The Commissioners of Tauranga Lands 1868-1886

Tony Nightingale, MA (Bons.)

This report was commissioned by the Waitangi Tribunal for the Tauranga claim (Wai 215)

November 1996

ACKNOWLEDGEMENTS

I should like to thank Waitangi Tribunal staff, and Heather Bassett in particular, for help in putting this report together. I should also like to acknowledge the staff at National Archives, National Library and at Land Information New Zealand (Hamilton).

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EXECUTIVE SUMMARY

The decision to use Commissioners instead of the Native Land Court was taken by Government when it passed the Tauranga District Lands Act in 1867. By that time the confusion arising out of contradictory policies of the Governor and the Government, dating back to the time of the defeat, had created a serious situation that threatened the peace in Tauranga. The tension in confiscation policy was between the Whitaker-Fox Government and Governor Grey. Whitaker and Fox were determined to confiscate more than the 50,000 acres Grey would allow. Whitaker and Fox's policy led to the enforced purchase of the Katikati-Te Puna block.

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The initial cession was succeeded by a botched confiscation of the lands of 'Ngaiterangi'. Without a declaration of the confiscation of all Tauranga lands, someone would have had to determine which were Ngaiterangi lands and which belonged to other iwi. Such a determination would have frustrated the confiscation of anyone block of land and made the policy of creating a military settlement untenable.

It was not initially intended that there would be substantial reserves in the confiscated block or within the Katikati-Te Puna purchase. In both cases Mackay and Clarke, the two officials on the ground, had to make concessions to Maori to keep the peace, as well as hold out the incentive that any inequities caused by the confiscation and enforced purchase of Katikati-Te Puna lands would be rectified in the return of the remainder of the lands. This meant that there was an active duty of the Crown to rectify the injustices created by government policy 1864-7. The effect of the Tauranga District Lands Act 1867 was not only to legalise 'all grants, awards, contracts or agreements' made in the district, it also necessitated the appointment of an individual or individuals to undertake' due enquiry', which by this stage meant to sort out the travesty of justice that had been the result ofthe confiscation and enforced purchase. The Act also unequivocally stated that the lands denoted within the schedule were all confiscated and Crown land, which removed the possibility that only Ngaiterangi lands within the confiscation would be affected.

The only way to equalise punishment across Tauranga Maori was to give substantial recompense to those who had lands confiscated, i.e. mainly Ngati Ranginui hapu, at the expense of the customary owners of the remaining land - mainly Ngaiterangi hapu. The task was always going to be administratively complex, because of the large number of claims stemming from customary ownership, and the injustices created by previous government policy.

There was no specific legislation that governed the process although the Commissioners held office under the Commissioners Powers Act and were recommending action to the Governor under the Confiscated Lands Act, 1867. In adopting a Native Land Court-type process the Commissioners failed to address their duty to actively seek out those who had received unjust treatment arising out of government action in the post-war period. The

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determination of grants was very slow, partly due to the continued tensions in and around the Bay of Plenty but also because of a lack of government will to support determined progress. There were few records of the earlier dealings with Maori and few kept of the work of the early Commissioners Clarke and Mair. This inadequacy was exacerbated by J. A. Wilson's refusal to hand over his records and led to frequent rehearings whereby a previous Commissioner's work was reinterpreted. The final Commissioner, Brabant, left a totally inadequate record of the reasoning behind his determinations. Given Brabant's realisation that the process lacked a substantial legal entrenchment, this must be seen as a deliberate attempt to make his determinations unimpeachable. This was certainly how subsequent Native Land Court judges dealt with the numerous complaints created by the process.

The acid test of the effectiveness of the 'return' would have to be the fortunes of those Ngati Ranginui hapu whose land was confiscated in the 50,000 acre confiscation. Subsequent appeals by landless Ngati Ranginui hapu clearly indicate that in following a Native Land Court model the Commissioners failed to meaningfully address the inequity of the initial confiscation 1

The Commissioners were products of their military experience. All were fluent Maori speakers. Clarke, Wilson and Mackay (the latter was not a Commissioner, but did help determine the land reserved for Maori on the confiscated 50,000 acre block and in the Katikati-Te Puna purchase lands were the children of early settlers, who had learned the language, while growing up in Maori dominated districts. Brabant learned as an adult. All these men had a basic secondary education and a background of military service against Maori. This experience hardly induced a great sympathy for Maori and was reflected in their general inability to concern themselves with the ethics or legality of the inequitable process they were involved in. Wilson and Mackay, in particular, were elsewhere implicated in coercive tactics to separate Maori from their lands. None of the Commissioners kept adequate records of their hearings, and only Brabant recognised any obligation to do so, although even he left the reasons behind his determinations out of his records.

In short, the return of Tauranga lands under the Commissioners was a political sleight of hand designed to appear to address the admitted injustices arising out of confiscation - at the same time ignoring the injustice of the confiscation itself. As a process it was ineptly conceived, poorly handled, and unreasonably drawn out. In effect it left the majority of Tauranga Maori dispossessed and/or alienated from much oftheir customary land.

1 See O'Malley, The Aftermath o/the Tauranga Raupatu, 1864-1981, An Overview Report commissioned by the Crown Forestry Rental Trust, (1995, CFRT, Wellington) part C, pp. 96-133, and appendix 1, particularly petition ofR. Tahuriorangi and 136 others 1915; George R. Hall and 9 others 1920, N. B. Hall in particular made numerous approaches to government for land for his people.

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Introduction

My name is Anthony Grant (Tony) Nightingale. In 1983 I graduated from Canterbury University with a Bachelor of Arts in history and in 1985 with a Master of Arts (Hons.). My degree included political science and New Zealand history papers to Masters levels. I am a trained and certificated secondary teacher and have completed four post-graduate papers in public policy.

After initial experience in the public service and some time teaching, I began working as an historian in 1990, and as a freelance historian in 1992. I have three 100,000 word publications, Waiuta 1906-51 (a goldmining history published in 1986); White Collars and Gumboots: A Centennial History of the Ministry of Agriculture and Fisheries (published in 1992); and Mobil: One Hundred Years in New Zealand (published in 1996). I have written seven essays for the Dictionary of New Zealand Biography and a plate for the upcoming Historical Atlas o/New Zealand. In the last year I have researched for both the Crown Forestry Rental Trust and the Waitangi Tribunal on matters relating to Wai 215.

I was a founding member ofPHANZA - the Professional Historians' Association of New Zealand - and am currently its secretary. I am also a member of the New Zealand Historical Association.

The Report

This report was one of three commissioned by the Waitangi Tribunal to be completed between May and November 1996. It had a wide brief to investigate

This report was commissioned as one ofthree reports on Tauranga to be written in a period of seven months between 1 May and .30 November 1996. The report aims to provide background information on: (1) the qualifications and expertise of the Commissioners of Tauranga Lands 1868-1886;(2) the Government policy decision to use Commissioners instead of the Maori Land Court or Compensation Court; and finally (3) to provide an analytical account of the processes by which the Commissioners made their decisions with regard to the allocation of land, the bases on which those decisions were made, and the outcome of those decisions.

The first two parts of this research were relatively straightforward, and while constrained by time and a limited number of surviving archives, in general this research has proved possible. The third aspect proved more difficult due to the lack of records. Some of the Commissioners' records have been lost and even where the records have survived it is clear that they were not kept in sufficient detail to allow meaningful analysis of the land allocation. Rather than speculate based on such limited material as exists, it seemed appropriate to investigate the legislative basis for the Commissioners' hearings. This investigation proved more successful and cast light on why such inadequate records of

Commissioner hearings were kept. What emerged was a picture of a process bedevilled by delays and policy changes - initially designed to reduce the unequal impact of an iniquitous confiscation - but so ineptly handled, it ultimately created further injustice.

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The report is divided into two sections. The first includes a section of biographies of the four Commissioners and of James Mackay, who with H. T. Clarke determined reserves and compensation within the 50,000 acres military settlement (confiscated) block, and within the Katikati-Te Puna purchase lands. The second provides an overview of the decision to use Commissioners, an investigation into the powers of the Commissioners, a chronology of how the Commissioners interpreted their instructions and a concluding section that looks at the outcome of the Commissioners' hearings.

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Section 1; The Backgrounds of the Commissioners of Tauranga Land

The Qualifications and Experience of the Commissioners

In many ways the qualifications necessary to be Commissioner of Tauranga Lands were the same as those to be a Judge of the Native Land Court, and it was no coincidence that Wilson, Brabant, Clarke and Mair all served as Native Land Court Judges at some time in their careers. All four were Pakeha who spoke fluent Maori and three were registered Maori interpreters for the Native Land Court.2 Clarke, Mair and Wilson spoke Maori because they were missionaries' children and had been brought up in an environment where Maori was the dominant language, while Brabant learned the language when he first joined the civil service as clerk cadet at Raglan.3 All four had also served in the military and fought against Maori. Whether this was a qualification thought desirable for such a post, or a consequence of being male and of military service age at the time is unclear, although it would seem that all were military volunteers. None of the Commissioners had any tertiary qualification, let alone legal training, although Brabant had attended Cambridge before his emigration in search of health. All men were in there thirties and forties when they were Commissioners, and while Clarke and Brabant had considerable magisterial and administrative experience, Wilson and Mair had military backgrounds. Wilson, in particular, had considerable experience in land purchasing, where he used aggressive methods, including loans to capture Maori lands through liens.4

Commissioners of Tauranga Lands 1868-1886.

Name/ Appointment Gazette Revocation Reference

Henry Tacey 8 July 1868 11 July 1868, Clarke No.2 Revoked 7 January 1870 17 January

1879, No.4

William 2 November 17 January Gilbert Mair 1869 1870, No.4

2 MA 25/4, Register of the Native Land Court, p. 6. 3 See biographies for sources.

RDB Reference

Vol. 12, p. 4265 Vol. 12,p. 4326

Vol. 13, p. 476

4 AJHR, 1877, G5 and J2, as well as AHJR, I-Ic, 1882. The original minutes and papers of the hearing into Wilson's allegations about Rogan and Rogan's counter-charges are in national archives under MA, Series 11 special files 112 and 131.

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Revoked 27 January 31 January Vol. 12, p. 1871 1871, No.7 4361

Hemy Tacey 27 January 31 January Vol. 12, p. Clarke 1871 1871, No.7 4360 Revoked 11 July 1876 13 July 1876, Vol. 13, p.

No.4 4595

Herbert 11 July 1876 13 July 1876, Vol. 13, p. William No. 40 4593 Brabant Revoked 23 January 24 January Vol. 13, p.

1878 1878, No.9 4662

Henry Tacey 23 January 24 January Vol. 13, p. Clarke 1878 1878, No. 34 4675 Revoked 8 April 1878 18 April 1878, Vol. 13, p.

No. 34 4675

John 30 July 1878 1 August Vol. 13, p. Alexander 1878, No. 75 4677 Wilson Revoked 4 January 1881 6 January Vol. 13, p.

1881, No.1 4747

Herbert 4 January 1881 6 January Vol. 13, p. William 1881, No.1 4746 Brabant Revoked

N.B. Hemy Tacey Clarke was appointed Resident Magistrate for the Tauranga and Bay of Plenty districts on 5 April 1862 under the Native Circuit Courts Act (Gazette, 7 April 1862, RDB Vol. 11, p. 3731, Clarke and James Mackay Junior worked as special commissioners to determine and set aside reserves within the Katikati-Te Puna purchase.5

Below are brief biographies of each Commissioner and also of James Mackay, who while not a Commissioner of Tauranga Lands, was instrumental in the allocation of reserves and compensation in the confiscated lands, and the Katikati-Te Puna purchase.

5 Vincent O'Malley, The Aftermath afthe Tauranga Raupatu, 1864-1981: based on Appendix II.

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HeillY Tacey Clarke

HeillY Tacey Clarke was born at Kerikeri in the Bay of Islands in 1825 and was the son of George Clarke who had come to New Zealand as a missionary, was Protector of Aborigines 1841-46, and afterward, a judge of the Native Land Court. Hence H. T. Clarke was brought up amongst Maori, spoke the language fluently and had considerable experience of Maori society. He was educated at the Mission School and completed his studies at King's School, Paramatta, near Sydney. After the end of formal education Clarke began to farm, but was in demand as an interpreter. HeillY Clarke accompanied troops as native interpreter on the attack on Ohinewai Pa on 1 July 1845, where he received a gunshot wound.

He was later an interpreter for the Old Land Claims Commission, a clerk in the Native Affairs Department. His services were in demand during the tensions of the late 1850s, early 1860s. In 1860 he was appointed Resident Magistrate at Tauranga. In 1864 he was appointed Civil Commissioner under the Native Districts Regulation Act 1858.6 After more than a decade in Tauranga, he was moved to Wellington in 1873, where he was appointed Under Secretary of the Native Affairs Department. He was subsequently appointed as Judge to the Native Land Court and conducted a special commission to adjust land claims in the Rotorua district. In 1879 he retired on to his former home at Waimate. Clarke returned to his first occupation, farming, and apart from a limited involvement in county council politics, concentrated his efforts on breeding shorthorn and Hereford cattle.7

James Mackay

James Mackay, who was of Scots descent, was born in London, England, on 16 November 1831, to James Mackay and his wife Ann. The family arrived at Nelson on 26 January 1845, and James senior began to farm on land at Whakapuaka.

At age 21 Mackay junior took up a licence for land near Farewell Spit, and later purchased 1500 acres in the area. He undertook expeditions into the uncharted West Coast. Mackay was fluent in Maori, so that when gold was discovered in 1856 on the Aorere River his skills came in useful as a mediator between the 600 Maori miners and 1300 Pakeha gold diggers. In 1858 he was appointed Assistant Native Secretary in the Nelson goldfields district and in 1859 Resident Magistrate.

Mackay was instructed by McLean to act as government agent in the purchase ofNgai Tahu title to the Kaikoura and Arahura blocks, including approximately 2,500,000 and 7,700,000 acres respectively. He purchased the Kaikoura block for 300 pounds, reserving

6 The New Zealand Gazette, 1864, p. 404. 7 Cyclopedia a/New Zealand (Christchurch, Cyclopedia Company of New Zealand, 1902), Vol. 2, p. 574, and for George Clarke see Schofield, Dictionary a/New Zealand Biography (Wellington, Department of Internal Affairs, 1940), p. 159 (Document Bank, AI-A3).

only 5,566 acres for Ngai Tahu. The purchase of Arahura proved more problematic because ofNgai Tahu reluctance to sell their greenstone lands. Ultimately Mackay completed the purchase for 300 pounds, creating reserves of approximately 10,000 acres and theoretical Ngai Tahu control over greenstone extraction. Against Mackay's wishes the tribe retained the Mawhera reserve, where Greymouth now is.

In July 1863 Mackay was summoned to Auckland to assist in Governor Grey's Waikato policy. Mackay was described as a gruff frontiersman, with 'indomitable courage and tenacity of purpose; he could be handy with his fists'.

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From February 1863 Mackay received the surrender of tribes in the Hauraki and Lower Waikato districts. In 1865 he was appointed ajudge of the Compensation Court, Judge of the Native Land Court under the 1862 Native Land Act and a Civil Commissioner.8 While the appointment as Civil Commissioner was for the Auckland province, he was Commissioner for Thames. A year later he was appointed to a position that equated with a compensation commissioner for confiscated lands.

James Mackay junior Esq. Of Auckland, has been appointed to receive claims under the 7th section of the 'New Zealand Settlements Act, 1863' and to transmit such claims to the judge of a Court competent to hear them.9

While at Ohinemuri in February 1864 receiving the surrender ofNgati Tama Te Ra, Mackay learnt of the presence of gold and subsequently made it his business to facilitate the opening up of the lands for mining. He was well known as an autocrat who used debt to force chiefs to co-operate.

In December 1869 he was elected to the Auckland Provincial Assembly, on which he served from January 1870 until October 1873. Mackay was appointed Commissioner for Maori affairs, and was extremely popular with the Government when, on 17 February 1875, he managed to get Hauraki chiefTe Hira, a leader ofNgati Maru, to give up mining rights to Ohinemuri. After Mclean's death in 1876 Mackay fell out with Grey and his fortunes declined. On 20 November 1879 he was appointed Resident Magistrate for Greymouth, Hokitika and Nelson south-west goldfields, but he went bankrupt over a North Island land deal and was obliged to resign. He retired to Auckland and in 1887 and published a pamphlet 'Our Dealings with Maori Lands', in which he was highly critical of the Native Land Court. In 1896 he moved to Paeroa as a miners' and land agent.

He was voted an annuity of 75 pounds per annum in 1903, but he spent his last years in

8 New Zealand Gazette, 1865 pp. 13, 14,216. 9 New Zealand Gazette, 1866, p. 179.

poverty. He died at Paeroa on 10 October 1912.10

William Gilbert Mair

Mair was born at Wahapa, Bay ofIslands in 1832, and was educated at Waimate and St. John's College, Auckland. After farming at Whangarei for some years, in 1853, he went to Australia to work on the goldfields, where he spent three years.

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Mair returned to New Zealand, and in July 1863 joined the Colonial Defence Force Cavalry. Mair was an accomplished Maori linguist having learnt the language as a child. He fought at Rangiaowhia, Orakau and Hairini and was wounded at Orakau while acting as interpreter. At the end of the Waikato campaign, in September 1864, Mair was appointed Native Resident Magistrate at Taupo. Two years later he was moved to Opotiki as Resident Magistrate and Native Officer and in 1869 he was placed in charge of Native Affairs in the Bay of Plenty. During this time he served in the campaign against Te Kooti. Mair, who was appointed a major in 1867, took command of the 'loyal' Arawa and was frequently in action in the Ureweras. It was also during this period that he acted to assist the work of the Commissioner of Tauranga Lands and was himself appointed Commissioner in November 1869. Major Mair was appointed Government Agent for the Waikato in early 1871 and in 1872 was also appointed Resident Magistrate and Native Officer for the district. In 1882 he was made a Native Land Court Judge, in which position he continued until 20 June 1891. He died on 8 July 1912,u

John Alexander Wilson

John Alexander Wilson was probably born on 21 April 1829, at Conde-sur-Noireau, Calavados, France, the eldest son of John Alexander Wilson, a naval officer, and his first wife, Anne Catherine Hawker. In 1832 his father became a lay preacher with the Church Missionary Society. They arrived at the Bay ofIslands, on 11 April 1833 and the family'S first posting was to Tauranga. Anne Wilson died at the Te Papa mission station, Tauranga, on 23 November 1838.

John was educated at the CMS school at Waimate North, the King's School, Paramatta, and at St. John's College, Auckland, then in 1845 began farming at Opotiki with his

lOClaudia Orange (editor), The Dictionary of New Zealand Biography, VoU (Wellington, Department ofInternal Affairs and Bridgett William's Books, 1992 Schofield, Dictionary o/New Zealand Biography (Wellington, Department of Internal Affairs, 1940) (Document Banle , A4-A6). 11 New Zealand Biographies (National Library), 1963, Vol. 1, p. 77 (Waikato Times, 5 January 1963) and Vol. 3, 1957, ( Waikato Independent, 6 March 1957), Who's Who (Wellington, Gordon and Gotch, 1908). See also MA 2511, Native Affairs Official Register of Service (Document Banle , A7-A9).

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brother Charles and, from 1852 at East Tamaki. He travelled to England where he married Anne Lydia Dent, on 20 November 1855, at St. Helier, Jersey. Having returned to New Zealand, on 7 October 1857, Wilson was elected to the Auckland Provincial Council for the 'Pensioners Settlement' electorate. He joined the Royal Cavalry Volunteers in 1861 and on the outbreak of war in the Waikato in 1863 he was made sub­inspector of the Colonial Defence Force Cavalry, and fought at Paterangi, Hairini and Rangiaowhia. At his own expense he raised No.2 Company of the 3rd Regiment, Waikato Militia, of which he served as captain until his resignation in 1864.

From 1866 to 1868 he was special commissioner for the settlement of confiscated Bay of Plenty and East Coast land, and land purchase officer for the East Coast and Bay of Plenty district from 1873 to 1876. Wilson could be sharp in his comment and he made a public attack on the dealings of the Native Land Court on the East Coast. In a series of letters to the Otago Daily Times and in a pamphlet he accused Judge Rogan of impropriety. The subsequent Commission onnquiry cleared Rogan, but Wilson's own coercive tactics to pressure Maori to sell land came under the spotlight. While the commission cleared both parties of any wrong doing, Wilson severely strained his credibility and was dismissed from his position shortly thereafter. Despite this he was appointed a Native Land Court Judge and Commissioner of Tauranga Lands, but was dismissed as a Native Land Court Judge in 1880 and as Commissioner in January 1881. The Dictionary of New Zealand Biography comments:

Wilson claimed in a pamphlet published in 1884 that his dismissal was due to false representations and the animosity of the chief judge. The judge in question was F. D. Fenton, who dismissed Wilson on the grounds that he had no legal training. There had been a conflict over Wilson's ability to devote enough time to his court obligations, while he held other government positions. He had also remained in Tauranga while Fenton insisted that judges base themselves in Auckland and move around the circuit. Wilson was re-appointed in 1886 and served until 1891, and again from 1895 until 1901.

Wilson was intelligent ambitious, and enterprising, but also self-centred and intolerant. His contemporary, Gilbert Mair, described him as 'far from being a humorous man'. At the time of his dismissal in 1876 he was regarded as zealous and hard-working, but it was deemed necessary to remove him from office because he could not get on with other officers in the district. Nor was he able to get along with the people of Tauranga.

From 1874 Wilson was also involved in the extraction of sulphur from White Island, but in the 1880s the company foundered and when it went into liquidation in 1886, Wilson was the focus of considerable bitterness from shareholders. Wilson continued to mine the deposits and refused all other access to the island. Reaction against Wilson was so strong that he was burnt in effigy on the beach at Tauranga. Wilson sold his interests in White Island, about the turn of the century to the New Zealand Loan and Mercantile Company.

Wilson produced many articles and letters in local papers and three publications, The Story olTe Waharoa (1866), Sketches of Ancient Maori Life and History (1894), and a rather unusual cosmological treatise, The Immorality of the Universe (1875).

John Alexander Wilson died in Auckland on 28 April 1909. 12

Herbert William Brabant

Herbert William Brabant was born in London on 19 March 1838, the eldest son of William Hughes Brabant, solicitor. He was educated at private schools and at Gonville and Caius College Cambridge. However, in June 1859, he sailed for New Zealand in search of health. He arrived in Aucldand in September of that year, and visited Taranaki during 1860, where he served for a brief time as a volunteer. Until 1867 he was primarily a farmer, but in that year he entered the Civil Service as a clerk to the bench at Raglan. Two years later he was appointed interpreter for the Court, so presumably he learned Maori while at Raglan. His other duties included those of Returning Officer, Registrar of Births, Deaths and Marriages and Coroner. Brabant maintained an active participation in the Militia and was made a captain in 1871. From Raglan, he was appointed Resident Magistrate at Opotiki in December 1871, where he remained until he was transferred to Tauranga in May 1876. He was appointed Commissioner of Tauranga Lands 1876-8, but had to forgo this task in 1878, due to a very heavy workload associated with his other duties. These other duties included being the Resident Magistrate, Inspector of Native Schools, and Auditor for the Court.

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At Tauranga Brabant's primary task was to complete the return of Tauranga lands that had been confiscated as a result ofthe war. The undertaking was very similar to that performed by Native Land Court Judges and Brabant's similar status was confirmed at the end of his term as Tauranga Commissioner by his appointment as judge ofthe Native Land Court. After several years as a circuit Native Land Court Judge, Brabant was appointed Resident Magistrate, Wanganui, in April 1889. Thereafter he became Stipendiary Magistrate in Auckland in 1897, and then Stipendiary Magistrate, Napier in 1904. H. W. Brabant retired to Wanganui on pension in January 1908, where he remained until his death in 1919.13

12 Claudia Orange (editor), The Dictionary of New Zealand Biography, Vol.2 (Wellington, Department of Internal Affairs &Bridgett William's Books, 1992), Who's Who (Wellington, Gordon and Gotch, 1908), Schofield, Dictionary of New Zealand Biography (Wellington, Department ofInternal Affairs, 1940); MA 2511, Native Affairs Official Register of Service. (Document Bank, AI0-A13). 13Cylolpedia of New Zealand (Christchurch, Cyclopedia Company of New Zealand, 1902), Vol. 2, pp. 1401-2. Who's Who (Wellington, Gordon and Gotch, 1908), and William Henry Brabant, Genealogical Tree of the Brabant Family andfamilies Intermarried - also a Short History of the Brabants (Suva, Fiji, privately printed, 1948); MA 25/1, Native Affairs Official Register of Service (Document Ban1c, AI4-AI9).

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Section 2: Chronology and Discussion

Comment on Sources

There was no legal framework that instructed the Commissioners on how to undertake 'due enquiry' and each Commissioner was obliged to fulfil his role as best he saw fit; it was inevitable that there would be variations between Commissioners. Unfortunately, the nature ofthe process on a day-to-day basis for all Commissioners, except Brabant, will remain elusive, because there are no surviving record books of hearings. Correspondence from the Commissioners to the Government has been lost, probably in the 1906 Parliamentary or 1950s Hope Gibbons fires. What remains are the outward letter books of the Native Department to the Commissioners, published reports in the Appendices tot he Journals of the House of Representatives (AJHR), most notably Brabant's final report (AJHR, 1886, G.1 0), and one of what were probably two of Brabant's minute books of hearings. There are also 'notes' that Brabant took during some hearings amongst remaining documents at LINZ at Hamilton. Subsequent Native Land Court decisions comment on the nature of the process, most notably in the 1912 Umuhapuku and Kaitimako hearings.

A General Chronology

Any attempt at creating an overview of the work of the various Commissioners is hampered by the fact that the records they left are incomplete and uneven. The most useful documents are: Brabant's final report; Brabant's minute books, notes on hearings, and letters. There is a small batch of letters written by 1. A. Wilson and some from H. T. Clarke. Much of what exists refers to the mechanics of running an office and as such is not of particular relevance to day-to-day hearings. Moreover only the outward departmental correspondence exists in full, although registers of inward correspondence give some indication of the nature of correspondence.

If one examines Brabant's final report published in the AJHR, one can gain an overview of how many blocks were considered by each Commissioner. 14

Individually Heard Block H. T. Clarke 23 W. G.Mair 1. A. Wilson H. W. Brabant

14 AJHR, 1886, G10.

none 3

139

In Combination Heard Block Clarke and Brabant 14 Clarke and Wilson 9 Brabant and Wilson 16 Brabant, Clarke and Wilson 5 Mair and Brabant 1

The overwhelming number of blocks were heard either by Brabant on his own - 139 in total - and in combination with a previous Commissioner, another 36. In total he was involved in the hearing of 175 of the total 210 blocks, i.e. in 83.3 percent. Clarke heard 23 cases individually and jointly another 25. The other Commissioners' determinations were fewer and in the case of Mair, his involvement was minimal.

The bare statistics do not ofthemselves do justice to the relative efforts ofthe Commissioners and they reflect a range of pressures on the Commissioners of the day. Clarke was burdened down by his other appointments as Resident Magistrate and Civil Commissioner, at a time when circumstances necessitated that his attentions be focused elsewhere. In particular between 1867 and 1871 much of his time was taken up on security issues, particularly the movements of Pirirakau; the activities of Te Kooti; the killing ofVolkner and subsequent confiscation in the eastern Bay ofPlentyY During this period of unrest the Commissioners' 'Court' did not sit and was only reinitiated after appeals from N gaiterangi. 16 Clarke himself recognised that progress was unsatisfactory and requested temporary help, which he obtained briefly in the form of William Gilbert Mair, the Opotiki Resident Magistrate, whose primary role was to lead an Arawa troop against Te Kooti. 17 Mair's later brief period as Commissioner was similarly frustrated by him having other duties at the same time. Mair was transferred to the Waikato in early 1871 and so never really became established as Commissioner. ls Clarke was himself promoted to Under Secretary of the Native Affairs Department in 1873 and so for three years was supposed to be acting as Commissioner from Wellington. 19 This arrangement proved unsatisfactory and Brabant was appointed at the same time as being Resident Magistrate for Tauranga. At that stage Hopkins Clarke was Civil Commissioner and officer in charge of Native Affairs in Tauranga, but he fell ill and Brabant was obliged to

15 Alan Ward, A Show of Justice: racial 'amalgamation} in nineteenth century New Zealand (Auckland, Australian National University Press, 1973, 1983 reprint), pp. 178, 191. 16 AlHR, 1871, F, No.6a and AlBR, 1873, G1. 17Native Affairs Outward Letter books MA 4/59, roll 6621, Under Secretary to Commissioner Clarke, 18 May 1867, pp. 439-40 (Document Bankpp. 4-5). 18 See biographical material, and in particular MA 25/1, Native Affairs Official Register of Service. 19 See biographical material, and in particular MA 2511, Native Affairs Official Register of Service.

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take over his duties as well as his own.20

In July 1878 J. A. Wilson was appointed Commissioner on top of his duties as a Native Land Court Judge. While Wilson was undoubtedly able, his fiery temperament led to his sacking in late 1880.21 Wilson was also removed as a Native Land Court Judge apparently due to his reluctance to follow procedure and, most notably, to go on circuit. Wilson was informed that the Native Land Court would determine ownership, although this was not the case and Brabant was reappointed Commissioner - this time with fewer other responsibilities and given instructions to focus his energies on the job of Commissioner. There is no evidence in the remaining correspondence to suggest why Wilson was told that the Native Land Court would take over his responsibilities, nor why this was not done.

On Wilson's removal there were few records passed on to Brabant and considerable time was lost in rehearings and in searching archives. However Brabant set up a practical and workable 'court' given the lack of a legislative framework and set about hearing claims in earnest. Hearings were held regularly, e.g. in 1882 Brabant sat 183 days and dealt with 66,000 acres ofland.22 Brabant also kept records, although the quality and hence value of these records is debatable. On most blocks it would appear that he heard whakapapa and listened to evidence on customary title, although only occasionally were minutes of this evidence kept; e.g. on the Hopukiore Block at Mount Maunganui he recorded in detail the evidence of Akuhata Tupaea, but with the Te Irihangi Block, where there were over nine separate claims, no record of the oral testimony was kept at all.23 There is no detailed evidence anywhere of how the evidence of customary title, or considerations ofreserves in the confiscated or Katikati-Te Puna blocks influenced the eventual grants and this process remains a mystery. Brabant went to some considerable effort to ensure that land was investigated, a certificate of title granted the land surveyed and then the certificate be passed on to the Governor to become a land grant. However, land grants could be further delayed if survey liens were not paid, which was a factor for the returned lands, although not for reserves within the Katikati-Te Puna purchase.24 Brabant only succeeded where others struggled because tensions in the area had reduced, because he could devote much of his considerable energy to the process and because of an overwhelming desire by locals to remove the uncertainty created by ill-defined titles.

Brabant still had to work on finalising the owner lists for reserves in the confiscated and

20 Native Affairs Outward Letter books, MA 4170, roll 6636, pp. 138-39, Under Secretary to Brabant, 16 April 1877. 21 Vincent O'Malley, The Aftermath a/the Tauranga Raupatu, 1864-1981, p. 34, and Raupatu Document Bank, Vol. 126, LINZ (DOSLI) File 4124. 22 AJHR, 1882, G1, p.5. 23 Evelyn Stokes, Te Raupatu 0 Tauranga Maana, Vol. 2, pp. 153-6. 24 MA 4/39, micro 6595, p. 75, Under Secretary to Brabant, Commissioner of Tauranga Lands, 7 May 1884 (Document Banle pp. 99-100).

purchased block and had considerable difficulty finding records of title.

I have the Honour to acknowledge the receipt of your letter of 5th November, in which you state that in settling the lists of owners for Native Reserves in the Confiscated block Tauranga, you found that claims were made by Natives in respect ofthe Sections named in your letter for which you can find no authority.

In reply I have to inform you that unfortunately no papers on the subject are held in this office.25

There are few records to determine when the lists were finalised, but presumably it was by the time Brabant had finished his work as Commissioner.

The Powers of the Commissioners of Tauranga Land

The system of appointment of Commissioners of Tauranga Lands developed after confiscation and was a response to the need to determine the owners of land to be returned to 'loyal' and surrendered Maori. James Mackay and H. T. Clarke, the Civil Commissioners for Thames and Tauranga respectively, were finally responsible for setting aside reserves and compensation within the confiscated block and the Katikati-Te Puna block.

18

The Katikati-Te Puna purchase was in part the result of a conflict between Governor Grey and his ministers, particularly Whitaker and Fox. Grey had accepted confiscation as a policy tool less enthusiastically than his ministers and in Tauranga acceded to the 50,000 acre confiscation. Whitaker and Fox favoured greater confiscation26 and Riseborough convincingly argues that the enforced 'purchase' of the Katikati-Te Puna blocks was the ministers' attempt to further their policy by other meansY Even with the coercive nature of the purchase Whitaker recognised that some reserves were necessary and he granted Kainga and a small number of reserves during the initial sale negotiations. When the politicians departed it was left to the two officials to determine greater reserves, which they undertook as part of the process of securing the sale, keeping the peace and settling counter-claims made by two Thames-based iwi .. The initial investigation lasted six months from December 1864 until June 1865, and backed up the claims by Thames Maori, albeit to what were considered lesser claims than those ofNgaiterangi. The consequence was that the non-Ngaiterangi claims were paid off after settlement at the Te

25 MA 4/39, micro 6594, p. 450, Under Secretary to Brabant, Commissioner of Tauranga Lands, 6 March 1884 (Document Bank p. 98). 26 Hazel Riseborough, The Crown and Tauranga Moana 1864-8, pp. 27-33. 27 Hazel Riseborough, The Crown and Tauranga Moana 1864-8, p. 32-3.

Papa hui in June/July 1866, but 'Ngaiterangi' claims were not settle, until November 1866.

19

Negotiations with the 'various hapus ofNgaiterangi' for their claims to the Katikati-Te Puna block took up two days of the hui. Ngaiterangi declared that they would not wait for payment for the block until it could be surveyed and the acreage determined, 'but agreed to take 6,700 pounds for their claims ... exclusive of the deposit of 1,000 pounds already paid. Of the 7,700 pounds paid to Ngaiterangi, 7,000 pounds were paid for the Te Puna block and 600 pounds for Katikati - the same amount Te Moananui and Ngatitamatera had received. However, Ngaiterangi also got an extra 100 pound for old burial grounds and 'tapu' in the Katikati block; and 6,000 acres 'of great value mostly with harbour frontage' were set apart for 'native occupation and cultivation', as well as another 1,000 acre reserve' subject to the Native Reservations Act'. 28

Under the New Zealand Settlements Act a Compensation Court could have been called to determine compensation to loyal Maori, but the cession and then total confiscation meant that the Crown had to adjudicate over land of surrendered rebels and decide on the return to them as well. This would have been difficult under the 1863 legislation because under Section V, subsection 1, 'no compensation shall be granted to any ofthe persons following that is to say any person: (1) Who shall since pt January 1863 have been engaged in levying or making war or carrying arms against Her Majesty the Queen or her Majesty's forces in New Zealand ... '.It was left for McKay and Clarke to determine reserves. Compensation was largely awarded to 'loyal' tribes out of the confiscated and purchase blocks, so it has been suggested that the remaining Tauranga lands should have been left for the Native Land Court to determine under customary title. However, the return of Tauranga land was complicated by the uneven impact of the initial confiscation on different iwi and hapu in the district and the enforced sale of the Katikati-Te Puna lands. Some, particularly those associated with Ngati Ranginui, lost nearly all their lands. In the return of land that remained there should have been recognition made of the relative impact on each hapu. It was clearly recognised by government officers that the initial confiscation had been iniquitous and that the onus was on the Crown to ensure that the confiscation equally punished those they defined as rebels' .29

The return would have been a complex exercise if it took into account all the factors and attempted to equalise the punishment. The difficulty was exacerbated by disruptions due to continued hostilities and racial tension in the district, particularly that associated with

28 Hazel Riseborough, The Crown and Tauranga Moana 1864-8, p. 58. Note Riseborough's two footnotes in this piece have been omitted. 29 Evelyn Stokes, Te Raupatu 0 Tauranga Moana, (Wellington, Waitangi Tribunal, 1990), Vol. 1, pp. 152-59, Hazel Riseborough, The Crown and Tauranga Moana 1864-8, pp. 29, 58, and Mackay Report, LElII867/114, in Raupatu Document Bank, Vol. 7, p. 2346.

20

the killing of Vollmer and the hunt for 'Hauhau' sympathisers, most notably Pirirakau. The process dragged on so long that in 1873, H. T. Clarke, the only Commissioner to have been involved in the confiscation and the Katilcati-Te Puna 'purchase', left the district when promoted to Native Secretary. He attempted to carry out the role based from Wellington but this proved impractical. The loss of his experience and Imowledge would have been considerable, even if he had provided detailed records of his decision-making process. This was not done and his successors found it difficult to access the information they needed. In fact the records of the earlier hearings were lost on several occasions, and when Herbert Brabant, the last and most significant Commissioner, was re-appointed to the job, his predecessor, 1. A. Wilson, refused to hand over his minute books. Brabant was aware and concerned that the informality and sloppiness surrounding the return of Tauranga lands would bring into question the fairness of the system and leave the Crown open to later claims.3D To what extent the Commissioners achieved their task was the focus of subsequent debate in Native Land Court investigations into title on Matakana Island and on the Kaitimako block.3

!

Why use Commissioners?

There is no single reason why successive governments chose to use Commissioners to determine the return of Tauranga lands, rather a combination of factors, including the nature of the confiscation, the concurrent Katikati-Te Puna purchase, the general unrest in the Bay of Plenty, and the drawn-out nature ofthe process. Together these factors created a climate in which the Government felt happier with a hands on process, carried out by an official, rather than one carried out at arms length by judges of the Compensation Court andlor newly created Native Land Court. The argument for having Commissioners is best treated in Stokes, Te Raupatu 0 Tauranga Moana, and Riseborough 'The Crown and Tauranga Moana'. 32

The critical first point to make is that the confiscation was not merely of the 50,000 acres taken directly by the Crown, but rather of the whole Tauranga district, which was unfortunately and incorrectly termed 'all the lands of the tribe N gaiterangi.' The terminology gave the impression that one unit, Ngaiterangi, owned all the lands in the region described in the Order in Council. This ignored the fact that the iwi consisted of

30 LINZ(DOSLI), Hamilton, Tauranga Confiscation, Folder 26, Miscellaneous Papers 1879-1885, T. W. Lewis, Under Secretary of Native Affairs to H. W. Brabant, Commissioner of Tauranga Lands, 7 June 1881. See material on Brabant's letter. 31 Evelyn Stokes, Te Raupatu 0 Tauranga Moana, Vol. 1, pp. 150-1, Mackay's report quoted in AJHR, 1928, G7, shows that Maori in Tauranga viewed the lands granted to them in the 50,000 confiscated blocks and within the Katikati-Te Puna purchase as compensation. In the latter case 'loyal' Maori with no traditional rights in the Katikati-Te Puna lands claimants refused to consider accepting purchase monies as compensation for their land confiscated. 32 Hazel Riseborough, The Crown and Tauranga Moana, (A Report commissioned by the Crown Forestry Rental Trust, October 1994)

over twenty hapu, all of whom had claims to specific areas, rather than to the whole. As well there were other iwi that had considerable claims in the area, including Ngati Ranginui, Ngati Pukenga, and Waitaha. Chief Judge Fenton recognised that under the 1865 Order in Council the Crown had confiscated the lands of one tribe, not the total lands in Tauranga, and Fenton's attempts to have the Native Land Court determine Ngaiterangi lands were a reflection of that. Fenton repeatedly pushed for Native Land Court jurisdiction. His attempts were officially rejected at the time because of the unrest in the district, and because the Crown argued that the whole of Tauranga lands were Crown land even though Maori had claims. There is also the fact that if the Land Court determined the Lands ofNgaiterangi (or of rebels) within Tauranga, from which the Crown could confiscate land as punishment, then it would be very difficult to take one block of land for military settlement and the Crown might end up with disparate land holdings of former rebels.

21

As a result of the confusion created by the initial Order in Council it was necessary to pass legislation to make it clear that the Crown had confiscated the whole of Tauranga lands. Under the Tauranga District Lands Act 1867, the entire area defined in the schedule became Crown land,33 and effectively the Crown could dispose of it as it saw fit. In practice it was constrained by Governor Grey's promise to return 'three quarters'.

The return oflands and compensation at Tauranga was complicated by the Katikati-Te Puna 'purchase'. It had been intended that compensation to loyal Maori would be given out ofthe lands returned. This had proved impractical and the Crown was obliged to give 6,000 acres in reserves within the confiscated block and a similar acreage within the Katikati-Te Puna blocks. The scale ofthe purchase at 93,188 acres - nearly twice the area actually confiscated - meant that any such compensation would have placed a huge burden on those whose lands were returned and may have destabilised the delicate political situation existing at the time.34 The remaining lands in the south east of Tauranga totalled 136,191 acres.35 Those seeking compensation, either' loyal' Maori who had their land confiscated or surrendered rebels, were not keen on accepting money only in compensation. Pirirakau and their associates were classified as unsurrendered rebels and as such they were not liable for a land grant in their own right.

The nature of the sale ofthe Katikati-Te Puna lands has been contested with historians including Stokes, Riseborough and O'Malley noting that it was made under duress, and by a small number of chiefs. Riseborough's examination is the most damning and she draws on correspondence from Fox, Colonial Secretary and the defacto Native Minister to Governor Grey, in which he expresses his frustration with outside claims to Katikati­Te Puna, which he blames on the cession principle.

33 Under the 1868 Amendment the schedule was increased to include Ngaiterangi land that surveys had shown lay outside the parameters ofthe 1867 schedule. 34 AJHR, 1928, G7, quoted in Stokes, Te Raupatu 0 Tauranga Maana, Vol. 1, p. 150. 35 AJHR, 1886, GI0, p. l.

22

This case appears to the Colonial Secretary to afford an early and very clear proof of the inconvenience and impolicy of the cession principle as opposed to that of confiscation. The Native claimant, Te Kou-O-Rehua said to the Colonial Secretary, 'If the Governor had taken this land because he had beaten the Ngaiterangi that should have been well. I should have said nothing; but now that it is being sold by the Ngaiterangi I will assert my claim', and he does assert one of that class of claims which tend to complicate native questions about land, and which by their own law, have no solid foundation

The Colonial Secretary expects unlimited claims of the same sort as these wherever the 'Cession' principle may be attempted, none of which would probably have been heard had the principle laid down in his Excellency's proclamation of 11 th July 1863 been consistently adhered to and made the basis of what is after all a forced acquisition of Native Lands under colour of a voluntary sale.36

The Katikati-Te Puna purchase was an unusual transaction in many ways. Firstly it was a purchase of lands that technically were probably already Crown lands as a result of the cession and certainly were as a result of the confiscation. In effect what it did was extinguish the rights of the owners (mostly Ngaiterangi) to some return of the lands in the future. Secondly, Mackay and Clarke reserved from the sale within it, not only urupa and kainga, they also compensated 'friendly' Maori, who had lost lands in the confiscated area. It was clear from Mackay's correspondence that he and Clarke saw the provision of reserves on the Katikati-Te Puna lands as compensation, firstly to loyal Maori that had lost lands from confiscation and secondly to surrendered Maori who had disproportionately lost land.

Out of the lands reserved or returned to loyal Natives within the military settlements block of 50,000 acres, I would observe that these were at first to be more in the light of gifts from the Crown to the Natives on account of having lost land than as compensation. It is true that since the extension of the area to 6,000 acres [of reserves ]by Mr. Clarke and myself and the Natives now look on it as compensation. The intention of the Governor in the first place, was evidently that the question of compensation to loyal Natives should be adjusted out ofthe three­fourths of the whole district to be returned to the tribe, and not from the one fourth retained by him ... The fact ofthe Natives having sold to the Crown the Katikati and Puna blocks to a certain extent altered the position of the case. However, in arranging this question Mr. Clarke and myself endeavoured to adjust any outstanding claims by making reserves to some of the loyal persons who received but little before on account of their lands being within the military settlement block of 50,000 acres, although they had but very small right to land otherwise

36 William Fox to George Grey, 24 September 1864, G17/3 no. 15, 'Native Claims to Katikati', see Hazel Riseborough, The Crown and Tauranga Moana, p. 32.

23

within the Katikati Puna Blocks. We also proposed to the ex-rebel party who owned the greater part of the purchased blocks that they should adjust the matter by giving a large share ofthe consideration money to the loyal claimants. Neither party, however, cared much for this proposition and it was negatived at the time by them, though I believe that in the apportionment ofthe 3,000 pound instalment recently paid to them they behaved liberally to the loyal claimants.37

How this compensation altered (presumably increased) the area reserved is unclear, except to say that at around 6,000 acres the reserves represented approximately 6.5 percent of the total area compared with reserves at nearly 12 percent in the confiscated block,38 Reserves and grants made in the Katikati-Te Puna purchase lands were supposed to be taken into account by the Commissioners when returning the remaining lands. This process was confirmed and entrenched by Sections 2 and 3 of the Tauranga District Lands Act, 1867, which legitimised all the Government's earlier actions and allowed for the appointment of a Commissioner for the purposes of' due enquiry'. Moreover it was stated that the reference to the lands ofNgaiterangi was subservient to the Schedule and that all Tauranga lands within the Schedule were confiscated, thus removing any doubt as to whether the Native Land Court had to determine customary ownership.

All grants awards contracts or agreements of or concerning any of the land described in the Schedule to this Act made or purporting to have been made pursuant to and in accordance with the terms of the said Order in Council of the eighteenth day of May one thousand eight hundred and sixty-five and all grants awards contracts or agreements of or concerning any of the said lands hereafter to be made or entered into by the Governor or any person or persons authorized by the Governor in that behalf which shall be consistent with the terms of the said Order in Council are hereby declared to have been and to be absolutely valid and none of them shall be called into question by reason of any uncertainty in the said Order in Council or of any omission or defect or departure of or from any of the forms matters or things provided by the "New Zealand Settlements Act 1863" "The New Zealand Settlements Amendment and Continuance Act 1865" and the 'New Zealand Settlements Act Amendment Acts 1866"or either of the said Acts and it is hereby declared that notwithstanding anything in the said Order in Council to the contrary the whole of the lands specified in the Schedule to the said Order in Council duly and effectively to be a District within the provisions of "The New Zealand Settlements Act 1863" and the whole of the said land was duly and effectively set apart reserved and taken under the said Act as sites for settlements for colonization and was duly and effectively required for the

37 AJHR, 1928, G7, quoted in Evelyn Stokes, Te Raupatu 0 Tauranga Moana, Vol. 1, pp. 150-51. 38 The reserves totalled approx. 6,000 acres in a block of 50,000 acres.

purposes of the said Act and to be subject to the provisions thereof.39

Hence in considering the return of lands H. T. Clarke, the first Commissioner had to take into account each claimant group's customary lands, the impact of confiscation on the claimants and the quantity of land they had as a result of the reserves made in the confiscated 50,000 acres and Katikati-Te Puna block.

24

On several occasions the Crown rejected the suggestion that the Native Land Court should determine ownership of the lands to be returned. These overtures were rejected, firstly because there were still a few compensation claims on Tauranga blocks, although these were mainly on town land,40 secondly, because the land was technically Crown land rather than Maori customary title,41 and thirdly, because there was a suspicion amongst Tauranga Maori that the Native Land Court was in some way the tool ofTe Arawa.42 The experience ofH. T. Clarke, the first Commissioner, who had been involved in the surrender; the setting aside of reserves in the confiscated block and within the Katikati-Te Puna purchase; was also important. Clarke was the only individual to have had hands-on involvement in the confiscation, the Katikati-Te Puna purchase and the allocation of compensation and reserves in bothY Hence he was one of the few people with a knowledge of Tauranga Maori who might be able to consider reasonably the impact of prior Government actions on the 'return' of lands.

It was clear from the Order-In-Council below that 'due enquiry' had to be undertaken, which involved to a considerable degree determining customary title. Given that the Crown had refused to allow the Native Land Court jurisdiction at Tauranga, and that it had also failed to recommend any cases for the Compensation Court,44 some form of Commission was the next most logical option, although the authority by which any Commissioner could determine title was not clear.

Now therefore, His Excellency the Governor, in exercise of the power vested in him by the said recited Act [The New Zealand Settlements Act, 1863], doth hereby, with the advice and consent of the Executive Council of the Colony,

39 Section 2, Tauranga District Land Act, 1867. 40 Vincent O'Malley, The Aftermath of the Tauranga Raupatu, 1864-1981: An Overview Report Commissioned by the Crown Forestry Rental Trust (CFRT, June 1995), pp. 20-27, and Outward letter books, MA 4/62, Micro 6624, Under Secretary to Civil Commissioner Tauranga, 26 June 1867 (Document Banle pp. 6-7). 41 See Stokes, Te Raupatu 0 Tauranga Moana, Vol. 1, p. 143,and Raupatu Document Bank, Vol. 125, LINZ, Folder 2/8. Prendergast to Fenton, 16 January 1866. 42 Vincent O'Malley, The Aftermath of the Tauranga Raupatu, 1864-1981, pp. 11-16, Parliamentary Debates, 186, pp. 148,404, and Raupatu Document Bank, Vol. 125,2/8. 43 AJHR, 1873, G1. 44 Vincent O'Malley, The Aftermath of the Tauranga Raupatu, 1864-198, p. 21.

25

declare that from the date hereof, all the lands of the tribe "Ngaiterangi" described in the Schedule to this Proclamation, shall be a District within the provisions of the "New Zealand Settlements Act, 1863," and shall be designated by the name mentioned in such Schedule, and doth declare that the said Lands are required for the purposes of the said Act and are subject to the provisions thereof, and doth order that the said lands shall be and are hereby set apart and reserved as sites for settlements and colonization agreeably to the Provisions of the said Act; and doth order, that in accordance with the promise made by his Excellency the Governor at Tauranga, on the sixth day of August, 1864, three-fourths in quantity ofthe said lands shall be set apart for such persons of the tribe N gaiterangi as shall be determined by the Governor, after due enquiry shall have been made.45

While the 1865 Order in Council does not specify the appointment of Commissioners, the 1867 Tauranga District Land Act does,46 although the section refers to 'inquiries made and carried through by persons thereunto appointed by the Governor', rather than the term 'Commissioner of Tauranga Lands' which evolved. Hence the decision to use a Commissioner, instead ofthe Native Land Court was made in its most explicit form in the passing and maintenance of the 1867 Act.

Appointment of Commissioners

The appointment of the Commissioners of Tauranga Lands was not under any single piece of legislation and nowhere were the powers of the Commissioners explicitly spelt out in detail. However, under the Confiscated Lands Act, 1867, the Governor had the power to compensate friendly Maori and unsurrendered rebels by grants from confiscated lands.47 Grants could be made subject to any restrictions the Governor saw fit and he could even reserve lands for educational purposes for Maori andlor the general population.48

By the time Clarke was appointed first Commissioner of Tauranga Lands, the 50,000 acre confiscated block and the Katikati-Te Puna blocks had been surveyed, while reserves and compensation land within those blocks had been determined, although the Commissioners were to playa role in settling disputes over reserves. In appointing Clarke Commissioner, the Governor (i.e. Government) was commencing the third phase of the confiscation, i.e. the return of the so-called 'three-quarters' Grey had promised at the surrender. This land was in the south east of the Tauranga district. At this stage the land was technically Crown land, although customary owners and those displaced from the

45 The New Zealand Gazette, 1865, No. 22, p. 187 (27 June, 1865). 46 The Tauranga District Land Act 1867, Section 3. 47 The Confiscated Lands Act 1867, Sections 3 and 4 48 The Confiscated Lands Act 1867, Sections 6 and 7.

26

confiscated block continued to dwell on it and had ill-defined rights to it.49 Some owners had claims arising from customary title; while those inequitably dispossessed had claims at odds with the customary owners if punishment was spread amongst all 'Ngaiterangi'. Hence while the confiscation was the punishment for those with lands in the confiscated area, the punishment for those in the remnant of Tauranga lands was to have to share their lands with others who had no customary right to it.

The Schedule issued under the 27 June 1865 proclamation was altered by the Tauranga District Land Acts 1867 and 1868. The 1867 Tauranga District Lands Act validated' All grants awards contracts or agreements of or concerning any of the land described in the Schedule to this Act made or purporting to have been made pursuant to and in accordance with the terms of the said Order in Council of the eighteenth day of May one thousand eight hundred and sixty-five.' This retrospective validation was of (1) the confiscation of the land around and in Tauranga regardless of whether it was land belonging to Ngaiterangi, (2) the Katikati-Te Puna purchase, regardless of whether it was sold fairly (3) the allocation of compensation and reserves within the confiscated block regardless of whether they represented an equitable solution, and (4) the allocation of reserves and compensation within the Katikati-Te Puna purchase. There was no need with this general legislation to justify or even record why any particular block of land was returned to any particular group, hence future Commissioners had little idea as to the reasons for any specific allocation.

While the 1867 legislation did not set up any process similar to the Native Land Court, to allocate remaining lands it did provide for the creation of the Commissioner.. Section three states' For the purposes of this Act the words "due inquiry" in the said Order in Council shall be deemed and taken to extend to inquiries made and carried through by persons thereunto appointed by the Governor'. The 'due inquiry' was to determine the ownership rights of claimants to the lands to be returned, bearing in mind the agreements validated by the 1867 Act. 50

H. T. Clarke was appointed on 8 July 1868. At that time he was the Civil Commissioner for the district. He was also a Commissioner appointed to determine compensation claims. 51 This second brief was a wide one in which Clarke was theoretically appointed to determine any compensation claim arising from hostilities within the Auckland Province. In practice it was to determine compensation issues within Tauranga.52 Clarke was also the paymaster for local Maori, in which he paid pensions to various chiefs and for any works commissioned by government. 53

49 Vincent O'Malley, The Aftermath afthe Tauranga Raupatu, 1864-1981, pp. 11-16. 50 The Tauranga District Lands Act, 1867, Section 4. 51 The New Zealand Gazette, 1868, 6 March, 1868, p. 110-11. 52 The New Zealand Gazette, 1868, 3 March 1868, pp. 11 0-11. 53 The New Zealand Gazette, 1868, 19 August, 1868, p. 420.

27

That for the purposes of the Act now in recital the words, "due inquiry" in the said Order in Council should be deemed and taken to extend to inquires made and carried through by persons thereunto appointed by the Governor. And whereas by "The Commissioners' Powers Act, 1867," provision is made for enabling boards or commissions appointed by the Governor in Council to examine witnesses on oath, to require the production of books, papers, writings, deeds, and other documents, and to exercise the powers and authorities in the said last-named Act mentioned. 54

The powers of the Commissioners came from the Commissioners Powers Act,1867, a general piece of legislation to facilitate investigation of any issue the Governor chose. The Commissioner had the power to summon witnesses, require the production of records etc. as evidence and could fine those who refused to appear. Witnesses, not involved in prosecuting a claim, were entitled to expenses and individuals could be convicted for giving false evidence. However aside from the very general guidelines, the Commissioners were legally unfettered in how they went about hearings. Unlike the Native Land Court there was no requirement for open hearings, that records be kept, nor for the Commissioners to return land in any particular fashion. Most notably and in contradistinction with the Native Land Court there was no requirement that ownership be determined according to native custom.

While there were no apparent legal constraints, there is evidence that the Commissioners sought guidance from the Government, and tried as much as possible to emulate the Native Land Court systems. In general Clarke was free to make recommendations consistent with the powers given to the Governor under the Confiscated Lands Act 1867. Specifically he was requested to:

... undertake the duty of dividing that portion of the Confiscated Block outside the Katikati Puna purchase and the 50,000 acres to be retained by the Government as nearly as may be equitably among the Ngaiterangi, having regard to the shares which several hapu of that tribe have already received of the purchase money of Katikati Puna, and of the reserves in the District generally. In doing this you should if practicable obtain the general assent of the tribe to the proposed arrangements, and in order to afford no excuse to the Natives for future complaint, it would be desirable to suspend your final award for a period sufficiently long to enable you to report your proposals, and to allow the dissidents, if any, to forward their objections for the consideration of the Government.55

54 The New Zealand Gazette, 1868,8 July 1868, p. 354. 55 Halse, Assistant Under Secretary, to Clarke, Civil Commissioner, Tauranga, 29 June 1868, Letter book to Resident Magistrates and Civil Commissioners, Outward Letter books, MA 4/63, National Archives, quoted in Vincent O'Malley, The Aftermath of the Tauranga Raupatu, 1864-1981, p. 27.

The brief was almost impossible. It required Clarke to strive for equity in the return of lands so that punishment was equalised amongst Ngaiterangi. To consider were those who:

were loyal and had been granted lands in compensation for fighting • were loyal and had traditional lands taken from them in the confiscation • were loyal and did not have reserves (including some living on the lands to be

returned)

were surrendered rebels and had lost land in the 50,000 acre confiscated block • were surrendered rebels and had lost no land in the confiscated block • were unsurrendered rebels

28

This was despite the fact that the whole concept of the confiscation and the return cut across customary title by removing many from their traditional lands and attempted to give recompense by giving land in another area, where they had no traditional rights to the land, i.e. the process destroyed customary title and was based on the mistaken premise that all land was equal to all Maori.

The Commissioners' Powers vs. Powers of Native Land Court Judges

It is useful to contrast the powers ofthe Commissioners with those of the Native Land Court judges. The Commissioners were Native Department officials and their jurisdiction was in Tauranga only. They were allocating Crown land to a group of people, whose entitlements came either from being loyal allies or surrendered rebels, and to a lesser extent from customary title pre-dating hostilities. It was central to their existence that they correct the injustices created in previous government actions arising from the 50,000 acre confiscation and the 'purchases' of the Katikati-Te Puna blocks. The Commissioners could call witnesses and require evidence to be brought before them. Given that the land was technically Crown land, the Commissioners could probably issue certificates for that land. They could also no doubt make successions if an individual died even if it was a succession to a potential Crown grant.56 However, they could not partition land once a certificate had been created and could not adjudicate in disputes between owners, except with the express permission of the participants.

Regarding yours of 3rd instant, with reference to Te Makarini Tareha's request that you will settle the title to the Ante Block, subdivision of Wait aha.

In reply I am directed by Mr. Ballance to state that he agrees with you in thinking

56 LINZ (DOSLI) Hamilton, Tauranga Confiscation Papers, Folder 3118. Applications of succession lists of names submitted for various blocks at Mount. Maunganui; Raupatu Document Bank, Vol. 126, pp. 48315-38.

you have no authority as Commissioner of Tauranga District Lands to enquire into the matter. At the same time you are permitted by the government to make the enquiries as requested upon the distinct understanding that all the parties interested sign an agreement to abide by your decision, and not to raise questions hereafter as to your right to decide the ownership of the land. 57

29

The Commissioner could not refer on cases to the Supreme Court and there was no formal provision for any appeal, although rehearings were granted from time to time, albeit on the recommendation of the Commissioner. There is a question over the legal standing of the certificates of title given out by the Commissioners. It would seem that at best they were recommendations for land grants, on which the Governor (the Crown), at his discretion, could act or not act. In fact most certificates were converted into land grants ultimately, although the process of recording certificates was sufficiently haphazard, particularly as a result of the loss of Minute books by Commissioner Wilson, that it is possible that contradictory certificates were issued. There were many blocks that were investigated by more than one Commissioner and some that were investigated three times, because of a failure to complete the process on earlier occasions.58

Assessors

It was necessary for magisterial and native land administration of Maori dominated areas to involve local leaders in decision-making. While law courts and later the Native Land Court involved many Maori, special Maori assessors were appointed to advise the judges on Maori custom and sometimes to take part in any decision making process. The practice predated the wars and in Tauranga legal assessors were appointed in the early 1860s.

. .. some attempt had been made to establish government control over the region with the appointment of a Resident magistrate at Tauranga, with six 'Native Assessors' under him in villages around the harbour, and two at Maketu.59

Native Land Court assessors were appointed under the 1865 and 1880 Native Land Court Acts. It would appear that these same assessors were used by the Tauranga Commissioners, although Brabant, in particular, had the Department's permission to

57 MA 4/40, Micro 6596, T . H. Lewis, Under Secretary, to H. W. Brabant, Commissioner of Tauranga Lands, 3 September 1884, p. 686 (Document Bank, p. 102). 58 AffiR, 1886, GlO. 59 AJHR, 1862, E7, see also Stokes, Te Raupatu 0 Tauranga Maana, Vol. 1, p. 9. However, the author's examination of the Gazettes 1860-80 did not show any legal gazetting of Tauranga chiefs as legal assessors.

appoint others to advise him, and/or sit with him.60

Under section 12 of the 1865 Native Lands Act the Assessors were necessary for judicial decisions.

Every judge of the court acting with at least two Assessors shall have the same jurisdiction and may exercise the same powers as the Court in all judicial matters whatever under this Act Provided always that there shall be no decision or judgement on any question judicially before the Court unless the judge presiding and two Assessors concur therein.

Name of Assessor Locality District Initial Gazette

Enoka Te Whanake Whareroa, Tauranga Bay of Plenty 1868, p.484 Hori Ngatai Whareroa, Tauranga Bay of Plenty 1873,p.252 Hori Tupaea Tauranga Bay of Plenty 1879, p. 1761 Akuhata Tupaea Tauranga Bay of Plenty 1880, p. 46961

It would appear that these assessors were all N gaiterangi in origin and that N gati Ranginui were not represented as assessors.

Appeals

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The matter of appeals was difficult because of the limited legislative authority behind the process. In practice, letters requesting a rehearing were sent to the Minister of Native Affairs, who in turn referred them to the Commissioner. In terms oflegal justice this was a dubious practice, but given the complexities of the assessment of ownership and its interdependence with earlier Government actions in Tauranga, this was probably the only practical method, short of a maj or re-examination of the whole process.

I have the honour to acknowledge by direction of the Native Minister to acknowledge with thanks the receipt of your communication of the 5th instant - in which you report on the working of the Commissioner's Court, Tauranga, in consequence of appeals having been made by natives against your decisions.

In reply I have to inform you that Mr. Bryce has the utmost confidence that you devote care and attention to the hearing of claims brought before you, and is convinced that your decisions, so far as is possible, are just and equitable.

60 MA 4/32, p. 44, microfilm roll 6584, Lewis, Under Secretary to Brabant. Commissioner of Tauranga Lands, 18 May 1881 (Document Bank, p. 60). 61 All four Tauranga assessors were re-gazetted to be appointed under the Native Land Court Act 1880. See New Zealand Gazette, 1880, Vol. II, pp. 1545-6.

I have also to state that because a Native letter of complaint is referred to you for report, you must not suppose that Mr. Bryce sympathises with the complaint which has been made, and he is well aware you are in a better position than he is to estimate the value of an appeal against your decision.62

Appeals were at best infrequent and at the behest of the Commissioner.63

Brabant's letter

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To gain some insight into the working of the Commissioners, it is necessary to study the workings ofthe last Commissioner, H.W. Brabant, 1876-8 and 1881-6. It is fortunate that Brabant investigated by far the greatest part of the remaining lands, and returned it all, as set out in his 1886 report. The status ofthe process on his reappointment in 1881, was unclear because his predecessor J. A. Wilson's appointment had been terminated on the understanding that the Native Land Court would complete the task. Wilson, who was disgruntled at his dismissal as Commissioner and as a Native Land Court judge, refused to hand over his record books. Brabant was obliged to search out what certificates had been made up by the Surveyor General's Office, and inquire into hearings held by previous Commissioners.64

On his reappointment Brabant wrote a letter to the Under Secretary of Native Affairs in which he suggested several ways in which the operation of the Tauranga District Lands Act could be made more effective, and in the case of the Commissioner's 'Court', provide clear guidelines in law as to how the Commissioner should operate. The issues raised in the letter run right to the core of the Commissioner's role and demonstrates how rickety the legislative framework was. Brabant noted how the land to be returned to Tauranga Maori could be returned only after due enquiry. The enquiry had been undertaken by officers appointed by the Crown, and given that the land was Crown land by consequence of the confiscation, there may have been no legal constraints on the Crown, which obliged it to follow any particular method to determine to whom it would make land grants.

Maori customary land had to go before the Native Land Court to have title determined,

62 MA 4/33, micro 6587, p. 199, under Secretary to Brabant, Commissioner of Tauranga Lands, 18 May 1882. See MA 4/38, Micro 6595, also Under Secretary to Brabant, Commissioner of Tauranga Lands, 16 May 1884 (Document Bank, pp. 74-75, 100). 63 Micro 6595, p. 137, MA 4/38, See Under Secretary Native Affairs to Commissioner, 16 May 1884, and Micro 6587, p. 137, MA 4/38, See Under Secretary Native Affairs to Commissioner, 18 May 1883 (Document Banle, pp. 100). 64 LINZ (DOSLI) Hamilton, Tauranga Confiscation Papers, 4/24 Papers on Brabant's appointment as Commissioner of Crown Lands, Raupatu Document Bank, Vol. 126, pp. 48598-629. And in Vincent O'Malley, The Aftermath of the Tauranga Raupatu, 1864-1981, pp. 30-35.

but Tauranga land fell outside this definition. This raised the question of to what extent were the Commissioners obliged to follow Native Land Court procedures and what was the status oftheir actions when they did so.

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Brabant argued that the loose controls over the Commissioners left the door open for future claimants to argue that the process had excluded them, and that the best way to avoid this was to codifY procedure. Specifically Brabant asked that any law or regulation should oblige the Commissioner to sit in an open court, where procedures followed those of the Native Land Court. While it would appear that this was the case for most hearings, it is also clear that there were no constraints against Commissioners hearing cases as they saw fit. Brabant requested that all sittings be advertised with one month's notice being given of hearings into particular blocks and this raises the issue of how well hearings were advertised.

There was also no system to rehear blocks. Individuals could write to the Minister of Native Affairs and request a rehearing. It is clear that very few rehearings were undertaken. Probably as a consequence there were numerous petitions to the Crown by claimants who argued that they did not know of a hearing, or had been omitted from the list of owners.65 Those that petitioned Parliament may have only been a select few with the determination and faith in the system to go that far. Vincent O'Malley in his overview report lists 61 petitions by Tauranga Maori between 1873 and 1935, against various injustices arising out of the confiscation and return.66 Thirty-five of these were placed prior to 1886 and completion of the return of Tauranga lands. Many of them were from individuals excluded from lists of owners, e.g. Te Korowhiti Tuataka (Mrs. Douglas) who petitioned the Crown seven times over being left off various pieces of land. Ngati Ranginui petitions67 tended to focus on a request for land, because an inequitable confiscation had left many in that iwi landless.

Brabant was keen to be able to appoint Maori assessors in his own right, rather than via the Native Affairs Department. The Department on the other had was keen to ensure that all assessors were appropriate, and not to let assessors gain any status, equivalent to Commissioner.

With reference to your letter of the 6th instant on the subject of appointing a Native assessor to sit with you as Commissioner of Tauranga Lands, I am directed by Mr. Rolleston to inform you that if a formal appointment was made the Native appointed would have equal powers with yourself, which is not desirable, but you

65 Vincent O'Malley, The Aftermath afthe Tauranga Raupatu, 1864-1981, p. 100 and Appendix 1. 66 Vincent O'Malley, The Aftermath afthe Tauranga Raupatu, 1864-1981, Appendix 1. 67 See Vincent O'Malley, The Aftermath afthe Tauranga Raupatu, 1864-1981 Appendix I, see petitions ofR. Tahuriorangi and 136 (AJHR, 13, p. 19), George Hall and 9 others (AJHR, 13, 1921-2, p. 5. And G7, 1928, pp. 29-30).

are authorised to procure assistance as you wish it. 68

There had been very few appeals allowed against Commissioners' findings largely because any rehearing was simply in front of the same Commissioner. Brabant asked whether a rehearing could be heard by a temporary Commissioner, either alone or together with the original Commissioner.

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Throughout the process the Commissioners were frustrated by the fact that they had no legal authority to create roads as could be undertaken by the Native Land Court, and Brabant requested that some such authority should be given, and that there should be the power to give compensation where roads passed through cultivations.69 Brabant also believed that the Crown should charge for hearings, ifnot for the Commissioner's 'court', then for any rehearings.

Finally Brabant was keen to see that the Commissioner had some control over the tone of hearings. He wanted the power to ban the sale of liquor to Maori as had been given to Native Land Court judges under Section 64 of the Native Land Court Act 1880, and he wanted to be able to punish for contempt of Court.

Brabant to Minister (Draft of Brabant's suggestions for changes to the TDL Acts) 6 May 1881

Dear Sir

In response to the invitation of the Honourable Native Minister conveyed in his telegram of this days date I have the honour to make the following remarks and suggestions on the working of the Tauranga District Lands Acts 1867 & 1868.

By these acts a certain portion ofthe Tauranga Confiscated Lands were to be set apart for such persons of the Ngaiterangi tribe as should be determined by the Governor after due enquiry shall have been made.

The 'enquiry' required by the Act has always been made by an officer appointed from time to time by the government and called the Commissioner of Tauranga Lands - there is no direction in the Acts as to how the enquiry should be made, but the Commissioners, as far as I know, have always made it in an open Court and have more or less closely assimilated their practice to that of the judges of the

68 MA 4/32, p. 44, microfilm roll 6584 Lewis, Under Secretary to Brabant, Commissioner of Tauranga Lands, 18 May 1881 (Document Bank, p. 60). 69 MA 4/30, Micro 6581, pp. 365-6, Under Secretary to J. A. Wilson, Commissioner of Tauranga Lands, 11 October 1880 (Document BanIc, pp. 49-50).

Native Land Court - the cases coming before them for decision being similar in character. I submit that when such important interests are involved, the mode of proceeding with claims should be fixed by Act or by regulations made by the Governor for that purpose - and in particular the mode in which notice of interested investigations should be given so as to shut out future claimants, requiring in my opinion laying down authority. The practice of the different commissioners not having been in all aspects nor in any case authorised by law-

In case the Government should think the matter of sufficient importance to move thereon ... I beg leave respectfully to opine the following suggestions for an act or regulation

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The Commissioner should sit in open court to hear claims and should proceed as near as may be in accordance with the practice ofthe Native Land Court.

The Commissioner should give one month's notice of the sittings of his Court & of the names of the blocks to be investigated by circular address to the chiefs of the Ngaiterangi Tribe and by advertisement in a newspaper published at Tauranga and such should be deemed due notice for all parties concerned to attend the sitting.

The Commissioner should be allowed ifhe chose to approve with the approval of the Government an assessor to be with him and assist him in his investigations or in any particular investigation.

Any native aggrieved by the decision of the commissioner should be allowed two months of such decision to apply to the Government for a rehearing and if such a rehearing is granted by the government they should appoint a temporary Commissioner to hear the same, either alone or together with the Commissioner who heard the case.

The Commissioner should be allowed at his discretion to layoff roads through any claims investigated by him so that not more than 5 per cent of the land be taken for roads, provided that where any road goes through cultivations or [word indecipherable] the Commissioner may recommend a sum as compensation which if approved by Government should be paid to the persons decided to be the owners of the land.

It is a matter for consideration ofthe Government whether any fees should be claimed as in the Native Land Court - but a fee should at any rate be chargeable for a rehearing.

The government might confer the same power on the Commissioner as to forbidding the sale to natives of intoxicating liquors as is given by Sec

64 of the 'Native Land Court Act 1880' to the judge of that Court

The Commissioner should have power to punish for contempt of Court.

I have the Honour to be etc.

H. W. Brabant.

Native Office, Wellington 7th June ,188po

Brabant's letter received a minimal reply, in which it was made clear that the Government would prefer not to pass fresh legislation on Tauranga. Brabant was encouraged to 'assimilate' his practice to that of the Native land Court.'

Sir, I have the honour to acknowledge the receipt of your letter of the 18th ult., containing your remarks and suggestions on the working of the Tauranga District Lands Acts, 1867 and 1868.

In reply, I am directed by the Native Minister to state that he thinks it may be very undesirable to introduce fresh legislation on the matter, and that with regard to the point of the roads, it seems to him to be one which probably ought not now to be made the subj ect of an amending Act.

Respecting your other points referred to in your letter, Mr. Rolleston, considers that you can assimilate your practice to that of the Native Land Court without fresh legislation.

I have the honour to be Sir

Your most obedient servant T. W. Lewis

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70 LINZ (DOSLI), Hamilton, Tauranga Confiscation, Folder 26, Miscellaneous Papers 1879-1885, H. Woo Brabant, Commissioner of Tauranga Lands to T. W. Lewis, Under Secretary of Native Affairs, 16 May 1881 Raupatu Document Bank, Vol. 127, pp. 48652-701.

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Under Secretary.71

Kaitimako and Matakana decisions

When Brabant's report was published in the AJHR, listing the blocks dealt with by the Commissioners, his work was done. His description of what he had undertaken was exact and he made it clear that determination all matters relating to Tauranga lands was now the responsibility of the Native Land Court.

I have now completed the work of settling the titles to the lands returned to Ngaiterangi tribe under the Tauranga District Lands Acts, 1867 and 1868. The blocks that have been dealt with by me and by previous Commissioners are 210 in number, having a gross area of 136,191 acres. This is exclusive of the large Katikati-Te Puna purchase, of the compensation wards to loyal natives, and of the reserves made for surrendered rebels, and of the actually confiscated block.

The surveys of these lands have all been completed, and the certificates of investigation of title have been sent to your office, with the exception of three which are now being prepared.

Applications have been and are being received from natives for the subdivision of these lands, but these will be left for the ordinary operation of the Native Land Court after the Crown titles have been issued.72

The Commissioners' findings were later challenged in the Native Land Court, and it is here, rather than in the slight minutes and notes of the Commissioners, that we can see what the Native Land Court thought were the criteria for land grants, and how as a matter of principle the Land Court refused to enter into any revision of the original grants as published in the 1886 Appendices, arguing that the scope of the investigation was wider than the Native Land Court brief to investigate customary title, and that there were overwhelming practical difficulties associated with determining meaningful title.

Two cases seem to encapsulate the argument the Native Land Court presented to uphold the Commissioners' findings were both held in 1912, Umuhapuku No.1 on Matakana Island and Kaitimako A, B and C at Welcome Bay.

Umuhapuku No.1

71 LINZ(DOSLI), Hamilton, Tauranga Confiscation, Folder 26, Miscellaneous Papers 1879-1885, T. W. Lewis, Under Secretary of Native Affairs to H. W. Brabant, Commissioner of Tauranga Lands, 7 June 1881, Raupatu Document Bank, Vol. 127, pp. 48661-662. 72 AJHR, 1886, G 10, p. 1.

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On 14 February 1912, Matahou Te Waru on behalf of certain families with interests in Umuhapuku No.1, applied for an increase in the area for the families, on account of the fact that some had been omitted from the award in the first instance, in part because 'some were deliberately omitted by himself at the original enquiry at the instigation of his father - under a misapprehension he now states - and others were not born at the time.'

The Court made it clear that, even if it agreed with Matahou's contention, it was no longer practical to add others to the list of owners. Specifically the Court did not see itself as competent to alter the Commissioners' findings, ' it has of course no power to add names to the list', but the judge went on to comment on how Maori used their land and in so doing brought into question the whole practice of individualising title on all Maori land. 'if as suggested an additional award were made, there is no guarantee that those members of the families alleged to be omitted would benefit in any way. The persons getting the additional shares would in all probability treat them as their own.'

Now speaking generally as to whether or not shares should be equal this block is confiscated land returned by the Government to loyal natives or surrendered rebels as compensation for land taken from them on account of the rebellion. The following facts therefore must be admitted.

That all persons in the list or persons whose representatives they are were surrendered rebels or loyal natives.

1. That land had been taken from each one of them on account of the rebellion and

That they were all entitled to compensation.

The judge recounted that all native customary title was wiped out by the confiscation, and that while customary owners may have been placed on traditional lands, many others were as well, to compensate them for land lost elsewhere.

The land was granted as compensation and in the absence of any indication to the contrary the Court must hold that the intention was that every person in the list of owners should have a substantial interest in it, and it is on this basis that the shares will have to be allotted. It would seem that Mr. Brabant when sitting as Commissioner held some kind of enquiry as to the persons entitled according to Native Custom, but this was only, the court thinks, for the purpose of placing the Natives as far as could be done on the land they originally owned and thereby inflicting as little hardship as possible. That he did not intend that the original owners should take exclusively is shown by the number of outsiders included in the list.

The judge went on to declare all shares equal noting that there was no other practical way of dividing the land. This allocation was not intended to reflect customary title, except as one of several influences on the Commissioners, although the exact logic of the process

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was inaccessible due to a lack of records. The judge was dismissive of the claims of those who said they had been omitted from the award.

As to persons asserted by Matahou to have been omitted from the Block the Court doubts very much if there ever was any intention to include them. If they were entitled to compensation and made a claim at the proper time they probably got it elsewhere. In any case it is too late now to make a claim for compensation on their behalf. It would seem, however, that the majority ofthem were absent from the District at the time the compensation Court (sic) sat and that they were deliberately left out.73

There are two points here of interest. The first is that the Native Land Court thought it was reasonable to exclude those with customary title who dwelt outside the district, and secondly he refers to sittings of the' compensation (sic) Court'. Given that the Compensation Court set up under the 1863 New Zealand Settlements legislation, never heard cases on Tauranga lands, it would seem that he is referring to the Commissioners' hearings. If this was the case then there was no time limitation for compensation for land grants under the Tauranga District Lands Acts 1867 and 1868, because there were no formal provisions for how the Commissioners were to determine cases.

This distinction between customary owners and those who were given title as compensation created friction on some Tauranga lands and was the subject of controversy when it came to the partition of land. In the bid to partition Umuhapuku, No.1, late in 1912, the judge commented on this bitterness.

The Court would like to add that the disputes with respect to this block seem to have arisen solely because a small minority of owners, who would probably be entitled according to Native Custom if the land had not been confiscated, refuse to recognise the exact position and the fact that it was returned by the Crown as compensation to the persons in the list of owners. 74

Kaitimako No.1 Block

The logic of this application was the inverse of Umuhapuku, i.e. one of those individuals whose rights to the land was created by the Commissioners, applied to have all rights officially declared equal. N garino Tutahi applied to have the shares in the block declared equal, which was opposed by some of those who would have customary right to the

73 Tauranga Maori Land Court minute book, Vol. 7 (1912), pp. 134-6, Umuhapuku No.1 Partition (Document Bank, pp. 136-43). 74 Tauranga Maori Land Court minute book, Vol. 7 (1912), Umuhapuka No.1 Partition, Tu Mauae's claim: Decision, pp. 157-9. See Stokes, Te Raupatu 0 Tauranga Moana, Vol. 1, pp. 157-9.(Document Bank, pp. 136-43).

land.75 The Court restated the position with regards the confiscation. He then stated the case of the customary owners.

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It [Kaitimako A] was originally awarded to 53 persons. Eleven of these persons or their representatives now corne forward and claim that they are entitled according to native custom to half the Block or 235 acres leaving half for the other 42 persons. They assert that the native 'takes' were investigated by the Commissioner and that they are entitled according to Native custom and that the others have no right by occupation.

The judge commented on how little record remained of the decision-making process, but upheld the logic of it anyway.

Although there is practically no information in the Commissioners' minute book as to its nature, there is no doubt that some kind of enquiry was held with the result that the land was awarded to all the claimants and counter claimants. The following facts were admitted before this Court, viz., that the Block originally belonged to a certain section ofN'Hei (sic He) a hapu ofNgaiterangi, that the lands ofN'Hei (sic) were confiscated with the rest of the Ngaiterangi lands, that a portion only ofN'Hei (sic) lands were included in the areas set apart for Native occupation, and that all persons to whom the Block was awarded by the Commissioner belonged to N' Hei (sic). The intention was without doubt that those ofN'Hei (sic) who have been included on the list passed by the Commissioner should participate in the award. Many of them would probably have no right by occupation but nevertheless, for the reasons before stated, the Court must hold that they are entitled as much as the others to share in the Block. There is therefore no other course open to the Court but to declare the interests to be equal. This in the Court's opinion is the only fair way of defining them.76

At no time did the Native Land Court go behind the Commissioners' awards, because to have done so would have opened up issues that would have been very difficult to contain. Moreover, because of the poor records kept, it was impossible to second guess the exact logic of the commissioners on any individual block. The inviolable status of the Commissioner's awards was restated as recently as 1981 in Isobel Lee's attempt to gain the return of Tuhua to the customary owners.77

75 See Roimata Minhinnick, Report Kaitimako Band C (Wai 465, AI, Report commissioned for the Waitangi Tribunal 1995). 76 Tauranga Maori Land Court minute book, Vol. 7 (1912), Kaitimako No.1 Block, Definition of Relative Interests, pp. 359-61 (Document Ban1e, pp. pp. 133-35). 77 Evelyn Stokes, T Raupatu 0 Tauranga Moana, Vol. 1, p. 145.

Section 3: Conclusion

The decision to use Commissioners instead of the Native Land Court was taken by Government when it passed the Tauranga District Lands Act in 1867. By that time the confusion arising out of contradictory policies of the Governor and the Government, dating back to the time of the defeat, had created a serious situation that threatened the peace in Tauranga. The tension in confiscation policy was between the Whitaker-Fox Government and Governor Grey. Whitaker and Fox were determined to confiscate more than the 50,000 acres Grey would allow. Whitaker and Fox's policy led to the enforced purchase of the Katikati-Te Puna block.

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The initial cession was replaced by a botched confiscation of the lands of 'Ngaiterangi'. Without a declaration of the confiscation of all Tauranga lands, someone would have had to determine which were Ngaiterangi lands and which belonged to other iwi. Such a determination would have frustrated the confiscation of anyone block of land and made the policy of creating a military settlement untenable.

It was not initially intended that there would be substantial reserves in the confiscated block or within the Katikati-Te Puna purchase. In both cases Mackay and Clarke, the two officials on the ground, had to make concessions to Maori to keep the peace, as well as hold out the incentive that any inequities caused by the confiscation and enforced purchase of Katikati-Te Puna lands would be rectified in the return ofthe remainder of the lands. This meant that there was an active duty of the Crown to rectify the injustices created by Government policy 1864-7. The effect of the Tauranga District Lands Act 1867 was not only to legalise 'all grants, awards, contracts or agreements' made in the district, it also necessitated the appointment of an individual or individuals to undertake 'due enquiry', which by this stage meant to sort out the travesty of justice that had been the result of the confiscation and enforced purchase. The Act also unequivocally stated that the lands denoted within the schedule were all confiscated and Crown land, which removed the possibility that only Ngaiterangi lands within the confiscation would be affected.

The only way to equalise punishment across Tauranga Maori was to give substantial recompense to those who had lands confiscated, i.e. mainly Ngati Ranginui hapu, at the expense of the customary owners of the remaining land - mainly Ngaiterangi hapu. The task was always going to be administratively complex, because of the large number of claims stemming from customary ownership, and the injustices created by previous government policy.

There was no specific legislation that governed the process although the Commissioners held office under the Commissioners Powers Act and were recommending action to the Governor under the Confiscated Lands Act, 1867. In adopting a Native Land Court-type process the Commissioners failed to address their duty to actively seek out those who had received unjust treatment arising out of government action in the post-war period. The

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determination of grants was very slow, partly due to the continued tensions in and around the Bay of Plenty but also because of a lack of government will to support determined progress. There were few records of the earlier dealings with Maori and few kept of the work of the early Commissioners Clarke and Mair. This inadequacy was exacerbated by l.A. Wilson's refusal to hand over his records and led to frequent rehearings whereby a previous Commissioner's work was reinterpreted. Moreover the final Commissioner, Brabant, left a totally inadequate record of the reasoning behind his determinations. Given Brabant's realisation that the process lacked a substantial legal entrenchment, this must be seen as a deliberate attempt to make his determinations unimpeachable. This was certainly how subsequent Native Land Courts dealt with the numerous complaints the process created.

The acid test of the effectiveness ofthe 'return' would have to be the fortunes ofthose Ngati Ranginui hapu whose land was confiscated in the 50,000 acre confiscation. Numerous subsequent appeals by landless Ngati Ranginui hapu clearly indicates that in following a Native Land Court model the Commissioners failed to address meaningfully the inequity of the initial confiscation.78

The Commissioners were all Maori speakers. Clarke, Wilson and Mackay (the latter was not a Commissioner, but did help determine the land reserved for Maori on the confiscated 50,000 acre block and in the Katikati-Te Puna purchase lands.) were the children of early settlers, who had learned the language while growing up in Maori dominated districts. Brabant learned as an adult. All these men had a basic secondary education and a background of military service in troops fighting against various Maori iwi. This experience can hardly have induced a great sympathy for Maori and was reflected in their general inability to concern themselves with the ethics or legality of the inequitable process they were involved in. Wilson and Mackay, in particular, were elsewhere implicated in coercive tactics to separate Maori from their lands. None ofthe Commissioners kept adequate records of their hearings, and only Brabant recognised any obligation to do so, although even he left the reasons behind his determinations out of his records.

In short, the return of Tauranga lands under the Commissioners was a political charade designed to appear to address the admitted injustices arising out of confiscation - at the same time ignoring the injustice of the confiscation itself. As a process it was ineptly conceived, poorly handled, and unreasonably drawn out. In total it proved an administrative disaster that left the majority of Tauranga Maori dispossessed andlor alienated from much of their customary land.

78 See O'Malley, The Aftermath afthe Tauranga Raupatu, 1864-1981, part C, pp. 96-133, and appendix 1, particularly petition ofR. Tahuriorangi and 136 others 1915; George R. Hall and 9 others 1920, N .B. Hall in particular made numerous approaches to government for land for his people.

Bibliography

Published

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