Waitangi Tribunal Kaipara Report

The Waitangi Tribunal has today released its district report on the Kaipara area. The report covers 14 individual claims stretching from Dargaville down the West Coast to Muriwai, and from Mangawhai on the East Coast to Riverhead on the Waitemata harbour.

The report gives an overview of Kaipara geography and history to provide a context for its findings. After establishing the centrality of the harbour in Kaipara geography, it describes the major Maori groups living around
it.

The Tribunal identifies as generic issues those that featured in almost all Kaipara claims. These included:

the administration of old land claims;

Crown purchase policies before 1865, including provision of reserves for Maori and promises of future benefits for Maori as an inducement to sell;

the operation of the Native Land Court, including a 10-owner system, succession, and the effects of the tenurial revolution that created individual, disposable interests in land for Maori; and

`take raupatu' - rights derived from conquest.

This report includes findings on the Crown's purchase of land around the Mangawhai Harbour in 1854, the operations of the Native Land Court and Land Sales in southern Kaipara from 1864 to1900.

During the late nineteenth century the Court determined title to almost 130,000 acres of Maori land in southern Kaipara, of which almost 115,000 acres had passed out of Maori hands by 1900.

The Tribunal inquired into and made findings on claims relating to the Woodhill Forest. The Crown acquired much of the 36,000 acre forest area from Maori during the 1920s and 30s.

The Tribunal concluded that claimants were prejudiced by numerous breaches around these issues and that several breaches to articles 2 and 3 of the Treaty of Waitangi had occurred.

The Crown has already acknowledged many of these generic issues in the Te Uri o Hau Claims Settlement Act 2002 as constituting breaches of the Treaty of Waitangi. The Tribunal finds that all Kaipara claimants, not just Te Uri o Hau, were prejudiced by these breaches.

The Tribunal finds that the Ngati Whatua o Kaipara claim (Wai 312), and four other southern Kaipara claims, are well founded.

This report also contains a minority opinion from one of the Kaipara Tribunal members, Dr Michael Bassett.

Dr Bassett states that generally the Tribunal's `report does not grapple adequately with the overall historical background to these claims. While the Crown failed Maori in several respects, many Maori failed their own descendants with actions they took during the nineteenth century'.

Notwithstanding these reservations, Dr Bassett agrees with the Tribunal's recommendations for a comprehensive southern Kaipara Treaty settlement. He favours `a settlement on a pro-rata basis that would not disadvantage Maori in southern Kaipara in comparison with Te Uri o Hau'.

Notes:

Due to the complex nature of the evidence it is advisable to consult the executive summary attached and the website. Chapters 1, 11 and 13 of the Kaipara Report are available on the Tribunal's website, http://www.waitangi-tribunal.govt.nz/reports/northislandnorth/kaiparareport/

The full report will be published shortly by Legislation Direct.

Tribunal Kaipara report Executive Summary

The Claims

The Waitangi Tribunal report covers the following Kaipara claims:

Wai 121, a claim by Môhi Manukau on behalf of the Manukau Mâori Trust Board;

Wai 244, a claim by the late Lucy Palmer and Patuone Hoskins on behalf of the Ngâti Wai Trust Board;

Wai 279, a claim by Eriapa Uruamo on behalf of the descendants of Pâora Kâwharu and Aperahama Uruamo;

Wai 312, a claim by Takutai Wikiriwhi and others on behalf of the whânau and hapû of Rçweti, Haranui, Araparçra, Puatahi, and Kakanui Marae;

Wai 470, a claim by Hariata Ewe and Te Wârena Taua on behalf of Te Kawerau a Maki;

Wai 508, a claim by Whititerâ Kaihau on behalf of Ngâti Te Ata;

Wai 619, a claim by Waimârie Bruce and others on behalf of Ngâti Kahu o Torongare/Te Parawhau;

Wai 620, a claim by the late Colin Malcolm and others on behalf of Te Waiariki/Ngâti Kororâ;

Wai 632, a claim by Garry Hooker and Alex Nathan on behalf of Ngâti Whiu and Ngâti Kawa hapû of Te Rôroa;

Wai 688, a claim by Te Raa Nehua and others on behalf of Ngâ Hapû o Whângârei;

Wai 697, a claim by Rangitâne Marsden on behalf of the Marsden whânau;

Wai 733, a claim by the late Tauhia Hill on behalf of the Ôtakanini Tôpû, a Mâori incorporation;

Wai 756, a claim by Lou Paul on behalf of Te Taoû; and,

Wai 763, a claim by Margaret Mutu on behalf of the Kapehu Trust.

In the opening chapter, the report outlines the Kaipara inquiry district and the history of the Kaipara inquiry, and lists claims considered. In chapter 2 it provides an overview of Kaipara in the nineteenth century as the background to its consideration of Kaipara claims. In chapter 3 it considers first the Mâori concept of take raupatu as a basis of claim, before addressing the Treaty breaches which were acknowledged by the Crown in the Te Uri o Hau Claims Settlement Act 2002 and which apply to all Kaipara claims. It calls these acknowledged breaches ‘generic issues’. They include:

the administration of old land claims;

Crown purchase policies before 1865, including provision of reserves for Mâori and promises of future benefits for Mâori as an inducement to sell; and

the operation of the Native Land Court, including the 10-owner system, succession, and the effects of the tenurial revolution that created individual, disposable interests in land for Mâori.

For completeness, chapter 3 concludes with a brief account of relevant aspects of Mâori land administration in the later nineteenth and twentieth centuries.

Chapters 4 and 5 considers the claims relating to the northern margins of the Te Uri o Hau ‘area of interest’ as defined in the settlement deed. These claims are Wai 632 (Te Rôroa), Wai 688 (Ngâ Hapû o Whangarei), Wai 619 (Ngâti Kahu o Torongare/Te Parawhau), Wai 620 (Te Waiariki/Ngâti Kororâ), and Wai 244 (Ngâti Wai). Chapter 4 deals with the old land claims deriving from pre-Treaty transactions between Mâori and Pakehâ on the Wairoa River in northern Kaipara, and the ‘cession’ of Te Kopuru block following a raid, or muru, on Thomas Forsaith’s store at Mangawhare, Dargaville. Chapter 5 deals with transactions involving lands around Mangawhai Harbour on the eastern coast.

In chapters 6 to 11, the report considers the claims relating to land in southern Kaipara. These claims are Wai 312 (Ngâti Whâtua), Wai 733 (Otakanini Lands), Wai 279 (Uruamo Whanau), Wai 756 (Te Taoû), Wai 121 (Manukau Whânau), and Wai 470 (Te Kawerau a Maki). Chapters 6 to 8 deal with issues arising out of land transactions in the nineteenth century. Chapter 6 addresses the Ngâti Whâtua concept of an ‘alliance’ with the Crown, before dealing with Crown purchases in southern Kaipara up to 1865, including an old land claim at Kaukapakapa. Chapter 7 deals with the establishment of the Native Land Court and its operation in Kaipara up to 1900. Chapter 8 deals with the gifts of land by Ngâti Whâtua to the Crown for public purposes in Helensville, and for the Kaipara railway and roads. This chapter concludes with a review of the impact of land sales on Ngâti Whâtua by 1900. Chapter 9 deals with issues relating to reclamation of the sand dunes along the western coast, and the development of Woodhill Forest from the 1920s. Chapter 10, provides an overview of Kaipara Mâori communities in the twentieth century, focusing on the social and economic impact of land loss and responsibility for this. Chapter 11 sets out the Tribunal’s overall findings and recommendations on the southern Kaipara claims. This begins with the major Wai 312 claim of Ngâti Whâtua, and then deals with the other claims in turn.

In chapter 12, the report deals with wider nineteenth-century constitutional issues. These were raised by the Wai 121 and Wai 508 claimants in relation to section 71 of the Constitution Act 1852, and by the Wai 733 and Wai 312 claimants in relation to Mâori representation.

Land and People of Kaipara

The report gives an overview of Kaipara geography and history to provide a context for its findings. After establishing the centrality of the harbour in Kaipara geography, it describes the major Mäori groups living around it (see Figure 6: The tribes of Kaipara, p 12 below). It recounts how most of Te Roroa, Te Uri o Hau, Te Taou, Ngati Whatua Tuturu, Ngati Rongo, and Kawerau a Maki fled Kaipara after the slaughter at Te Ika a Ranganui in 1825.

These Kaipara groups began to return to their homelands at about the same time when Pakeha first arrived there, just before the signing of the Treaty at Waitangi. The Surveyor-General in 1842 recorded over 500 Mäori, and approximately 21 adult Europeans, living around the harbour. The Kaipara Mäori population remained relatively stable for the next 25 years. On the other hand, European settlers began to outnumber Kaipara Mäori as early as the 1860s.

Generic Issues in the Kaipara Claims

The Tribunal identifies as generic issues those that featured in almost all Kaipara claims. These included ‘take raupatu’, or rights derived from conquest; pre-Treaty transactions, or ‘old land claims’; Crown purchases before 1865; Crown failure to ensure retention of sufficient Mäori land; and the individualisation of Mäori land as facilitated by the Native Land Court.

On ‘take raupatu’, the Kaipara Tribunal finds that a single military defeat at Te Ika a Ranganui in 1825 did not extinguish the land rights of the Kaipara groups who subsequently returned. The Crown acknowledged the remaining generic issues (above) in section 8 of the preface to the Te Uri o Hau Claims Settlement Act 2002 as constituting breaches of the Treaty of Waitangi. The Tribunal finds that all Kaipara claimants, not just Te Uri o Hau, were prejudiced by these breaches.

The Kaipara report summarises the Muriwhenua Land report’s 1997 findings on pre-Treaty transactions. It describes the specific Kaipara transactions in chapters 4 and 6. Pre-1865 Kaipara Crown purchases followed a consistent policy of extinguishing ‘native title’ over large areas. The Chief Land Purchase Commissioner instructed John Rogan, the key Kaipara Crown purchase agent, to set aside ‘ample’ reserves for Mäori. But, as Rogan later declared, ‘I purchased nearly the whole Kaipara district’, leaving little land for Mäori. On the other hand, the Tribunal finds that the Crown made ‘general promises of future benefit . . . to Kaipara Mäori, and that as a result the Crown did take on some responsibility to try to ensure that Mäori benefited from colonisation’.

Kaipara was the first area in which the Native Land Court began, in 1864, the gradual process of individualising title to Mäori land. The Tribunal finds that such individualisation ‘had no basis in Mäori custom’. This process even went beyond statutory requirements, for example, with regard to individual rules of succession to Mäori land. Mäori frequently complained that the way Native land legislation created ‘individual disposable property interests’ undermined customary community control over land. Individualisation accelerated the alienation of Mäori land, leaving whole communities without the means to object.

Crown administration of Mäori land during the twentieth century attempted to solve some of the problems created by rampant individualisation. Crown-created land boards tried to consolidate fragmented individual holdings for development purposes. In southern Kaipara, however, the local land board leased the only substantial remaining Mäori land at Otakanini to Europeans for almost half a century.

Old Land Claims in Northern Kaipara

Three related rangatira negotiated key pre-Treaty transactions in the northern Kaipara-Wairoa area. Tirarau, Parore and Paikea each sought to engage Europeans in the kauri trade that flourished during the nineteenth century. While the rangatira accommodated many of these Europeans on the land, cultures occasionally clashed.

Local Mäori, in 1842, pillaged, or muru’d, Thomas Forsaith’s store at Mangawhare (near today’s Dargaville) in retaliation for his alleged trading in human remains. The Crown prevailed upon Tirarau to cede several thousand acres at Te Kopuru (some distance from Mangawhare) as punishment. Te Roroa hapu Ngati Whiu/Ngati Kawa (Wai 632) claimed before the Tribunal that they never consented to this cession.

The Tribunal finds that the Crown failed to inquire properly into the circumstances surrounding the 1842 Mangawhare muru, and that its cession of Te Kopuru was a ‘penal infliction’ without an adequate investigation of ancestral rights to the land there. The Tribunal finds that Ngati Whiu/Ngati Kawa ‘held undefined but not exclusive interests’ at Te Kopuru, and were therefore prejudiced ‘to some extent’ by the Crown’s action.

Ngati Whiu/Ngati Kawa claimed they were similarly prejudiced by the Crown’s later acquisition of Whakahara and Tokatoka on the eastern side of the Wairoa. Again, the Tribunal finds that the Crown failed to inquire properly into ‘the Whakahara pre-Treaty transaction and that this breaches good faith and the guarantee of protection provided in the Treaty of Waitangi’. Just as at Te Kopuru, the Tribunal finds that Ngati Whiu/Ngati Kawa interests were prejudiced by Crown actions at Whakahara and Tokatoka.

The Tribunal recommends that the Crown take both its Mangawhare/Te Kopuru and its Whakahara/Tokatoka findings into account in its current Treaty negotiations with Te Roroa. Te Roroa, it turns out, signed a deed of settlement with the Crown on 17 December 2005 (after the Tribunal report went to press).

The extensive Elmsley-Walton old land claims at Omana (approximately 20km east of today’s Dargaville) resulted in the Crown acquiring almost 5,000 acres of ‘surplus land’ during the nineteenth century. Surplus land acreage was the difference between what the Europeans claimed to have purchased from Mäori before the Treaty, and the acreage the Crown subsequently decided to grant them. Ngä Hapu o Whangarei (Wai 688) claimed before the Tribunal that Mäori never consented to the Crown’s acquisition of any surplus land.

The Tribunal finds that the Crown’s acquisition of surplus land was a breach of its guarantee of land rights in article 2 of the Treaty. Consequently, this aspect of the Wai 688 claim is well founded. But as this was only one aspect of the larger Wai 688 claim, the Tribunal makes no recommendation on a possible remedy.

The Mangawhai Transaction

The Crown’s purchase of land around the Mangawhai harbour (south of Whangarei) in 1854 was the subject of claims by Ngati Wai (Wai 244), Ngati Kahu o Torongare/Te Parawhau (Wai 619), Te Waiariki/Ngati Korora (Wai 620), and by Ngä Hapu o Whangarei (Wai 688). The Mangawhai Crown purchase had also been subject to earlier Te Uri O Hau claims, and it was included in the terms of the Te Uri o Hau Claims Settlement Act 2002. A particularly distinctive feature of the 1854 Crown purchase was the fact that the deed stated that 10 per cent of the proceeds of the resale of Mangawhai land was to ‘be expended for the benefit of the Natives’.

The Tribunal finds in relation to the Wai 244 Mangawhai claim that the ‘Crown land purchase officer John Johnson made a conscientious effort to investigate the complex ancestral claims’ there in 1854. While the Crown failed to set aside Mangawhai reserves, the Tribunal sees no evidence that Mäori requested them. The Tribunal finds that the Crown’s evident failure to pay into the promised 10 per cent endowment fund after 1874 prejudiced the hapu and descendants of the original signatories, including Ngati Wai. To this extent, the Tribunal finds Ngati Wai’s claim to be well founded. But as this was only one aspect of the larger Wai 244 claim, the Tribunal makes no recommendation on a possible remedy.

The Wai 619 and Wai 620 claims were presented by Ngä Puhi hapu. They asserted their rights at Mangawhai largely upon the basis of ‘take raupatu’ deriving from the victory at Te Ika a Ranganui in 1825. They claimed that the Crown ignored these rights in its 1854 purchase. The Tribunal finds that both of these claims are not well founded with regard to the Mangawhai Crown purchase.

The Wai 688 Mangawhai claim, on behalf of Ngä Hapu o Whangarei, made specific references to Tirarau’s participation in the 1854 purchase, and to the cumulative effect of this and other neighbouring purchases. Wai 688 claimed that the cumulative effect of widespread Crown purchasing in northern Kaipara was to deprive Mäori of sufficient land for their foreseeable needs.

The Tribunal finds that the Wai 688 claimants were not prejudiced by the 1854 Mangawhai Crown purchase. It finds that they were prejudiced by the cumulative effect of other northern Kaipara Crown purchases.

Since all the above Mangawhai claims represented only a small part of the totality each of the Wai 244, Wai 619, Wai 620, and Wai 688 full range of claims, the Tribunal makes no recommendation on remedial action.

Land Transactions in Southern Kaipara 1840-65

Ngati Whatua o Kaipara ki te Tonga (Wai 312) presented the most comprehensive southern Kaipara claim. Its ‘two interrelated threads’ were that Ngati Whatua entered into an ‘alliance’ with the Crown in 1840, but the Crown left them ‘effectively landless’ by 1900. Other Kaipara claims on behalf of the Manukau whanau (Wai 121), the Uruamo whanau (Wai 279), Te Kawerau a Maki (Wai 470), Otakanini Topu (Wai 733) and Te Taou (Wai 756) advanced arguments regarding landlessness, but did not argue the same sort of ‘alliance’ with the Crown.

The Tribunal considers that the Wai 312 ‘alliance’ argument suggested ‘mutual obligations . . . over and above those already implicit in the Treaty’. The Tribunal does not accept that the Crown ‘might have greater obligations to Ngati Whatua than to other iwi or hapu’. The Tribunal finds that it is ‘not required to consider any alleged relationship beyond the terms of the Treaty itself’. It is therefore not persuaded that the claimed ‘alliance’ should colour its views of Crown actions in Kaipara.

The Tribunal finds that the Crown’s purchase of over 130,000 acres in southern Kaipara before 1865 was ‘not excessive in that the areas purchased were largely determined by the rangatira involved, who were actually encouraging Päkehä settlement’. The Tribunal finds that although the Crown made general statements about the benefits of these purchases for Mäori, it finds no substantive evidence about any specific promises.

On the other hand, the Tribunal finds that the Crown failed to protect reserves from alienation, as acknowledged in the Te Uri o Hau Claims Settlement Act 2002. The Crown in that Act admitted that its failure to set aside and protect such reserves for Te Uri o Hau was a breach of the principles of the Treaty. The Kaipara Tribunal finds ‘that Ngati Whatua were similarly prejudiced’.

7 Operations of the Native Land Court and Land Sales in Southern Kaipara 1864-1900

The Tribunal examines the operations of the Native Land Court in southern Kaipara in response to the Wai 312 claim that the Court facilitated the alienation of much of the Mäori land remaining after 1864. During the late nineteenth century the Court determined title to almost 130,000 acres of Mäori land, of which almost 115,000 acres had passed out of Mäori hands by 1900.

The Tribunal finds that the Native land legislation setting up the Court ‘imposed a tenurial revolution on Kaipara Mäori, without consultation or their consent . . .’ In effect, this deprived them of community control of their lands. The governing legislation ‘generally failed to prevent the loss of communally held land . . . that might have provided a base for the future benefit of Kaipara Mäori communities’.

The Tribunal finds that legislation governing Court operations also encouraged direct private purchase of individual interests. This created a free market in Mäori land without providing prospective vendors with the necessary knowledge, independent legal advice and expertise to take advantage of it. The Tribunal finds that in this ‘the Crown failed in its fiduciary duty, set out [in 1839] by Lord Normanby . . . and in the [Treaty] guarantees . . . to protect Mäori interests and ensure that a sufficient land-base was reserved for the present and future needs of Kaipara Mäori communities’.

The Crown acknowledged the prejudicial effects of Native land laws, of the alienation of reserves, and of the loss of control over land in the Te Uri o Hau Claims Settlement Act 2002. The Kaipara Tribunal finds that Ngati Whatua in southern Kaipara were similarly prejudiced.

Land Donations and the situation of Mäori in southern Kaipara by 1900

Several claims, including Wai 121 (Manukau whanau), Wai 312 (Ngati Whatua o Kaipara) and Wai 756 (Te Taou), maintained that Mäori had gifted, not sold, the Helensville Courthouse reserve in 1864. The Tribunal finds that, indeed, Ngati Whatua gifted this 10 acre reserve to the Crown. It finds, in addition, that during the twentieth century the Crown transferred a one acre Mäori Reserve within this 10 acres to the local authority in spite of Mäori opposition. ‘This was [according to the Tribunal]a breach by the Crown of the Treaty duty to act reasonably and in good faith toward Mäori’.

While most of the original 10 acres has remained in public ownership, part of this area was subsequently transferred to private ownership. The Kaipara Tribunal finds that this subsequent transferral ‘was a breach of the original terms of the gift, and a breach by the Crown to act reasonably and good faith towards Mäori’.

Wai 279 (Uruamo whanau) and Wai 312 claimed that Ngati Whatua gifted land in 1871 for the Kaipara railway between Riverhead (on the Waitemata harbour) and Helensville. The Tribunal finds insufficient evidence to support the argument that the Crown promised Mäori free passage on this railway for three years after its opening in 1875. On the other hand, the Tribunal finds that the Crown promised, and generally failed to provide, reserves and accommodation for Mäori at both ends of the line. The Crown thereby ‘failed to act reasonably and in good faith towards Ngati Whatua’. The Tribunal finds also that if any land taken for the Woodhill deviation from Te Keti A is no longer required for public purposes, it should be returned to the Te Keti owners without cost to them.

The Tribunal considered claims about land taken for public roads at both Puatahi and Otakanini. In this regard, the Tribunal finds ‘that the legislative provision allowing up to 5 percent of a block of Mäori land to be set aside without compensation meant that an undefined area of land was donated by Ngati Whatua for public uses, in addition to the donations of the Helensville courthouse reserve and Kaipara railway land’.

Southern Kaipara Mäori and the Woodhill Forest

West coast sand-dune reclamation and the subsequent establishment of the Woodhill Forest loomed large in twentieth century southern Kaipara claims (see Figure 35: Woodhill Forest, p 13 below). The Crown acquired much of the 36,000 acre forest area from Mäori during the 1920s and 30s. The 9,000 acre Puketapu area acquired contained four urupa reserves. The proprietors of the Otakanini Topu incorporation in 1969 leased 1,682 acres of Mäori land to the New Zealand Forest Service. Wai 312, Wai 279, Wai 756 and Wai 733 all raised issues in regard to these Crown actions.

The Tribunal finds with regard to the Wai 312 claims about Puketapu that the Crown’s sand-dune reclamation there was necessary for the protection of farms, roads, the railway, and the Kaipara river. The Crown, however, acquired the Puketapu area without considering alternatives to outright alienation. It also acquired the urupa reserves, instead of gazetting them as Mäori reserves, and allowed the forest service to plant pines on them, in breach of its Treaty obligations to protect Mäori interests.

With regard to Wai 312 and the Woodhill forest, the Tribunal finds that the Crown denied Mäori a legal right of access to their west coast kaimoana through the forest. The Tribunal finds that the Crown’s restructuring of the Forest Service during the 1980s ‘failed to assess the social and economic impacts . . . [specifically to assess] the effects of closing down the Woodhill forestry village, and did not consult with Ngati Whatua’.

The Tribunal finds in relation to Wai 279 (Uruamo whanau) claims that the Crown paid compensation for land taken from Te Keti A and from Kopironui owners, but not for that taken from Te Keti B owners. The land taken from Te Keti A for sewerage treatment is no longer required for public purposes. The Tribunal recommends that it ‘should be returned to the owners [of Te Keti A] . . . at no cost to them and the pipeline easement should be uplifted’.

The Tribunal finds that the Wai 470 (Te Kawerau a Maki) and Wai 756 (Te Taou) issues with regard to Woodhill Forest are identical to those advanced by Wai 312. It makes general findings on both Wai 470 and Wai 756 in chapter 11.

The Tribunal finds, in relation to the Wai 733 (Otakanini Topu) claim that it has ‘not been persuaded that the Otakanini Topu and its shareholders have been prejudiced by Crown action or inaction concerning the Woodhill Forest’. Just as with Wai 470 and 756, the Tribunal makes general findings on the Wai 733 claim in chapter 11.

Southern Kaipara Mäori in the Twentieth Century

After assessing the changing fortunes of the five surviving Mäori communities in southern Kaipara (Haranui, Reweti, Puatahi, Araparera and Kakanui), the Tribunal examines the extent to which landlessness explains their current problems. It also examines the extent of Crown responsibility in both landlessness and current problems.

From the evidence before it, the Tribunal concludes that all five communities suffered from poverty and deprivation during the twentieth century. Widespread poverty made Mäori even more likely to alienate their already depleted landholdings. At the same time, the Tribunal sees no simple cause and effect relationship between landlessness and poverty. ‘There is more to community prosperity and well-being than the possession of land. Other important factors in this equation include the quality and location of land, suitable productive uses of it, tenure, management structures to promote development, and access to capital and skills to assist development’.

Conclusions on the Southern Kaipara Claims

For Ngati Whatua o Kaipara (Wai 312) the Tribunal makes general findings on the socio-economic impact of land loss. The Tribunal finds that Ngati Whatua participated enthusiastically in the emerging colonial economy after 1840, and willingly sold the Crown land to encourage Päkehä settlement. The Crown’s imposition of individualised land tenure after 1864 ‘undermined the traditional social; and economic structure of Mäori communities’. The alienation of most Ngati Whatua land by 1900, and dwindling economic opportunities, left Kaipara Mäori communities outside the mainstream of economic development. By the mid-twentieth century many Ngati Whatua had moved to Auckland in search of education and jobs. The Crown’s restructuring in the 1980s and 90s caused further loss of local employment in southern Kaipara.

Accordingly, the Tribunal finds: ‘The legacy to Ngati Whatua of over 150 years of Päkehä settlement in southern Kaipara is a number of small Mäori communities struggling to survive on remnant scraps of land with limited resources. Many families are living in poverty, with low levels of educational attainment, poor health status and few economic opportunities. For this state of affairs the Crown must take some responsibility. The communities themselves are struggling to retain their language, culture and identity, and to strengthen the attenuated kinship ties with migrants who were forced to leave, particularly among the younger generation brought up away from their home marae’.

The Tribunal concludes ‘that Ngâti Whâtua have been prejudiced by Crown actions and inaction in southern Kaipara, and by the Crown’s failure to meet the fiduciary obligations and guarantees of protection of lands and resources made in the Treaty of Waitangi’. It finds, ‘therefore, that the Wai 312 claim of Ngâti Whâtua ki Kaipara ki te Tonga is well founded’.

The Tribunal recommends ‘that the Crown and mandated representatives of Ngâti Whâtua proceed to negotiate a comprehensive settlement of Ngâti Whâtua claims in southern Kaipara’.

The Tribunal’s overall findings on the Wai 733 (Otakanini Topu) claim deals first with the Mäori land board’s compulsory leasing of 7,000 acres at Otakanini during the first half of the twentieth century. The Tribunal is not persuaded that the Topu and its shareholders have been specifically prejudiced by Crown action or inaction. The Tribunal finds that Wai 733 ‘claimants do, however, share with the rest of Ngati Whatua in southern Kaipara in the prejudicial effects of land loss and disruption identified in its Wai 312 findings’.

The Tribunal finds in relation to the Uruamo whanau’s Wai 279 claim concerning Hiore Kata lands that the Native Land Court’s operations and subsequent sales ‘were similar to those identified in the Wai 312 claim as breaches of the principles of the Treaty of Waitangi. In this respect, the Wai 279 claim is well founded’.

On the Te Taou claim (Wai 756), the Tribunal finds two aspects of overall significance. It finds that Te Taou’s claim that the Crown contributed to an erosion of its tribal identity is not well founded, since ‘Te Taou continues to exist as a recognised kin group . . .’ Te Taou’s claim concerning loss of land and resources is similar to that reported for Wai 312 and is ‘therefore well founded’.

The Tribunal finds on the Manukau whanau’s Wai 121 claim in respect of land loss, that its position is also similar to the Wai 312 claim. To that extent, the Wai 121 claim is also well founded.

The Tribunal recommends, as remedial action for the above Wai 733, Wai 279, Wai 756, and Wai 121 claims, that all four claims be included in a comprehensive settlement of Ngati Whatua claims in southern Kaipara. This recommendation, however, does not apply to Wai 470 and Wai 508.

The Tribunal’s findings on the Kawerau a Maki (Wai 470) claim are prefaced by detailed comment on the historical relationship between Kawerau and Ngati Whatua. The Tribunal finds that Te Kawerau a Maki were descended from people who occupied southern Kaipara before Ngati Whatua arrived there. Then ‘Ngati Whatua exerted their rangatiratanga over the region through a series of battles’. Subsequent peacemaking, reinforced by intermarriage between the two groups have led to close kin links today. ‘The rights established by Ngati Whatua follow the traditional Mäori concept of take raupatu . . . and long occupation of southern Kaipara’.

The Tribunal finds that Taupaki (10km south of Kumeu) during the 1850s was agreed upon as a common boundary between Kawerau a Maki and Ngati Whatua. The area south of Taupaki in the Waitakere ranges ‘has always been acknowledged as the area where Te Kawerau a Maki are tangata whenua’. The Tribunal notes that Taupaki, coincidentally, marked the southern boundary of the Kaipara inquiry district. Accordingly, the Tribunal concludes by stating ‘Te Kawerau a Maki lands are therefore outside our inquiry district, and we make no recommendation on the Wai 470 claim’.

The Tribunal considered that Ngati Te Ata (Wai 508) had not established a claim within the southern Kaipara inquiry district. It finds the Ngati Te Ata claim to be not well founded.

Constitutional Issues

In the concluding chapter of its report, the Tribunal addresses two nineteenth century constitutional issues raised in the Wai 121, Wai 508, Wai 733 and Wai 312 claims. These issues were the Crown’s failure to establish Mäori self government in accordance with the Constitution Act 1852, and the Crown’s failure to provide for effective Mäori political representation.

The Wai 121 and Wai 508 claims maintained that the Crown’s failure to establish self-governing native districts provided for in section 71 of the Constitution Act 1852 was a breach of the Treaty of Waitangi. The Tribunal believes that it has been provided with insufficient evidence to make a finding on this issue.

The Wai 733 and Wai 312 claims maintained that the Crown’s failure to provide for ‘effective [Mäori] representation’ or ‘political equality’ constituted a Treaty breach. The Tribunal agrees that the Crown failed to provide adequate political representation for Mäori during the nineteenth century, but these claims raised national constitutional issues well beyond the scope of the Kaipara inquiry. Thus, the Tribunal makes no specific finding on the political representation issue.

Minority Opinion

Dr Michael Bassett in his minority opinion accepts the Tribunal’s finding with regard to Mangawhai (in chapter 5); on public works takings, the Helensville native reserve and on the Kaipara railway (in chapter 8). He also accepts the Tribunal’s recommendation for a comprehensive southern Kaipara Treaty settlement (set out in chapter 11). He disagrees with the Tribunal’s findings on Te Kopuru, and the Elmsley-Walton grants (in chapter 4); on southern Kaipara Crown purchases (in chapter 6); and on the operations of the Native Land Court (in chapter 8).

Dr Bassett states that generally the Tribunal’s ‘report does not grapple adequately with the overall historical background to these claims. While the Crown failed Mäori in several respects, many Mäori failed their own descendants with actions they took during the nineteenth century’.

Dr Bassett believes Kaipara to be an area unique in New Zealand, because the intertribal wars of the early nineteenth century left only 700-800 Mäori subsequently occupying an area of almost one million acres. In these circumstances, Mäori sold large areas of land, and many Ngati Whatua moved to Auckland, some to ‘meld into settler society’.

Dr Bassett criticises the historical sections of the Te Uri O Hau Claims Settlement Act 2002 as based on ‘untested assertions’. He thinks the Kaipara Tribunal’s findings are less severe on the Crown than the Crown’s own Act. Nonetheless, he believes that the Tribunal’s findings go beyond ‘a reasonable reading of the history of Kaipara Mäori’.

Dr Bassett maintains that the Crown frequently warned Kaipara Mäori against ‘treating their lands like an inexhaustible bank account’. Had the Crown prevented chiefs from freely disposing ‘of land in the name of their hapu and iwi’, it would have violated rights guaranteed by article 2 of the Treaty of Waitangi. The chiefs, more than the Crown, ‘contributed to the break-up of traditional Mäori society and to a feeling of helplessness experienced by some Kaipara Mäori during the early twentieth century’.

Notwithstanding these reservations, Dr Bassett agrees with the Tribunal’s recommendations for a comprehensive southern Kaipara Treaty settlement. He favours ‘a settlement on a pro-rata basis that would not disadvantage Mäori in southern Kaipara in comparison with Te Uri o Hau’.

Barry Rigby

5 January 2006

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