Waitanoa's History: Maori Customary to European Ownership, Study Guides, Projects, Research of Negotiation

Download Waitanoa's History: Maori Customary to European Ownership and more Study Guides, Projects, Research Negotiation in PDF only on Docsity! The 'Little Bush' on the Plains: the Alienation of Waitanoa Richard Moorsom Wellington, November 1998 A historical report on aspects of the Wai 168 claim Author's Statement Tena koutou. My name is Richard Moorsom. I am a Pakeha originally from England, although I have spent a fair part of my life in Africa. This included childhood years in South Africa and, most recently, six years in Namibia after its independence helping to establish a policy research unit. Today I reside in Wellington and work for the Waitangi Tribunal as a research officer. I am trained as a historian, having gained in 1973 a first-class BA(Hons) in English history and philosophy from the University of East Anglia, United Kingdom, and a MA in African Studies from the University of Sussex, United Kingdom, in 1974. Since then, I have worked professionally both in development policy analysis and in historical research. My historical research has focussed on processes of colonisation, land alienation and national liberation, focussing especially on Namibia. I have published a number of articles in scholarly journals and approximately a dozen books and short monographs. Before joining the Tribunal in 1997, I undertook a period of contract history research for Rangitane ki Manawatu. During 1997-98 I completed reports on the Tarawera and Tataraakina Blocks in the Mohaka-Waikare Confiscation District (Wai 299/638) and the Tarawera Road Depot claim (Wai 638), and co­ authored a report on the Kupa whanau claim (Wai 731). Sources of Maps and Figures Map 1 Map 2 Map 3a Map3b Map3c Map 3d Map 4 Map 5 Map 6 Map 7 Map 8 Map 9 Figure 1 Figure 2 Figure 3 Figure 4 Figure 5 Figure 6 Figure 7 Mooney, Kay, History of the County of Hawke's Bay, (Hawke's Bay County Council, 1975), Part 3. Plan of the Napier Country Districts ... , James Rochfort, LINZ Na & Map 5001, HBM. Deed oflease dated 20 July 1865, HWB 133, LINZ HO. Deed oflease dated 15 June 1866, HWB 134, LINZ HO. Deed of agreement on sale dated 2 August 1867, HWB 135, LINZ HO. Deed of sale dated 17 March 1868, HWB 137, LINZ HO. Section of Bousefield's map of Hawke's Bay, 1852 (ROD E22L). Untitled, Map 5678, HBM. Annotated on the reverse side 'Heretaunga Plains' and '1865'. Plan of Papakura between Tareha's Bridge and Pawhakairo, annotated as 1880, Map 5151, HBM. Section of Plan to accompany returns dated July 11 1873, probably HH Turton, Map 5365, HBM. Untitled district cadastral plan by Williams, 1890, LINZ Na. Grant, Forests of yesterday, map 3, p.129. Charles Rudston Read, Ahuriri plains, Hawke's Bay, watercolour, c 1851, Rex Nan Kivell Collection NK202, National Library of Australia (copies: HBM & Photographic Collection 106 RNKYz, ATL). Photographic Collection 4184, HBM. Photographic Collection 3313 & 3314, HBM. Photographic Collection 2246, HBM. Engraving of sketch of hui at Pawhakairo, probably 20 July 1863, from Illustrated London News, Photographic Collection 2691, HBM. Photographic Collection 5290, HBM. Photographs taken by the author, July 1998. Abbreviations Documentary Sources AJHR Appendices to the Journals of the House of Representatives HBGG Hawke's Bay Government Gazette HBVP Votes and Proceedings of the Hawke's Bay Provincial Council NZG New Zealand Gazette ROD Waitangi Tribunal Record of Documents, Wai 201 MB Minute Book SNZ Statutes of New Zealand Terms n.d. TS MS CT Wai No date Typescript Manuscript Certificate of Title Waitangi Tribunal Claim Officials and Institutions US Under-Secretary USND Under-Secretary, Native Department MA Department of Maori Affairs TPK Te Puni Kokiri Repositories ATL NA MLC-Tak HBM LINZHO LINZNa TPK Alexander Turnbull Library, Wellington National Archives, Wellington Maori Land Court, Takitimu Registry, Hastings Library of the Hawke's Bay Museum Land Information New Zealand, Head Office Land Information New Zealand, Napier Regional Office Te Puni Kokiri ,I,. .. ::- :1 ~ r1 ,i :1 '1 II Ii Ii Ii ~. .. I ! .~, r1 "":'J ~' .: ':' : I fi r l i 1 ! \ .;'" "\ Mit""'I' ~ l~" ) "\~\.,, ~ " ..,\"., ....... ~,:;:, .. I'dl :P...U.~ X .. '11JIU. -flo Waitanoa Bush 11 ,,,Aid.,, ~ ~~". ~ /// f/)/ ~ '" ~ :;) I- ~ :;) I- I ~re-IUrOpeal1 ~a Sites On The Here taUl1ga ~ ~ ~~ ~ '<9 ::e- \ ~ ""'- ~lains SC41.z. - 1 : 63,360 . N 1'" rcl'~cscltl.4. by U"i sym},,,l C ",. J(1J.IJA'fN'l. fI: 'KI"~"'IJ'."" r Flll ;(_<.4., ,.,,,,,, 11.". s:: .g ..... == ~ '"'l a ~ = = IJQ ~ "'= -~ .... = :f1 e .... 9-..... ~ ~ (j ~ = "'*" = ~ '" Wai 168: Waitanoa Page 2 Hawke's Bay Museum, the map and photograph collection at the Museum, survey plans and maps at the Napier office ofLINZ, and files at the Takitimu Maori Land Court. 1.3 Outline of the Report This report focuses specifically on the small, 94-acre block ofland known as Waitanoa. 19th century cadastral maps place the block towards the northwestern corner of the larger Papakura block, midway between the Tutaekuri Waimate and the old channel of the Tutaekuri River (see Map 2). It straddled what is today known as Gilligan's Road, with its western corner connecting to the intersection between Pakowhai and Allen Roads and the eastern corner lying close to the stopbank of the present course of the Tutaekuri River. The report is organised into two main chapters. Chapter 2 sets the context for the sale of Waitanoa. It assesses the significance ofthe 'Little Bush' in the ecology of the Heretaunga plains and in the mid-19th century patterns of population settlement and resource use. It reviews the pressures arising from the expansion of Pakeha land settlement, Maori and provincial government attitudes during the early 1860s towards further land alienation, and the negotiation of the lease of the Papakura block in 1865. It concludes with an examination of the passing of the Papakura block through the Native Land Court in 1866 and the sale of the block to the provincial government during 1867-68. Chapter 3 focuses on Waitanoa itself. It documents the exclusion ofWaitanoa from the sale of . Papakura, then analyses in detail the circumstances of the leasing and private sale of Waitanoa during 1866-67. It reviews the handling of the Waitanoa case before the 1873 Hawke's Bay Native Lands Alienation Commission and the adequacy of the Commission's report and findings. It concludes with a brief review of the outcome and of the title status ofWaitanoa as revealed by later cadastral plans. Wai 168: Waitanoa Page 3 2. The Alienation of the Papakura Block 2.1 The 'Little Bush' in the Ecology of the Heretaunga Plains The coastal zone of southern Hawke's Bay, known in the mid-19th century as the Heretaunga plains, has a distinctive natural environment which today sustains one of the most productive agricultural economies in the country. Sandwiched between the ranges ofthe central divide, the coastal hills running southwards from Cape Kidnappers and the hilly coastal lowlands to the north, it forms a drainage basin for an extensive river system. Three major rivers, the Tukituki, the Ngaruroro and the Tutaekuri, reach the coast within a five kilometre stretch and a fourth, the Waiohinganga, disgorges at the northern edge of the basin. Two factors have ensured that the landscape of the Heretaunga plains has been subject to frequent change. The first is the action of the rivers by siltation and flood. The larger floods could bring not only permanent alterations of channel but also widespread destruction of vegetation and depositing of soil and gravel. The old river courses remained as structural features of the local landscape, often as tributary streams. The second factor is earth movements resulting from Hawke's Bay's location in the boundary zone between the Pacific and Australasian tectonic plates. The most dramatic in recent times was the uplifting during the 1931 earthquake, which not only raised the entire area but tilted the lowlands from north to south, backing up the Tutaekuri River, which at that time flowed northwards into Te Whanganui a Orotu. In the mid-19th century the drainage pattern of the 30-kilometre coastal belt between present-day Bay View and Te Awanga differed markedly from the flat, well-drained agricultural landscape that was built up following the 1931 earthquake. The lower channels of the Tukituki and Ngaruroro Rivers were much where they are today. However, the shingle bar running south from Mataruahou (Napier Hill) turned their outflow northwards along the Waitangi Stream into the lagoon system of Te Whanganui a Orotu. [3] Just inland, the Tutaekuri also turned northwards from the eastern end of the Waiohiki block through Maraenui, while the Waiohinganga turned south into the northern end of the lagoon. Periodic river floods would break through to the sea 3 Buchanan, JD, The Maori history and place names of Hawke's Bay, (Wellington: AH & A W Reed, 1973), p 89. Wai 168: Waitanoa Page 4 at varying points along the bar. Around the river channels was an extensive area of swamp and small lagoons. Rivers provided the key arteries of transport and communication and good sites for human settlement were at a premium. A striking feature of the Heretaunga plains in the mid-19th century was the almost complete absence of bush and scrub. In 1841, Captain WB Rhodes described the area as [4] a fine alluvial valley ... containing probably some two hundred thousand acres of grassland. It is mostly clear of fern, with the exception of some tutu bushes ... There are three fine groves of timber in the flat sufficient for all purposes of building and fencing. Three years later, Colenso's well-known reaction on arrival expressed the perception of the Pakeha foot-traveller lacking water transportY] .. .It was impossible to travel through the dense interlaced jungle of cutting grass and flax ... nowhere have I seen cutting grass of so large a size and growing so close together and forming such a dense mass that a man or a cow or a horse could not be seen when among the immense tussocks. The botanist Patrick Grant summarises scientific and descriptive information about the plains in the 19th century:[6] ... there were extensive areas of swamp which were clothed in trunked sedges, toetoe, flax and raupo etc; in winter the area was flooded. A large area around Pakowhai was a flax swamp and around Maraenui... was mainly swamp and lagoon. Scattered across this largely treeless landscape were isolated pockets of bush. Grant records several pre-1840 descriptions by Pakeha visitors:[7] Captain James Cooke, in 1769, reported that " ... on the SW side ofthis head [Scinde Island] is a very large flat, which seems to extend a good way inland to the westward, on this flat are several Groves of Straight tall trees ... " ... In 1827, D'Urville recorded from the Astrolabe: " ... we were able to see a pleasant landscape, dotted with clumps of trees and on the edges of some large basins of calm 4 Quoted in Wilson, JG et aI, History of Hawke's Bay, (Wellington: AH & A W Reed, 1939), p.145; Grant, Patrick, Hawke's Bay: forests of yesterday, (Havelock North: the Author, 1996), p 65. 5 Grant, Forests of yesterday, p 65. 6 Grant, Forests of yesterday, p 65. 7 Grant, Forests of yesterday, p 66. Wai 168: Waitanoa Page 7 for palisading when he rebuilt Tanenuiarangi pa.[13] Whether Waitanoa was similarly used is not lmown, but it was as close to Waiohiki as Pakiaka was to the settlements of the lower Ngaruroro and Tukituki and there were few other forest areas near to hand. In the ecology ofthe Heretaunga plains, these were both strategic resources. 2.3 Pakeha Land Settlement and the Leasing of the Plains The Crown land purchases of 1851 coincided with the arrival of sheep pastoralism in Hawke's Bayy4] During the 1850s, the expansion of extensive free-range sheep ranching in the form of runholding more than kept pace with the government's continuing purchase of land in southern Hawke's Bay from Maori. By the early 1860s, the state's ability to supply land for farming was coming under pressure from three qUaIiers. First, runholders had filled most of the unforested Crown land with sheep and were looking for more. A concentration of ownership, notably Colonel Whitmore's acquisition oflarge tracts ofthe Ahuriri block, further reduced the supply.[15] Secondly, settlers with little or no capital were seeking smaller agricultural sections for mixed agricultural and pastoral farming. Finally, settler aspirations were breaking on the rock of Maori resistance to further land selling. Dissatisfaction with the terms of the Ahuriri Crown purchase was one factor; wider influences, such as the rise of the kingitanga, also came into play. In the early 1860s, the Maori runanga movement united most rangatira in central Hawke's Bay in imposing an effective freeze on further large land sales to the Crown, and in 1861 the colonial government was forced to put its land purchasing operations on hold. The onset of successive land wars in other parts of the North Island damaged the confidence of the Hawke's Bay chiefs in the Crown as a negotiating partner. [16] While Maori had sold large tracts in the surrounding hill country and southern Hawke's Bay to the Crown during the 1850s, most of the Heretaunga plains south of the Tutaekuri River remained in Maori ownership. These plains now became the focus of intensifying settler interest. 13 Buchanan, Place names, p 55. 14 Wright, Hawke's Bay, pp 32-50. 15 Macgregor, Miriam, Early stations of Hawke's Bay, (Wellington: AH & A W Reed, 1970), p 192. 16 Cowie, Hawke's Bay, pp 50-1; O'Malley, Ahuriri purchase, pp 180-5; Wright, Hawke's Bay, pp77-82. Wai 168: Waitanoa Page 8 Mediating the antagonism between the runholder and small farmer factions, pressure mounted on the fledgeling Hawke's Bay Provincial Council to unlock the plains for settlement. The Council also had to take account of the partial success of Maori owners in imposing their preferred method, leasing. Although leasing remained illegal under the 1846 Native Land Purchase Ordinance, growing numbers of Pakeha stock-owners were proving willing to take the risk, placing their informal arrangements with Maori owners outside the reach of the colonial judicial and taxation system. An 1864 return listed a number of Pakeha runholders occupying land on the plains, the largest being a syndicate lease of20,000 acres for £750 per annumY7] Nationally, the regime of Crown pre-emption on the sale and lease of Maori-owned land was approaching its end. But the 1862 Native Lands Act, which abolished pre-emption in favour of private buying and selling of Maori land, was not signed into law until late 1864 and was anyway never implemented in Hawke's Bay. Not until late 1865 was a revised Bill passed and enacted. In the meantime, the Provincial Council needed to find a way around the impasse. In his opening address to the Council in February 1862, Superintendent Carter vented his frustration:[18] I must now call your attention to the fact that the leasing of Native lands as runs by Europeans has not as yet received any check: on the contrary, I believe runs are still sought for and obtained, notwithstanding that the Native Land Purchase Ordinance, which is still in force, prohibits Europeans dealing with the Natives for their lands. These illegal acts give a very unfair advantage over those persons who ... have abstained from infringing it... He warned of the risk that runholders might pre-empt the later availability of land for closer settlement: The permanent occupation ofthe Ahuriri plains for pastoral purposes would be highly detrimental to the Province. It would be a death-blow to our future prosperity, not only as affecting the interests of the working classes, but of the revenue as well. 17 Return of persons occupying Native lands ... , AJHR 1864 E-I0. 18 Address of His Honor the Superintendent on Opening the Council, 3 February 1862, HBVP 1862. Wai 168: Waitanoa Page 9 Carter recommended that 'no action whatever be taken' pending the introduction of new land legislation. A year later, however, his experienced successor, Donald McLean, was ready to propose active intervention: 'the acquisition of fresh tracts ofland from the Natives' .[19] McLean feared that with the imminent removal of Crown pre-emption, ... the Province will be placed in competition with individual capitalists and speculators, who are prepared to invest largely in the purchase of land, and in whose hands it will in all probability be locked up for an indefinite period from access to the industrious classes. Accordingly he requested authority to raise a £30,000 loan for a Provincial land purchase programme as well as another £30,000 for immigration and infrastructure. He anticipated 'much more difficulty and expense than formerly' with further land purchasing but considered that 'time, patience, and available funds will no doubt remove some ofthe obstacles to the acquisition of land adapted to the requirements of agricultural settlers'. Maori too had their problems with extra-legal leasing. Tenants did not always pay up, a recognized means of settling disputes was lacking, and stock trespass was common. Rival claims to the right to lease particular areas of land were also common. In May 1861, a coalition of Hawke's Bay chiefs protested vigorously to the Superintendent against Te Hapuku's leasing to a sheep-farmer ofland at Poukawa that they considered belonged to them. Their point was that 'it is not fit... that sheep should be placed on these our lands, on the land concerning which the Maoris themselves are disagreeing. Better is it that the Europeans should remain on those (lands) which have been agreed to by the Government' . In other words, Maori should be left to sort out their own land disputes; Pakeha should not exploit them. The chiefs demanded that the Superintendent require the Pakeha farmer to leave, failing which 'his sheep will be killed by us'. Bearing the signatures of Tareha, Urupeni Puhara, Te Moananui, Karaitiana and 80 others and the emphatic postscript 'from us all is this word', this letter represented a united effort by several of the rangatira of Heretaunga to assert their authority. Clearly, they sought to head off a possible repeat of the 1857-58 conflict with Te Hapuku by involving the provincial government as a partner. [20] 19 Address of His Honor the Superintendent to the Provincial Council of Hawke's Bay, 25 March 1863, HBVP 1863. 20 Urupeni Puhara, Karaitiana, Moananui, Tareha & 80 others to 'Governor Thomas' [Fitzgerald], 23 May 1861 (translation), HB4!13, NA. On the 1857-58 conflict, see Cowie, Hawke's Bay, Wai 168: Waitanoa Page 12 For much of the year, the colonial government resisted McLean's proposal on the grounds that it might prejudice land sales, and refused authority. In October 1864, the Colonial Secretary sent McLean a Governor's warrant 'appointing you to be a person by whom, and at whose instance, proceedings shall be taken under the Native Land Purchase Ordinance ... ', which was still then in force over most of New Zealand, and thus to act against 'illegal' lessees of Maori landYS] During 1864 and 1865, pressure to open the plains for settlement mounted. Opening the Provincial Council in June 1865, McLean tried to reassure councillors that despite the political turmoil of the times, he was responding to their concerns:[29] In fulfilment of the desire expressed by you during the last session, I have done all in my power to acquire for purposes of settlement the agricultural lands ofthe Ahuriri Plains. By early 1865, several parts of the plains were targeted or under negotiation. Replying to questions raised by McLean, Ormond stated:[30] About Karaitiana and the Waipureku plains: I should say close at once for the place at the rental you name for 21 years - and if possible get Pakow[h]ai as well before it is snapped up by someone else­ £4 or £500 a year would not be out of the way for these Pakow[h]ai plains. In the end the Provincial Council's proposal won out. One factor was that by mid-1865 the political situation in Hawke's Bay had changed dramatically. During 1864 and early 1865, the political and religious turmoil stirred by the arrival of the Pai Marire movement exacerbated old leadership rivalries and threatened discord within Maori communities. Following the military defeat ofPai Marire adherents in the East Coast and Wairoa, and the Volkner murder in March 1865, government demands for Maori to take sides and demonstrate loyalty took on a harder edge. At the same time, the reduced proceeds from fewer land sales cut back the financial resources available to the chiefs and their communities. [31] 28 Colonial Secretary to Superintendent, 22 February & 4 October 1864, Correspondence having reference to the illegal occupation of the Ahuriri Plains ... , HBVP 1865; Cowie, Hawke's Bay, pp 63-4. British government assent to the 1862 Native Lands Act, and thus to the waiver of Crown pre-emption, was proclaimed on 6 June 1863, but the Act was not brought into general operation until 29 December 1864. The Ordinance itself was finally repealed by the 1865 Native Lands Act, which came into force on 30 October 1865. 29 Address of His Honor the Superintendent on Opening the Provincial Council, 13 June 1865, HBVP 1865. 30 Ormond to McLean, 4 January 1865, McLean Papers, MS-Papers-0032-0481, ATL. 31 Wright, Hawke's Bay, pp 81-2; Cowie, Hawke's Bay, pp 102-5. Wai 168: Waitanoa Page 13 The chiefs continued to resist outright sale, as McLean was obliged to concede when he addressed the Provincial Council in June 1865:[32] I should have prefeITed of course to have treated with the natives for the absolute sale rather than the lease ofthese lands, but as I found them quite unprepared even to entertain that question, I concluded that the interests ofthe Province would be best served by their acquisition upon the only terms which the native proprietors appeared willing to accede to. However, the chiefs were now prepared to agree to enter into long-term leases oftheir land to the provincial government: I have reason to believe that the Ahuriri chiefs are now disposed to give over, upon lease, to the Government considerable blocks of the most valuable portions of the plains for settlement. 2.4 The Papakura Lease In a still tense political climate, long-term leases were signed in mid-1865 for the Papakura and Hikutoto blocks, adjoining the south banks ofthe Tutaekuri and Ngaruroro Rivers respectively. The leases were concluded a few months before the inauguration of the Native Land Court and were thus still in Maori customary ownership. Infonnation on the preceding negotiations appears to be virtually non-existent. The Papakura deed of lease was signed on 20 July 1865 for an area thereafter identified as the Papakura block, although the name does not appear on the document.[33] The deed conveyed a 22-year leasehold to the Superintendent of Hawke's Bay for an annual rental of £600 for the first eleven years and £700 for the final eleven. Tareha's name headed 67 Maori signatories, who included Karauria Pupu, Wi Ngamaiaia and probably Airini Tonore (' Arini'). The wording of the text stressed its inclusive character after the style of a Crown purchase deed:[34] This deed is made by us, by the people whose names are written on this deed, made for us, for our relatives, for all our descendants, including those who are born after us, that is on behalf of all the people who own the land that is specified in this deed. 32 Address of His Honor the Superintendent on Opening the Provincial Council, 13 June 1865, HBVP 1866. 33 Deed oflease dated 20 July 1865, HWB 133, LINZ HO. Original in Maori only. 34 Trans. Winifred Bauer. Wai 168: Waitanoa Page 14 The sketch map drawn onto the deed indicates that the block was not yet defined by survey: the map lacks survey markings oflengths and angles. It gives only an approximate area (' contents about 4,000 acres'). The boundary formed a rough rectangle based on the Waitangi stream, the Tutaekuri River, the Tutaekuri Waimate (an old channel of the Tutaekuri) and a fence running parallel to but some distance from the Ngaruroro River. At its inland end, a projection was bounded by the Tutaekuri Waimate on one side and the road to Pawhakairo on the other, stopping only just short of Pawhakairo itself. The remaining area between the road and the river was to later become the bulk of the Waiohiki block. Clearly marked on the sketch map is a five-sided section annotated 'Waitanoa' and 'Reserve about 100 acres'. The bush area is shaded in and wholly enclosed by the boundaries of the reserve, occupying roughly a quarter of its area. The reserve is placed more or less midway between the Tutaekuri and the Tutaekuri Waimate and close to the road boundary of the block. Although the text of the deed makes no explicit mention of Waitanoa by name, it qualifies the land to be leased as 'including the land which is sketched at the side of this document'. Since the boundaries of Waitanoa are drawn in the sketch map and it is marked as a 'reserve', the clear implication is that the owners intended to exclude it from the lease. A receipt for rent signed by Tareha six weeks later implies that for him Waitanoa was the most significant feature of the Papakura lands: ' ... that is the lands at Waitanoa' P5] The failure to specify the status ofWaitanoa explicitly in the text of a formal transfer document such as this is surprising, especially in view of the fact that Waitanoa itself was wholly enclosed by the leased land. 2.5 The Native Land Court and the Sale of the Papakura Block, 1866-1868 The leasing of the Papakura and Hikutoto blocks in mid-1865 enabled the Provincial Council at last to provide flat land near Napier for sub-dividing into small farming plots. The leases were concluded, however, on the eve of the enactment ofthe revised Native Lands Act, which received the Governor's assent on 30 October 1865. The Act inaugurated the era ofthe Native Land Court, providing in particular for the conversion of Maori customary rights in land into Crown-derived title to specific blocks, for the individualisation of title, and for direct private purchasing. It also instituted the so-called ten owner rule, which limited the number of owners to a maximum of ten 35 Receipt for £100 dated 6 September 1865, HB 8130, NA. Wai 168: Waitanoa Page 17 After adjourning for an hour for reasons not stated - presumably to allow the parties to confer - the Court heard 'some further evidence and discussion on the claim', which unfortunately the minutes do not detail. Nor is there any information on the judgement; indeed, the brevity of the minutes imply that Judge Smith simply issued a title order without explanation. Smith's order, in favour of Tareha and Wi Ngamaiaia, was on the face of it perplexing. Because the block, now surveyed at 3,363 acres, was below the 5,OOO-acre threshold, vesting it corporately in an iwi or hapu was not an option. But both the applicants and the two other witnesses had come up with several titling options, which ranged from vesting all or part of the block in Tareha alone to the inclusion of additional names. The minutes give no hint that the parties agreed in advance to the two persons vested by the judge. This is in strong contrast to the following Hikutoto case, where Judge Smith ruled in favour of particular ancestral owners, asked those representing them to agree unanimously on a list of names, and when that was forthcoming, endorsed it. In the Papakura case, on the other hand, it remains obscure why he included Ngamaiaia and not the second claimant (,Hanane Taiepa') and why, being willing to admit Ngamaiaia, he then excluded the two original applicants, Karauria and Te Manihera. Two views of the titling process seem to have been in contention. On the one hand, Tareha's co­ applicants were willing to defer to his mana. On the other, the two new claimants wished to ensure wider representation in the title. All, however, appeared to speak on the basis that those to be put into the title were to represent group interests; a primary mandate of trust was implied. Tareha himself described the dispute over the boundary as being between himself 'and his party' and Karaitiana 'and his party'. Whether the applicants fully appreciated the radical implications ofthe new form oftitle, which made no provision at all for trusteeship, is not clear. Judge Smith himself was in no doubt as to the implications, although it was not until the start of the Hikutoto case that he spelled it out: It was explained by the Comi that a grant would not issue to more than 10 persons. The Court also explained the effect of a Crown grant in fee simple in vesting the title absolutely and conclusively in the persons named in the grant. The outcome was that in place of the 67 people recognised as owners and as hapu and whanau representatives at the signing of the 1865 lease, just two individuals now had exclusive and Wai 168: Waitanoa Page 18 unrestricted title to the block. Matters now moved forward at a brisk pace. Just as the two provincial leases had come to the top of the Land Court queue, so the issue of the Crown grant, which commonly took years, was completed only a couple of months later. [44] Six weeks afer that, on 15 June 1866 McLean, as Superintendent, signed a replacement lease with the new owners. Its terms effectively rolled over the first lease, except that the increase in the annual rental from £600 to £700 would now kick in ten and not eleven years before the end date. [45] The diagram attached to the deed of lease was now based on the more precise survey plan prepared by Locke. The position and shape of the Waitanoa section, assessed at 94 acres, differed only in small details from the earlier sketch: the boundaries were now a little more elongated and the stand of bush was slightly smaller and rounder. But there was a significant change in designation: the word 'Reserve' had disappeared, leaving only the somewhat imprecise term 'Native' to indicate the status of the section. There was still no right of way to the external boundary and still no reference to the land in the text of the lease document. At law, therefore, Waitanoa may have been subj ect to the same terms of the lease as the rest of the Papakura block. Just over a year later, on 2 August 1867, the Provincial Council purchased the Papakura block for £9,500.[46] The schedule of payments was unusual: a down payment of only £500, a second instalment of £3,000 a year later, and the final instalment of £6,000 only on 1 January 1870, plus interest at 8 percent per annum. The owners were thus expected to wait two and a half years for nearly two-thirds of their purchase money. The reason was that a cash-strapped Provincial Council was by this time in serious financial straits amidst a general colonial recession, as Ormond informed McLean a month after the sale:[47] We are terribly hard up for money I need not tell you, and I hope you have made all right with the Bank for a further advance pending the raising of our Loan. I have told Weber to incur no fresh outlay of any kind whatsoever save what is absolutely necessary to finish existing contracts etc. In fact the provincial government proved able to pay up well in advance of the schedule. A further deed three months later, bearing Tareha's signature alone, agreed an 'advance' payment 44 CG 14-7E dated 7 May 1866, Hawke's Bay Crown Grant Register, LINZ HO. 45 Deed oflease dated 15 June 1866, HWB 134, LINZ HO. 46 Deed of agreement on sale dated 2 August 1867, HWB 135, LINZ HO. 47 Address of His Honor the Superintendent on Opening the Provincial Council, 24 June 1867, HBVP 1867; Ormond to McLean, 31 August 1867, McLean Papers, MS-Papers-0032-0482. Wai 168: Waitanoa Page 19 of £3,530 and the balance to be paid on 1 November 1868J48] A final deed of sale, signed by both grantees, then brought full payment forward to March 1868.[49] Evidence given to the 1873 Hawke's Bay Native Land Alienation Commission[50] suggests that the act of cession and payment of the first instalment in the sale of Papakura was conducted partly in the public style of a Crown land purchase, but with less openness than was typically the case when the sale was executed at the home settlement ofthe sellers. Sanmel Locke stated that 'J myself paid the first instalment of £4,000 or £5,000 to Tareha in the presence of his people'. However, when questioned by the commissioners on a complaint from Paora Torotoro that he had been excluded from the payment, Tareha was more precise: Was not the purchase money paid over in this room by the representative of the government, in the presence of a large number of the tribe? - It was not so. I admit that the payment was £9,500; it was paid in a room adjoining this. Paul was not present when the money was paid. I never heard at that time that Paul claimed. Were not all your Hapu present when the money was paid? - My hapu, through whom the land was claimed, were present; we filled the room. Neither account is fully consistent with the series oftransactions as recorded on the three deeds. It may be that Tareha and Locke were recalling principally the final conveyance on 17 March 1868, when the balance paid should have been £5,470 - the amount actually paid in the final instalment was not written onto the deed. The provincial leaders appeared less concerned about the difficulties faced by the tangata 0 waho than with providing, in some vaguely defined manner, for Tareha individually. Writing to McLean a fortnight after the sale, Ormond reported:[51] I have concluded the purchase which Locke initiated of the Papakura Block for £9,500 - 500 cash paid, 1,500 in six months, 1,500 in 12 months and 6,000 in 3 years. I think this will settle what might have been a troublesome business with the Government tenal1ts of the Papakura and the price I consider a fair one. Tareha is to have the £6,000 funded in some way for his benefit in future years. 48 Deed of agreement on advance dated 28 October 1867, HWB 136, LINZ HO. 49 Deed of sale dated 17 March 1868, HWB 137, LINZ HO. 50 Lands Alienation Commission 1873, Minutes of Evidence, pp 1-3. AJHR 1873 G-7. 51 Ormond to McLean, 15 August 1867, McLean Papers, MS-Papers-0032-0482, ATL. Wai 168: Waitanoa Page 22 agreement until 28 October 1867, thereafter reverting to the unencumbered ownership of the two grantees vested on 6 March 1866, Tareha and Wi Ngamaiaia. The leasing of the Papakura and Hikutoto blocks finally opened up agricultural land on the Heretaunga plains close to Napier and the coast for small farmer settlement. It took more than a year for an enabling provincial law to be enacted in August 1866, but when the sections came up for auction, competition was keen and much of the Papakura land was snapped up and occupied. By late 1866, many of the sections adjoining and near to Waitanoa had been purchased and some occupied and farmed. [56] 3.2 The 'Sale' ofWaitanoa, 1867 At some point during the sale of the Papakura block over 1866-67, Tareha entered into transactions that were later officially interpreted as the sale of Waitanoa to private interests. Tareha was later to bring his complaints concerning the transactions before the 1873 Hawke's Bay Native Lands Alienation Commission, whose minutes of evidence and report provide nearly all the extant information in the absence of anything but fragmentary information in the surviving official files. [57] Such scarcity of documentation is not surprising for private transactions involving Maori land during the first five years of the Native Lands Act regime, before the institution of tighter scrutiny after the exposure during the early 1870s of the exploitative character of much of the purchasing of Maori land in Hawke's BayJ58] The commissioners themselves noted in their report that their witnesses were unable to produce even basic documentation - the lease agreement, legal papers documenting a Supreme Court action for damages, even the conveyance - obliging them to proceed largely on the basis of verbal testimony. [59] The report of the Pakeha commissioners, [60] written by CW Richmond and endorsed by FE Maning, summarised a series of confused negotiations and deals typical of the orgy of private 56 Mainly by Henry Russell and William Miller. See their evidence to the Hawke's Bay Native Lands Alienation Commission 1873, Minutes of Evidence, pp 8-10. AJHR 1873 G-7 57 AJHR 1873 G-7. 58 Cowie, Hawke's Bay, chapter 4; Phillipson et ai, Ngati Kahungunu, pp 104-121. 59 Lands Alienation Commission 1873, Reports by Chairman of Commission ... , pp 11-12. AJHR 1873 G-7. 60 Lands Alienation Commission 1873, Reports by Chairman of Commission ... , pp 11-13. AJHR 1873 G-7. Details in the following paragraphs are drawn from this case report. Wai 168: Waitanoa Page 23 land buying that swept central Hawke's Bay, and especially the Heretaunga plains, following the passing ofthe Native Lands Act 1865.[61] The initiative came from Henry Russell MP, who in the mid-1860s was acting for an expatriate Scottish investor, Aikman. Having already acquired several adjoining Papakura sections for Aikman under the provincial government's sub-leasing scheme, Russell applied through an agent to Tareha for a lease of Waitanoa. According to Russell, the agent returned with a 21-year lease for £120 per annum, bearing Tareha's signature. Because Russell claimed to have 'lost' the document, the commission could not even be sure of the year of the transaction, but stated that it 'appears to have taken place in 1866'. Russell made no mention of the other grantee, Wi Maiaia, to whom not a single reference appears in testimony before the Commission; his participation in, or agreement to, any of the transactions remains obscure. During Russell's absence in Wellington for a session of the General Assembly in mid-1866, Tareha let Waitanoa to Miller and Lindsay on the same terms, but reserved his rights to the timber and firewood and gave the tenants the right of pre-emption should he decide to sell. Upon his return, Russell bought out Miller and Lindsay's lease as well as their sub-tenant. Then, failing to extract compensation from Tareha, he sued him in the Supreme Court for damages of £400 for breach of agreement. But Russell had at the same time been pursuing a separate line of attack, having mandated FE Hamlin to try to negotiate with Tareha for the sale ofWaitanoa. Shortly after he was served with the notice ofthe action for damages, 'some of Tareha's people ... asked Mr Sutton ifhe would be inclined to buy the land, and help Tareha out of his difficulty with Mr Russell'. Frederick Sutton promptly informed Hamlin and 'next day' Russell engaged him to negotiate with Tareha, offering a purchase price of £250, withdrawal of the action for damages and his legal costs. Tareha eventually accepted the terms offered, but insisted as before on excluding the timber and firewood. With the agreement of Russell's solicitor in his absence, Sutton 'assured Tareha that the timber would not be considered as included in the deed - and on this understanding the chief executed the conveyance'. But the 'understanding' was verbal, and Russell repudiated it on the grounds that Sutton had exceeded his negotiating mandate. 61 On the operation ofthe Native Land Court and private purchasing of Maori land, see Cowie etc [??] Wai 168: Waitanoa Page 24 The commissioners' report placed the sale no more precisely than 'in 1867'. It is not clear from their report whether they set eyes on the deed of conveyance and they made no direct reference to its terms, relying instead on the verbal testimony given. However, responding to a query in April 1870 from Charles Heaphy, the Trust Commissioner, Samuel Locke confirmed that 'the Native reserve known as Waitanoa in the Papakura Block was sold to Mr Sutton by Tareha. Deed dated August 19th 1867'.[62] This places the sale of Waitanoa 17 days after the deed of agreement to sell Papakura to the provincial govermnent. Since Tareha would have had the authority to alienate Waitanoa only after gaining his certificate of title from the Native Land Court in March 1866, it is probable that the whole series of transactions took place at the outside within the 17 month period between March 1866 and August 1867. In one respect, all the transactions concerning Waitanoa were of questionable validity since the failure to exclude it from the two leases and the first sale agreement in respect of the Papakura block left it formally in the possession of the provincial government throughout the operative period. It is possible that the retroactive provision in the October 1867 deed can be regarded as having validated the sale of Waitanoa in August 1867. Neither the Waitanoa parties nor the commissioners appear to have been aware of the title anomaly, and if any were, they did not draw attention to it. Putting aside the title issue, the Pakeha commissioners' factual summary is all the same less than satisfactory, even as a condensation of the testimony of Russell and Sutton, on which they relied heavily. Evidence given by witnesses to the Commission [63] suggests a sequence of events that falls more or less into three phases: the leases to Russell and Sutton; Russell's court action; and the final sale. In his evidence, Tareha describes a difficult negotiation with Russell after the latter approached him for a lease of Waitanoa: He then went on to talk about the price. I asked him £200. Mr Russell said it was a small place, and that he would not be strong to give that money. We disputed about it, and Mr Russell offered £120. It was a lease; it was £120 per annum ... I contended to have the amount that I asked, but after a long time I agreed to his terms. Our conversation ended because I consented to his terms. 62 Locke to Heaphy, 26 April 1870, MA-MT l11A/120, NA. 63 Lands Alienation Commission 1873, Minutes of Evidence ... , Waitanoa, pp 7-10. AJHR 1873 G-7. Unless referenced to another source, all citations and quotations in the rest of this section are taken from the minutes oftestimony on the Waitanoa case. Wai 168: Waitanoa Page 27 The final stage moved at a fast pace. In cross-examination, Sutton and Russell clashed sharply over both fact and interpretation, Russell flatly denying or failing to recall a number of specific allegations put to him by Sutton. It is impossible to unravel all the contradictions at this distance. However, a reasonably clear pattem emerges on some of the key points. Both agreed that the approach to Sutton to purchase Waitanoa came from Tareha's people, although at first Tareha may not have been directly involved. According to Sutton, the motive they gave was 'this summons of Russell's, which was oppressing some of [Tareha's] old people very much'. But that was not the whole story. According to Russell, Sutton told him that 'the Natives wished to raise some £500 for a large feast, and that you would not undertake to supply the goods for it unless they gave you some money. That they had put Waitanoa into your hands for sale, to raise money for that purpose'. Sutton himself conceded that 'the Natives were in my debt'. He had also, according to Tareha, long since involved himself actively in their legal defence: Mr Sutton said I had better look for a lawyer. Mr Sutton and I looked for a lawyer and found him - Mr Cuff... Sutton asked me to give him some authority respecting Russell's case; to give it over to him, and the lawyers commenced contending in the action, and I remained quiet. After that Mr Sutton informed me what was going on. Thus when the offer to sell Waitanoa came in, both Pakeha were active players with temporarily coinciding interests, Sutton to recover debts, sell more goods and possibly eam a sale commission, Russell to turn the lease into freehold so as to complete his portfolio of purchases in the Papakura block for Aikman. Sutton knew immediately where to take the offer and Russell responded overnight with a concrete proposal. The two disputed before the commission the terms ofthe agency, Russell claiming that he saw Sutton as acting for Tareha and Sutton asserting that Russell 'asked me if I would undertake the negotiation on his behalf. Nonetheless, it is apparent from their testimonies that both parties saw advantage in concealing that fact that Russell was the prospective purchaser. Sutton also kept Tareha' s lawyer, Cuff, whom he had helped to engage and with whom he acted as an intennediary on behalf of Tareha, completely in the dark until the sale was concluded. Thus when Tareha entered the negotiations, he believed it was Sutton that he was dealing with and the deed he signed was with Sutton: Wai 168: Waitanoa Page 28 Mr Sutton ... asked me to let him have Waitanoa. I had a conversation with him about his request that I should let him have the land ... After this Mr Sutton paid myself and my hapu some money; the amount was £250. I was not aware that money was Mr Henry Russell's. Tareha discovered the truth when he soon found Russell's employees barring access to the Waitanoa bush for collecting firewood. After getting the specific assurance of Russell's solicitor, Wilson, Sutton had 'assured Tareha that the timber would not be conveyed or included in the deed'. But there was no exclusion in the deed. Sutton wrote to Russell in Wellington on Tareha's behalf; later, he spoke to him upon his return, and requested him to carry out the arrangement I had made on his behalf. This he declined to do, and said he would not allow the Natives that privilege; that he had, to use his own expression, "paid through the nose for the block". Russell's refusal led Sutton to demand that Russell agree to cover him against any possible later claims by the former owners ofWaitanoa. Only when Russell signed a deed of indemnity did Sutton complete a deed, dated 16 December 1867, conveying Waitanoa to Russell's employer, Aikman. Russell's evasive answers before the commission were less than convincing and led to a pointed intervention from the chairman, Je Richmond. In the heat of the scapegoating between Sutton and Russell, no-one followed up a more fundamental point raised by Tareha, that he understood the agreement to be a lease, not a sale. On this point Tareha was categorical: Sutton said, Enough for me is what is growing on it - the grass. It was a lease Mr Sutton wanted. He said, The land will remain with you, the trees and the firewood. I agreed to that. Although not produced before the commission, all the Pakeha witnesses agreed that the deed was a conveyance. If so, why did Tareha sign it?[65] The most likely explanation is that he was not made fully aware of its contents. Sutton had sole personal charge of the negotiations, which according to him lasted 'several hours'. They ended, according to Sutton, with Tareha pressing his concern about access to firewood and Sutton securing an undertaking from Wilson. Each 65 In the absence of the original documents and of any reference in the testimony, it is not known whether Wi Maiaia also signed the conveyance. All the Pakeha witnesses spoke as though Tareha were the sole party. If Maiaia did not in fact sign, the deed would have conveyed only Tareha's interest in the land. Wai 168: Waitanoa Page 29 party may have come away with differing understandings as to exactly what had been agreed. Since Sutton took care to exclude Tareha's solicitor while Russell's solicitor dealt directly with Tareha,l66] it is possible that the deed itself was not fully explained to Tareha, or perhaps even translated, before he signed it. Tareha's description of the negotiations with Sutton emphasised that the initiative came from Sutton and that it was the 'grass' he asked for. Tareha seems to have understood the terms partly as a favour to Sutton, to whom he may have felt indebted for services rendered in his legal case as well as for trade goods, and partly as a one-off payment of 'grass money' in the style of the informal Heretalmga plains leases of the early 1860s. The lease and sale of this small block of land had several of the features typical of private land sales in Hawke's Bay during the late 1860s - traders exploiting the indebtedness of their Maori clients, the pressure upon rangatira to raise cash to finance their leadership responsibilities, apparent collusion between Pakeha purchasers, agents and professionals in fixing the terms of a deal to their advantage, and in particular the complete absence of any protective administrative and judicial mechanism to ensure full understanding, due process and fair dealing. While this series of transactions was not beset by the more sordid practices described by witnesses before the 1873 Commission, it carried undertones of duress, deception and financial inducement. The sale ofWaitanoa involved far more than the loss of personal landed property. The Waitanoa bush was a key resource for local Maori, especially Tareha's Pawhakairo community living about 3 km distant. As Richmond's report put it, 'the natives living in Tareha's pa depended upon it for their supply of firewood, there being no other bush at hand'. It comprised 'a small kahikatea bush. At the time ofMr Russell's purchase, Waitanoa contained some good trees, together with a quantity of dead timber'.[67] According to Miller, who leased both Waitanoa and adjacent sections, 'it was mostly composed of pine trees (white pine) ... living and dead, a number were dead standing ... I know of no other bush near where Tareha's people could go for firewood'.[68] The Waitanoa bush was in active community use. According to Miller, 'whilst I had the land the Natives used to come every other day for firewood - Tareha's people ... When I was there, there 66 Implied by the following exchange between Sutton and Russell: 'Did you not instruct Mr Wilson to take the conveyance from Tareha to me? - I do not recollect giving any such instructions to Mr Wilson'. 67 Lands Alienation Commission 1873, Reports by Chairman of Commission ... , p 11. AJHR 1873 0-7. 68 Lands Alienation Commission 1873, Minutes of Evidence, p 8. AJHR 1873 0-7. I ! Wai 168: Waitanoa Page 32 Tareha and Russell appears less than conclusive on that point, suggesting that neither party saw the negotiations as completed. [75] The £20 advance seems to have been thrown at Tareha, who did not mention it as part of his verbal agreement with Russell. Richmond conceded that the lawsuit may have been 'tec1mically groundless', presumably in view of the lack of a properly completed deed oflease. Russell's summons, and his persistence with the case, dragged Tareha into the obscure and expensive arena of Pakeha civil litigation, which Tareha's kaumatua certainly indicated to Sutton that they found oppressive. Second, Richmond rejected the charge of 'unfair pressure', concluding that just because the legal action resulted in the sale did not prove that Russell intended that result. This conclusion was at the least disingenuous. His main argument was that Russell did not approach Sutton until the latter conveyed an apparent offer of sale. However, Russell had good reason not to, believing that Sutton was working for Tareha - Sutton was, by his own account, intimately involved in organising Tareha's legal defence against Russell's summons. It is difficult to believe that Russell could not perceive the extra leverage a lawsuit would afford while pressing for a sale. He had, after all, his own land purchase agent, Hamlin, and had already made a purchase offer and rejected the owner's price as too high. Third, Richmond conceded that 'we have felt some difficulty in regard to that part of the charge which represents the consideration paid for the freehold as grossly inadequate' . A price of £250 for land let at £120 per annum was on the face of it very low. However, Richmond considered that the rental was grossly inflated. He did not say why, and the weight of testimony given did not support his conc1usionP6] Tareha had asked for £200 a year, reluctantly agreed to £120, then accepted Miller and Lindsay's offer of £160. Miller gave the average rentals of the adjacent Papakura sections he leased as '£1 or £1 12s 6d per acre'. Russell paid rents for Aikman's sections of 'from £1 to 30s per acre, and probably one or two sections a little more'. For the 94- acre area ofWaitanoa, these figures suggest a likely rental return of between £95 and £150 a year. Russell's offer of £120 was thus squarely in the middle ofthe range. In any case, Richmond endorsed Russell's argument that he had, in effect, already paid a fair price for the land. He estimated, firstly, that a fair valuation ofWaitanoa was about £5-6 per acre 75 Lands Alienation Commission 1873, Minutes of Evidence, pp 7-10. AJHR 1873 0-7. 76 Lands Alienation Commission 1873, Minutes of Evidence, pp 7-9. AJHR 1873 0-7. Wai 168: Waitanoa Page 33 and thus £450-550. The provincial government's purchase ofPapakura for £9,500 in the same month as the Waitanoa sale gave a unit price of £2 16s 6d per acre. The market price was, however, rather higher. Miller testified that he purchased land at a government valuation of £4 lOs to £5 per acre, Russell that he had paid between £3 and £5 per acre. Miller added that 'neighbouring land was bought of the Natives at £ 1 0 per acre' y7J Richmond's figure for a 'fair valuation' appears to have been close to the market value of neighbouring land. He then agreed that Russell has actually paid as much, and more, for the land. He contends that he is entitled to consider the sums paid to Miller and Lindsay, and their tenant, as part of his purchase-money. These sums, he argues, but for Tareha's breach of contract would have been paid to the Natives themselves. This view has at least a sufficient semblance of reason to relieve the case of the aspect of an unconscientious bargain. Those sums amounted to a little over £250, which when added to the £250 he paid Tareha through Sutton and the settling of Tareha's legal expenses would have brought the total to somewhere between £500 and £550. But Tareha actually received only £250. In effect, Tareha was forced to make an out of court settlement for Russell's cost of buying the lease, a commercial transaction from which Russell's employer, Aikman, would realise the future profits and not T areha. Finally, Richmond conceded that the legal action was 'compromised behind the back of Tareha's solicitor' and that 'this was, no doubt, irregular'. He argued, however, that the solicitor's assent would have seemed 'a matter of course' given that the action was to be withdrawn with his expenses paid; further, that 'it would not readily have occurred to Sutton that the solicitor could have anything to say to the terms of sale'. Richmond concluded: 'On the whole, we give no weight to this objection'. This is, once again, tendentious reasoning. Sutton had, by Tareha's account, run Tareha's legal defence; he was in control. During his negotiation of the sale with Tareha, the firewood issue required amendment of the draft deed document. The yawning gap between Tareha's understanding of the terms and that of Sutton indicated a clear need for professional legal advice. Sutton's sidelining of Tareha's solicitor was largely responsible for the 77 Lands Alienation Commission 1873, Minutes of Evidence, pp 8-9. AJHR 1873 0-7. He may have been referring to a sale at nearby Pakowhai by Karaitiana. Reports by Chairman of Commission ... , p.2. Wai 168: Waitanoa Page 34 fact that Tareha apparently received no such advice either on settling the court action or on framing the terms of sale. It was not difficult for the Pakeha commissioners to admit the first ground of complaint, the reservation of the timber from the sale, as 'well founded', since Russell conceded the point. On the second, the use of 'unfair pressure' to force a sale for a 'grossly inadequate consideration', they were at some pains to argue that the case 'has not been established'. On the status of the transaction itself, they remained silent. [78] 3.4 Later Patterns of Land Ownership and Use The final outcome of the 1873 Commission's consideration of Tareha's complaint remains obscure. On the reservation of timber from the conveyance, Richmond reported that 'a verbal undertaking was given that the error should be promptly rectified, or that compensation should be made'. Hikairo stated that 'Mr Russell has agreed to execute a deed under which the trees and firewood will pass into the possession of the complainant'. [79] But Russell was a reluctant cooperator. The tone of his testimony suggested that his stance had changed little since 1867, when he flatly rejected the reservation of timber rights. His concern was less with the commercial worth of the timber, which he considered oflittle value, as with the administration of access: 'My objection was more to the continual annoyance than from any value I attached to the firewood'. It was only his solicitor's admission before the Commission, confirming the verbal agreement with Tareha, that induced him to concede: 'Had Mr Wilson stated to me what he did in Court yesterday I should have admitted Tareha's claim'. [80] It is likely that if he did in fact meet his undertaking, Russell opted for compensation as there is no trace in subsequent official records of any Maori resumption of rights to Waitanoa. Nor does it appear in any of the lists of reserves. There is also no indication of later protest in official files or through petitioning of parliament from Tareha himself during the remaining nine years of his life or from his successors. Even if Russell did not pay compensation, Tareha and the Waiohiki community may have seen little point in further protest given that they had been forced to tum 78 Lands Alienation Commission 1873, Reports by Chairman of Commission ... , p 12. AJHR 1873 0-7. 79 Lands Alienation Commission 1873, Reports by Chairman of Commission ... , pp 11,57. AJHR 1873 0-7. 80 Lands Alienation Commission 1873, Minutes of Evidence, pp 8,10. AJHR 1873 0-7. Wai 168: Waitanoa Page 37 4. Conclusions The Waitanoa bush, although small, was an important resource for nearby Maori communities, especially for firewood. Its significance increased during the 1850s and early 1860s as the settlement at Waiohiki and Tareha's new kainga Pawhakairo gained greater economic and political prominence. There were no alternative wood resources within reach and evidence before the 1873 Native Lands Alienation Commission confirmed that the bush was still in active community use at the time of its sale in August 1867. The ultimate fate of Waitanoa was bound up with much larger movements and forces. Its increased importance as a resource derived in part from the effort by Maori communities on the Heretaunga plains to translate the promises of prosperity through partnership made at the time of the 1851 Ahuriri Crown purchase into practical reality. This commitment was expressed in part through the construction at Waiohiki of an elaborate new settlement, the expansion of cultivation and the investment in a grain mill, positioned close to the Napier urban market and adjoining the land sold for Pakeha settlement. By the early 1860s, the partnership vision had turned sour. Maori leaders' united resistance to further land sales on the Heretaunga plains collided with growing settler pressure on the provincial government to acquire land for agriculture and small farms. Superintendent McLean attempted to unlock the plains by pushing instead for long-term leases to the provincial government of large blocks, which could then be subdivided and sublet to settlers. Eventually, in mid-1865 he finalised the leases of the first two blocks, Hikutoto and Papakura. The latter enclosed the Waitanoa bush and brought the edge ofPakeha rural settlement up to the outskirts of Pawhakairo. Whether the deed formally reserved Waitanoa from the lease is obscure since the text does not make explicit provision for such a reservation. The designation of Waitanoa as a 'Native Reserve' on the diagram indicates, however, that this was the owners' intention. The deficiency in the text was only corrected in the second deed of sale in October 1867. The 1865 Papakura lease was an inclusive transaction which 67 Maori owners, headed by Tareha, signed on behalf of themselves and other whanau members. The land was still in customary Wai 168: Waitanoa Page 38 Maori ownership. However, the enactment of the 1865 Native Lands Act resulted in title passing absolutely to just two grantees, Tareha and Ngamaiaia, at the first sitting of the Native Land Court in March 1866. Although the vesting of Tareha in particular was clearly supported in his leadership role as a senior rangatira, the unrestricted fee simple status of his title made no provision at all for the trusteeship obligations of his collective functions. While the conduct and outcome of the Land Court sitting appear less than satisfactory, the principal defect was in the legislation, a defect exacerbated by the seeming failure of Judge Smith, in the first case to be heard before the Native Land Court in Hawke's Bay, to explain the implications of fee simple title to hapu members who believed that they were putting their representatives into the title. The title to Papakura included Waitanoa. As settlers moved rapidly onto adjacent farming sections during 1866, Tareha came under pressure to lease Waitanoa as well. Having agreed verbally on rental with Henry Russell, he instead leased the land to William Miller. The deciding factor seems to have been that Russell would not allow access to the bush for firewood whereas Miller would. Russell's lawsuit against Tareha intensified other pressures on him to sell land, notably accumulated debt and lack of sufficient cash income to meet his leadership commitments. Finally, in August 1867 the trader Frederick Sutton collaborated with Russell to broker a sale, using underhand methods such as the concealment of the true purchaser's identity and the exclusion of Tareha's solicitor. Tareha's understanding of the deal- that he had done no more than lease the 'grass' to Sutton at the latter's request, retaining the community's firewood resource - differed radically from that of his Pakeha counterparts operating within the ideological and legal domain of fee simple property title. The colonial statutory law that opened up private purchasing of Maori land afforded at the time no protection from the use of unscrupulous methods by would-be Pakeha purchasers. At the 1873 Commission of Inquiry, the Pakeha commissioners rejected the allegation of an unfair sale - on which the Maori commissioners did not comment - in a superficial review of the evidence that was friendly to the Pakeha protagonists and took little account of the evidence of Tareha. In particular, they ignored Tareha's claim that he had believed the alienation to be a 'grass' lease and not a land sale; they took an arbitrary view that put 'true letting value' far lower than the comparable market values and expert opinion given in evidence; and they more than Wai 168: Waitanoa Page 39 halved the price to which they believed the owners were entitled by allowing Russell's full costs in buying out the earlier lease. However, the Pakeha commissioners found in favour of Tareha on the exclusion ofthe bush from the sale. Russell had rejected Tareha's attempts to retain access to the bush in 1867, but apparently relented when exposed by his own solicitor before the Commission. The outcome is not known, but it appears that no formal agreement on access was made and Waitanoa remained outside the legal and administrative regime of Maori reserve land. Possibly Russell took the alternative option of compensation as there is no record of further protest, through petitioning or correspondence, by Tareha or his descendants over the loss ofWaitanoa. Wai 168: Waitanoa Page 42 O'Malley, Vincent, The Ahuriri Purchase, (Crown Forest Rental Trust, 1995. ROD nO). Pewhairangi, Roy, Report on the Waiohiki land claim, May 1996 (ROD J35). Phillipson, Grant, Alan Ward, Michael Harman & Helen Walter, Historical report on the Ngati Kahungunu rohe, (CrownJCongress Joint Working Party, 1993). Wilson, JG et aI, History of Hawke's Bay, (Wellington: AH & A W Reed, 1939). Maps and Plans Untitled district cadastral plan by Williams, 1890, LINZ Na; Plan shewing Native Reserves in Hawke's Bay, AJHR 1901, [??]. Plan of the Napier Country Districts ... , James Rochfort, LINZ Na & Map 5001, HBM. Plan of Papakura between Tareha's Bridge and Pawhakairo and Papakura District and Roads, both undated but annotated as 1880, Maps 5151 & 5180, HBM. Plan to accompany returns dated July 11 1873, Map 5365, HBM. Untitled, Map 5678, HBM. Annotated on the reverse side 'Heretaunga Plains' and '1865'. / V1?fQ, c11 'f I DUPUCATE OFFICIAL l-@,,-- 1-,... _ J , , , I i~~~/4ts \ I .. · l '.' : : .... .:tF- 3' -4- ~c..: \ t, ~ ~ ..3. J4- ~ 2.0\ WAITANGI TRIBUNAL CONCERNING Wai 168 the Treaty of Waitangi Act 1975 The Waiohiki Lands Claim MEMORANDUM-DIRECTIONS COMMISSIONING RESEARCH 1 Pursuant to clause 5A of the second schedule of the Treaty ofWaitangi Act 1975, the Tribunal commissions Richard Moorsom, a member of the Tribunal's research staff, to complete a report on issues relating to the Wai 168 Waitanoa grievance. The report should include the following: (a) an assessment of the circumstances through which the area described as Waitanoa passed from Maori customary ownership into private European ownership; (b) a description of the conditions of any sale or lease of Waitanoa and an analysis of whether the conditions were met, particularly in relation to timber-cutting rights; (c) an assessment of the extent of any loss to the Maori owners of the land and resources on Waitanoa; (d) a record of any complaint made by Maori at the time or later in relation to Waitanoa . 2 This commission will end on 14 August 1998, at which time the commissionee is to provide to the Tribunal a copy of the report in unbound form and an electronic copy on diskette. 3 The report may be received as evidence and the writer of the report may be cross-examined on the information contained within it. .. '. 4 The Registrar is to send copies ofthis direction to: Richard Moorsom Counsel for Wai 168 Wai 168 claimants Counsel in Mohaka ki Ahuriri Inquiry Solicitor-General, Crown Law Office Director, Office of Treaty Settlements Secretary, Crown Forestry Rental Trust Director, Te Puni Kokiri Dated ~ Gisbome, this q tt... day of July 1998 w .lv.-- . Judge W W Isaac Presiding Officer WAITANGI TRIBUNAL 2 3 . (b) that when the Crown was an owner of part of the former Waitanoa b~ock, and being aware of this claim or alternatively its Treaty obligations towards the local tangata whenua, a failure by the Crown to have the same said part returned to the claimants. " CHARL HIRSCHFELD Counsel for the'Claimants TO: The Registrar, The Waitangi Tribunal AND TO: Counsel for the Crown . .' ............ -------------------------------------------------------------------- Appendix 3. Maps, Plans and Figures '.. Map 3a. Representation ofWaitanoa in Crown Deeds: Lease, 20 July 1865 > i-" ")", "\~t~:,r) ....... __ .~, _., _n.'_· _\-:., . ..,. .,. .', .( \ I' I- I I ,:':~r~ .-l, 'L, -,:..,-'i;;'.'r~f~hl;.:;:~.· .•. ,:".~!:.~.'.: .. ,. :~::~---~- . ':~ , ' ,,~ "~"~'\C • '{ \ I. I' " f' -i' . ~: ~ ~~~--?'f'. ~~:';,"\t ~ /:. I /. r_ A -,;~~~~.~£~ (/..; A- -~.'._~ _L."" Lo, __ .h"'-"'n •. k'-1:r.:N>v'~ .;;t') Map 3d. Representation ofWaitanoa in Crown Deeds: Conveyance, 17 March 1868 ~/ .. .~ '" .'<~- '-. -;. .,. I . ~~-~~ C/ .... ~..J2.-'( ..... "1./1 &,;.-:>."'l.; .... It; ;::,; ~~ ~ " . . " \-\ ~ I i .... : I ;,i: ---::::1 ... . .,o......::.~:;'- ;;:..:-/-.-~"!"/ .. ? i N'~ pap;/uTa ~ .. cB363-o (). . ./ .v ". ;.: i / " { ~. 0-/6 C'-1.-"":) ~ (~~6~?' ~ ~ -:/ 'tr;~' t"'/A.A., ,\ \' I~ .- 3\ Map 4. Te Whanganui a Orotu and Heretaunga Plains, 1852 '7 -"- , , .. _-.. _--...... • } / ~ _~~11 \ .I / r "_ ·1 "'\. ".' ........ _- .-......... . ~ ~t';J.,.~l'Ililrll,.j~ A - , ~ 1).~"~~ ]J-~.--&. ,- "lin.AI ..- , 7~.n,i Ju:r~ • .... - , A HURIRI ""I OCK (a.D~uJ; ~S;ooo ," -.;. ~: \. -'" .... o / " ' ", "\,.'''1-'", _ I. • I;~., ,;, Map 5. Waiohiki, Papakura and Waitanoa, approx. mid 1860s . I l .. ;,.} I~. 10 '11, 0 , II 1- - -- 4J BI0sz 7.94,0,0 N? 4 OR B HE RETAUNGA 3508, 2, 3011 fl «!f7 NH30RC I I o~ikj 1 , WAIOHIKI NATIVE LAND I --t- IKAKAREWA 1+++, 01, 0 I I --+ i:lll ~ n~ ~ ~ "'0 !Xl ~ ~ .... o =-f. ""d ~ "'0 ~ 8' '"! ~ ~ 1:1 Q.. ~ ~ .... ..... ~ 1:1 o ~ I-" QO I,C = ~ ) r· i st ;e l])Ot1 h ~ u'is ~ • I, urnt \1 :0 It.:n oyOO 11 ' . v!'.c S ) ,the II re I osed 'I'rd q ~ trees il~' v ... id It the j! ~ 'r t:lil h:c\t)J ! If 1 ci trO)'J rL~ ?d If Map 9. Forested Land in Hawke's Bay, c 1840 T24 --" , I • I , , "'''- V23 V24 "w_ I _ .., .. , ... W20 X20 W21 mllp 3: Pits lInd mounds Recorded Pits and Mounds Area of Forest in 1840 Scale: 0'-1 _1 ..... 0_2 ..... 0_3-1? km 129 P.J. Grant, 1996, Hawke's Bay Forests of Yesterday IV ... I C .... , G ..... v t. '--' 'r"" L \,.' .... HAWKE'S BAY MUSEUM - Hhurlll plaIns ~ Harbour Wow I<.e~ -& \j , 1~-4L. No. __ .. __ IT , •• ..--.. ~.-.------"-. Neg ..................................................... _ .... - ({l?C~~~~L:::l ',';<,'1 ~2~-7')C"3~.~ev... ~:t"ct ,:~'\<; \,(' 2 ........ f{~ ';"" \...) v..... O...c:. \, 'C" ;Ii·, ;:.. ',.{ i\J 0.,-" (ci 9/1 . ~ , " .:: . .' NOT TO BE REPRODUCt:D 'WITHouT •• :, PERMISSiON FROM THE NATioNAL' . tlBRARY ,OF AUSTRAL.IA I , :'- ~ .... (J'l = '"I ~ :- =: ~ '"I ~ ...... ~ = == (J'l ~ "'C -~ .... == !f1 .... co Ul ..... 'i ~ ...... ~ '"I ~ 0 -0 = '"I "Cl ~ '- sr ...... .... == e Figure 4. Coastal Heretaunga Plains South of Napier, 1871 (photograph) " I t.) ~ l -' (~'v )-- ) .,., ~ -c1 ,,' "",,' . ,( c, • , J: -~\ ./ ~r.;l '~~) -.. 7' ;. 'j ;) rl: ; : c, ---: :J ) : ~ ') 0: ': .....; -. ~i. (-. ~. ~: ~ .,..... n c· '. ~ ;:;1 ~~ ~ v .. r;:;l q,) ~ ~ +.) .:-,-.1 t~ ~ -+-, ~ ~ '.' ~ Z ,:~ [,~ G) ~ >- ....si < <!j --~: CQ '7",-= , : V1 <=[j <).~L : ~ : r~,J ----;. ., : I .<j I N 1"-- q) ; ,q I 4 H ,"'j Figure 5. Hui at Pawhakairo, ?1863 (engraving) ;0 ,;;, l ,," 5- '3 P.. e: - n' ~ , ~ --' -3 "" 'J ,::5 ,-.£j c'-. -, oJ- J l ~ ~ '-'<J '-~ <.1 ,n "{' : 5 '" ,: ~ ... .j) i~ ~ ,!; "" IJ l : · ;) -A , . ~'\ .. IV'i ' ; a> ' ~.:,....-: D ~. m \' ~: (. .. ~1 J~ ,I) ~ 11 ~ .... ~ i ~ .~ ~ boO ~ Z ~ ~ ~ ~ ~: · · '1 · ~ J'! ~ • :---..;. <::l: 'l ~ '-.:>: y .~ ~: - ~ · ~~~ i J · .. ~ Q) S :c § J " •• 1~ Figure 6. Hui at Pawhakairo, 1865 (photograph) / '" L~ C j " '1:: ') ,/ 'j; - ~ ~ t- " '--. --l - .J cD c.( ,'- (;) 't L ~ '; i Ji '-- --: -.s>: 'i --- : Yi ~ · i · 'S(: · --; . -~ ~ . 4 ~ · ~ .~ --. " " ~ CI..l '~: ~ .1 ... ..... cu .' :''..,.., b.O i c Z ~ t'Il i ~i !n: ~ \D: ~ \J(j rtl \; ~i ~ \.): ~ j : j f (" ~