation.662 The Crown's ability to determine when land would pass through the Native Land Court was another significant advantage. As seen with regard to Kuaotunu IB in 1881, section 6 of the Native land Act Amendment Act 1877 allowed the Crown to purchase partial interests in a block and then ask the Native Land Court to partition out its interest. This advantage was denied to private purchasers who had to acquire all interests in a block before taking it the Court. The purchase of individual interests and the subsequent partitioning out of the Crown's interests were very effective means of purchasing land from Maori, particularly where some title-holders resisted the sale of their interests. However, Robyn Anderson has argued that while these practices were legal, they were 'designed to undermine the ability of Maori to hold their land collectively, under tribal mana' .663 The two practices had severe implications for Maori communities. Treating the title-holders as absolute owners whose individual interests could be purchased on a piecemeal basis fostered divisions within communities and helped lead to their break Up.664 A third advantage enjoyed by the Crown was its ability to have alienability restrictions removed from a block. In 1892 the Native Land Court issued a title for Waipatukahu 5, one of the Waikawau reserves. The block, an important part of Ngai Tamatera's tribal patrimony, was to be inalienable by sale or lease for 21 years. However, just three years later, the restrictions were removed from the block and the bulk of the block (SA), together with several other 'reserves', was purchased by the Crown. There is no direct evidence to show that the Whangamata, Kuaotunu and Waipatukahu owners were specifically disadvantaged by the Crown's use of these mechanisms. However, these advantages clearly served Crown rather than Maori 661 Anderson, vol.4, p.302 662 Richard Boast, in P. Spiller, J.Finn & R. Boast, A New Zealand Legal History, Brookers Ltd, Wellington, 1995, p.161 663 Anderson, vol.4, p.204 664 Alexander, Operation of the Native Land Court', pp.37-40 Wai 754 159 interests. The Crown's use of these provisions contributed to a general undermining of the ability of Maori to retain control of their tribal lands and utilise them as they saw fit. 12.3 Crown conduct A number of aspects of the Crown's conduct in purchasing Maori land have come under considerable criticism from historians. The Crown's practice of offering cash advances, or 'raihana', to Maori in the 1870s before taking land through the Native Land Court has come under particularly harsh criticism.665 In 1878 the Crown acquired Kuaotunu 1A (3111 acres) in return for cash advances paid to the owners for survey costs and other unspecified purposes. As Robyn Anderson has argued in her study of Crown actions in Hauraki, the system of raihana contributed to 'a slow insidious loss of control' by Maori over their lands.666 In 1882 Rawiri Taiporutu, the Wai 754 claimants' tipuna, criticised the way Crown agents scattered money to rightholders 'like maize to the fowls' .667 As Hohepa Mataitaua explained in 1890, debts incurred by Rawiri made up part of the price paid by the Crown for Kuaotunu 1A. Other Maori similarly complained about this practice which could all too easily lead to an unexpectedly large loss of land. 668 The Waitangi Tribunal has criticised the very similar 'tamana' and 'takoha' practices as 'unfair practicers] designed to purchase land as quickly and cheaply as possible, and incompatible with the Crown's fiduciary duty under the Treaty' .669 Another aspect of the Crown's conduct which is cause for concern is its obscuring from Maori of the full value of their lands. Given the Crown's purchasing advantages described above, in particular its ability to restrict Maori from selling their lands on the open market, this placed Maori at a considerable disadvantage in negotiating fair purchase prices with the Crown. The Crown's apparent reluctance to pay Maori a fair and full price for their lands is shown in the cases of Whangamata 5 and 2. The Crown discouraged private prospectors from moving onto the Whangamata blocks before it had acquired them in case the miners' obvious interest in the land encouraged the Maori owners to raise the price of the land or seek to lease rather than sell the blocks.670 In the case of Whangamata 2, the Crown paid Hone Mahia (John Davis), the owner with the most knowledge of the block's mining potential, an additional sum of money so that he would help persuade his less knowledgeable fellow owners to sell the freehold of the block. In doing so, the Crown exploited one owner's willingness to gain personal benefit at the possible cost of the owners' collective interests. The undermining of Maori collective interests in land through such actions was part of a wider assault on the ability of Maori to retain their lands under communal ownership. The Crown embarked on a clear campaign to individualise Maori title 665 Anderson, volA, pp.204-208; Ward, Unsettled History, pp.146-149 666 Anderson, volA, p.204 667 Ibid. 668 Ibid, pp.204-205 669 Ibid. 670 Monin, p.92 Wai 754 160 from the 1860s. 671 As Judge Fenton noted in 1886, 'The whole theory of the Native Land Acts, when the Court was created in 1862, was the putting an end to Maori communal ownership. '672 The Crown pursued this policy in the belief that this would benefit Maori as well as European interests.673 However, the policy led to a 'pseudo individualisation' of title which failed to benefit Maori. 674 Maori owners' signatures became marketable commodities which could be purchased one by one, as occurred in the alienation of Whangamata 2. The Crown's conduct during the two-decade long effort to acquire Waipatukahu 1 for a public recreation reserve is also questionable. By regularly issuing proclamations, as described above, to prevent the owners selling interests to private parties the Crown limited the owners' ability to control their land. The apparent willingness of the Crown and the Thames Council to use public works legislation to acquire the land may have placed pressure on the owners to sell in 1930. However, it should be noted that in the end, the land was not acquired forcibly under public works legislation. Although the possibility that it could be taken in this way may have influenced some owners' decision to sell in 1930, there is no direct evidence to suggest that the Council's rather erratic attempts to acquire the land compulsorily had a direct impact on the owners. 12.4 The costs to Maori of participating in the Land Court process The costs to Maori of participating in the Land Court process to determine titles to land could be considerable. Survey costs, court fees, food and accommodation costs while attending Court hearings and the costs associated with leaving cultivations untended all placed burdens on Maori who all too often had to sell land in order to pay these costs. Survey costs were a factor in the alienations of Kuaotunu 1A and Te Kauanga Whenuakite 3. Maori land legislation required that land be surveyed before it passed through the Native Land Court. From 1873 Maori landowners 'had to guarantee that the survey costs would be paid, either with cash, or by transferring land to the Crown' .675 Under section 73 of the Act the Court could order that land be transferred to the Crown to pay survey costs: If the [Native Land] Court shall see fit, it may, on the application of the Inspector of Surveys, order that a defined portion, to be ascertained and agreed upon between the Inspector and the Native owners of any land so surveyed as aforesaid, shall be transferred by the Native owners to Her Majesty in satisfaction of any advances as aforesaid made for such owners either in respect of the same of any other land, and may include in the amount of money so to be satisfied all fees payable under this Act in respect of the same land or any other land owned by the same persons or tribe. 676 671 Ward, Unsettled History, pp.157-177 672 Cited in Ward, Overview, vol.II, p.229 673 Ward, Overview, vol.II, p.324 674 Ibid, p.250 675 Ibid, p.324-325 676 cited in Ward, Overview, vol.II, p. 325 Wai 754 161 Kuaotunu 1A included land awarded to the Crown in lieu of survey costs. Unavoidable survey charges were criticised by Maori as facilitating the alienation of their lands. They viewed the charges as 'simply another Native Land Court expense, all of which forced Maori into debt, and that Maori were then obliged to sell land or transfer it to the Crown, in order to discharge this debt' .677 Furthermore, the burden of the costs was not shared equally by both parties supposedly benefiting from the transaction. The Maori vendors, not the Crown, carried the burden. This practice disadvantaged Maori, including the owners of Kuaotunu lA, who had no choice but to have their land surveyed if they wished to sell or partition their lands. As Alan Ward has suggested, it can be argued that the Crown should have paid at least some of the costs involved: Surveying was an essential step in the Crown-mandated process by which land held under Maori customary tenure was to be converted into Crown grants. As such, it was a requirement imposed on Maori, in the same way as the Native Land Court was imposed. Arguably, since it was the Crown, (and private purchasers) who insisted on this conversion, and who obliged Maori to resort to the Native Land Court accordingly, the Crown (or private purchasers) should have paid all or most of the survey costs involved, especially when the immediate (and intended) outcome was alienation of the land involved. Even if the legal requirement to survey land is seen as a legitimate expression of Kawanatanga serving the public interest, the settler government presumably should have shouldered most of the cost. 678 The Native Land Court set Te Kauanga Whenuakite 3 aside in 1899 to pay for the costs of surveying the subdivisions of the parent Te Kauanga Whenuakite block. The sale of the block to the Crown in 1902 lifted the burden of debt from several of the blocks. However, the two Maori trustees Rahera Tanui and Erana Te Oneone were under considerable financial pressure when they sold the land. Burdened by survey debts and other costs associated with the Court hearings, the two women were in no position to negotiate with the Crown over the price paid for the block. The Crown was able to set its own price for the land. It thus benefited from the inequitable situation created under the Land Court system. 12.5 Goldfields policy and administration Crown goldfield policy had significant implications for the titleholders of the Wai 754 blocks. There are two main issues here. First, the Crown's policy in the nineteenth century of purchasing the freehold of gold bearing blocks. And second, the imposition of perpetual leases on Maori ceded lands. The gold bearing potential of Whangamata 2 and 5 and Kuaotunu lA, 1B, and 1D1 was an important factor in the Crown's purchase of these blocks between 1873 and 1896. As noted in Chapter 3, the Crown was reluctant to consider anything less than complete alienation when dealing with auriferous Maori lands. The purchase of the freehold of the blocks denied title-holders the benefits of participating in the future economic development of these valuable lands. 677 Ward, Overview, vol.II, p.327 678 Ibid, p.335 Wai 754 162 Where the Crown did not purchase the freehold of gold bearing Maori lands it encouraged Maori to open their lands for mining. The Crown promised that cession arrangements would bring great benefits to the Hauraki tribes. In 1867 Auckland Superintendent Williamson declared at a tangi for two Ngati Paoa rangatira that, 'If we unite together in this way we shall have treasures and riches, become a great people, and have everything that the heart can desire ... Your children will be benefited' .679 However, the titleholders of Kuaotunu ID ceded their lands for mining only to have the freehold of subdivisions of the block purchased by the Crown several years later. Cession arrangements affecting Waipatukahu 5 and Onepu 1 failed to bring lasting benefits to the titleholders of the two blocks. While the blocks remained in Maori ownership into the late twentieth century they were encumbered by perpetual leases, regularly renewed at a peppercorn rentals and offering no perceptible benefits to the landowners. Although the claims arising from these inequitable arrangement were settled in the 1980s, these settlements were not entirely satisfactory. The Crown's reluctance to remove those who had benefited from the leases from the blocks led to its purchase of the affected portions of the land rather than a return of unencumbered lands to the Maori owners. 12.6 Public works policy The Crown's discriminatory and confusing public works legislation affected at least three of the Wai 754 blocks: Te Kauanga, Te Kauanga Whenuakite 1 and Te Kauanga Whenuakite 6. Compensation appears to have been paid to the owners of just one of these blocks: Te Kauanga Whenuakite 1, the 'absolutely inalienable' urupa alienated in 1955. While compensation was sought in 1968 for land taken for roads from Te Kauanga and Te Kauanga Whenuakite 6 in 1905 and 1920 respectively, no record of any compensation has been found. As noted in Chapter 10, land was taken from Te Kauanga under the wrong section of legislation. Its owners were thus deprived of protections incorporated in other parts of the Act. However, the application of the correct section of legislation was no guarantee that such protections would be exercised. Land was taken from Te Kauanga Whenuakite 6 outside the 15 year limit incorporated in the legislation. Land could be taken under different Acts leading to quite different results for the affected titleholders. It is interesting to note that the Public Works Act 1908 was used to take 1 acres and 30 perches from Te Kauanga Whenuakite 1 in 1920, while in that same year section 389 of the Native Land Act 1909 was invoked to take 1 acre 2 roods and 7.5 perches from Te Kauanga Whenuakite 6. Only one set of titleholders, those in Te Kauanga Whenuakite 1, received any compensation for their loss. 12.7 The adequacy of the Crown's protective mechanisms The adequacy of protections offered Maori by the Crown are also worthy of consideration. The Crown had a conflict of interests in its dealings with Maori over their lands. Under the Treaty the Crown had a duty of active protection of Maori. However, it also saw itself as having a role in forwarding settler interests. The two roles frequently carne into conflict. More often than not, the Crown took the path that 679 Daily Southern Cross, 5 June 1867, cited in Anderson, volA, p.293 Wai 754 163 favoured settler interests over Maori interests. Examples of this include the Crown's purchase of the freehold of gold bearing lands, the cession of mining rights, the undermining or removal of protective mechanisms embedded in legislation, including the gradual removal of restrictions on Maori land, and the introduction of administrative processes which facilitated the alienation of Maori lands. The Crown's willingness to put other 'public' and private interests ahead of those of Maori is particularly evident in its conduct regarding the acquisition of Waipatukahu 1B and Waipatukahu Tapu for a recreation reserve, and in its failure to remove the residence site licences from Waipatukahu 5B and Onepu 1B in the settlement reached in the 1980s. The role of Trust Commissioner provides another example of a deeply flawed protective mechanism. As discussed in Chapter 2 the Trust Commissioners appointed under the Native Lands Frauds Prevention Acts were supposed to protect Maori interests in land by scrutinising all alienations and ensuring they were not 'contrary to equity and good conscience'. However, as David Alexander's research has indicated, their inquiries were frequently patchy. Jenny Murray's work has also argued that the trust commissioners were not encouraged to investigate alienations in depth, and in any case, did not have the resources to do so. Trust commissioners approved the alienations of Te Pepe and Kahuwera. The Native Land Court's role as a protector of Maori interests in land has also been challenged. As noted in Chapter 6, Alexander has argued that the Court should have examined arrangements reached between the Crown and Maori landowners regarding the award of land to the Crown in lieu of survey costs and advances. Kuaotunu 1A is just one example of a arrangement reached in this way which was not scrutinised by the Court. Given the dominant position of the Crown in such negotiations it can be argued that the Court had a duty to assess the fairness of any such arrangements. The Waikato-Maniapoto District Land Board has corne in for similar criticisms. The Board's failure to fully investigate the transfer of interests to Daniel McClennon in Waipatukahu Tapu in the 1910s almost led to the alienation of interests in a Maori reserve. Assembled owner meetings constitute another deeply flawed protective mechanism. Such meetings were intended to allow multiple owners in a block to consider and decide upon the future of their lands. However, as seen in the cases of Waipatukahu 1B2B in 1930, Te Kauanga Whenuakite 6 in 1962 and Rautawhiri o-te-ao in 1964, very low quorum requirements meant that just a few owners in a block could alienate the land without reference to all their fellow titleholders. Owners who, for whatever reason, were unaware of such meetings were rendered voiceless. The question of who had a mandate to decide the fate of Maori blocks also rises with regard to Onepu 1B and Waipatukahu 5B. Questions have arisen regarding the extent to which titleholders in the blocks were fully informed of the negotiations undertaken between the blocks' trustee and the Crown. 12.8 The rate and extent of land loss in Hauraki The Wai 754 claim needs to be placed in the wider context of land loss in Hauraki during the nineteenth and twentieth centuries. Between 1885 and 1912 the Crown Wai 754 164 purchased 235,00 acres of Maori Land in Hauraki. Together with sales to private purchasers this left just 171,000 acres in Maori ownership, 'much of it in uneconomic units of poor quality soil, mountainous terrain, or vulnerable to flooding' .680 Between 1910 and 1939 the amount of Maori freehold land in Hauraki shrunk from a meagre 12 percent to a mere 1 percent of total land holdings in the district. 681 Alan Ward has argued that, 'Given the limited areas of land remaining in Maori hands [after 1910] and the burgeoning population, any alienations at this time must be regarded as likely to infringe the Crown's Treaty obligation of active protection. '682 Ward has criticised the assembled owner process discussed above as contributing to an increasingly desperate situation: At bottom was the issue of whether individual Maori or sections of Maori should ever have been given the power to alienate the freehold of what had been a tribal patrimony. In the light of the almost unanimous demands of the Maori leadership before 1900 and the limited areas of land still remaining in Maori ownership, a strong case can be argued in Treaty terms that, even if it was the wish and inclination of individuals and small groups to sell the freehold, the duty of active protection of the Maori people at large meant that sales of the freehold should have been approved very rarely, if at all, after 1900, and then only on the basis of full hapu involvement.. .. When Ngata finally secured finance to launch the development schemes from 1928, there was precious little good land left on which to start them.683 The Crown had plenty of advance warning of the potential impoverishment of many Hauraki Maori.684 In 1907 Apirana Ngata informed his parliamentary colleagues that Thames Maori 'had almost wholly denuded themselves of their landed estate' .685 The Stout-Ngata Commission subsequently recommended that only a small area of the Ohinemuri district - 1,546 acres - be made available for outright sale. It suggested that 4,435 acres be set aside for occupation and that the bulk of the land, 11,722 acres, be set aside for leasing.686 Despite such warnings, the Crown continued to purchase, and allow private purchases, out of the declining Hauraki resource base. 687 Much of the land remaining to Hauraki Maori in the twentieth century was fragmented in small, unviable multiply owned blocks. The large Wai 754 blocks had all been sold by 1900. Partitioning whittled away some of those remaining. The largest of the blocks alienated in the twentieth century was the 42 acre Te Kauanga Whenuakite 6. The remainder ranged from just 1 acre 30 perches (Te Kauanga Whenuakite 1) to the 31 acres of Rautawhiri o-te-ao. Amalgamation, which was intended to improve utilisation of small blocks, failed to prevent the alienation of Te Kauanga in 1974 and may have facilitated its loss. The nature of mUltiple ownership of blocks produced 680 Anderson, vo1.6, p.179 681 Ward, Overview, voU, p.99. For a wider view of Maori land loss see Michael Belgrave, Counting the Hectares: Quantifying Maori Land Loss in the Auckland Rangahaua Whanui District, 1865-1908, report commissioned by the Waitangi Tribunal for the Rangahaua Whanui Project, 1997. 682 Ward, Overview, voU, p.35 683 Ibid, p.106 684 Anderson, vo1.6, pp.S5, 177; Belgrave, p.64 685 NZPD, S August 1907, vo1.140, pp.142 686 Stout-Ngata Commission, 'Report' AJHR, Session I, G-IA, pp.S-9 687 Anderson, vo1.6, p.l77 Wai 754 165 under the Native Land Court system also posed problems. While these were partially rectified by incorporation and the appointment of trustees this could also produce problems regarding the mandate of those trustees. 12.9 Conclusion The prejudice caused to the Wai 754 titleholders largely consists of the accumulation of injuries outlined above. The Land Court system imposed on Maori, together with a range of other flawed or discriminatory legislative provisions, resulted in a general undermining of Maori land ownership in Hauraki between the 1850s and 1980s. In a number of instances discussed in this report there is little direct evidence to establish a direct link between Crown actions and possible prejudice or land loss sustained by Wai 754 titleholders. However, given an environment which often operated against Maori interests, this lack of direct evidence is no reason to assume that the general pattern did not apply in those particular instances. Wai 754 166 ApPENDICES Appendix 1. Chronological order of alienation Block Date sold Area when Price Purchaser sold 1. Whenuakite 1859 4166 acres £250 Crown 2. TePepe 1871 212a.0r.20p £106 W.B. Jackson 3. Whangamata 5 1873 5889 acres £1300 Crown 4. Kahuwera 1878 426 acres Not known. Mercury Bay Saw Deed missing. Mill Company 5. Kuaotunu 1A 1878 1451a.2r.Op Unspecified Crown debts & survey fees 6. Kuaotunu 1B 1881 1151 acres £288.15.0d Crown 7. Kuaotunu2B 1886 (invalid) £120 R. Comer 1894 811 acres £565 Crown 8. Whangamata 2 1891 5487 acres £2194.16.0 Crown 9. Kuaotunu 1D1 1896 122a.2r.27p £244.19.0 Crown 10. Te Kauanga 1902 3160 acres £790 Crown Whenuakite 3 11. KuaotunuS 1916 3 acres £5 e.G. Bond 12. Waipatukahu 1930 4a.Or.38p £380 D. Mackay 1B2B 13. Te Kauanga 1955 la.Or.30p £26.8.9 J.S. Clark Whenuakite 1 14. Te Kauanga 1962 42 acres £850 L.C. Oliver Whenuakite 6 15. Rautawhiri 0 te ao 1964 31a.2r.Op £450 e.P. Oliver 16. Waipatukahu 1 C 1967 30 perches £900 P.L. Phillips 17. Waipatukahu 1967 8a.3r.20p $4000 Tirau Builders TapuB 18. Te Kauanga 1974 4a.lr.16p $1500 Dalgety NZ 19. Waipatukahu SB 1986 4046 square $15,455 Crown (part only) metres 20. OnepuIB 1986 2a.Or.30p $152,995 Crown Wai 754 167 Appendix II. Crown and private purchases Purchased by Crown Block Date sold Area when sold Price Whenuakite 1859 4166 acres £250 Whangamata 5 1873 5889 acres £1300 Kuaotunu 1A 1878 1451a.2r.Op Unspecified debts & survev fees Kuaotunu 1B 1881 1151 acres £288.15.0d Kuaotunu2B 1894 811 acres £565 Whangamata 2 1891 5487 acres £2194.16.0 Kuaotunu 1D1 1896 122a.2r.27p £244.19.0 Te Kauanga 1902 3160 acres £790 Whenuakite 3 Waipatukahu 5B 1986 4046 square $15,455 (part only) metres OnepuIB 1986 2a.0r.30p $152,995 Private purchases Block Date sold Area when Price Purchaser sold Te Pepe 1871 212a.0r.20p £106 W.B. Jackson Kahuwera 1878 426 acres Not known. Mercury Bay Saw Deed missing. Mill Companv Kuaotunu5 1916 3 acres £5 C.G. Bond Waipatukahu 1930 4a.0r.38p £380 D. Mackay 1B2B TeKauanga 1955 1a.Or.30p £26.8.9 J.S. Clark Whenuakite 1 Te Kauanga 1962 42 acres £850 L.c. Oliver Whenuakite 6 Rautawhiri 0 te 1964 31a.2r.Op £450 C.P. Oliver ao Waipatukahu 1 C 1967 30 perches £900 P.L. Phillips Waipatukahu 1967 8a.3r.20p $4000 Tirau Builders TapuB Te Kauanj!a 1974 4a.1r.16p $1500 Dalgety NZ Wai 754 168 Appendix III: Land affected by roading Block and total area Year Area affected Comment Te Kauanga 1905 22.4 perches Taken under section 88 Public Works Act 1894. 4a.1r.16p. Compensation sought 1968 - alleged that loss of land should have been made up by vesting an area of closed land to the west in the owners. Te Kauanga Whenuakite 1920 1a.0r.30p. Taken under Public Works Act 1908. 1 Compensation of £ 1.1 0.0 paid. 10 acres Te Kauanga Whenuakite 1920 1.2r.7.5p. Taken under section 389 Native Land 6 Act 1909. Compensation sought 1963. 42 acres Onepu 1961 Oa.2r.14p. 1961 roadway order made under sections 415, 418 Maori Affairs Act 3a.1r.Op Giving access 1953. Ministry of Works pays for to lA & 1B survey. Waipatukahu 5B 1979 - Right of way gained to public road through neighbouring land. Crown 78 acres pays costs. 1986 1115 sq. Right of way to site license granted to metres688 Crown. $3000 compensation paid by Crown. 688 Survey Instructions, Chief Surveyor to R.I. Newland, Staff Surveyor, 6 October 1986, File 19/10/4, LINZ, Hamilton Wai 754 169 :;. . ;-. ; ? .{ : -ji' p'- Appendix IV: Wai 754 Claim Garrick W. Cooper 23 Grange Rd MtEden Auckland Ph: (09) 6386245 Wk: (09) 373-7599 ext. 8801 E-mail: [email protected] 18 September 1998 Registrar Waitangi Tribunal P.O. Box 5022 Wellington Tena koe Ms Wiki, RE: Waitangi Claim • This claim is made by way of section 6 of the Treaty ofWaitangi Act 1975. We the descendants ofPurangataua Taiporutu (also known as John Patrick Cooney) have been and continue to be prejudicially affected by acts; omissions; policies and practices of the Crown and legislation and regulations made by the Legislative Council. The aforementioned are inconsistent with the Treaty of Waitangi and the principles of the Treaty ofWaitangi. General scope of the claim The following blocks are included in this claim. Tairua (Eastern Coromandel) Kahuwera (Eastern Coromandel) Rautawhiri-o-te-ao (Eastern Coromandel) Whenuakite (Eastern Coromandel) Te Pepe (Eastern Coromandel) Whangamata No.2 & No.5 (Eastern Coromandel) W aipatukahu (Western Coromandel) Onepu (Western Coromandel) The fIrst 6 blocks listed may be included in existing claims presently before the Tribunal. However, to our knowledge after making enquiries, the interests of the descendants of Rawiri Taiporutu, Matahera Whakatau and Eparaima Kingi (who had substantial interests in these blocks) are not being represented by claims currently before the Tribunal. Purangataua Taiporutu is the mokopuna of the above named. Thus, the Purangataua Whanau Trust was established by the descendants of Purangataua to represent their interests and to co-ordinate this claim. Request for urgency As the Hauraki hearings have begun, we request that our claim be given priority in terms of registration and appointment of a researcher commissioned on behalf of the Trust. We would also appreciate copies of all relevant reports and correspondence to,be forwarded to us. -' - ! 170 All correspondence on this matter should be addressed to The Purangataua Whanau Trust at the above address. We look forward to your response. Naku na (j)~ Garrick Cooper Wai 754 171 Appendix V: Wai 754 Commission WAI 754 WAITANGI TRIBUNAL CONCERNING the Treaty ofWaitangi Act 1975 AND CONCERNING The Tairua and other blocks claim DIRECTION COMMISSIONING RESEARCH 1) Pursuant to clause 5A(1) of the second schedule of the Treaty of Waitangi Act 1975, the Tribunal commissions Tracy Tulloch, of Auckland, to complete a report for this claim covering the alienation of the interests of Rawiri Taiporotu, Matahera Whakatau, and Eparaima Kingi in the Kahuwera, Rautawhiri-o-te-ao, Whenuakite, Te Pepe, Waipatukahu, Onepu, Te Kauanga Whenuakite, Kuaotunu, and Whangamata 2 and 5 blocks. In particular, the report should involve a more substantial discussion of those issues identified in her earlier scoping report for this claim. 2) The commission commences on 20 September 1999, dependent upon receipt of written confinnation of the commissionee's acceptance of the terms and conditions of the commission. 3) The commission ends on 27 March 2000, at which time one copy of the report will be filed in an unbound form together with a copy of the report on disk. *'- 4) The report may be received as evidence and the author may be cross-examined on it. 5) The registrar is to send copies of this direction to: Tracy Tulloch Claimants Counsel for Claimants Solicitor General, Crown Law Office Director, Office of Treaty Settlements Secretary, Crown Forestry Rental Trust Chief Executive, T e Puni Kokiri Dated at Auckland this day of October 1999 Dame Augusta Wallace Presiding Officer W AITANGI TRIBUNAL Wai 754 172 BIBLIOGRAPHY I. PRIMARY SOURCES A. Unpublished Sources Coromandel Maori Land Court Minute Books Rauraki Maori Land Court Minute Books Garrick Cooper (Wai 754 claimant) Letters from Phillips & Powell, Solicitors, Otorohanga to John Cooney, Te Puna, Tauranga, 1968-1975, regarding amalgamation of Te Kaunga block into Whakapoi 2 and subsequent alienation of Whakapoi 2. Office of the Maori Trustee, Hamilton Bound Ledger Accounts Te Kauanga Whenuakite 6, Rautawhiri 0 Te Ao National Archives, Auckland BACS A622 262a C338 Kuaotunu Correspondence, 1878-1909 BACS A806 45 C50817 Kuaotunu 1D1, 12/8/1896 BACS A806 49 C508111 Kuaotunu 2B, 111011892 BACS A622 12b C488 Te Kauanga Whenuakite, 1896-1955 BACS A622 19 C198 Waipatukahu, Applications, 1868-1952 BBHW 4958/888g Rautaw hiri 1964-1965 BBOP 10115 1a Auckland Trust Commissioner Record Book BCAC A110 7973 box 104 Te Kauanga Whenuakite 6 BCAC AlIO 7905 box 102 Kuaotunu 5B Alienation BCAC A187 17/630 box 205 Te Kauanga Whenuakite 6 Alienation BCAC A203 14079 box 323 Waipatukahu 1B2B Alienation National Archives - Wellington ABWN 6095 Acc.W5021 244 Kuaotunu 2 MA-MLP 1 18801700 Kuaotunu MA-MLP 118811189 Kuaotunu 1 MA-MLP 1 18901144 Kuaotunu MA-MLP 1 19031102 Kuaotunu 1D MA 1 19071253 box 48 Te Kauanga MA-MLP 11902/67 Te Kauanga Whenuakite MA 1 21111128 Waipatukahu Tapu MA-MLP 1 13/9 Waipatukahu Tapu MA-MLP 1 1873131 Waikawau (Waipatukahu) MA-MLP 1 1873/35 Waikawau (Waipatukahu) MA-MLP 1 1873/51 Whangamata 2 MA-MLP 1 1873/41 Whangamata 2 Wai 754 173 MA-MLP 1 189118 Whangamata 2 Hamilton Maori Land Court Block Order File C158 Kahuwera Block Order File C222 Te Kauanga Block Order File C207 Whakapoi 2 (Te Kauanga) Block Order File C488 Te Kauanga Whenuakite 1-7 Block Order File C507 (1) Kuaotunu 1 Block Order File C508 Kuaotunu 2 Block Order File Kuaotunu 5 Block Order File C512 Kuaotunu 1 Block Order File C611 Te Onepu Block Order File CI0l Te Pepe Block Order File C 181 Rautawhiri-o-te-ao Block Order File C 198 Waipatukahu Block Order File C198 (2) Waipatukahu Block Order File C398 Waipatukahu 5 Block Order File C600 Waipatukahu Tapu Block Order File H998 Whangamata 2 Block Order File H1375 Whangamata 2 Block Order File H866 Whangamata 5 Closed Correspondence File C600 Waipatukahu Tapu Closed Correspondence File C488 Te Kauanga Whenuakite Closed Correspondence File C222 Te Kauanga Closed Correspondence File C158 Kahuwera Closed Correspondence File C352 Kahuwera Closed Correspondence File C207 Whakapoi 2 (Te Kauanga) Closed Correspondence File C508 Kuaotunu 2 Closed Correspondence File C511 Kuaotunu 5 Closed Correspondence File C507 Kuaotunu 1 Closed Correspondence File C611 Onepu IB Land Information New Zealand - Hamilton • Kahuwera CT 55/137 PR 24/327 • Rautawhiri 0 Te Ao PR 256/10 CT 1811223 Transfer S307385 CT 4A/985 • Kuaotunu 1A Auckland Deed 1763 • Kuaotunu 1B Auckland Deed 1361 • Kuaotunu 1D1 CT 80/51 PR 25/50 Transfer 18271 • Kuaotunu 2B CT 65/78 Transfer 15585 Wai 754 174 • Kuaotunu 5 CT 266/69 CT 14D/107 Transfer 97146 • TePepe Deeds Register Book ID, p.110 Deeds Book Dr, pp.779-781 Deeds Book 27D, pp.703-705 CT 573/133 Application No.21733C • Whangamata 2 Auckland Deed 1730 • Whangamata 5 Auckland Deed 251 Turton's Deeds 371, pp.496-504 • Te Kauanga Transfer H037061 (aka Whakapoi 2) Transfer 031120 Transfer 032319 • Te Kauanga Whenuakite 3 Auckland Deed 3479 CT 1101171 Transfer 29093 • Te Kauanga Whenuakite 6 CT lA1262 PR 39/90 Transfer S229175 Transfer 77686 File 6900/1091 • Onepu PR 2821128 PR 255/135 CT 38C/901 Transfer H765098 Document H715853 Transfer 305008 File 19/10/3 RSL 4D/547 • Waipatukahu IB2B PR 176/36 Transfer 241881 • Waipatukahu 1C CT 8A11234 PR 260125 Transfer 397398 • Waipatukahu Tapu CT 531285 S256048 (HLR File 1730) • Waipatukahu 5 CT 64/13 CT 36DI172 CT 45A1293 CT 45A1294 Document H243565.2 Document H243565.3 Document H916317.3 Document H916397.2 Document H248070 File 19/10/4 FileMTM 75 RSLNo.8745 • Whenuakite Turton's Deeds, Deed 312, pp.383- 384 Wai 754 175 Maori Land Plans Kahuwera ML4014 Kuaotunu 1A ML 3549 (1) Kuaotunu 1Dl ML 3549c, sheet 2 ML 3549c Kuaotunu 2 ML 3549 (4) ML 3549 Bl Kuaotunu 5 ML 3550 (3) Te Pepe ML323 Whangamata 2 ML 3033-3039 Whangamata 5 ML 3033-3039 Te Kauanga Whenuakite ML 5297B ML20696 Te Kauanga Whenuakite 3 ML6646 Te Kauanga Whenuakite 6 ML 8000 Onepu ML 12850 Waipatukahu 1 ML2555 Waipatukahu 1B2B ML 14942 ML 12900 Waipatukahu 1C ML 18206 Waipatukahu Tapu ML20023 Waipatukahu 5 ML4500 Whenuakite ML 15834 B. Official Publications New Zealand Gazette Statutes of New Zealand 2. SECONDARY SOURCES Research Reports & Waitangi Tribunal Hearing Statements Alexander, David, The Hauraki Tribal Lands: Part I & II, vol.8, Wellington, 1997 (Wai 100, A8) 'Statement of Evidence for the Hauraki Claims: The Operation of the Maori Land Court in Hauraki' (Wai 100, E3; Wai 686, E3) 'Statement of Evidence for the Hauraki Claims: Overview' (Wai 100, A14; Wai 686, 48) 'Statement of Evidence for the Hauraki Claims: Summary of Crown Purchase Activity' (Wai 686, F4/5) Wai 754 177 Published Butterworth, G.V. & S.M Butterworth, The Maori Trustee, Office of the Maori Trustee, 1991 McHugh, P.G., The Fragmentation of Maori Land, Legal Research Foundation Inc., Publication No.18, 1980 Spiller, P., Finn, J. & R. Boast, A New Zealand Legal History, Brookers Ltd, Wellington, 1995 Ward, Alan, An Unsettled History: Treaty Claims in New Zealand Today, Bridget Williams Books, Wellington, 1999 Williams, David V., 'Te Kooti Tango Whenua': The Native Land Court 1864-1909', Huia Publishers, Wellington, 1999 Wai 754