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Wai 215 #52

A Comparative Study of Public Works Takings in the Tauranga Moana Inquiry District

Wendy Hart

August 2006

A research report commissioned by the Waitangi Tribunal

CONTENTS

ACKN"OWLEDGEMENTS .............................. ,', ............................... " ... , ... " .................. ",.6

CHAPTER ONE: INTRODUCTION ..... , .......................................................... , ............... 7

I.I.PERSONAL ................................................................................................................................................... 7 1.2. THE CLAIMS ............................................................................................................................................... 7 1.3. THE REPORT .............................................................................................................................................. 7

1.3.1 Backgt:ound to the Tauranga Moana inquiry .......................................................................................... 7 1.3.2 Purpose of Report ................................................................................................................................ 9 1.3.3 Structure ............................................................................................................................................... 9

1.4. METHODOLGY ........................................................................................................................................ 10

CHAPTER TWO: OVERVIEW ............................................................ , .. "" ........ " ..... , .. ".12

2.1.PUBLIC WORKS LEGISLATION AND HISTORY 1840-1928 ............................................................... 12 2.2 PUBLIC WORKS LEGISLATION AND HISTORY 1928-1981 ............................................................... 14

2.2.1 Acquisition by Agt:eement ................................................................................................................... 14 2.2.2 Notification ........................................................................................................................................ 14 2.2.3 Compensation .................................................................................................................................... 15 . 2.2.4 Offer Back and Disposal ..................................................................................................................... 15

2.3. NOTE ON THE MINISTRY OF WORKS ................................................................................................. 17 2.4. GENERAL AND MAORI LAND IN PUBLIC WORKS LEGISLATION ............................................... 17 2.5. PUBLIC WORKS TAKINGS IN THE TAURANGA INQUIRY DISTRICT ........................................... 18

CHAPTER THREE: TAURANGA- MOUNT MAUNGANUI TRANSMISSION LINE ............................................................ , ............................... "." ....................... "., ................. 23

3.1. INTRODUCTION ...................................................................................................................................... 23 . . 3.2. MAORI LAND AFFECTED BY TRANSMISSION LINES ..................................................................... 23 3.3.GENERAL LAND AFFECTED BY TRANSMISSION LINES ................................................................. 27 3.4 CONCLUSIONS ......................................................................................................................................... 30

CHAPTER FOUR: TAURANGAMRPORT ................................................................... 31

4.1. INTRODUCTION ...................................................................................................................................... 31 4.2 OVERVIEW ................................................................................................................................................ 33 4.3 LAND TAKEN UNDER PROCLAMATION 10182 .................................................................................. 36 4.4. GENERAL LAND TAKEN 1935-1945 ..................................................................................................... 37 4.5. LAND TAKEN FOR AIRPORT REMOTE RECEIVING STATION .................................................... .43 4.6. LAND TAKEN FOR AIRPORT EXTENSION AND HEIGHT RESTRICTIONS c1957-1962 .............. 43 4.7. EPILOGUE ................................................................................................................................................ .48 4.8. CONCLUSIONS ......................................................................................................................................... 50

CHAPTER FIVE: PORT OF TAURANGA ...................................................................... 52

5.1. INTRODUCTION ...................................................................................................................................... 52 5.2. MAORI LAND TAKEN FOR 'BETTER UTILISATION' AND THE PORT OF T AURANGA ............. 56 5.3. COMPENSATION FOR MAORI LAND .................................................................................................. 60 5.4. GENERAL LAND TAKEN FOR 'BETTER UTILISATION' AND THE PORT OF TAURANGA ....... 61 5.5. LAND TAKEN FOR A LIMITED ACCESS ROAD ................................................................................. 70 5.6. EPILOGUE ................................................................................................................................................. 75 5.7. CONCLUSIONS ......................................................................................................................................... 77

CHAPTER SIX: HYDRO-ELECTRICITY ...................................................................... 79

6.1. INTRODUCTION ...................................................................................................................................... 79 6.2. MAORI LAND TAKEN FOR HYDRO-ELECTRICITY .......................................................................... 8 2 6.3. GENERAL LAND TAKEN FOR HYDRO-ELECTRICITY ..................................................................... 88

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6.3.1. Acquisition of land from W Ormsby .................................................................................................. 88 6.3.2. Acquisition of land from A R Scott .................................................................................................... 90 6.3.3. Acquisition of land from H T Marshall .............................................................................................. 93 6.3.4. Acquisition of land from P P and S A Jensen ..................................................................................... 97 6.3.5. Acquisition of land from Mrs Cottew ................................................................................................. 97 6.3.6. Acquisition of land from G W Dyer ................................................................................................... 99 6.3.7. Acquisition of land from A P Jensen ................................................................................................ 100

6.4. EPILOGUE ............................................................................................................................................... 102 6.5. CONCLUSIONS ....................................................................................................................................... 105

CHAPTER SEVEN: CONCLUSION ............................................................................. 106

BIBLIOGRAPHY ............................ " ........... , ........... , ............... , ........ , ................... , ...... t ••• 108

UNPUBLISHED SOURCES ........................................................................................................................... 108 PRIMARY SOURCES ........................................................................................................................................... 108 SECONDARY SOURCES ...................................................................................................................................... 114

PUBLISHED SOURCES ................................................................................................................................. 116

APPENDIX 1: DIRECTION COMMISSIONING RESEARCH ................................... 118

APPENDIX 2: SELECTED ISSUES AND TAKINGS IDENTIFIED BY CLAIMANTS ............................................................................................................. , .............................. 119

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.' ... ::. ".;.: .. :.~ .. -~---.-~

Maps

MAP 1: TAURANGA MOANA INQUIRY DISTRICT BOUNDARy ............................................... 8

MAP 2: LOCATION OF KAITIMAKO AND OHAUITI BLOCKS ................................................ 25

MAP 3: LAND TAKEN FOR TAURANGA-MOUNT MAUNGANUI TRANSMISSION LINE ............ 26

MAP 4: LAND TAKEN FOR AIRPORT PURPOSES ................................................................. 32

MAP 5: WlIAREROA ......... , •.• " .. ,',.,.,., .... ,.,.,.". ,., .. , .. , .• ,',., ............... "., .... ,., ... , .. ,." •. , •..• ,.,'" ., .. 34

MAP 6: TAURANGAAIRPORT C1950 ................................................................................. 42

MAP 7: PORT OF TAURANGA 1928 ....... ;-............................................................................. 53

MAP 8: TAURANGA HARBOUR IN RELATION TO TAURANGA COUNTY ............................... 55

MAP 9: PORT OF TAURANGA 1950 ..................................................................................... 59

MAP 10: PORT OF TAURANGA 1970 .................................................................................... 76

MAP 11: LOCATION OF POWERHOUSES IN WAIROA RIVER CATCHMENT AREA .................. 80

MAP 12: WAIROA RIVER SYSTEM HYDRO-ELECTRIC POWER DEVELOPMENT .................... 81

MAP 13: NGAMANAWA LANDS 1965-1971 .............................................................................. 84

. . MAP 14 : LOTS 1-3 (PART ALLOTMENTS 475 AND 703) TE PAPA PARISH, 1982 .......................... 98

MAP 15: LAND AFFECTED BY RUAHIHI HYDRO-ELECTRIC SCHEME ................................. 103

MAP 16: LAND AFFECTED BY RUAHIH HYDRO-ELECTRIC SCHEME .................................. .104

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Figures

FIGURE 1: LAND AFFECTED BY PROCLAMATION 24 JUNE 1954 ........................................... 27

FIGURE 2: WHAREROA OWNERSHIP ............................................................................... 35

FIGURE 3: PROCLAMATION 10182 TAKINGS ...................................................................... 37

FIGURE 4: OWNERSHIP OF TAURANGAAIRPORT LAND ................................................... 49

FIGURE 5: LAND IN MAORI OWNERSHIP AT SEPTEMBER 1952 .......................................... 58

FIGURE 6: LAND TAKEN FOR BETTER UTILISATION/PORT OF TAURANGA ...................... 66

FIGURE 7: SCHEDULE OF PAYMENTS FOR TAURANGA PORT DEVELOPMENT .................. 68

FIGURE 8: COMPARATIVE SCHEDULE OF COMPENSATION .............................................. 69

FIGURE 9: LAND TAKEN FOR LIMITED ACCESS ROAD ...................................................... 72

FIGURE 10: TOTAL AREA OF MAORI LAND ACQUIRED BY THE TAURANGAJOINT GENERATION SCHEME ................................................................................................. 83

FIGURE 11: LANDS TAKEN AND ACTION COMPLETE AT 15 JANUARY 1982 ............................ 86

FIGURE 12: LANDS TAKEN AND ACTION NOT COMPLETE AT 15 JANUARY 1982 .................... 87

FIGURE 13: LANDS ACQUIRED MCLARENS FALLS FROM CITY COUNCIL AT 15 JANUARY 1982 ............................................................................................................................... 88

. . FIGURE 14: LANDS FREELY PURCHASED ......................................................................... 88

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Acknowledgements

I would like to thank all the people who assisted me in the production of this report. Thank you to all the staff at the Waitangi Tribunal, particularly Adam Heinz, James Mitchell, Tim Shoebridge, Andrew Gregg, Barry Rigby, Leanne Boulton, Jamie Mitchell, Beth Janes and Tina Mihaere. Furthermore, special thanks go to the records staff at the Tauranga City Council and Western Bay of Plenty Regional Council. Thank you to Max Oulton for providing maps. Thank you to staff at the Wellington and Auckland branches of Archives New Zealand for their practical assistance. The expertise of the staff of the New Zealand Room, at the Tauranga City Public Library also proved invaluable.

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Chapter One: Introduction

1.1. PERSONAL

Wendy Hart is a Research Officer with the Waitangi Tribunal, she commenced work with the Tribunal in 2005. She has a Master of Arts in History and a Bachelor of Arts with Honours in History from Victoria University. She has undertaken research and report-writing assistance for the Hauraki, Central North Island and Urewera inquiries.

1.2. THE CLAIMS

A number of statements of claim have been examined to identify suitable case studies. A summary of selected claims is provided in Appendix Two of this report. Statements of Claim, include the following: Wai 42(c), Wai 211, Wai 215, Wai 255, Wai 228, Wai 266, Wai 336, Wai 342, Wai 362, Wai 522, Wai 664, Wai 668, Wai 715, Wai 717, Wai 854, Wai 938, Wai 540, Wai 1226.

1.3. THE REPORT

1.3.1 Background to the Tauranga Moana inquiry

The Tauranga Moana inquiry district is limited to the boundary established in the Tauranga District Lands Act, 1868. This extends from Athenree to Papamoa (north to south), and from the coast to the Kaimai Ranges (east to west). The district also includes the offshore islands Motiti and Tuhua (Mayor). In August 2000, it was decided to split the inquiry into two stages. Stage One would be limited to the war and land confiscation issues up to 1886. Stage Two would focus on post-1886 events through the twentieth century. The Tribunal's Stage One report, Te Raupatu 0

Tauranga Moana, was published in August 2004. The Tribunal has proceeded with a supplementary Stage Two inquiry in 2006.

In February 2006, Professor Michael Belgrave reviewed the casebook for Stage Two of the Tauranga inquiry. He raised the possibility of a comparative study of public works takings within the Tauranga Moana inquiry district.!

J Michael Belgrave, 'Tauranga Stage 2 Casebook Review', February 2006 (Wai 215, paper 2.457)

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, , (Mayor Island) \ , , , ,

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MAP 1: TAURANGA MOANA INQUIRY DISTRICT BOUNDARY

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1.3.2 Purpose of Report

The purpose of this report is to compare and contrast any substantial differences in process or consultation between the taking of Maori and general land under public works legislation, within the Tauranga Moana inquiry district.

Professor Belgrave noted that:

A key issue in almost all the public works reports is the impact of a dual system for taking land depending on whether the land was Maori or general land. Most of the research reports identify failures to consult with owners, the inability to negotiate with taking authorities, the alleged targeting of Maori land and long and difficult negotiations between the Maori Trustee, on the owners' behalf, and taking authorities such as the Ministry of Works, as major grievances. It would greatly assist the inquiry if research was available providing comparative information on public works takings of non-Maori land where both Maori and non-Maori land was taken for key development projects. Were non-Maori able to modify public works proposals prior to takings? Were non-Maori able to negotiate compensation on better terms and within better time frames?2

Professor Belgrave proposed a comparative exercise, examining a number of case studies where both land under Maori tide and under general tide was taken for public works. The public works takings suggested by Belgrave, are those particular interest to claimants in this inquiry, and also included the taking of land held under general tide .3

Claimants have argued that there are a number of significant differences in the treatment of Maori and European owned land when taken for public works purposes. Both claimants and authors have signaled a number of discrepancies in procedure, including notification, consultation, negotiation, compensation and disposal. Furthermore, claimants and authors have suggested that local and central authorities targeted Maori land as easier to acquire than general land. This report will evaluate these contentions based on the evidence of a number of case studies concerning public works developments that affected both Maori and general land.

As Philip Cleaver asserts the issue of disposal is key to an examination of takings which took place in the twentieth century.4 Preliminary research has revealed that both the privatization of state owned assets and also the transferal of assets from and between central and local bodies has implications for the disposal of land taken for public works. The transferal of land taken under public works legislation into third (private) party ownership may prove to be contentious for both Maori and European owners.

1.3.3 Stmcture

Chapter Two provides an overview of statutory and practical differences in the taking of Maori and general land for public works purposes. The case studies following in chapters three to six, provide specific evidence. The concluding chapter of this report draws these threads together and addresses the issues as set out in section 1.4 of this chapter. As an analysis of the treatment of

2 Paper 2.457, p 23 3 Paper 2.457, P 27 4Philip Cleaver, 'The Taking of Maori Land for Public Works in the Whanganui Inquiry District: 1850-2000', report commissioned by the Waitangi Tribunal, September 2004 (Wai 903 record of inquiry, doc A57), P 23

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European-owned land is largely absent in the existing casebook research, an examination of policies and procedures governing the taking of general land will supplement the overview discussion. Various pieces of legislation in conjunction with policy documents may reveal statutory divisions in the treatment of Maori and general land

The case studies presented in this report illustrate the issues in the overview. The case studies will provide a number of comparative conclusions. However, due to the small number of case studies to be examined, this evaluation may prove inconclusive. Many of the archival files concerning the taking of general land do not provide evidence on all the facets of public works taking procedure, as provided with Maori land records. The different systems of record keeping may themselves provide insight into the different procedures for the taking of Maori and general land.

1.4. METHODOLGY

Owing to time constraints, it was not possible to examine all of the takings suggested in the casebook review. Instead, only a small selection of takings can be thoroughly researched and discussed. Relevant case studies will be selected from suitable instances discussed in the existing casebook research. This report has reviewed statements of claim and existing casebook reports which discuss land taken for public works. The existing research, will be analysed against the findings of the case studies of general land.

Preliminary research established that the cases selected were direcdy comparable and not compromised by extraneous factors, and that sufficient source material exists for proper comparisons to be made. Consideration will be given to the following criteria:

.:. Case studies should concern land acquired under the provisions of public works legislation. This defines what is of key relevance to the report, allowing the focus to be on the particular principles and legislation that surround public works takings. Types of takings may include compulsory and negotiated land acquisition under public works legislation .

• :. Case studies selected should be direcdy comparable and not compromised by any extraneous factors .

• :. Sufficient source material exists for proper comparisons to be made . • :. The case studies should examine takings (areas of land) that have been identified by

claimants . • :. The case studies will incorporate a duplication of research from other reports, as part of the

report's purpose is to draw upon and contrast with existing casebook research. A taking examined in other research will be considered if a direcdy comparable taking of general land is discovered .

• :. There must be sufficient archival evidence relating to each of the case studies, to enable a satisfactorily complete description of the taking to be presented .

• :. The case studies shall be drawn exclusively from twentieth century takings . • :. It is important that the case studies represent the variety of purposes for which land was

taken for public works. This will include takings by local and central government, as well as joint developments .

• :. The case studies should collectively enable a full range of taking issues to be examined, including those relating to notification and consultation, the role of local authorities, compensation, and disposal.

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For the purpose of this report the definitions of Maori and general land found in Te Ture Whenua Maori Act 1993, section 129 (1) have been adopted. The Act sets out that all land in New Zealand must have one of the following statuses:

(1) Maori customary land (2) Maori freehold land (3) General land owned by Maori (4) Generalland (5) Crown land (6) Crown land reserved for Maori.s

This report will be concerned with general land, which may include general land owned by Maori, as it is difficult to ascertain whether an owner is non-Maori. As Maori land is subject to the jurisdiction of the Maori Land Court, and is thus different from general land, the term 'general land' may also be defined as land which is not under the jurisdiction of the Maori Land Court.6

Tom Bennion notes that Maori land differs from other land in New Zealand in four major ways.7 Those differences are land held in multiple ownership, requiring assistance or approval of the Maori Land Court, restrictions on alienation, and incompleteness of registration. Bennion states that the status of land, whether Maori freehold land, general land owned by Maori, or simply general land, may be determined by whether the Maori Land Court has jurisdiction over it. These factors have been used as identifiers of the status of land, discussed in the case studies in chapters three to six.

This report will compare and contrast any differences in processes and outcomes in the selected case studies. Questions this report addresses include:

.:. Is there evidence to show that Maori land was targeted (or easier to acquire) for Public Works Act acquisitions in preference to general land?

.:. Were there any significant differences in notification, entry on land, commencement of construction, and proclamation of lands acquired between Maori and general land?

.:. Were there any significant differences in the ability of Maori or general land owners to negotiate with, or give consent to, the taking authority over what land should be taken and how much land?

.:. Were there any significant differences in the amount or timeliness of compensation given to Maori and general land owners?

.:. Were there any significant differences in the subsequent use or sale of Maori or general land under the Public Works Acts?

5 Te Ture Whenua Maori Act 1993, s129(1), G W Hinde, Land Law in New Zealand (Wellington: LexisNexis NZ Ltd, 2003), P 34 6 Richard Boast, 'The Evolution of Maori land Law 1962-1993', in Richard Boast, Andrew Erueti, Doug McPhail, Norman F Smith, Maori Land Law (Wellington: LexisNexis NZ Ltd, 2004), P 65 7 Tom Bennion, 'Maori Land', in Andrew Alston, Tom Bennion, Michelle Slatter, Rod Thomas, Elizabeth Toomey, Guide to New Zealand Land Law (Wellington: Brooker's Ltd, 1997), pp 206-208

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Chapter Two: Overview

2.1. PUBLIC WORKS LEGISLATION AND HISTORY 1840-1928

The concept of the Crown or State having the right to take privately owned land for public reasons arose from principles that were developed in England. The industrial revolution prompted both the taking of private lands for public works, and private landowners investing in such developments. The development of railways and canal systems in England led to legislation which enabled land to be taken compulsorily.s

The Crown introduced the legal principle of its right to take land for public purposes into New Zealand with its acquisition of sovereignty in 1840.9 In nineteenth century New Zealand, central government also had powers of compulsory acquisition, whereas local authorities did not. Philip Cleaver considers that while it is not possible to provide a statistical analysis comparing Maori and general land taken for public works in the nineteenth century, discriminatory and confusing statutory provisions and rapidly diminished Maori land, reveal the impact of compulsory takings on Maori.1O

The first general legislation enabling compulsory land taking for public works was introduced into New Zealand during wartime, in association with wartime measures such as the confiscatory New Zealand Settlements Act 1863. Maori were not represented in Parliament at this time and therefore played no part in the introduction of public works legislation in New Zealand.11

The later 'five percent rule' allowed the Crown to take up to five percent of Crown granted land without compensation for roading and railways. Initially the five percent rule did not apply to Maori land, until the Native Land Act 1862 included provision for the taking of up to five percent of Crown granted Maori land without compensation or time limit.12 The Public Works Act 1880 extended this so all Maori land that had gone through the Native Land Court could have up to five percent taken.13 The rule helped to create an environment that encouraged central and local government taking authorities to adopt the view that Maori land was generally easier and cheaper to take than other land.'14

As noted earlier, in the early nineteenth century only central government had powers of compulsory acquisition for public works. This was extended in the late nineteenth century to empower local authorities to take land. Maori had little to do with the machinery of settler local administration, with highways and harbour boards, ptovincial councils, or after 1876, with county and borough councils.IS The Public Works Act 1876 is considered by Cleaver to have been 'eurocentric'.16 While the Act contained protection for orchards, gardens, and vineyards, it did

S As the development of public works and associated legislation has been discussed in depth by Cathy Marr and Philip Cleaver, only developments which are of note to this research commission are discussed in this overview. 9 Cathy Marr, Public Works Takings of Maori Land, 1840-1981 (Waitangi Tribunal Rangahaua Whanui Series, 1997), pp 30-31 10 Cleaver, p 14 11 Cleaver, p 18 12 Marr, pp 63-64 13 Cleaver, p 25 14 Cleaver, pp 26-27 15 Alan Ward, A Show of Justice (Auckland: Oxford University Press, 1974), p 269 (Cleaver, P 31) 16 Cleaver, p 42

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not contain these same protections for areas treasured by Maori. Furthermore, the objection process was highly formal and the Act did not have a provision for acquiring land by agreement. Cleaver argues that '[b]y the early 1880s, the Minister for Public Works acknowledged that local authorities appeared to be acting in a manner that discriminated against Maori when it came to asserting their public works powers,.t7

Cleaver argues that local authorities lacked the expertise, resources, or willingness to deal with Maori concerns, 'the government's failure to require local authorities to take account of Maori concerns or to set up a local authority system that provided for adequate participation by Maori meant that antagonisms between local authorities and Maori authorities continued well into the twentieth century,.18 Local authority powers were extended under the Public Works Act 1876, Public Works Amendment Act 1889, Counties Act Amendment Act 1883, Counties Act 1886, Water Supply Act 1891, River Boards Act 1884, Sand Drift Act 1903, Land Drainage Acts 1893 and 1908, and perhaps most significandy, the Town Planning Act 1926 which extended local authority involvement in planning and compensation under public works legislation. l

?

By the time of the Public Works Act 1882, the taking of Maori and became a more rigid statutory process still, with separate provisions for the taking of Maori and general land. Cleaver states that 'the fact that Maori land was typically placed in as separate section is likely to have encouraged taking authorities to believe that Maori land was easier and cheaper to take, with less consultation required and only the minimum of protections,.20

The Public Works Act 1894 also made a distinction between the taking of Maori land from general land in its provision. However, the definitions of 'native land' was somewhat vague. Native land was defined in the 1894 Act as land held by Natives under their customs and usages. While part II of this Act dealt with the takings of general land, the taking of native land was contained in separate provisions. Taking of general land required survey and plans of the land to be taken, and both public notification and notice to be served of owners and occupiers. Moreover, this allowed for the lodging of 'well-grounded' objections within forty days in the case of general land. Cleaver writes that he presumes none of the part II provisions applied to Maori customary land, instead these were dealt with by part IV.21

The provision to purchase was contained in the 1908 Act. Acquisition by agreement meant that there was no need for a notice of intention, objections, and hearings.22 Limits on claiming compensation for land taken and for damages were also imposed by the Public Works Acts of 1908. Section 37 of the Public Works Act 1908 states:

No claim for compensation under this Act or any former Act relating to public works shall be made (in respect of any lands taken) after a period of five years after the date of the proclamation taking the said lands, or (in respect of any damage done) after a period of twelve months after the execution of the works out of which such a claim has arisen or may hereafter arise; and all right and title to any compensation in respect of such lands or for damage arising out of the execution of such works, as the case may be, shall after such respective periods absolutely cease.

17 Cleaver, p 32 18 Cleaver, p 32 19 Cleaver, pp 36-37 20 Cleaver, p 45 21 Cleaver, p 51 22 Russell Davies, 'History of Public Works Acts in New Zealand, including compensation and offer-back provisions' (Wellington: Land Information New Zealand,July 2000), p 8

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--'-.---~-'-----------'--------'-------'---- .. -------- .. -.~-.-----.~-------.--"---.----... ----.. ------------._-----.. _----------

Takings of Crown-granted Maori land and general land between the 1880s and 1928, were governed by part II of the public works legislation. Owners may not have been notified if their whereabouts was not ascertained, or they were not aware of the gazette notice. In the case of multiply-owned land, the likelihood of an owner remaining unaware of a land taking increased markedly. This, Cleaver believes, led to 'a situation that limited opportunities for objection and that also may have encouraged taking authorities to believe that Maori land was relatively easy to acquire'.23

2.2 PUBLIC WORKS LEGISLATION AND HISTORY 1928-1981

While part II of the Public Works Act 1928 dealt with the taking of land, Maori land was dealt with separately in part IV of the Act. Part IV governed the taking of customary Maori land, that is where the Native land Court had not determined tide. Maori freehold land was subsumed with general land under the part II provisions of the Act.

The Public Works Act 1928 was in force for some fifty years, until repealed by the Public Works Act 1981. Cleaver argues that central and local governments had developed through this period a perception that Maori land was cheap and easier to take than other land, furthermore takings were a 'solution' to problems associated with Maori land, such as rate arrears, poor utilisation and weed infestation. 24

2.2.1 Acquisition by Agreement

Under the Public Works Act 1928, provisions for a negotiated purchase as an alternative to compulsory taking was not applicable to customary Maori land.25 Acquiring land by agreement was enabled by section 32 of the Public Works Act 1928, a purchase by a proclamation signed by the Governor-General was still required. The Governor-General needed to be satisfied that an adequate agreement had been arrived at by the owner and the Crown or the local authority.26 Section 4 of the Public Works Amendment Act 1962 permitted the Minister of Works to sign a declaration that land had been acquired for public works by agreement. The Minister needed to be satisfied that an adequate agreement had been arrived at by the owner and the Crown or the local authority. This declaration was deemed equivalent to a proclamation under public works legislation, although in general waiving compensation provisions.27

2.2.2 Notification

Section 22 of the Public Works Act 1928 required the Minister or local authority to notify publicly of the proposed taking, asking owners affected to submit, at that juncture, any well grounded objections. As Russell Davies notes a 'well grounded' objection did not include objections to the amount or payment of compensation.28 Section 229(1) (f) of the Public Works Act 1928 meant the Minister or local authority would set the time and place of the hearing of

23 Cleaver, p 57 24 Cleaver, p 62 25 Cleaver, p 63 26 Davies, p 29 27 Davies, p 29 28 Davies, p 16

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objection. The objection would then be heard by the Minister or a person appointed by the taking authority. As Davies writes, this may have meant the Minister or local authority acted as 'a judge in his (or its) own cause'. This was amended by the Public Works Amendment Act 1973, objections were henceforth heard by the Town and Country Planning Appeal Board. 29

2.2.3 Compensation

Compensation provisions in the Public Works Act 1928 also offered different processes for Maori and general land. In the case of Maori land, the taking authority often had to apply for assessment and the Maori Land Court was responsible for deciding this rather than the Compensation Court. It was not until 1962 that these separate provision were repealed, and all compensation claims were heard by the Land Valuation Court.30 Davies notes that there has been a frequent call from farmers and Maori groups for comparable land to be granted as compensation for public works takings, and argues that from at least 1905 there has been provision for this in legislation.31 Some additional compensation was -provided for under the Public Works Act 1928, however, these were expanded by subsequent amendments. In the 1970s Federated Farmers and Maori groups were among those who agitated for additional compensation, solatium, and costs.3Z Part IlIA of the Public Works Amendment Act 1970 provided for compensation arising from land acquisition were dwellings, buildings and businesses are affected.

Limits in claiming compensation for land taken and damages appeared in section 45 (2) of the Public Works Act 1928:

For the purposes of this section the term 'execution of the works' means the completion of the construction of any portion of a work where such portion in itself (and without reference to any other part of the work) causes the damage; and such portion of the work shall be deemed to be completed when anything further that may be required to be done thereon to finish the same will have no effect either to increase or lessen the damage.

2.2.4 Offer Back and Disposal

Offer back provisions in the Public Works Act 1928, section 35 (b) stated that land could be offered back at a price fixed by valuation to the person from which the land was originally severed, or if that person was not located or refused, the land could offered to an adjacent owner. However, before the Crown made the offer back, it could declare the land surplus and retained.

Under the Native Purposes Act 1943 and later the Maori Affairs Act 1953, only the taking authority could apply for a revesting and generally this was revested under Crown-granted tide. In the case of Maori land, the Native [fV1aori] Purposes Act 1943, section 7 (1) provided that surplus land could be returned and vested in the Maori owners or descendants, as deemed by the Maori Land Court and the taking authority. A 1952 amendment also enabled the Crown to change the purpose for which land was used from its original purpose.33 Revesting land in Maori ownership

29 Davies, p 17 30 Cleaver, p 65 31 Davies, p 43 32 Davies, p 41. Solatium is defined as compensation for injured feelings as distinct from financial loss or physical suffering. 33 Cleaver, p 66

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proved difficult, 'the provisions seemed to contemplate very litde Maori land being returned at all which fitted with the prevailing view for most of the twentieth century that Maori land title should eventually disappear altogether'.34 Davies notes that section 436 of the Maori Affairs Act 1953 maintained these provisions, however, there was no requirement for land to be vested in joint owners as tenants in common as there had been in the earlier act.35 The Public Works Amendment Act 1954, section 4(1), conspicuously omitted any reference to vesting the land in the person from whom it was severed, or to an offer back provision to an adjacent owner. Nevertheless, the amendment retained the provision for the Crown to acquire surplus land. 36

When a Committee reviewed the Public Works Actin 1977, it received submissions from the New Zealand Maori Council and Maori Affairs Department. They submitted that unwanted public works land should be offered back to owners or successors, or if not required by owners, in the first instance it should offered to other Maori and in the second instance sold by public tender with proceeds going to original owners and successors.37 Te Ture Whenua Maori Act 1993 repealed the legislation.

Later the Public Works Act 1981, section 41 addressed offer back provisions for Maori land and general land owned by Maori. Section 41 provided the right to use the Maori Affairs Act as an alternative to the provisions of section 40 of the Public Works Act 1981, where land had been owned by more than four persons prior to acquisition. The definition of Maori owned land was expanded and refined by Te Ture Whenua Maori Act 1993. Moreover, out of the Treaty of Waitangi Act (State Enterprises Act) 1988 and the Waikato Raupatu Claims Setdement Act 1995 arose the question of the status of surplus land where both Maori and a general owner may have interest in the same land.38 An owner may receive an offer back of surplus land while the other may apply for solatium payment.

34 Cleaver, p 66 35 Davies, p 51 36 Davies, p 50 37 Donald Gordon McGill and New Zealand Public Works Act Committee, 'Report of the Public Works Act Review Committee', 1977, p 7 38 Davies, pp 61-62

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2.3. NOTE ON THE MINISTRY OF WORKS

Nineteenth century legislation refers to a 'Minister for Public Works' and a Public Works Department. The Public Works Act 1928 brought the Public Works Department and the Ministry of Works into a single unit, and at that stage the responsible Minister was known as the Minister of Works, while the head of the Department was the Commissioner of Works. The department was re-named the Ministry of Works and Development in 1973, with the Minister of Works and Development having responsibility for it. The Ministry of Works and Development was abolished in 1988. The Minister of Lands has remained responsible for public works acquisition and disposal since 1988. 39

2.4. GENERAL AND MAORI LAND IN PUBLIC WORKS LEGISLATION

Cathy Marr in Public Work Takings of Maori Land, 1840-1981, notes a number of statutory and informal differences in the treatments of Maori and general land. Firsdy, there was an ongoing lack of required notification and consultation with Maori, as compared with general land owners. Mart attributes this pardy to the 'separation of Pakeha and Maori communities and to a significant extent, racism,.40 Marr notes that due to a lack of consultation with Maori, even at the most basic levels of notification, there was no opportunity to accommodate Maori needs or alter plans accordingly. Secondly, Matt argues that Maori were at a disadvantage due to separate legislative frameworks. Marr notes that under the Public Works Act 1928, native land (customary land) was separated from general land. Furthermore, although Maori freehold land was included in the definition of general land, lesser protections still were provided for general land owned by Maori.41

Thirdly, Maori customary land was excluded from provision of the Public Works Act 1928, which allowed for acquisition by agreement. Even when the 1962 amendment allowed for acquisition by agreement in the case of Maori land, Marr argues, owners still did not enjoy the same rights of negotiation as European land owners as compensation still had to be assessed by the Maori Land Court.42 Fourthly, Marr argues that there were differences in compensation procedure. For general compensation there was a time limit of five years for making a claim under the Public Works Act 1928, part 3. When Maori land was taken, an application was made by the Minister rather than land owners, and heard by the Native Land Court. There was no time limit on the Minister to make an application and it was at the Native/Maori Land Court's discretion to pay an owner or owners at the exclusion of others.43

Marr concludes that although many of the issues were 'universal' to all land owners, it can be surmised from the evidence that 'policies and procedures seem to have resulted in relatively harsher treatment for owners of Maori land'.44 As Maori were marginalised from the political process they were less likely to challenge decisions and takings, and the compensation stage of

39 Davies, pp 3-4 4oMarr,p 24 41 Marr, p 134 42 Marr, pp 135-136 43 Marr, pp 140-141 44 Marr, p 165

17

. .

,---'-' '-' --...:.....-.:..-.----..:...;-~-----.---.. --------.--...:---:...------.~.-.--- .. _. __ ... __ ._. __ .. -.:........_._._._------------_._--_ .... _-----.--- .. ---.---'-.:.-----.----~----- .. --•.... --

the process was open to evasion and delays due to the 'relative powerlessness and poverty of Maori compared to general land owners,.45

2.5. PUBLIC WORKS TAKINGS IN THE TAURANGA INQUIRY DISTRICT

A number of existing research reports for the Tauranga Moana inquiry detail land takings for public works. The section below summarises these takings. Of key importance are the allegations made by a number of authors that Maori land owners were treated with less consideration than general land owners. Authors claim that procedures of notification, taking and compensation were less precise Maori than for general land owners. These contentions shall be taken forward and tested against case studies in chapters three to six.

During the early twentieth century the government began building the East Coast Main Trunk Railway Line, and also established a great number of new roads. Rachael Willan noted that Tauranga and Mount Maunganui enjoyed quite exponential population growth, growing from 9628 in 1945 to 48,153 in 1976, a trend that contin~ed to the end of the century. Therefore, as many authors have argued, these public works were a matter of great local importance and a contribution to national well-being and growth.

Legislative amendments to the Immigration and Public Works Act 1870 had reduced protections for railway takings, Cleaver notes that 'this partly reflected the view of Pakeha settlers that the location of nearby rail links would be far more beneficial than the loss of some land,.46 Many pieces of special legislation were passed by government prior to 1928 for particular works. For example, many Railways Acts enabled lands to be taken for railway purposes, and furthermore provided lesser protections for all land taken for railway purposes as compares with other public works.47

Antoine Coffin, Heather Bassett and Richard Kay provide a history of the development of the East Coast Main Trunk Line in their respective research reports. Work was begun on the line from Mount Maunganui to Te Puke in 1910 and it was operational by 1913. One hundred and fifty two acres of railway lands were taken at Mangatawa and Papamoa. The first proclamations were not gazetted until 1913, compensation was awarded in 1915.48 Two smaller pieces of land were taken in 1929 and 1955.49 The Tauranga section took in substantial pieces of Matapihi land. The middle line proclamation was issued on 29 February 1915 through the Matapihi peninsula. The total area of land was 41 acres 1 rood 4.8 perches. Compensation was paid at the value at time of acquisition with interest despite notable increases, in some cases no compensation was paid. 50

45 Marr, p 206 46 Cleaver, p 41 47 Cleaver, p 54 48 Heather Bassett and Richard Kay, 'Crown Acquisition and Desecration ofNga Potiki Land', report commissioned by the Waitangi Tribunal, May 1999, Wai 215, doc El, P 93 49 Bassett and Kay, doc E1, P 97 50 Rachael Willan, 'From Country to Town: A Study of Public Works and Urban Encroachment in Matapihi, Whareroa and Mount Maunganui', report commissioned by the Waitangi Tribunal, December 1999, Wai 215, doc F29, pp 65-70

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Heather Bassett and Richard Kay state in their 'Ngaiterangi and the Crown' report that public works legislation 'created different procedures for the taking of general (European) and Maori land. The result was that Maori were given less protection than other land owners.'51 Furthermore, it was not simply the Public Works Act itself, but the application by Crown agencies and the policies, both official and unofficial which discriminated against Maori interests.

Bassett and Kay detail the statutory requirements for notification and consultation with owners under the Public Works Act, Maori land was dealt with in part IV of the Public Works Act 1928. Section 103(b) said that where title was derived from the Crown the provisions of part II would apply. Therefore, Ngai Te Rangi blocks were all Maori freehold land 'the taking procedure was the same as that for general land under part II, with some important distinctions'. Bassett and Kay concur with a number of other authors, suggesting that agencies made little effort to consult with owners, citing perceived difficult and unreliable multiple ownership as the reason. The compensation process for Maori (customary and freehold) land was different than that for general land. The taking authority, not the owners had to apply for compensation to be assessed, and often this was years after proclamation. From the Public Works Act 1962, the Maori Trustee became the statutory negotiator, this 'took away all input' of Maori in the compensation process. 52

Bassett's report 'Otawa Scenic Reserve' concerns the taking of Otawa 2A, 2B, 2C, 2D and 2E blocks (465 acres 3 roods 15 perches) under the Public Works Act 1928 in September 1940 to form a scenic reserve. The Otawa Scenic Reserve was created under the Scenery Preservation Act 1908, and the Scenery Preservation Amendment Act 1910 which made it possible for Maori land to be taken for scenery preservation purposes. Bassett notes that sections of this land were in European and Crown ownership, and details of these acquisitions have also been included in this report,53 Bassett notes the contention of Apttana Ngata (Member of Parliament for Eastern Maori) that Maori 'were disadvantaged because it was generally assumed that Maori land was of lesser value than European land' .54

Bassett discusses substantial delays in compensation. When the case was heard before the Native Land Court, the Judge was disparaging of Public Works Department practice. Due to the Department's faulty notification procedure and the practise of ignoring Native Land Court title, compensation was delayed and owners of Maori freehold land were not afforded the same notification rights as Europeans.55 Assessment of compensation was not heard until 1961, some twenty years after the compulsory acquisition and Bassett notes that some owners did not receive payment until mid-1965.56 The t:nechanism of the Maori Trustee, she argues, was also a contributing factor in slow and irregular compensation.

Bassett discusses transmission lines in her report 'Aspects of Urbanisation on Maungatapu and Hairini, Tauranga'. The route for the Tauranga-Te Maunga Motorway over Maungatapu and Hairini was defined in a middle line proclamation in 1959, with gazette notices taking specific

51 Heather Bassett and Richard Kay, 'Ngaiterangi and the Crown', overview report commissioned by the Waitangi Tribunal, June 1998, Wai 215, doc C1, pp 10-11 52 Bassett and Kay, doc Cl, pp 114-119 53 Heather Bassett, 'Otawa Scenic Reserve', research report commissioned by the Waitangi Tribunal, August 996, Wai 215, doc A19, P 5 54 Bassett, doc A19, p 7 55 Bassett, doc A19, pp 22-24 56 Bassett, doc A19, p 27

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... -----.----------___________ ~ __ ==M==='=--=' '~" '==_='_""'="",=""=_"_'='''_'='''_'= __ '''='''='_~= __ '''=_,»,=,_=_'''_='''=''''·=''''N='''''=''~'= __ '·,=--· _""--~------"-,,----_., .. ""

lands from 1963. Compensation was decided after negotiations between the Maori Trustee and the Ministry of Works Hamilton. The author states that the Maori Trustee was at a 'considerable disadvantage' and that compensation was neither adequate nor timely. 57 Bassett goes into considerable details of the taking, valuation and compensation process. The breakdown of the relationship between the Maori Trustee and the Ministry of Works is also signalled, 'the Maori Trustee found it almost impossible to reach a fair settlement', a further detriment to Tauranga Maori.58

Rachel Willan in her report 'Land Taken for Waterworks' examines land takings by the Mount Maunganui Borough Council and Tauranga City Council of Oropi 2, Weraroa 2, Otauna and Te Papa allotments (533, 534, 534A, 534B, and 535). The report stems from the Wai 362 claim of Ngati Ruahine, a hapu of Ngati Ranginui. Willan states that she will focus on Maori land in the blocks.59 The councils' joint waterworks scheme first took form in the 1950s and 1960s. They moved to acquire land in the Otanewainuku Survey District, largely Maori land. These councils also took European land. Whereas the owners themselves signed a settlement for European land, in the case of Maori land the Maori Trustee negotiated, under the Public Works Amendment Act 1962.60 Willan examines the drawn out compensation negotiation process, and the valuation dispute over the subdivided Allotment 535. There were also discrepancies between the council valuations and independent evaluations, thus prolonging the compensation process further. The author points out that disputes such as this also occurred in the case of generalland.61

Jonathan Easthope in 'Public Works Acquisitions in the Poike Block' finds that evidence supported the Ngati Ranginui Wai 362 claim, that insufficient or no compensation was paid for public works takings in the Poike block.62 Easthope concludes that his case studies suggest that the Crown's compulsory taking procedures were inadequate. He argues that '[i]nstead of following a logical procession of consultation, negotiation, (and if the owners and the Ministry could agree) compensation and finally acquisition, the Ministry achieved the reverse'.63

Marinus La Rooij discusses the impact of public works takings and realignment of State Highway 2, affecting Te Papa allotments, and the bridge construction on Wairoa River. La Rooij believes that while the realignment disrupted 'over a dozen properties' the most severely affected was Ngati Kahu land.64 The Wairoa Bridge was originally a Kauri bridge, which was in a state of decay by 1912. The bridge was replaced in 1913 with one made of concrete. The Department of Works acquired 2 roods 30.3 perches from Te Papa 91A in 1915 for approaches to the bridge, however, flooding saw the bridge slump by 1918. 65 In 1952 further land was taken affecting the Ngati Kahu Marae (91G) and Te Papa 91N containing an urupa.66 Extensive repairs on the bridge took place in 1963, but by 1964 construction of a new bridge was announced and work began in 1965.

57 Heather Bassett, 'Aspects ofUrbarusation on Maungatapu and Hairini, Tauranga, research report commissioned by the Waitangi Tribunal,July 1996, Wai 215, doc A26, pp 14-36 58 Bassett, doc A26, p 74 59 'Schedule Tautai River Catchment Area', infonnation supplied by John Budden, Senior Property Manager, Tauranga District Council (Rachael Willan, 'Land Taken for Water Works', research report commissioned by the Waitangi Tribunal, 1996, Wai 215, doc A32, P 7) 60 Willan, doc A32, p 26; ABKK w4357 50/556, ANZ"Wellington 61 Willan, doc A32, p 56 62 Jonathan Easthope, 'Public Works Acquisitions in Pike Block', research report commissioned by the Waitangi Tribunal, Wai 215, doc A34, P 2; Wai 215, claim 1.16, P 2 63 Easthope, doc A34, p 137 64 Marinus La Rooij, 'Wairoa Hapu & the Realignment of State Highway 2', report commissioned by the Waitangi Tribunal, August 1999, Wai 215, doc F2, P 7 65 La Rooij, doc F2, pp 21-25 66 La Rooij, doc F2, pp 25-26

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In general terms, La Rooij concludes that the Public Works Act 1928 made a 'clear and systematic distinction between Pakeha and Maori land ownership', the Act itself 'not only entrenched this distinction it was even divided into two parts, "General" and ''Maori",.67 This was not changed until the Public Works Act 1981. La Rooij states that local bodies used the Public Works Act 1928 aggressively against land owners in general, but most often against Maori. He believes the fact that Maori land often lay on the fringes of urbanised areas and was commonly undeveloped proved attractive to the taking authority. He argues 'public works legislation, combined with the practise and culture of agencies that had the power to use the Public Works Act, created a systematic pattern of discrimination towards Maori land'. The case study presented in this report, the author believes 'did not represent an extreme case of abuse of public work legislation ... [but] is an example of how at every tum Maori land was treated differently in both an incremental and qualitative manner.'68

Notification, land entry and acquisition, and compensation procedures were influenced by the Ministry of Work's attitudes to multiply-owned land. The exertion of compulsory powers of acquisition was 'preferable to dealing with actual Maori land owners', with compensation following some time after. In contrast, the procedure for taking general land preferred acquisition of land before work commenced. Thus general land owners had the power of prior negotiation, whereas Maori land owners were faced with afait accompli.69

La Rooij provides an excellent example of the taking of general land and Maori land for a public works development. The 1960s takings affected on the right hand of the road European developed commercial sites and further down undeveloped Ngati Kahu lands. As La Rooij states, '[m]ost importantly under the Public Works Act, Ngati Kahu's land was easier to acquire than the privately owned land on the left side of the highway'.7o Consent to enter forms were decidedly different for Maori and general lands, on one hand 'messy and seemingly chaotic' in different coloured pen and hand, and on the other 'filled out completely and consistently in much greater detail with legal direction'.71 Furthermore, the surplus severance land of Lot 738 was offered to the adjacent owner Cheriton Poultry Farm, thus these small areas of Maori land were sold to the farm 'because the chief surveyor wanted simply to 'tidy up the boundaries".72

Willan imparts a brief discussion of public works and town planning legislation in her report 'From Country to Town: A Study of Public Works and Urban Encroachment in Matapihi, Whareroa and Mount Maunganui'. Under the 1908 and 1929 Acts, she notes, acquisition was 'threefold' including notification, negotiation and compensation, and once land was no longer required, disposal.73 Town and Country planning is also discussed, broken down into four phases. 'Early Planning Initiatives 1926-1952', notes that under the Town Planning Act 1926 Maori were only consulted and could object only as occupiers of rateable property and not as Treaty partners. In 'Increasing Regulation, 1953-1977', limited recognition of Maori interests continued to prevail, and in 'Environmental issues and Statutory Inclusion of Maori Issues, 1978-1991' statutory changes forced local bodies to take a responsibility for the particular needs of Maori.

67 La Rooij, doc F2, P 9 68 La Rooij, doc F2, P 11; R I Barker, 'Private Right versus Public Interest: Compulsory Acquisition and Compensation under the Public Works Act 1928', New Zealand Law Journal, 3 June 1969 ,p 251 69 La Rooij, doc F2, pp 12-13 70 La Rooij, doc F2, pp 35-36 71 La Rooij, doc F2, P 42; BAHS A591/407c 72/2/3/00, ANZ-Auckland 72 La Rooij, doc F2, pp 61-64 73 Willan, doc F29, p 9

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Lastly 'The Resource Management Act 199F, which requited increasing recognition of Maori interests and participation, despite certain limitations.74

Key arguments which appear in existing Tauranga research reports include the following:

.:.. Public Works legislation created different procedures for the taking of Maori and general land. The Public Works Act 1928 made a 'clear and systematic' distinction between Maori and general land ownership. This was not changed until the Public Works Act 1981.

.:. The application of this legislation, both official and unofficial, discriminated against Maori interests .

• :. The exertion of compulsory powers of acquisition was preferable to negotiating with Maori owners. Maori owners did not have the power of prior negotiation like general land owners .

• :. Agencies made little effort to consult with Maori owners, citing multiple-ownership as the reason .

• :. Maori were disadvantaged as it was assumed Maori land was of a lesser value than European land .

.• :. Compensation processes were different for Maori land, as it was the taking authority rather than the owner who applied for compensation. From 1962 the Maori Trustee became the statutory negotiator, but this took away all Maori input.

.:. The mechanism of the Maori Trustee was a contributing factor in slow and irregular compensation .

• :. Severance of Maori land were offered to European owners to 'tidy up boundaries,.75

.:. As public works were often viewed (by Europeans) as a matter oflocal and national importance, the provision of amenities was seen as more beneficial, outweighing the loss of land.

The case studies that following in chapters three to six evaluate these contentions. They compare the procedures for taking land held under Maori title and land held under general title for public works.

74 Willan, doc F29, pp 12-16 75 Land severances can be generally defined as an authorised separation of a piece of land to fonn two new properties, this includes the registration of rights of way and easements, policies and requirements for land severance are usually administered by local authorities. Land Infonnation New Zealand states that:

Sometimes taking part of a landowner's land for a public work results in another part of that land being severed from the retained land so that it becomes more costly to retain or less useful to the landowner. In these circumstances the landowner may require the Crown on behalf of an Acquiring Authority to purchase the severed land. The Acquiring Authority may then rationalise its landholdings by selling this land to an adjoining landowner.

Land Infonnation New Zealand, wwwlinz.goyt.nz, accessed 10 August 2006

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Chapter Three: Tauranga- Mount Maunganui Transmission Line

3.1. INTRODUCTION

This case study, detailing the erection of transmission lines over land in Tauranga, allows the exploration of the comparative rights of Maori and general land owners. A number of transmission lines and auxiliary structures were erected over land in Maori ownership. These have been discussed in existing reports, and provide the basis for comparison in this case study which shall evaluate how the general land owner was notified and if this was in keeping with the prescribed process under public works legislation. The general land which will be discussed in this chapter was Ohauiti 2 block, owned by F M Voyce. Voyce's claim for compensation can be compared with the takings of land under Maori tide.

Firsdy, this chapter will ascertain how Maori owned land was affected by the erection of transmission lines. This will form the basis for a comparative discussion in the second part of this chapter. Power transmission lines and poles were erected over Maori owned land in Maungatapu 2, Maungatapu B, Maungatapu lXl, Maungatapu lAl, Poike 6A2, Poike 6A3, Ngaitukarangi, and Kaitimako Band C block was selected as the site for the Hairini sub-station.

3.2. MAORI LAND AFFECTED BY TRANSMISSION LINES

A number of transmission lines have been discussed in existing casebook research. For example, transmission lines were erected over Maungatapu B, Maungatapu lXl and Maungatapu lA 1 blocks. Heather Bassett argues that:

high tension power transmission lines traverse the peninsula, and power poles were erected on certain blocks. Although the owners of the land would have been entitled to compensation from the New Zealand Electricity Department, some examples indicate that compensation was not paid, for at least some blocks along the power line route.76

The Tauranga Electric Power Board erected power poles over the Maungatapu 2 block without owner notification or consultation. The Ministry of Works had taken the position that no alternative route was possible. Evidence indicates that no compensation was paid on at least some of the blocks. 77

The New Zealand Electricity Department also erected transmission lines over Poike 6A2 and 6A3 in 1954-55, Jonathan Easthope notes that notice was not served on owners and no application for compensation was made,78 Power lines were also erected over Ngaitukarangi block (Matapihi), the first line was built between 1956 and 1959, the second line running alongside the Hairini to Mount Maunganui motorway,79 Claimants believe lines

were erected over Ngaitukarangi block without compensation. The first line was built between 1956 and 1959,

76 Bassett, doc A26, p 34 77 Bassett, doc A26, pp 11, 34-35 78 Easthope, doc A34, pp12-16 79 Willan, doc F29, pp 74-75

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the second line runs alongside the Hairini to Mount Maunganui motorway. Several attempts have been made through the Maori Trustee and later solicitors for compensation. 80

It is a contention, Roimata Minhinnick notes, that Kaitimako was unfairly targeted for the citing of the Hairini substation, whereas general land may have been more suitable. The Kaitimako block was included in the 1931 Tauranga Land Development Scheme and parts were later leased and subdivided. In 1966, Kaitimako Band C blocks were selected to build the Hairini substation.81 Approximately 103 acres of land were taken by proclamation from the Kaitimako B and C blocks on 30 November 1967, for transmission lines. Minhinnick has suggested further, that the adjacent blocks of Ohauiti 1 and 2 would have been more suitable for the substation development, however, the Maori owned Kaitimako blocks were targeted.82

Minhinnick supports the claimants' assertion that the owners were not consulted, and in some cases they were not aware of the acquisition until some years later. Minhinnick notes that the Crown was exempt under sections 10 and 267 of the Public Works Act 1928 from complying with notification procedures.83 Furthermore, he argues, far more land was taken than necessary; of the 103 acres taken only 45 acres were thought needed.84

Minhinnick argues that the adjacent blocks of Ohauiti 1 and 2 may have been a suitable alternative, suggesting that Ohauiti 2 was in European ownership.85 Minhinnick questions whether compensation for the land ever made it past the Maori Trustee. He suggests it may have been used to extinguish a debt with the Department of Maori Affairs. In 1993, 10 former owners of Kaitimako B and C were offered back the surplus 47 acres land at a cost of $436,000. However, the former owners believed that it should offered back at no cost. 86 The offer back was put on hold until Tribunal hearings and is subject to the Crown Settlement Portfolio(CSP).

80 Willan, doc F29, pp 74-75 81 Roimata Minhinnick, 'Report, Kaitimako B & C', research report commissioned by the Waitangi Tribunal, 1995, Wai 215, doc A12, P 15 82 Minhinnick, doc A 12, P 20 83 Minhinnick, doc A 12, P 17 84 Minhinnick, doc A12, P 18 85 Minhinnick, doc A 12, P 20 86 Minhinnick, doc A12, P 27

24

LAND TAKEN FOR TAURANGA-MOUNT MAUNGANUI

TRANSMISSION LINE Source: BAPP 5113 930d. Archives New Zealand, Auckland

Pt OHAUITI NO 2 Block

Pt 2

o. ____ ~5~O======10aO ____ ~15=O======2OO metres

MAP 2: LOCATION OF KAITlMAKO AND OHAUITI BLOCKS

· .

LAND TAKEN FOR TAURANGA-MOUNT MAUNGANUI

TRANSMISSION LINE Source: BAPP 5113 930d. Archives New Zealand, Auckland

Pt OHAUITI NO 2 Block

Pt2

O ......... ~~~====~10~O ........ ~15~O====~~O metres

MAP 3: LAND TAKEN FOR TAURANGA-MOUNT MAUNGANUI TRANSMISSION LINE

To Okere

3.3. GENERAL LAND AFFECTED BY TRANSMISSION LINES

It does appear that transmission lines and land takings under public works legislation affected general land. Frederick Marsden Voyce had land taken and damages to his land in Ohauiti 2 block, due to the Tauranga-Mount Maunganui transmission lines subject to proclamation 71335.87 Negotiation ensued over the land taking and Voyce's initial compensation claim was rejected.88 Voyce contended that 15 acres 1 rood 28.7 perches of Ohauiti 2 block were affected by the middle line proclamation, which was issued on 24 July 1954.89 A middle line system of acquisition was used for public works that were constructed in a continuous line, such as a railway or transmission line.90 A middle line proclamation would allow authorities to enter onto land with notice to the owners, but before determining what land was required to be permanendy taken, without any trespass occurring.

Section 43 of the Public Works Amendment Act 1943 sets out the procedure for the registration of middle-line proclamations for transmission lines. Subsection 7 required the Minister of Electricity, as soon as may be after public notification of the middle-line proclamation, to notify the persons then owning or occupying any land affected .. , and advising the owner of the time limits for claiming compensation.91

The land affected by the middle line proclamation of the Tauranga-Mount Maunganui transmission line, gazetted on 24 June 1954 are the following:

FIGURE 1: LAND AFFECTED BY PROCLAMATION 24 JUNE 195492

'., .", ;':.' "\ ::'.

87 Certificate of Title 1234/18; Certificate of Title 1088/183 88 BAPP 5113 92/16/53/6/1 930d, ANZ-Auckland; Proclamation defining the middle line of a transmission-line in Block XI, XIV, and XV, Tauranga Survey District, 17 June 1954, New Zealand Gazette, 1954, no 40, p 1041. The middle-line proclamation was issued pursuant to the Public Works Act 1928 and Public Works Amendment Act 1948, section 43. 89 BAPP 511292/16/53/6 930c, ANZ-Auckland 90 Davies, pp 26-28 91 Barker, pp 254-255; Waitangi Tribunal, Te Maunga Railwqys Land Report (Wellington: Brooker's Ltd, 1994) 92 Proclamation defining the middle line of a transmission-line in Block XI, XIV, and XV, Tauranga Survey District, 17 June 1954, New Zealand Gazette, 1954, no 40, p 1041. *Voyce's land.

27

Hairini3D Hairini 3B and 3A Hairini lA 1, lA 4C 1 and lA 4C 2 Hairini lA 2 Maungatapu lX,lG lJA 2, lA 1,2 and parts lA, lC, lD, lJB, lK, lS Maungatapu 1 JB 1 Part Maungatapu block Te Ngaio 1 and 2 Puwhariki Taumatanui 3,2, 1B and lA Oruamatua 2A and 2B and roadline Parts Ohuki 2D, 2C, and 2B Otumoko block Ohuki 1G, lF and 1E Part sections 3 and 7 Block XI, Tauranga SD

343/261 135/198 135/203 329/188 643/183

PR206/42 No registration 44/2 135/293 135/208 135/292 43/293 No registration 43/294 677/265

Sharp, Tudhope & Co, solicitors for Voyce, advised the Minster of Public Works on 29 April 1958 of the claim to compensation due to damages arising from the erection of the Tauranga­Mount Maunganui transmission line. The accompanying claim set out that Voyce believed compensation was due, firstly due to the general inconvenience in farm management and control, and secondly due to depreciation of land value. V oyce claimed £500 plus legal costs, this amount comprised of £100 for general inconvenience, £400 for land depreciation and an additional £25 for estimated costs incurred by the compensation claim. The nature of the work affected Voyce's land is detailed as:

(1) Erection of Steel Tower No 176 (2) Erection of 3 Pole Wood Structure No 1 (3) Okere-Tauranga and Tauranga-Mount Maunganui transmission lines

The land affected in the claim is expressed as 'Fifteen acres One rood Twenty-eight decimal seven perches more or less being part of Ohauiti No.2 Block and being all the land in Certificate of Title, Volume 1234 Folio 18'. Voyce, was owner in fee simple subject to proclamation s 712335.93

The Commissioner of Works, F M Hanson, received the claim on 1 May 1958. He then referred it to J D Walton, District Land Purchase Officer at Hamilton. Hanson, instructed the District Commissioner of Works, C J W Parsons, that the last day for declining the claim was 30 July 1958.94 Parsons, then asked the District Electrical Engineer, A Caldwell, for 3 tracings or prints showing the location of the line in relation to the property, and furthermore the dates of entry for the various phases ofwork.95

Caldwell furnished the Parsons with these details on 27 May 1958. He noted that Tower number 176, which was approximately twenty feet square at its base, had been erected in June 1956 and

93 Sharp Tudhope & Co to Minister of Public Works, 29 April 1958; F M Voyce, Claim to Compensation under the Public Works Act 1928, 29 April 1958, BAPP 5113 92/16/53/6/1 930d, ANZ-Auckland 94 F M Hanson to Sharp Tudhope & Co and District Commissioner of Works, 5 May 1958, BAPP 5113 92/16/53/6/1 930d, ANZ-Auckland 9S C J W Parsons, District Commissioner of Works, to District Electrical Engineer, 21 May 1958, BAPP 5113 92/16/53/6/1 930d, ANZ-Auckland.

28

wired in March 1957. Pole number 1 had been erected in May 1957 and wired in July 1957. Caldwell said that he should 'point out that of the 3- pole structure No.1, there are 2 poles and 6 guy wires on Voyce's land, the other pole is over the fence and is in the adjoining property'. Caldwell believed that there could have been:

very little inconvenience in fann management and control caused during construction as I do not recall ever seeing any person or any stock in this paddock. Permanent inconvenience is slight as the two poles are against the fence-line and the tower base can hardly interfere with grazing.

Depreciation could only be justified to any extent if subdivided; in which case the tower site could affect the layout out the plan; the conductors crossing sections would be the main part of the claim.%

Walton went on to interview Voyce's solicitor who offered the following explanation of his damage claim:

This land is situated about 41/2 miles from the centre of Tauranga on the Oropi Road and is nicely elevated with views of the harbour. The frontage which is not owned by Voyce is I understand surveyed into sections but not built on. I would say that the area has a definite subdivisional potential but not an immediate one and it is on this basis that the damage has been valued ...

I have had a rough subdivision scheme prepared and it would appear that the probable affect to a subdivision would be that the tower would appear that the probable affect to a subdivision would be that the tower would be on the front of one section the pole structure on the side or back of one section and about five or six sections traversed by one or other of the lines.97

Parsons stated that he would be offering Voyce a figure less than his claim. In the meantime he recommended that Voyce's claim should be declined.98 Walton subsequendy offered Voyce £300 in compensation. He noted this would 'save both ourselves and Mr Voyce the expense and uncertainty of Court proceedings'. Walton also argued that the 'reduction to a cash figure of the effect of power lines is a matter susceptible to considerable arguement [sic] and depends a great deal on personal prejudices and opinions'. 99

Voyce accepted the offer for £300 on 16 June 1958.100 He received notification on the 20 June 1958 that his claim for £525 had been declined by the Minster of Works.lol Parsons wrote that this denial was simply a formality in pursuance to provisions of part III of the Public Works Act 1928.102 Hanson, the District Commissioner of Works noted in the setdement documentation that he felt Mr Voyce's claim 'while not unreasonable if the land were actually in subdivision ... should be reduced in view of the fact that it is anticipating future subdivision .. .'.103

The State Hydro Department was henceforth to deal with Voyce's compensation.

Therefore, the Ministry of Works issued the middle line proclamation affecting Voyce's land on the 24 June 1954. Although the exact date of entry on to Voyce's land is unclear, the dates the structures were erected are provided. A tower, which was approximately twenty feet square at its

% A Caldwell, District Electrical Engineer to District Commissioner of Works, BAPP 5113 92/16/53/6/1 930d, ANZ- Auckland 97 Reported in C J W Parsons to Commissioner of Works, 9 June 1958, BAPP 5113 92/16/53/6/1 930d, ANZ­Auckland 98 C J W Parsons to Commissioner of Works, 9 June 1958, BAPP 5113 92/16/53/6/1 930d, ANZ-Auckland 99 J D Walton to Sharp, Tudhope & Co, 9 June 1958, BAPP 5113 92/16/53/6/1 930d, ANZ-Auckland 100 Sharp, Tudhope & Co to Ministry of Works, 16 June 1958, BAPP 511392/16/53/6/1 930d, ANZ-Auckland 101 Commissioner of Works to F M Voyce, 20 June 1958, BAPP 5113 92/16/53/6/1 930d, ANZ-Auckland 102 C J W Parsons to Sharp, Tudhope, & Co, BAPP 5113 92/16/53/6/1 930d, ANZ- Auckland 103 Ministry of Works, settlement with F M Voyce, 23 June 1958, BAPP 5113 92/16/53/6/1 930d, ANZ-Auckland

29

base, had been erected in June 1956 and wired in March 1957 and further a pole had been erected in May 1957 and wired in July 1957.

Voyce may not have had any power to negotiate the amount of land taken or the situation of the tower and poles. The department believed that Voyce suffered minimal inconvenience, as the poles followed his fence line. However, Voyce clearly felt his farming and land had been sufficiendy disrupted to deserve compensation.

3.4 CONCLUSIONS

Although the available source material did not illuminate the process of notification, it is clear that some 38 months past between the middle line proclamation affecting Voyce's land and the cessation of works.

The evidence neither supports nor dismisses Minhinnick's contention that Maori land was targeted for the Hairini substation. What it does suggest is that the general owner of Ohauiti 2, like the Maori owners of Kaitimako B and C block, faced the inconvenience and loss of land from public works takings. Nevertheless, while Voyce lost only about 15 acres, the Maori owners at Kaitimako suffered, as Minhinnick argues, the unnecessary loss of an exorbitant 103 acres when only 45 acres were thought to be needed.

The most revealing comparison offered by this case study is in terms of the ability of owners to apply and negotiate for compensation, and more significandy the timeliness of this process. In a number of cases pertaining to Maori land it appears compensation was not paid, or if so it was not apportioned to owners by the Maori Trustee.

Bassett argues that in the case of Maungatapu B, 1X1, and 1A1 compensation was not paid for at least some of the blocks. Similarly Easthope notes that it appears an application for compensation for land in Poike 6A2 and 6A3 was never filed. In the case of the Ngaitukarangi block, Willan discusses, several attempts were made through the Maori Trustee and solicitors for compensation, but to no avail. Minhinnick is, likewise, sceptical that any compensation paid for Kaitimako Band C blocks was ever distributed through the Maori Trustee and suspects it may have even been used to extinguish a debt with the Department of Maori Affairs.

In the case of Ohauiti 2, land under general title, Voyce filed his claim through his solicitors in April 1958. His claim received the considered attention, the evidence suggests, from the Commissioner of Works, District Commissioner of Works, District Land Purchase Officer, and District Electrical Engineer. The Department denied his initial £500 claim, pardy because the Department argued that compensation was to be based on the state of land at the time of taking rather than the future potential for subdivision. Nonetheless, the Department was prepared to pay £300 in compensation. The Department suggested Voyce accept the lesser amount to save both himself and the Department the expense and contention of court proceedings. The matter was closed by July 1958.

Thus taking authority dealt with Voyce's compensation claim in a more expeditious way than it dealt with Maori claims. Maori owners had to go through the Maori Trustee, and many of their compensation claims, it appears, were never even filed or paid.

30

Chapter Four: Tauranga Airport

4.1. INTRODUCTION

Public Works takings at Tauranga Airport feature in a number of existing research reports. The purpose of the chapter is to compare and contrast the processes for takings of general and Maori owned land. The airport land discussed here is primarily situated in the Whareroa block, but takings from the Omanu and Ohuki blocks are also discussed. In addition to land takings for the airport, this chapter also deals with the removal of obstructions, under public works and civil aviation legislation, and ensuing compensation.

Both Maori and general land was acquired for the Tauranga Airport, both at its inception and during subsequent extensions. The airport itself was a cost shared endeavour between local and central government, although, it appears that the Tauranga Borough Council, and later the Tauranga City Council, oversaw significant administrative functions. This included land acquisition and purchase negotiations.

The Whareroa block was originally 1,262 acres. The first taking took place in 1935 for the Tauranga Aero and Gliding Club, and the airport opened in January 1939. The Crown vested 214 acres of Whareroa in the Borough of Tauranga on 4 April 1940. One hundred and ninety two acres of the 214 acres taken were under Maori tide (22 acres were under general tide). Further land was taken around 1958-1962 for airport extensions and obstruction removal. All takings involved land held under general tide and land held under Maori tide.

31

~--------'-----. ------.----.. ---.-~ ... -.-.. --.--.-.. ---.. -.---.-.---.. ----_.!..:--

LAND TAKEN FOR AERODROME PURPOSES Source: Tauranga City Council Archive. SO Plan 30302

Pt.2BNo.6B

Tauranga Harbour

2BNo.6A

Pt,2ENo.7 Pt,2ENo.7

Pt,2F

2G1BNo.1

2G2C

2G2B

o 100 200 300 400 500 Land Taken hS:!i'X,;,iil

metres

MAP 4: LAND TAKEN FOR AIRPORT PURPOSES

Pt.2F 2G1B No.4

4.2 OVERVIEW

Whareroa is located on the eastern side of the harbour close to Mount Maunganui (see Map five). The Whareroa block, when it was awarded to Maori in 1883, comprised of 1,262 acres.104 The block was subdivided in 1896 into the Crown-owned Whareroa 1 block, totalling 81 acres 0 rood 28 perches, and the Maori-owned Whareroa 2 block, of 1173 acres 1 rood 20 perches. lOS The latter area was further partitioned on 5 May 1916 into 2A, 2B, 2C, 2D, 2E, 2F, 2G, 2H, 2J, and 2K.106

Maori sold parts of Whareroa to European settlers prior to public works takings:

.:. Whareroa 2D (21 acres 0 rood 11 perches) was transferred to George Mudgway and Thomas Paterson in 1923 (Certificate of Title 363/231). This was transferred to the Tauranga City Council in 1964 .

• :. Whareroa 2F (99 acres 0 rood 25 perches) was sold to Joseph Ricketts in 1923 and transferred to Charles Clinkard (Certificate of Title 264/264). 33 acres 3 roods 0.9 perches were sold to the Tauranga Borough Council on 5 April 1938 (Certificate of Title 711/247).22 acres 2 roods 10 perches was taken by proclamation 10182 and vested in the Borough of Tauranga (Certificate of Title 1279/28) and later amalgamated together with all the airport land in Certificate of Title 1286/48 .

• :. Whareroa 2G1A (10 acres) was sold by Makuini Renata to William Edwards (Certificate of Title 628/216) and later 2 acres 3 roods 24 perches were taken for airport purposes by proclamation 10182 .

• :. Whareroa 2E6A part (approximately 7 acres 0 rood 19 perches) was transferred by Te Raiti Hoani to Wilfred S Marshall in 1921 and it was registered in 1926 (Certificate of Title 421/203). This part was later taken by proclamation 10010 in 1939 for airport purposes and was then vested in the Mount Maunganui Borough Council as a road, later amalgamated with land in Certificate of Title 24C/658 belonging to Bay of Plenty Fertiliser Limited in 1989.107

.:. Whareroa 1, ZA, 2B, 2C, 2D, 2E3B, part 2E10, 2H, 2J, 2J3, 2J3B were not taken for Public Works, but alienated by Maori owners.108

.:. Whareroa part 2E3B was alienated in 1922 by its Maori owners. Transferred to Archibald Tudhope in 1922 (Certificate of Title 359/282). Part was taken under proclamation 38989 and transfer of part not taken for better utilisation to Tasman Pulp and Paper in 1983 (Certificate of Title 30A/104).109

104 Kere T Cookson-Ua, 'Te Awa-O-Tukorako & Whareroa Blocks', research report commissioned by the Waitangi Tribunal, June 1996, Wai 215, docA27, p68; Willan, doc F29, p 21. The McCaw Lewis Chapman report states that the Whareroa block was 'returned' in 1886 and Certificate of Title 135/291 for 1262 acres was issued on 15 December 1888. By 1998 only 23 acres 1 rood and 33 perches remained Maori land. (McCaw Lewis Chapman [Solicitors], 'Final Report on Mount Maunganui Peninsula: Volume 1', report commissioned by the claimants, December 1992, Wai 215, doc Al0, P 5). 105 Cookson-Ua, doc A27, p 17 106 McCaw Lewis Chapman, doc Al0, p6; Cookson-Ua, doc A27, p 17 107 McCaw Lewis Chapman, doc Al0, p 6 108 McCaw Lewis Chapman, doc Al0, p 12 109 McCaw Lewis Chapman, doc Al0, p 12

33

0'1 WHAREROA Source: MLIS

2E8

Tauranga Harbour

Marshall

Owned by Tauranga City Council - Reserved, .... IWI~M for Aerodrome Purposes

Owned by Tauranga City Council - Fee ........... ..I::::::::::J Simple

Joint Ownership - Tauranga City Council, ....... .1-.···.···· .. 1 Fee Simple for Purposes of an Airport. Airport Authorities Act 1966

Tauranga Harbour

o 100

~ 200 300

metres

* R.Miles and Handley Estate

~~

I

I r f: I'·

\

I

I· I

I I I

I I

I I I

I \

..

FIGURE 2: WHAREROA OWNERSHlp11o

~~iem.~1~:¥\~~fi~~~~~~r~tl~~£ ~mt~!Q"f.k~~~~1~~~~rtt~~1~I.a~~~;~~{~~)~ f~~~i~N~g:~r:~it~;i;·t~.%:~fl :·]~!N.ij;lr{ll~i:~~~t, f~~S.~~~eU,1~~:t:~~a~~)~:gi~~f;j~}f&i:"f.f!~~.h~1; 1 28 May 1896 81aOr28~ 666/214 Crown 2Al 26 September 1933 16a1r18p 813/300 European

852/268 2A2A 11 November 1953 5aOrO~ 135/291 2AB1 16 May 1961 62a3r36p 28/115 2B 5 May 1916 61alr25p 359/281 2C 5 May 1916 42alr37p 363/232 2D 5 May 1916 21aOrllp 363/231 2El 21 Julv 1920 43a3t11p 399/58 2E2 21 July 1920 41a2r35p 135/291

2E3A 1 March 1921 26a3t1Op 135/291

2E3B 1 March 1921 17aOr09p 359/282 2E4 21 July 1920 44a1r34p 135/291

2E5 21 July 1920 46a1r34.8p 135/291

2E5 Roadway 11 November 1957 3a2r15.2p 135/291 2E6A 1 March 1921 7aOr19p 876/91 2E6Bl 14January 1931 10a2r3Op 135/291

2E6B2 14January 1931 26a3r33p 135/291

2E7 (balance) 21 July 1920 23a3r09p 135/291 2E8 21 July 1920 8aOr23p 135/291 2E9 1 December 1959 29a3r38p 1749/98 2ElO 1 December 1959 72a3r39p 1749/99

2F 5 May 1916 99aOr25j> 364/267 2G1A (part) 15 October 1924 2a3r24p 1279/28 2G lA (balance) 15 October 1924 7aOr1§£ 628/216 2G1B (roadline) 21 July 1936 2a3r06p 135/291 2G1B1 21 July 1936 4Oa1r3!£ 718/252 2G1B2 21July 1936 21aOr36p 135/291 2G1B3 21 July 1936 25a2r3~ 135/291 2G1B4 (part) 21July 1936 9aOr13p 135/291 2G1B4A 9 November 1949 Oa2rOOp 135/291

4B/137 2G1B4B 9 November 1949 17a2r04p 135/291 2G2A 14 September 1926 21aOr35p 135/291 2GZH 14 September 1926 42a1r2Op 135/291 2G2C 14 September 1926 53aOr1~ 135/291 2H1 28 August 1925 21a1r03p 658/228 2H2 26 August 1925 127a2r1~ 666/291 2Jl 23 August 1934 52a1r1Op 666/132 2J2 23 August 1934 37a2r15p 135/291

2J3A 2 August 1950 29aOr25p 135/291 2J3B 2 August 1950 29aOr28p 135/291 2K1 16 Mav 1961 2a3r17.6p 135/291 2 Roadline 5 May 1916 17a1r11p 135/291 2E7A 23 October 1963 Oa1r1~ 135/291 2E7B 23 October 1963 23a1r35p 290/537

110 Maori Land Court Record Sheet: Whareroa, Maori Land Information System

Maori European (declared) Eur~an Euroj>ean Eur~ean Eur~ean

la2r05p taken by proclamation balance partitioned 1 December 1959. Now is Whareroa 2E9 12 acre taken by proclamation, balance partitioned 1 December 1959 is Whareroa 2E 1 C European 21 a2p24r taken by proclamation. Balance partitioned and now forms part Whareroa 2EI0 26a2rlOp taken by proclamation. Balance partitioned and now forms ~art Whareroa 2EI0

European Eur~ean 5a3r34p taken by proclamation. Balance now forms part Whareroa 2E10 13a3r31 p taken by proclamation. Balance now forms part Whareroa 2E10 Partition Order Marae Tasman PulE. and P~er Co. Tasman Pulp and Paper Co. Tidds Inland Tanker Service Eur~ean Eur~ean not stated

European European

European P. Glover

P. Glover Eur~an European Eur~an European Eur~ean European Morrinsville Diary Subsidiary Tatua Trading Co Ltd Thames Valley Trading Co (Maori owned in 1968 see CT 8C/1106, provisions of Maori Affairs Act 1953, s438 ~to this land) Cancelled section 184/53. See 2J3 Cancelled section 184/53. See 2)3 illegible Crown not stated Subdivided DPS 36859

35

i:j~~t~fM~~1~~1iffi{:t~tm}!~~~~0~f~ ~iDjJ.~}Q~;Q"ia~f:fh~mt1t~J~;]~·;~;fWffi~W:~~~. ~!:~~~ff~t:;~;~~4·~{:i~~.F8a:a1H~ t1i~)·N~z~::r.;;n.ri1~~;;; 3.fS.ijp:¢'ijeaea~:?~~:.!·::·~.'~:· :~~::t.H;'ii·:~~;~:;:!~:{·~·:;·r~}~t~! rk!~'[l!l~~' 2J3 23 AUJ?:Ust 1934 58a1r1Op 25B/B Not stated 2J3A 19 October 1964 29aOr25p 258/8 C. Prentice 2J3B 19 October 1964 2Ba2r36.5p [PR]273/106 ICI New Zealand Ltd 2E7B part 21 Match 19B5 16a29r05p 33A/975 Te Awanui Huka PakCo·operative Ltd.

4.3 LAND TAKEN UNDER PROCLAMATION 10182

The original aitport situated adjacent to the Waikareao Estuary, was abandoned due to limitations caused by the tides. In 1935 the Tauranga Aero and Gliding Club sought a more suitable site, and settled upon Whareroa. Construction began in April 1937 with the aitport officially opening on 14 January 1939.111 Evelyn Stokes notes that in 1936 the Tauranga County Council felt that the airport was a matter of national concern and sought money from central government, rather than local rate payers.112 The Tauranga Borough Council purchased some 296 acres from Maori and European owners through negotiation at £8 per acre in 1938.113

The Crown took 214 acres 2 roods 30 perches of Whareroa under public works legislation on 4 April 1940 and vested it in the Tauranga Borough Council for the purposes of establishing an airport. Of the 214 acres taken, 192 were Maori owned.114 Willan writes that 'although the land was largely Maori owned, the files ... do not show any attempt to consult with Maori owners.'115 Tony Walzl contends that 'it was possibly this event [the 1940 taking] which led the owners of Whareroa to view their reserve from this time as being vulnerable to acquisition,.116

Maori land taken under proclamation 10182, of which approximately 192 acres 0 roods 20 perches were Maori owned, was assessed for compensation at the Native Land Court by Judge John Harvey at £2,766.14.0 of which £2,668 was compensation and the rest expenses. McCaw Lewis Chapman wrote that in the judgement:

there was no reference to any consultation with Maori about the land being taken. Compensation was based purely on its economic usage as ascertained by European experts and issues centred aroWld whether the value should be based on its unimproved pastoral use or ... on its potential for economic development in a rapidly growing area.117

111 A C Bellamy, 'Air Transport', in A C Bellamy (ed), Tauranga 1882-1982 (Tauranga: Tauranga City COWlcil, 1982), p255; Cookson-Ua, doc A27, p 19 112 Evelyn Stokes, A History ofTauranga County (palmerston North: DWlmore Press, 1980), p 385 113Tauranga Maori Land Court minute book 14, fol200 (Cookson-Ua, doc A27, p 22) 114 Cookson-Ua, doc A27, p ix 115 Willan, doc F29, P 34 116 Tony Walzl, 'Ngati Ruahine: Land Issues Overview 1900-2000', research report commissioned by the claimants, September 2001, Wai 215, doc N2, P 34 117 McCaw Lewis Chapman, doc AI0, p 7. Emphasis in original.

36

FIGURE 3: PROCLAMATION 10182 TAKINGS

2G1B2 21aOr36p XI 135/291 PWD 105561 2G1B 3 25a2r37p XI 135/291 PWD 105561 2GZA 21aOr30p XI 135/291 PWD 105561 2G2B 42a1r19p XI 135/291 PWD 105561 2G2C 52a3r38p XI 135/291 PWD 105561 2E 6B part Oa2r07p VII 135/291 PWD 105561 2E 6B part 1a3r29p VII 135/291 PWD 105561 2E 7 part Oa3r38p XI 135/291 PWD 105561 2E 7 part 16a2r26p XI 135/291 PWD 105561 2F 22a2r10p VII and XI 364/267 PWD 105561 2G 1A part 2a3r24p XI 628/216 PWD 105561 2G 1B4part 2a3r10p XI 135/291 PWD 105561 2G 1B part 2a3r06p XI 135/291 PWD 105561

,:,;;;;.'i;;;:;!;;:"~l;{;Ef):kl/%}~;;~i[t,,:\'C:,;,,:;;,:J';";~W:~·':;'!::;;·'ii;I;;;i:!iN;:.!'jl:;;!:;!;i.";!!i;]l;;;?::~!:!i"'\:!":"

Native Land Court Judge John Harvey heard an assessment of compensation for the parcels of land in December 1940. The Tauranga Borough argued the land was worth £4- £5, the owners valued it at £30 per acre and Whareroa part 2E6B at £200 and part 2E7 at £250.118 Judge Harvey stated that the Court would not be dealing with Whareroa 2F(2) nor 2G1B1 when considering land taken for airport purposes by proclamation dated 21 April 1940.119 There was some contention over the valuation of Maori land taken under the proclamation. Values provided by the Tauranga Borough Council ranged from £4 to £5. Counsel for the Maori owners, Mr Cooney questioned these valuations as not taking into account growth and the potential of residential development in the attractive harbour-side land. Cooney contended that Maori land was worth generally £30 per acre. Judge Harvey stated, however, 'I am not prepared to agree that the composite area [Whareroa land taken under 1940 excluding Whareroa parts 2E6B and 2E7] being dealt with at this juncture is worth as much as either Midwinter's [£30 per acre] or Dalbeth's [£35 per acre] block, but I am equally unprepared to believe that it is only worth one-seventh of the figures at which the properties changed hands' .120 The Court determined on 31 March 1941 that £2,668 compensation was due for 192 acres 0 rood 20 perches of Maori land at Whareroa, or £13 lOs 1d per acre, taken under proclamation dated 21 March 1940.121

4.4. GENERAL LAND TAKEN 1935-1945

The Crown acquired part of the general land in Whareroa 2F, owned by Charles Clinkard was transferred by agreement for the purposes of an airport and in 1940 part was taken under proclamation 10182. Whareroa 2F contained 99 acres 0 roods 25 perches, it was originally sold to Joseph Ricketts, a settler of Tauranga, on 1 November 1922 at £9 an acres. l22 The land in Whareroa 2F was then transferred from Ricketts to Charles Clinkard on 16 March 1928.

118 Cookson-Ua, doc A27, pp ix-x 119 Tauranga Maori Land Court minute book 14, 12 December 1940, fo1176 120 Tauranga Maori Land Court minute book 14, f01s 204-205 (Cookson-Ua, doc A27, P 23) 121 Tauranga Maori Land Court minute book 14, fols 199-206 (Cookson-Ua, doc A27, P 23) 122 Partition Order: Whareroa 2F, Maori Land Court, Maori Land Information System

37

Clinkard had an arrangement with the Tauranga Aero and Gliding Club for the use of his land in Whareroa 2F. On 22 May 1935, the District Engineer noted:

the option given by Mr Clinkard has expired, the [Aero] Club is arranging a fresh agreement conforming to the actual area now seen to be required, as portions of the original 50 acres are unsuitable. No difficulty is anticipated concerning a renewal of the agreement with Mr Clinkard. The agreement with Macuini [Makuini] Renata was discussed with the Native Land Registrar, who indicated that it would be acceptable as far as his Department was concemed.l23

The Public Works Department explored options for acquiring land owned by Clinkard, as well as land owned by Mrs Makuini Renata, as early as 1935. On 17 June 1935, M D Laurenson submitted a report to the District Engineer with regards to land required for the airport:

Mr Charles Clinkard. The area leased from Mr Clinkard is 36 acres approximately, and the Aero Club is leasing this at the rate of £14.8.0 per annum for the next 7 years. For the following 7 years the rate will be £18 per annum, and for the final 7 years the rate will be £21.12.0 per annum.

To obtain the Freehold of the 36 acres, the Aero Club have the right to purchase the land at the rate of £8 per acre during the first 7 years, at £10 per acre during the second 7 years, and £12 per acre during the third seven years.

Mrs Makuini Renata. This woman owns land immediately adjoining Mr Clinkard's block, and advised representatives of the Aero Club that she was the sole owner of same. As we required 36 acres of her land, an agreement was entered into with Mrs Renata to lease or purchase her 36 acres at the same rate and for the same amount as itemised above in the case of Mr Clinkard. On a search being made of the title, it was discovered that Mrs Renata was not the sole owner of the land mentioned. Actually there were eight owners of this particular block. (Whareroa No. 2G lB. Area 117 acres 1 rood 14 perches). Mrs Renata, however, will be applying for a partition order to give her sole title of the 36 acres under discussion and as she has an interest of 11982 shares out of a total of 18774 shares of the block ... we expect that the Native Court will be able to arrange same.

RE ROAD ACCESS TO HARBOUR. We understand that the owners of land immediately to the West of Mr Clinkard's section area as follows:

Inoko Ngatai and Tatau Ngatai- 50 acres 0 roods 10 perches. Tamatai- 37 acres 2 roods 23 perches. Marshall- 7 acres 0 roods 19 perches. Rewiti- 41 acres 1 rood 3 perches.

Any road to go through to the beach will have to go through one of the above mentioned properties, and it appears to us that Marshall's 7 acres 0 roods 19 perches would be the most suitable, providing it can be obtained at a reasonable figure, and further provided that it is a suitable area from your point of view.124

In December 1935, the District Engineer reported that 'Clinkard's lease is fixed up. A partition order is before the Native Land Court for Makuini Renata's property. Nothing has been fixed up re access to wharf site, and this land may have to be taken'.125

The Bqy of Plenty Times reported on 10 December 1936, that 127 acre 1 rood 14 perches was to be acquired for the airport. The Tauranga Borough Council had taken a loan of £3500 in part to effect the acquisition of land.126 The District Engineer was eager, as the loan had been arranged, to 'hurry' on the acquisition of land and complete formalities. 127

123 District Engineer to Permanent Head of Public Works, 22 May 1935, BAHS A591 6/5 15a, ANZ-Auckland 124 M D Laurenson to District Engineer, 17 June 1935, BAHS A591 6/515a, ANZ-Auckland. Formatting in original. 125 District Engineer to Permanent Head of Public Works, 4 December 1935,4 December 1935, BAHS A591 6/5 15a, ANZ-Auckland 126 Bqy ojPlen{y Times, 10 December 1936 127 District Engineer to Tauranga Borough Council and Permanent Head of Public Works, 30 November 1936, BAHS A591 6/5 15a, ANZ-Auckland

38

On 11 March 1937, the District Engineer reported that negotiations were ahnost complete with regards to purchase of land. £560 had been dedicated to the purchase of approximately 70 acres. l28 The District Engineer then arranged for the required survey of the area Clinkard had agreed to be sold to the Tauranga Borough for £8 per acre. Mrs Makuini Renata had signed a transfer to the Borough for 40 acres 2 roods of Whareroa 2G1B1, the transfer was with the Native Land Court for confirmation. The Borough understood that 7 acres 19 perches of Whareroa 2E6A could be purchased for £100 from Mr Marshall.129 The Assistant Under­Secretary of Public Works, writing on 14 October 1937, contended that 'considering the amount of money which is being spent on the development of the aerodrome, this office is of the opinion that the Borough Council should acquire the freehold of all the land required,.130

The Bqy of Plenty Times reported that the Tauranga Borough Council had voted to request Clinkard's consent to enter his land prior to purchase. l3l In January 1938 the District Engineer instructed the Town Clerk of Tauranga Borough Council to 'notify the owners of the additional land required for extension to the aerodrome that ... it is my intention to enter upon the said land in order to proceed with the work which is now required. It may be necessary to quote the Public Works Act 1928 and its Amendment no 27, 1935'.132

Clinkard sold part of Whareroa 2F, some 33 acres, to Tauranga Borough Council in 1938.133 This part was transferred to the Councillors and Burgesses of the Borough of Tauranga for the purposes of an airport on 5 April 1938. The Borough ofTauranga took this part of Whareroa 2F, 33 acres 3 roods 9 perches, for the purposes of an airport as an Aviation Authority under The Local Authorities Empowering (Aviation Encouragement) Act 1929.

Therefore, the evidence suggests that while originally 36 acres were desired, 33 acres 3 roods 9 perches were acquired initially, and compensation was to be paid at £8 an acre, with payment to be made over 7 years from February 1935. A further part of Whareroa 2F, 22 acres 2 roods 10 perches, was taken by proclamation 10182 and vested in the Borough of Tauranga under Certificate of Title 1279/128 and later amalgamated with all airport land under Certificate of Title 1286/48.134 Proclamation 10182, taking part of land for airport purposes, was furthered with another proclamation, 11102, taking part for defence purposes on 12 July 1942.

Trees were also to be felled on Clinkard's property due to runway approach height restrictions. Requirements for the airport meant that overhead wires, poles and other obstructions, such as trees, could not approach beyond a gradient of one in fifteen from the boundary of the airport. On 24 June 1937, the Engineer-in Chief of the Public Works Department instructed the District Engineer at Tauranga that if he experienced any difficulty with regards to obstructions he may invoke the Public Works Amendment Act 1935.135 In order to clear obstructions £500 was available, over the additional 210 acres to be acquired from 1937. The District Engineer noted

128 District Engineer to Permanent Head of Public Works, 11 March 1937, BAHS A591 6/5 15a, ANZ-Auckland 129 District Engineer to Permanent Head of Public Works, 19 March 1937, BAHS A591 6/515a, ANZ-Auckland 130 Assistant Under-Secretary of Public Works, 14 October 1937, BAHS A591 6/515b 2, ANZ-Auckland 131 Bqy of Plenty Times, c1938, BARS A591 6/5 15b 2, ANZ-Auckland 132 District Engineer to Tauranga Borough Council, 21 January 1938, BAHS A591 6/5 15b 2, ANZ-Auckland 133 Certificate of Title 711/247 134 McCaw Lewis Chapman, doc Al0; Land taken for an aerodrome in Blocks VII and XI, Tauranga Survey District, 21 March 1940, New Zealand Gazette, 1940, no 30, p 628 135 Engineer-in-Chief to District Engineer, 24 June 1937, BAHS A5916/5 15a, ANZ-Auckland

39

that this money was based on a preliminary estimate and may be recoverable by sale of firewood.136

The District Engineer argued in November 1938 that the trees on Clinkard's property were a matter of urgency and compensation must be arranged by the Controlling Authority, presumably the Tauranga Borough Council, while the Department would provide the cost of clearing the trees.137 Clinkard wrote that 'it is provided also that the timber is to be my property when felled and that the sum of One hundred pounds compensation mentioned is part from any claim for further loss of shelter in respect to the 22 acres additional land being taken,.m In August 1941, the Public Works Department again needed to enter Clinkard's property to clear obstructions. The Department was unaware of any agreement with Clinkard to enter the land, and in lieu of an agreement being made the Department resolved it would be more suitable to invoke sections 4 and 5 of the Public Works Amendment Act 1935 and the Defence Emergency Regulations.139

Clinkard dedicated further land to airport use in 1941. On 20 August 1941 Mr Clinkard 'verbally agreed' to leasing a quarter acre of his land, at £2 per annum for the purpose of staff accommodation for the airport,l40

In November 1943, it appears that the residual land of proclamations 10182 and 11102 was transferred from Clinkard to Miriam Martha Midwinter. 141 The Midwinters had 40 acres 2 roods 23.6 perches acquired in 1949 for airport purposes by the Tauranga Borough Council, pursuant to the Local Authorities Empowering (Aviation Encouragement) Act 1929.142 At 15 June 1949, it was noticed that amongst issues outstanding, was the right to top trees on Midwinter's land.143 In October 1952, Mr Midwinter requested that the Ministry of Works supply fencing posts to a value of some £20 to fence between his property and the airport. l44 The District COnmUssioner of Works responded that the Department had no obligation to supply any materials for the boundary fence, adding that Midwinter had been paid £6,150 in full and final settlement.145 The part of Whareroa 2F taken under proclamation 11102 was declared Crown land under the Land Act 1948 and entered as such on 12 April 1962. A further 28.3 perches, part Whareroa 2F block, was taken for a road in 1962 under the Public Works Act 1928.146

Another European owner, Wilfred S Marshall, had part Whareroa 2E6A block acquired for airport purposes. Part Whareroa 2E6A, approximately 7 acres 0 rood 19 perches, had been transferred by Te Raiti Hoarn to Marshall in 1921. Marshall's land was favoured as the best option for an access road to the harbour, compared to sections owned by Inoko Ngatai and

136 District Engineer to Permanent Head of Public Works, 18 June 1937, BAHS A591 6/5 15a, ANZ-Auckland 137 District Engineer to Tauranga Borough Council, 23 November 1938, BAHS A591 6/5 16a 3; BAHS A591 6/5 16b 4, ANZ-Auckland 138 C Clinkard to Tauranga Borough Council, 17 December 1938, BAHS A591 6/517a 5, ANZ-Auckland 139 N E Hutchings, Assistant Under-Secretary Public Works Department to District Engineer, 13 August 1941, BAHS A591 6/5 17a 5, ANZ-Auckland 140 District Engineer to Permanent Head of Public Works, 20 August 1941, BAHS A591 6/517a 5, ANZ-Auckland 141 Transfer 368112 142 Proclamation consenting to the acquisition of an aerodrome site by the Tauranga Borough Council, 15 March 1939, New Zealand Gazette, 1939, no 19, pp708-709; AAPR W3962 76/28/1 81 2, ANZ-Wellington 143 H M Thompson, Senior Engineer to Ministry of Works, 15 June 1949, BAHS A591 6/5 134b, ANZ-Auckland 144 Resident Engineer to District Commissioner of Works, 3 October 1952, BAHS A591 6/5/4 21b, ANZ-Auckland 145 District Commissioner of Works to Resident Engineer, 15 October 1952, BAHS A591 6/5/4 21b, ANZ­Auckland 146 Land taken for road and land held for an aerodrome set apart for road in the Borough of Mount Maunganui, 19 June 1962, New Zealand Gazette, 1962, no 44, p1078; Certificate of Title 7111/247

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Tatau Ngatai, Tamatai and Reweti.147 This part was later taken by proclamation 10010 in 1939 for airport purposes and was then vested in the Mount Maunganui Borough Council as a road. Marshall received £116 lOs compensation. The land was later vested in the Mount Maunganui Borough Council as a road in 1985. In 1989, the land in part Whareroa 2E6A was amalgamated with land in Certificate of Title 24C/658 belonging to Bay of Plenty FeItiliser Limited.148

The treatment of Clinkard's and Midwinter's land in WhareIOa 2F and Marshall's land in Whareroa 2E6A, all held under general title, which were taken by agreement and under proclamations 10182 and 10010 can be compared with land takings from Maori owners. For example, Mrs Makuini Renata had 36 acres of land held under Maori title, taken at similar terms to Clinkard's land, and MIs Henri Tamati who had 27 acres taken with compensation at £8-£10 per acre, her payments spread over 7-21 years. 149 The Bqy ojPlenry Times wrote on 13 November 1949 that airport land totalling 296 acres 16 perches had been acquired at a cost of £3,879. The newspaper noted that the Tauranga Borough Council had purchased this land partly from a Maori owner and a European owner. It also acquired a part under the compulsory provisions of the Public Works Act 1928.150

147 M D Laurenson to District Engineer, 17 June 1935, BAHS A591 6/5 15a, ANZ-Auckland 148 McCaw Lewis Chapman, doc A 1 0, P 6 149 'Proposed Tauranga Aerodrome', AAPR W3962 76/28/13 82 1, ANZ-We1lington; Land taken for the purposes of an aerodrome in Blocks VI, VII, X and XI, Tauranga Survey District, 23 August 1939, New Zealand Gazette, 1939, no 66, p 2244; Proclamation consenting to the acquisition of an aerodrome site by the Tauranga Borough Council, 15 March 1939, New Zealand Gazette, 1939, no 19, p 708 150 V W8241/366/2653, ANZ-We1lington

41

---'~--.'-' :,~;:'~ .. ,-' ~--'--------

TAURANGA AERODROME c.1950

BOROUGH OF MOUNT

MAUNGANUI

Tauranga

Harbour

Railway Wharf

MAP 6: TAURANGA AIRPORT C1950

c:::J Crown Land _ MaoriLand

lii!'''M\tj~1 General Land

~ Aerodrome Extensions

>+t+H+t- Existing Railway

H' .... ' .. " Proposed Railway

Borough Boundary

Roads

r:::::; Land Taken for Better Utilisation

0,5 1,0 ~--'-'-t;kl;;:!:IOm;:;.tr=-'. ~~,

4.5. LAND TAKEN FOR AIRPORT REMOTE RECEIVING STATION

The Crown also took general land from Mrs Walker for an airport remote receiving station, 67 acres 3 roods 39.3 perches from Whareroa 2C2C. The archival material suggests that while it needed only 12.5 acres, 63.S acres were taken. This amount increased further, it appears, to 67 acres 3 roods 39.3 perches.151 An access road was sited on Walker's land, although there was no record of when the road was established.152 A trunk cable was also proposed to follow the route of the access road. Walker requested that compensation be considered and the District Engineer said this matter would be resolved subsequent to a survey of her land. Notice was served on Walker on 23 January 1963, that the Department may enter her land to perform surveys prior to negotiations for purchase of the land.153 This action was pursuant to section 107 of the Public Works Act 1928, which gave the Department leave to enter land to perform survey and analysis of the land, a warrant for entry was required for entry under this section. The right of entry was on condition that the owner was given due notice.154

Walker was advised in January 1963 that it was 'probable' that the Department would like to start construction before completing negotiations for the purchase of land. The Department requested that Walker sign a consent form for the commencement of work, assuring her that her claims for compensation would not be prejudiced.155 The Department of Works noted in February 1963 that while Walker had no objection to entry being made for surveys and tests, she would not sign a consent to the taking of required land. Walker believed that 'the Crown should acquire the whole block and she is prepared to negotiate to sell the whole block'.156 Solicitors for Walker wrote to the Department of Works on 26 April 1963 inquiring whether the Public Works and Civil Air departments were going to take all of Walker's property rather than just a portion of it.157 Resident Engineer, F F Abey wrote to solicitors for Walker on 1 May 1963 and they advised they were unable to provide the information that was sought regarding her land:

Shortly after instructing this Department to do work on Mrs Walker's land, the Air Department changed their ideas, and the present position is that we do not know what they want done, or if they will be requiring any part of Mrs Walker's land. You can depend on Mr Morris getting in touch with Mrs Walker

. h th A' D ,. kn .158 agaIn W en e tr epartment s requtrements are own

4.6. LAND TAKEN FOR AIRPORT EXTENSION AND HEIGHT RESTRICTIONS c1957-1962

The Crown took further land from Whareroa, Ohuki, and Omanu blocks to pursue a runway extension and to minimise obstructions due to height restrictions between c1957 and 1962. The

151 AAPR W3962/82 76/28/14 1; AAPR W3962/82 76/28/14 2, ANZ-Wellington 152 District Engineer to Resident Engineer, 30 November 1962, BAHS A591 6/5 13 20b, ANZ-Auckland 153 Resident Engineer to C Walker, 23 January 1963, BAHS A591 6/5 13 20b, ANZ-Auckland 154 District Commissioner of Works to Resident Engineer, 24 December 1962, BAHS A591 6/5 13 20b, ANZ­Auckland ISS Resident Engineer to C Walker, 29 January 1963, BAHS A591 6/5 13 20b, ANZ-Auckland 156 District Commissioner of Works to Resident Engineer, 3 February 1963, BAHS A591 6/5 13 20b, ANZ­Auckland 157 Butlet, White & Hanna to Resident Engineer, 26 April 1963, BAHS A591 6/5 13 20b, ANZ-Auckland 158 Resident Engineer to Butler, White & Hanna, 1 May 1963, BAHS A591 6/5 13 20b, ANZ-Auckland. The Air Department became the Department of Civil Aviation under the Civil Aviation Act 1964.

43

Royal New Zealand Airforce too over the airport in 1941 and it became the Central Flying School. The Crown returned the airport to civilian use after the war, but it was to be January 1947 before normal services resumed.159 Stokes writes that '[u]ntil the 1960s the Tauranga Aerodrome remained a grass field substantially unaltered from the Air Force Base of the 1940s. In Apri11960 the New Zealand Herald reported local hopes that "with Government help an airport with a 4,100 foot [1,250 metre] runway may soon be built at Tauranga",.16o Robert E Young, writing in 1969, recollected the success of the airport extension:

A 4200ft sealed runway ensures an all-weather passenger service with an aerodrome which is recognised as one of the most accessible and safest in New Zealand. The aerodrome is a credit to past councillors who believed in the future of aviation.161

Young also noted that the airport authority had purchased further land to 'leave room for future extensions of the runway to 6000 feet'.162.

Bruce Cunningham, the Town Clerk of Mount Maunganui from 1950 until 1987, stated that he could 'remember back in the early 1960s when these matters were first debated and it was suggested that, instead of an airport at Mount Maunganui, we should be looking towards a central airport for the Bay of Plenty. This was hurriedly put aside and, beyond saying this could be looked at in the future, it was obscured by the anxiety to concentrate on local development'.163

The issue of height restrictions and the removals of obstructions was a significant issue. Trees were removed from the Handley and Miles Estates in approximately February 1957.164

Compensation of £850 for removal of trees was payable to the Handley and Miles Estates and R Casde.165 The Estates of Harold Roy Miles, Sidney Robert Handley and Ralph Casde were freehold 95 acres 3 roods 18.1 perches parts Omanu 1, 2Al, 2Bl, 2B2, and 2B3 blocks; 3 acres 2 roods 21.1 perches of part Lot 2 DPS 849 and 10 acres 3 roods 28 perches part Ohuki lCl and leasehold 25 acres 2 roods of part Whareroa 2A2 under Maori lease of 21 years. The date of entry to remove obstructions was approximately 19 March 1957. The formal claim was lodged on 27 March 1958 for £1500 for loss in land value, £158 for crop damage, £50 for loss of pasture use, £25 damage to entrance road. The setdement based on valuations for the Crown and for the claimants was set at £750 for loss of value ofland and £100 for crop damage, plus interest of 4.5 per cent from the date of entry to date of payment for the freehold land. 166

In 1959,67 acres, 3 roods and 25.7 perches were acquired under public works legislation for the airport. Wa1zl notes that 'this land was apparendy not needed for specific airport requirements as such, but to ensure that the height restrictions for land around the airport were kept. Rather than attempt to control trees and prospective building through town planning regulations, it was

159 Bellamy, p 256 160 Stokes, A History ofTauranga Counry, p 386 161 Robert E Young, Bqy ofP/enry (National Printing Co, 1969), Tauranga City Library New Zealand Room Collection 162 Robert E Young, Bqy ofPlenry (National Printing Co, 1969), Tauranga City Library New Zealand Room Collection 163 Bruce Cunningham, 'Early Mount Maunganui', Historical fuview Bqy ofPlenry Journal of History, vol 44, no 1, May 1996, p 5 164 Resident Engineer to District Commissioner of Works, 18 February 1960, BAHS A591 6/5 20a 12, ANZ­Auckland 165 Work Authority Requisition, 11 March 1960, BAHS A591 6/5 20a 12, ANZ-Auckland 166 District Land Purchase Officer to District Commissioner of Works, 11 February 1960, BAHS A591 6/5 20a 12, ANZ-Auckland

44

deemed to be a less troublesome and expensive option to simply own the land'.167 The town clerk argued that town planning regulations were ineffective and that 'ownership would give positive control with much less trouble and inconvenience and possibly no greater cost' .168

It had been noted earlier, in May 1952, that a height restriction existed over A S Patterson's property in Whareroa 2C and 2D blocks. The acting Resident Engineer noted that this was due to the North-South runway, and future proposals for the runway may involve the taking of the western comer of Patterson's property.169 In a letter from Lester Butters, Town Clerk to the Director of Civil Aviation, 8 October 1959 negotiations for lots were discussed. Patterson, the owners of Lots 1 and 2 asked £16,500 for her land. Lots 3 and 4 were owned by J Paki, who had offered to sell Lot 4 for £5,000, however, Butters considered that 'on negotiation this area may be secured for a figure somewhere near the Government valuation'. Areas 5, 6, 7 and 8 were owned by the Estates of S R Handley and H R Miles, it was noted that, 'the Estates are anxious to sell ... it is possible the whole of the Estate lands could be secured for the Government valuation'. Butters thought furthermore that:

the position might arise where area 5 to 8 inclusive could be purchased at a reasonable price but area 4 could not and Council seeks information on the policy of taking any of the above lands by proclamation under the Public Works Act if it is not possible to negotiate purchases at a reasonable figure. 17o

Willan suggests the Civil Aviation Authority (CAA), known as the Air Department prior to 1964, and council preferred to compulsorily acquire land citing the Director of Civil Aviation:

since the land in question is shown on the plan to belong to Maori owners the matter was refetred to the M:inistry of Works who advise that where direct agreement cannot be reached due to such things as complication in ownership for family or tribal reasons the Public Works Act is used as a means of initiating negotiations finally to be referred to Maori Land Court for a ruling.171

F M Hanson wrote to the Director of Civil Aviation on the 14 January 1960 suggesting that 'the initial extension to be undertaken ... would require little more than the acquisition of the Maori owned Lot 4,.172 Minister of Civil Aviation, J K McAlpine thought that 'while acquisition of the smaller property would provide sufficient land for a 4200 foot runway it would be prudent to purchase the other property at the same time to allow for possible use of the airport by aircraft larger than the Friendship,.173

McAlpine'S cabinet memorandum of March 1961 detailed plans for the acquisition of land for a runway extension to 6000 feet was detailed. The Crown acquired the Miles and Handley Estate lands, held under general title, for £20,000, just £250 above the government valuation. It acquired the Paki land, held under Maori title, for £5,100, £770 above the government valuation. McAlpine noted that the costs provided for an additional ten per cent (£2,510) for 'contingencies'. Contingencies allowed for 'survey and transfer costs and because the sale of Mr

167 Walzl, doc N2, P 82 168 Town Clerk to Director of Civil Aviation, 11 November 1959, AAQB W4073 23/404/1, ANZ-Wellington (Willan, doc F29, p 35) 169 Acting Resident Engineer to District Commissioner of Works, 5 May 1952, BAHS A591 6/5/4 21b, ANZ­Auckland 170 Lester Butters, Town Clerk, to Director of Civil Aviation, 8 October 1959, AAQB 4073 23/404/1 69, ANZ­Wgtn 171 Director of Civil Aviation to Town Clerk, 21 October 1959, AAQB w4073, 23/404/1, ANZ-Wellington (Willan, doc F29, pp 34-35) 172 F M Hanson to Director of Civil Aviation, 14 January 1960, AAQB 4073 23/404/1 69, ANZ-Wellington 173 J K McAlpine, Cabinet memorandum, March 1961, AAPR 3962 76/28/1 81 2, ANZ-Wellington

45

Paki's property will be determined by the Maori Land Court which may require a variation in the price' .174 McAlpine indicated that an option for acquiring the Miles and Handley Estate had been agreed at £20,000, the option expiring on 31 March 2006.

The Crown's Deed of Transfer to the Tauranga Borough Council signed 31 August 1961 divulged the practical details of the airport, such as land acquisition and management of the airport,175 The deed stated that it:

is considered desirable and necessary that the area of the Tauranga Aerodrome ... be increased by the purchase of the adjoining properties of Rita Miles and the Public Trustee of the Dominion of New Zealand and of J. Paki ... the Council has completed negotiations with the said Rita Miles and the Public Trustee for the purchase of the land ... at a price of £20,000 and has completed negotiations with the said J. Paki for the purchase of land ... fixed by the Maori Land Court at £6,090 together with all incidental expenses related to the purchase, inclusive of the cost of survey of a small area of land to be retained by the vendor not yet ascertained'. While the costs of acquiring these lands and maintaining and managing the airport would be undertaken by both the Crown and Council, the day to day running of the airport would be undertaken by the Council.

Land acquired in the previous stage of airport development was also apportioned to parties to the Deed, the Crown and the Tauranga Borough Council. 40 acres 2 roods 26 perches of Whareroa 2F, 6 acres 1 rood 3 perches and 2 roods 24 perches of Whareroa 2G1B4 were vested in the Crown. The land vested in the Council were 33 acres 3 roods 9 perches of Whareroa 2F, 40 acres 1 rood 38 perches of Whareroa 2G1B1, and 214 acres 33.8 perches of Whareroa 2G1B2, 2G1B3, 2G2A, 2G2B, 2G2C and parts 2E6A, 2E6B, 2E7, 2F, 2G1A, 2G1B and 2G1B4.176

C G Marchant, the Tauranga Borough Treasurer wrote to the Director of Civil Aviation on 3 October 1961. The Tauranga Borough Council had entered to a cost share agreement with the Crown for acquisition of additional land to extend the Tauranga airport. Marchant wrote to the Director asking for promptness in issuing the £13,050 with respect to the purchase of two properties. The council, Marchant noted, had to arrange temporary finance for the land purchase and would be grateful for the prompt payment as per the cost share agreement.177 The two properties that had been acquired were the Miles and Handley Estate and land belonging to J Paki. The Miles and Handley Estate, 106 acres 3 roods 6.1 perches of Omanu 1, 2A, no.1, 2B 1 to 3 and the western part of Ohuki 1 C, no. 1 was purchased for £20,000. The land belonging to J Paki, 68 acres 1 rood 5 perches, part of Whareroa 2A was purchased for £6,100.178 The land acquired from Mrs Miles for airport extensions, had been leased back to her.179

W Craig, the Director of Civil Aviation, declared on 5 March 1962:

It is confirmed that the land comprising the Tauranga aerodrome as described in New Zealand Gazettes 1953, page 10, 1954, page 1551 and 1942, page 1886 should be decleared [sic.] Crown land and vested in the Tauranga Borough Council in trust for aerodrome purposes. 180

174 J K McAlpine, Cabinet memorandum, March 1961, AAPR 3962 76/28/1 81 2, ANZ-Wellington 175 Deed between Her Majesty the Queen, acting through the Minister in Charge of Civil Aviation and the Mayor Councillors and Citizens of the Borough ofTauranga, 31 August 1961, BAHS A591 6/5 20a 12, ANZ-Auckland 176 Deed between Her Majesty the Queen, acting through the Minister in Charge of Civil Aviation and the Mayor Councillors and Citizens of the Borough of Tauranga, 31 August 1961,First Schedule, BARS A591 6/5 20a 12, ANZ-Auckland 177 C G Marchant to Director of Civil Aviation, 3 October 1961, AAPR 3962 76/28/1 81 2, ANZ-Wellington 178 The figure of £6,100 appears in several other sources as £5,100. 179 Resident Engineer to Cooney, Jamieson, Lees & Morgan, 14 August 1961, BAHS A591 6/5 20a 12, ANZ­Auckland 180 W Craig, Director of Civil Aviation,S March 1962, AAQB 4073 23/404/169, ANZ-Wellington

46

In a statement from J T Gilkinson, Commissioner of Works, on 7 November 1962, the lots of land in Tauranga Survey District, blocks VI and XI, were characterised as: 181

Land 1 95a3r18p Omanu no 1, 2A no.1, 2B no.1, 2B no.2, 2B no.3 and all the land in CT 696/299

Land 2 10a3r28p Being parts Ohuki no. 1C no. 1 block and all the land in CT 852/267

Land 3 67a3r25.7p Being part Whareroa 2A 2B block

The District Commissioner of Works, C J W Parsons, reported that land had been acquired in January 1963. Area 1 and 2 (totalling 106 acres 3 roods 6.1 perches was acquired by the Council under a transfer registered in June 1961. Area 3 (totalling 67 acres 3 roods 25.7 perches), 'being Maori-owned land is the subject of a Transfer from the Maori owner to the Council which Transfer has been approved by the Maori Land Court subject to a survey adjustment'.182

Parts of the lands taken were not needed and subsequently leased by a dairy farm. The Crown vested surplus land 1953 (Whareroa 2F and 2G1B4 blocks) in the council under the Reserves and Domains Act in 1962. Willan proffers that this case study highlights flaws in pre-1981 legislation, as there was no legal obligation to offer land back to original Maori owners.183 A draft proposal for the airport site, authored by N G Hansen in November 1964, discussed the price of land acquisition in the Mount Maunganui Borough for the airport. The land, of which 1,001 acres was general land owned by 2 owners, 919 acres of Maori land and 62 acres of Crown land was valued by the government at between £17.4 and £18.7 per acre, a piece of land sold in 1962 had fetched £22.4 per acre.184

Mayor of Tauranga , D S Mitchell wrote in November 1964 that the Tauranga City Council was 'in a position to go ahead with the Aerodrome sealed runway'.185 Stokes notes that local authority co-operation broke down in 1964 due to concerns, as the runway was not sealed and there were some doubts over whether Whareroa was indeed the best site for a permanent airport.186 The Department of Civil Aviation closed the airport to domestic flights as the runway was reconstructed and sealed in 1966-1967.187

At this time, the Crown made the Tauranga City Council an airport authority pursuant to the Airport Authorities Act 1966, and authorised it to acquire land under the Public Works Act 1928. The Airport Authorities Act 1966 defined an 'airport authority' as a local authority authorised to establish maintain and operate an airport. Subsection (2) also defined that a person or association of persons may be authorised to carry out the powers of a local authority with regard to an airport, this was termed an airport company'. According to the 1966 Act, a local authority could compulsorily acquire land and vest it in an airport company.188

181 J T Gilkinson, Commissioner of Works, 7 November 1962, AAQB 4073 23/404/169, ANZ-Wellington 182 CJ W Parsons, District Commissioner of Works, 11 January 1963, AAQB 407323/404/1 69, ANZ-Wellington 183 Willan, doc F29, pp35-36; Declaring land taken for a government work and not required for that purpose to be Crown land, 19 March 1962, New Zealand Ga~tte, 1962, no 20, p520; Bqy of Plenty Times, 2 April 1988 184 N G Hansen, draft proposal for airport site, 24 November 1964, AAQB 4073 23/404/169, ANZ-Wellington 185 D S Mitchell to W L Birnie, 5 November 1964, Tauranga City Council Archive, Microfilm Cartridge 77 186 Stokes, A History ofTauranga Country, pp 386-387 187 Bellamy, p 256 188 Davies, p77

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4.7. EPILOGUE

In 1962 the council and Crown agreed to vest surplus airport land in the council under the Reserves and Domains Act 1953, this required the land to have a status of Crown land. The council had control of land, including 47 acres of Whareroa 2F, and 2G1B4 blocks, acquired for the airport but no longer required. Willan notes that 'the land was declared Crown land available for disposal and it appears that it was leased to generate income to maintain the airport'.189 It emerges that there was no legal obligation to offer back to former owners.

There was some debate over the site of the airport in 1964. The Airport Management Committee believed that Whareroa was an adequate site for further development, however, the Tauranga County Council felt that the airport placed limitations on other industrial and port developments due to height restrictions and noise.190 The conflict continued, 'in 1971 the County Council objected to moves by the Airport Committee of Management to release for sale for residential purposes some of the land vested in the Committee on the grounds that it could be needed for future development of air services.'191

Debates also took place in the late 1970s and 1980s concerning the potential of relocating the airport. For example, on 28 March 1985 Tauranga City Council announced it wished to dispose of land in part Whareroa 2E6B2, an area totalling approximately 54 acres which had been taken under proclamation 10182. One option that was discussed was the relocation to Papamoa, which Heather Bassett and Richard Kay have noted was a predominately Maori owned area that had been of choice to both local and central governments for public works.192 It appears that the plan to relocate the airport was not pursued. However, it emerges from the present status of airport land, as detailed below, that parts were disposed of.

Below is the present status of the Tauranga Airport land, around 554 acres of land. The airport itself is owned fee simple by the Tauranga City Council joindy with the Crown.

189 District Commissioner of Works to Commissioner of Works, 1 February 1962, AAQB W4073, ANZ-Wellington; Declaring land taken for a govemment work and not required for that purpose to be Crown land, 19 March 1962, New Zealand Gazette, 1962, no 20, p 520 (Willan, doc F29, p 36)

·190 Stokes, A History ofTauranga County, p 387 191 Stokes, A History ofTauranga County, p 387 192 Bassett and Kay, doc E1; AATE 5113 949 194a 60/1/2/3, ANZ-Auckland

48

FIGURE 4: OWNERSHIP OF TAURANGA AIRPORT LAND193

. ,:i ;,:. ',' .;.:.<::;

(1961

(1961

(1961

193 Information provided by Mr John Budden, Senior Property Officer Tauranga City COWlcil a amie Mitchell, 'Report on Unresolved Land and Resource Issues for the Tauranga District Inquiry', May 2006, Wai 215 record of inquiry, pp 11-12). Not yet registered on record of inquiry.

49

. .

4.8. CONCLUSIONS

The Tauranga Borough Council negotiated with both owners of Maori and general land for purchase of land for the airport in the late 1930s. It appears that the Maori owner, Renata enjoyed similar rights of negotiation and compensation tantamount to what was offered to the general land owner adjacent to her land, Charles Clinkard owner of Whareroa 2F. It appears that the Council encountered some difficulty when it was revealed that although Renata had a majority of shares in Whareroa 2G1B, the land they were negotiating to purchase, was in fact held in multiple ownership. Due to this Renata's sale had to be negotiated and confirmed by the Native Land Court, while Clinkard and the Tauranga Borough Council could simply finalise their dealings.

There is also the contention that Maori land was targeted more than general land. In the case of land taking for an access road from the airport to the harbour, it seems that the reverse may have occurred. When planning for the road, options for taking land included land owned by Maori and general land owned by Marshall. In 1939 taking authorities settled on Marshall's land as the best option. In 1989 it appears that this land was disposed to Bay of Plenty Fertiliser Limited, it is unknown, however, if any offer back was made to Marshall or his successors.

When authorities sought to expand the airport, proclamation 10182 was issued taking 214 acres of Whareroa, of which approximately 192 acres were Maori owned. It is argued by Willan and Walzl that there is no evidence that authorities negotiated with Maori owners prior to the taking, and the taking itself left Maori owners feeling vulnerable. There was substantial disagreement over the valuation of Maori owned land for compensation. McCaw Lewis Chapman argue that the valuation, as understood by European values, was based purely on its economic value, there was no incorporation of Maori values placed in the land or on its potential for subdivision which would have provided for future of the Maori community at Whareroa.

When the Native Land Court came to assess compensation, the Court argued that the Tauranga Borough Council had undervalued the land, but sti.ll believed that Maori owned land was not worth as much as the general land taken. Eventually £2,668 was awarded for the 192 acres of Maori land taken, just under £14 an acre. With regards to the land taken by general owner Clinkard in Whareroa 2F under proclamation 10182, it is unclear how much compensation was awarded. He was, nevertheless, awarded £100 for the loss of shelter as a result of the taking. Comparable to the 1940 taking of Maori land is the taking of land from the Midwinters in 1949. When the Midwinters had 40 acres 2 roods 23.6 perches taken, they received full and final settlement of £6,150.

In 1959, further land was acquired for the airport. It is contended that the authorities would rather own the land outright than attempt to control height restrictions and obstructions on private property. The taking authorities also had the extension of the runway in mind, and wanted to acquire enough land to ensure that this would be possible in the future. The land affected by this taking, included land administered by the Public Trustee, land under Maori tide, and land under general tide. It appears that the taking authorities moved into negotiation with all of the owners. They noted that if the owner of Maori land, J. Paki was not willing to accept taking by agreement that the compulsory taking powers of public works legislation were an option. The evidence suggests that all lands taken were acquired at a price very close to the government valuation. As oppose to other land owners Paki's valuation and acquisition was negotiated by the Maori Land Court, it does appear that the Court negotiated a higher price for Paki's property than originally anticipated by the taking authority. The general land administered

50

by the Public Trustee was acquired very swifdy as the Trustee wished to settle the matter quickly, and part of the land acquired from R Miles was leased back to her after the taking.

Land was also acquired from an owner of general land for a remote receiving station. It appears that while 12.5 acres were needed 63.5 acres were taken, this appears to be at the request of the owner. Walker negotiated with the taking authority, preferring the acquisition of the whole block to a small potentially disruptive taking.

It appears from the case studies above that more of both Maori and general land was acquired than necessary for the basic operation of the airport. The taking authorities took more land than necessary on the basis that the airport would extend its runway in the future, as well as to enforce height restriction regulations, and in the case of Walker's land, at the owners insistence. Surplus land became a source of conflict between the Airport Management Committee and the Tauranga County Council, when the Committee attempted to release some of the surplus land for residential sale. As noted in figure 4 above, some pieces of land are no longer used for airport purposes. It is unclear whether owners, either Maori or general, were offered back land no longer used for the purpose for which it was taken.

51

Chapter Five: Port ofTauranga

5.1. INTRODUCTION

The development of the Port of Tauranga involved the taking of both Maori land and numerous small lots of general owned land, often under the pretext of the arguably vague term of 'better utilisation'. Valuation and compensation for these takings proved contentious, as some owners argued that valuation should be based upon the land's subdivision potential rather than its present state.

Ian W Hamlin, writing in 1982, described the tremendous change the Port of Tauranga wrought:

The sweep of sandy foreshore south of Pilot Bay fronting pine plantations, sand dunes and scattered seaside homes had been a popular picnic and holiday resort within the Borough of Mount Maunganui since the tum of the century. Few people in 1950 could have envisaged the tremendous developments which were to characterise growth of the new port and the impact of that growth on the local, regional, and national economies.194

The Crown vested the harbour land and foreshore in the Tauranga Harbour Board under the Tauranga Foreshore Vesting and Endowment Act 1915. Further land was sought on the Eastern harbour frontages, affecting both Maori and Pakeha owners, in 1921. The Tauranga Harbour Board expressed interest in acquiring Whareroa land was also broached on 16 December 1921. Its Finance Conunittee discussed acquiring '200 acres of native and pakeha owned land for future harbour works' and approximated that it would average £15 per acre to obtain this land.195

From 1926 the government considered establishing a port at Tauranga. While there was consensus that Mount Maunganui would be a suitable site for a port, financial circumstances intervened. The subject was not broached more fully until October 1950 when the Ministry of Works set up a Conunittee of Inquiry to determine the most suitable port site, a need for the port was exacerbated by state forests reaching maturity. The Conunittee issued a report was issued recommending the port be established at Mount Maunganui. 'the Mount Maunganui site was naturally sheltered, it could be developed at comparatively low cost, had relatively low maintenance expenses, and a more central location to the Volcanic Plateau region'.l96 Giselle Byrnes argues that 'the Report of the Conunittee of Inquiry and its decision was feted in Tauranga as a victory for local Pakeha interests.'197 Stokes writes that the Conunittee of Inquiry noted that various Government departments, notably the Ministry of Works, Forest Service and Railways favoured Tauranga as a port site.198

194 Ian W Hamlin, 'The Port ofTauranga 1953-1981', in A C Bellamy (ed), Tauranga 1882-1982 (Tauranga: Tauranga City Council, 1982), P 239 195 Tauranga Harbour Board minute book 1, 12 December 1921 (Giselle Byrnes, 'A Preliminary Report on the Use, Control and Management of the Tauranga Harbour', report commissioned by the Waitangi Tribunal, 1996, Wai 215, doc A36, P 26) 196 Byrnes, doc A36, p 44 197 Byrnes, doc A36, p 45 198 Stokes, A History ofTauranga County, p 357

52

o "l1 ~

~ ~ ~ ~ N <XI

OHINEMURI COUNTY

PIAKO COUNTY

~ 5 10

, J J -

Under 150 m c=J 150 - 300m

300 - 450m -450 - 600m -Over 600m -Watershed on Kaimai Ranges

MATAMATA COUNTY

-----

TAURANGA HARBOUR IN RELATION TO TAURANGA COUNTY

-D

"- - - - -... ... - I ~ \

175°E

ROTORUA ~~.~ COUNTY - ~

~ Z ::l o o w Z ~

~ ~

Tauranga harbour had been earmarked for development by a proclamation entided 'Notice of a Scheme of Development and Reconstruction in the Bay of Plenty' issued under the Finance Act (No 3) 1944, section 29(2).199 Along with a number of development schemes, the reclamation and growth of the Tauranga harbour was signalled. The proclamation stated that the scheme made a '[p]rovision of deep-water facilities at Tauranga Harbour or elsewhere to handle produce of the Kaingaroa Plains,.20o At the 1954 Maori Land Court hearing, Sir Vincent Meredith noted that the 1947 proclamation was issued 3 years prior to the 'contentious' question on the siting of the wharf being setded.201 When issuing the proclamation, however, Robert Semple the Minister of Works, stated the notice would remain in force until the 30 September 1956. Therein lay some of the contention of valuation.

A time limit to a Notice of Intention can be found in the Public Works Act 1928, the Public Works Amendment Act 1952 enacted a new section 22(5). The effect of subsection (5) was that the notice of intention would cease to have effect, and be deemed not to have been given, unless a proclamation taking the land was issued within one year of gazetting the notice. The notice of intention could be kept valid if it was confirmed by serving notice to persons who had an interest in the property. A new notice of intention could not be issued then for another year.202 A notice of intention to take specific lands in the Tauranga harbour area may not have been issued due to the contention of the port site.

The Minister of Works, Hon W S Goosman, writing in 1953 stated:

At Mount Maunganui the [public Works] Department is undertaking substantial wharf construction and the provision of extensive storage and rail facilities necessary to serve the port. On completion the port will be operated by the Tauranga Harbour Board, which by agreement, will assume the financial responsibility for this undertaking ....

At Mount Maunganui some 300 acres of land is held to service the port and to provide for the establishment of industries to be located there. The port's facilities are being designed to provide not only for the handling of timber products, but also to cover the increased trade which the establishment of the port should develop over the whole Bay of Plenty and adjacent areas.203

199 Notice of a scheme of development and reconstruction in the Bay of Plenty, 30 May 1947, Nelli Zealand Gazette, 1947, no 31, p 723 200 Notice of a scheme of development and reconstruction in the Bay of Plenty, 30 May 1947, Nelli Zealand Gazette, June 61947, no 31, p 724 201 Tauranga Maori Land Court minute book 18, 9 April 1954, fo12B3 202 Davies, p 15 203 W S Goosman, 'Ministry of Works Statement', Appendices to the] oumals of the House of Representative, 1953, D-1, pp 15-16

54

.~~-'--'--~~-.----.-.--.----."----"--'-'-'-.. '---'--'---.-... --_ ... _._._._--_._._--_ .. -.-._-_ ....... _ .. _-_ .. _ .•. -'

MATAKANA

o 200 400 600

m ....

lOver 30 fathoms

20 • 29 fathoms

10 -19 fathoms

ttlt~ Under 10 fathoms

Sand

"" Low water line

~~~ Swamp "... Rocks

MAP 8: TAURANGA HARBOUR IN RELATION TO TAURANGA COUNTY

5.2. MAORI LAND TAKEN FOR 'BETTER UTILISATION' AND THE PORT OF TAURANGA

In the late 1940s, Maori owners decided to subdivide the Whareroa reserve and sell approximately 278 acres, using the capital gain to improve other land and housing.204 Kere Cookson-Va and McCaw Lewis Chapman state that the amount of land set aside was 242 acres, however, this discrepancy may be explained by the exclusion of the non-Maori interest, the Tudhope estate, from Cookson-Va's figures although the land was included in the subdivision proposal.20S Cookson-Va states 'the reason for including the Tudhope estate was that the scheme would result in the whole of the subdivision forming one area which would benefit both parties,.206

The Crown sought land on the Eastern Harbour frontages, affecting both Maori and Pakeha owners, in 1921.207 The Whareroa block was located adjacent to the wharf and extended along its full length. In 1948, 98 hectares of Whareroa block was subdivided.

Land takings for 'better utilisation' also affected the Te Awa-o-Tukorako block, which lies adjacent to the Whareroa block. This block was originally 83 acres 3 roods 30 perches and was awarded on 24 December 1884. Te Awa-o-Tukorako 1 consisted of 66 acres 3 roods 0 perches.208

Te Awa-o-Tukorako 1 was subject to a number of subdivisions which are outlined by Cookson­Va. Te Awa-o-Tukorako 1B1 was partitioned into 1B1A consisting of 3 acres 3 roods 20 perches and 1B1B consisting 1 acre and 1B1C consisting 6 acres 2 roods 07 perches on 13 September 1923.209 Te Awa-o-Tukorako 1A1 and 1B1A were transferred into European ownership in 1949 and 1928 respectively, Te Awa-o-Tukorako 2A and 2B were in Crown ownership. Cookson-Va states that by 1943 the only remaining blocks in Maori ownership were Te Awa-o-Tukorako 1A2, 1B1B and 1B1C.210 However, in 1944 title to Te Awa-o-Tukorako 1B1B was also Europeanised.

On 30 July 1948, Prime Minister and Minister of Maori Affairs Peter Fraser wrote concerning the Maori land at Whareroa:

[a] block of land on the Mount Maunganui side of the Aerodrome. This land is not good farming land and is not in use but appeared to have high potential value .... It is estimated that a sale of these building sections (at Land Sales Court prices of £100 per section) would nett about £60,000 to the owners.211

The Director of Forestry, however, wrote on 25 August 1948:

When better harbour facilities are provided at Tauranga, the port will no doubt become an import port ... For this reason I consider that the land referred to in the Under Secretary's memorandum should be acquired by the Government and not subdivided at present into housing sites.212

204 Wa1z1, doc N2, pp 34, 81 205 Willan, doc F29, p 26; Cookson-Ua, doc A27, pp 45-48; McCaw Lewis Chapman, doc Al0, p 8 206 Cookson-Ua, doc A27, p x 207 Byrnes, doc A36, p 207 208 Cookson-Ua, doc A27, p 26 209 Tauranga Maori Land Court minute book 11, fo1144 (Cookson-Ua, doc A27, p 27) 210 Cookson-Ua, doc A27, p 29 211 Minister of Maori Affairs to Under Secretary of Maori Affairs, 30 July 1948, AAMK 869 59G 5/9/201, ANZ­Wellington (Walz1, doc N2, pp 34-35)

56

After some time, a meeting was held between the Under-Secretary of Maori Affairs and Ministry of Works officials, on the 28 Apri11949. The investigating engineer stated 'all these things would require land near wharves and railway and no subdivision or housing should proceed save on the basis of an overall plan. The Ministry of Works, in fact, considered that the Crown should acquire the whole block and hold it for planned development.,213

The Commissioner of Works sent a memorandum to the Minister of Works regarding the acquisition of land for the port development:

About 100 acres of this area is Wldeveloped Maori land; the remainder is privately owned and mostly Wldeveloped but at the northern end there are about 24 houses which vary in standard from seaside cottages to regular homes. These houses could be acquired as opportWlity offers, but the remainder of the land should be secured as quickly as possible. There is no valuation to give a guide as to the cost of

214 purchase of the land.

He added that both the Ministry of Works and Ministry of Maori Affairs considered that compulsory acquisition would be the most convenient. Furthermore 'no differentiation between Maori and European land should be made in the method of acquisition.'215 The solicitor for the Maori owners of Whareroa, Cooney, wrote on 14 June 1951, that while Maori owners suffer from delay:

European owners of land in the immediate vicinity suffer no hold ups and no delay with their subdivisions and are enjoying an Wlrestricted market free from the competition of these better situated Maori lands ... If the land is required for public purposes then let it be taken at the proper price at once.'216

'The worst aspect' of the threat of public works acquisition, Wa1z1 argues, 'was waiting for a decision to be made when Whareroa Maori were on the threshold of social and economic development through planned subdivision'.217 In September 1950, when the decision was finally made to use Whareroa land, Wa1z1 remarks, the market was booming and 'European land owners whose land was not taken were able to capitalise on the resulting windfall.'218

Cabinet authorised the development of a port at Mount Maunganui on 5 June 1951. The Under Secretary wrote to the Permanent Head of the Ministry of Works, on 25 October 1951, informing him that 'harbour proposals have now been finalised and notice of intention to take parts of these land has been issued.'219

212 Director of Forestry to Commissioner of Works, 25 August 1948, AAMK 869 59G 5/9/201, ANZ-We1lington (Walzl, doc N2, P 36) 213 'Points Arising', 28 April 1949, AAMK 869 59G 5/9/20 1, ANZ-We1lington (Walzl, doc N2, p 38) 214 Commissioner of Works to Minister of Works, 30 May 1951, AAMK 869 59G 5/9/201, ANZ-We1lington (Walzl, doc N2, P 40) 215 Commissioner of Works to Minister of Works, 30 May 1951, AAMK 869 59G 5/9/201, ANZ-We1lington (Walzl, doc N2, P 41) 216 Cooney to Minister of Maori Affairs, 14 JWle 1951, AAMK 869 59G 5/9/20 1, ANZ-We1lington (Walzl, doc N2, P 41) 217 Walzl, doc N2, P 59 218 Walzl, doc N2, P 60 219 Under Secretary to Permanent Head Ministry of Works, AAMK 869 59G 5/9/201, ANZ-We1lington (Walzl, doc N2, P 42)

57

In total, the Public Works Department acquired 96 acres of the original 278-acre subdivision as well as some other non-Maori land.220 On 13 September 1951 a Notice of Intention to take approximately 91 acres (of the 242) for 'better utilisation' was issued. On 11 September 1952 a proclamation was gazetted taking the 91 acres of Whareroa and 55 sections in the Te Awa-o­Tukorako block and vesting the land in the Crown.221 Cookson-Ua notes that 'information was also insufficient to conclusively indicate whether or not the Maori owners were consulted about these takings prior to the relevant proclamations being gazetted,.222

FIGURE 5: LAND IN MAORI OWNERSHIP AT SEPTEMBER 1952223

...

Te Awa-o-Tukorako lB1B no longer in Maori ownership

Te Awa-o-Tukorako 1B1C mterest per annum total (1965)

Te Awa-o-Tukorako Part 1B2 & Part Whareroa 2E1

Whareroa Part 2E2

Whareroa Part 2E3A PWD137400 12aOrOp

Whareroa Part 2E4 PWD137400 21a2r24p

PWD137400 26a1rl0p

PWD137400

The port at Mount Maunganui was officially opened by Prime Minister S G Holland on December 3 1955.224 Ten years after the wharf was officially opened, Prime Minister Keith Holyoake relinquished it to the Tauranga Harbour Board 'signifying completion of the harbour works originating in the Crown Agreement of November 4th, 1953'.225

220 Secretary Maori Affairs to Native Minister, 28 June 1960, AAl\1K. 869 60c 5/9/20, ANZ-Wellington (Willan, doc F29,p 27) 221 Land taken for better utilization in Blocks VI and VII, Tauranga Survey District, 5 Sept 1962, New Zealand Gazette, 1952, no 60, p 1468 (McCaw Lewis Chapman, doc Al0, p 8) 222 Cookson-Ua, doc A27, p xv 223 Cookson-Ua, doc A27, pp 38-57 224 Hamlin, p 239 225 Hamlin, P 242

58

._---_._._-_ ......... -.-......... _._ ....• " .... _ .... _ ...... " .... -._.""." ...... " ............ _---_ .............. " .. _-_ ...... _.-..... ""'"''-." ...... " .. " ......... _.'-'''

\'"

"' \ "

I \

Future Berthage 1524m

Tauranga

Harbour Reclamation

Whareroa Marae

Railway Wharf

MAP 9: PORT OF TAURANGA 1950

PORT OF TAURANGA, 1950

Aerodrome

Borough Boundary

Roads

0.5 1.0 ! I! • I

kilometre

5.3. COMPENSATION FOR MAORI LAND

Although takings had occurred in 1952, a decision over the valuation and compensation for this land was not made until March 1959; this decision was appealed and settled in 1961.226

In terms of compensation, as Willan argues, the future potential of the land was not factored into compensation, 'the land was valued as one underdeveloped parce~ rather than the several subdivisions that the Maori owners wanted to establish'.227 The Maori Land Court assessed compensation in 1954, but the case was referred to the Supreme Court and then the Court of Appeal. Compensation was governed by the Finance Act (no 3) 1944, section 29(1)(b) which stated:

The value ofland shall, subject as hereinafter provided, be taken to be the amount which the land if sold in the open market by a willing seller on the specified date [for example, 15 September 1952] might be expected to realise.228

The term 'better utilisation' itself proves an appealing discussion point, as R I Barker writes:

The Public Works Act itself sets out a fairly exhaustive definition of Crown public works and then provides that the governor-general may declare any work or undertaking to be a "public work". Section 30 of the Finance Act (No.2) 1945 permits the taking ofland by the Crown for such vague purposes as "subdivision, development, improvement, regrouping or better utilisation" ... Fortunately since the salutory decision in Auckland Meat Co. Ltd v. Minister of Work! and Attomry-General [1963] N.Z.L.R. 120 this section appears to have been little used in practice by the Crown. In that case, a notice requiring land to be taken "for better utilisation" was held invalid because it did not contain a sufficient description of the proposed work.229

Compensation was eventually handed back to the Maori Land Court for assessment. It assessed the value of the land at £36,846 and awarded this in favour of the Maori Trustee.230 This was appealed to the Maori Appellate Court in June 1960, who increased the amount payable to £45,582 (this was for the Whareroa blocks, the Te Awa-o-Tukorako blocks were settled based on the compensation levels granted to the Whareroa blocks separately). As Willan discusses, the future potential of the land was not factored into compensation: 'the land was valued as one underdeveloped parce~ rather than the several subdivisions that the Maori owners wanted to establish,.231

Litigation over compensation continued for five years.232 The case was removed to the Court of Appeal in Apri11956, however, counsel for the Maori Trustee believed that the judgement of the Court of Appeal was incorrect,233 Counsel disagreed with the Court of Appeal's judgement that the Maori Land Court must value the land as a whole, as on the date of taking there was no such subdivision. The case was then heard by the Privy Council in June 1958. The Privy Council delivered its judgement delivered on 2 October. The Privy Council essentially upheld the judgement of the Court of Appeal, excepting:

226 Cookson-Ua, doc A27, p xiii 227 Willan, doc F29, p 103 228 Cookson-Ua, doc A27, p 41 229 Barker, p 252 230 Cookson-Ua, doc A27, p 53 231 Willan, doc F29, p 103 232 Willan, doc F29, pp 27-28 233 Cookson-Ua, doc A27, p 47

60

· .... . :. . .. : . ' ... :. : ..... :"~. . ..

The Court must contemplate the sale of the land as a whole unless it appears that the necessary legal consents to a subdivisional plan had been given and a survey on the ground at the specified date would have disclosed that the land or some part of it was in fact so far subdivided that the subdivided parts could at that date have been immediately sold and title given to individual purchasers, in which case the parts so subdivided may be separately valued for the purpose of arriving at a total amount of compensation.234

Willan regards the impact of public works on Whareroa as 'dramatic' with only 23 acres 1 rood 33 perches remaining Maori land in 1998.235 The remaining 182 acres of Whareroa were less desirable and subsequendy zoned to exclude residential development. In 1964, 103 acres were sold to Tasman Pulp and Paper.236

Walzl notes the 'variation of views between officials towards Maori land'.237 He demonstrates that the evidence showed officials (both local and central) believed that the conversion of eastern harbour Maori land into suburban residential land was inevitable, that Matapihi would inevitably become part of the Tauranga Borough.238 Wa1zl maintains that the establishment of the deep­water port and industrial complex at Mount Maunganui had a negative impact upon Maori, harming the subdivision scheme at Whareroa and a small farm scheme to develop Maori land.239

5.4. GENERAL LAND TAKEN FOR 'BETTER UTILISATION' AND THE PORT OF TAURANGA

This case study shall cluster together a number of small general lots which were taken for 'better utilisation'. Takings for the Port of Tauranga, may therefore provide a discussion of one of the facets of public work legislation, that is, takings for 'better utilisation'. An analysis of the negotiation process may consider whether the owners themselves felt the term 'better utilisation' was indeed 'vague', and whether they objected to the taking of their land on this basis.

A large number of small lots were taken for port development, a table of all takings and payments made is shown below in Figure 7. A selection of general land lots which will be discussed include the following:

.:. A C Bent and M E Ruthe had 39.15 perches of Lot 14, Mount Maunganui DP 18318 Tauranga SD VII (Certificate of Title 712/338) taken for port development.24o

.:. Arthur John Andrews was subject to a proclamation taking Lots 16 and 26, Mount Maunganui DP 18318 Tauranga SD VII (Certificate of Title 914/278) for better utilisation.241

.:. Alfred Friis Wood had 32 perches taken of Lot 19, Mount Maunganui DP 18318 Tauranga SD VII (Certificate of Title 901/299).242

234 'The Fallacy ofWhareroa', New Zealand Law Journal, 24 December 1963, pp 644-645; 'In RE Whareroa 2E, Maori Trustee v. Ministry of Works', New Zealand Law Review, 1959, pp 7-15 235 Willan, doc F29, p 21 236 Wahl, doc N2, P 82; doc F29, pp 28-31 237 Wahl, doc N2, P 29 238 Wahl, doc N2, P 30 239 Wahl, doc N2, P 57 240 BAAS 5113 A246 6/58/1/0/16 20N, ANZ-Auckland 241 BAAS 5113 A246 6/58/1/0/14 20L, ANZ-Auckland 242 BAAS 5113 A246 6/58/1/0/9 20H, ANZ-Auckland

61

_._--------_ ....... :;.:;: .. .

.:. B B Jones had 32 perches of Lot 30, Mount Maunganui DP 18318 Tauranga SD VII taken (Certificate of Tide 850/248).243

.:. Land was also taken for port development from Port Services Ltd (Certificate of Tide 6A/70), John Burns & Co (Certificate of Tide 1070/167FW), C Z Soper (Certificate of Tide 1015/284R) and GRoss (Certificate of Tide 658/228) for 'better utilisation' and port development.244

The development of the Port of Tauranga, appears in many primary accounts, to have changed the nature of Mount Maunganui as a seaside holiday destination. At a meeting called by the Tauranga Harbour Board on 19 January 1951, Mr Watson, a representative from the Tauranga and Mount Maunganui Borough councils, observed: 'that the Board was probably too modest in its demands for land. He foresaw considerable development. It appeared to him that the present developments meant the end of the Mount as a Holiday Resort'.245

Regarding land acquisition in the Whareroa block for Port development, Bruce Cunningham, Town Clerk of Mount Maunganui, reminisced:

I can certainly remember when a large part of the Whareroa Block was taken by the Crown in 1952 for 'better utilization' as it was termed, for use in conjunction with the requirements of the future port and industry, for the construction was not started until 1955. This was the land roughly south of Triton Avenue up to and including the fertiliser works and between Totara Street and the harbour .... 246

It appears Cunningham may be mistaken concerning the date of construction, as in June 1953 the Ministry of Works undertook construction bringing bulldozers in to level the site and construct retaining walls. The channel was dredged to widen it and New Zealand Railways laid out their lines and yards.247 On 20 November 1953, the Minister of Works, Mr Goosman, drove the first pile for the new wharf.248

Cunningham noted further:

The impression is given that only Maori were forced to yield their lands in the public interest. But this is not so. There was then a thriving harbour side and holiday setdement between Triton Avenue and Hull Road and people there also lost their homes and baches and land'.249

H J Voice, Chief Land Purchase Officer for the Ministry of Works, examined by Sir Vincent Meredith at the Maori Land Court on April 12 1954 stated:

The whole scheme for which the money was appropriated by Parliament was the construction of the wharf, the necessary reclamation between the wharf and the foreshore, the development of the land immediately adjacent to the wharf for industrial purposes, including road and railway access for the industries which would be using the wharf and for which we were developing the industrial land ...

An area of approximately 134 acres consisting of the Maori block, 91 acres, and a multiplicity of small areas owned by Europeans situated between the Maori block and the Crown land.250

243 BAAS 5113 A246 6/58/1/0/14 21F, ANZ-Auckland 244 BAPP 5113 A246 43/7/1/0 7681, ANZ- Auckland 245 Tauranga Harbour Board Meeting minutes, 19 January 1951 (Stokes, A History ofTauranga County, p 358) 246 Cunningham, 'Early Mount Maunganui', p 4 247 Hamlin, P 239 248 Stokes, A History ofTauranga County, p 359 249 Cunningham, p 4 250 Tauranga Maori Land Court minute book 18, 12 April 1954, fol2G1

62

Voice then went on to discuss the taking of land:

We were then blocked by this unnamed road and European land from any further extension.

What happened to that European land? Did JOu take that?

We took by one proclamation and for the one purpose that European land and the Maori land adjoining it. ..

And the European land, thm were buildings on some of that?

Yes, there were a number of homes; a number of houses occupied.

And those have mostlY been settled?

Most of the claims have been settled ....

Assuming that Crown had not taken af!)! of this land, European or otherwise, and the owners' of that Maori land have done af!)!thing in the wqy of industrial, in the wqy of housing and industrial or otherwise?

They would have had a block of land zoned for industrial purposes, isolated from the wharf, assuming we allow the new wharf to go, isolated from the wharf by an impassable barrier consisting of closely subdivided European settlement and an area of Crown land. Wherefore they could not satisfactorily develop their land for industrial purposes ... 251

The following section gives an account of the acquisition of land from a number of general land owners. It appears that some general owners were reluctant to relinquish their sea-side home and holiday cottages. Many of the agreements formed under public works legislation, included in addition to compensation for land and improvements, the payment of rates and electricity accounts.

Bernard G Judd had 32 perches of Lot 113 District Plan 18318, Certificate of Title 830/86 taken under the Public Works Act 1928 and section 13 of the Public Works Amendment Act 1943. Judd's freehold land was sold by agreement, after it was taken by proclamation, for £650 on 23 January 1953.252 The District Land Purchase Officer, W M Gumbley noted that Judd's beach front property was difficulty to acquire. Gumbley wrote that (it was only after a number of interviews that the owner was persuaded to settle at the Crown valuation which is in line with the current market'. Furthermore he argued that he did not think it was possible to persuade Judd to sell voluntarily (except at some exorbitant figure'.253 The compensation arrangement also allowed for the refund of rates for the year 1952-1953, £10 6s 8d, bringing the total compensation to £660 6s 8d.254

Bernice Y Judd had land taken on similar terms. Her land 32 perches of Lot 109 District Plan 18318, Certificate of Title 902/17 was taken with £650 consideration and a rate rebate of £10 6s

251 Tauranga Maori Land Court minute book 18, 12 April 1954, fols 2G2-2G3. Questions posed have been italicised. 252 Memorandum of Agreement Bernard Judd and Minister of Works, 23 January 1953, BAAS 5113 A246 6/58/1/0/25 21G, ANZ-Auckland 253 District Land Purchase Officer to District Commissioner of Works, 22 December 1952, BAAS 5113 A246 6/58/1/0/25 21G, ANZ-Auckland 254 District Commissioner of Works to BemardJudd, 27 January 1953, BAAS 5113 A246 6/58/1/0/25 21G, ANZ­Auckland

63

----- _. __ ._----_. __ ._-------_._---'-'---- ---.-----.--.~

8d255 The comments of the District Land Purchase Officer indicate there may have been some friction over the valuation of the property in the Hull Road Area, noting that Miss Judd 'is now prepared to settle at the Crown's valuation subject to the Department paying this year's rates,.256

Lot 3 was owned by J K Robson, the area was 1 rood 0.97 perches in the Hull Road Area. Robson was contacted by W M Gumbley on 25 July 1952, requesting information with regards to mortgages and encumbrances prior to an agreement being reached.257 A mortgage was registered against the tide in favour of the National Bank of New Zealand.258 It seems that Robson was desirous of a period of tenancy following acquisition. Gumbley's draft agreement which was sent to the Commissioner of Works and Chief Land Purchase Officer on 7 August 1952. Gumbley recommended that the small 'well maintained' cottage on the beach front be acquired for £1350, this was subject to the owner having a free tenancy period of 12 months as long as it was not required for Crown use in this period.259 A compensation certificate for £1350 was issued pursuant to section 17 of the Public Works Amendment Act 1948, and registered on 28 August 1952.260 It appears Robson tenancy after acquisition for public works was not without trouble. Three power accounts were left outstanding to a total of £1 3s 2d, this was prior to Robson vacating and disconnecting the power on 30 November 1953. A file note, directed that if Robson was still in occupation of the property under the terms of agreement he must pay the outstanding power account.261 In May 1954 the Resident Engineer, D J B Halley advised that as setdement for the cottage was made in 1952, the electricity account should be paid by the Department. However, if Robson was still in occupation under terms of the agreement it was up to him to settle all accounts. 262

L A Bent wrote, on behalf of A C Bent and M E Ruthe, to the District Engineer on 6 October 1952 with regards to the taking of Lot 14 in Hull Road. Bent questioned why the Department had given no indication of compensation, when notifying owners that there land was to be taken. Furthermore, Bent asked what the status of the building of the property on the land was? For instance, could the cottage be moved~63 Gumbley advised Bent that the Department was 'not in a position to shift the building to Belk Road'. Moreover, the recommended compensation was £700, which would be lowered to £550 if the owners chose to move the building of their own volition.264 Bent replied on 3 November that he would like to meet with Gumbley to discuss the matter further, however, after further consideration the offer of £700 was accepted prior to a meeting.265 An agreement was struck in March 1953, therein Bent and Ruthe agreed to the taking of Lot 14, for consideration of £700 and a rebate of the year's rates.266 A deposit of £350 was

255 Memorandum of Agreement Bernice Y Judd and :M.inister of Works, 10 December 1952, BAAS 5113 A246 6/58/1/0/26 21H, ANZ-Auckland 256 District Land Purchase Officer to District Commissioner of Works, 26 November 1952, BAAS 5113 A246 6/5/1/0/26 21H, ANZ-Auckland. Emphasis added. 257 W M Gumbley to J K Robson, 25 July 1952, BAAS 5113 A246 6/58/1/0/14 201, ANZ- Auckland 258 S B Shepherd to WM Gumbley, 30 August 1952, BAAS 5113 A246 6/58/1/0/14 20I,ANZ-Auckland 259 W M Gumbley District Land Purchase Officer to Commissioner of Works, 7 August 1952, BAAS 5113 A246 6/58/1/0/14 201, ANZ-Auckland 260 Compensation Certificate S37700, 28 August 1952 261 File note on Senior Engineer to Resident Engineer, 30 April 1954, BAAS 5113 A246 6/58/1/0/14 201, ANZ­Auckland 262 Resident Engineer to Senior Engineer, 11 May 1954, BAAS 5113 A246 6/58/1/0/14 201, ANZ- Auckland 263 L A Bent to District Engineer Hamilton, 6 October 1952, BAAS 5113 A246 6/58/1/0/16 20N, ANZ-Auckland 264 W M Gumbley to L A Bent, 30 October 1952, BAAS 5113 A246 6/58/1/0/16 20N, ANZ-Auckland 265 L A Bent to W M Gumbley, 3 November 1952; L A Bent to W M Gumbley, 5 January 1953, BAAS 5113 A246 6/58/1/0/16 20N, ANZ-Auckland 266 Memorandum of Agreement A C Bent and M E Ruthe, 24 March 1953, BAAS 5113 A246 6/58/1/0/16 20N, ANZ-Auckland

64

. .

paid on the date the agreement was signed, it unknown when the balance was paid. The bach on Lot 14 was duly vacated. However the District Commissioner of Works noted on 2 October 1953 that the bach, which still had 'some gear inside', was locked and the keys whereabouts unknown.267 Bent replied that he had the key and that any gear left in the bach 'may be of some use to the incoming tenant'.268

Lot 19 comprising 32 perches, owned freehold by Alfred Friis Wood, was acquired for Tauranga harbour development. A file note remarked that Wood was offered £1200 and twelve months occupation (tenancy) on 9 July 1952. It noted, however, that Wood may wish to move his cottage from the site.269 A memorandum of agreement between Wood and the Ministry of Works was signed on the 1 September 1952, Wood accepting £1200 compensation.270 Gumbley noted that the owner was prepared to accept the compensation in addition to a rate rebate and twelve month tenancy, with respect to the taking of the 32 perches and 'small lean-to type cottage,.m A compensation certificate was registered on 2 September 1952.272 The Ministry of Works sought to acquire access to the property in July 1953, contacting Mr Wood for the keys.273

Brenda B Jones had 32 perches of Lot 30 acquired for consideration of £925 on 18 June 1953.274 Gumbley noted in his report that:

This is a small unattractive cottage in 2nd Avenue. Claimant's valuer has a reputation for being conservative and I do not think it would pay us to dispute the figure at which it is now offered and which will be accepted in full settlement of all claims.27S

Jones' solicitors telegraphed Gumbley on 15 June 1953 to request early setdement.276 The acquisition was approved by the Commissioner of Works the following day.277

Arthur John Andrews had 1 rood 24 perches of Lots 16 and 26 on District Plan 18318 taken for consideration of £975 on 27 August 1952. This was all the land in Certificate of Tide 914/278.278

Gumbley noted in his report that Andrews had made no improvement to either lot and was prepared to settle for the Crown Valuation of £975 and the payment of the year's rates.279 The Chief Accountant of the Ministry of Works, noted that the voucher for compensation payment

267 District Commissioner of Works to A C Bent and ME Ruthe, 2 October 1953, BAAS 5113 A246 6/58/1/0/16 20N, ANZ-Auckland 268 L A Bent to District Commissioner of Works, 5 October 1953, BAAS 5113 A246 6/58/1/0/16 20N, ANZ­Auckland 269 File note, BAAS 5113 A246 6/58/1/0/16 20N, ANZ-Auckland 270 Memorandum of Agreement Alfred Friis Wood and Minister of Works, 1 September 1952, BAAS 5113 A246 6/58/1/0/9 20H, ANZ-Auckland 271 W M Gumbley to District Commissioner of Works, 14 August 1952, BAAS 5113 A246 6/58/1/0/9 20H, ANZ­Auckland 272 Compensation Certificate S38005, 2 September 1952; Certificate of Title 901/299 273 District Commissioner of Works to A F Wood, 9 July 1953, BAAS 5113 A246 6/58/1/0/9 20H, ANZ-Auckland 274 Memorandum of Agreement B B Jones and Minister of Works, 18 June 1953, BAAS 5113 A246 6/58/1/0/24 21F, ANZ-Auckland 275 W M Gumbley to District Commissioner of Works, 12June 1953, BAAS 5113 A246 6/58/1/0/24 21F, ANZ­Auckland 276 Telegram to W M Gumbley, 15 June 1953, BAAS 5113 A246 6/58/1/0/24 21F, ANZ-Auckland 277 Commissioner of Works to District Commissioner of Works, 16 June 1953, BAAS 5113 A246 6/58/1/0/24 21F, ANZ-Auckland 278 Memorandum of Agreement Arthur John Andrews and Minister of Works, 27 August 1952, BAAS 5113 A246 6/58/1/0/14 20L, ANZ-Auckland 279 W M Gumbley to District Commissioner of Works, 12 August 1952, BAAS 5113 A246 6/58/1/0/14 20L, ANZ­Auckland; Compensation Certificate S37784, 29 August 1952

65

. .

----------------------_._._--_._-_.-..... _._---_._. __ ........ ----.......-..-.---.--.. -~------.--- .. ----.-.----.. --.-'-

for Mr Andrews needed to be scheduled against the Marine Department.280 It appears there may have been some confusion over the payment of rates. Andrews wrote to the Tauranga County Council, pointing out he was not liable for rates as his land in Lot 16 and 26 had been taken for better utilisation under proclamation 38989, entered 24 September 1952.281 On 19 October 1965 a schedule of payments for the Tauranga port development was sent to the Commissioner of Works. The payments totalled £125, 497 2s 6d.282

FIGURE 6: LAND TAKEN FOR BETTER UTILISATION/PORT OF TAURANGA283

OaOr16p Awa

280 Chief Accountant to District Commissioner of Works, 26 August 1952, BAAS 5113 A246 6/58/1/0/14 20L, ANZ-Auckland 281 AJ Andrews to Tauranga County Clerk, 5 August 1953, BAAS 5113 A246 6/58/1/0/14 20L, ANZ-Auckland 282 District Commissioner of Works to Commissioner of Works, 19 October 1965, BAHS A591 6/58/1/0 40b 2, ANZ-Auckland 283 Land taken for better utilization in Blocks V1 and V1I, Tauranga Survey District, 5 Sept 1962, New Zealand Gal?!tte, 1952, no 60, p 1468; Declaring Land Taken for a Government Work and Not Required for that Purpose to by Crown Land, 16 January 1962,New Zealand Gal?!tte, 1962, no 5, pp 73-43. Rows shaded indicate land in Maori ownership.

66

Lot 111 DP 18318 Te-Awa OaOr32p

Lot 112 DP 18318 Te-Awa OaOr32p

Lot 113 DP 18318 Te-Awa OaOr32p

Lot 114 DP 18318 Te-Awa OaOr32p

Lot 115 DP 18318 Te-Awa OaOr32p

Lot 116 DP 18318 Te-Awa OaOr32p

Lot 117 DP 18318 Te-Awa OaOr32p

Lot 118 DP 18318 Te-Awa OaOr32p

Lot 119 DP 18318

67

FIGURE 7 : SCHEDULE OF PAYMENTS FOR TAURANGA PORT DEVELOPMENT284

t·: .. '. , , ; ";,":;

. 'ix ";: ",'

, i l ,);, I':':": , ·:'::"':::·';"::!.i·: :'!·:·:·;:i,··' ":j;'~';i:,;(" , , . ".' ; [',': .. : ',':1 ., :,.::.; .. ,:,;, :".! ", •. .'! :'! .,' ,;

Mp'lsforth,] B 1~90 Benn,E M £1600 Parker,} F £2860 Bell, WD mi r-.... ..;ol-. E&MV £6033s Hillary, 1 B £3600 nnn~lr1, D A & G E £2100 Lewis, P S £805 Wood,A F £1200 Glenie, M ~ l\.Tl ... I-."l10 , L I £5205s Friis,LW £3200 Rn!-.onn,l K .£1350 A ~rl~~",o, A .l J212 Bear,LI £4847s Bent, A C & Ruthe £700 Budge, 1 C £4600 Burt,E& FM £2200 Cotter, G R £716 3s 10d Court,] FR . £724198 Davies, 1 L £650 Eastern Cons·uu ... u.vu £1874 6s 10d Gilchrist, G & M I £1310 Jones, BJ3 ~ Judd,BG £660 6s 8d Judd,BY £660 6s 8d Lodge,LS JS7J...2s 5d 11 l Estate £2500 Nolan,L £661.5. Paxton, R. W, .m:tJ.. Peake,] £67217s 6d Poole,R M £2700 Rutter,GE £6000 Rye,G&SE £231~ S..,holp~. DM ..f21.1. 3s <;: ... I-.nl .. < G A & I £482311s Ward,E F £602 2s 10d Wood,LH £26~

II ~ Tudhnnp S H & W £29615s

.' ., ... , ' .. ~ .•... ' ., ' .••.•.. ; •. ,:~t':;~)';;"i~!;;';:;ij:;~';;:,giiii;'\l·:;};;{{i):'i";' f';':+.~;:.";: ;'-'::';;,";:·;j;j:::::·j;i'c'i;;';/':;:ij~ ":ill't'

Maon owners-Whareroa Block £410 £3877s Crown Valuers £39019s }

£229 14s 9d } Harrison & Grierson surveyor

£768 Os Id} £3321s 4dJ_

284 District Commissioner of Works to Commissioner of Works, 19 October 1965, BAHS A591 6/58/1/0 40b 2, ANZ-Auckland

68

--~-,~~':' __ " ... _. _. _~ .. __ ~_:.. .. c __ . __________ ._. ______ ._ .. __ . __ ." •. ____________ .. ___ , ___ . _._._ .. __ ... _--,","",~.

£30317s Crown Solicitor Costs £9711s 8d} £155 3s 1d} £554 9s 2d}

Advance £17000 } Final £29020 1 s 5d } Paid to Maori Trustees Legal etc £4380 19s 9d}

FIGURE 8: COMPARATIVE SCHEDULE OF COMPENSATION28s

Whareroa Part 2E3A 12aOrOp

2E4 21a2r24p

Part

Whareroa Part 2E5 26alr10p

Maori

£1,428 plus 5% interest per annum total (1965)

Unknown- no longer in Maori ownership?

acre (1959) approximately £305 plus interest per acre (1961) approximately £360 plus interest acre (1959) approximately £305 plus interest per acre (1961) approximately £360 plus interest acre (1959) approximately £305 plus interest per acre (1961) approximately £360 plus interest

1 rood Lot 14 DP 18318 39.15 perches

32 perches

___ 1,, ___ £10 6s 8d

rates for previous year

£700 (1 previous year

£1200 (1952)

Lot 30 £925 DP 18318 32 perches

Lot 16 & 26 DP 18318 lrood 24p

£975 (1952) plus rates rebate for previous year

285 Cookson-Ua, doc A27, pp 38-57 (Maori ownership figures).

69

The total land taken at 11 September 1952 was 132 acres 3 roods 34 perches, of which Maori land was 91 acres 1 rood 24 perches and 10 acres 2 roods 4 perches, a total of 101 acres 3 roods 28 perches (figure 5). Compensation for Maori land was £55, 473 1s Od and compared with £69,999 1s 6d for generalland(figures 7 and 8). Therefore, owners of general land received a proportionately larger of amount of compensation for a lesser amount of land, than their Maori counterparts.

5.5. LAND TAKEN FOR A LIMITED ACCESS ROAD

The limited access road from Hewletts Road to Hull Road, affected land lying between Hewletts Road and Aerodrome Road. The owners affected included John Bums & Co Limited, F Wand Z Soper, R G Ross and 'Maori owners'. Land 'owned by Maoris' was taken from part Whareroa 2J2 for the limited access road. Approximately 6 acres 3 roods 24 perches was required for the limited access road, of a total area of 32 acres 2 roods 22.5 perches, this would create residue area to the north-east of the road of 20 acres 3 roods 0 perches and south-west of the road 4 acres 3 roods 0 perches.

C H H Clarke, a registered urban valuer, said 'as an entity the value of this piece is much restricted by its shape and the narrow usable frontage. The logical purchaser for both these two parcels of land would be Beazley Homes Ltd who could utilise the land to best advantage' .286

Clarke valued the whole of part Whareroa 2J2 (32 acres 2 roods 32.5 perches) at $207,000, the residue areas at $157,000 and $16,000 respectively, therefore recommended $34,000 for the land to be taken for the limited access road and severance of 2 roods 32.8 perches. Beazley Homes, incorporated company own in fee simple 28 acres 3 roods 0.1 perches of Whareroa 2J3A block. Proclamation defining the middle line of a limited access road was entered 17 June 1969.287

Regarding the effect of the limited access road to land owned by R G Ross, Clarke, believed that the value of the road to the owner outweighed its detriments. 3 roods 18.1 perches were required for the road and a 15.5 perch severance. Clarke stated that:

286 C H H Clarke to Mount Maunganui Borough Council, 28 September 1970, BAPP 5113 43/7/1/07681, ANZ­Auckland 287 Certificate of Title 8D/1148

70

__ .~,J;~~~

The establishment of the [limited access] road and the access which will be provided from it, will greatly facilitate the future subdivision of the whole of the residue land owned by Mr Ross, comprising approx. 31 acres. The benefit thus conferred will in my opinion far exceed any value which could be assessed for the land to be taken. Accordingly I recommend that no compensation be offered to the owner.288

Clarke valued the area of land owned by F Wand Z Soper, 6 acres 2 roods 01.5 perches in Lot 1 DPS 793, at $53,000. Clarke recommended $1,000 compensation for the 3 roods 13.0 perches 11.7 perches to be taken. He noted that it was 'doubtful whether the improvements in the nature of a cottage and outbuildings represents any added saleable value to the original block ... for practical purposes the improvements are being disregarded in this valuation'. 289

John Burns & Company Limited had 1 acre 2 roods 01.5 perches and 13.5 perches were acquired for the limited access road from land in Lot 2 DPS 793. The whole area of the property was 5 acres 0 roods 26.8 perches, and the limited access road would create a residue area on the north­east of 2 acres 0 roods 04.0 perches, and 1 acre 2 roods 07.8 perches on the south-west side. Clarke valued the area to be taken at $9,850, this was recommended as compensation for the land.290 John Burns & Co Limited, incorporated company and Agnes Marshall Ferguson, widow owner fee simple of 5 acres 26.8 perches of Whareroa 2H2. The proclamation defining the middle line of a limited access road was entered 17 June 1969.291

In Clarke's overall comments he noted that 'you may regard the valuations as being generally favourable to your Council but I believe them to be equally fair to the owners. I would hope that the owners will not overlook the general community benefit that will result from the establishment of the [limited access] road,.292

R E Hermans, District Commissioner of Works, wrote to the town clerk of the Borough of Mount Maunganui on 20 October 1970, stating:

With reference to the copy of the reports submitted to you by Mr C. H. H. Clarke in respect of land required for limited access street .. .it is suggested you make an offer to these owners [Bums & Co., Soper, Ross, Maori owners] of the amount assessed by Mr Clarke. However, it is not recommended that you make a copy of his report available to the owners.

If the owners reject this offer they should reply with a claim. You should insist that their claim be set out in detail with supporting evidence. This could then be referred to Mr Clarke for his comments. The claim may produce evidence of which Mr Clarke was unaware or for which he had not made allowance if justifiable. This would give him an opportunity to adjust his assessment. If Mr Clarke stands by his assessment and is sufficiently firm in his opinion then the claim should be allowed to go to court for settlement. However, if so desired our land purchase officer can be made available to negotiate a settlement out of court if possible.293

R E Hermans requested that the Valuation Department in Hamilton furnish him with an assessment of current market valuation for land to be taken for the limited access road:

288 C H H Clarke to Mount Maunganui Borough Council, 1 October 1970, BAPP 5113 43/7/1/0 7681, ANZ­Auckland 289 C H H Clarke to Mount Maunganui Borough Council, 23 September 1970, BAPP 5113 43/7/1/0 7681, ANZ­Auckland 290 C H H Clarke to Mount Maunganui Borough Council, 30 September 1970, BAPP 5113 43/7/1/0 7681, ANZ­Auckland 291 Certificate of Title 1070/2167 292 C H H Clarke to Mount Maunganui Borough Council, 25 September 1970, BAPP 5113 43/7 /1/0 7681, ANZ­Auckland 293 R E Hermans to Town Clerk, 20 October 1970, BAPP 5113 43/7/1/0 7681, ANZ-Auckland

71

--> -,.-..:..--..... --.. --.----~,:.

FIGURE 9: LAND TAKEN FOR LIMITED ACCESS ROAD294

Plan 1: Port Services Limited- CT 6A/70 3 acres 2 roods 03.7 perches

Plan 2: John Burns & Company Limited- CT 1070/167 1 acre 2 roods 01.5 perches 13.5 perches FW & Z Soper- CT 1015/284 o acres 3 roods 13.9 perches; 11.7 perches

R GRoss CT 658/228 o acres 3 roods 18.1 perches severance 17.5 perches

Plan 3: Maori land- Part Whareroa 2J2- CT 8C/1106 6 acres 3 roods 24 perches 12 perches o acres 2 roods 32.8 perches severance 15.1 perches

Be!!2iley Homes Limited- Part Whareroa 2J3A- CT 8DL1118 19.3 perches 0.1 perches Crown Land 0.3 perches

Hermans noted that negotiations for compensation were already underway. One case, the Port Services Limited, had already been partially settled.:1.95 It appears that the arbitrators for Port Services Limited accepted the valuation of 3 % acres of Whareroa 2B block at $25,375.00.296

R E Hermans wrote to the Mount Maunganui Borough Council's solicitors on the 2 November 1970 advising:

It is common practice for land required for public works to be taken by proclamation as this is most economical. Payment of compensation can be made in advance of the proclamation and the borough's interest protected by lodgement of a compensation certificate with the district land registrar who will enter it on the relevant certificate of title. However it is the borough council's prerogative to decide what line of action they will take.297

Hermans wrote on 18 November 1970:

You will of course be aware that if the borough council decide that the land shall be taken by proclamation, action to be taken would be that set out in section 23 (c) (i) of the Public Works Act 1928. In addition to the memorial we would also require from you the original agreement signed by both Port Service Ltd and Mount Maunganui Borough Council.

However, it is advisable that no action is taken at this stage to finally conclude the agreement between the borough council and Port Services Ltd. The reason for this is that objections have been made against the limited access road and also the motorway. I understand that the objections to the limited access road have been heard and rejected. However, there is one appeal in respect of the motorway. Until the appeal in respect of the motorway has been heard it would be unsafe to proceed with final acquisition of land. It by any remote chance the appeal was upheld it could result in the realignment of the motorway and thus possibly a realignment of the limited access road.298

294 R E Hermans to Valuation Department, 2 November 1970, BAPP 5113 43/7/1/0 7681, ANZ-Auckland 295 R E Hermans to Valuation Department, 2 November 1970, BAPP 5113 43/7/1/0 7681, ANZ-Auckland 296 Award of Arbitrators, Port Services Limited, 2 September 1970, BAPP 5113 43/7/1/0 7681, ANZ-Auckland 297 R E Hermans, District Commissioner of Works to Maltby, Hare & Willoughby, 2 November 1970, BAPP 5113 43/7/1/0 7681, ANZ-Auckland 298 R E Hermans, District Commissioner of Works to Maltby, Hare & Willoughby, 18 November 1970, BAPP 5113 43/7/1/0 7681, ANZ-Auckland

72

Cunningham wrote on 22 December 1970:

These factors have raised the question as to whether, in fact, the limited access road should be retained in this form, and whether it is worthwhile attempting to provide a better layout in subdivisional prospects for the owners concerned.

Doubts have been raised in the minds of the Council whether it will be justified in committing itself to the expenditure of considerable sums of ratepayers money primarily for the benefit of certain land owners, some of whom do not appear to appreciate their position, and some who have departed from the general tenor of acceptance which was expressed at the representative meeting held some time ago.

1 must therefore withdraw any offers of compensation which might have been made until the matters referred to above have been re-investigated. The matter is referred to the Ministry of Works investigating team for examination.299

The District Commissioner of Works, Hermans, responded that while it may be wise not to proceed with land acquisition for the limited access road for the time, the motorway had 'no bearing' on the status of the road, and there was no need to involve an investigating team from the Ministry of Works 'whatever that may mean,.300

In February 1972, the District Commissioner of Works revisited the Limited Access Road Hewletts Road to Hull Road. He outlined the taking process and advance compensation procedure to the Town Clerk of Mount Maunganui Borough Council:

Our first action is to obtain an assessment of the market value of the land as at the specified date in accordance with Section 29 of the Finance Act 1944. As work has not yet started on the [limited access road] the specified date in this case will be the date of the proclamation of the taking of the land. It is, therefore, to the borough's advantage to forward a Memorial to this department for the taking of this land at the earliest opportunity. Payment of an advance should assist in this case ...

After obtaining the assessment of the land value, the owners are then approached and informed that an advance to the value of the assessment can be recommended. It should be made quite clear that the sum of the advance is not negotiable. If the owners disagree with the amount it should be pointed out to them that there will be adequate time for further compensation to be negotiated when the work is carried out. However, again the interest of the borough in respect of further claims is protected by clause 4 of the agreement. If the owners agree to accept the advance a compensation certificate is then lodged against the title protecting the Crown's interest, in your case the borough's interest, until such time as the proclamation can be issued.301

On 13 November 1972, the solicitors for the trustees of Maori-owned Whareroa 2J2 block, wrote to the Minister of Works. Whareroa 2J2 had been vested in Maori owners in 1968 and the land was subject to section 438 of the Maori Affairs Act 1953. A middle line proclamation defining a Limited Access Road had been entered on the Certificate on 17 June 1969.302 The solicitors requested that the Ministry of Works proceed and take the land for the limited access road, as the trustees of the block were endeavouring to subdivide the balance of the block. They added that the 'question of compensation could be left in the meantime if the Department does not have the

299 V Bruce Cunningham, Town Clerk to District Commissioner of Works, 22 December 1970, BAPP 5113 43/7/1/0 7681, ANZ-Auckland 300 File note R E Hermans, District Commissioner of Works to District Land Purchase Officer, District Planning Officer, District Highways Engineer, 22January 1971, BAPP 5113 43/7/1/0 7681, ANZ-Auckland 301 R E Hermans, District Commissioner of Works to Town Clerk, Mount Maunganui Borough Council, 7 February 1972, BAPP 5113 43/7/1/0 7681, ANZ-Auckland 302 Certificate of Title 8C/ll06; Defining the middle-line ofTe Maunga-Mount Maunganui motorway in Blocks VII and XI, Tauranga Survey District and a limited access road in Block VII, Tauranga Survey District, 22 May 1969, New Zealand Gazette, 1969, no 33 , pp 1031-1032

73

relevant funds to make payment at present'.303 This issue was referred by the Ministry of Works to the Mount Maunganui Borough Council. Likewise the owner of Whareroa 2J3A sought to develop land, but could not due to the centre line proclamation.304

Stokes argues that the Whareroa Marae has been 'hemmed in by the development of the port and associated industrial land uses in the north and the airport to the south and east'. Stokes notes that while port and industry have provided for development of the Marae community, through employment, 'there is little room for residential development for tangata whenua here'.30s

303 Holland, Beckett & Co to Resident Engineer, Ministry of Works, 12 November 1972, BAPP 5113 43/7 /1/0 7681, ANZ-Auckland 304 File note to R E Hermans, 8 March 1976, BAPP 5113 43/7/1/0 7681, ANZ-Auckland 305 Document A15, p 15

74

5.6. EPILOGUE

Between 1956 and 1968 the Tauranga Harbour Board embarked upon, Giselle Byrnes argues, a 'more ambitious phase as the Board embarked on the expansion of existing facilities and the construction of the port of Tauranga as a port of national significance,.306 The Port of Tauranga was at Mount Maunganui, on the eastern side of the harbour, prior to 1968 and then expanded with a container terminal on the western side at Sulphur Point, now described as the 'Port of Tauranga', on the city of Tauranga side of the harbour.307

The Port Companies Act 1988 was the restructuring legislation for harbour boards. Under section 26 of this Act referring to sections 40 to 42 of the Public Works Act, Davies argues, that the decision to make an offer of land to persons from whom it was acquired is in the hands of the harbour board, rather than the regional council.30S In 1989 the port of Tauranga underwent restructuring, the Bay of Plenty Harbour Board (formerly the Tauranga Harbour Board) was dissolved and the Port of Tauranga Limited created in its place.

Willan argues that:

Within thirteen years a completely new port across the harbour at Mount Maunganui was to become New Zealand's largest export port handling monthly almost 98,000 tons of exports and imports which peaked in 1980 at a record annual level of3,782,613 tonnes.309

By 1999, the Port of Tauranga was New Zealand's largest export port.31O

306 Byrnes, doc A36, P 28 307 Byrnes, doc A36, p 47 30B Davies, pp 65, 82 309 Hamlin, p 238 310 Jenny Chamberlin, 'Terrific Tauranga', North and South, April 1999, p 36 (Willan, doc F29, p 23)

75

PORT OF TAURANGA, 1970 Source: Stokes. 1980. U A History of Tauranga County. n Palmerston North

Matakana Is/and

/ Matakana ,-, ....

Bank " I~/ ~ .' ,'/~/ ~ ./ :~! 61 ~ ! :'& i B f (J Moturikl

[(1\ I \ Pilot ~ ':~ \, \. 88

\~) ~::::'.~~>:~:::::'~~::::::::::::~:"\ : .... · ..... ~ttlil~a·····...... ~arbourBoard

.......... . ............. /.:: ... /!/ ········~~i~.::.:.·i ~\

Matakana "Island

.................. r-.~... : Store~ .... ons!' ...•.. i BOROUGH OF

Wasta,.. ..••..• 1 MOUNT ............................ \ MAUNGANUI

EXPORTV

WHARFS0J

Tauranga

Harbour i

Present ; .... Container Port I .... : : .••

:,,!

/ is situated here~: I J Planned Wharfs , - --

and ' Reclamation --:-

, , , ,

~ ;,; ._ OllTank g> i f8 i .--Farms '£ ! Q; i l!!: : _ y F!,!II f -~Fertilil:erWorks i ~ f: Whareroa j /: Marae

.... !; : ,

Trawler .... Wharfs '"

""'" , ,

MAP 10: PORT OF TAURANGA 1970

,--~~..;......:~.

............. :" ............ ': ;

~\, ....... .

0.5 1.0 , . kilometre

~

5.7. CONCLUSIONS

The establishment of the Port of Tauranga changed the nature of Mount Maunganui from a seaside holiday resort to an industrial centre. While the Port was established with the imperative of national and local economic well-being, a number of general and Maori land owners who had land and homes taken were resistant towards the change.

Maori owners in particular felt a great injustice was done when their lands were taken, as they had formulated subdivision plans with the economic future of the Maori community at Whareroa in mind. However, these plans were dashed in September 1951 when 37 hectares of the Whareroa and Te Awa-o-Tukorako blocks were taken for 'better utilisation'. Maori owners argued furthermore, that while adjacent general owners were capitalising on the industrial boom and the increasing value of their land, similar plans for Maori owned land had to be deferred until the taking authority made their plans clear.

Litigation over the valuation and compensation for Maori owned land stretched over some five years. Maori owners contended that the potential development or subdivision of their lands had not been factored into compensation, and therefore the valuation was flawed.

Conversely, it appears general owners enjoyed a more transparent and expeditious process as compares with Maori owners. While, it must be noted, that general land owners were at times equally reluctant to give up homes and holiday homes, most had their claims for compensation settled by 1954. Many general land owners also negotiated with the taking authority to have rate rebates for the previous year and to have utilities bills paid in addition to compensation.

The limited access road also affected land owner by both Maori and general owners. The evidence suggests that while minimal land was acquired from general owners, the taking authority sought to acquire the whole of the Maori owned block affected by the limited access road outright. It was then planned, it appears to on-sell the two severance areas of Maori owned land which would be created by the road. The valuer believed that while his valuations were fair, land owners should recognise the greater community good of the road outweighed their private loss.

Like land taken for airport purposes, takings for 'better utilisation' and port development may have involved the taking of more land than was actually required. Walzl cites Willan's argument that it is highly questionable whether the Whareroa acquisition was stricdy necessary and the only option. Walzl called this 'a very cynical approach to public works takings by Crown agencies,.311 Much of the land acquired has been sold into third-party ownership, no evidence of offers to former owners or successors has been uncovered in the course of this report. J Mitchell has discovered that none of the Whareroa land taken by the Crown for 'better utilisation' under the Public Works Act is still owned by the Crown,.312

Cookson-Va notes that:

[t]oday the lands which were taken in 1952 for ''better utilisation" are being used for port and harbour facilities as well as for industrial purposes. Many of the activities currently taking place on the lands taken for "better utilisation" are ancillary to the activities of the port and harbour ... [mcluding] a fertiliser works, a

311 Walzl, doc N2, p 100; Willan, doc F29, p 102 312 J Mitchell, p 14

77

-~---------------.---.--- -.... - ..... -.. --.-~----.-...

cement depot, cargo sheds, grain silos, oil tanks, cools stores, plywood factories, timber yards, as well as various storage facilities and other industries.313

Some of the land has been on-sold or converted to Crown title, and that there has been no provision made to offer the land back to former owners. McCaw Lewis Chapman's argue that '[i]t is evident from subsequent events/transactions that, not only has the Crown disregarded its fiduciary obligations, but there has in fact been unjust enrichment for the Crown.'314

313 Cookson-Ua, doc A27, p 61 314 McCaw Lewis Chapman, doc A1D, p 9

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Chapter Six: Hydro-Electricity

6.1. INTRODUCTION

This case study explores the comparative processes for taking land from both Maori and general land owners for hydro-electric schemes in the Tauranga Moana inquiry district. The land takings discussed are for the second stage of hydro-electricity generation, largely undertaken by the Tauranga Joint Generation Committee (hereafter referred to as 'the Committee'), the Mangapapa and Ruahihi schemes.

The first phase of hydro-electric development (1910-1920s) saw land in the Wairoa River catchment area, Omanawa, Kaimai 3, Whaiti Kuranui, Paengaroa blocks, taken to build the McLaren Falls and Omanawa power stations. In 1921, Lloyd Mandeno an engineer appointed by the Tauranga Borough Council in 1915, surveyed the upper Wairoa and Mangapapa rivers for a site for a hydro-electric power station. Construction began on the McLaren Falls power station in 1923,which was operational by 1925.315 By 1925, the Tauranga Electric Board had been established with jurisdiction over the whole of Tauranga County.

In the second phase (1960-1970s), the Committee built the Mangapapa, Lloyd Mandeno and Ruahihi power stations. The first stage of the Mangapapa Scheme was completed in 1972 (the Lloyd Mandeno Power Station). The second stage was the construction of the Lower Mangapapa Power Station. Work began in 1975 and the power station was commissioned in 1979. The third stage was the Ruahihi Scheme. Work began in 1977 and the station officially opened in 1981.316

Mayor of Tauranga, D S Mitchell writing in 1964 to W L Birnie of Cable Price Downer Limited, a visitor to Tauranga, noted the hydro-electric developments of the Tauranga region. Mitchell was of the opinion that the Tauranga City Council should independendy establish a power station in the lower Wairoa River, and the Tauranga Power Board should construct another in the upper Wairoa River. He noted furthermore that the Tauranga City Council netted about £20,000 a year from the existing station.317

When expansion of the hydro-electric scheme was envisioned, the Government would not grant the Tauranga City Council license to develop hydro-electric power alone, a joint venture was proposed between the Tauranga City Council and the Tauranga Electric Board, forming the Committee. The Tauranga City Council and Tauranga Electric Board Empowering Act was passed on 30 October 1965. Stokes believes that this Act gave the Committee 'its own "fast track" [avoiding] any public hearing under water rights or planning procedures.'318

The lands affected by the scheme included land that was held in multiple Maori ownership, as well as land in private ownership under general tide. After a Notice of Intention for the Mangapapa hydro-electric scheme, was issued on the 12 December 1968, a number of objections were received, the Tauranga City Council heard objections on the 1 April 1969. It was agreed at the hearing that an independent engineer should be engaged to perform an independent assessment of land requirements. J J Chesterman released his report on the 18 November 1969.

315 See Stokes,A History ofTauranga County, p 295 316 Evelyn Stokes, 'Ngamanawa: A Study of Conflicts in the Use of Forest Land', report commissioned by the University ofWaikato for the Ngamanawa Incorporation, 1983, Wai 215, doc All, pp 39-40 317 D S Mitchell to W L Birnie, 5 November 1964, Tauranga City Council Archive, Microfihn Cartridge 77 318 Stokes, doc All, pp 37, 39

79

.... _._--_. -,-.------.---.:..~-.----------~

Te Ahura Stream

Powerhouses 1 Ruahlhl

2 Mclaren Falls

3 Lower Mangapapa

4 Lloyd Mandeno

5 Omanawa Falls

canal

- - - tunnel

LOCATIONS OF POWERHOUSES IN WAIROA RIVER CATCHMENT ~.);~t':~~:~lactriC development In the Wai,oa Rive, Catchment

Mclaren

I

l' .~~ I.ellte Mangaonu;

o 2 3km , , ,

MAP 11: LOCATION OF POWERHOUSES IN WAIROA RIVER CATCHMENT AREA

----~-. "-. -' ."-.-.~. ---·--·-·-----------··---'--·--·-.:......-·_._. __ M __ ··.:.-·

WAIROA RIVER SYSTEM HYDRO ELECTRIC POWER

DEVELOPMENT

r Dam

• Power Station

~/::I Tunnel

\\ Canal

NOTE: Diagram not to scale

OMANAWA FALLS

MAP 12: WAIROA RIVER SYSTEM HYDRO-ELECTRIC POWER DEVELOPMENT

6.2. MAORI LAND TAKEN FOR HYDRO-ELECTRICITY

The Maori land acquired in the second phase of hydro-electric development for the Mangapapa, Lloyd Mandeno, and Ruahlhi power stations, was partly from owners who banded together as the Ngamanawa Incorporation. In May 1971, the Maori owners had banded together and formed the Ngamanawa Incorporation under part IV of the Maori Affairs Amendment Act 1967 to negotiate with the Committee.319 The incorporation known as 'The Proprietors of the Ngamanawa Block' were mainly from Ngati Hangarau hapu, and Ngati Kahu, both hapu of the Ngati Ranginui iwi.320

Ngati Motai and Ngati Mahana, hapu of Ngati Raukawa, also have significant interests and links to Wairoa and Kaimai lands.321 Ngamanawa lands consist of blocks that were formerly Paengaroa 2, Kaimai 2, Whaiti Kuranui 5D2, and Allotment 537A and Bin Te Papa Parish.322

The Committee acquired land in the Tauwharawhara and Te Papa Paengaroa (Kaimai 2) blocks for the Mangapapa schemes. Concerns from owners of land were voiced around 1967-1968 as access roads had been constructed and preliminary surveying undertaken.323 The Tauranga City Council issued a Notice of Intention to take land, under Maori title, for electricity works under the Municipal Corporations Act 1954 and Public Works Act 1928.324 Some 2270 acres of Maori owned land were thus earmarked for the Mangapapa scheme. C G Marchant wrote to the Committee in December 1968, to alert him of allegations made by a Tauranga City Councillor at a Council meeting on 16 December 1968.325 The Councillor alleged that the Committee had taken several areas of Maori land by proclamation, with no attempt at negotiation, while other land acquired for the scheme had been by negotiation with the owner. Moreover, the Councillor alleged, more Maori land was taken for the scheme than was needed. Marchant noted that the Council believed these allegations warranted investigation and a report back to the Council.

It appears the Committee responded to the allegations over the taking of Maori land on 12 February 1969. According to its official statement:

The Committee was advised by its legal advisors that it would be ahnost impossible to acquire Maori land by negotiation. The lists of owners were very lengthy, and many hundreds of succession orders would be required to bring these lists up to date. Furthermore, it has taken the Committee several years to define the lands required to the satisfaction of the Chief Surveyor, and the section of Whaitikuranui to be taken was defined just before Christmas. In these circumstances, the Committee decided to proceed on the advice of it Solicitor, and has requested the Council to issue Notice of Intention to take.

A Public Hearing of the objections to the taking of land will be arranged by the Council, and at that stage Council will have every opportunity to judge the position, and make its decision on the propriety of the action of the Committee in acquiring the land for Mangapapa Power Station, and at the same time protecting the catchment area and incidentally establishing a park of more than 5,000 acres of native timber for the future benefit of the district.

319 Rachael Willan, 'Hydro-Electricity in the Wairoa River Catchment: Land Acquisition', report commissioned by the Waitangi Tribunal, September 1996, Wai 215, doc A35, P 25 320 Willan, doc A35, p 8 321 Wai 215, claim 1.65(a),p 4; Wai 215, claim 1.61 (a), pp 11-12 322 Willan, doc A35, p 9 323 Stokes, doc All, p 41 324 Notice of intention to take land for electricity works, 3 December 1968, New Zealand Gazette, 1968, no 82, pp 2325-2326 325 C G Marchand to Secretary Tauranga Joint Generation Committee, received 18 December 1968, Tauranga City Council Archive, Microfilm Cartridge 27

82

The Committee also rejected the allegation that they had taken more Maori land than was actually required for the Mangapapa scheme,326

Walzl writes that a 'dismissive approach to the rights of Maori land owners' occutted during electricity schemes, with agencies ignoring prescribed notification and compensation processes,327 Walzl uses the 'Ngamanawa Experience' as a case to illustrate the lack of consultation and notification, with work of the hydro-electric scheme beginning without notice let alone consent, Officials cited the 'difficulties of multiple ownership' as the reason they did not follow statutory procedure,328 Nevertheless, the proprietors of the Ngamanawa Incorporation were entided to negotiate with the Committee direcdy without the Maori Trustee, under section 68 of the Maori Affairs Amendment Act 1967,329

FIGURE 10: TOTAL AREA OF MAORI LAND ACQUIRED BY THE TAURANGAJOINT GENERATION SCHEME330

326 TautangaJoint Generation Committee to Tauranga City Council, 12 February 1969, Tauranga City Council Archive, Microfilm Cartridge 27 327 Walzl, doc N2, P 101 328 Walzl, doc N2, P 164 329 Willan, doc A35, P 26 330 Willan, doc A35, pp 36-37

83

WHAITI KURANUI Pt5D2

NGAMANAWA LANDS 1965-71 Source: Stokes, Ngamanawa Fig 7.

ONGAONGA

KAIMAI No 1

kilometres

HliH~i~ill Charging orders for rates 1967 ~ A A A A j Maorlland sold 1966-71

I·· ... ····· ... ··,.] Informal grazing lease ..... , Maorlland 1971

o,"~ o Timber cutting rlghts valid in 1968

MAP 13: NGAMANAWA LANDS 1965-1971

From the outset it appears there were accusations that Maori land had been targeted and Maori owners not afforded the same rights as other owners.331 Willan writes that in December 1968, Councillor V C Smith argued that:

[o]ther land needed for the Joint Generation Scheme had been taken by agreement whereas Maori land was being taken by proclamation with no attempt at negotiation.332

Furthermore, Maori land owners remarked that they were "hurt and disgusted' that they had not been approached as Pakeha owners had been when land was sought. They had thought they lived in 'a world of equality'.333

An independent inquiry into the land requirements of the Committee, known as 'The Chesterman Report', took place in 1969. J J Chesterman, an engineer with my Ministry of Works, carried out the investigation. It concluded that the land actually required was far less than what was claimed by the Committee.334 The report saliendy recommended a significant reduction in the amount of land to be taken. Chesterman calculated only 120 acres were required for roading and engineering, considerably less than anticipated by the Committee. The Chesterman Report became the basis for an agreement between the trustees of the Ngamanawa lands and the Committee, signed 28 October 1970, under which the latter agreed on negotiation and consultation with owners, and the provisions of compensation.335

The Ngamanawa Incorporation, and a number of authors have pointed out procedural faults which prejudiced Maori owners. Not only did many take issue with the taking of land, significandy the amount taken, but also with water rights and pollution of the river system. According to Coffin 'the Wairoa hapu have not been active members of the management and development of their river and have considerable grievance due to thiS.'336

Willan believes that, while the Ngamanawa Corporation was granted compensation, there remain significant grievances:

.:. The Tauranga Joint Generation Committee only consulted owners after, deciding to take the land .

• :. There was no compensation for damage to historically significant rivers and waterfalls . • :. A number of historical sites were destroyed or damaged during the construction of the

most recent power projects . • :. Negotiations were limited to those Maori who had land taken. There was no recognition

of other hapu who may have had interests in the Wairoa catchment area . • :. There was no recognition of the principles of the Treaty of Waitangi in the Public Works

Act 1928, the Tauranga City Council and Tauranga Electric Power Board Empowering Act 1965, or the Energies Companies Act 1992.

331 Stokes, doc All, p 42 332 Bqy of Plenty Times, 7 December 1968 (Willan, doc A35, p 17) 333 Bqy of Plenty Times, 2 April 1969 (Willan, doc A35, p 18) 334 Stokes, doc All, p 66 335 Stokes, doc All, p 71 336Antoine Coffin, 'Ngati Kahu, Ngati Rangi, Ngati Pango [part Two]', report commissioned by the Waitangi Tribunal, 1996, Wai 215, doc A37b, P 86

85

.:. The Energy Companies Act 1992 transferred the Tauranga Joint Generation Committee's assets into third party ownership. This prejudicially affected claimants' rights to settlements or redress of Treaty claims.337

Of key importance was the diversion of rivers, and the resultant termination in flow to parts of the Mangapapa river. The Ngamanawa Incorporation investigated between 1973 and 1974 whether they were entided to compensation due to water 10ss.338 Stokes argues that while the Ngamanawa claim was evaluated within the framework of ecological and aesthetic loss, Maori values and sites ofwaahi tapu do not appear to have been considered.339 At a 1977 water rights hearing the Committee indicated its attitude towards water use and meaning. The Committee claimed in their application for water rights in 1977 that 'the use of the waters for generating electricity while diminishing the opportunities for recreation will create some by the formation of roads and lakes, recreational and sporting opportunities in their place".340 It said nothing about cultural values.

Cathy Mart acknowledges the special significance of Maori lands. This extends to the Maori values imbued in water rights and usage:

The special significance of Maori land was also not recognised in compensation provisions ... The assumption that because compensation was awarded the issue was solved needs to be treated with some care, especially where Maori land is involved. When land was only assumed to have a commercial value, it was common to assume that if compensation was paid then the former owners had no further interest in the land. However this took no account of other values such as the emotional and cultural attachment to land that meant an interest remained for Maori, regardless of the present legal ownership.341

In 1971, the Committee acquired 147 acres and compensation was set, by mediation of valuers from both parties, at $19,250. Further negotiation took place in September 1976, for the further acquisition of another part Kaimai 2C, further land still was acquired in October 1976.342 A total of 154 acres of Maori land was taken for the Joint Generation Scheme.343 Negotiations were continuing as Willan's report was written in 1996.

FIGURE 11: LANDS TAKEN AND ACTION COMPLETE AT 15 JANUARY 1982344

[t~~1~11*~Wj, ~~~~~i1il\1f'~;':it\f~~t~4~~i~~}~t7.~i.t'11~W~1~~I~t~fit~~0~fi{t~~J.~~~~W~t~~i~~~~*l~ijit~~~l~~;tJ~ f~~~'~:(!&i~~~~~i~~~1 ~~\l.~~~ij~~t1j:J~t~~f~~¥1~~~~: 46538 Pt 5D2 Whaiti Kuranui Blk (Matamata County) 10.6185 1972, pl005 48721 Pt 5D2 Whaiti Kuranui Blk_(Matatmata County) 3.2074 1976, P 2599 48886 Pt Kaimai No 2 (Now Pt Kaimai No.3, ML21117 1.8236 1977, p1219 48885 Pt Kaimai No.2 (Now Pt Ngamanawa, ML21117) 3.5904 1977 ,p2387 46590 Pt Kaimai No. 2 (NowPtNgamanawa,ML21117) 4.3374 1972,pl020 46591 Pt Kaimai No.2 (Now Pt Ngamanawa, ML21117) 5.1748 1972, pl020 48631 Pt Kaimai No.2 (NowPt Ngamanawa, ML21117) 16.1238 1976, p2543 48783 Pt Kaimai No. 2 (NowPtNgamanawa,ML21117) 5.0730 1977,J)t219 47037 Pt Kaimai lC 20.8104 1973, p2487

337 Willan, doc A35, p 5 338 Stokes, doc All, p 74 339 Stokes, doc All, p 75 340 Stokes, A History ofTauranga County, p 433 341 Marr, Public Works Takings of Maori Land, 1840-1981, pp 206-207; Willan, doc A35, p 52. Also see Waitangi Tribunal, Muriwhenua Land Report (Wellington: GP Publications, 1997), pp 194-197. 342 Willan, doc A35, p 32 343 Willan, doc A35, P 35 344 Schedule of Lands, 15 January 1982, Tauranga City Council Archive, File 1600-4

86

FIGURE 12: LANDS TAKEN AND ACTION NOT COMPLETE AT 15 JANUARY 1982

87

FIGURE 13: LANDS ACQUIRED MCLARENS FALLS FROM CITY COUNCIL AT 15 JANUARY 1982

FIGURE 14: LANDS FREELY PURCHASED

-',J .", . !.' .1 ...•. '.. .1: ',". ,r." .,':' . ::",. ; ........ ! I', ,". '.1

} 130.203 DYER- Part Lot 1, DP 24032 (87.5149) and Part Lot 3, DP 24032 5 (2.9694) and Part Allotment 163 (9.7658) totalling 100.2502 acres for

resale to

6.3. GENERAL LAND TAKEN FOR HYDRO-ELECTRICITY

Land acquisition for hydro-electricity involves not only outright land takings, but also the implications of the reservoir inundating property and impeding riparian rights. The available archival material provides an insight into negotiations between owners and the Committee. Existing research reports suggest that land owned by Maori was taken by compulsory means, while general land owners had the benefit of negotiation.

6.3.1. Acquisition oj land from W Ormsby

William Ormsby's land in part Allotment 342 (Certificate of Title 904/142) and part Allotment 343 (Certificate of Title 575/63) Te Papa Parish Block V Otanewainuku Survey District was affected by the hydro-electric works. On 7 November 1967, the Committee noted that its

88

secretary had been unsuccessful in negotiating rights to cross Ormsby's property. Ormsby had declined an offer of $200, 'but stated he required $1,000 which was in excess of the amount authorised by the Committee'. It had therefore been resolved to invoke the Public Works Act and subsequendy prepared a Notice of Intention under the Act.345 The Notice of Intention was:

... pursuant to the powers vested in that behalf vested in it by Sections 51 and 268 of the Municipal Corporations Act 1954 and the Public Works Act 1928. The Tauranga City Council Resolves to take pursuant to the provisions of the Public Works Act 1928 those portions of Allotment 342 and Allotment 343 Parish ofTe Papa comprised and described in Certificates of Title Volume 904 Folio 142 and Volume 575 Folio 44 ... 346

The Committee resolved that the notice under the Public Works Act 1928, served on Ormsby on 23 November 1967, be left as the 'long term benefit of taking the land would outweigh possible costs of fencing,.347 It reported on the 5 December 1967 that Ormsby had written to the Committee offering rights to construct an access way across his property on the conditions that top side fencing proceed immediately, bottom side fencing proceed as soon as consolidation. The Committee offered compensation of $600 cash, and a further $400 in two years.348 The Committee reported on 5 June 1968 that an agreement to purchase land from Ormsby had not been reached, and therefore the lands were being acquired pursuant to section 32 of the Public Works Act.349

At a public hearing, held by the Committee on 1 Apri11969, the chairman of the Committee noted that further land had been acquired by agreement pursuant to section 32 of the Public Works Act 1928. The land was needed to form a road from McLaren Falls Road to the proposed power house site. This included in Te Papa Parish, approximately 3 acres of part Allotments 522 and 344 from A A Petersen, approximately 3 acres of part Allotments 342 and 343 from Ormsby, and approximately 1 acre of Allotment 345 C Rand S R Peers. Additionally, the Committee was in negotiation with Mr A R Scott to acquire approximately five acres from part Kaimai 1 C.350

The Committee decided in 1970 that they should move quickly to acquire the land required, before its value appreciated. Consulting Engineers, Mandeno, Chitty & Bell, reported to the Committee that while the Tauranga City Council owned the upper half of lands needed for the project, the lower half was largely privately owned. Furthermore, 'these lands are rapidly being developed with farm buildings of various kinds and their market value is appreciating at a rather disturbing rate'·351

345 Tauranga Joint Generation Committee Minutes, 7 November 1967, Tauranga City Council Archive, Microfilm Cartridge 27 346 D L Evans, Assistant Town Clerk to Sharp, Tudhope & Co, received 29 September 1967, Tauranga City Council Archive, Microfilm Cartridge 27. Emphasis in original. 347 TaurangaJoint Generation Committee Minutes, 5 December 1967, Tauranga City Council Archive, Microfilm Cartridge 27 348 Tauranga Joint Generation Committee Minutes, 5 December 1967, Tauranga City Council Archive, Microfilm Cartridge 27 349 Tauranga Joint Generation Committee Minutes, 5 June 1968, Tauranga City Council Archive, Microfilm Cartridge 27 350 Statement by Chairman, Public Meeting of the TaurangaJoint Generation Committee, 1 Apri11969, Tauranga City Council Archive, Microfilm Cartridge 27 351 Mandeno, Chitty & Bell to TaurangaJoint Generation Committee, 3 November 1970, Tauranga City Council Archive, Microfilm Cartridge 27

89

A 16 August 1983 gazette notice declared 1.18 acres of Block V, Otanewamuku Survey District, Lot 5, DP 14088 taken under the Public Works Act 1981, section 20.352 Sharp, Tudhope & Co noted that this completed the acquisition of land for electricity works and easements from A R Scott, H G A and CAM Peeters and W Ormsby. The area was in the confluence of the Opuiaki and Mangapapa Rivers, belonging to Scott and the Marshalls.353 The Tauranga City Council issued a compensation certificate on 15 November 1982.

6.3.2. Acquisition of land from A R Scott

In correspondence from the Maori Trustee, it was noted that Kaimai 1 C block totalling 430 acres, had been sold to Alan Roger Scott for £5,100. The Maori Land Court confirmed the sale on the 8 September 1966. The Maori Trustee highlighted the desirability of this land:

There were three prospective purchasers for this block and the meeting of owners virtually turned into an auction. Mr Scott's original offer was £1,025 or the present Government Valuation, whichever is higher. I am enclosing a copy of the minutes of the meeting of owners which will give you a better idea of the ''bidding'' .354

Alan Roger Scott, a farmer of Tauranga, owned an area of 9 acres 3 roods 15.0 perches part Kaimai lC block situated in Block V Otanewamuku Survey District.355 The total area of Kaimai 1 C is 430 acres. The Crown took the area owned by Scott pursuant to section 32 of the Public Works Act 1928, by agreement with the owner for electricity works (the Mangapapa project) and vested it in the City of Tauranga.356

Stokes notes that in the past Maori had used the section of Frankham's Road which crossed Scott's farm in Kaimai lC, to access the bush. By 1969, Scott no longer allowed Maori access across his land. He had, however, in the early stages of the scheme allowed the Committee access.357

The Committee met with Scott's solicitor in September 1967 and devised several proposals for acquisition of Kaimai 1 C:

1. Mr Scott will lease Kaimai lC to the Committee, to commence three months after receiving notice from the Committee, and to continue for the period of construction at an annual rental to be agreed.

2. On completion of works, Committee will acquire freehold of such parts of Kaimai 1 C as have work sited there-on, together with access, compensation to be payable for land taken and for damage or deterioration.

3. Committee to have free access through adjoining land and to Kaimai 1 C owned by Mr Scott. 4. Committee to have right to construct access road through Lot 5 to Kaimai lC.

352 Land acquired for electricity works in Block V, Otanewainuku Survey District, Tauranga County, 16 August 1983, New Zealand Gazette, 1983, no 134, p 2761 353 Sharp, Tudhope & Co to Tauranga Joint Generation Committee, 29 August 1983, Tauranga City Council Archive, File 1600-4 354 Maori Trustee to S Morris Jones, 25 February 1969, MA 14/74, Wairoa River Power Project, Maori Trustee Hamilton (Rachae1 Willan, 'Hydro-Electricity in the Wairoa River Catchment: Land Acquisition' document bank accompanying report commissioned by the Waitangi Tribunal, Wai 215, doc A35(a) p H2) 355 Certificate of Tide 45/112 356 Declaring land taken for electricity works in Block V, Otanewainuku Survey District, Tauranga County, 22 April 1974, New Zealand Gazette, 1974, no 46, p 942 357 Stokes, doc All, p 85

90

.. ~

5. Small areas of land in Kaimai 2D and Tauwharawhara No.1 at present being acquired by the Committee and not required for works or catchment to be sold to Mt Scott on completion of works. 358

A November 1967 proposal, involved land exchange. Scott would transfer 84 acres of Kaimai 1C jn exchange for 150 acres of part Kaimai 2D and 25 acres of part Tauwharawhara block and further grazing rights.359

The Committee reported the progress of land acquisition on 5 June 1968. The acquisition of five acres of Kaimai 1C from Scott and access over Lot 5 DP140n awaited valuation. The survey plans and ownership schedules of Maori lands, including Kaimai 2D, Kuranui 5D2, Paengaroa, Whaiti, and Tauwharawhara 1, 2, 3 and 4, were in progress.360

The Committee had applied for publication of a Gazette notification to take Maori land on 12 November 1968, and made enquiries to the Waikato-Maniapoto District Maori Land Court asking whether it was necessary to take whole blocks. The Committee had also drafted a deed of agreement for A R Scott's land in Kaimai 1C, the acquisition of five acres for a powerhouse at Mangapapa for $100 per acre. The agreement also gave right-of-way over what would be a road from Frankham's Road to the powerhouse site. The Committee resolved that the Scott agreement needed to be perused by a sub-committee and submitted to Scott with urgency.361

The Committee reported the progress of acquiring land for the scheme and access roads on 3 December 1968. Owners of the land needed for the road from McLaren Falls Road to the Mangapapa Power House had signed agreements. The agreement for land from Kaimai 1 C owned by Scott, had been approved by Scott's solicitor and awaited the owner's consent. The Town Clerk signed the notice of intention to take Maori land required for the Mangapapa scheme.362

By 27 March 1969, a deed of agreement between Alan Roger Scott and the Committee parties was signed. Scott relinquished five acres of Kaimai 1 C, for the purpose of the Mangapapa Powerhouse and ancillary equipment site, for consideration of $100 per acre.363 Under the agreement, Scott also granted a right of way between the powerhouse site and Frankham's Road. The Committee also had the right to acquire freehold one chain running from Kaimai 2D to the dam site, which would be erected in the south eastern portion of Kaimai 1 c.364 The Committee resolved on 3 November 1970 to lodge a caveat affecting Kaimai 1C, due to the Committee's investment in the land·365

358 Tauranga Joint Generation Committee Minutes,S September 1967, Tauranga City Council Archive, Microfilm Cartridge 27 359 TaurangaJoint Generation Committee Minutes, 7 November 1967, Tauranga City Council Archive, Microfilm Cartridge 27 360 Tauranga Joint Generation Committee Minutes,S June 1968, Tauranga City Council Archive, Microfilm Cartridge 27 361 Tauranga Joint Generation Committee Minutes, 12 November 1968, Tauranga City Council Archive, Microfilm Cartridge 27 362 Tauranga Joint Generation Committee Minutes, 3 December 1968, Tauranga City Council Archive, Microfilm Cartridge 27 363 Deed of Agreement Alan Roger Scott and TaurangaJoint Generation Committee, 27 March 1969, p 1, BAPP 5113 811A, ANZ- Auckland 364 Deed of Agreement Alan Roger Scott and Tauranga Joint Generation Committee, 27 March 1969, p 4, BAPP 5113 81lA, ANZ- Auckland 365 Tauranga Joint Generation Committee Minutes, 3 November 1970, Tauranga City Council Archive, Microfilm Cartridge 27

91

J Polkinghome, the Committee secretary, noted difficulties in the negotiations with Scott on 10 September 1971, regarding the acquisition of land to provide an access road from the power house to the intake work at the head on the penstock line. Polkinghome wrote that the 'Committee has been endeavouring to obtain a written agreement to this acquisition, but Mr Scott having verbally agreed, has avoiding signing the agreement'.366

Sharp, Tudhope & Co wrote to the Tauranga City Council on 15 September 1971 advising them that Scott did not want to enter into agreement to take land in Kaimai 1C.367 The Committee therefore resolved to take Scott's land compulsorily under the Public Works Act 1928. Town Clerk C G Marchant wrote to Scott's solicitors, Sharp, Tudhope & Co, received on the 1 October 1971, alerting Scott that the Tauranga City Council had agreed to the acquisition ofKaimai 1C:

pursuant to the Powers in that behalf vested in it by the Municipal Corporations Act, 1954, and the Public Works Act, 1928, resolves to take for the construction of Electricity works the freehold of all those pieces of land being First an area containing approximately 12 acres and having a minimum width of one chain running from the powerhouse erected in the north-western portion of Kaimai 1 C to the site of a dam to be erected in the south-eastern portion of the aforesaid block ... Secondly those areas running from the south­eastern comer of Kaimai 1 C to the north-western comer of the aforesaid block ... 368

T G Martin on behalf of H D Aiken, resident engineer wrote to the District Commissioner of Works, Hamilton, on 3 October 1973 with regards to acquisition of land from Scott. He noted that the agreement between the Committee and Scott, signed 27 March 1969, that:

taking of land for the power house [was] not included because in the original agreement an area of 5a-Or-Op was specifically defined for the purpose and subsequent requirements indicate that his area will be greatly exceeded. A new agreement for the taking of this extra land will have to be arranged. In order to overcome further lengthy delays it has been decided to complete the transaction for the property for which an agreement is already held.369

The Crown declared this land taken by agreement pursuant to section 32 of the Public Works Act 1928 on 29 November 1973. The land taken for electricity works was 20 acres 3 roods 9.7 perches of part Kaimai 1C block and 29 acres 2 roods 14 perches of part Kaimai 1C block.370

Sharp, Tudhope & Co, solicitors to the Tauranga City Council, wrote to the Ministry of Works on 5 February 1974:

Our client Council relies on the Deed of Agreement dated 27 th March 1969 made between it, the Tauranga Electric Power Board and the owner of the land being acquired. Our client's copy of the agreement was forwarded to you under cover of our letter of 19th September 1973 enclosing Plans and Memorials in support of the acquisition of other areas comprised in Kaimai 1 C Block belonging to Mr A. R. Scott. The area 4 acres 3 roods 15 perches on which is situated the Mangapapa Power House, Switchyard and Ancillary Equipment and adjoining access roading. These Works are all part of the Mangapapa Hydro Electric Power Scheme. Only those areas essential to the above Works are being acquired.371

366 J Polkinghorne to Town Clerk, 10 September 1971, Tauranga City Council Archive, Microfilm Cartridge 27 367 Sharp, Tudhope & Co to Town Clerk [C G Marchant], 15 September 1971, Tauranga City Council Archive, Microfilm Cartridge 27 368 C G Marchant, Town Clerk to Sharp, Tudhope & Co received 1 October 1971, Tauranga City Council Archive, Microfilm Cartridge 27 369 T G Martin to District Commissioner of Works, 3 October 1973, BAPP 5113 811A, ANZ-Auckland 370 Declaring land taken for electricity works in Block V and IX, Otanewainuku Survey District, Tauranga County, 13 November 1973,lVew Zealand Gazette, 29 November 1973, no 110, P 487 371 Sharp, Tudhope & Co to District Commissioner of Works, 5 February 1974, BAPP 5113 811A, ANZ-Auckland

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Further land owned by Scott was affected by hydro-electric schemes. On 23 April 1975, 1 acre 1 rood 22 perches of part Lot 5 OP 14088 and 1 acre 0 rood 9 perches was taken from the Mangapapa river bed under section 32 of the Public Works Act 1928.372 A deed was entered into by Scott and the Committee which further defined Scott's rights and obligations in terms of the access road.373 Scott had been granted a restricted licence to traverse the access road through the site of the Lloyd Mandeno Power station as part of Scott's compensation claim for injury it his land.

In 1983, the Committee acquired further land from A R Scott and R A Scott under the Public Works Act 1981.374 The Scotts agreed to the Tauranga City Council taking part their farm, part of Lot 1 of OP S 17901 (Certificate of Tide 16B/828), under section 17 of the Public Works Act 1981. They agreed with the Committee to create an easement as the reservoir in Lower Mangapapa inundated part of their property.375 The Scotts accepted full and final compensation of $18,500 for this taking.376 A compensation certificate was issued pursuant to section 19 of the Public Works Act 1981 for the approximately 0.18 hectares that were taken from Lot 1.377 The Scotts also consented to lands from a stopped road, being vested in the Tauranga City Council for electricity works under Section 116 of the Public Works Act 1981.378

In 1988, the Scotts agreed with the Committee with regards to the their land in Lot 1, OP S 17901.379 They received to $1,282 as full and final setdement and a conditional license to take water to setde all claims in respect of electricity works at Lloyd Mandeno, Lower Mangapapa, and Ruahihi.

6.3.3. Acquisition oflandfrom H T Marshall

The Committee sought to acquire land from H T Marshall by way of an exchange of land under the Reserves Act 1977. Allotment 475 was acquired by the City Council around 1924, and was held for water power usage.380 When McLaren Falls Road was realigned in 1956, this severed an area of 3 acres 3 roods and was part of an unformed Crown grant road. When the unformed Crown grant road was closed this severed land became vested in Allotment 450.381 In 1965 the Tauranga City Council negotiated with Mr Marshall for surrender of his lease of part Allotment 475 and the purchase of Allotments 483, 484, and 485. Land that was issued to Marshall included

372 Declaring land taken for electricity works in Block V, Otanewainuku Survey District, Tauranga County, 18 April 1975, 18 April 1975, New Zealand Gazette, 1975, no 35, p 920 373 Deed A R Scott and Tauranga Joint Generation Committee, undated c1975, Tauranga City Council Archive, Microfihn Cartridge 27 374 Sharp, Tudhope & Co to Tauranga City Council, 21 July 1983, Tauranga City Council Archive, File 1600-4 375 Declaring land and easements over land taken for electricity works in Block V, Otanewainuku Survey District, Tauranga County, 27 August 1958, New Zealand Gazette, 1981, no 122, p 2912; BAPP 5113 43/31/0/2 1410a, ANZ­Auckland 376 Agreement between A R and R A Scott and Tauranga City Council, undated c19 July 1983, Tauranga City Council Archive, File 1600-4 377 Compensation Certificate Lot 1 DPS 17901, Tauranga City Council Archive, File 1600-4 378 Agreement between A R and R A Scott and Tauranga City Council, 13 July 1983, Tauranga City Council Archive, File 1600-4 379 Deed between Tauranga City Council and Tauranga Electric Power Board (Tauranga Joint Generation Committee) and A Rand R A Scott, 1988, Tauranga City Council Archive, File 1600-4 380 Land permanendy reserved, 22 July 1924, New Zealand Gazette, 1924, no 51, pp 1785; Vesting reserves in the Tauranga Borough Council, 22 September 1924, New Zealand Ga~tte, 1924, no 62, p 2222; Certificate of Tide 473/86 381 Land proclaimed as road and road closed in Block V, Otanewainuku Survey District, Tauranga County, 27 August 1958, New Zealand Gazette, 1958, no 54, p 1165

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part Allotment 475.382 It appears that Marshall came to an agreement of land exchange with the Committee for his land in Allotment 450 and Allotment 475. 383

The Commissioner of Crown Lands wrote to the Tauranga Borough Council in August 1960, asking for notification of firmer plans as to the hydro-electric scheme.384 This was due to Marshall's inquiry regarding the acquisition of permanent title to Allotment 450 Te Papa Parish, approximately 109 acres. The Town Clerk responded that it appeared that the Council could sell Allotment 450, which was currently leased by Marshall's father, with the exception of a small portion in the south eastern comer. 385 If part of Allotment 450 was disposed to the Marshalls, this would leave it without legal access, and the Commissioner of Crown Lands suggested that a strip of land be left aside for access purposes.386 It appears that G A Taylor, owner of the adjacent Allotment 643, was the eventually offered 12 acres part Allotment 450 at a price of £100.387

In June 1964, Marshall's father's lease had expired, but there was an obligation on Council to renew it. The Council offered, to waive his right to a new lease and to deal directly with his son to offer him the freehold of Allotment 475, less approximately 10 acres, in exchange for him transferring some 50 acres to the Council out of Allotment 483, 484, and 485.388 The Commissioner of Crown Lands had no objection to this exchange. It was also noted that a strip of Crown land existed between Allotment 475 and the river, which was covered by water up stream but down stream was untouched by hydro-electric works. The Commissioner of Crown Lands suggested that:

[t]o legalize the position it will be necessary for your Council to take the submerged area for Hydro purposes and I suggest that the balance strip be reserved for public purpose and vested in your Council. This suggestion is brought about by the fact that your Council intends to acquire portion of Marshall's property with the idea of establishing a picnic ground.389

On 28 October 1971 H T Marshall's solicitors wrote regarding the Committee's attempt to acquire his land for housing sites.390 Marshall disputed the Committee's claim that the land should be valued as farm land, he instead saw the value as based on subdivided potential. Marshall would not accept less than $1500 for the land, and was reluctant even at that price. J Polkinghorne for the Committee wrote to the Tauranga City Council requesting aid in negotiations with Marshall. Polkinghome stated that 'the Committee [had] been able to avoid the compulsory purchase of

382 Certificate of Tide 6D/962 383 Tauranga Joint Generation Committee to Sharp, Tudhope & Co, 17 June, 1982, Tauranga City Council Archive, File 1600-4 384 Commissioner of Crown Lands to Tauranga Borough Council, 29 August 1960, Tauranga City Council Archive, :Microfilm Cartridge 77 385 Town Clerk Tauranga [Borough] Council to Commissioner of Crown Lands, 12 October 1960, Tauranga City Council Archive, :Microfihn Cartridge 77 386 Commissioner of Crown Lands to Town Clerk, Tauranga Borough Council, 25 October 1961, Tauranga City Council Archives, :Microfihn Cartridge 77 387 Commissioner of Crown Lands to G A Taylor, 4 December 1963, Tauranga City Council Archive, Microfihn Cartridge 77 388 Sharp, Tudhope & Co to Tauranga City Council, 16 June 1964, Tauranga City Council Archive, Microfilm Cartridge 77 389 F S Beachman Commissioner of Crown Lands to Tauranga City Council, 11 September 1964, Tauranga City Council Archive, :Microfilm Cartridge 77 390 Maltry, Hare & Willoughby to Sharp, Tudhope & Co, 28 October 1971, Tauranga City Council Archive, :Microfilm Cartridge 27

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any land for Mangapapa, and we would much prefer to continue to acquire land by negotiation'. 39!

The Committee stated in 1974 that:

Mr Marshall owns an area with nominal access to McLaren's Falls Road. In practice Mr Marshall has grazed the area owned by the Tauranga City and has used this land as access to his freehold block. So far as can be seen on the information available, Mr Marshall has no legal rights to continued access over the City land ad it is a matter for the Tauranga Joint Generation Committee to advise what action should be taken in regard to access in the future, if a canal is built.392

The Committee noted Marshall's concerns regarding the Ruahihi hydro-electric scheme:

The Committee considered a letter dated 15 February 1977 from the TaurangaJoint Generation Committee concerning the encroachment of the Ruahihi canal onto property owned by MR H. T. Marshall. The amount of encroachment is approximately 1.5 hectares and Mr. Marshall requested that any land lost be replaced. In order to construct a suitable access to Mr. Marshall's land, it may be necessary to encroach onto City Council land and the Committee requests Council's agreement to this and the ultimate transfer of a small area of land to Mr. Marshall. Mr Marshall has also requested the right to purchase the land south of the proposed canal ... The ultimate use of this land, once construction is completed, is a matter for Council to resolve.393

The Marshalls owned land in Lots 2 and 3, DP S 9907, Allotment 700 Te Papa Parish, part Allotment 344, Te Papa Parish, and Allotments 717 and 718, Te Papa Parish. The Marshalls agreed to the taking of land for the reservoir of Lower Mangapapa Power Station and the Ruahihi Canal, under section 20 of the Public Works Act 1981. In exchange the Marshalls were to receive part interests in lands owned by the Tauranga City Council and compensation. The land the Marshalls were to receive was 3 acres 3 roods 28 perches of Allotment 475, subject to the revocation of conditions of the Reserves Act 1977, and 90.9059 acres of Allotment 703, Te Papa Parish.394

To transfer land in Allotment 475 to Marshall, approximately 1.75 acres, the provisions of the Reserves Act 1977 needed to be lifted. The reservation of the land for water power development had to be revoked. H M Binney noted that it was 'clear that the original vesting [ of Allotment 475] was changed to permit the sale to Marshall and the type of reserve was altered from "development of water power" to "reserve under Public Reserves and Domains Acr' '.395

Furthermore, to Binney's knowledge 'the land (pt. Allot. 475 and Allot. 703) to the north of McLaren Falls Road has been formed [farmed?] by Marshall (albeit unofficially) since the establishment of McLaren Falls Park'. An agreement saw the Committee enter into an arrangement with H T Marshall, R P Marshall, K D Marshall and D A Marshall on 30 July 1982.396

39! J Polkinghome to Tauranga City Council, 8 November 1971, Tauranga City Council Archive, Microfilm Cartridge 27 392 Tauranga Joint Generation Committee Minutes, 18 February 1974, Tauranga City Council Archive, Microfilm Cartridge 28 393 Electricity Committee, 22 February 1977, Tauranga City Council Archive, File 1600-4 394 Memorandum of Agreement Tauranga Joint Generation Committee and H T Marshall, R P Marshall, K D Marshall, and D A Marshall, 30 July 1982, Tauranga City Council Archive, File 1600-4 395 TaurangaJoint Generation Committee to Sharp, Tudhope & Co., 17 June, 1982, Tauranga City Council Archive, File 1600-4 396 Memorandum of Agreement Tauranga Joint Generation Committee and H T Marshall, R P Marshall, K D Marshall, and D A Marshall, 30 July 1982, Tauranga City Council Archive, File 1600-4

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The Committee acquired land from Marshall in 1982 for the Lower Mangapapa Reservoir, his land adjoined the Ruahihi Canal at its outlet from Lake McLaren. It transferred part Allotment 703 and part Allotment 475 to H T and E F Marshall pursuant to section 106 of the Public Works Act 1981 in addition to a right of way easement.397 A small strip of Lot 3, formerly part Allotment 475, was taken for a road for the Ruahihi power scheme pursuant to section 114 (2) (b) of the Public Works Act. In exchange for Lot 3, Lot 2, some 1.6 acres (0.65 hectares) was to be sold to Marshall.398

The Committee was awarded the Marshalls $6,561.48 for the loss of land and easements, and $2,800.00 for the loss of stock boundary, and a further contingency for a 800 metre strip of land parallel to the edge of the Lower Mangapapa Reservoir. Marshall had also been grazing stock on part of the McLaren Falls Park, 'by virtue of an unwritten license from The Tauranga City Council'. He was to be compensated for any disruption to grazing on this land caused by the Committee, as well as to grazing on his own land in Allotment 700. The Tauranga City Council registered this compensation certificate on Marshall's' certificate of Title on 3 December 1982.399

There may have been some dispute over access over Marshall's property pursuant to his agreement with the Committee. H Binney of the Committee, wrote to Mr John Coster, presumably the Marshall's legal counsel, on 9 August 1983. Binney argued that sites N67/82-86, 88, 89 [Fa site] located on Marshall's property 'were protected during construction and as far as Mr Marshall is concerned we do not have, and do not want any oversight or control over how he develops his farm. I do not know if you advised Mr Marshall of the fact that the site is located on his property pursuant to section 43 (2) and that he has certain obligations as regards modifications'.4OO

It took some time for Marshall and the Committee to resolve issues of land transfer and rights of way. Sharp, Tudhope & Co reported on 30 November 1989 that Lots 1 and 2, DP S 32643 and right of ways over areas of DP S 32643 had been transferred, disposed pursuant to section 107 of the Public Works Act 1981 'and completes an agreement entered into [with Marshall] some years ago, whereby land was exchanged by way of compensation,.401

On 20 March 1990 Sharp, Tudhope & Co, noted with regards to Marshall's land:

This is to report that the matter is proceeding although it is taking a long time to do so. It took a great deal of encouragement and persuasion to get the necessary details that we required from the other side but all that has now been taken care of. Finally we were able to present a certificate under the Public Works Act for the land to be transferred to Marshall and also for the right of way to be created. 'That registration is being undertaken at the moment although there are various land dealings involving Marshall's land which will slow the process down.402

397 Certificate under Section 107(1) of the Public Works Act 1981 for Grant of Land under Section 106 of that Act, date from which entitled 30 July 1982, Tauranga City Council Archive, File 1600-4 398 Senior Administration Officer to Property Officer Tauranga City Council, 22 December 1988, Tauranga City Council Archive, File 1600-4; land and easements over land acquired for electricity works in Block V, Otanewainuku Survey District, Tauranga County, 3 September 1986, New Zealand Gazette, 1986, no 141, p 3822 399 Certificate of Title 6D/962 400 H Binney to John Coster, 9 August 1983, Tauranga City Council Archive, File 1600-4 401 Sharp, Tudhope & Co to Tauranga District Council, 30 November 1989, Tauranga City Council Archive, File 1600-4 402 Sharp, Tudhope & Co to Tauranga Joint Generation Committee, 20 March 1990, Tauranga City Council Archive, File 1600-4

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Alasdait Christie of Sharp Tudhope wrote to the Committee and Tauranga District Council in June 1990 advising them of the situation with Marshall:

you will be pleased to heat that finally this matter is quickly coming to a conclusion. We have succeeded in having all documents registered by the use of the Public Works Act and Land Transfer Act. The first of the tides has been returned, Certificate of Tide 42B/746 ... which shows the existence of a right of way over that area shown as "C" on Plan 32643. 403

Thus it appears that the negotiations between the Marshalls and the Committee that had been instigated in approximately August 1960, where 'quickly coming to a conclusion' by June 1990.

6.3.4. Acquisition of land from P P and S A Jensen

P P and S A Jensen made an agreement with the Tauranga City Council, for the Council to take 130 acres ofland in Block I, Otanewainuku Survey District under the Public Works Act 1928.404

The Jensens and the Committee agreed to the sale for $48,500. The price of the land and terms of sale were negotiated by the Committee direcdy with the J ens ens, after consultation with the Ministry of Works, Hamilton. The Tauranga City Council's solicitors for noted that all lands, including the jensen's land, acquired for the Ruahihi scheme were taken in the name of the Tauranga City Council.405 A deposit of $4,850 was paid, with the balance to be paid on the 17 November 1975.406

6.3 .5. Acquisition of land from Mrs Cottew

The Committee acquired land from Mrs Cottew to form Ruahlhl Road and access ways associated with the Ruahihi Scheme. It appears the proper notification and compensation procedures were not followed. The issue was further convoluted by the sale of parts of Mrs Cottew's land to new owners, and compensation claims arising from the Ruahihi Canal collapse.

The Committee noted in February 1974, that Mrs Cottew had concerns over the impact of the hydro-electric schemes:

Mrs Cottew is known to be concerned at the loss of part of her pasture adjacent to Ruahihi Road. A tunnel would of course avoid such loss. Alternatively the possibility of putting the road on the west of the canal has been explored but this would require a bridge at chainage 1200 at an estimated cost of $125,000. No such bridge is necessary with the road to the east of the canal.407

Evidence of the initial taking procedures which affected Cottew's land has not come to hand. Nevertheless, subsequent events shed light on procedural deficiencies. Cottew's land was subsequendy transferred to two new owners. The Committee noted that:

this is a potentially sticky situation in which two problems appear to have occurred, viz:

403 Sharp Tudhope to 1]GC and Tauranga District Council, 20 June 1990, Tauranga City Council Archive, File 1600-4 404 Certificate of Tide 17D/1495, BAPP 5113 43/3/0/29 760a, ANZ-Auckland 405 Sharp, Tudhope & Co to Tauranga City Council, 11 November 1975, Tauranga City Council Archive, Microfilm Cartridge 27 406 Memorandum of Agreement P P and S A Jensen and Tauranga City Council, undated c1975, Tauranga City Council Archive, Microfilm Cartridge 27 407 Tauranga Joint Generation Committee Minutes, 18 February 1974, Tauranga City Council Archive, Microfilm Cartridge 28

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Lots 1 - 3 (Part Allots 475 and 703) Te Papa Parish

100 200 , ,

metres

~---'-'--~--------.-.. -----.-.. ------

MAP 14: LOTS 1-3 (PART ALLOTMENTS 475 AND 703) TE PAPA PARISH, 1982

- a compensation certificate was not registered on Mrs Cottew's title the completed agreement with Mrs Cottew was not gazetted.408

When the Committee came to alter the road, they now cross the titles of the two new owners. The Committee offered to cover the costs of the oversight, in terms of amending survey drawings. This offer of $300-$500 costs was rejected by the new owners, who sought additional compensation. The Committee believed that 'this amount[ed] to blackmail' and took legal advice on the matter.409

In 1983 the Tauranga City Council and Tauranga Electric Power Board came to an agreement with M H Cottew and J E and S E Ewart with regards to the Ruahihi scheme and access roads. The land affected was part Allotment 161 and part Allotment 162, Te Papa Parish. The old Ruahihi Road was to be closed and vested in Mrs Cottew as compensation for use of her farm and loss of road frontage. Furthermore, the City Council offered to sell part Allotment 160 to either Mrs Cottew or the Ewarts. Damages and loss of production for the dairy season, resultant of the Ruahihi collapse were also to be paid.410

6.3.6. Acquisition of land from G W Dyer

Like Cottew and Marshall, G W Dyer experienced a lengthy and involved relationship with the Committee. In February 1974, the potential disturbance of Dyer's land was discussed:

Mr. Dyer will lose the use of a strip ... (approximately 8 acres) and some 60 acres approximately of rougher bush with some pasture will be severed. Mr [A P] Jensen's severance amounts to a comparatively small (12 acres) piece of land which is surrounded on three sides by the Dyer's farm. It seems sensible therefore to suggest transferring this piece of severed land into Mr Dyer's ownership of both parties are willing. On the other hand the severed portion of Mr Dyer's land (60 acres) was apparently purchased only recently and it seems unlikely that he would be willing to part with it on the same basis. Nevertheless it does lie on the same side of the canal as and adjacent to Mr Jensen's land and the possibility is that some such agreement could also be achieved on the western side of the canal using Mr Dyer's severance. The unalloted balance of the severance could be joined with adjacent land already owned by the Tauranga City Council.'411

This land was transferred to Tauranga City Council on 3 March 1978.412 G W Dyer and Sons Limited required an agreement with the Tauranga City Council, seeking valuation advice to purchase 87.51 acres of Lot 1, 2.96 acres of Lot 3 and 9.76 acres of part Allotment 163, Te Papa Parish in May 1977.413 This land was approximately the same area as the severance of land being taken for electricity works. A memorandum of agreement, dated 15 September 1977, fixed the transfer of these lands to Dyer, the agreement was settled in 1992 and Certificates of Title 50C/182 to 50C/185 were transferred to Dyer.414

408 Tauranga Joint Generation Committee Minutes, 23 August 1990, Tauranga City Council Archives, File 1600-02 409 TaurangaJoint Generation Committee Minutes, 23 August 1990, Tauranga City Council Archives, File 1600-02

410 Agreement Tauranga city Council, Tauranga Electric Power Board and M H Cottew and J E and S A Ewart, undated copy c 1983, Tauranga City Council Archive, File 1600-4 411 Tauranga Joint Generation Committee Minutes, 18 February 1974, Tauranga City Council Archive, Microfilm Cartridge 28 412 Certificate of Title 6A/609 413 Order of Land Valuation Committee, no 124/77,24 May 1977, Tauranga City Council Archive, File 1600-4 414 Sharp Tudhope to Tauranga District Council, 2 June 1994, Tauranga City Council Archive, File 1600-4

-~

On 23 February 1988, J 0 Barnes, Registered Surveyor wrote to the Tauranga City Council with regards to the Dyer land, stating:

The title situation over the above land is slightly complicated in that the City own this land in fee simple with Mr Dyer living on and farming the land. There is, I believe, an agreement between the City and Mr Dyer that the balance of the land not taken for electricity work will eventually be given back to Mr Dyer. So we have land owned by the City but we have been instructed to subdivide by Mr Dyer'.41S

The Tauranga City Council responded that they had no record of any land transfer 'arrangement' with Dyer.416 On 13 May 1988, Sharp, Tudhope & Co corresponded on the matter further:

We advise that this unfortunately is a rather long and involved matter. We previously sent you a copy of the original agreement between the Joint Generation Committee and Dyer whereby the Council would sell off portions ofland to Dyer, the consideration for which totalled $127, 300 payable by 240 equal consecutive calendar monthly instalments. We understand those payments are being made on a regular basis to the Joint Generation Committee.

Subsequent to the original agreement which was made in 1977, a meeting was held between all related parties, including the Tauranga County Council at which it was agreed that the roads should be re-aligned to take account of the canal and the physical aspects of the adjoining land. At that time it was decided that a portion of Area F in SO 56151 would be left open as this assisted Dyer in his subdivision of the land that he was purchasing from the Joint Generation Committee and neither the Joint Generation Committee nor the County Council had any objection.417

It appears that Dyer's land was subject to confused processes of transferal, leasing and installment based purchase. Dyer's agreement with the Committee to acquite surplus land, was further complicated by Dyer's decision to subdivide, when he was not the owner absolute.

6.3.7. Acquisition of land from A P Jensen

The Ruahihi Canal created a severance of A P jensen's land which amounted to approximately 12 acres, the severance was surrounded on three sides by the Dyer's farm. The Tauranga City Council suggested that the severance be transferred into Dyer's ownership if both parties were willing. In 1974, Jensen signalled that he was 'concerned about the severance of some 12 acres from the balance of the farm by the canal', the TaurangaJoint Generation Committee considered that the 'purchase of the 12 acres should be balanced against increased costs for alternatives. A farm bridge over the canal would cost around $10,000.'418

Jensen had a number of other concerns created by the hydro-electric scheme, these included the erection of transmission lines and the use of the Omanawa River. Jensen's solicitors wrote to the Committee on 27 March 1975 stating that:

Mr Jensen ... in view of the delay in resolving the matter, he would be prepared to offer, without prejudice, to settle the matter on a payment of $500.00. You may recall that the original offer of the Committee was $390.00 and our client's counterclaim was $900.00'.419 The solicitors representing the Tauranga Joint

415 J D Barnes to Tauranga City Council, 23 February 1988, Tauranga City Council, File 1600-4 416 P Thompson, Tauranga City Council to Sharp, Tudhope & Co, 11 March 1988, Tauranga City Council, File 1600-4 417 Sharp, Tudhope & Co to Tauranga City Council, 13 May 1988, Tauranga City Council Archive, File 1600-4; Amending a notice realigning road in Tauranga County, 28 March 1989, New Zealand Ga~tte, 1989, no 62, p 1450 418 Tauranga Joint Generation Committee Minutes, 18 February 1974, Tauranga City Council Archive, Microfilm Cartridge 28 419 Cooney Lees & Morgan to Sharp, Tudhope & Co, 27 March 1975, Tauranga City Council Archive, Microfilm Cartridge 28

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Generation Committee responded on the 9 Apri11975. They recommended the Committee consider the offer to accept $500.00 as compensation for the erection of a 50kV transmission line over Jensen's property.42O

Cooney Lees & Morgan also took forward Jensen's claitn concerning use of the Omanawa River. Jensen's solicitors suggested to the Committee that a fence could be erected to restrict cattle. allow sheep to graze up to the river 'while it is high enough to prevent them travelling across', furthermore, compensation would be involved for restricted use of the land.421

In 1984 and 1985 the Committee sought to dispose of land surplus to the needs of the Ruahihi Power Scheme. The Committee had resolved on 21 August 1984 to invite offers for the purchase of land from Mrs M H Cottew, for Lot 1, and A P and A S Scott, for Lot 2.422

The Legal Officer advised that the Council had received a letter from Sharp, Tudhope & Co. to the effect that an earlier recommendation for the Finance Committee, dated 21 August 1984 adopted by the council on 27 August 1984 had not provided the Committee with all the options open to it under the Public Works Act 1981 for the disposal of land at the best possible price. The Committee had been unable to negotiate sales to adjoining or adjacent owners on advantageous terms, and it now sought the revocation of the resolution, so as to enable the land to be sold at auction in the first instance. and failing that, by public tender or lastly, by public application'.423

The Committee noted that Lot 1 of the proposed subdivision incorporated a small part of the area purchased from Jensen in the early stages of the Ruahihi Power Scheme and they believed it made for a logical boundary between the balance of the land retained for a farm park and the switch yard. The greater area now being sold involved the Council making a decision in terms of section 40 (2) of the Public Works Act 1981. As part of the area comprising the proposed Lot 1 was formerly a small part of Jensen's former farm the Committee considered that 'it would be impracticable to offer to sell that part of his former land back to Mr Jensen on the grounds that the Tauranga County Council would not approve the issue of a separate title for such a small parcel of land not bound by a public road·.424 It was resolved to subdivide the total surplus land and sell by public tender.

The Public Works Act 1981, section 40 (2) provided that public notice was to be given for public auction, and that written notice was to be served on former owners and every adjacent owner, not later than 20 working days from the date of auction or close of tender. Regarding Lots 1, 2 and 3 of disposal of Ruahihi lands, Sharp, Tudhope & Co wrote on 16 June 1988:

Considerable work has been carried out on this file by reason of having to follow the slow but compulsory procedures required of the Tauranga City Council under Sections 40 and 42 of the Public Works Act 1981 for the disposal of land no longer required by a local authority for a public work. These sections required the City Council to first offer the surplus land back to the previous owners or their successors, and when that was unsuccessful, Council then had to offer the land to the owner of adjacent land and then attempt to sell it by public auction, public tender or public application. Each procedure was followed through in order

420 Sharp, Tudhope & Co to Tauranga Joint Generation Committee, 9 Apri11975, Tauranga City Council Archive, :Microfihn Cartridge 28 421 Cooney Lees & Morgan to Tauranga Joint Generation Committee, 28 Apri11975, Tauranga City Council Archive, :Microfihn Cartridge 28 422 TaurangaJoint Generation Committee/Finance Committee minutes, 21 August 1984, Tauranga City Council Archive, File 1600-4 423 Finance Committee minutes, 20 November 1984, Tauranga City Council Archive, File 1600-4 424 Sharp, Tudhope & Co to Tauranga City Council, 11 Apri11985, Tauranga City Council Archive, File 1600-4

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to meet the exacting requirements of the Act. It was not until October and December 1986 and May 1987 respectively that agreements were achieved after the land was offer for public application.425

From the available evidence it can be deduced that Jensen was concerned that the severance created by the Ruahihi Canal was impracticable in terms of farming. He therefore acquiesced in its disposal given the compensation he received for restrictions of the use of his land. It is unclear if and how Jensen was notified of the disposal of land, which included the severance acquired from him. However, the Committee resolved that it was impracticable to offer the severance back to Jensen, opting unsuccessfully to sell the surplus land as a whole to the adjacent owners.

6.4. EPILOGUE

Two major events affected land owners along the Wairoa River system, in addition to public works takings for the hydro-electric scheme. Firsdy the collapse of the Ruahihi Canal, and secondly the privatisation of the Committee's assets.

Shordy before 2:00pm on 20 September 1981, the eastern bank of the canal supplying water to the Ruahihi Power Station collapsed. More than a million cubic metres of liquid mud and rubble poured down the valley, across State Highway 29, and into the Wairoa River. A 600 metre stretch of canal was destroyed, and a section of the highway was washed out. Cottew, Ewart and Dyer took out actions against the Committee concerning the Ruahihi collapse. Counsel for the Committee argued that

the Committee acknowledges under the Rylands /) Fletcher principle to make good all such loss and damage occasioned by the collapse which comes within the ordinary bounds of foreseeability and remoteness.426

Counsel recommended that Cottew receive $2,622.40 compensation, Ewart receive $2,177.50, and Dyer receive $2,103. 50.427 D H McFetridge had owned 18.6 acres of part Allotment 153, Te Papa Parish, approximately 0.62 acres had been acquired for electricity works and an electricity easement on 29 March 1984 and approximately 0.9884 acres acquired for road and vested in Crown entered on 26 September 1985.428 D H and] A McFetridge were transferred 4.64 acres of Lot 1, DP S 52480, pursuant to section 106 of the Public Works Act 1981, as part setdement of a claim arising from the Ruahihi canal collapse.429

Furthermore, the nature of the Committee was altered by privatisation in the 1980s and 1990s.430

In 1986 the Tauranga City Council unsuccessfully attempted to sell its share of the Committee to the Electric Power Board and then to merge it with Rotorua Electricity. When Trustpower was established in 1993 the Committee assets were privatised, with fifty per cent privately owned by shareholders and the balance by the Tauranga Power Trust and employees.431

425 Sharp, Tudhope & Co to TaurangaJoint Generation Committee, 16 June 1988, Tauranga City Council, File 1600-4 426 Sharp, Tudhope & Co to Kensington Wallace, 10 July 1985, Tauranga City Council Archive, File 1600-4 427 Sharp, Tudhope & Co to Tauranga Joint Generation Committee, 30 August 1985, Tauranga City Council Archive, File 1600-4 428 Certificate 6B/829 429 Certificate under Section 107 (!) of the Public Works Act 1981 for Grant of Land under section 106 of that Act, undated, c1989, Tauranga City Council Archive 1600-4 430 Willan, doc A35, pp 47-50 431 Willan, doc A35, pp 47-50

102

100 200 , . metrss

-----------------------------_._----_ .. _--_ .. _-------_.-.--- .. -.. --.-.. ~-------'-'"

Pt Allot 163 T._go CIty Ccuncll

LAND AFFECTED BY RUAHIHI HYDRO-ELECTRIC SCHEME

Source: Tauranga City Council Archives

Pt Allot 160 ,

,

,

(I , ,

)'SI

,//1

Allot 161 M.H.CottBw

19.8973ha

Lot8

PtAliot 160

MAP 15: LAND AFFECTED BY RUAHIHI HYDRO-ELECTRIC SCHEME

LAND AFFECTED BY RUAHIHI HYDRO-ELECTRIC SCHEME

Source: Tauranga City Council Archive, SO Plan 56151

Allot 702 Ta_go OIty OOuncJ

PtAliot 163 Electricty Works

71lursnga City Counci

Lot 3 DPS24032 J!iuranga Oity OOuncJ Lot 1

DPS24032

100 200 , ,

metres

MAP 16: LAND AFFECTED BY THE RUAHIHI HRDOR-ELECTRIC SCHEME

.... ,' ...... ,.,. . .... "._. .. .. .:: ... :: ... ,;' , •.. _.;, .... : .: .............. ~ .. ",,,-:, ................. '.' ... ' .... : :.:~::.:. :,.: ' .. . .......... : ....... : ... : .. ;: .. : .,,: .... .

6.5. CONCLUSIONS

The Committee's ability to acquire land is delegated from the Crown through the provisions of public work legislation. Therefore, many of the differences in the treatment of general and Maori owned land stems from the official and unofficial implementation of the different taking procedures in public works legislation up to the Public Works Act 1981.

Maori land owners contend that their land was targeted and they were not afforded the same rights or powers of negotiation as general land owners. They believe while general land owners had the power to negotiate directly with the Committee even as early as the intention stage of taking, Maori land was taken by compulsion, with no opportunity to negotiate the amount of land taken nor the compensation granted. The Committee argued that it would be impracticable to negotiate with Maori owners, as multiple-ownership and succession made it a sisyphean task.

Furthermore, Maori owners argued that the Committee was attempting to acquire far more land than was actually required. It was not until the independent Chesterman report that the Committee was more moderate in its demands. In addition to land, Maori owners were perturbed at the perceived harm to their river and the loss of water rights. Compensation, they contend, did not take into account the Maori values of water.

By contrast owners of general land enjoyed direct negotiations with the Committee, most often through their respective solicitors. Rather than acquisition by the compulsory methods of public works legislation, in many cases general land was acquired by agreement pursuant to section 32 of the Public Works Act 1928. In cases, such as in Marshall's negotiation, the Committee agreed to the exchange of lands.

N everthe1ess, the evidence suggests that the Committee did experience lengthy delays even in the case of genera1land. Negotiations with owners such as Scott and Marshall took some time, and other takings were complicated by faulty procedure and record keeping. It is perhaps unjust that the Committee did not afford Maori owners similar timeframes in order to decipher multip1e­ownership and succession, thereby allowing land to be acquired by negotiation rather than compulsory means.

It appears owners of general land may also have had an advantage when it came to the offer back of surplus land and severances created by the Ruahihi Canal. While the land was offered to adjacent (general) owners, there is no evidence to suggest that after general owners turned down the offer that Maori with interests in the Wairoa River area were given the opportunity to acquire surplus land back. The land was instead put into public auction or public tender, following strictly the prescribed disposal methods of the Public Works Act 1981.

105

Chapter Seven: Conclusion

There is some evidence to support the assertion that Maori land was targeted, or easier to acquire, for Public Works Act acquisitions in preference to general land. Maori land may have been easier to acquire due to the fact that it could be compulsorily acquired, while general land was more often negotiated for, both general and Maori land were taken for public works developments. General land, for instance, was affected by the middle line proclamation of the Tauranga-Mount Maunganui transmission line. Nevertheless much more land was taken from Maori owners than from general owners in the case of the transmission lines, in fact Minhinnick contends, more than was needed for the public work. Takings authorities maintained the attitude that Maori land was easier to acquire, and in greater amounts than general land. This is exemplified in takings for the hydro-electric scheme and the transmission line. The process for negotiating takings from general owners was far more transparent than the compulsory takings of Maori land. The compulsory takings procedure, it appears from the evidence, lent itself to taking authorities seeking far more land than required.

Differences in procedures for notification, entry on land, commencement of construction, and proclamation of lands acquired between Maori and general land have been difficult to ascertain due to insufficient source material. What is clear is that Maori land, appears to have been targeted for public works takings in the Port of Tauranga, Tauranga Airport and hydro-electric case studies. This often meant that Maori land could not be developed, subdivided, or sold. Finally, it was often many years before Maori owners were informed of the actual requirements of the public works development.

There were significant differences in the ability of Maori and general land owners to negotiate with the taking authority over what land should be taken and how much land should be taken. Many general land owners, however, benefited from their ability to negotiate with a taking authority over what land would be taken. They also negotiated successful compensation agreements, whether that be monetary or land exchange. Maori did not enjoy the same negotiation rights. For example, in the case of Ngamanawa lands taken for the hydro-electric scheme, Maori owners objected to the amount of land that was intended to be taken. The taking authority did not have to negotiate with them on this matter. Furthermore, the Tauranga Joint Generation Committee used multiple-ownership as an excuse not to negotiate with Maori owners. Only when a Tauranga City Councillor raised similar concerns was the matter was investigated. Conversely, the taking authority negotiated with general land owners, and only as a last resort invoked the compulsory powers of the public works legislation. Moreover, general land owners could negotiate what land was to be taken, what access the taking authority could have over their lands, and whether other lands could be transferred or sold to them as part of the taking deal.

The evidence strongly supports the contention that there were significant differences in the amount and timeliness of compensation given to Maori and general land owners. The Maori Trustee's involvement took away direct Maori participation in the compensation proceedings and contributed to slow, irregular, and in some cases, no compensation for Maori owners. While general land owners initiated claims often through solicitors, Maori owners usually had to rely upon the Maori Trustee to claim and negotiate compensation for them. Although general land owners could encounter belligerent taking authorities, they had direct access to the compensation procedure, while Maori owners were often shut out by a state appointed negotiator and had no such direct participation. As a result, Maori owners faced substantial delays and invariably

106

obtained less compensation. General owners did not experience the same convolution of due process.

It was also assumed that Maori land was less valuable than European land. There were discrepancies between different valuations of Maori owned land. For example, in the case of land taken for the Port of Tauranga and Tauranga Airport, Maori owned land was considered to be worth less than European owned land. Furthermore, Maori owners did not get the same opportunities as general owners to capitalise on the Mount Maunganui industrial boom and subdividable potential of their lands.

Both Maori and general owners lost land to public works takings. Additionally, more often than not surplus land and land that was no longer used for its original purpose was not offered back to owners. The exception to this is the case of land surplus to the requirements of the hydro­electric schemes. This was largely administered under the Public Works Act 1981 which set out a stronger offer back process. Nevertheless, Maori owners continued to be prejudiced. While adjacent general land owners were offered back surplus land and had the right of first refusal, Maori owners were not given the same opportunity. For example, few Maori owners got back what had been lost in the hydro-electric takings prior to the land being put into public auction or tender. Land acquired for the Port of Tauranga, for 'better utilisation', and the airport, were sold into third party ownership, and in some cases the local authority vested surplus land in the Crown.

Owners of general land were equally as reluctant as owners of Maori land to relinquish their lands and homes for public works purposes. Nevertheless, the Crown's idea that public works were a matter of local and national importance, and the provision of amenities was seen as more beneficial, outweighed the loss of land. Often general owners were less enthusiastic than Maori owners in regaining surplus land. Land surplus to the requirements of the hydro-electric scheme, were firstly offered to the previous owner and adjacent general land owners who had also lost land, but the offer was not taken up. Nonetheless, the evidence suggests that general land owners experienced a more transparent and expeditious process of Public Works Act acquisitions, the stages of which included notification, taking, compensation and disposal.

107

__ ,i.'c ...• :.::-::.,::~_~< .. :'.,' ... :'''-'':._---'-~ __ ~ ___________ ~_~_._. _~ __ .. _" ._-___________ ~ ______________ . _____________ " .. ~

Bibliography

UNPUBLISHED SOURCES

Primary Sources

Archives New Zealand, Wellington

AADM W3644/44 845/80- Town and Country Planning- Tauranga Electric Power Board 1980

AALR 873 W5427 69440/196/40/5 part 2- Local Hydros- TaurangaJoint Generation Committee- Mangapapa and Ruahihi Schemes 1983-1985

AAMK 869/705g 19/10/14-Legal differentiation between Maori and European land taken for waterworks

AAMK 869/705k 19/10/18- Legal differentiation between Maori and European land taken for waterworks

AAPR W330411 NZ 5412 - Port of Tauranga 1977

AAPR W3962 82 76/28/13 part 1- Airports- Tauranga Airport Agreement with Tauranga Borough Council 1959-1965

AAPR W3962 81 76/28/1 part 2- Airports Tauranga Airport Land Acquisition and Disposal 1945-1962

AAPR W3962/82 76/28/14 part 1- Airports: Tauranga Airport Policy and Master Planning 1957-1964

AAPR W3962/82 76/28/14 part 2- Airports: Tauranga Airport Policy and Master Planning 1964-1966

AA1J 6090 W4993 190 12/1213 part 1- Mangapapa Project 1969-1980

AA1J 7452 W4993 23 EID 6/118/1 part 1- Joint Generation Committee 1977-1985

AA1J 7452 W4993 23 EID 6/118/2 part 4- Joint Generation Committee 1984-1987

AA1J 7452 W4993/139 POL 9/2/3 part 1- Policy Town and Country Planning-Individual Studies-Bay of Plenty 1986-1988

AAQB W4073 23/404/169- Tauranga Airport

AAWR W4351 2448/11/1- Joint Generation Committee 1964-1980

AAZU W3619/35 28/2/78- Transmission Lines Tauranga Mount Maunganui 1977-1978

ABJQ 17005 W5448 152 L52075 part 1- Tauranga Electric Power Board- Right to Erect Transmission Lines 1983-1985

ABJQ 17005 W5448 148 L51679- Bay of Plenty Harbour Board Land Lease 1933-1984

ABKK W 435750/556- Mount Manganui Borough Council

ABKK W 435750/579- Tauranga City Council

ABKK W4357- Works Consultancy Paper 1920-1987

ABKK W4599 33- Index Card J J Chesterman

108

ABKL 7900 W5156 82- Tauranga Airport Land Plan Drawing No AI. 20420 1980

ABKL 7457 W5247 96 76/28/1 part 4- Tauranga Airport Land Acquisition and Disposa11980-1989

ABOB W4261 356 TP 150/14- The Bay of Plenty Times Port of Tauranga Centenary

ABPN W4417 410/118/7- Joint Generation Committee 1970-1973

ABWN 8116 W5280/90 part 3- Land Compensation Claims Register 1928-1932

ABWN 8116 W5280/93 part 4- Land Compensation Claims Register 1932-1941

ABWN 8116 W5280/94 part 5- Land Compensation Claims Register 1941-1947

ABWN 8116 W5280/95 part 6- Land Compensation Claims Register 1947-1959

ABWN 8116 W5280/96 part 7- Land Compensation Claims Register 1959-1968

ABWN 8116 W5280/97 part 8 - Land Compensation Claims Register 1968-1975

ABWN 8116 W5280/SEP 1018 part 8 - Land Compensation Claims Register 1968-1975

ABZK 889 W5472 785 92/16/53/6/1- Power Schemes Tauranga Mount Maunganui Transmission Lines Claim Voyce F M 1958

ABZK 889 W5472 78592/16/53/1- Power Schemes Tauranga Mount Maunganui Transmission Lines General 1954

ABZK 889 W5472/788 92/16/126/1- Power Schemes Hairini Mount Maunganui Transmission Lines General 1977

ABZK 889 W5472 794 92/17/118/20 part 1- Power Schemes 1971-1981

ABZK 889 W5472/5 92/1/1/4/14 part 1- Power Schemes National Reports on Town & Country Planning Schemes Bay of Plenty Region 1981-1987

ACGO 8333 IAl 197/429- Local Government Commission- Thames Valley and Tauranga Electric Power Districts undated

IA 1105/609- Local Bodies Committee ofInquiry Bay of Plenty Port Tauranga Borough Council, undated

L W2699 37/4/1925 part 1-TaurangaJoint Generation Committee, Tauranga Electric Power Board

Wl 19/467, parts 1 and 2- Rail Access to Port Tauranga 1911-1963

W40 149/192/1, parts 1-2 - Mount Maunganui Port Industrial Area 1951-1962

W40 149/22, parts 1-4, 1927-1969 Tauranga District Planning Scheme

W40 149/191, parts 1-3, 1944-1967 Tauranga County

W40 149/192, parts 1-2, 1939-1969 Mount Maunganui Borough

W56, item 15 Roads Department register-North Island index

W60, items 1-4 - Commission of Inquiry into Improved Access by Land to the Port of Tauranga and Bay of Plenty 1962

109

Archives New Zealand, Auckland

AA1E A1002, parts 1-2- Mount Maunganui Borough Council Papers

AA1E 5113, A934, 122d, 56/41- Access to East Coast and Tauranga- Commission of Inquiry Access to Port of Tauranga,1962-1966

AA1E 10881 A957 261c 72/33/3/12- Highways and Bridges- Tauranga and Mount Maunganui Port Access 1969-1971

AA1E 5113 A934 333a 6/58/1- Tauranga Harbour Deep Sea Port Mount Maunganui 1956- 1966

AA1E 5113 A934 333b 6/58/1- Tauranga Harbour Deep Sea Port 1966-1970

AA1E 511310882 A986 368f25/33- Mangapapa 1948-1949

AA1E 5113 A94917a 35/24- Tauranga 1950-1966

AA 1E 5113 A949 82n 40/SP4543 - Tauranga County Council 1960

AA1E 5113 A949194c 60/1/2/3/1- Tauranga Interdepartmental Committee

AA1E 5113 A949197b 60/1/2/9- Tauranga Mount Maunganui Development Committee

BAAS 5113 A246 22e 6/58/883- Tauranga Harbour Deep Sea Port 1954-1956

BAAS 5113 A246 20n 6/58/1/0/16- Tauranga Port Development A C Bent and M E Ruthe 1952-1953

BAAS 5113 A246 20h 6/58/1/0/9- Tauranga Port Development A F Wood 1952-1953

BAAS 5113 A246 20i 6/58/1/0/14- Tauranga Port Development Robson 1952-1953

BAAS 5113 A246 20L 6/58/1/0/14- Tauranga Port Development A J Andrews 1952-1953

BAAS 5113 A246 21f 6/58/1/0/24- Tauranga Port Development B B Jones 1953

BAAS 5113 A246 21G 6/58/1/0/25- Tauranga Port Development B G Judd 1953

BAAS 5113 A246 21H 6/58/1/0/26- Tauranga Port Development BY Judd 1953

BAAS 5113 A282 57b 92/15/126/11- State Hydro Electric Department- Substations Tauranga 1950-1957

BAAS 5113 A282 211 92/16/65/6/1- State Hydro Electric Department- Transmission Lines Te Puke-Tauranga Land 1956

BAHS A591 6/58/1/0 40b part 2- Tauranga Harbour

BAHS A591 6/5 15a parts 1-4-Tauranga Aerodrome

BAHS A591 6/5 13 20b-Tauranga Aerodrome

BAHS A591 6/5 17a part 5- Tauranga Aerodrome

BAHS A591 6/5 20a part 12- Tauranga Aerodrome

BAHS A591 22/56 13b- Tauranga Aerodrome Compensation

BAHS A591 6/5 16a parts 3-4- Tauranga Aerodrome

110

· .. .. --....... -.~-:.:...-.'-~:...------..:...-----.:...-----......... ---------------.. ---.---'"--"'~''''--''-"---'---.--.--.----.. --''-'

BAHS A591 6/5 134b- Tauranga Aerodrome

BAHS A591 6/5 15b part 2- Tauranga Aerodrome

BAHS A591 6/5/4 21b- RNZAF Station Acquisition Land at Tauranga

BANS 1968 3c 6/2/3/1- Mangapapa Hydro Electric Scheme Scenic Reserve State Forest 31965-1968

BAPP 5113 930d 92/16/53/6/1 New Zealand Electricity Department-Legislation- Transmission Lines Mount Maunganui-Tauranga

BAPP 5113 930c 92/16/53/6 New Zealand Electricity Department-Legislation- Transmission Lines Mount Maunganui-Tauranga

BAPP 5113, 760a 43/3/0/29 Local Bodies Legislation- Tauranga Borough Council Land taken for Electricity Works

BAPP 5113, 768c 43/7/0/13 Local Bodies Legislation- Mount Maunganui Borough Council Tauranga Electric Board

BAPP 5113 930c 92/16/53/6- New Zealand Electricity Department- Legislation- Transmission Lines- Tauranga Mount Maunganui 1954-1971

BAPP 5113 930d 92/16/53/6/1- New Zealand Electricity Department- Legislation- Transmission Lines- Tauranga Mount Maunganui- Voyce F M 1958

BAPP 5113 A282 211 92/16/65/6/1- State Hydro Electric Department- Transmission Lines Te Puke- Tauranga Land 1956

BAPP 5113 601a 24/0/155- Tauranga County-Legislation- SO 47147- Taking land Otanewainuku 1974-1975

BAPP 5113, 602b, 24/0/166-Tauranga County Legislation SO 48393 Land for Waterworks

BAPP 5113, 761b 43/3/0/39- Local Bodies Legislation- Tauranga Borough Council Reservoir Site

BAPP 5113, 759b 43/3/0/20- Local Bodies Legislation- Tauranga Borough Council Land taken for Water Catchment

BAPP 5113 759b 43/3/0/20- Local Bodies- Legislation- Tauranga Borough Council- ML 4896- Taking of land for water catchment area 1967-1970

BAPP 5113, 760a 43/3/0/29- Local Bodies Legislation- Tauranga Borough Council Land taken for Electricity Works

BAPP 5113, 768c 43/7/0/13- Local Bodies Legislation- Mount Maunganui Borough Council Tauranga Electric Board

BAPP 5113 43/7 /1/0 768I-Local Bodies-Mount Maunganui

BAPP 5113 1410a 43/31/0/2 part 2- Local Bodies Legislation- Tauranga Power Board- Mangapapa Hydro Electric Power Project 1977-1983

BAPP 5113 811a 43/31/0/2- Mangapapa 1972-1977

BAPP 5113 764c 43/3/0/63- Joint Generation Committee 1987-1988

BBDO 1004618b 11/10/2 part 1- Mangapapa Hydro Project 1969-1973

BBDO 1004618c 11/10/2 part 2- Mangapapa Hydro Project 1973-1977

BBDO 10046 21b 11/10/3 part 1- McLarens Falls hydro tunnel, Lower Mangapapa 1976-1980

111

'~~~-"'-'-'-"-'~~~-------'-------'--'--~--' ---~~--------. -------.-.----.--'----.-.. -----... ------- .. --~

BBFZ A1115/124c- Tauranga Moana Trust Board 1981-1989

BCCU 10899 A615 58c 2190- Tauranga Airport 1965-1967

BCCU 10899 A615 59a 2190- Tauranga Airport 1967-1968

BCCU 10899 A615 59b 2190- Tauranga Airport 1968-1971

Western Bay of Plenty District Council, Tauranga

Aerodrome file, c 1984-1985

Tauranga City Council, Tauranga

File 2840-47,5 vols- Hairini Mt Maunganui Transmission Line 1977-1995

File 6485-12- Power Action Group Transmission Lines

File 6485-16- Hairini-Mount Maunganui Transmission Line A

File 1600-1, 3 vols- TaurangaJoint Generation Committee/Kaimai Hydropower General 1989-1996

File 1600-2, 3 vols- Tauranga Joint Generation Committee/Kaimai Hydropower- Joint Generation Committee Minutes 1989-1993

File 1600-4, 2 vols- TaurangaJoint Generation Committee/Kaimai Hydropower Sale of Land Ruahihi 1977-1994

File 1600-5, 2 vols- TaurangaJoint Generation Committee/Kaimai Hydropower Sale of Land Omanawa Road 1982-1992

File 1600-8- Tauranga Joint Generation Committee/Kaimai Hydropower Land Transfer from Tauranga District Council to Trustpower

Microfilm Cartridge 60- Electricity- Electrical Supply 1949-1952

Microfilm Cartridge 61- Electricity 1987-1988

Microfilm Cartridge 26- Electricity General and Agreement 1936-1983 Electricity Legal Opinions 1953-1972

Microfilm Cartridge 27- Electricity Joint Generation Committee 1963-1975 Electricity Enquiry/Questionnaire 1960-1974 Electricity Territorial Energy Authorities Association of New Zealand 1952-1975 Electricity Distribution Committee 1958-1973

Microfilm Cartridge 28- Electricity Development Association 1966-1971 Tauranga Electric Power Board- Joint Generation Committee 1976

Microfilm Cartridge 77- Electricity Joint Generation Agreement 1963-1965 Electricity Joint Generation Minutes 1964-1966 Electricity Lloyd Mandeno Land Acquisition 1960-1966

Microfilm Cartridge 23- Bay of Plenty Harbour Board 1952-1975

Microfilm Cartridge 63- Harbour Board 1917-1952

112

Tauranga Public Library, Tauranga Vertical File- Aviation; Industry Tauranga Council :Minute Book Index New Zealand Room Collection Tourism Pamphlets, 4 vols

OfIicial Publications and Other Published Documents

Appendices to the Journals of the House of Representatives New Zualand Gazette New Zealand Statutes New Zealand Official Yearbook

Statutes

Energy Companies Act 1992 Energy Companies Vesting Order 1993 Finance Act no. 3 1944 Finance Act no. 2 1945 Maori Affairs Act 1953 Maori Affairs Amendment Act 1967 Maori Affairs Amendment Act 1974 Public Works Act 1908 Public Works Act Amendment Act 1935 Public Works Act 1928 Public Works Amendment Act 1947 Public Works Amendment Act 1952 Public Works Amendment Act 1954 Public Works Amendment Act 1955 Public Works Amendment Act 1962 Public Works Amendment Act 1970 Public Works Amendment Act 1973 Public Works Amendment Act 1975 Public Works Amendment Act 1976 Public Works Act 1981 Soil, Conservation and Rivers Control Act 1951 Tauranga City Council and Tauranga Electric Power Board Empowering Act 1965 Te Ture Whenua Maori Act 1993 Town and Country Planning Act 1953

.. -~--.----.---.--...:..~

113

Secondary Sources

Reports

Alexander, David James, 'Selected Public Works Takings in the Twentieth Century', research report commissioned by the claimants, 1999 (Wai 686, document F4)

Bassett, Heather, 'Aspects of Urbanisation on Maungatapu and Hairini, Tauranga', research report commissioned by the Waitangi Tribunal, July 1996 (Wai 215, document A26)

Bassett, Heather, 'Otawa Scenic Reserve', research report commissioned by the Waitangi Tribunal, August 1996 (Wai 215, document A19)

Bassett, Heather and Richard Kay, 'Ngaiterangi and the Crown', overview report commissioned by the Waitangi Tribunal, June 1998 (Wai 215, document C1)

Bassett, Heather and Richard Kay, 'Crown Acquisition and Desecration of Nga Potiki Land', report commissioned by the Waitangi Tribunal, May 1999 (Wai 215, document E1)

Blackburn, Nicola, 'Further Nga Potiki Land Alienation and Public Works Takings', research report commissioned by the Crown Forestry Rental Trust, 2000 (Wai 215, document 11)

Byrnes, Giselle, 'A Preliminary Report on the Use, Control and Management of the Tauranga Harbour', report commissioned by the Waitangi Tribunal, 1996 (Wai 215, document A36)

Cleaver, Philip, 'The Taking of Maori Land for Public Works in the Whanganui District', scoping report commissioned by the Waitangi Tribunal, May 2003 (Wai 903, document A35)

Cleaver, Philip, 'The Taking of Maori Land for Public Works in the Whanganui Inquiry District: 1850-2000', research report commissioned by the Waitangi Tribunal, September 2004 (Wai 903, document A57)

Coffin, Antoine, 'Ngati Kahu, Ngati Rangi, Ngati Pango [part Two]', report commissioned by the Waitangi Tribunal, 1996 (Wai 215, document A37b)

Cookson-Ua, Kere T, 'Te Awa-O-Tukorako & Whareroa Blocks', research report commissioned by the Waitangi Tribunal,June 1996 (Wai 215, document A27)

Davies, Russell, 'History of Public Works Acts in New Zealand, including compensation and offer-back provisions' (Wellington: Land Information New Zealand, July 2000)

Easthope, Jonathan, 'Public Works Acquisitions in Poike Block', research report commissioned by the Waitangi Tribunal, 1996 (Wai 215, document A34)

La Rooij, Marinus, 'Wairoa Hapu & the Realignment of State Highway 2', report commissioned by the Waitangi Tribunal, August 1999 (Wai 215, document F2)

Marr, Cathy, Philip Cleaver, and Lecia Schuster, 'The Taking of Maori Land for Public Works in the Wairarapa ki Tararua District: 1880-2000', report commissioned by the Waitangi Tribunal, December 2002 (Wai 863, document A32)

McCaw Lewis Chapman [Solicitors], 'Final Report on Mount Maunganui Peninsula: Volume 1', report commissioned by the claimants, December 1992 (Wai 215, document A10)

Minhinnick, Roimata, 'Report, Kaitimako B & C, research report commissioned by the Waitangi Tribunal, 1995 (Wai 215, document A12)

Mitchell, Jamie, 'Report on Unresolved Land and Resource Issues for the Tauranga District Inquiry', May 2006, (Wai 215 record of inquiry, not yet registered)

114

O'Malley, Vincent, 'The Aftennath of Tauranga Raupatu, 1864-1981', report commissioned by the Crown Forestry Rental Trust, jrule 1995 (Wai 215, document A22)

Stokes, Evelyn, 'Ngamanawa: A Study of Conflicts in the Use of Forest Land', report commissioned by the University ofWaikato for the Ngamanawa Incorporation, 1983 (Wai 215, document All)

Walzl, Tony, 'Ngati Ruahine: Land Issues Overview 1900-2000', research report commissioned by the claimants, September 2001 (Wai 215, document N2)

Willan, Rachael, 'Hydro-Electricity in the Wairoa River Catchment: Land Acquisition', report commissioned by the Waitangi Tribunal, September 1996 (Wai 215, document A35)

Willan, Rachael, 'Land Taken for Waterworks', research report commissioned by the Waitangi Tribunal, 1996 (Wai 215, document A32)

Willan, Rachael, 'From Country to Town: A Study of Public Works and Urban Encroachment in Matapihi, Whareroa and Mount Manganui', report commissioned by the Waitangi Tribunal, December 1999 (Wai 215, document F29)

115

PUBLISHED SOURCES

Reports

Marr, Cathy, Public Works Takings of Maori Land, 1840.1981, Waitangi Tribunal Rangahaua Whanui Series, 1997

Waitangi Tribunal, Te Maunga Railways Land Report (Wellington: Brookers, 1994)

Waitangi Tribunal, Te Raupatu 0 Tauranga Moana: Report on the Tauranga Confiscation Claims (Wellington: Legislation Direct, 2004)

Waitangi Tribunal, The Poukani Report 1993 (Wellington: Brooker's Ltd, 1993)

Waitangi Tribunal, Te Ika Whenua Energy Asset.r Report 1993 (Wellington: Brooker and Friend Ltd, 1993); 2nd ed (Wellington: GP Publications, 1996)

Waitangi Tribunal, Turangi Township Rtport 1995 (Wellington: Brooker's Ltd, 1995)

Ward, Alan, National Overview Volume III, Waitangi Tribunal Rangahaua Whanui series (Wellington: GP Publications, 1997)

Books

Alston, Andrew, Tom Bennion, Michelle Slatter, Rod Thomas, Elizabeth Toomey, Guide to New Zealand Land Law (Wellington: Brooker's Ltd, 1997)

Bellamy, A C (ed), Tauranga 1882-1982 (Tauranga: Tauranga City Council, 1982)

Boast, Richard, Andrew Erueti, Doug McPhail, Norman F Smith, Maori Land Law (Wellington: LexisNexis NZ Ltd, 2004)

Churchman, Geoffrey B and Tony Hurst, The Railways of New Zealand: A Journry through History (Wellington: Transpress New Zealand, 2001)

Fogarty, E D and Ministry of Works and Development, New Zealand. Ministry of Works and Development Compensation under the Public Works Act (Wellington: Ministry of Works and Development, 1978)

Hansen, Neil, History ofTauranga Harbour and Port (Tauranga: Port ofTauranga Ltd, 1997)

Hansen, Neil, Tauranga County, 1945·1989: the story about post World War II years, of wide ranging development until local government reorganisation (Tauranga: Western Bay of Plenty District Council, 1995)

Hansen, Neil, The History ofTauranga Harbour and Port limited 1989-1999 (Tauranga: Port of Tauranga Ltd, 2000)

Hinde, G W, Land Law in New Zealand (Wellington: LexisNexis NZ Ltd, 2003)

Salmon, Peter, The Compulsory Acquisition of Land in New Zealand: Public Works Act 1981 (Wellington: Butterworths, 1982)

Stokes, Evelyn, The Confiscation of Tauranga Lands: Te Raupatu 0 Tauranga Moana (Hamilton: University of Waikato, 1990)

Stokes, Evelyn, ed, Te Raupatu 0 Tauranga Moana. Vol 2, Documents relating to tribal history, confiscation and reallocation of Tauranga Lands (Hamilton: University ofWaikato, 1993)

Stokes, Evelyn, The Impact of Horticultural Expansion in the Tauranga District (Wellington: Ministry of Works and Development, 1983)

116

-··~x\~t.-';'" --r ""'1 ' •• , . .~'--'-~--. ----_. ---_._-_. _._-_._._. __ .. -...... _ .. _---_. __ ._-_ .. _._-_._ .. _-.--_.--_ ... -... _-.... __ ._ ..... _----

Stokes, Evelyn, A History ofTauranga County (palmerston North: Dunmore Press, 1980)

Stokes, Evelyn, ucal Perceptions of Impact: Huntb' Power Project 1971-1973 (Hamilton: University of Waikato, 1978)

Wlltshire,J J M. and D J S Laing, Public Works (Wellington: Brooker & Friend, 1984)

Articles

Barker, R I, 'Private Right versus Public Interest: Compulsory Acquisition and Compensation under the Public Works Act 1928', New Zealand Law Journal, 3 June 1969, pp 251-275

Chamberlin, Jenny, 'Tauranga', North and South, April 1999, pp 36-41

Joyce, Brian and Matthew Ockleston, 'Valuation and Business Goodwill for Compensation under the Public Works Act 1981', 2000 www.clendons.co.nz/library/artic1es/

'In Re Whareroa 2E Block, Maori Trustee v. Ministry of Works', New Zealand Law Review, 1959, pp 7-15

'The Fallacy of Whareroa', New Zealand Law Journal, 24 December 1963, pp 643-647

Manuals/Departmental Reports

Minister in Charge of Treaty of Waitangi Negotiations, 'The Crown's Policy Proposals on Treaty Claims Involving Public Works Acquisitions' (Wellington, 1996)

Ministry of Works, 'Entry on Land' (Wellington: 1965)

Public Works Statements 1887-1961 (Alexander Turnbull Library, 1889-1961)

Report of the Public Works Act Review Committee (Wellington: 1977)

Periodicals/Newspapers

Bqy of Plenty Times

Historical Review/ Bqy of Plenty Journal of History

New Zealand Herald

117

,

~ Ap;"'~ ~. Direction COmmissioningQWll CAT E Wai 215 #3.102

()

(' .. ,

IN THE WAITANGI TRIBUNAL

IN THE MA TIER OF: The Treaty of Waitangi Act 1975

AND: The Tauranga Moana Inquiry

DIRECTION COMMISSIONING RESEARCH

1 . Pursuant to clause 5A of the second schedule of the Treaty of Waitangi Act 1975, the Tribunal commissions Wendy Hart, a member of the Tribunal's staff, to prepare a research report identifying and comparing selected case studies of public works takings within the Tauranga Moana inquiry district, Including the following matters:

1.1 Comparison of any significant differences in process or consultation between the taking of Maori land and the taking of general land under the Public Works Acts within the Tauranga Moana inquiry district, selecting suitable instances from the existing casebook research.

2. The commission commenced on 27 March 2006, subsequent to my direction dated 17 March 2006, which accepted the recommendations on proposed research and approved the commissioning of this research report (Wai 215 #2.466, paragraphs 2.1.4 and 3.1).

3. The commission ends on 31 August 2006, at which time one copy of the final report must be submitted for filing in unbound form, together with indexed copies of any supporting documents or transcripts. An electronic copy of the report should also be provided In Word 97 or Adobe Acrobat format. The report and any subsequent evidential material based on it must be filed through the Registrar.

4. At the discretion of the presiding officer the commission may be extended if one or more of the following conditions apply:

4.1 The terms of the commission are changed so as to increase the scope of work;

4.2 More time is required for completing one or more project components owing to unforeseeable circumstances, such as illness or denial of access to primary sources;

4.3 The presiding officer directs that the services of the commissionee be temporarily reaSSigned to a higher priority task for the Inquiry; or

4.4 The commisslonee is required to prepare for and/or give evidence in another Inquiry during the commission period.

5. The report may be received as evidence and the author may be cross-examined on It.

Page 1

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6. The Registrar is to send copies of this direction to: ..

Wendy Hart Claimant counsel and unrepresented claimants in the Tauranga inquiry Counsel for the Tauranga City Council, Western Bay of Plenty District Council and Environment Bay of Plenty Acting Chief Historian, Waltangi Tribunal Inquiry Facilitator, Waltangi Tribunal Solicitor General, Crown Law Office Director, Office of Treaty Settlements Chief Executive, Crown Forestry Rental Trust Chief Executive, Te Puni Kokiri

Dated at Hamilton this 8th day of June 2006

.,

\

Judge ST Milroy Presiding Officer WAITANGI TRIBUNAL

Page 2

Appendix 2: Selected issues and takings identified by claimants

The statements of claim (SoC) filed for the Tauranga Moana inquiry have been examined to help determine suitable case studies. Claims filed for the Tauranga Moana inquiry are the following:

Wai 42; Wai 42(a) ; Wai 42(b) ; Wai 42(c) ; Wai 42(d) ; Wai 47; Wai 159; Wai 162; Wai 208; Wai 209; Wai 210 ; Wai 211 ; Wai 227; Wai 228 ; Wai 266 ; Wai 336; Wai 342 ; Wai 353; Wai 356; Wai 360; Wai 362 ; Wai 365; Wai 383; Wai 465; Wai 489; Wai 497; Wai 503; Wai 522; Wai 540 ; Wai 546; Wai 580; Wai 603; Wai 370; Wai 611; Wai 636; Wai 637 ; Wai 645; Wai 650; Wai 659; Wai 664; Wai 668; Wai 672; Wai 86; Wai 701; Wai 702; Wai 707; Wai 708; Wai 714; Wai 715; Wai 717; Wai 727; Wai 751; Wai 755; Wai 773; Wai 778; Wai 807; Wai 817; Wai 821; Wai 853; Wai 854 ; Wai 454; Wai 812; Wai 938 ; Wai 947; Wai 255 ; Wai 1178; Wai 1226; Wai 1328 ;Wai 1340.

Many of the claimants have identified grievances relating to public works takings. While the following summary of claims is not exhaustive, it highlights many of the public works developments that impacted upon Maori land. The purpose of this report is to find instances of public works developments that affected both Maori and general land owners which are suitable for comparison. Consequendy aspects of claims which suggest the different treatment of Maori and non-Maori land owners have been stressed in the following summaries.

1.1. Wai 1226 Statement of Claim, February 2005 and February 2006 (Wai 215, Claim 1.63 and 1.63(a»

This claim concerns the Ngati Hinerangi Trust land blocks, which include Waiharakeke, Maurihoro, Mangatotara, Oteora, Whakamarama, Okauia, Te Karaka, Te Wairere and Tuaraparaharaha. The claimants' lands were affected by public works takings for the East Coast Main Trunk Railway. Consequendy claimants seek '[c]ompensation for the loss of lands, forests, and maunga for the East Coast Main Trunk Tauranga Railway line' and furthermore, 'on-going compensation to be provided for the continued use and access of the East Coast Main Trunk Tauranga Railway Line,.432

Ngati Hinerangi argue that the taking ofland for the Kaimai Tunnel under the Public Works Act without consultation or agreement from the Ngati Hinerangi or Ngati Tokotoko is a breach. Furthermore, no recognition of loss or compensation has been received.433 Claimants believe the Crown 'confiscated' lands under the Public Works Act and Railways Act for the Kaimai Tunnel and the extension of the East Coast Main Trunk Line in the vicinity of Aongatete, Te Apata and Te Puna.434 Further lands at Aongatete, Te Apata, Te Puna, Huharua, Omokoroa were taken for roading purposes and telecommunication sites were established on Te Weraiti Maunga under the Public Works Act without consultation or agreement.435

1.2. Wai 664 Statement of Claim, March 2006 (Wai 215, Claim 1.36(b»

In 1939, around 41 acres of the Waitaha lB (lBl and lB2) blocks were compulsorily acquired under the Public Works Act 1928 and the Scenery Preservation Act 1908 for scenic purposes.

432 Wai 215, claim 1.63, P 6 433 Wai 215, claim 1.63, P 18 434 Wai 215, claim 1.63, P 19 435 Wai 215, claim 1.63, pp 20-22

119

The land was taken for water conservation purposes, and also for the protection of native bush. Claimants believe that the owners of Waitaha lB were not given adequate notice and compensation paid was below the value of the land and considerably late.

Further land was taken in 1970, the 250 acre Waoku 2A was compulsorily acquired under the Public Works Act 1940 for waterworks. The owners had earlier rejected the Tauranga City Council's offer to purchase the block, in part because there was a 3 acre urupa on it.436

1.3. Wai 715 Statement of Claim, February 2006 (Wai 215, Claim 1.45(c»

Ngai Tamawhariua believe that 'a significant proportion more Public Works takings have occurred on Maori Land as oppose to general Land' and where the Crown had a choice to acquire European land or Maori land, the Crown would actively pursue Maori land,.m

Specifically they allege, Ngai Tamawhariua have not been compensated for the taking of the roads on Matakana Island nor compensated for the taking of lands for schools.438 Furthermore, it is claimed the Crown attempted to hold land upon completion of the Crown's purpose for acquisition and has on-sold land taken under Public Works legislation.439

1.4. Wai 854 Statement of Claim, February 2006 (Wai 215, Claim 1.56(b»

Ngai Tamawhariua ki Matakana cite similar issues to Wai 715 claimants.440

1.5. Wai 717 Statement of Claim, March 2006 (Wai 215, Claim 1.46(c»

Nga Potiki had land taken for the following public works: Papamoa 2 burial reserve/sewerage pipeline; Mangatawa quarry; Papamoa A12 rubbish dump; Rangataua Bay oxidation ponds; Kopukairoa telecommunications tower; gas pipeline (affecting Mangatawa 4B2, Mangatawa 13, Mangatawa 8Cl, Mangatawa 9A2B, Mangatawa 9B3B2, Papamoa 2/2B3C4, Papamoa 2/2B1A, Papamoa 2/1CA); East Coast Main Trunk Line (over 152 acres from Mangatawa and Papamoa blocks); Rifle range (papamoa 2/7 A); Mangatawa reservoir.441

Nga Potiki claim that '[t]here was a separate process for taking Nga Potiki Vand] from that applying to European or general land'. Claimants believe that they were at a disadvantage due to the 'inability of Nga Potiki land owners to negotiate with or give consent to the taking authority over what and how much land should be taken for the water catchment by the Tauranga Joint Generation Committee [and that] Nga Potiki land was targeted for taking because it was allegedly easier to acquire'.44z

436 Wai 215, claim 1.36(b), P 6 437 Wai 215, claim 1,45(c), P 22 438 Wai 215, claim 1,45(c), P 23 439 Wai 215, claim 1,45(c), P 23 440 Wai 215,claim 1.56(b), P 23 441 Wai 215, claim 1.46(c), pp 10-17 442 Wai 215, claim 1.46(c), P 9

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1.6. Wai 1340 Statement of Claim, February 2005 (Wai 215, Claim 1.65(a»

Ngati Motai claim that 'lands have been taken for a variety of reasons, particularly roading and hydro development', 'The Crown granted Tauranga local authorities the right to generate hydro power under Orders in Council of 6 February 1963 and the Tauranga City Council and Tauranga Electric Power Board Empowering Act 1965, and funded various hydro projects.'443 The two local bodies worked together to acquire land for three power stations on the upper Wairoa river and its tributaries. In the 1960s the Joint Generation committee negotiated with the owners of Paengaroa 2, Kaimai 2, Whaiti Kuranui 5D2 and allotments 537A and 537B in the Parish ofTe Papa. In response to the negotiations the owners banded into the Ngamanawa Incorporation in 1969. The hydro schemes were privatised in the 1980s-1990s transferring assets into third-party ownership.444

Ngati Motai allege 'the Crown has targeted Maori land for public works takings. Where the Crown had a choice to acquire European land or Maori land, the Crown has actively pursued Maori land'. 445

1. 7. Wai 211/668 Statement of Claim, February 2006 (Wai 215, Claim 1. 8 (g) )

Ngai Tukairangi (hapu of Ngai Te Rangi) note the taking of land for the Tauranga Airport, which began construction in 1937 and opened on 14 January 1939. Land proclaimed for the airport dated 21 March 1940 include Whareroa 2G1B2; 2G1B3; 2G2A; 2G2B; 2G2C; 2E6B; 2E7; 2G1B4; 2G1A; 2G1B; 2E6B; 2E7.446 Ngai Tukairangi claim that at no time during entry, construction or proclamation were they consulted. On 31 March 1931, the Native Land Court awarded £2,766 14s in compensation.447 In 1960 the Crown acquired a further 67 acres 3 roods and 25.7 perches for an airport extension. They argue 'despite some of these lands becoming surplus for the purposes of an airport, the Crown has failed to offer that land back to the owners and/ or their descendants and have preferred to lease those lands to non-Maori interests.'448

Land was also taken for the East Coast Main Trunk Line, proclaimed on 8 May 1913 for the Maunganui Bluff-Te Puke section under the Public Works Act 1908 (Whareroa no. 2; Omanu blocks). Further land was taken proclaimed on 25 February 1918 (Matapihi; Hungahungatoroa 1,2,3,4; Otuawahia 2,3; Ohuki 3, 2A, 2D, 2C, 2B; Wharawhara 3,2,lB, 1A) and further land was acquired for road diversions. Again it is claimed the Crown did not consult or gain consent from Ngai Tukairangi prior to this compulsory acquisition.449

Further land on the Matapihi Peninsula was entered upon in July 1958 for the Tauranga-Maunga motorway, further land was taken in March 1962, and between 1969 and 1971. Claimants highlight delays in the payment and inadequacy of compensation as issues for the Tribunal to consider.450

443 Wai 215,claim 1.65(a) p 11; Willan, doc A35, pp 45-46 444 Wai 215, claim 1.65(a), p 12; Willan, doc A35, pp 25, 45 445 Wai 215, claim 1.65(a), p 14 446 Wai 215, claim 1.8(g), pp 4-5 447Wai 215, claim 1.8(g), P 5 448Wai 215, claim 1.8(g), P 6 449 Wai 215, claim 1.8(g), pp 13-14 450 Wai 215, claim 1.8(g), pp 16-17

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On 7 October 1954, the State Hydro-Electricity Department notified the Maori Land Court that they proposed to erect transmission lines over Matapihi lands, the Ministry of Works was required to notify land owners under s43 of the Public Works Act 1943. Claimants contend they were not informed of notice of intention nor made aware of their compensation rightS.451

1.8. Wai 228/266 Statement of Claim, March 2006 (Wai 215, Claim 1.10(e) and 1.11(b»

Ngati Tuwhiwhia and Ngati Tauiti contend that the Crown acquired 427 acres of Purakau no. 1 and Panepane blocks for harbour works, the land was administered by the Tauranga Harbour Board and 'by 1942 were planted with trees'. The compensation for that land was £213. Claimants believe compensation was insufficient, untimely and that lands taken were neither used for the purpose for which they were taken nor returned.452

1.9. Wai 342 Statement of Claim, March 2006 (Wai 215, Claim 1.13(c»

Ngati He claim that when the Ministry of Works planned a road through Maungatapu Peninsula in 1956, an agreement was made to re-erect the Marae away from the road. However, this agreement was not kept. Compensation for the Maungatapu land blocks cut by the centre line proclamation in many cases 'was not assessed and paid until the mid 1970s,.453

Power poles and lines were also erected across Maungatapu blocks in the 1950s by the Ministry of Works and Tauranga Electric Power Board, these power lines were upgraded in the 1980s. Work was carried out 'with little prior consultation with the Maori owners and no compensation paid to them,.454

1.10. Wai 42(c)/ 522 Statement of Claim, March 2006 (Wai 215, Claim 1.1(c)(d) and 1.24(a»

Ngai Tamawhariua ki Katikati believe the Public Works Act worked to the major detriment of Maori. Specifically that they have not been compensated for the taking of land for roads in Katikati or for the taking of land for schools. Furthermore, the consultation process was lacking and land acquire under Public Works Acts have been on-sold, therefore the Crown has failed to return land to 'rightful owners,.455

1.11. Wai 938 Statement of Claim, March 2006 (Wai 215, Claim 1.59(a»

Ngai Tauwhao ki Otawhiwhi adopt the general issues of the Wai 540 (Ngai Te Rangi) statement of claim. Specifically grievances include development and urbanisation of Otawhiwhi, stormwater drainage at Katikati and the use ofTauranga Harbour.45G

1.12. Wai 540 Statement of Claim, undated (Wai 215, Claim 1.25(b»

Ngati Te Rangi contend that 'the Crown adopted and pursued a policy of the compulsory acquisition of the few remaining Ngai Te Rangi lands for various public works without adequate

451 Wai 215, claim 1.8(g), pp 19-20 452 Wai 215, claim 1.10 (e) and 1.11 (b), p 14 453 Wai 215, claim 1.13(c), P 19 454 Wai 215, claim 1.13(c), P 22 455 Wai 215, claim 1.1(c)(d) and 1.24(a), p 11 456 Wai 215, claim 1.59(a), p 7

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consultation or compensation in breach of Articles One and Two and the principles of partnership, good faith and active protection' and furthermore the 'Crown failed and/or refused to instruct its agencies and local authorities to consult with Maori owners concerning the existence ofwaahi tapu and other important sites in the lands compulsorily acquired.,457

1.13. Wai 362 Statement of Claim, March 2006 (Wai 215, Claim 1.17(d»

Ngati Ruahine claim that 'there was a separate process for taking Ngati Ruahine pand] from that applying to European or generalland,.458

Land taken under the Public Works Acts includes Poike Quarry (gazetted 29 August 1938 for quarrying purposes, the Tauranga Harbour Board still has legal title over this land despite the quarry no longer being in use); Matapihi Water Supply; Tauranga Airport (gazetted April 1940).459

In the late 1960s, the Tauranga City Council took Oropi 2 and Mount Maunganui Borough Council took Weraroa 1 and Te Papa allotments. Compensation for Oropi 2 was not made until February 1972. European land was also taken, but the European owners themselves signed the compensation settlement, while in the case of Maori land the Maori Trustee negotiated on behalf of owners.460 The Werarea compensation claim was not settled until 1974. In 1966 Te Papa blocks (excluding Te Papa 53511 which was declared European land) were taken for waterworks, unused parts were on-sold and not offered to owners. 461

In 1953, claimants allege, power pylons were erected on Maungatapu land without notification. Furthermore on 17 June 1954, a transmission line was proclaimed between Tauranga and Mount Maunganui. The Maori Trustee failed to lodge compensation for Poike 6A2 and 6A3 under section 43(7) of the Public Works Amendment Act 1948. No compensation was therefore paid.46z

The Mount Maunganui-Tauranga Highway also runs through Maungatapu lands. Consultation, which took place in 1956, forged an agreemenuo relocate Marae buildings and cancel existing paper roads. In May 1959, claimants allege the Public Works Department reneged on the agreement. On 7 September 1959 a centre line proclamation was gazetted; however, a Notice of Intention to take land under the Public Works Act 1928 was allegedly not issued. The land taken at Poike was gazetted on 21 September 1967. Further land was taken at Poike on 12 December 1975 for road widening, and in 1981 and 1982. The unused land has not been offered back to owners.463 Land was also taken from Poike lB for a technical institute on 18 April 1975 and 36 acres were taken in 1975 for a high school which is yet to be built. 464

1.14. Wai 255 Statement of Claim, February 2005 (Wai 215, Claim 1.61(a»

Ngati Mahana lands have been taken for public works such as reading and hydro development. The Joint Generation Committee acquired land during the 1960s for three power stations in the upper Wairoa River and tributaries. The claimants state '[t]he land was taken under the Public

457 Wai 215, claim 1.25(b), P 18 458 Wai 215, claim 1.17(d), P 13 459 Wai 215, claim 1. 17 (d), pp 13-18 460 Wai 215, claim 1.17(d), pp 23-24; Willan, doc A32, p 26 461 Wai 215, claim 1.17(d), pp 25-26; Willan, doc A32, pp 53-54 462 Wai 215, claim 1.17(d), pp 28-29 463 Wai 215, claim 1.17(d), pp 32-40; Walzl, doc N2, pp 117-120; Easthope, doc A34, pp 40-41 464 Wai 215, claim 1.17(d), pp 42-43

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Works Act 1928, removing Ngati Mahana's ownership and access to their lands although it was unnecessary to obtain freehold title to the land for the scheme to operate,.465 The claimants also contend the Crown targeted Maori land, preferring to pursue Maori land rather than European.466

1.15. Wai 228 Statement of Claim, August 1991 (Wai 215, Claim 1.10(a»

Claimant believes they have been prejudicially affected by the policies or practices adopted by the Crown in transferring to the Tauranga Harbour Board pursuant to the Public Works Act 1908, the Matakana Island lands known as Panepane and part Purakau Blocks467

1.16. Wai 336 Statement of Claim, February 1993 (Wai 215, Claim 1.12)

The Crown introduced as legislation the Energy Companies Act 1992, which abolished Power Boards and replaces them with public companies registered under the Companies Act 1955 with defined shareholders as owners. Since 1915 through to the 1970s, a Tauranga local authority (the former Tauranga Borough Council) co-jointly with the Tauranga Electric Power Board has utilised the tributaries of the Wairoa River to harness hydro-electricity.

Claimants contend that the plans of the Tauranga District Council and Tauranga Electric Power Board under the Energy Companies Act 1992 will: 'Prejudice claims presently before the Waitangi Tribunal under the Treaty of Waitangi Act 1975 relating to the Tauranga Land Confiscation of 1864 and actions of the Crown through specific legislation which gave parties such as local authorities access to control and harness rivers and streams of the Wairoa and Omanawa Rivers to generate electricity.,468

465 Wai 215, claim 1.61 (a), p 11; Willan, dqc A35, P 56 466 Wai 215, claim 1.61 (a), p 13 467 Wai 215, claim 1.10(a), p 1 468 Wai 215, claim 1.12, P 1

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