IN THE WAITANGI TRIBUNAL WAI 1040

WAI 779

IN THE MATTER OF The Treaty of Waitangi

Act 1975

AND

IN THE MATTER OF Te Paparahi o Te Raki

Inquiry

AND

IN THE MATTER OF A claim by Donna

Washbrook and Warren

Moetara on behalf of the

Descendants of Nga uri O

Iehu Moetara Trust

TECHNICAL BRIEF OF EVIDENCE

OF DONNA WASHBROOK

DATED 27 JULY 2016

Wai 1040, #X6

1

MAY IT PLEASE THE TRIBUNAL

Background

1. My name is Donna Washbrook and I live at 59 Waiotemarama Gorge Road, RD3 Kaikohe.

2. I filed the Wai 779 claim concerning Pakanae School on 8 December 1998 as the

Chairperson of Nga Uri O Iehu Moetara Trust. The reason I filed our claim is because of

an event which occurred in 1997.

3. In December 1997 I went to a meeting called by the Youth Hostels Association of New

Zealand Inc (“Youth Hostel”) who wanted to sell the former Pakanae School site back to

the community. The Crown had sold to the Youth Hostel by way of deferred payment

licence in 1985 land which my Grandfather had gifted for Pakanae school.

4. In January 1998 I lodged a caveat forbidding registration of dealings with the land. This

caveat lapsed in August 1998.

5. I was not aware that the “protection mechanism” under the Treaty of Waitangi (State

Enterprises) Act did not apply in our case as the land was transferred to the Youth Hostel

before a “resumption notice” was capable of being noted on the Certificate of Title

85A/841.

Whakapapa

6. My Great, Great- Grandfather is Rangatira Moetara, a chief of Ngati Korokoro.

His son, Hapakuku Moetara is my Great Grandfather.

His son, Iehu Moetara is my Grandfather.

His son, Simon Iehu Moetara is my Father.

7. My Great Grandfather passed away in 1902.

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Statement of Issues Wai 1040 #1.4.2

8. My brief of evidence covers the following issues:

a. Section 1. Tino Rangatiratanga, Kawanatanga and Autonomy: Political

Engagement between Maori and the Crown

b. Section 7. Twentieth Century Alienation, Retention, Titling and Administration

of Maori Land

c. Section 8. Public Works and Other Takings

Tino Rangatiratanga

9. The focus of my brief is my Grandfather and how he upheld his mana over Pakanae School

and his korero before the Crowns Judiciary.

Tikanga

10. My evidence will uncover the effects the Crowns legislation and Judiciary had on my

Grandfather.

11. It certainly created problems for the Crown, the government officials, surveyors, settlers and

land speculators who were involved in the former Pakanae School era and is reflected in the

bundles of information and reports which form part of this Inquiry.

12. The Crown’s administration over Maori land also created problems for our people by

making changes in the way we related to our whenua and to each other which I will

demonstrate later in my brief of evidence.

Pakanae School Reports

13. Bruce Young, Department of Lands & Survey, March 1983

Mr Young prepared an application on behalf of the Minister of Lands for Orders revesting

land acquired for a public purpose. This application enabled the Minister to apply to the

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Maori Land Court for orders to create a trust, appoint trustees and to enable the sale of the

former Pakanae School land to be sold back to the Crown in March 1983.

14. I will refer to Mr Young’s application and defects later in my brief of evidence at clauses 37

& 45 and Exhibits ‘E’ – ‘L’.

15. Northland: Gifting of Lands - A report commissioned by the Crown Forestry Rental

Trust, Mary Gillingham and Suzanne Woodley, December 2006

I will refer to the defect of the report writer’s technical evidence footnote 1314 on page 350

which relied on Judge Acheson’s version of events rather than the minute of the Maori Land

Court sitting held 13 July 1939 later in my brief of evidence at clause 45.

16. I will also refer to the defect of the report writer’s technical evidence footnote 1323 on page

353 which concluded there was no reply from the Maori Land Court to the Commissioner

of Crown Lands in respect to his queries later in my brief of evidence at clause 48 and

Exhibit ‘G’.

17. Darroch Ltd Report, Land Information New Zealand accredited supplier, January

2011

The purpose of the report was to investigate the implications of Section 40 of the Public

Works Act 1981 and to recommend whether or not the property is required to be offered

back to the previous owners (or their beneficial successors).

18. I support the recommendation described at page 6 of the Darroch Ltd Report.1

19. “Surveys and Land Transactions associated with Pakanae School Site” and

Document Bank Index. A claimant commissioned technical report prepared by

Trevor James Shaw RP Surv., April 2016

I will disclose later in my brief of evidence at clause 45 why SO 29299 (October 1937) (DB8)

was not gazetted and at Exhibit ‘F’ where the Tai Tokerau Maori Land Board and Maori

1 See page 52 Wai 1040# X2.

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Land Court stood before transferring the residue of the land (church site) to the Education

Board.

20. I support Mr Shaw’s report in its entirety.

21. Coralie Clarkson, Offical Report Pakanae and Kokohuia Lands, 1870 -1990,

commissioned by the Waitangi Tribunal for the Te Paparahi o Te Raki Inquiry, June

2016

I will refer to the oversight of the report writer at page 151 to reference the Mary Gillingham

and Suzanne Woodley technical evidence footnote 554 which relied on Judge Acheson’s

version of events rather than the minute of the Maori Land Court sitting held 13 July 1939

later in my brief of evidence at clause 45.

Why I commissioned Trevor Shaw

22. It has been difficult making sense of all the information I have read on the Pakanae School

era. I wanted an expert to produce a full account of the land transactions from a surveyors

perspective so that I could track the land my grandfather had gifted for the Pakanae School

and to understand how the Crown had plotted to take control of it.

Tales

23. My grandfather was 48 when tales surfaced in 1908 that his mother and her children sold

land for a school site. I have not seen any official receipts to show a sale of land took place.

24. Attached as Exhibit ‘A’ is a letter dated 8 September 1911 from the President, Tai Tokerau

Maori Land Board to the Secretary, Pakanae School Committee and I highlight the part

which reads: I have to inform you that the Block of Native Land out of which the site was taken has been

partitioned by the Court into a number of divisions, each subdivision being owned by different owners and

until a survey of the subdivisions has been made it is impossible to locate the division in which the school site

is and therefore I do not know who are the persons entitled to receive the consideration.

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25. Attached as Exhibit ‘B’ is a memorandum dated 22 July 1920 for the Secretary, Pakanae

School Committee from the Tai Tokerau Maori Land Board and in particular I highlight the

part which reads: If you kindly give me the address of Mrs Hapakuku I will see that a voucher is sent to

her for payment of £3/15/-.

26. I would like to point out to the Tribunal the offer made by the Tai Tokerau Maori Land

Board to send my Grandfather’s mother a voucher when the subdivisions had not been

surveyed at that point in time was underhanded.

What happened in 1922?

27. I need to point out to the Tribunal the significance of the Maori Land Court sittings held 9

May 1922, 15th and 16th August 1922 where the Court made orders to cancel partitions and

then make new partition awards in relation to Pakanae No 2.

28. Attached as Exhibit ‘C’ is a copy of Maori Land Court Minute Book Hokianga No. 4 Folio

141 sitting held 9 May 1922 in the matter of Pakanae No 2 is an application under Sec

131/09 by the Chief Surveyor for cancellation of existing partition. The Court ordered that

partitions made on the 30 November 1889 be cancelled. Accompanying this exhibit is a copy

of the Order signed by Judge Holland.

29. The effect of the 9 May 1922 Maori Land Court decision is that section 44 was cancelled as

well.

30. Attached as Exhibit ‘D’ is a copy of Maori Land Court Minute Book Hokianga No. 4 Folio

171 – 175 sittings held 15th and 16th August 1922 which set out the partitions (Nos 2A to

2Z, 2AA, 2AB, 2AC, 2AD) with the name of the block, area of land and list of owners which

were handed into the Court. The minute does not mention 2Y3A.

31. The effect of the 15th and 16th August 1922 Maori Land Court decision is that section 44

was absorbed into Pakanae 2Y.

32. I refer also to Mr Shaw’s report on page 3 and his reference to 1923 and Document Bank

page 6 (which derived from the Maori Land Court sitting held 15th and 16th August 1922).

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Owner of the School & Church Site

33. There is much debate about whether my Grandfather was the owner of the school and

church site. I will refer to this later in my brief of evidence at clauses 37 & 45 and Exhibit

‘E’.

Gifting

34. School Site the area 1ac 2r 01p and Addition to School Site the area 0ac 1r 18p.

35. It is necessary to include in my brief of evidence a full account of Maori Land Court

Hokianga Minute Book No. 16 Folio 54 – 55 which explains who were present, who did

they represent, what was the take, if there were any objections and what was the decision of

the Maori Land Court.

36. From what I can see, Judge Frank Acheson was wearing two hats. He presided over the

application and he was also the President of the Tai Tokerau Maori Land Board. Mr James

Hall represented the Education Department and my Grandfather owned the land.

37. Place Waimamaku

Date 9th October, 1936

Present F.O.V. Acheson, Judge

Pakanae 2Y2 (or 2Y3)

Application for approval of addition to school site

Iehu Moetara (sworn)

I am the sole owner of 2Y2 and am consolidating 2Y3. I gave the school site at Pakanae. It

is now too small. The school inspector has asked me to increase the area of it. Knowing it is of benefit to the

children and the people I have agreed to give an extra piece as pegged out on the ground. It can be inspected.

This is another of my acts of “aroha” to the people. I am agreeable to the Education authorities acting as the

owners of this extra piece now so that they can get on with their scheme of improvements. This is a straight

out gift. The Education Department will have to fence it and pay for any survey. No expense is to be borne

by me except the giving of the land. The access is good.

7

No objections

Mr James Hall The Education Department had agreed to do the fencing and the survey.

No objections

Court Order Court is prepared to make an order if necessary but it would be better to have the land

taken by Proclamation. Education Department to be informed accordingly.

38. Attached as Exhibit ‘E’ is a letter dated 10 February 1937 from the Registrar, Tai Tokerau

Maori Land Board and Native Land Court to the Secretary, Education Board and I highlight

the part which reads: Iehu Moetara who is the sole owner of the Pakanae 2Y2 block, gave evidence before

the Court at Waimamaku on 9 October last in reference to an application for approval of an addition to the

present school site at Pakanae. I attach for your information copy of the Court’s minutes, which are contained

in Hokianga Minute Book 16 Folio 54.

It will be necessary to have a survey of the area made and you will require to arrange with the Lands &

Survey Department to have this work carried out.

If this matter is urgent it might be advisable to have the land taken by proclamation under the Public Works

Act, otherwise it will be necessary to proceed under Section 32 of the Native Land Act 1931, and this will

probably take time. In either case, it will be necessary first to have the survey completed.

39. Attached as Exhibit ‘F’ is a memorandum dated 7th March 1939 for the Chief Judge, Native

Land Court, from the Registrar, Tai Tokerau Maori Land Board and in particular I highlight

the part which reads: “The Education authorities are now anxious to acquire a further quarter acre in

order to enable them to build a teacher’s residence and the land which it is desired to acquire is an area which

is vested in the Tokerau District Maori Land Board, being the residue of the land in Certificate of Title

Volume 164 Folio 271. This land is trust land and the Education authorities have been advised that the

Board and Court desire to consult the natives interested before transferring the area to the Education Board.

The Education Department desire that the area be gifted by the Tokerau Board.

Unfortunately, owing to circumstances over which the Board has no control, the proposed meeting and

discussion with the Natives has not yet eventuated”.

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40. Exhibit ‘F’ identifies the position of the Tai Tokerau Maori Land Board and the Maori

Land Court prior to the court sitting referred to later in my brief of evidence at clause 45.

Gifting

41. Extra area of site for school residence area 0ac 1r 0p but changed to the whole Church Site

area 0ac 2r 0p

42. It is particularly important to include in my brief of evidence a full account of Maori Land

Court Hokianga Minute Book No. 16 Folio 305 – 307 which explains who were present,

who did they represent, what was the take, were there any objections and what was the

decision of the Court.

43. From what I can see, Judge Frank Acheson was wearing two hats. He presided over the

application and he was also the President of the Tai Tokerau Maori Land Board. Most of

the list in the minute identify who the people represented except for the error found in the

list of Natives.

44. The Natives present were my Grandfather (owner of the land), Mr James Hall who appeared

at the Maori Land Court sitting on 9th October 1936 representing the Department of

Education; Lou Taimana,Tamaki Riki, Panaki Waata (who were not owners of the land in

this application).

45. Place Auckland

Date 13 July 1939

Present F.O.V. Acheson, Judge

Pakanae School Site

Pakanae 2Y3

Pakanae Church Reserve

Application for extra area as site for new school residence.

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Mr T.T. Ropiha (surveyor) – under instructions from the Court, Mr Cooper (Cons. Officer) and I visited

the Pakanae district on 7 July to settle this matter owing to the Court being engaged on Crown cases at

Kaihu.

Mr Saunders was present and represented Auckland Education Board. The School is a public one under

Education Board, although I think all the scholars except two are maoris.

I present joint report prepared by Mr Cooper and myself and signed by Iehu Moetara and James Hall as

correct.

Natives present were Iehu Moetara, James Hall, Lou Taimana, Tamati Riki, Panaki Waata

Three different proposals were submitted for consideration. In the following order of preference from Education

Board point view:

1. Acquisition of Church Site adjoining school site – ½ acre

2. Acquisition of area adjoining the S.E. boundary of Church site in Pakanae 2Y3

3. Acquisition of an area adjoining the N.W. boundary of present school site in Pakanae 2Y3

Regarding proposals 2 and 3, Iehu Moetara was the principle native affected, as he is filing Pakanae 2Y3

under consolidation.

Iehu Moetara then gave evidence as follows:

“I desire to express our appreciation that our intention to gift a portion of land to the Education Board is

being fulfilled. I have previously expressed the views of the Pakanae people to the Court, also our desire to

help the Education Board. We are proud of our school and in order to provide a suitable area for a teacher’s

residence we have agreed to gift the Church site (part Pakanae 2 Block) for that purpose. We do not ask for

any compensation. We hope it will not be long before the new residence takes shape. The people of Pakanae

are unanimous that the gift should be made in appreciation of the good work that is being done by the

Education Department for our children. I know of no objection from the people”.

All present agreed.

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Mr Saunders, building foreman for Education Department Board then gave evidence as follows:

“I have to thank Iehu Moetara and those present for the very generous offer they have made to the Auckland

Education Board. It is not for me to accept but I have no doubt the Board will express it’s deep appreciation

of the gift immediately on receipt of my report. The site is the most suitable one available and will square off

the school ground. It will make a decided improvement when future enlargement buildings are necessary. I did

not expect that more than 1 rood would be made available. The offer of the whole Church site (half acre) will

provide for all future requirements. I thank the people again for their generous gift and I shall be very happy

to report these proceedings to the Auckland Education Board”.

Mr Cooper (Cons. Officer) then said:

“I would like to thank Iehu Moetara and the other leaders of Pakanae for this gift. It clearly reveals the

progressive spirit that prevails in Pakanae. I am sure the Auckland Education Board will appreciate the

gift. On my first visit to this district I thought the population of Pakanae was decreasing but during the last

two years I was very pleased to see that my earlier fears were without foundation”.

(Iehu Moetara and James Hall sign above report).

Mr Cooper and I report to the Court accordingly and recommend Court’s approval.

Court – Court appreciates the good work done by Mr Cooper and Mr Ropiha in relieving the Court of this

visit to Pakanae when the Court could not get away from cases at Kaihu on 7 July 1939. The delegation of

duty was a complete success. Court thanks Mr Cooper and Mr Ropiha, and also appreciates the rangatira

and helpful spirit displayed by Iehu Moetara and the Pakanae people.

Court is prepared to make an order if necessary but it would be better to have the land taken by Proclamation.

46. My grandfather passed away in 1942.

Taking of Land 0.2r.21p

47. My Grandfather was an owner when the Crown took the land in 1963 for a public school.

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Despite the Maori Trustee entering into a Memorandum of Agreement with the Minister of

Works in 1966 my Grandfather’s children did not succeed to his interest until 1971.

48. Attached as Exhibit ‘G’ is a letter dated 6 September 1974 from the Deputy Registrar, Maori

Land Court to the Commissioner of Crown Land and I highlight the part which reads: Your

memorandum of 3.9.74. Regarding the area 1ac 2r 01p acquired by the Education Board from the Tokerau

District Maori Land Board, as I see the situation, the land was vested in the Board for transfer to the

Education Board for school purposes. The £7.10.0 would have been paid to the Tokerau District Maori

Land Board funds.

I regret I am unable to trace any further history on this matter. I attach hereto a copy of the Court minutes

which derived from the report submitted to the Court by W. Cooper, the Consolidation Officer, copy of which

is also attached.

As regards the compensation, I cannot trace where applications relating to any compensation claims for this

particular school were dealt with. I will agree that the normal procedure after the taking of land would be to

lodge an application with the Court to determine compensation. However, it may be that as the Education

Board were aware that the sites were gifted no subsequent action was taken to get formal decision of the Court.

My school file does not show any action to fix compensation.

If you could give me further information that will enable location of the applications I will have searches

made”.

49. Attached as Exhibit ‘H’ is a letter dated 7 March 1975 from R.W. Thompson for the Maori

Trustee to the Commissioner of Crown Land in relation to Pakanae Maori School and I

highlight the part which reads: “…investigations of records held by the Maori Trustee show that the

sum of $61.32 was distributed to the owners of this block on 16.11.67 being compensation moneys received

from the Education Department in respect of land taken for the above school.

Mr John Moetara did not participate in the distribution. This is due to the fact that he did not become an

owner in the block until 1971 upon succession to his late father Iehu Moetara who died in 1942…”

50. I would like to point out to the Tribunal that the action taken by the Commissioner of

Crown Lands on 8 March 1983 to ignore the advice referred to at Exhibit ‘G’ and Exhibit

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‘H’ was underhanded when he would have been aware from the minute of the Maori Land

Court sitting held 13 July 1939 it was my Grandfather who signed off the report along with

Mr James Hall from the Education Department and my Grandfather who stood to korero

to the application before the court.

51. The fact the Commissioner of Crown Lands entered into an arrangement with tangata

whenua to alienate the land my Grandfather had gifted is inexplicable particularly when the

names and addresses of my Grandfather’s children were held on file at the same addresses

referred to at Exhibit ‘G’ and Exhibit ‘H’.

52. Attached at Exhibit ‘I’ is Mr Young’s application to the Maori Land Court Minute Book

Kaikohe No. 12 Folio 369 – 375 which gives his version of events relating to Pakanae

School.

53. Attached at Exhibit ‘J’ is a copy of Maori Land Court Kaikohe Minute Book No. 13/7 and

I highlight the part that reads: …”Upon payment of such proceeds into the Bank the trustees are to

notify the Registrar who will prepare a submission for order of discharge of the said trust”.

54. Attached at Exhibit ‘K’ is a copy of the Schedule of Ownership Orders which indicates

there is no record of an order or date when the trust was discharged.

55. Attached at Exhibit ‘L’ is a copy of the Memorandum of Transfer of lands which are the

same land referred to in the applications before the Maori Land Court in my brief of

evidence at clauses 37 & 45.

56. The irony is that the take put to the Crown officials is that the proceeds from the sale would

be allocated to Pakanae Marae of which my Grandfather is one of the owners of the land

known as Pakanae No 2B.

57. I refer again to Exhibit ‘D’ of Maori Land Court Hokianga Minute Book No. 4 at Folio

171 court sitting held 5 August 1922 and I highlight the part which reads: To Meinata Karauna

one acre of 2 acres which is to go to all owners for a “Marae Hui” (equal shares).

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Revesting Gifted Land to the Crown

58. From where I stand it is clearly documented in the Court minute books and the Crown

department correspondence that there is no doubt in my mind that my Grandfather upheld

his mana over Pakanae School and his korero before the Crown’s Judiciary.

59. The Crown on the other hand never honoured the land my Grandfather gifted for the school

and church site and should have returned it.

Remedies

60. In closing I remain hopeful the wrong which has been inflicted on my Grandfather will

come good.

61. I ask that the Tribunal acknowledge the grievances that occurred and request the following

remedies:

a. A formal apology

b. Compensation for the alienation of gifted lands, loss of potential income and development

c. Compensation for the pain and suffering subjected to at the hands of the Crown

My Closing Statement

As a claimant for the descendants of Nga Uri O Iehu Moetara Trust, participating in the

process of Te Paparahi o Te Raki (Wai 1040) Regional Inquiry I am left “at large” as to how

best do I account for the children and mokopuna of Hapakuku Moetara from which the

land in this claim came from.

DATED 27th day of July 2016.

________________

DONNA WASHBROOK