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The ‘Claim’

8.2 The Claim

8.2.3 Third cause of action; Crown purchase of interests following the Native Land Court investigations Relief sought

Having identified what the claimants’ grievances were, the next question to be answered was what the whānau were seeking the relief sought was:

• A definite finding that the Crown breached the principles of the Treaty as set out in the statement of claim;

• An apology from the Crown for those breaches;

• A judgement that all land owned by the Crown within the claim area and any improvements thereon including reserve and conservation land be returned to the claimants;

• Crown compensation for the claimants for the prejudicial effects as a result of the Crown’s legislation, acts, omissions, policies, and practices as stated in the statement of claim;

• The Crown to pay the full costs incurred by the claimants for the preparation and presentation of their claim and the costs in recovering any land recommended to be returned and all other costs incurred in securing the implementation of recommendations;

• Any other relief the tribunal might see fit to recommend. (Clark & Tan, Amended statement of claim, pp. 1-8)

The whānau knew they had received the lands from their tipuna Manukarere and Tinirau, who had fought for those lands and acquired them through conquest.

Furthermore, the lands had remained in the possession of the whānau throughout the wars with Marutuahu and his sons and throughout the raids by Ngapuhi. But the tipuna were ill equipped to face the threats that legislation placed on Māori.

Even though Colonial governments talked of protecting their new citizens, Māori were constructively alienated from their lands directly and indirectly.

Before 1862, it was generally accepted that Aotearoa (New Zealand) was owned by Māori and that in essence, Māori held title to the land. Before the land could be owned by the government, Māori title to New Zealand had to be extinguished.

Then the government could give Crown grants to settlers. The native title was

seen as a burden on the Crown’s sovereign title; as such land was not freehold but was governed by the rules of Māori customary law and alienable only to the crown: and Crown pre-emption was recognised in Article II of the Treaty of Waitangi. (Boast, Mcphail, Smith & Norman, 1999, pp. 48-49)

The principal method used by the Crown to extinguish Māori customary title before 1862 was pre-emptive purchase by deed, and by means of these deeds roughly two thirds of Aotearoa, including virtually the whole of the South Island, had passed out of Māori ownership by 1862 (Boast, Mcphail, Smith & Norman, 1999, p. 49.)

The Native Land Act 1862 was brought into operation in a few districts as a consequence of armed conflict. It was soon repealed and replaced by the more comprehensive Native Lands Act 1865. The major difference between the two Acts lies in the investigation of titles set out in the 1865 Act. This Act had three core features:

Waiver of Pre-emption: the Crown waived its general pre-emptive rights to extinguish the native customary title, which had been clearly stated in the preamble of the Native Lands Act 1862. This, then, cancelled the right of pre-emption as set out in Article II of the Treaty of Waitangi, and allowed Māori owners to obtain a certificate of title to their lands, and subsequently a crown grant, and then they could sell the land to whomever they wished on the open market.

Conversion of Customary title to Freehold title: the Native Lands Acts allowed Māori to convert their land from customary to crown-granted freehold tenure.

This tenure was established through two steps:

1) The owners of a block of Māori land had to prove according to Māori customary law that they were its owners; if successful, they would be recorded as the owners in the courts records and issued with a court certificate of title.

2) The court’s certificate was then produced to the Governor as the Crown’s representative in exchange for a crown grant in freehold.

The Native Land Court: This institution was set up as an informal body in 1862, when the Governor was allowed to establish by commission or order-in-council a court or courts that were to have the purpose of ascertaining and declaring who, according to native custom, were the proprietors of any native lands and the estate or interest held by them therein. This Court was made more formal in the 1865 Act, which required the concurrence of a Judge and two assessors, in making decisions. The assessors were to be natives of New Zealand. (Boast, Mcphail, Smith & Norman, 1999, pp.51-56)

In this way, what has been called the classical English feudal tenure process was introduced to New Zealand; for the English, historically, the only true owner of land is the Crown who can grant estates of land to its subjects. A crucial problem that arose from the Native Lands Acts 1862 and 1865 was that Māori customary law did not recognise individual ownership of land. The land was owned by the

whole Hapū and iwi, not any one or two individuals, but with the introduction of these acts came the proviso that a certificate of title could not be issued to more than ten people. There was also a provision that land could be vested in a tribe, but this provision does not seem to have operated in practice. (Boast, Mcphail, Smith, & Norman, 1999, pp. 58-60)

The Native Land Acts and the Native Land Court system introduced by the Colonial government allowed Māori land to be readily alienable to private purchasers. The Acts led to rapid loss of land, increasing Māori landlessness and poverty. At the same time the actual court processes were dislocating and expensive for Māori. The individualisation of title adversely affected Māori and led to inter-whānau, inter-hapū and inter-iwi disputes due to fabrication of evidence, manipulation of whakapapa, or exploitation by omitting key witnesses.

Many Māori were alienated from their tribal lands by these native land acts.

(Boast, Mcphail, Smith, & Norman, 1999, pp. 61-64)

In summary, the grievance of the whānau was that the descendants of Tinirau lost their rights of ownership, authority over and access to their lands, waters, estates and forests within the Hauraki region. The Governments, despite its responsibilities under the Treaty of Waitangi, failed to protect the whānau’s land base and their resources of those lands by allowing those lands to be alienated through a series of mechanisms and processes, especially:

Native Land Court investigations;

Crown purchases of interests following the Native Land Court investigations;

.and the taking of land under the Public Works Act.

After laying out the evidence the night before, and going over some of the questions that might be presented with the senior speaker, the author and whānau that had travelled over to the claim Hearing earlier settled down to sleep. The following day, 18 June 2002, was going to be long. The numbers that had travelled over were quite small, but expecting a much larger crowd the author had hired out an extra room for other members of the whānau. All told, only nine that travelled over the first day.

After an early breakfast, the whānau started to arrive, first two sisters and three nephews. The next group of whānau did not arrive until the whānau went up to the marae; there were five carloads of extended whānau waiting to support the claim, which produced great relief among those who had arrived earlier. The whānau gathered outside the marae, was called onto the marae (karanga), the usual protocols were followed, and a small kai was organised for our whānau. During the kai, an informal Hui was held to discuss the process for the day, to decide who was to give evidence, how much time would be allotted, what was expected of the whānau and what could be expected from the judges.

The hearing itself began early. Formalities (mihi) were exchanged and at that point our senior speaker, Mr Tom Roa, opened the proceedings on behalf of both claimant parties. At a later stage of the Hui, we would recognise how fortunate we

were with our senior speaker. Earlier it had been decided that the author’s whānau would be the first claimants and would be allotted two hours. The first to speak for the author’s whānau was the junior counsel Kiriana Tan. She summarised what our witnesses would say. First would be the author’s first cousin, Judy Herewini, second would be the author himself and finally the lawyer would wrap up proceedings. The hearing progressed, with Judy Herewini being cross-examined quite intensely by the lawyer for the Tamatepo claimants, Mrs Annette Sykes. The author found this quite distracting, as it seemed to him that the claimant cases and areas had nothing to do with each other. Efforts were made to have Mrs Herewini express her feelings toward the tribal lands. However, one of the judges, Wharehuia Milroy, came to her rescue and through saying, a few leading questions managed to divert the attention of the other claimant’s lawyer.

Next to speak was the author. The questions flew thick and fast. Which Ngāti Hei was the whānau descended from, was it Hei Tirepe or Hei from Te Arawa.

What was the whānau’s ahi kaa for the area? How has it come about that the whānau lived in Tauranga? What right the author had to speak? Was all the whānau represented? Still the cross- examination was not as bad as expected.

Finally, the lawyer summarised the korero, stating the breaches and what parts of the Treaty had been breached the kinaki o Te korero was the senior speaker’s conclusion.