Wai 894: Te Urewera Pre-publication Part II Released

On 2 August 2010, the Waitangi Tribunal released part II of the pre-publication version of its report on Te Urewera claims. The following introductory text is taken from Presiding Officer Judge Patrick Savage's letter to the Minister of Māori Affairs, which is located at the beginning of the report:

On 6 April last year, we submitted the first five chapters of our pre-publication Te Urewera report to you. We ended with the conclusion of the war in the centre of Te Urewera, in 1871. We now submit a further seven chapters, as part II.

This part of our report begins by stepping back in time from chapter 5. We turn to the period immediately after the siege of Waerenga-a-Hika at Turanga (Gisborne) in 1865. Its aftermath was a short and brutal war stretching broadly from Wairoa inland to Lake Waikaremoana, beginning in December 1865 and concluding in May 1866.

There were a series of engagements. The most significant, in January 1866, at Te Kopani near the southern shore of Lake Waikaremoana, involved the deaths of a minimum of 40–50 Māori. It ranks among the most grim battles in the New Zealand Wars, involving more deaths in battle than the entire campaign against Te Kooti in Te Urewera. We find that the Crown was wholly at fault, attacking people who were simply retreating or defending themselves. We cannot over-emphasise the reprehensible nature of the wholesale destruction and killing by Crown forces. Grave breaches of Treaty principle were involved in these events.

Three vignettes give us the flavour of the campaign. The first is a British officer expressing relish at the prospect of going 'into the niggers at once'. The second was recorded by a newspaper correspondent after the battle at Te Kopani had moved to the southern shore of the Lake: 'The men, women and children were now to be seen running for their canoes to make their retreat across the Waikare Moana lake … Thirty-three of the enemy killed were buried by our people, and eight were shot while in the water, making their escape to their canoes, and were seen to sink'. The third scene involves the summary execution, by pistol, of four Māori prisoners at Onepoto. These executions went unpunished.

The consequences of the conflict were immediately catastrophic. Some 10 settlements were destroyed and the southern shore of the lake was effectively depopulated for the best part of a decade.

We turn next to one of the most complex subjects in the report – the loss to Māori of land in four large blocks immediately to the south east of Lake Waikaremoana. In 1875 the Crown purchased this land, totalling 178,226 acres. This was the final act in a series of events arising from the Crown's attempt to punish those whom it considered rebels in the war of 1865 to 1866. But there had been no rebellion.

In 1867, the Crown held a hui at Te Hatepe with Ngāti Kahungunu (many of whose chiefs had fought alongside it). It sought cession from them of a block of land for military settlement, while asserting confiscation (under special East Coast confiscation legislation) in a manner that was aptly described at the time as 'begging with a bludgeon'. There is little in these events of which the Crown can be proud.

At this hui, the Crown promised those who were 'ceding' land, or who had assisted it in the war, that it would recompense them with land which it believed, mistakenly, it had confiscated. The story is riddled with misunderstandings on the part of officials. The Crown did not appreciate how its own new East Coast confiscation legislation worked (for the first time it allowed the Native Land Court to decide which land belonged to those considered rebels) – and it did not even know what the boundaries were, on the ground, where the Act applied.

As a result, officials convinced themselves over time that the Crown had confiscated far more land than had been discussed with Māori at Te Hatepe, stretching as far as Lake Waikaremoana. In 1872, the Crown signed an agreement (the Locke deed) purporting to confirm the land's 'return' to Māori, and dividing it into four blocks. This was customary, not confiscated, land, and it was land in which Tuhoe and Ngāti Ruapani – who were not concerned with the Te Hatepe agreement at all – also had important rights and interests. From this point, an intricate history unfolded. On the one hand, it involved the interplay between Tuhoe, Ngāti Ruapani, Ngāti Kahungunu who had supported the Crown, Ngāti Kahungunu who opposed the Crown, and those Ngāti Kahungunu who had been promised land for services to the Crown. On the other hand, the Crown operated in a bungling and self-interested manner.

The Crown's obvious intention to assert itself in the southern Waikaremoana lands led to growing tensions among all groups with interests there. Crown agents encouraged Tuhoe to go to the Native Land Court in the hope that a decision on the ownership of the land would ease the tension. The result, in 1875, was one of the strangest court hearings we know of. After it had begun, the Solicitor-General, on inquiry from the court, advised that the four southern blocks had never been confiscated. This was completely contrary to what Crown officials had repeatedly told Māori. However, if the court case went ahead, the East Coast legislation would apply. This meant that the land of 'rebels' could in fact now be confiscated.

Facing this threat, Tuhoe and Ngāti Ruapani withdrew from the court and sold their interests in the land to the Crown, salvaging some recognition in the form of a payment and small reserves. Ngāti Kahungunu claimants also appeared in court, and were subsequently found to be the owners. They had already come under unfair pressure from Crown purchase agents, and the Crown now concluded its purchase from them. We found the Crown's actions in respect of these events to be in breach of Treaty principles.

Our next chapter picks up from the endvd of war in Te Urewera in 1871, and describes the affirmation of Tuhoe and Ngāti Whare tino rangatiratanga, embodied in Te Whitu Tekau (the seventy) – the governing council of rangatira. Tuhoe and Ngāti Whare today rightly regard this as mana motuhake in action. Te Whitu Tekau defined its boundaries and was resolute in its policy of opposing sales, leases, roads, the operation of the Native Land Court in its rohe, and surveys. Surveys, as they edged into the rohe, were a continuing source of conflict, which flared occasionally into minor violence and civil disobedience over the next 30 years. The Crown could and should have worked with Te Whitu Tekau in order to honour its Treaty guarantee of tino rangatiratanga. Promises that had been made at the conclusion of the conflict by Crown officials in 1871 heightened the Crown's obligation to respond positively to this tribal initiative. The Crown did exactly the opposite and can aptly be characterised as consistently chipping away at the power and structure of the council.

By the 1890s, both the Crown and the peoples of Te Urewera had a willingness to move on and discuss a form of self-government for Te Urewera. In our entire report to date, this is one of the moments where an accord of real promise was reached. In particular, as we see it, it is at this point that a genuine Treaty-based relationship was established between the Crown and Tuhoe. Premier Seddon, together with James Carroll, travelled the rohe, spoke with the leaders and then brought them to Wellington for negotiation and discussion. Agreement was reached, and in 1896 the Urewera District Native Reserve Act was passed. The Act embodied an arrangement unique in our history. The Crown saw itself as granting the peoples of Te Urewera real powers of self-government and collective tribal control of their lands. The Crown's purpose, often stated at the time, was to protect the lands of Te Urewera and ensure the future prosperity of its peoples. It is a matter of huge regret that the implementation of the legislation did not fulfil its terms, let alone its potential to give effect to mana motuhake. But the ultimate and sad fate of the Urewera District Native Reserve is a subject for future pre-publication chapters of this report.

At the same time as Te Whitu Tekau leadership asserted itself, and then the Urewera District Native Reserve Act 1896 was passed and brought into operation, the Native Land Court was in full swing in the rim of lands surrounding what became the Reserve. From 1878 right through until 1894, approximately 377,000 acres were transformed from customary land to native land title and awarded to the claimants in our inquiry. By 1930, more than 82 per cent of that land had passed from Māori ownership. The Native Land Court was a highly effective engine for dispossession. A series of Treaty breaches by the Crown were involved in its establishment and operations. Cases could be forced through the court by an individual against the wishes of an overwhelming majority of the community. Land shares were individual property, and this imperilled the strength of Te Urewera kin groups, and their means of protecting their land. As such, they were particularly vulnerable to predatory purchasing - not least by the Crown, which had acquired nearly 65 per cent of the land awarded to claimants in our inquiry district by 1930. This dispossession was in large part paid for by the dispossessed, through the medium of survey costs, which in the case of some small blocks consumed the major part of the land. On top of that were court fees and the sheer inconvenience and cost of attending sometimes lengthy court sittings at a distance. The peoples of Te Urewera were never given the opportunity to manage these lands in a communal way recognised by the law, by trusts or incorporations such as presently operate.

The disgrace that was the Native Land Court is well-described by other Tribunals. The legislation that underpinned it was intensely complicated, changing almost yearly, and was difficult to understand for even the trained practitioner regularly concerned with it. The Crown was ever aware, but only in a superficial way, that it had an obligation to ensure that the peoples of Te Urewera were protected to some extent in their dealings with land. The mechanisms set in place were never well thought out, and were honoured in the breach or ignored.

The failure of the native land legislation is particularly illustrated in the tragic story of Ngāti Haka Patuheuheu and the loss (through fraud) of their ancestral land. That hapu had always centred upon Waiohau, and particularly the land called Te Houhi, containing their major kainga and their wharenui, Tama-ki-Hikurangi. The story of loss was widely regarded as a disgrace at the end of the nineteenth century. It has largely been lost to the national memory, but is vividly remembered by Ngāti Haka Patuheuheu.

The land was awarded by the court to two individuals on the basis of perjured evidence. The protection mechanisms did not work in this case and the chief judge wrongly refused to grant a rehearing or, indeed, to even hear the parties on the application for rehearing. The land was then conveyed through a series of transactions to the point where the last in the chain of buyers could say that they held the land as a bona fide purchaser for value and without notice of the fraud. As such, their title was not tainted by the fraud and they could hold the land and the law would remove Ngāti Haka Patuheuheu from their ancestral home. This is a long story, involving predatory land dealers, complicated transactions, broken Crown promises, incompetent advice, and hard-hearted land speculators. A High Court judge, hearing one of the final parts of litigation, described the injustice in these terms:

That they [Ngāti Haka Patuheuheu] have suffered a grievous wrong is, in my opinion, plain. It is doubly hard that this wrong should have resulted from a miscarriage, which certainly ought to have been avoided, in the very Court which was especially charged with the duty of protecting them in such matters.

It was headline news in newspapers, with a photo appearing of the actual dispossession of the community in 1907. The Crown could and should have taken control of the matter. The legislation could and should have been tighter to protect Māori. A number of people were culpable in a general sense, but that does not dilute the fact that this is a major Treaty breach by the Crown inflicted upon this community.

The final chapter in this part of our report deals with the management of lands in the eastern portion of our inquiry district in the first half of the twentieth century. These were lands consigned to a rescue scheme, a private trust, in the 1890s, after the failure of a series of East Coast ventures designed to assist Māori owners to develop and secure a return from their lands. The problems facing these ventures involved high costs, poor business decisions, and lack of Government assistance in the context of a financial blizzard that blew over the country in the 1880s. In 1902, the Government did finally come up with a rescue package that saw the East Coast Trust established, and (in 1906) management of all the lands by a sole commissioner for over 40 years. The problems of all the lands in the trust (which extended over a large part of the East Coast) were not fully resolved until the wool boom of the 1950s.

For Te Whanau a Kai, the grievances and the prejudice revolve around the sale of some 10,000 acres of their land without their consent (indeed, against their wishes). For Tuhoe, land was put in the East Coast trust without their consent and left undeveloped for 60 years; when it was finally returned to them. The Crown effectively prevented them from making any use of it. It was not until 1973 that they finally got any economic benefit, when this land was finally exchanged with the Crown for other forest land. For Ngāti Kahungunu, the Crown refused to return some 800 acres of land wrongfully acquired by a sidewind when the Crown purchased interests in an unsurveyed block. While not large in the aggregate, these losses were felt keenly at a time when the tribes had lost the great bulk of their land in the rim blocks, and had little enough left on which to sustain themselves.

All of the Treaty breaches and resulting prejudice that we have identified remain unaddressed by the Crown. We have refrained from making recommendations at this point in our inquiry except in relation to one particular piece of land at Onepoto, Lake Waikaremoana.

Heoi ano, naku na

PJ Savage
Presiding Officer

Wai 894: Te Urewera Report, Part II [PDF, 6.9 MB]

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