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Wai 203 and Wai 339 Research Report
Ewan Johnston
WA1894#A14
A Report Commissioned by the Waitangi Tribunal June 2002
Table of Contents
Table of Contents ....................................................................................................................................... 1
List of Figures ............................................................................................................................................. 3
List of Tables ............................................................................................................................................... 4
List of Abbreviations .................................................................................................................................. 4
Section 1: Introduction to this Commission ........................................................................... 5
1.1 The Author ......................................................................................................................................... 5
1.2 The Wai 203 and Wai 339 Clams ................................................................................................... 5 1.2.1 Wai 203 ...................................................................................................................................... 5 1.2.2 Wai 339 ...................................................................................................................................... 8
1.3 Overlap with the Waitangi Tribunal's Ohiwa Harbour Report.. ................................................ g
1.4 The Wai 203/339 Research Report ............................................................................................... 10
1.5 Methodology ..................................................................................................................................... 10
Section 2: Upokorehe before the New Zealand Wars ............................................................ 11
2.1 Introduction ...................................................................................................................................... 11
2.2 Upokorehe's Relationship with Whakatohea and Tuhoe .......................................................... 15
2.3 The Impact of Inter-Tribal Conflicts ............................................................................................ 17
2.4 Contested Boundaries ..................................................................................................................... 19
2.5 Conclusion ........................................................................................................................................ 26
Section 3: Upokorehe and the New Zealand Wars ............................................................... 28
3.1 Introduction ...................................................................................................................................... 28
3.2 The Death ofVolkner ..................................................................................................................... 29
3.3 The Proclamation of Peace and the assault on the eastern Bay of Plenty ............................... 31
3.4 The Trial and Execution of Mokomoko ...................................................................................... 38
3.5 Mokomoko's Posthumous Pardon ................................................................................................ 43
3.6 The Impact of Continuing Conflict in the Eastern Bay of Plenty ............................................ 45
3.7 Conclusion ........................................................................................................................................ 47
Section 4: Raupatu - The Confiscation of Eastern Bay of Plenty Lands .............................. 49
4.1 Confiscation ...................................................................................................................................... 49
4.2 Wilson's Out-of-Court Arrangements .......................................................................................... 55
4.3 The Crown Grants of Hiwarau Block and Hokianga Island ..................................................... 56
4.4 The Compensation Court ............................................................................................................... 63
4.5 Conclusion ........................................................................................................................................ 68
1
Section 5: The Hiwarau Block .............................................................................................. 68
5.1 Nineteenth Century Native Land Court Claims ......................................................................... ;68
5.2 The 1935 and 1937 Petitions regarding Hiwarau ........................................................................ 71
5.3 Other Upokorehe Interests ............................................................................................................ 74
5.4 The Partition and Fragmentation of Hiwarau ............................................................................. 75
5.5 The Creation of Hiwarau C in 1969 .............................................................................................. 79 5.5. 1 Amalgamation and the role of the Maori Trustee ......................................................................... 80 5.5.2 The Hiwarau amalgamation hearings .......................................................................................... 81 5.5.3 Opposition to, and amendment of, the application ......................................................................... 88 5.5.4 The vesting ofHiwarau C in the Maori Trustee ........................................................................... 89 5.5.5 The extent to which Hiwarau owners participated in the amalgamation proceedings ....................... 91
Section 6: Hiwarau arid theMaoaTr1.iste:e:196~;.;1992~~;; ...................... ;;;; ••• ; .•••••.•• " .• , ••.•••..•• 92
6.1 1969-1981 .......................................................................................................................................... 92
6.2 Hiwarau Lands Trust, 1981 ............................................................................................................ 96
6.3 The Continuing Problem of the de Loree leases ......................................................................... 98
6.4 The Re-evaluation of the de Loree leases in 1985 .................................................................... 103
6.5 Attempts by the Office of the Maori Trustee to resolve the situation .................................. 107
6.6 The Re-entry and Surrender of the de Loree Leases, and the Owners' Growing
Dissatisfaction with the Maori Trustee ....................................................................................... 108
6.7 The Wai 339 Claim, and the Actions of Hiwarau Owners against the Maori Trustee ....... 111
6.8 Conclusion ...................................................................................................................................... 115
Section 7: Hiwarau from 1992 to the Present ....................................................................... 117
7.1 Post-Maori Trustee Administration of the Hiwarau block ...................................................... 117
7.2 The Removal of Hiwarau B1A from Hiwarau C in 1993 ........................................................ 120
7.3 Attempts to Cancel the Amalgamation of Hiwarau C ............................................................. 121
7.4 The Alienation of Hiwarau Land ................................................................................................. 123 7.4.1 Matekerepu Historic Reserve ..................................................................................................... 123 7.4.2 Maori Reservations ................................................................................................................... 127 7.4.3 Hiwarau B3C .......................................................................................................................... 127
7.5 Hokianga Island ............................................................................................................................. 129
7.6 Hiwarau Today ............................................................................................................................... 129
Section 8: Conclusion ........................................................................................................... 130
Bibliography ............................................................................................. '" ......................... 134
Appendices ........................................................................................................................... 138
Appendix 1: Waitangi Tribunal Direction Commissioning the Wai 203/339 Research Report.138 Appendix 2: The Wai 203 and Wai 339 Statements of Claim .......................................................... 139
2
List of Figures
Figure 1: Map of OWwa Harbour, showing Hiwarau block and Hokianga Island (Source:
Department of Survey and Land Information Topomap WHAKATANE, Infomap 260
W15 & W13/14, Edition 11988) ........................................................................................................... 6
Figure 2: Map submitted by Ngati Awa showing their view of their boundary with Whakatohea
(Source: Hirini Moko Mead and Te Roopu Whakaemi Korero 0 Ngati Awa, 'Whenua
Tautohetohe: Testing the Tribal Boundaries', a report prepared in support of claim Wai 46,
Research Report No. 13, Te Runanga 0 Ngati Awa, Whakatane, 21 November 1994 (Wai 46
rod, doc c7), p 17) ...................................................................................................................... " .......... 22
Figure 3: .. 'Whakatohea . Rohe'. (Soillc:e: 13ucidy. Mikaere, 'Exploratory Report to the Waitangi
Tribunal being an Historical Account of the confiscation of land in the Opotiki District',
1991 (Wai 87 rod, doc a1), Map 1) ...................................................................................................... 24
Figure 4: Points of Historical and Cultural Significance at OWwa Harbour, submitted to the
Waitangi Tribunal by Counsel for Upokorehe (Wai 46 rod, doc f3(a» ......................................... 25
Figure 5: Sketch map of contested boundaries, as identified by Wai 339 submissions to the
Waitangi Tribunal (Wai 46 rod, doc f3(c» ......................................................................................... 27
Figure 6: 'Sketch Map of the Opotiki Confiscated Block', Journal of the Legislative Council 1873, no
12, p 60 .................................................................................................................................................... 52
Figure 7: Plan of Hiwarau block, Grant to Teira Haruru, and others, 11 June 1886 (Source:
Closed File Series 16, 'Hiwarau', Waiariki Maori Land Court, Rotorua) ....................................... 61
Figure 8: The partition of the Hiwarau block into Hiwarau A and Hiwarau B, 1904 (Source: Box
45 Block Order file 64B, Hiwarau - Hiwarau A12 Titles, Miscellaneous; Box 46 Block
. Order file 65B, Hiwarau B Titles, Waiariki Maori Land Court, Rotorua) ..................................... 76
Figure 9: Hiwarau A and B prior to amalgamation into Hiwarau C (Source: LINZ: L&S Gisborne
Office, 20/114-SGS-02, Hiwarau Block, 25 September 1966 -1 April 1987) ............................. 78
Figure 10: Hiwarau C August 1971 (Source: LINZ: L&S Gisborne Office, 20/114-SGS-02,
Hiwarau Block, 25 September 1966 -1 April 1987) ........................................................................ 90
Figure 11: Matekerepu Historic Reserve, showing pa site and 1986 river diversion (Source: Lynda
C Bowers, Conservation Plan: Matekerepu Historic Reserve, Department of Conservation,
Bay of Plenty Conservancy, Rotorua, June 1993, appendix 3) ...................................................... 125
Figure 12: Hiwarau C November 1993 (Source: LINZ: DOSLI National Office, 6925/3526-1-
DNO, Maori Land Claims Hiwarau Block, 29 March 1993 -1 October 1998) ........................ 131
3
List of Tables
Table 1: The Creation, Partitioning, and Amalgamation of Hiwarau Blocks .................................... 77
Table 2: Hiwarau Block Valuations 1968 ............................................................................................... 84
Table 3: The Original Hiwarau C Leases ................................................................................................ 93
Table 4: Status of Blocks excluded from Hiwarau C ............................................................................ 93
Table 5: Status of Hiwarau Blocks, 2001 .............................................................................................. 130
AD
AJHR
ATL
CMS
DNZB
IA
LE
LINZ
MA
MA-MLP
NA
RDB
ROD
RbI
Wai
List of Abbreviations
Anny:Departtnentfile::;~NA
Appendices to the Journal of the House of Representatives
Alexander Turnbull Library
Church Missionary Society
Dictionary of New Zealand Biograpf?y
Internal Affairs Departtnent files, NA
Legislative Departtnent files, NA
Land Information New Zealand
Maori Affairs Departtnent files, NA
Maori Affairs, Maori Land Purchases Departtnent, NA
Archives New Zealand, Wellington
Raupatu Document Bank, 139 vols, Wellington, Waitangi Tribunal, 1990
record of documents
record of inquiry
Waitangi Tribunal claim prefix
4
Section 1: Introduction to this Commission
1.1 The Author
My name is Ewan Johnston and I am a research officer at the Waitangi Tribunal. I am a Pakeha
of predominandy Scottish descent and I live in Wellington. I was born and raised in Gisborne
and I have a PhD in history from the University of Auckland. I have tutored in history at the
University of Auckland and Victoria University of Wellington, and I have lectured in the Centre
for Pacific Studies at the University of Auckland. I come to the Waitangi Tribunal with a
background in the histories of cross-cultural encounters in the Pacific (including Aotearoa New
Zealand) during the colonial era.
In November 2001, I was commissioned by the WaitangiTribunal t6 researc:handwritea
scoping report to investigate the Treaty claims concerning the Upokorehe hapu (or members of
the hapu), and the Hiwarau C block, located at Ohiwa Harbour.1 See figure 1. This scoping
report identified specific issues arising from the claim, broadly surveyed the historical issues,
identified the relevant source materials, and anticipated the structure of this substantive report.
In December 2001, I was commissioned by the Waitangi Tribunal to complete this substantive
research report regarding these claims, incorporating the issues raised in the scoping report.2
I would like to acknowledge the contribution of Anita Miles to the writing of this report, and the
comments of Grant Phillipson.
1.2 The Wai 203 and Wai 339 Claims
1.2.1 Wai 203
On 14 May 1991, Tuiringa Mokomoko lodged a claim with the Waitangi Tribunal (Wai 203) on
behalf of himself and the members of the Mokomoko whanau of the Whakatohea iwi,
concerning the wrongful conviction and execution of the whanau's tipuna Mokomoko in April
1866 for the murder of the missionary Carl Sylvius Volkner at Opotiki in March 1865. The acts
or omissions of the Crown objected to in the claim, and raised as possible breaches of the
principles of the Treaty ofWaitangi, include:
• the Crown's invasion of the Opotiki area in 1866;
• the detention of Mokomoko and his subjection to military court-martial pursuant to the
Suppression of Rebellion Act 1863 for his alleged involvement in the murder ofVolkner;
1 Ewan Johnston, 'Wai 203/339 Scoping Report', a report commissioned by the Waitangi Tribunal, November 2001 (Wai 894 ROD, doc A7; Wai 203 ROD, doc A2; Wai 339 ROD, doc A2) 2 Copy of direction commissionittg research, appendix 1
5
Figure 1: Ohiwa Harbour, showing Hiwarau Block and Hokianga Island in <:lark outline [Source: Department of Survey and Land Information Topomap WHAKAT ANE, Infomap 260 W15 &iW13/14, Edition 1 1988]
• the decision to indict and prosecute Mokomoko for murder ill the Supreme Court at
Auckland;
• the execution of Mokomoko on 17 April 1866; and
• the decision to decline to grant an application for an acquittal and/or statutory pardon
brought on behalf of the Mokomoko family in 1990.3
On 15 June 1992, Mokomoko was granted a posthumous pardon, and this was presumed by the
Crown to have successfully completed negotiations of the claim.4 However, on 17 March 1994,
the Wai 203 statement of claim was amended to include the issue of the effects that the excessive
confiscations of Whakatohea land, and the unlawful execution of Mokomoko, had had on T e
Whanau-a-Mokomoko. These effects, it is claimed, 'were, and remain, extensive, perVasive and
economically and culturally devastating'. They include such things as 'the stigma of the name
Mokomoko as a convicted murderer which has followed the whanau down through the ages'; the
loss of mana; the loss of lands; and the 'loss of economic opportunity for our whanau following
the confiscation of our lands'. The amended statement of claim calls for 'the character, mana and
reputation of Te Whanau-a-Mokomoko be restored through the enactment of a statute to that
effect', and asks that 'the Crown take appropriate action to compensate' the whanau.5
In May 1994, the Waitangi Tribunal decided that the remaining Wai 203 issues, relating to the
effects of confiscation, would be best considered along with the Wai 87 Whakatohea Raupatu
claim,6 which was to be negotiated direcdy with the Crown. The Wai 203 claimants found these
negotiations to be unsatisfactory in respect of their particular claim issues, namely compensation
for the treatment of Mokomoko and the subsequent effects on his descendants. Following an
unsuccessful attempt to negotiate direcdy with the Crown, in October 1996 counsel for Wai 203
informed the Waitangi Tribunal that the claimants wished the claim to proceed to hearing.7 In
November 1999, claimant counsel informed the Tribunal that 'the Mokomoko whanau [ ... J wish
to continue towards a hearing date as soon as possible.'8 On 26 February 2001, a further request
was made to Margaret Wilson, Minister in Charge of Treaty of Waitangi Negotiations, to
negotiate the Wai 203 claim. In response, Wilson stated that 'current government policy is to
3 Wai 203 Statement of Claim, see appendix 2 4 D Graham, Minister of Justice, to B Mikaere, Waitangi Tribunal, 6 July 1992 (Wai 203 ROI)
5 Amendment to Wai 203 Statement of Claim, see appendix 2 6 Chief Judge E T J Durie, Waitangi Tribunal Direction to register amendment to Wai 203 claim, 7 May 1994 (Wai 203 ROI, 2.7) 7 McCaw Lewis Chapman to Waitangi Tribunal, 11 October 1996. A meeting with the Minister in charge of Treaty negotiations, Douglas Graham, took place on 30 November 1996. According to claimant counsel, Graham stated categorically that it was not Crown policy to negotiate with a whanau, and indicated that the Crown considered Mokomoko's pardon to be a full and final settlement. SR Clark, McCaw Lewis Chapman, to E Johnston, Waitangi Tribunal, 13 March 2002
7
negotiate claims with large natural groups not individual whanau such as the Mokomoko
whanau', and that the claim 'could be considered as part of any Whakatohea Treaty setdement
negotiations'. Regarding the Crown's failure to negotiate a setdement with Whakatohea, Wilson
advised that 'in order for the Whakatohea negotiations to begin again, the Crown would need to
be satisfied that any proposed negotiating body had a mandate to represent the Whakatohea
claimant community', adding that 'the matter would need to be considered afresh,.9
Regarding the issue of the prolonged intergenerational effects on the Mokomoko whanau
resulting from the alleged wrongful execution of Mokomoko and the excessive confiscation of
Whakatohea land, it was decided that this research report would draw attention to the treatment
ofMokomokoaf thet:irne;andatso ··tothe way in which Mokomoko has been treated in the
official histories and in public perception, as evidenced by the public record. However, in calling
for 'the character, mana and reputation of Te Whanau-a-Mokomoko be restored', it is perhaps
more appropriate for the claimants themselves to present submissions to the Waitangi Tribunal
regarding the impact of the stigma, and the loss of mana, associated with these events.
1.2.2 Wai 339
On 17 December 1992, Tuiringa Mokomoko, as chairperson of the Trustees of Hiwarau C block,
lodged a claim with the Waitangi Tribunal (Wai 339) concerning the circumstances relating to the
deterioration of the block. According to the statement of claim, prior to confiscation in 1866, the
original area of the land in question had comprised approximately 1321 acres, as well as four
islands. Following the 1866 confiscation, 1200 acres and one island were returned, according to
the statement of claim, to '30 women who were blamed with Mokomoko for the murder of
Volkner'. It is further claimed that from 1867 to 1962 the 1200 acres was reduced to 800 acres,
and that 'after 98 years we are left with mismanagement by the Land Court, and the Maori
Trustee. As a result we are left with [a] much run down block of land, no finance, and arrears of
rates and rent.'lO
In 1995 counsel for the Wai 339 claim made a submission to the Waitangi Tribunal's Wai 46
Ngati Awa and Eastern Bay of Plenty inquiry, as follows:
(a) Firsdy in opposition to where Ngati Awa's [sic] asserts that their eastern boundary line
exists.
8 McCaw Lewis Chapman to Waitangi Tribunal, 29 November 1999 9 Margaret Wilson, Minister in Charge of Treaty of Waitangi Negotiations, to Trueiti Moxon, McCaw Lewis Chapman,S April 2001 10 Wai 339 Statement of Claim, see appendix 2
8
(b) Secondly a substantive claim against the Crown for actions by it and its agents in:
(i) The confiscation of land. - Raupatu
(ii) The actions of the Compensation Court in 1874 in vesting traditional
Upokorehe lands in persons not entitled to them.
(iii) The inaction by the Maori Land Court in 1898 and 1939 in failing to right
the actions of the Compensation Court.
(iv) Insufficient compensation being allowed by the Sim Commission.
(v) Mismanagement by the Maori Trustee, an agent of the Crown, since 1969.
(vi) The treatment of Mokomoko.
According to this submission, the Wai 339 claim was brought by Tuiringa Mokomoko, 'on behalf
of members of Upokorehe hapu ~(th~Wh~k~tohea iwi; . F'lirtherrnore, the submissionsfatedthaT
'[e]ssentially the claim before the Tribunal, Wai 339, is by Upokorehe, a hapu of Whakatohea'.l1
Following the 1995 hearings, the Whakatohea Negotiating Committee, on behalf of
representatives of Up ok ore he, advised Mr Mokomoko's counsel that they considered the claim to
be a private claim by Mr Mokomoko, and that 'the involvement of Upokorehe was purely to
"awhi" and "tautoko" Mr Mokomoko at the Waitangi Tribunal hearings'.12 At the Waitangi
Tribunal's first Urewera inquiry judicial conference, held at Ruatoki, on 26-27 March 2002,
counsel for Mr Mokomoko stated that the Wai 339 claim was by Mr Mokomoko as an individual,
on behalf of members of the Mokomoko whanau with interests in Hiwarau C.
1.3 Overlap with the Waitangi Tribunal's Ohiwa Harbour Report
Evidence suggests that Ohiwa Harbour was one of the most densely settled areas in pre
European Aotearoa.13 As such, the harbour was, and remains, a hotly contested resource. Four
iwi and hapu claims concerning Ohiwa Harbour have been submitted to the Waitangi Tribunal:
Wai 36 Games Wharehuia Milroy and T R Nikora, on behalf of the Tuhoe tribe); Wai 46 (Hirini
Moko Mead, for Ngati Awa); Wai 87 (Claude Augustin Edwards, for the Whakatohea Maori
Trust Board); and Wai 339 (Tuiringa Mokomoko, for Hiwarau C block beneficiaries, who are of
the Upokorehe hapu ofTe Whakatohea iwi).
The Waitangi Tribunal has commissioned a substantive report to investigate Treaty claims
concerning Ohiwa Harbour, a scoping report for which has been completed by Anita Miles Gune
11 Submissions of Counsel for Upokorehe (Wai 46 ROD, doc F3), pp 1-2 12 John Delamere, Whakatohea Negotiating Committee, to S R Clark, McCaw Lewis Chapman, 1 November 1995 13 Anita Miles, Te Urewera, Rangahaua Whanui District Overview Report, Waitangi Tribunal, 1999, p 41; Te Roopu Whakaemi Korero 0 Ngati Awa, 'Ohiwa', a report commissioned by Te Runanga 0 Ngati Awa, Whakatane, November 1995 (Wai 46 ROD, doc Ll0), p 5
9
2001). Miles points out that while 'it must be borne in mind that claims to the Waitangi Tribunal
are made against the Crown',
it seems implicit in the claims concerning Ohiwa, that one grievance is the Crown's failure to
appreciate the complexity of Maori iwi and hapu relations at Ohiwa. This has, some claimants
argue, resulted in the Crown dealing with the wrong people, returning 'outsiders' to land
rightfully belonging to tangata whenua, and failing to recognise who were, or are, the
appropriate iwi authorities to deal with in regard to the harbour.14
The Waitangi Tribunal decided that a separate report was needed to focus specifically upon the
claim concerning the Hiwarau block lodged with the Tribunal by Tuiringa Mokomoko on behalf
of members of Upokorehe (Wai 339). This report will not only enable Upokorehe to have their
interests in the harbour documented for incorporation into the wider Ohiwa Harbour report, but
will go into more detail regarding the specific issues identified in the Wai 339 claim. Care will be
taken to minimise overlap between the two reports, with the exception of narrative information
that will clearly pertain to both. It must be stressed that the Ohiwa Harbour report is being
undertaken to assist the Waitangi Tribunal's inquiry into the Urewera district claims, and is
therefore not designed to advocate on behalf of any particular claimant group or groups in
support of any particular claim.
1.4 The Wai 203/339 Research Report
The Wai 203/339 Research Report is divided into several sections. The first focuses on the
history of Upokorehe prior to the New Zealand wars. The second deals with the experience of
Upokorehe during this conflict, and with the actions and treatment of Mokomoko. The third
looks at the confiscation of Up ok ore he lands in 1866 and the Crown grant of the Hiwarau block
and Hokianga Island. The next three sections trace the history of the Hiwarau block from its
creation in 1872 to its present status.
1.5 Methodology
In producing this research report I have drawn upon a number of other reports, including those
written by Anita Miles, Bryan Gilling,Judith Binney and Jeffrey Sissons.15 I have also made use of
14 Anita Miles, 'Ohiwa Harbour Scoping Report', a report commissioned by the Waitangi Tribunal, June 2001, (Wai 339 ROD, doc Ai), pp 4, 9-10 15 Miles, Te Urewera; Miles, 'Ohiwa Harbour Scoping Report'; Bryan D Gilling, 'Te Raupatu a Te Whakatohea: The Confiscation of Whakatohea Land 1865-1866', 1994 (Wai 87 ROD, doc A3); Judith Binney, 'Encircled Lands, Part One: A History of the Urewera from European Contact until 1878', a report commissioned by Crown Forestry Rental Trust, Draft Version, August 2001; Jeffrey Sissons, 'Blocked In, Forced Out: A History of the Waimana Block and Other Tauranga Valley Lands', a report commissioned by Crown Forestry Rental Trust, Draft Version, June 2001
10
submissions made to the Waitangi Tribunal by Upokorehe counsel during the Wai 46 Ngati Awa
and Eastern Bay of Plenty inquiry.16 Published official documents from the Appendices to the Journal
of the House of Representatives, the New Zealand Gazette, and the Waitangi Tribunal's Raupatu
Document Bank were consulted, as was material from the Alexander Turnbull Library, Archives
New Zealand, Land Information New Zealand (LINZ) , the Maori Land Court (Waiariki), the
Office of the Maori Trustee, and the Department of Conservation Resource Centre (Wellington).
Claimant counsel was consulted during the production of this research report, and a meeting was
held with claimants at Kutarere Marae on 21 November 2001.
Section2:U p()k()rehebefore the NewZealandWats
2.1 Introduction
According to A C Lyall's Whakatohea ofOpotiki,
The roots of Upoko-Rehe go deep. There is an element of Mataatua origin, but also much
tangata whenua from Te Hapu-Oneone, the early inhabitants of the Ohiwa area. Tamatea is
shared with Ngati-Ira as an ancestor and there is a connection with the Poverty Bay tribes
from their eponymous forbear Rongo Whakaata. Although there is much emphasis on
Haeora and Raumoa as important ancestors, it is evident from the various whakapapa that
Tairongo holds a position of great importance in determining their origins.17
Lyall recorded that over a period of many generations or several hundred years, Upokorehe 'and
their forefathers had at varying times occupied an extremely extensive area from western Ohiwa
to the Waioeka River; from Ohiwa and Waiotahi headlands, up the Waiotahi Valley to the
interior at Kaharoa.' He described the 'inland domains of Upoko-Rehe in later times', as
'including the whole valley of the Waiotahi stretching south to Kaharoa and bounded by the high
ridge lines to east and west. An extension of these lines to the north,' he concluded, 'would
approximately encompass their coastal preserves.'18 In Tuhoe: The Children of the Mist, Els40n Best
identified 'Te Kaha-roa' as being 'on the Wai-iti stream, a tributary of the Tauranga River (right
bank),. This, he stated, 'seems to have been' the 'principal pa [ ... J and rallying point' of Te
Whakatane.19
Best provided the following information regarding Upokorehe:
16 Submissions of Counsel for Upokorehe (Wai 46 ROD, doc F3) 17 A C Lyall, Whakatohea ofOpotiki, Wellington, Reed, 1979, p 68 18 Lyall, pp 74-75; Lyall adds that 'Residents of Opotiki are familiar with Taketakerau, the giant Upoko-Rehe burial puriri which grows in the Hikutaia domain, sixty-seven feet in circumference and an estimated 1000 years old'. 19 Elsdon Best, T uhoe: The Children of the Mist, 2 vol, 2nd ed, Wellington, Reed, 1972, vol 1, P 90
11
The people known by this tribal name lived in the Wai-o-tahe valley, and at O-hiwa. They are
descended in part from Rau-moa (Genealogical Table No. 16), and also from Hae-ora
(Genealogical Table No. 14, etc.), hence they are related to Ngati-Rau-moa, Te Whakatane,
etc. they are not a Tuhoe clan. Although defeated by the latter, they were not incorporated
with that people, but moved away to O-potiki. Their numbers are very small now, a few are
living at O-hiwa, etc. They are also descended from Tamatea, an ancestor ofTe Whakatohea,
who came from Hawaiki in the Tu-whenua canoe, it is said, and who flourished about 16 or
17 generations ago, according to Paora Te Pakihi. Te Upoko-rehe were awarded a portion of
the Tahora No.2 Block by the Native Land Court. Puhi-rake, Orona, Tuhua and Toko-rangi
were some of the Upoko-rehe pa at Wai-o-tahe. Tuhua is situated on a hill peak on the left
bank of the Wai-o-tahi stream, near the Waka-taua native village. It is now planted with
pines.20 Urona}tiis . oiiaspUi:jlls1:so11thof,andll.ear Tuhua:TheWaiwherocreekruns
between them. These two forts are mentioned in an old watch song (whakaaraara pa), sung by
sentinels when on night watch on the fighting stages of these primitive strongholds - .
"Kai Tuhua pea
Kai Orona pea
He kore tangata ki tua
Ki te kope 0 Tama-tea
Te hurua, te rawea
Te tau mai-e-e-e-i-a."
The Toko-rangi pa stands on a hill just above the Waka-taua kainga, on the right bank of the
Wai-o-tahe, opposite Orona. The Puhi-rake pa is situated on Mr. Chapman's farm at Wai-o
tahi. At the time when Tama-wera and Paihau were the principal chiefs of these forts, they
were attacked and defeated by a strong force of enemies, whereupon they fled to Te Motu, at
O-hiwa, where they were again attacked and almost annihilated. Some escaped down the cliff
by means of ropes.
When Te Upoko-rehe were living at Wai-o-eka among Te Whakatohea, to whom t~ey were
related, they slew some of their neighbours, upon which they were attacked and driven away
by Te Whakatohea. They fled to Wai-o-tahe, or O-hiwa. They were also attacked by the same
tribe when living at the Puhi-rake pa, and again defeated. Of a verity the stars in their courses
seem to have fought against Te Upoko-rehe. They were scattered to the four winds.
When Ngati-Maru, of Hauraki, armed with guns, raided the Whakatohea coast, they took
many of those people as captives to Hau-raki, including some of Te Upoko-rehe. When
released they came down to Tauranga (on coast, Bay of Plenty north). Titoko, of Te
20 Best notes that 'Tahua pa is on Mr. Gordon's farm'
12
Whakatohea, went there and brought them home by sea, or at least as far as Te Ara-whaiti,
near Whakatane.21
The name Upokorehe, Best noted, is derived from 'a singular circumstance':
When a certain ancestor of theirs died, his head was cut off and preserved (dried), after the
manner Maori. But the job was badly done, the skin was not tied under the neck to keep it
taut and smooth, hence it wrinkled much when the head was dried. So his descendants
assumed the tribal name ofTe Upoko-rehe - the Wrinkled Head.22
While Lyall stated that the identity of the particular ancestor is unknown (but is said to date 'from
the time of Kahuki'), evidence presented by a member of Upokoreh~·t<:>·th~N~tiveL~nd Court
in 1939 states that the ancestor's name was Taikurere, and that 'the real Upokorehe are the
descendants ofTaikurere and these only'.23
Best also recorded the following information, regarding Ngati Raumoa, and their relationship
with Te Upokorehe:
The descendants of Rau-moa [ ... ] originally lived at Te Wai-mana, their principal pa being
Orupe [ ... ] Rau-moa, the ancestor, lived at that place. Te Pawa seems also to have been a
Ngati-Rau-moa pa [ ... ]
Rau-moa, from whom the clan derived its name had rights to lands at O-hiwa and the Wai
mana. Ngati-Rau-moa were descended from Te Hapu-oneone tribe, and also from Rongo
whakaata of Turanga (poverty Bay)
Ngati-Rau-moa were also connected with the Ngai-Tama, Whakatohea and Upoko-rehe
clans. They are not a portion of the Tuhoe tribe, having been driven from the Wai-mana
before Tuhoe gained possession of that place. Ngati Rau-moa were awarded shares in the
Wai-mana Block, for Turangapikitoi and Rau-moa were the true ancestors for that land [ ... ]
Several small clans of the Wai-mana district, connected with Ngati-Rau-moa, were defeated
by Tuhoe at that place, and on the Tahora No.2 Block. It is also recorded that Ngati-Rau
moa and Te Upoko-rehe (clan) were defeated by Ngati-Awa, which probably refers to an
incident in the expelling of Te Kareke and Ngati-Raka from the Whakatane valley ...
Probably the most crushing defeat sustained by Ngati-Rau-moa was on the field of Te
21 Best, vol 1, pp 89-90 22 Best, vol 1, p 90
13
Kahikatea, at Wai-o-tahe, where Tuhoe harassed them and Te Upoko-rehe with much
vigour.'24
He also provides the following 'account of the circumstances which led to the fight at Te
Kahikatea':
A party of Tuhoe, including Tama-hore, brother of Te Purewa 1., were on their way to
Whakatane to visit Ngati-Pukeko. They had with them some presents for Kihi, a chief of
that tribe. On their way down the Whakatane valley they camped at Pukahu-nui,25 situated on
the road-side about 30 chains north of the Whakatane Butter Factory at Te Hurepo. At the
same time a party of Te Whakatohea happened to be descending the range east of Mr.
Crapp's homestead when they espied the patty of Tuhoe in camp. The result was a surprise
attack, in which Tuhoe were defeated, losing Tama-hore, and others killed. The survivors
scattered and fled. The victors regaled themselves upon the bodies of the slain, and certain
stores of preserved birds which were being taken by Tuhoe as presents for Kihi.
Te Purewa 1., brother of Tama-hore, raised a taua a toto, or blood-vengeance party, and
followed the Whakatohea. He found them at Whitiwhiti, at O-hiwa, where he attacked them,
slaying several. This patty then returned home. But Te Purewa still grieved over the death of
his brother. He enlisted the services of Te Ahuru and others, and a force of Tuhoe matched
against the Whakatohea. They assaulted and took the Whakatohea pa of Te Papa, which
stood on the left bank of the Wai-o-eka River, near the blue gum trees opposite the Wai-o
eka bridge, and close to the western end of the bridge.
Te I<ahikatea is a place situated in the valley of the Wai-o-tahe stream, some miles up stream
from the Waka-taua native settlement, where the descendants of Mura-hioi live.26 Te Upoko
rehe and Ngati-Rau-moa were living there and, as we have seen, had several fortified places
about Waka-taua. They were attacked at Te Kahikatea by a force of the Tama-kai-moana clan
of Maunga-pohatu, and were defeated, losing the chiefs Tama-mutu and I<awhata slain.
About 48 others of Te Upoko-rehe were killed ... After the Upoko-rehe :were driven away
from Wai-o-tahe, the upper part of the valley of that stream was occupied by the Whakatane
tribe, many of whom were also members of the Tuhoe tribe. Hence we see descendants of
Tuhoe now living at Waka-taua. Tama-i-koha and Netana Te Whakaati are two leading men
23 Lyall, p 68; Opotiki minute book 30, fols 11-18, 19 July 1939 (RDB vol 58, P 22299) 24 Best, pp 87-88 25 Best notes that Pukahu-nui was also known as 'Te Pukahu' 26 Best notes that 'Te Kahikatea is south of O-Kahu-nui stream, east of Wai-o-tahe River'
14
of that part. Te Upoko-rehe were formerly the principal people of O-hiwa, but their star of
empire set in the gloomy days of 90 years ago.27
2.2 Upokorehe's Relationship with Whakatohea and Tuhoe
Jeffrey Sis sons has provided an overview of the relationship between Upokorehe and Tuhoe,
with particular reference to the significance of the Waimana community as a link between Tuhoe
and the coast (Ohiwa harbour).28 'The Waimana Valley,' as Miles has stated, 'was the 'corridor'
linking the tidal inlet of Te Tauranga waka, where canoes were kept, with Te Raroa leading into
Waimana.'29 Sissons argues that 'traditional evidence indicates that both Ngai Turanga and Te
Upokorehe remained in occupation of Te Waimana up until the 1820s when the people were
forced to flee inland to escape the NgaPuhiraids.'He also refers to 'traditions which record that
Tuhoe were invited to Te Waimana by Te Upokorehe' and that there was considerable
intermarriage between the two groupS.30 According to evidence submitted by Tuiringa
Mokomoko in support of Upokorehe's claim, Mokomoko's third wife, Hirotipa, was Tuhoe and
'a sister to the Tuhoe chief - Tamaikoha,.31 Furthermore, Tamaikoha's wife, Titia, was listed as
Upokorehe in the schedule of owners of the Waimana block in 1882.32
Tuhoe's connections with Ohiwa were mediated through the relationship between Te Whakatane
and Upokorehe. Lyall notes that while in earlier times there had been a strong affinity between
Upokorehe and Te Whakatane, this was eroded through conflict between Upokorehe and Tuhoe.
This had the effect of drawing Te Whakatane closer to Tuhoe generally, and strengthening the
relationship between Upokorehe and Whakatohea 'to whom they frequently looked for shelter';
In those very early times when Haeora and Irapuae set up their boundaries there would
presumably have been family groups springing from different sources, some occupying the
bush-clad hinterland and others the harbour and coastal areas of Ohiwa and Waiotahi.
These people who had come to be related through Tamatea gradually fused into an
identifiable unit when the population pressures brought disharmony with neighbouring
27 Best, pp 400-403; Best adds that 'A war party of Te Whakatohea, under Hine-auahi, killed Te Paenga and many others of Tuhoe at a setdement at the mouth of the Wai-iti tributary of the Tauranga River, but I have no particulars anent that raid. A pit was dug to mark the spot where Te Paenga was slain.' 28 Sis sons, 'Blocked In, Forced Out', Draft Version, June 2001, introduction; ch 1, pp 1£f 29 Miles, Te Urewera, pp 45-46; Miles cites Te Wharehuia Milroy and Hirini Melbourne, 'Te Roi 0 te Whenua', 1995 (Wai 36 ROD, doc A4), pp 64, 66 30 Sissons, 'Blocked In, Forced Out', Draft Version,June 2001, ch 1, P 2 31 Evidence ofT Mokomoko (Wai 46 ROD, doc F3, app 23) 32 Sissons, 'Blocked In, Forced Out', Draft Version,June 2001, ch 2, P 15
15
tribes. It was their custom when attacked on the coast to melt into the concealment of their
inland domains and, no doubt, vice verse from inland to coast.33
'These conflicts,' Miles writes, 'continued well into the nineteenth century and coloured the
relationship between Te Whakatane and Te Upokorehe in the aftermath of the eastern Bay of
Plenty confiscation of 1866'.34
Upokorehe claimants have stated that the encroaching control exerted by Tuhoe over portions of
the southern and eastern Ohiwa Harbour was upset by their defeat at Maraetotara at the hands of
Whakatohea, in about 1823. They claim that, following this battle, the chief Te Rupe 'took
control of theOhiwa Harbour f.rom Tuhoe,.35AccordingJo a report written py KevinWe!t':,t11t':
batde at the mouth of the Maraetotara River,
clearly established the Whakatohea boundary West of the Maraetotara Stream and [ ... ] lost
for the Tuhoe people their vital access to the sea and the Ohiwa Harbour. Whakatohea and
Tuhoe from then had an understanding which permitted access by the Tuhoe people to the
Ohiwa Harbour over the Whakatohea land.36
Ngati Awa claimants have argued that while Tuhoe had access to Ohiwa through their
connections with Upokorehe, access 'is not the same as having rights of occupation and
ownership over the land.'37 Mr Mokomoko's evidence to the Waitangi Tribunal suggests that
Whakatohea and Tuhoe came to an understanding concerning use of the harbour, but does not
mention adjacent land rights:
Full control of Te Moana 0 Tairongo [Ohiwa] lay with Te Upokorehe after the batde of Te
Maraetotara, and was never relinquished. Tuhoe's mana was not diminished after that batde
- Upokorehe/Whakatohea allowed Tuhoe full access to Te Moana 0 Tairongo and the sea
through Wainui, Tewaingarara and the Matakerepu rivers or streams and the Waiotahe river.
Tuhoe still have that access to this day, and happily share the mana-moana with Whakatohea,
and this is also reflected in their right of access to fish quota. Ruamoko a chief of
Whakatohea made sure that the control of Ohiwa remained with Upokorehe. He had
numerous skirmishes with Tuhoe.38
33 Lyall, p 70 34 Miles, 'Ohiwa Harbout Scoping Report', p 11 35 Evidence of T Mokomoko 36 Kevin Were, 'Mokomoko - Out Tipuna' (Wai 46 ROD, doc F3, app 13), p 1 37 Te Roopu Whakaemi Korero 0 Ngati Awa, 'Ohiwa', p 3 38 Evidence ofT Mokomoko
16
At the time of the confiscation of Bay of Plenty land in the 1860s, it is evident that there were
Tuhoe living around Ohiwa Harbour. Miles has shown that Hemi Kakitu and other Tuhoe chiefs
'lived and cultivated on Hiwarau lands with Upokorehe kin', and that the chief Rakuraku and his
people occupied Whakarae pa and adjacent lands near the southern shore of Ohiwa.39
Judith Binney, following Angela Ballara, has stated that, due to their close ties, in the early
nineteenth century Pakeha may well have identified some of Tuhoe's neighbours, including
Upokorehe, as being Tuhoe. At the same time, she continues, Pakeha also identified Upokorehe
as being of Whakatohea. 'In actuality', Binney writes, 'Te Upokorehe was [ ... ] a small tribe. It was
closely intermarried with both its neighbouring iwi, but it perceived itself as an entity, however few
its·numbers'. As· well as·identifyinghimselfas belonging to Tuhoe from Ruatoki; HemiKakituis
also described by Binney as Upokorehe's 'key leader in the 1860s'. She argues that it was due to
the military assistance he gave to the government, that Upokorehe was rewarded with the
Hiwarau block and Hokianga Island.40
2.3 The Impact of Inter-Tribal Conflicts
In describing the impact of inter-tribal conflicts upon Upokorehe, Best wrote (somewhat
dramatically) that, '[o]f a verity the stars in their courses seem to have fought against Te Upoko
rehe. They were scattered to the four windS.,41
The end of hostilities between Tuhoe and Whakatohea, according to Lyall, was 'the result of the
severity of the raids that came from northern groups as well as the arrival of Europeans in the
district.'42 The impact of the Ngati Maru and Nga Puhi raids to the eastern Bay of Plenty on
Whakatohea alone, he states, was so severe that it is unlikely that they ever regained their former
military strength.43 Evidence submitted to the Waitangi Tribunal by Upokorehe states that, as a
result of 'the Nga PUhi invasions, at this critical pre-Treaty period Whakatohea were relatively
speaking, not a strong people', and that '[t]hese pre-Treaty events help explain why the Treaty
was signed.,44
There were also ongoing and severe conflicts between Ngati Awa and Whakatohea over, amongst
other things, control of sections of Ohiwa Harbour. Such evidence, Miles has concluded,
39 Miles, Te Urewera, pp 45-46 40 Binney, 'Encircled Lands, Part One', Draft Version, August 2001, ch 1, P 11; Angela Ballara, IWI:' The Dynamics oj Maol1' Tribal Organisation from c.1769 to c.1945, Wellington, Victoria University Press, 1998, pp 290-301; Lyall, pp 68-76 41 Best, vall, p 90 42 Miles, 'Ohiwa Harbour Scoping Report', p 12. Miles cites Lyall, pp 138, 140 43 Lyall, p 141
17
'suggests that it was near impossible for anyone iwi to claim control of Ohiwa Harbour in the
two decades preceding the signing of the Treaty ofWaitangi.,45
This point is also expressed in the 'Whakatohea Case Commentary in Preparation for Final
Report to the Waitangi Tribunal', presented to a hui of all the hapu of Whakatohea at
Omarumutu Marae, 7 November 1992 (Wai 87 ROD, doc A2), which was annexed to the Wai 339
submission to the Waitangi Tribunal:
We make the point that there are many ancestral Whakatohea names in and around the
harbour. Some of these are based on Whakatohea's relationship with Te Whakatane, an
earlier.tribe.,Pre~Treaty,.thewhole Ohiwawesternbounda,ty. is .essentiallydisputed.l:ltlds~Ihe
same applies to the southern reaches of our boundary in regard to Tuhoe. Certain branches
of Tuhoe intermarried closely with the Upokorehe people.
While in recent times Ngatiawa have claimed much of Ohiwa for themselves, there are no
traditional Ngatiawa names there. From the time of the Ngapuhi raids, however, Ngatiawa
began to establish footholds in the area.46
During the late 1820s, as incidents and levels of violence increased at Ohiwa, Ngati Awa
combined with Ngati Maru to defeat Whakatohea at Te Papa, resulting in a marked shift in the
balance of power with the majority of Whakatohea being forced from their rohe. Lyall gives the
date of the attack on Te Papa as 1830, and states that among those taken prisoner were members
of Upokorehe.47
Following their victory at Te Papa, Ngati Awa claim that their hapu occupied Ohiwa harbour in
its entirety:
Whakatohea were never able to recover fully from this defeat despite later protests and
claims of ownership to some parts of Ohiwa [ ... J Ngati -Awa had acquired the land by
conquest, maintained occupation of that area since that time and the mana whenua of the
area has since remained with them.48
44 'Whakatohea Case Commentary in Preparation for Final Report to the Waitangi Tribunal', presented to a hui of all the hapu of Whakatohea at Omarumutu Marae, 7 November 1992 (Wai 87 ROD, doc A2), pp 9-10 45 Miles, 'Ohiwa Harbour Scoping Report', p 12 46 Whakatohea Case Commentary, p 5 47 Lyall, pp 144-5 48 Te Roopu Whakaemi 0 NgatiAwa, 'Ohiwa', p 7, cited in Miles, 'Ohiwa Harbour Scoping Report', pp 14-15
18
Bryan Gilling has noted that, in regard to the Ngati Mare assaults on Whakatohea, it was Ngati
Ira and Upokorehe who suffered the most, and that the conflicts of the 1820s and 1830s
'apparendy left the coastal fringe centred on Opotiki virtually deserted by Whakatohea.,49
Whakatohea did, however, return to Ohiwa and Opotiki, led by the chief Titoko who, Lyall
states, 'seems to have attained considerable mana [ ... ] and there was a gradual recovery of
Whakatohea in strength and numbers with Titoko assuming a prominent leadership role'.50
As a result of the inter-tribal conflicts Upokorehe were left in a weakened state relative to those
around them. However, following the period of temporary displacement during the 1830s,
Upokorehe claim to have continued to occupy their ancestral lands at Ohiwa under the
WhaKatohea chiefMokomoko.51
2.4 Contested Boundaries
In the context of both the historical and contemporary claims to Ohiwa and its surrounds, the
concept of 'boundary' is problematic. As Miles points out, 'it implies that it is possible to
represent iwi interests by definitive lines drawn on a map'. Furthermore, in reference to the
eastern Bay of Plenty, Miles refers to cotnments made by the Ngati Awa Tribunal 'in
consideration of claimant submissions on the concept of whenua tautohetohe (or contested
lands):
The question of where boundaries lie between contending iwi assumed such boundaries
existed. The Tribunal is not entirely convinced that iwi were arranged as state-like institutions
with borders of approximate definition fuzzed only by contestable zones.
It appears that in several districts, the overlaps were extensive. This district [the eastern Bay
of Plenty] may not be an exception. It further appears that there are many instances of
discrete tribal enclaves within larger compacts and also, of the maintenance of resource
rights in local areas by distant hapu, holding such access of their own authority and not as
clients oflocal regimes.52
49 Gilling, P 5 50 Lyall, p 147 51 Submissions of Counsel for Upokorehe, p 5 52 'Directions, memoranda, on procedure, evidence, issues, review ofNgati Awa claims, 11.11.94', Wai 46 and Others ROD, doc 2.59, para 5.2; cited in Miles, Te Urewera, p 482
19
It might therefore, as Miles points out in reference to Tuhoe, 'be more useful not to discuss
boundaries per se, but dominant areas of influence,'53 and this is relevant for all claimants to the
Ohiwa harbour area.
The Tribunal's NgatiAwa Raupatu Report reached the conclusion that:
Taking a European view of matters, it is considered that the boundaries between Ngati Awa,
Whakatohea, Tuhoe, and Te Arawa are indistinct. To insist that the groups should deftne the
boundary lines between them is to ask them to do that which is culturally impossible, or that
which is an affront to cultural values. The relationships between the groups have been such
that each can point to sites of ancestral signiftcance to it well within the territories of the
others, and each can whakapapa to persons who lived in the kainga of another group.
Taking a broad view, however, it may be seen that, to the east of the Ngati Awa heartlands,
Ngati Awa merged with Whakatohea and Tuhoe at Ohiwa Harbour, and that the harbour
itself was shared by all three. It may also have been shared with other groups as well, Te
Whanau-a-Apanui being mentioned in that context. Similarly, on a broad view, while the
lands between the coast and the southern conftscation line were predominantly held by hapu
of Ngati Awa, Tuhoe had substantial interests in places on either side of the border, just as
Ngati Awa had interests beyond the border. This is not to deny that, in addition, Tuhoe can
claim historical associations with sites much closer to the coast.
The report goes on to conclude 'that Ngati Awa had by far the predominant interest in the
confiscated land as far as the Ohiwa Harbour',54 that is, to the west of the harbour.
One of the principal concerns of the Wai 339 claim is the eastern boundary claimed by Ngati
Awa in the Waitangi Tribunal's Wai 46 Ngati Awa and Eastern Bay of Plenty inquiry. This
boundary follows 'the confiscation line [to] where it intercepts the Nukuhou River. From there it
travels north along the west bank of the Nukuhou Riyer to its mouth in the Ohiwa Harbour.
From there the line travels to a point midway between the heads of the Ohiwa Harbour,.55 See
53 Miles, Te Urewera, p 482 54 Waitangi Tribunal, Ngati Awa Raupatu Report, Wai 46, Waitangi Tribunal Report, Wellington, Legislation Direct, 1999, p 134 55 Submissions of Counsel for Upokorehe, p 2; 'Ngati Awa Boundary', dated 21 February 1995 (\X1ai 46 ROD, doc F3, app 4). See also 'Map 2: The claimants' views of their boundaries', Waitangi Tribunal, Ngati Awa Raupatu Report, p 9. Ngati Awa refer to a boundary described in a petition by Te Hurinui Apanui, on behalf of Ngati Awa, to the Crown in 1922. This boundary is described as 'Starting from the mouth of the Ohiwa river that is from Turae-o-Kanawa it runs in a Southerly direction in the stream to Kutarere, Tirotirowhetu, Te Puaroa Pa thence to Arapopo, thence to Te Roto at Matamoe, Weraakihi, Te Akamutu thence meeting the boundary of the lands taken by conquest [ ... r The boundary then turns west, following, approximately, the confiscation line. When this boundary returns to the coast, it continues east back to 'the mouth of the Ohiwa River that is to Turae-o-Kanawa'. Te Roopu Whakaemi Korero 0
20
figure 2. According to the evidence of Mr Mokomoko, 'Ngatiawa have never had Occupation
Rights [to Ohiwa Harbour] prior to 1840 - apart from their treacherous siding with Ngati Maru
and Nga Puhi in the 1830s, which was only temporary.'56
The Upokorehe submission refers to a 'purported' dividing boundary line agreed to by Ngati
Awa and Whakatohea in April 1991. This agreement, they claim, was based on an agreement
signed by an individual member of Whakatohea without the consultation of Whakatohea or
Upokorehe, and they therefore reject it. Furthermore, they argue that this was not the boundary
claimed by Whakatohea as stated in the Whakatohea Raupatu claim (Wai 87), and that 'it does
not accord with what Upokorehe understand to be their historical western boundary line,.57
The Upokorehe submission provides evidence of the Whakatohea traditional tribal boundary
given by Te Hoeroa Horokai and Heremia Hoera to the Native Land Claims Commission in
1920.58 Te Hoeroa Horokai (Whakatohea) provided the following description of part of
Whakatohea's ancestral tribal boundaries:
Commencing at Pakihi at the mouth of the river, along sea coast to mouth of Waiotahe
stream, to mouth of Ohlwa stream, to Te How (a hill), thence striking inland southwards to
Puhlkoko (a hill), by straight line to Pukemoremore (a hill), thence to Mapouriki (a hill) (at
one time a fighting pa), then descending into Waimana stream Mapouriki being on the bank,
following the Waimana stream towards its source at Tautautahi (a hill along the banks), to
the mouth of the Parau stream, then following Parau stream to Tangata-e-roha (a hill), to
Kaharoa (an old settlement).
These boundaries, he continued,
Ngati Awa, 'The Tuhoe Tribal Boundary: an interim Ngati Awa response' Whakatane, 20 September 1995 (Wai 46 ROD, doc H17) 56 Evidence ofT Mokomoko, p 2 57 Submissions of Counsel for Upokorehe, p 4. A report submitted by Ngati Awa during the Waitangi Tribunal's Wai 46 Ngati Awa and Eastern Bay of Plenty inquiry, refers to a meeting between the Trust Boards of Whakatohea and Ngati Awa to discuss the boundary on 4 April 1991. 'The solution,' the report states, 'was to follow the spirit of the Titoko-Taihau accord [between Titoko of Whakatohea and Keepa Toihau of Ngati Awa] and maintain good relations between the two parties. While there is some doubt as to where they set the boundary the meeting decided that the Nukuhou River was seen today as a fair dividing line. This requires Ngati Awa to give some ground as a measure of goodwill and to accommodate changes such as the setdement of Upokorehe at Hiwarau.' Hirini Moko Mead and Te Roopu Whakaemi Koreto 0 Ngati Awa, 'Whenua Tautohetohe: Testing the Tribal Boundaries', a report prepared in support of claim Wai 46, Research Report No. 13, Te Runanga 0 Ngati Awa, Whakatane, 21 November 1994 (Wai 46 ROD, doc C7), P 22 58 Submissions of Counsel for Upokorehe, p 3
21
TaraW8ra RlvBr
Whakatane ~ (~;. r----\~,~-----------J----------~
Wh'''''ta"'"1.
.~~./ AI....
Putauakl 'F' .Te Mahoe
Matahlna •
I
Figure 2: Map submitted by Ngati Awa showing their view of their boundary with Whakatohea (The dotted line indicates the boundary line contested by Upokorehe)
Source: Hirini Moko Mead and Te Roopu Whakaemi Korero 0 Ngati Awa, 'Whenua Tautohetohe: Testing the Tribal Boundaries', a report prepared in support of claim Wai 46, Research Report No. 13, Te Runanga 0 Ngati
Awa, Whakatane, 21 November 1994 (Wai 46 ROD, doc c7), P 17
are for the lands of Upokorehe, Ngatingahere, Ngatirua and the other three hapus. The hapu
who occupied within the boundaries I described were the Upokorehe. From this onwards
belonged to Ngatiira.
The tribes on Whakatane side of boundary are Ngatiawa from Te Horo inland; Ngatipukeko
further inland at Poroporo; further inland there were the Tuhoe tribe.
The remainder of the Whakatohea boundary, from where Te Hoeroa Horokai finished at
Kaharoa to where he began at Pakihi, was provided by Heremia Hoera.59 Buddy Mikaere, who
estimates the total area as being roughly 490,000 acres, has sketched these boundaries in his
report on the confiscation of land in the Opotiki District (reproduced in this report as figure 3).60
Establishing this boundary, particularly in regards to the eastern boundary claimed by Ngati Awa,
is of paramount concern to the Wai 339 claimants, who state that oral kaumatua evidence
describing whakapapa, waahi tapu, place names, batde sites and incidents, pa sites, places of
cultivation, fishing grounds, seafood beds, and other resource areas, will confirm that 'these
places exist within the area of land up to and including what Upokorehe say is their western
boundary line at the Maraetotara Stream,.61 See figure 4.
The following description of the 'boundary of Upokorehe Hapu of Te Whakatohea', is included
in the Upokorehe submission:
Commences from the Ohiwa River Mouth known as Te rae 0 Kanawa, the[n] west to the
Maraetotara Stream. (This was the place where Te Rupe 0 Te Whakatohea defeated Tuhoe
[1823]). The south to Puhikoko, then by a straight line to Pukemoremore - thence to
Mapouriki, then descending into the Waimana Stream, Mapouriki being on the back,
following the Waimana Stream.
To its source at Tautautahi to the mouth of the Parau stream then follows the Parau stream
to Tangata e Roha thence to Kaharoa (a place where Kahuki resided) then North east to
Pukenui 0 Raho, then due north, [to] the mouth of the Waiotahe river known as Te Karihi
59 Minutes of the Native Land Claims Commission, Whakatohea Confiscation, Opotiki, 12-14 July 1920, fols 69-114, 14 July 1920, pp 21-22, MAl 5/13/164 Confiscated Lands 1920-1948 (Whakatohea Claims), (RDB vol 64, pp 24635-6) 60 Buddy Mikaere, 'Exploratory Report to the Waitangi Tribunal being an Historical Account of the confiscation of land in the Opotiki District', 1991 (Wai 87 ROD, doc Al) P 6, n 4; Map 1, 'Whakatohea Rohe' 61 Submissions of Counsel for Upokorehe, p 3
23
0./
- / ·l.1cungctcpera
Mc·ungcpchatu
Figure 3: The 'Whakatohea Rohe', as described before the 1920 Native Land Claims Commission
[Source: Buddy Mikaere, 'Exploratory Report to the Waitangi Tribunal being an Historical Account of the confiscation of land in the Opotiki District', 1991 (Wai 87 ROD, doc AI), Map 1]
-'7
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Bay of Plenty
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N.Harris: 15 June 2000
e Morae e •
Po Site
Other Historically Signiiiconi Sites
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Waterway
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Figure 4: Points of Historical and Cultural Significance at Ohiwa Harbour, submitted to the Waitangl Tribunal by Counsel for Upokorehe r"r'\"'f"'I"""'~ ''XT,,'; Ah DI""\T"\ ,.l",1' '0'),(..,"
Potai (where Kahuki's father met his demise). Then due west to the mouth of Ohiwa
Harbour known as Te Moana 0 Tairongo.62
Furthermore, an amendment to the Wai 339 claim was made as follows:
That the Maraetotara Stream which is situated to the West of the Ohiwa Harbour and along
the Ohope Beach be recognised as the traditional boundary between Ngatiawa/Ngatipukeko
and Te Whakatohea lwi.63
A sketch map depicting the contested boundaries discussed in this section was included in the
Wai 339 submissions to the Waitangi Tribunal (reproduced in this report as figure 5).64 The
Waitangi Tribunal, at the sixth hearing of the Wai 46 Ngati Awa and Other Eastern Bay oTPlenty
Claims inquiry, conducted a tour of Up ok ore he sites, on 30 June 1995. According to the itinerary,
the sites visited were: Maraetotara; Te Horo; Whitiwhiti; Wainui; Wainui Pa; Paparoa; Hiwarau;
Nukuhou; Waingarara; Matekerepu; Kutarere; Roimata - view Hokianga Island; Oparaoa;
Karaka; Ruatuna Road; Pataua; Hokianga; Te Ana Rutaia; and Onekawa Pa.65
Regarding the boundaries of their rohe, Whakatohea claimants to the Waitangi Tribunal have
argued that 'before the signing of the Treaty, the boundaries were fluid, organic, deliberately ill
defined and often tested. After the Treaty they were fixed, rigid and immovable bi colonial
instruments.,66
2.5 Conclusion
Having been, as Best put it, 'scattered to the four winds' as a result of inter-tribal conflict,
Upokorehe, by the middle of the nineteenth century, had returned to the Ohiwa/Waiotahi area
and appear to have been re-establishing themselves on their traditional lands. Both Lyall and Best
described the extensive area occupied by Upokorehe in the past: from Ohiwa to the Waioeka
River, and inland, up the Waiotahi Valley as far as Kaharoa. However, Best, writing in 1925,
stated that 'their star of empire set in the gloomy days of 90 years ago,.67
62 'The Boundary of Upokorehe Hapu of Te Whakatohea', 31 August 1993 (Wai 46 ROD, doc F3, app 6). It was also noted that 'Puhikoko to Pukenui 0 Raho was the boundary given by Te Hoeroa Horoka[i] in the Sims Report at Opotiki on the 14th July 1920'; and that '[t]he boundary to Kaharoa then to the Waiotahe river mouth was related by Mr W Rewiri, a Kaumatua of Upokorehe, Te Whakatohea whanui.' 63 T Mokomoko to Waitangi Tribunal, 2 June 1993 (Wai 46 ROD, doc F3, app 3) 64 'NgatiAwa, Upokorehe map' (Wai 46 ROD, doc F3(c)) 65 'Site visit itinerary, 30 June 1995 (Upokorehe), (Wai 46 ROD, doc F4); 'Place names for site visit by Mira Taitapanui (Upokorehe)' (Wai 46 ROD, doc F5) 66 'Whakatohea Case Commentary', p 3 67 Best, pp 403
26
1. Boundary claimed by Upokorehe 2. Boundary presented by Whakatohea to the Native Land Claims Commission, 1920 3. Boundary claimed by Ngati Awa 4. Hiwarau
Figure 5: Sketch map of contested boundaries, as identified by Wai 339 submissions to the Waitangi Tribunal (Wai 46 ROD, doc F3(c))
Upokorehe had developed ties with Tuhoe, particularly with the Waimana Valley due to the
corridor that had developed between the interior and the coast, but these had been eroded
through conflict, most obviously with Whakatohea's defeat of Tuhoe at Maraetotara in about
1823. This conflict had in turn been overshadowed by the Ngati Maru and Nga Puhi raids on the
east~rn Bay of Plenty in the 1820s and 1830s, particularly when Ngati Awa combined with Ngati
Maru to defeat Whakatohea at Te Papa. Members of Upokorehe were killed, captured, or driven
from their lands. With the exception of this temporary displacement, Upokorehe claim to have
continued to occupy their lands at Ohiwa. As already noted, these events resulted in Upokorehe
being in a weakened state relative to those around them when they became entangled in the
events of the New Zealand Wars.
Section 3: Upokorehe and the New Zealand Wars
3.1 Introduction
The Wai 339 submission to the Wai 46 Ngati Awa and Eastern Bay of Plenty inquiry includes a
summary of the events leading up to, and including, the confiscation of Upokorehe lands as
follows:
• involvement in the New Zealand wars in February - April 1864;
• the killing ofVolkner at Opotiki on 2 March 1865;
• the Proclamation of Peace on 3 September 1865;
• the invasion of Whakatohea lands, commencing on 8 September 1865;
• skirmishing in and around the Whakatohea area from 8 September 1865 until 1870; and
• the confiscation of lands in the eastern Bay of Plenty area.
According to Kevin Were's report, Mokomoko was a significant Whakatohea fighting chief in the
1860s, and had the responsibility of protecting Whakatohea's western boundary. This included
the land won from Tuhoe at the mouth of the Maraetotara stream in the 1820s. Mokomoko had
pa at Paerata and Maraerohutu, and had three wives, Kimohia, Horiana and Horotipa, who were
of Upokorehe. As a fighting chief, Were continues, Mokomoko was aware of the conflict and
confiscations elsewhere in the North Island, particularly as he had travelled with others from
Whakatohea, 'to support the people at Orakau,.68
Mokomoko had been a member of a party of Whakatohea who, along with people of Ngati
Porou and other East Coast tribes, had been repulsed by a Te Arawa force at Matata, on their
way to Waikato. The Whakatohea high chief Te Aporotanga had been captured and executed,
68 Were, pp 1-2,9
28
and Whakatohea considered his death to be murder, and this caused further resentment towards
the government as well as T e Arawa.
3.2 The Death ofVOlkner
The Reverend Carl Sylvius Vollmer, CMS missionary at Opotiki, failed to condemn the killing of
Te Aporotanga as was expected by his congregation. Furthermore, it was widely known by local
Maori that Vollmer had been in correspondence with, and had visited, Sir George Grey,
informing the governor of local involvement in, and attitudes towards, the spreading conflict.69
Vollmer had, for example, informed Grey of the movements of Whakatohea, and other Maori, in
early 1864. On 8 February 1864 he had reported that:
on the evening of the 4th of February 100 natives arrived here on their way to Waikato, 80
from Ngatiporou and 20 from different places this side of the East Cape. They were received
by the people here in great style a la Maori. On the 5th they proceeded in company with all
the Whakatohea to Ohiwa. There it was decided that all men of the Whakatohea should join
them, excepting those left to guard this place during their absence, and that they together
would attack the troops at Tauranga, drive them into the sea, and afterwards go to the
Waikato. They expect Ngatiawa to join them as they go along About 250 went from here and
about 70 remain to guard the place,7°
A week later, Vollmer reported that the majority of the Whakatohea party had returned 'from
their intended campaign', having got as far as Matata:
200 of the Whakatohea have returned. 30 of them have joined the Ngatiporou, who went by
way of Rotorua to Waikato. The head men of the 30 who went to the Waikato are: Hori te
Tamaki of Ngatihoroai; Mokomoko of Ngatipatu; Te lki of Ngatirua; Hakaraia of Ngatitai,71
On 26 February 1864, Vollmer informed Grey that 'All the people here, except two, have now
declared themselves in favour of the war against Government, profess great sympathy with
Waikato, and hatred against Europeans.,72
69 Tairongo Amoamo, 'Mokomoko', in W H Olivet, ed, Dictionary if New Zealand Biograpf?)l, vol 1, Wellington, Department of Internal Affairs, Allen and Unwin, 1990, pp 291-2. Vollmer's letters to Grey are published in 'Rev C. S. V olkner and the Tai Rawhiti Expedition, 1864', Historical Review (Whakatane and District Historical Society), vol 7, no 2, June 1959, pp 24-36 70 Vollmer to Grey, 8 February 1864, 'Rev C. S. Vollmer and the Tai Rawhiti Expedition, 1864', p 27 71 Vollmer to Grey, 15 February 1864, 'Rev C. S. Volkner and the Tai Rawhiti Expedition, 1864', p 27 72 Vollmer to Grey, 26 February 1864, 'Rev C. S. Volkner and the Tai Rawhiti Expedition, 1864', p 28
29
There was also concern among local Maori as to the fate of the popular local Catholic priest
Father Garavel, who had been transferred from the district upon Grey's insistence, after Volkner
had accused him of having been sympathetic towards the 'rebels' and having acted as their
courier. It was rumoured that, as a result ofVolkner's actions, Garavel had been executed.73
It was within this context that the Pai Martte missionaries Kereopa Te Rau and Patara Te
Raukatauri, accompanied by around forty followers, arrived in the eastern Bay of Plenty; and it
was within this context that Volkner was killed at Opotiki on 2 March 1865. The reaction of the
colonial government to the killing of Volkner was an armed invasion of the eastern Bay of Plenty
and subsequent blanket confiscation by the Crown of a large area of land, including that claimed
by Upokorehe.
In February 1865 Kereopa Te Rau and Patara Te Raukatauri and their followers arrived in the
eastern Bay of Plenty. They were accompanied by a Ngati Awa contingent of about 150,
including Wepiha Apanui. According to evidence presented at the trial of those accused of
Volkner's murder, this party was joined by about ten members of Whakatohea at Ohiwa
Harbour,74 before progressing to Opotiki where they arrived on 25 February 1865. Among those
who travelled with the party was Mokomoko.
Despite warnings from Whakatohea to stay away, Volkner returned to Opotiki from a visit to
Auckland aboard the schooner Eclipse on 1 March, along with Rev Thomas Grace. That night it
appears that, led by Kereopa, a collective decision was made to execute Volkner the following
day. 'According to accounts that may not be reliable as to all particulars,' the events of the
execution itself are outlined as follows in the W aitangi Tribunal's Ngati Awa Raupatu Report.
Kereopa sentenced Vollmer to death in his church. He was escorted outside by a party of
about 30, taken to a tree, where he was hanged, and in one account his body was then shot.
Afterwards, the body was decapitated and various people drank his blood from a church
chalice. Taking the head inside the church, Kereopa gouged out the eyes. Naming one for
the Parliament of England and the other for the Queen and English law, he then swallowed
themJ5
While Kereopa (motivated, it appears, by the damage caused by Volkner's alleged spying) had
singled out the missionary for execution, the fmal decision to execute him was apparently made
73 Gilling, P 39 74 Waitangi Tribunal, Ngati Awa Raupatu Report, p 41; The report cites evidence of Wepiha Te Pono Apanui and Joseph Jahus, minutes of proceedings and trial of R v Mokomoko and Others, JC22-3B AG66/789, NA
30
collectively. Ascertaining exactly who participated in both the decision-making and the execution
is difficult, as we have to rely primarily on second-hand accounts, with the exception of the
problematic accounts of those tried for Vollmer's murder. Mokomoko denied responsibility for
the killing of Vollmer, claiming that he had left following the decision to kill the missionary.
3.3 The Proclamation of Peace and the assault on the eastern Bay of Plenty
The government did not respond immediately to the death of Vollmer with military force. But
when the government interpreter and agent James Te Mautaranui Fulloon was killed along with
members of the crew of the Kate, at Whakatane on 22 July 1865, the military campaign (which
Fulloon had been helping to plan) commenced. The Government's Te Arawa forces immediately
intensi1iedtheir·campaign ·a:gainstthePai Marire;but even then, it was not until September that· a
complete military occupation of the eastern Bay of Plenty was ordered.
A so-called 'Proclamation of Peace', dated 2 September 1865, announced the end of the war that
had begun at Oakura (Waikato), stating that 'the Governor will take no more lands on account of
the present War', and that no one would be prosecuted for past offences. There were, however,
exceptions. An expedition was to be sent to the Bay of Plenty to arrest the murderers of Vollmer
and Fulloon, and if those concerned in the murders were not given up, the Governor threatened
to 'seize a part of the lands of the Tribes who conceal these murderers,.76-
In the same issue of the New Zealand Gazette, martial law was proclaimed 'throughout the Districts
of Opotiki and Whakatane' and, as such, 'persons suspected of the said Murders, or of aiding and
abetting therein' were to be tried by courts-martial.77 Martial law was not revoked until 26 January
1867.78
It is most unlikely that anyone at Opotiki was aware of these proclamations prior to, and even at
the time of, the arrival of government troops there under Major Willoughby Brassey on 8 -
September 1865. According to the Waitangi Tribunal's NgatiAwa Raupatu Report,
[t]he force was aggressive from the outset, bombarding the village and shooting at Maori
indiscriminately, with no attempt made to ascertain who was involved in the missionary's
murder and who was not.79
75 Waitangi Tribunal, Ngati Awa Raupatu Report, p 41 76 Proclamation of Peace, 2 September 1865, New Zealand Gazette, no 35, 5 September 1865, p 267 77 Proclamation Proclaiming Martial Law throughout the Districts of Opotiki and Whakatane, 4 September 1865, New Zealand Gazette, no 35,5 September 1865, pp 267-8 78 Proclamation, New Zealand Gazette, no 4,15 January 1867, p 37 79 Waitangi Tribunal, NgatiAwa Raupatu Report, p 60
31
Gilling notes that the declaration of martial law prior to the troops' arrival indicates that the
government anticipated significant resistance to the arrival of this SOO-strong expedition, and
significantly, that this was more than an act of mere policing.80 The invasion was resisted and, in
1928, a Royal Commission to Inquire into Confiscations of Native Lands and Other Grievances
Alleged by Natives, found that:
The murder of Mr. V olkner and the murder of Mr. Fulloon were not in themselves acts of
rebellion, and if the Natives of Opotiki and Whakatane had not resisted the armed forces
sent to capture the murderers there would not have been any excuse for confiscating their
lands.8!
In 1873, Lieutenant-Colonel J H H St John, who had played an active role in the conflict of the
1860s, published an account of his military and other travels in New Zealand, titled Pakeha
Rambles through Maon' Lands. In response to the 'barbarous' murder of 'poor Volckner' [sic], who
he described as 'one of the very best friends of the Maori race', St John recalled that '[v]engeance
was taken; an expedition of colonial forces was sent to attack the murdering tribe; and, after
losing heavily in men, the Whakatohea were driven off their ancestral patrimony, which was
given over to military colonists'. 'It was my fate', he wrote,
to be concerned with Opotiki in its dark times, when the most violent sentiments in favour
of a 'wiping-out policy' were naturally expressed by men who saw that their lives and those
of their families, and the safety of their houses and crops, were daily in peril at the hands of
savages inhabiting the back ranges. 82
Gilling observes that none of the government troops were regulars from the imperial forces;
rather 'they were all volunteer irregular units comprised of military settlers'. This, he argues, 'may
have affected the manner of occupation and fighting, many knowing that they would be settling
there once the fighting was over. This may have inspired a greater enthusiasm to clear out as
much Maori opposition and competition as possible.'83
80 Gilling, P 121 81 'Report of the Royal Commission to Inquire into Confiscations of Native Lands and Other Grievances Alleged by Natives', AJHR, 1928, G-7, P 20 82 J H H St John, 'Pakeha Rambles Through Maori Lands', in Nancy Taylor, ed., EarlY Travellers in New Zealand, Oxford, Clarendon, 1959, pp 507-579, pp 558, 560 83 Gilling, pp 66-67. The force, under Brassey, consisted of Companies 8 and 10 Taranaki Military Setders; one company each of the Wanganui and Patea Rangers; one Troop of Wanganui Yeomanry Cavalry; one company 1st Waikato Militia under Major St John; and the Wanganui Native Contingent comprised of Ngati Hau under Major Thomas McDonnell and Captain Keepa Te Rangihiwinui.
32
The instructions given to Major Brassey by Harry Atkinson, the Colonial Defence Minister,
stated that:
[ ... ] in the first place it is necessary that I should inform you that the object the Government
have in view is, the apprehension of the murderers of the Revd Mr Vollmer, Mr Fulloon and
other persons; and their desire that this should if possible be accomplished without
bloodshed [ ... ]
If you should be attacked either upon landing or afterwards, you will act according to the
best of your judgement, but no opportunity should in that case be lost of inflicting summary
and effectual punishment upon the attacking force.
If you succeed in landing and establishing yourself without opposition, you will at once
summon the tribe to surrender the murderers within a given time. If they do this you will
abstain from all active operations and await further orders from me.84
Brassey's orders regarding the murderers themselves came direcdy from Governor Grey, as
follows:
I have determined in order to inflict immediate and signal punishment on the Natives
concerned in the late barbarous murders and acts of cannibalism on the East Coast that any
of the offenders who may be taken prisoner should be tried forthwith by Court Martial. If
therefore any Native should fall into your hands, against whom there is reasonable ground
for believing that he has been concerned in any of these crimes, you will at once assemble a
Court Martial for his trial. If he be found guilty of murder and you see no reason to doubt
the justice of the sentence, you will confltm and carry it into execution without referring to
me for approval. 85
Before the force had even left Wellington, Brassey's second-in-command, Major Charles Stapp,
made his (and the expedition's) position known in a letter to his wife, as follows:
We shall have full power to try them by Court Martial and Hang all we Catch or all who have
taken part in Murders. I shall be the President [of the Court Martial bench], and you may rest
assured I will do my duty. 86
84 H A Atkinson to Brassey, 4 September 1865. AD 6/7, 1865/222 NA; Gilling, pp 67-68 85 Grey to Brassey, 4 September 1865. AD 6/7, 1865/221 NA; Gilling, P 68 86 Stapp to wife, 4 September 1865, Taranaki Museum; Gilling, p 69
33
Upon their arrival at Opotiki, and in their attempts to take the village, it appears that there was no
attempt to announce the Proclamation of Peace, or to explain the purpose of their assault, that is,
the apprehension of those involved in Volkner's murder.87
It took four days for the landing to be completed, during which time at least thirteen Maori were
killed (including one man identified as 'Pito', a 'Hauhau prophet' and 'policeman' of the village),
and the village was subjected to bombardment from the sea. The only casualties sustained by the
invading force over this four-day period were four wounded which, Gilling comments, illustrates
'a remarkable lack of resolve by 'fanatic' defenders who were supposedly so well armed.,88
Once the village had been 'taken', the colonial forces established. their headquartersiriVollffier's
church, which they converted irito a redoubt. Gilling has noted that the expedition was
inadequately supplied, and were therefore 'obliged to loot Whakatohea's property, rebels or
not,.89 Lieutenant G H Stoate, of HMS Brisk, recorded that:
Now we lived on the fat of the land, - during the remaining five days I was onshore I think I
had six meals a day, pork chops beef steaks fowls and everything was good, In the village we
found potatoes enough to feed an army - pigs and cattle were swarming round - I remained
on shore for five days after the village was taken, during whi~h tim~ I had glorious fun, We
had only one more public touch with the Maoris but Bell and I with some of our blues went
out nearly every night on a private search after Hau Hau pigs. We were successful in getting
the latter and also in clearing the former and I wish you could have seen the tent of the
Naval squad after dinner time [ ... ]90
According to James Cowan's The New Zealand Wars:
For some weeks thereafter the expedition remained in Opotiki, skirmishing occasionally, and
revelling in the abundance of food in the captured settlements [ ... ] The force was plentifully
rationed out of the abundance of meat and poultry, and the kumara and potatoes and other
vegetables which the fields and gardens of the Whakatane [sic] produced.91
As Gilling has stated, during this period of purely military occupation, which lasted for several
months, 'the economic base built up by Whakatohea was destroyed as the troops pursued what
87 Gilling, P 70 88 Gilling, pp 69-72 89 Gilling, P 67 90 Lt G H Stoate to 'Dick', HMS Brisk, Napier, 20 September 1865, 'Copy of Letter, 20 September 1865', Whakatane Historical Review, vol 20, no 2, pp 111-114, P 113
34
can have been litde different from a scorched-earth policy designed to do nothing more than be
destructive and intimidatory,.92 The wholesale government-sanctioned looting and destruction of
property, in and around Opotiki, devastated the once thriving Whakatohea economy. As Judith
Binney has noted, '[t]he troops acted as an alien occupying force, looting the land,.93 Writing to
his wife, just four days after the force's arrival at Opotiki, Stapp commented that they had already
'got thousands worth of property,.94 Gilling comments that:
not only did the soldiers on site benefit from looting Whakatohea possessions, but the
Colonial Government actually gained some income from the deliberate capture and sale of
Whakatohea livestock and other property a year after nearly all of the iwi had surrendered
and were on Opaperese.tv:e.95
It was to be more than a week after the arrival of the force at Opotiki that the first recorded
attempt was made to convey the occupying force's demands. Major Brassey reported that, in
response to a letter from Apanui and Kepa Toihau inquiring what would happen 'if Kereopa and
the murderers ofMr Volkner are given up', he replied that:
all not actually concerned in the murder would no doubt be pardoned & well treated but that
if hereafter any of them were proved to have taken an active part in the murder they would
be arrested and dealt with for it, that their land would at any rate be confiscated, and that the
only chance of their having any of it would be at once to throw themselves on the mercy of
the Governor.
Brassey added that '[t]he Woman remarked of course the land went as utu for the murder and
seemed to think the tribe expected no less.,96
By 2 October, 57 Maori had come in to Opotiki and taken the oath of allegiance, and a further
100 were expected.97 A letter attributed to Isaac Smith, a private in Captain Ross's company of
Rangers, states that Maori were 'Laing down their arms and taken the oath of ilegions. They say
91 James Cowan, The New Zealand Wars: A History of the Maori Campaigns and the Pioneering Period, 2 vols, Wellington, Government Printer, 1923, vol 2, p 109 92 Gilling, P 74 93 Binney, 'Encircled Lands, Part One', Draft Version, August 2001, ch 3, P 17 94 Stapp to wife, 12 September 1865; Binney, 'Encircled Lands, Part One', Draft Version, August 2001, ch 3, P 17 95 Gilling, P 82 96 Brassey to COM, 16 September 1865, AD 1/1865/2838 (ROB vol 135, pp 52063-52064); Gilling, pp 74-75 97 Stapp to wife, 2 October 1865; Gilling, pp 76-77
35
that they are fairly beat and are willing to give all rite and tide to their land and horses. We have
taken one hundred and thirty horses from them. ,98
By this time, the colonial troops completely controlled the Opotiki plains, and on 4 October
Brassey sent Stapp up to Paerata ridge, between Opotiki and Ohiwa Harbour, to take
Mokomoko's two pa, Paerata and Maraerohutu. Paerata Ridge can be seen in figure 1. Both pa
were abandoned, but were, nevertheless, destroyed, together with a large quantity of potatoes,
kumara, wheat, and other produce. Brassey boasted of keeping the force in meat (beef and pork)
'at the expense of the enemy'.99
TheassaultsO:fiM5kom5ko~spa were a prelude to·· one uf the majur battles·· of the eastern Bay of
Plenty offensive, which took place the following day, 5 October 1865, and included one of the
few cavalry charges of the New Zealand wars. The colonial forces moved inland, attacking Te
Tarata, about four miles from Opotiki on the eastern bank of the Waioeka river, and three pa
'situated on a very high ridge'. Stapp reported destroying 'a large village on the flat, [ ... J burning
immense quantities of grain, potatoes and kumaras'. He also reported that orders were given to
'destroy the three pas'. Twenty-two 'Hau Haus' were killed. lOa
Stapp reported that, after heavy fire had been exchanged,-the occupants of Te Tarata had 'asked
the terms on which they could surrender':
I told them they must lay down their arms, and the surrender to be unconditional. They then
asked for time. I gave them one hour, when we had another parley [ ... J They said they were
afraid they would be all killed whether they gave in or not, but they were assured they would
not be hurt, but the murderers or anyone connected with the murder of the Rev. Mr.
Volkner, Mr. Fulloon and others, would be tried.
H_e reported that the occupants had shouted that they would surrender, and had prompdy
attempted to escape through the back of the pa, into the fire of waiting troops. Stapp ordered the
destruction of the pa. 101 Gilling suggests that most of the defenders of Te Tarata were able to
. th b h 102 escape mto e us .
98 Isaac Smith to his mother and sister, 5 October 1865, MS Papers 388/1 Smith Family Correspondence, ATL; Gilling, P 77. 99 Brassey to CDM, 4 October 1865. AD 1/26, 1865/3219 NA; Gilling, p 77 100 Stapp to CDM, 6 October 1865, New Zealand Gazette, 18 November 1865, 40, pp 343-344 (RDB, vol 11, pp 4056-4057) 101 Stapp to Brassey, 6 October 1865, New Zealand Gazette, 18 November 1865, 40, P 344 (RDB, vol 11, P 4057)
36
The following morning, 6 October, Stapp reported, 'a Native came in [from one of the pa on the
ridge] with a flag of truce'.103 Nevertheless, an assault was made on the three hill pa, which were
taken without a shot being fIred. 104 As noted above, all of the captured pa, and their contents,
were destroyed, with Stapp describing these actions as 'a tremendous blow to them'.105 According
to Cowan, 35 Maori who he identifIed as 'Whakatohea, Ngai Tama and other Hauhaus', were
killed and at least as many wounded at Te Tarata.106
On the night of 6 October, Stapp placed Major Brassey, his commanding ofBcer, under arrest for
drunkenness, and assumed command of the force. Gilling notes that Stapp 'commented to his
wife that he had effectively been doing the job anyway, which may suggest that Brassey had
openly ··(lisplayedi···cru:onic···problem··With··d:rink . which· had·· male:riatly interfered with·· his
command. ,107
On 21 October, Stapp sent a force of 240 men, under the command of Major McDonnell, on an
expedition into the Waimana Valley in search of Kereopa. According to the account of Captain J
R Rushton, the expedition 'marched along the coast to Ohiwa Harbour, and there branched off
from the beach and went up through Kutarere. Thence we crossed over the range into the valley
of the Waimana.'108
James Belich has argued that the military campaigns of the period 1864-68 witnessed 'the
emergence of a new British system of war', which 'reduced the effectiveness of Maori resistance':
At its fullest, the 'bush-scouring' theory entailed a 'flying column' of a few hundred men,
untrammelled by a large supply train, hunting down the Maoris in the bush, and forcing
them to fight by attacking their villages and cultivations. The columns might include some
picked Imperial regulars, selected for their fitness and adaptability, but they would largely
consist of settler-frontiersmen, supposedly natural 'Indian-fighters'. These 'irregulars' were to
be supported by native auxiliaries, preferably under European officers, and they were to be
led by vigorous and unorthodox commanders, unimpressed by the rules of conventional
warfare. They were also to be appropriately armed for bush-fighting, which ideally required
102 Gilling, P 79 103 Stapp to Brassey, 6 October 1865 104 Gilling, P 80 105 Stapp to wife, 6 October 1865; Gilling, p 80 106 Cowan, vol 2, p 110 107 Gilling, P 81; Clem Earp, 'The Rise and fall of Major Brassey', Whakatane Historical Review, vol 39, no 2, November 1991, pp 95-101 108 Cowan, vol 2, p 115
37
weapons which could be loaded and handled in a restricted space, and which produced high
short-range fttepower. 109
This new system was an essential response to the often unforgiving geography of the eastern Bay
of Plenty /Urewera interior.
McDonnell's expedition was guided by two men supplied by Rakuraku, who had fought against
the government forces on 5 October, and who had come in to take the oath of allegiance to the
Crown, despite Rakuraku not yet having taken the oath himself. The force chased Kereopa up
the Waimana through Te Ihu 0 Te Atu and Muriwaka to Koingo, where fighting broke out. Four
of..Kere~pa'.s ... .foliower.s ... weteki11ed,.and Ker.t~opa,himself,.while ... seriouslywoundedinthe.chest,
managed to escape.110
On 30 October, Stapp reported that the only Whakatohea 'Hauhau' yet to surrender, consisted of
fifty men plus women and children of Ngati Ira, but these had promised to come in. Among
those who had already come in to take the oath was Mokomoko, who was accompanied by
twenty followers, and who offered to assist in fighting those remaining rebels, if they did not
immediately surrender.111 As Gilling has pointed out, '[t]here was no hint by Stapp at this time
that Mokomoko was considered a murderer, or that his military assistance was less welcome than
that of anyone else.'112 It appears as if Stapp was unsure as to whom, exactly, was suspected of
the murder, and that it was the problematic testimony of Jeans and Agassiz (discussed in section
3.4, below), that brought Mokomoko's name to his attention. 'In this scenario,' Gilling argues,
'perhaps Mokomoko was seized upon as a substitute for all those who had eluded capture.'113
3.4 The Trial and Execution of Mokomoko
According to Kevin Were's report:
The Mokomoko family understand that their Tipuna, Mokomoko eventually surrendered in
an effort to save the Whakatohea people. They had been advised that if they surrendered
their land would not be confiscated. Mokomoko was not expecting to be accused of the
Volknet murder.114
109 James Belich, The New Zealand Wars and the Victorian Interpretation of Racial Conflict, Auckland, Auckland University Press, 1986, p 213 110 Gilling, P 83 111 Stapp to CDM, 30 October 1865, AD 1/27, 1865/3695 NA; Gilling, pp 83-84 112 Gilling, P 84 113 Gilling, P 84; Stapp to CDM, 31 October 1865, AD 1/27, 1865/3698 NA; Holt to Officer Commanding Opotiki, 13 November 1865, AD 6/7, 1865/678 NA 114 Were, p 8
38
In late December 1865, Mokomoko and the others accused of involvement were tried by court
martial at Opotiki. The court martial comprised, Gilling states, 'of (not very senior) officers of the
East Coast Expeditionary Force'. While there was some precedent for Maori prisoners to be tried
by courts martial, there was opposition regarding the appropriateness of this course of action.
The newly appointed Attorney-General, James Prendergast, declared martial law to have 'no
place in the institutions of this country [i.e. 'of England or of this colony'], therefore the law [ ... ]
in no way recognised such Courts as proceedings'. As such, 'since such proceedings effectively
never took place', the prisoners could be tried in the Supreme Court without violating the rules
of double jeopardy.ll5 Subsequendy, Premier Edward Stafford recommended that the prisoners
De tried in the Civil coUfts rather thanbycouttmattiatU6
The charges were heard by a Grand Jury at Opotiki on 12 March 1866, and a prima facie case
established.ll7 Mokomoko and the others accused of Volkner's murder were taken (along with
those accused of murdering Fulloon) to Auckland, to stand trial in the Supreme Court on 27
March 1866. As Gilling points out, '[s]trangely, given that the murder ofVolkner was assumed to
be so much of a tribal act of all Whakatohea, there were substantially fewer than were charged
with Fulloon's death.'118 Those tried alongside Mokomoko were Heremita Kahupaea, identified
as Ngati Awa Patuheuheu;119 Hakaraia te Rahui, of Ngati Ira, Whakatohea; Paora Taia, of
Whakatohea; and Penetito Hawea of Ngati Awa.120 The defendants were tried together, rather
than separately, and all were represented by a Mr Carnell. 'This in itself,' Richard Boast has
pointed out, 'give[s] ground for some concern. All of these men were on trial for their lives, and
certainly ought to have h~d separate representation.' Boast goes on to oudine other significant
problems with the trial:
The actual length of the hearing was very brief - in effect, one day, Wednesday March 28,
1866. The jury gave its verdict the following day, and on that day evidence as to character
was given (one of the character witnesses, the missionary Thomas Samuel Grace, was also
one of the principal Crown witnesses). The Court adjourned until Wednesday 4 April, when
the prisoners made statements in open court as to why judgement of death should not be
imposed. Other than this, there was no evidence called on behalf of the defence.
115 J Prendergast, memo, 23 December 1865, AG 65/1992 inJ 22/3a NA, cited in Gilling, pp 50-51 (the annotations are his) 116 Gilling, P 51; he cites E W Stafford to Governor, 30 December 1865, AJHR 1866, Al, P 85 117 Arney to Colonial Secretary, 17 March 1866, AG 66/613 inJ 22/3a NA, cited in Gilling, P 51 118 Gilling, pp 51-52 119 H Mead and J Gardiner, 'Te Kaupapa 0 te Raupatu i te Rohe 0 Ngati Awa: Ethnography of the Ngati Awa Experience of Raupatu', Te Runanga 0 Ngati Awa research report 4, April 1994 (Wai 46 ROD, doc A18), pp 98-99; Gilling describes Kahupaea as 'being of Patuheuheu hapu of Ngatiawa', Gilling, p 52
39
Boast also states that the Crown witnesses were not cross-examined 'to anything like the standard
which ought to have been appropriate', and points out that there were 'a number of important
discrepancies in the Crown case' which were not adequately dealt with. Perhaps most
significantly, as Boast points out, 'Grace [the principal Crown witness] says nothing at all about
Mokomoko, and that the leader of the party that called for Volkner from the house where he and
Grace were detained was Heremita.'121 The other discrepancies are summarised by Tairongo
Amoamo in his biography of Mokomoko in the Dictionary of New Zealand Biograpf?y, as follows:
The evidence against him was the testimony of three witnesses. Joseph Jeans (or Jennings)
said .Mokomokohadheenlntheprocessionthat.tookVolknc:!r to eXc:!<::lltignap·clthatl1ehaci
carried the rope. Wiremu Te Paki also said that Mokomoko was with the procession. Wepiha
Te Poono said Mokomoko commanded the armed party that took Volkner to be executed.
However, witnesses differed in other details. According to one, Mokomoko was carrying the
rope behind the armed men leading Volkner to the tree. Other evidence indicated that he
was some distance away. No witness claimed that Mokomoko was one of those most
involved in the killing. There was a conflict of evidence over who placed the rope around
Volkner's neck; Jeans said it was Wi Hura while other witnesses named Pokeno Te Awanui.
Neither of these men was brought to triaL
According to Te Whakatohea the rope had belonged to Mokomoko and was taken from him
as he was catching his horse. He played no part in Volkner's death but found himself an
accessory to the act through ownership of the rope.122
Paora Taia was acquitted, and the sentence of Penerito, who was nineteen; was commuted to
penal servitude for one year. The remaining three were hanged on 17 May 1866.123 Their bodies
were buried at the old Auckland jail and courthouse, at the corner of Queen and Victoria Streets.
During the 1890s their remains were exhumed and re-interred at Mt Eden prison.
Kereopa himself escaped from the government forces in the Bay of Plenty, and remained on the
run until his capture and subsequent trial at Napier at the end of 1871. He was executed on 5
January 1872.124
120 Waitangi Tribunal, NgatiAwa Raupatu Report, p 42. 121 R Boast to Rt. Hon G W R Palmer and MrJeffries, 17 July 1990 (Wai 203 Statement of Claim, app 5), p 1 122 Amoamo, p 292; see also Boast; and Gilling, pp 52-61 123 Waitangi Tribuna~ NgatiAwa Raupatu Report, p 42 124 Steven Oliver, 'Kereopa Te Rau', in W H Oliver, ed, Dictionary of New Zealand Biograpry, vol 1, Wellington, Allen and Unwin, Department of Internal Affairs, 1990, pp 503-504
40
Mokomoko died maintaining his innocence, declaring, 'E mate hara kore ana ahau. Tena koutou
Pakeha. Hei aha.' (I die an innocent man. Farewell Pakeha. So be it). His final words were,
'Tangohia mai te taura I taku kaki kia waiata au I taku waiata' (Take the rope from my neck that I
may sing my song).125 The Upokorehe submission to the Waitangi Tribunal states that:
It has always been the position of Whakatohea and Upokorehe in particular, who claim
Mokomoko as their tipuna, that Mokomoko was wrongly blamed for the murder of V olkner.
Upokorehe claim that they have wrongfully suffered as a result of the actions of others, for
example, Kereopa who led the Hauhau movement in Opotiki.126
LJpokorehe further claim that the evidence submitted by Wepiha at the trial was 'tainted', in that
he was NgatiAwa, a traditional enemy of Up ok ore he, and of Mokomoko in particular. According
to Richard Boast, it appears that the Court did not hear a great deal of relevant evidence,
'especially in relation to Wepiha's role in the proceedings and his former disputes with
Mokomoko' ,127
Boast also makes reference to a detailed report of the trial and executions printed in the Nelson
Examiner on 22 May 1866, which discussed the longstanding disputes between Wepiha and
Mokomoko over land, and reported that 'Mokomoko's version of events was admitted by
Heremita and Hakaraia who were willing to acknowledge their own guilt'. Boast quotes the report
as follows:
On Wednesday afternoon the condemned men were visited by Mr George Graham, who
received from Hakaraia and Heremita a distinct acknowledgement that they were guilty of
the death of Mr V olkner, and deserved to die. Mokomoko solemnly protested his innocence,
and gave a narrative of these events at Opotiki nearly in the following words: Wehipa,
Kereopa and Patara we heard were coming to Opotiki, and never raised my hand or voice
against any European. We were afraid of the war party, and left our setdement, which was on
the road by which they were to pass, and came to Opotiki. When Wepiha and Kereopa came
to Opotiki, they destroyed Mr Volkner's house, and stole his property. Wepiha took six
horses, and the greater part of the money raised by the sale of his effects. I was present at the
meeting held in the church to consult as to the hanging of Mr Volkner. That was on the
same day he was killed. I was standing by the door of the church, looking in. Kereopa said
"Give up all the European prisoners to me". The Whakatohea did not consent. Kereopa
said, "let there be no chiefs over the tribes; but listen to me, listen to the words of the God".
125 Amoamo, p 292; see also Haunui Roya1, dir, One Land Two People, Nmox Films, Wellington, 1996 126 Submissions of Counsel for Upokorehe, p 8 127 Boast, p 3
41
Whakatohea wished to save all the Europeans. Wepiha then stood up with this Taiaha in his
hand, and said, "Vollmer must be given over to Kereopa, as an offering to his god". They
then called for their armed parties. That was all I heard, as I went away to my settlement. I
did not see Mr Vollmer hang. I did not see the person who hung him. It was only when the
half-caste Eparaima escaped from the sailors on the Eclipse, that I heard the names of those
who committed the crime. I had no rope. I heard that Wi Hura had a rope. I was only in the
church when Wepiha consented to Mr Vollmer being hung by Kereopa. Tiwai was anxious
to save the Europeans. Then Kereopa said to him, "If you attempt to save, you will be
killed." I advised Tiwai to leave the settlement, and come to Auckland."128
This newspaper report also quoted a remark made by Mokomoko to George Graham on the
morrungofhisexecutlon;<CthafhehopedilieNgatlawas woUld noI pfofit by his·death,··bygett1ng
possession of his land". 129
The Mokomoko whanau assert that for well over a century they have been stigmatised by the
allegation that Mokomoko played a primary role in the killing of Volkner.130 According to
Tuiringa Mokomoko:
Upokorehe suffered because they in my estimation had the most area of Te Whakatohea
land taken, [and] to cap it off had -their rohe moved further East from its original position.
The Whanau Mokomoko together with the Hapu suffered because of this: Loss of Land;
Loss of Mana; Loss of Historical and Cultural Identity; Loss of Life; Loss of Economic
opportunities; The loss of religion - its suppression and final obliteration; The insult of the
degradation and sexual abuse of some of our Kuia.l3l
According to Were:
The surrender of Mokomoko and loss of the other men in the battles left the hapu
defenceless. The women were hunted like animals by the army and had acts of violence and
degradation committed against them when captured. They endeavoured to shelter in the
bush on Tuhoe land, living on fern roots and berries but were eventually forced to leave
there as a result of pressure on Tuhoe by the army.
They were taken back to the Ohiwa harbour area and became a labour force for the soldiers
who had settled on blocks of the confiscated land after the fighting ceased. The womenfolk
128 Nelson Examiner, 22 May 1866; in Boast, p 3 129 Nelson Examiner, 22 May 1866; in Boast, p 3 130 Submissions of Counsel for Upokorehe, p 8; Were, pp 8-13; Wai 203 amended Statement of Claim 131 Evidence ofT Mokomoko, p 4
42
continued to be used and abused by the military settlers. They had children to the military
settlers as a result of the continuing abuse by the white people. In the words of the current
Elders - "We obeyed theit every command, they were always right, we were afraid to
question or refuse, we were treated worse than servants, we could not resist."
The women survived by digging drains, breaking wild horses and undertaking any other work
they could find.132
In a letter to Margaret Wilson, Minister in Charge of Treaty of Waitangi Negotiations, written in
February 2001, counsel for the Wai 203 claim stated that:
Th~~tigm~o{vonmersdeath;the raupat:tJ.and bemglabelled.t:ebeIs has been carried by the Mokomoko whanau for over 125 years. No other whanau within Whakatohea have carried
the shame of those events as our clients have had to bear. This is evidenced by the names the
whanau have taken over the many generations. For example the name Puriti was taken from
the tree on which Mokomoko was hanged, Moutini, the Maori name for Mt Eden Prison, Te
Mamaerangi Hikuroa when translated means the painful day and Ititopi or the hanging rope.
Whole generations have been struck off the Mokomoko whakapapa charts or family
genealogical records because of the stigma that surrounds them.133
In July 1939 the Native Land Court heard a petition regarding the Hiwarau block (see section 5.2,
below). An elderly Upokorehe woman named Mihitangi Koutu gave evidence that appears to
have sought to distance Upokorehe from Mokomoko, stating that 'when V olkner was killed by
Mokomoko and his people the Upokorehe were living at Hiwarau and knew nothitig of the
trouble. They did not take part in the killing of V olkner.' She also stated that 'Mokomoko and his
family (Warana and others) did not live at Ohiwa at all'.134
3.5 Mokomoko's Posthumous Pardon
In 1987, Mokomoko's descendants requested permission to exhume his remains from Mount
Eden gaol, and this was granted in 1988.135 Mokomoko's remains were re-interred at Waiaua,
Opotiki, in October 1989, and a formal unveiling took place a year later.136
132 Were, p 11 133 McCaw Lewis Chapman to Margaret Wilson, Minister of treaty Settlements, 26 February 2001, p 5 134 Opotiki minute book 30, 19 July 1939, fo1s 13-15; in Miles, Te Urewera, p 130. Both Miles and Binney refer to Mihirangi Boutu, based on an extract from the minute book found in Wai 46 ROD, doc F3, app 20 135 Amoamo, p 292; The exhumation of Mokomoko and others buried at Mt Eden prison is described by Reverend Nehe Dewes, chaplain at the prison, as a postscript to Heretaunga Pat Baker, The Strongest God, Whatamongo Bay, Cape Catley, 1990, pp 235-237 136 Wai 203 Statement of Claim, section 3.7
43
With the return of his body, Mokomoko's descendants then sought 'statutory recognition of
Mokomoko's innocence,.137 According to Tairongo Amoamo, Whakatohea had pursued the
matter of a government pardon in 1981, while Ngati Awa had similarly 'made a request for all
those imprisoned in 1865,.138 According to the Wai 203 statement of claim,
action was taken by the family during 1990 to take formal steps to have Mokomoko's
innocence formally recognised by Government. A precedent for this existed already with the
Te Runanga 0 Ngatiawa Act 1988. Contact was made with Bruce Gregory, MP for Northern
Maor~ and with Richard Boast of the Faculty of Law at Victoria University ofWellington.139
Richard Boast submitted that, 'it is plain that a grave miscarriage of justice has occurred', arguing
that ,[t]here are too many discrepancies in the Crown case for it to form the basis of a
conviction'. In conclusion, he stated that:
The Mokomoko family are ftrmly of the view that Mokomoko's case merits some form of
statutory intervention equivalent to an acquittal. The family would prefer to avoid use of
statutory phraseology equivalent to a "pardon" in view of the possibility that this might be
seen as an act of clemency towards a guilty man, rather than a recognition of Mokomoko's
innocence. The matter is of-great importance to the family and we respectfully request a
prompt investigation of the matter and statutory redress.l40
In response, the Department of Justice claimed that 'insufficient evidence has been adduced to
warrant intervention'. The Mokomoko whanau expressed 'strong reservations about the adequacy
of the Crown's response', in particular their failure to conduct any research themselves. As such,
the decision to decline the application was included in the Wai 203 statement of claim as a breach
of the principles of the Treaty of Waitangi, along with the '[hope] that the intervention of the
Waitangi Tribunal will allow this matter to be resolved'.141
In June 1992, Mokomoko was granted a posthumous pardon, and, as stated in section 1.2 above,
this was presumed by the Crown to have successfully completed negotiations of the claim. The
amended Wai 203 statement of claim indicates that this was by no means the case. There is also
137 Richard Boast to Rt. Hon G W R Palmer and MrJeffries, 17 July 1990, P 1 138 Amoamo, p 292 139 Wai 203 Statement of Claim, section 3.8 140 Richard Boast to Rt. Hon G W R Palmer and MrJeffries, 17 July 1990, pp 3-4 141 Wai 203 Statement of Claim, sections 3.10-3.12; 4.5. It was also noted that as well as rejecting the views of the Department of Justice, the family 'points out that the reason why some evidence cannot be located is, itself, due to the Crown, in particular in the Crown's failing to ensure the preservation of Court documents and other materials relating to the trial of Mokomoko. All Supreme Court records at Auckland were deliberately destroyed in 1949.'
44
the issue of the nature of the pardon itself. Rather than taking the form of an acquittal, it is based
on the legal precedent of the pardon granted in Te Runanga 0 Ngati Awa Act of 1988 to the
three members of Ngati Awa convicted of Vollmer's murder.142 In 1994, David Williams was
quoted in the New Zealand Herald as saying 'the pardon is begrudging'.143
On the matter of the trials of those accused of the murders of Vollmer and Fulloon, the Waitangi
Tribunal's Ngati Awa &lupatu Report stated that:
[ ... ] for reasons of public policy, we decline to review formally the evidence and the strength
of the Crown's case at the trials and confine our observations to more general matters. While
the. public has the licence to. reyiew. tnurdertrials, it would compromise the integrity. of the
legal system for an official body, not specifically charged with that function, to do the
same.144
3.6 The Impact of Continuing Conflict in the Eastern Bay of Plenty
Conflict between government forces and Maori continued 'in the hinterland of Opotiki' through
1866 and 1867 - the period in which the land was confiscated, Mokomoko and the others were
executed in Auckland, and in which the Compensation Court was operating. According to
Cowan, 'several settlers were killed, and there were numerous expeditions up the Waioeka and
Waimana valleys,.145 There is a paucity of existing evidence to show the actual movements and
actions of Upokorehe and the Mokomoko whanau during the period of conflict. Gilling has
noted that '[t]wo groups of Whakatohea were continually under suspicion of supporting the
Hauhau', one of whom he identifies as 'Rakuraku's hapu of Upokorehe in the Waimana/Ohiwa
area'.146 In a letter to Captain Holt, Under-Secretary of the Colonial Defence Office, dated 19
September 1867, St John referred to the 'doublefacedness' of 'Raku Raku and his people', who,
he claimed, 'correspond direcdy up the Waimana with the Bauhaus'. There is no mention of
Upokorehe in the letter, and it is not clear whether or not Upokorehe were actually considered to
be Rakuraku's 'people'. St John reported that:
142 Press Statement, Ministry of Justice, 18 June 1992 143 Gilbert Wong, 'Pardoned, but .. .', New Zealand Herald, 23 July 1994, section 3, p 3. Mokomoko's tria~ execution, and posthumous pardon have been the subject of a number of newspaper and magazine reports and television documentaries. These include: 'First step taken in exhumation of remains', Opotiki News, 17 October 1989; Dawn Kincaid, 'Mokomoko soon to be brought home to rest', Opotiki News, 19 October 1989; Dawn Kincaid, 'Laid to rest after 123 years', Opotiki News, 25 October 1989; Don Donovan, 'Murder in Opotiki', Evening Post, 29 April 1994, p 27; Maramena Roderick, 'Farewell, you Pakeha! I die without a crime', Mana: the Maori News Magazjne for all New Zealanders, January /Febtuary 1993, 1, pp 86-87; Haunui Roya~ dir., One Land Two People, Ninox Films, Wellington, 1996; Brendan Butt, dit., 'Mokomoko - nowhere man' / 'Take the rope from my throat', Epitaph series 1, programme 5, Greenstone Pictutes, 1997. 144 Waitangi Tribunal, Ngati Awa Roupatu Report, p 73 145 Cowan,. vol 2, p 116
45
The Ohope Natives have offered to Raku Raku's party land at their place (where they would
be under the surveillance of the Ngatiawas), and the Whakatoheas, with Taylor (who live on
the mainland opposite Hokianga), could be moved to Opape, or, as Mr Wilson suggested, to
the Native Reserves near Tiwhanga. Major Mair approved of the offer, but Raku Raku
declined it.
'However,' he added, 'he and the whole of his mob ought to be got out of that place'.147 In
February 1868 Mair informed H T Clarke, Civil Commissioner, Tauranga, that a number of
letters had been discovered following a skirmish at Nukutahuahua ('in the Waimana'), which
'prove[d] the complicity of the Ohiwa people in the late movements of the Hauhaus'.148 One
letter, dated Otara, 15 January 1868, 'from Te Poti, of Tamatuhira, at Te Ku', was translated as
follows:
Go, my letter, to Tauwharemanuka, to Tawhana, to Tanahi, to Maungapohatu, to Rahititoa.
Friends, listen. Our sentry (scout) has returned from Ohiwa. The boundaries of Ohiwa have
been given up to us. Their speech is "Let them have this month for their occupation; the
following month hasten hither at this time."149
However, in March 1868, St John reported that 'two friendly Natives of Rakuraku tribe had been
murdered at Ohiwa [ ... t by the Hauhaus.' One body, he reported, was found 'dreadfully
mutilated' on Hokianga Island.1so Clarke likewise reported that 'the Hauhaus came in great force
to Ohiwa. A party of ten crossed over to the Island of Hokianga, in Ohiwa, and murdered an old
man of the Upokorehe hapu named Kororahi. The unfortunate man was pardy mutilated'. He
added that '[t]he Hauhaus, after burning down the huts at Te Punawai Rakuraku's setdement
retired,.151 St John led an expedition in response, 'up the Waimana, intending to go right up to
Maungapohatu', but was, he reported, deserted by his Arawa guides. He 'retired, destroying all
cultivations on the road, so that between Tawhana and Ohiwa any attacking force must now
carry its own provisions,.152
146 Gilling, plOD 147 St John to Captain Holt, Under Secretary of the Colonial Defence Office, 19 September 1867, AJHR, 1868, A-8A, Papers Relative to the Defence and Occupation of Opotiki District, pp 3-4 148 Mair to H T Clarke, 10 February 1868, AJHR, 1868, A-8A, Papers Relative to the Defence and Occupation of Opotiki District, P 24 149 'Te Pori, of Tamatuhira, at Te Ku', to 'Tauwharemanuka, Tawhana, Tanahi, Maungapohatu, Rahititoa', 15 January 1868, enclosure to Mair to H T Clarke, 10 February 1868, AJHR, 1868, A-8A, Papers Relative to the Defence and Occupation of Opotiki District, P 24 150 St. John to Captain Holt, 17 March 1868, AJHR, 1868, A-8A, Papers Relative to the Defence and Occupation of Opotiki District, pp 16-17 151 Clarke to the Under Secretary, native Department, 14 March 1868, AJHR, 1868, A-8A, Papers Relative to the Defence and Occupation of Opotiki District, p 27 152 St. John to Captain Holt, 17 March 1868, AJHR, 1868, A-8A, Papers Relative to the Defence and Occupation of Opotiki District, pp 16-17
46
In June 1868, orders were given 'to engage a party of the Arawa Tribe to occupy a post at
Ohiwa'. The force was to number sixty in total, with no less than forty to be in occupation, and
would be engaged for a period of two years. Each man was to receive a grant not exceeding
twenty-five acres of land on completion of the term, and it was noted that '[a]ll the surplus land
at Ohiwa will be available for the purpose,.153 The garrison, under the command of Wi Maihl
(William Marsh) Te Rangikaheke, was established on the north-eastern edge of the Ohiwa
harbour ('Marsh's Pa' or Wi Maihl's pa). Their function, according to Binney, was to watch over
Tuhoe's access route to Ohiwa harbour, and to keep an eye on Rakuraku. The Arawa contingent
remained in occupation for longer than the proposed two years, being 'formally signed off on 28
Feb.ruary1871. However; Binney has noted that a small party ·ofArawawerestillthereaslateas
mid_1875.154
On 2 March 1869 Te Kooti occupied Whakarae pa, which had been occupied by Rakuraku (who
offered no resistance) in 1868. Hokianga Island was captured, and the Upokorehe people living
there were taken back to Whakarae as prisoners. The surveyor Robert Pitcairn was killed on
Uretara Island by a party led, apparendy, by Hemi Kakitu, who would later be rewarded by the
government for his efforts in pursuing Te Kooti,155 and included in the schedule of owners for
the Hiwarau block.
3.7 Conclusion
The deaths of Volkner and Fulloon, the trials of those accused, and the military occupation and
confiscations which followed, occurred within an uneasy colonial climate enflamed by fears of
'Hauhau fanaticism'. Contemporary newspaper accounts of the event, in New Zealand, Britain,
and elsewhere, made much of this 'fanaticism', Volkner's 'martyrdom', and the descriptions of
seemingly cannibalistic acts. Grey issued a proclamation on 29 Apri11865, in which he described
the 'fanatical sect, commonly called Paimame, or Hau Hau', as being 'engaged in practices
subversive of all order and morality'. These practices, or 'rites', he continued, included 'murder',
'the public parade of the cooked heads of their victims', 'cannibalism', and 'other revolting acts',
all of which were 'repugnant to all humanity':
Now therefore, I, Sir George Grey, the aforesaid Governor, do hereby proclaim and notify
that I will, in behalf of Her Majesty, resist and suppress, by the force of arms if necessary,
153 J C Richmond to H T Clarke, 29 June 1868, AJHR, 1868, A-8A, Papers Relative to the Defence and Occupation of Opotiki District, pp 20-21 154 Binney, 'Encircled Lands, Part One', Draft Version, August 2001, ch 4, P 37
47
and by every other means in my power, fanatical doctrines, rites and practices of the
aforesaid character; and I will cause to be punished all persons, whenever they may be
apprehended, who may be convicted of instigating, or participating in, such atrocities and
crimes; and, in Her Majesty's name, I call on all well-disposed persons, whether Native or
European, to aid and assist me herein to the best of their ability.156
Following the executions of Mokomoko and the others, the Governor opened parliament on 3
July 1866 with a speech praising the actions taken in response to the 'rebels'. Grey noted that
'those who had been guilty of wanton and unprovoked murders, committed in cold blood, have
been dealt with by the ordinary civil tribunals.'157
It is clear that rather than constituting an act of political 'rebellion', Volkner's execution was seen
as a matter for the criminal courts. Mokomoko and the others charged with Volkner's death
stood trial in the Supreme Court for murder. This, as Judith Binney has pointed out, calls into
question 'the legal basis for the confiscation oflands in the eastern Bay of Plenty':
It derived initially from the death of Vollmer; but once it was recognised that his execution
was a criminal act, land could not be confiscated on account of his murder. This
unsustainable legal basis has been acknowledged by the Crown. It has been acknowledged in
respect to the-confiscation of Whakatohea's lands. It has already been agreed, along with the
pardon of the Whakatohea chief Mokomoko in 1992, that Whakatohea were 'wrongfully
declared rebels'.158
While members of Whakatohea (including Mokomoko) had assisted Waikato to some extent in
1864, Grey's 1865 Proclamation of Peace would have pardoned this prior involvement in what
was considered to be an act of 'rebellion'. As the later Native Land Claims Commission
confirmed, 'these actions could not legally have been considered in January 1866 in justifying the
confiscations,.159
155 Judith Binney, Redemption Songs; A Life '!fTe Kooti Arikirangi te Tumki, Auckland, Auckland University Press, 1995, pp 154-156; Binney, 'Encircled Lands, Part One', Draft Version, August 2001, ch 5, P 14; Miles, Te Urewera, p 187 156 New Zealand Gazette, 29 April 1865, 14, p 129 157 New Zealand Gazette, 3 July 1866, 40, pp 275-6 158 Binney, 'Encircled Lands, Part One', Draft Version, August 2001, ch 3, P 8. Binney quotes the New Zealand Herald, 1 July 1997 159 GilIing, P 177
48
Section 4: Raupatu - The Confiscation of Eastern Bay of Plenty Lands
4.1 Confiscation
On 17 January 1866, the Government proclaimed the eastern Bay of Plenty confiscation district
under the provisions of the New Zealand Settlements Act 1863, 'for the purposes of
settlements,.160 The Government's policy of confiscation of Maori land was 'originally advocated
as a way of punishing rebellion, of ensuring peace and security by military settlement, and of
paying for the war by selling off surplus confiscated land.'161 The legislation was first used in
Waikato and Taranaki before being applied to the Bay of Plenty. While the legislation itself is
considered to have been 'a lawful exercise of the powers of the Crown', the actual confiscations
based on the legislation 'appear in many respects to have been unlawful, in that they did not
conform foiliefeqwemenfssefoufin thelegislatioil:,162
Regarding the confiscation of Ngati Awa land following the murder of Fulloon, the Waitangi
Tribunal, in its Ngati Awa Raupatu Report, found that:
[c]ontrary to popular beliefs, the land was not confiscated on account of the murder. Some
contemporary politicians observed that the land was confiscated on that ground, but in fact it
never was. The punishment for that murder was visited exclusively upon named individuals,
who were_apprehended, tried, and sentenced. The record is cleat that, instead, the land was
confiscated for rebellion, or organised resistance to the Government. The record is equally
clear that the acts of alleged rebellion referred to the resistance given to those attempting to
effect the arrests. In any event, the land was confiscated under the New Zealand Settlements
Act 1863, where the necessary criterion was rebellion - not murder,163
Furthermore, the Tribunal reported,
We do not think it is at all established that there was a war in the usual sense. More
particularly, we consider that there was no rebellion. The affected hapu took only those steps
that were necessary to protect their own lives from those appearing as hostile invaders. In
the circumstances [ ... ], their anxieties were well founded and the action that they took was
reasonable and could not amount to rebellion.
160 Order in Council, Land taken under NZ Settlements Act 1863, Bay of Plenty District, New Zealand Gazette, 18 January 1866, p 17 161 Alan Ward, National Overoiew, Waitangi Tribunal Rangahaua Whanui Series, Wellington, Waitangi Tribunal, 1997, vol1,p 60 162 Ward, NationalOveroiew, voll, p 60 163 Waitangi Tribunal, Ngati Awa Raupatu Report, p 5
49
In terms, the confiscation was clearly contrary to the Treaty of Waitangi. Under the Treaty,
no land could be taken without consent.l64
While there were certainly differences in the circumstances surrounding the murder of V olkner,
the government's response to the two murders was more-or-less uniform.
Under the New Zealand Settlements Act 1863, Maori were divided into either 'rebel' or 'loyal'
categories, at the discretion of the Government, and it was then up to the 'rebels' to prove their
loyalty to the Crown's satisfaction. Those who had simply resisted the Crown's aggressive and
illegal acts, along with their relatives, were often declared 'rebel', and sometimes so too were
those whoowl1eclJ~l1clth~tth{!G:oy{!rJ11Il(!ntwanted. From the beginni1:1git was understood that
the lands of innocent or 'loyal' Maori would be included in the blanket confiscations. 165 As Alan
Ward has stated, 'since the focus of the legislation was on territorial districts, Maori within a
district who had not fought against the Crown, and even those who had fought on behalf of the
Crown, had their land confiscated as well.'166 In the eastern Bay of Plenty, the blanket labelling of
Ngati Awa, Whakatohea, and later Tuhoe as rebels, on account of the actions of a minority, 'and
the failure to make any inquiry as to their complicity before actually taking the land', led to the
blanket confiscation of a disproportionately large area.167
Under the Act, land could only be taken for the purpose of laying out military setdements and, as
stated in the Waitangi Tribunal's NgatiAwa Raupatu Report, 'it had to be suitable for that purpose':
In this case, the Governor simply prescribed a huge confiscation district [ ... ] and then took
everything in it. At the time, the vast· majority of the land was clearly unsuitable for
setdement, military or otherwise, being hill country, swampland, or covered in thick bush.
The area taken was also of such large extent that it was impossible for more than a small
fraction of the land to have been converted to military setdements in time to keep the
peace.168
Thus, as the report states, 'far more land was taken than the Act allowed'. Furthermore, the
Tribunal reported that 'no proper inquiry was made, as the Act required, as to what land was
164 Waitangi Tribunal, NgatiAwa Raupatu Report, p 5 165 Ward, National Overview, vol 1, pp 61-62 166 Ward, National Overview, vol 2, p 173 167 Waitangi Tribunal, Ngati Awa Raupatu Report, p 6 168 Waitangi Tribunal, NgatiAwa Raupatu Report, p 6
50
suitable for military settlement. The confiscation boundary was simply a series of straight lines on
. . 1 .. ,169 a map, runrung mam y across mountamous terram.
Under the confiscation legislation, Compensation Courts were established to hear applications by
Maori whose lands had been wrongfully taken. Land was to be given to those whose own had
been taken, including those hapu who had been declared 'rebel', so as not to leave them
landless.170
Having established, by proclamation, the eastern Bay of Plenty confiscation district on 17 January
1866, the Government discovered that the original boundaries of the confiscation area had been
'incorrecllystafed'.inthe origina:lptoclamation, and neW boundaries were described and gazetted
as follows on 1 September 1866:
All that land bounded by a line commencing at the mouth of the Waitahanui River, Bay of
Plenty, and running due south for a distance of twenty miles, thence to the summit of
(Mount Edgecomb) Putanaki [sic]; thence by a straight line in an easterly direction to a point
eleven miles due south from the entrance to the Ohiwa Harbour, thence by a line running
due east for twenty miles, thence by a line to the mouth of the Aparapara [Haparapara]
River, and thence following the coast line to the point of commencement at Waitahanui.l7l
Ohiwa Harbour and the surrounding lands were well and truly incorporated .into this revised
boundary. See figure 6.
As Miles has pointed out, in the case of the eastern Bay of Plenty raupatu,
it has been argued by claimants that the Crown acted illegally in the course of the
confiscations because the 1866 raupatu proclamations contravened the provisions of the
1863 Setdements Act. That Act anticipated the Governor setting aside portions of land
('eligible sites') within a proclaimed district, for the purpose of settlement, and then defining
the boundaries of the land so taken. In the eastern Bay of Plenty, the proclamations of 17
January and 1 September 1866 declared that all the land of the district was required for the
purposes of the Act, without the setting apart of military settlements within the area. From
the very first, then, the misinterpretation and misapplication of the provisions of the
169 Waitangi Tribunal, NgatiAwa Raupatu Report, p 7 170 Waitangi Tribunal, NgatiAwa Raupatu Report, p 7 171 Order in Council, Boundaries of Bay of Plenty district altered, New Zealand Gazette, 1 September 1866, no 51, pp 347-81
51
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confiscatory Act, in combination with officials' lack of knowledge of the land and people of
the eastern Bay of Plenty [ ... ], produced a very confused picture.172
As stated in the confiscation proclamation, and as legislated in the New Zealand Settlements Act
1863, lands were confiscated for the purpose of settlement. The preamble to the Settlements Act,
declared that the intention of the Act was to provide for the permanent protection and
security of the well-disposed inhabitants of both races. This was to be achieved by the
introduction of a sufficient number of settlers able to protect themselves and preserve the
peace of the country. What this meant in effect was the establishment of military settlements
in rebel districts to enable the Pakeha settlement of frontier territory.173
Referring to the military settlement at Opotiki within ten years of its establishment, St John
commented that:
This is one of the few places of the kind which have proved a success, though even here in
only a small way. In riding over the flat lying between the two rivers [the Waioeka and the
Otara] which, issuing from the mountainous region at the back, enclose the plain, one does
see pleasant looking fenced fields, cultivations, and a goodly lot of stock, all belonging to
original settlers: sights of prosperity, these, but too rare in military settlements in other parts
of the country.174
Of the land 'apportioned out to military settlers' in the inland valleys, St John observed that due
to 'the then disturbed state of the country':
it was impossible for the allottees to actually settle upon any of the lands thus set apart, [ ... ]
and there are consequently many thousand acres of good land which some day will be turned
to profitable account; but, as in other cases, it will be necessary to get them out of the hands
of speculators who have picked them up at a cheap rate.
Meanwhile, he wrote,
The wrecks of schooners still hampering the Opotiki river testify to the former wealth of the
natives who so stupidly changed their faith for a whim; but the memory of their past
comforts and the exhortations of Europeans are inducing them to pick up some of their old
172 Miles, Te Urewera, p 112 173 Miles, Te Urewera, p 111 174 St John, p 558
53
energy, and all along the coast, south of Opotiki, and in the valleys inland, the Maories [sic]
are planting very extensively.175
The 'former wealth of the natives' is also testified to in the descriptions of the plunder engaged in
by the occupying force in 1865 and 1866, as discussed in section 3.3, above. Furthermore, in
November 1859, Arthur S Thomson, Surgeon-Major to the 58th Regiment, had visited the area,
reporting that:
At Opotiki and Ohiwa, in the Bay of Plenty, live the Whakatohea nation, an industrious
people numbering 2,600 souls, and possessing twenty vessels, each upwards of twenty tons
burden, in which they convey their produce to the Auckland Markets.n6
Likewise, in March 1866, George Graham reported to the Governor that:
The East Coast Natives had become noted for their industry and hospitality. They were
growing and exporting prior to the Waikato War, large quantities of wheat, maize and other
grain, as also flax, potatoes, kauri gum etc. They owned many European built vessels and
were making rapid strides in civilization.177
The 1928 Report of the Royal Commission to Inquire into Confiscations of Native Lands and
Other Grievances Alleged by Natives (Sim Commission) stated that the total area of the eastern
Bay of Plenty confiscation district was 448,000 acres. Of this, 118,000 acres were restored to
'loyal Natives' and 112,300 acres to 'rebel Natives', while 6340 acres had been sold privately prior
to the confiscation. This meant that the area finally confiscated was 211,060 acres. Whakatohea,
the report continued, originally had 491,000 acres and were left with 347,130 acres. The report
quoted the findings of the 1920 Native Land Claims Commission, which had 'no hesitation ... in
affirming that, judged by the light of subsequent events, the penalty paid by the Whakatohea,
great as was their offence, was heavier than their deserts.' The Sim Commission found that, in the
case of Whakatohea, confiscation was 'excessive', but recommended compensation of only £300
per annum, 'for the purpose of providing higher education for the children of members of that
tribe.'178 In 1946 the Government paid Whakatohea £20,000 in compensation for the setdement
175 Stjohn, pp 560-561 176 Cited in letter ftom Marin Ranapia and nine others, 'and all of the Whakatohea', to the Hon Mr Herries, Native Minister, 25 April 1916, MAl 5/13/157 NA (Wai 87 ROD, docAl(a» 177 George Graham to Governor, 24 March 1866,J22/3A NA; cited in Mikaere, p 6 178 'Report of the Royal Commission to Inquire into Confiscations of Native Lands and Other Grievances Alleged by Natives', AJHR, 1928, G-7, pp 21-22
54
of confiscation grievances. One of the claims listed in the 1995 submissions of counsel for the
Wai 339 claim was that 'insufficient compensation [was] allowed by the Sim Cotntnission'.179
4.2 Wilson's Out-of-Court Arrangements
Following the confiscation, the Government's agent in the Bay of Plenty, John A Wilson, made a
number of 'out-of-court arrangements' with different groups and individuals. Upon his arrival at
Opotiki in November 1866, Wilson reported 'that "it was not possible to compromise [i.e., settle
out of court] the claims at this place" because out of the 38 claimants (presumably both
individuals and groups) to Opotiki and Ohiwa, there were only four present at the township.'180
Furthermore, as a consequence of the ongoing skirmishing in the area, it is likely, as Miles has
suggested, 'that some elaimants to·ehiwa: would· have found·· it impossible .. tQhaY~tll~t:ll1cl
negotiated with Wilson in any case. ,181
Nevertheless, Wilson made at least two arrangements for Ohiwa lands before the Compensation
Court sat in March 1867. He reported that, on 24 December 1866, with the approval of the
Defence Minister (who was at Ohiwa at the time), he had setded the 'rebellious' Upokorehe hapu
on a 1500-acre reserve known as the Hiwarau block, which he described as follows:
The boundaries of this Native reserve are on the East by the main road from Punawai
towards Waimana, i.e. the surveyed road to the point where it first strikes the Nukuhou
stream, as one goes from Punawai, on the south and west by the Nukuhou, and on the
North by Ohiwa harbour from the mouth of the Nukuhou to Punawai: These limits enclose
an area of about 1500 acres.
Upokorehe were also awarded Hokianga Island, which Wilson described as 'a small island of, say,
30 acres near Hiwarau' .182
Wilson did not specify with whom among (or on behalf of) Upokorehe he had negotiated this
'arrangement', and this was to become a significant issue. The Upokorehe submission to the
Waitangi Tribunal includes the claim that, as well as creating 'insufficient reserves for the
continued self-sufficiency of the hapu', the Crown vested 'lands in t.he Hiwarau block to persons
who were not members of the Upokorehe Hapu, that is, they were loyalists and outsiders',183
179 Submissions of Counsel for Upokorehe, p 2 180 J A Wilson to F Whitaker, AGG Auckland, 4 November 1866 (RDB vol 120, P 46353), in Miles, Te Urewera, p 129 (the annotation is hers) 181 Miles, Te Urewera, p 129 182 J A Wilson to Dr D Pollen, 18 April 1867, IA 11867/1321 NA; in Miles, Te Urewera, p 129 183 Submissions of Counsel for Upokorehe, p 6
55
notably Hemi Kakitu. In both the nineteenth and twentieth centuries, a number of petitions were
made to the government regarding this issue. These are discussed in section 6, below.
On 29 March 1872, Wilson informed the Native Minister, Donald McLean, that he had 'setded
the Ohiwa Natives, who reverted to rebellion and again surrendered, on the land previously given
to them at Hiwarau and Hokianga.' He added that 'Hemi Kakitu and followers have been
. 1 d d' thi ,184 IDC u e ID s arrangement.
4.3 The Crown Grants of Hiwarau Block and Hokianga Island
In November 1874, the grants of Hiwarau and Hokianga Island were gazetted.185 Both lots were
6thchusesoITheCoiifiscafedLinds Act; 1867; which enabled the
Government to make reserves for surrendered 'rebels', subject to any restrictions and limitations
that the Governor saw fit to make. Hokianga Island was 'to be inalienably assured by a Grant
trust to the Members of the Upokorehe Haptl, while Hiwarau was similarly 'to be inalienably
assured by a Grant trust to the Members of the Upokorehe Tribe' (emphasis added). With
Hiwarau, the Crown's 'right to take lines of road' was reserved. Both grants were accompanied by
lists of names of members of Upokorehe for whom the land was granted. Relative interests were
not defined at this time.
Hokianga Island (13 acres 2 roods 12 perches) was granted to forty-eight 'Members of the
Upokorehe Hapu', with four trustees: Tetra Haruru; Hemi Kakitu; Taituha Mokai; and Hemi
Kuri. The forty eight owners of the island were listed as follows:
1. Teira Haruru 2. Hemi Kakitu 3. HemiKuri 4. Taituha Paora 5. Horopapera 6. Hoeroa 7. Tiopira
20. Marara 21. Maria Watene 22. Mere Katene 23. Hiromeme Tipa
Men
8. HemiHamu 9. Wahaika
10. Watene Pureata 11. Hoani Akeake 12. Iraia Kaiponi 13. Mita Tahanoki
Women
26. Anipeka 27. MariaMu 28. Mere Ngutuhore 29. Wheato
14. Kokere 15. Ani 16. Tamati 17. Turei 18.Papu 19. Mom Taikororareka
32. Hiropuku 33. Mahana 34. Hom 35. Wakaetena
184 Wilson to McLean, Auckland, 29 March 1872, 'Reports on Setdement of Confiscated Lands: Bay of Plenty, No. 3', AJHR, 1872, C-4, P 6 185 It is unclear whether or not an actual grant was issued. According to the minutes of the 1939 Native Land Court hearing of the 1935 petition regarding Hiwarau, 'Grant not issued - A C.T. issued later where grant is notified Gazette', Opotiki minute book 30,19 July 1939 (RDB vol 58, P 22301)
56
24.Moa 25. Hinerau Kopma
38. Heni 39. Warn 40. Riripeti 41. Timoti
30. Ruruhira 31. Ripeka Wahaika
Children
42. Tawhi 43. Kararaina 44.0tutu 45. Ngakai
36. Rea Te Mara 37. Erana
46. Rahi 47. Ani 48. Hinehoa
The Hiwarau block was here described as comprising only 1073 acres, significantly less than the
'about 1500 acres' described by Wilson in 1867 (see section 4.2, above). The block's boundary
was described as follows:
Bounded on the North by high watermark in Ohiwa Harbour from the mouth of Nukuhou
River to Punawai; on the East by a road surveyed from Punawai to the point where it first
strikes Nukuhou River; on the South and West by Nukuhou River.18G
Two allotments of 25 acres each, lying in the centre of the block, were excluded from the grant.
They are referred to as 'Lots 1 and 2, Hiwarau Sections, Pitcairn's Survey'. These lots (Lot 275
and Lot 276, Waiotahi parish) can be clearly seen in early plans of the Hiwarau block (see figure
7). A hand written note on the plan of Hiwarau A and B prior to amalgamation, included in this
report as figure 9, states that these were unregistered grants. These allotments were incorporated
into Hiwarau C in 1969, as discussed in section 5.5, below. One of these lots (Lot 2, Hiwarau
Sections, Pitcairn's Survey, 25 acres) was granted to one Huriana, described in the schedule of
owners as a female 'native' of Whakatane.187 The name Huriana also appears on the schedule of
owners of the Hiwarau block (see below). I have not been able to locate any additional
information regarding this lot, or the adjacent Lot 1.
The Hiwarau block was granted to sixty-six 'Members of the Upokorehe Tribe', with seven
trustees: Teira Haruru; Hemi Kakitu; Hoeroa; Hemi Hamu; Mita Tahanoke; Iraia Kaiponi; and
Hoani Akeake. The owners of the block were listed as:
1. T eira Haruru 2. Hemi Kakitu 3. HemiKuri 4. Taituha Paora 5. Horopapera
Men
9. Wahaika 10. Watene Pureata 11. Hoani Akeake 12. Iraia Kaiponi 13. Mita Tahanoki
16. Tamati 17. Turei 18.Papu 19. Mohi Taikororareka 20. Wiremu Hineahua*
186 'Schedules of Awards made by Compensation Court and Crown Agent to Loyal Natives out of Confiscated Block, Bay of Plenty', 28 October 1874, New Zealand Gazette, no 60, pp 781-2. 187 'Bay of Plenty District-Schedule No.9, 1872', enclosure to Wilson to McLean, Auckland, 29 March 1872, 'Reports on Settlement of Confiscated Lands', Bay of Plenty, No.3, AJBR, 1872, CA, P 12
57
6. Hoeroa 7. Tiopira 8. HemiHamu
23. Marara 24. Maria Watene 25. Mere Katene 26. Hiromeme Tipa 27.Moa 28. Rutu* 29. Hinerau Kopiha 30. AniPeka
1. Peta* 2. Heni 3. Warn 4. Riripeti
14. Kokere 15. Ani
Women
31. Maria Mu 32. Mere Ngutuhore 33. Wheato 34. Ruruhira 35. Ripeka 36. Hiropuku 37. Mahana
Children
5. Timoti 6. Tawhi 7. Kararama. 8.0tutu
* People included in the list for Hiwarau, but not for Hokianga Island
21. Hoani Mokomoko* 22. Warena Mokomoko*
38. Hohi 39. Whakaetena 40. Animerata* 41. Rea Te Mara 42. Erana 43. HeniMokai* 44. Huriana*
9. Ngakai* 10. Rahi 11. Ani 12. Hinehoa
A discrepancy exists between the names listed in the Crown grants of Hiwarau and Hokianga
Island as gazetted, and the 42 'Names of returned rebels and Loyal Natives of the Upokorehe
hapu Whakatohea Tribe for whom Hiwarau and Hokianga reserves at Ohiwa are made' as listed
in Wilson's original schedule. ISS This list, it was noted, was 'to be proclaimed in the New Zealand
Gazette under the 3rd, 4th, and 6th clauses of the Confiscated lands Act 1867. The names listed
(in their original spelling) were:
1. HemiKuri 2. Te Watene Pureata 3. Pairama 4. Te Kokiri 5. Haruru
15. Marara 16. Maria 17. Mere Katene 18. Heneriata 19. Hiromene 20.Moa
33. Te Warana [?] 34. Paki 35. Hohi 36. Hiro
Men
6. Tiopira 11. Henare 7. Hirini 12. Hoani Mamuka 8. Kakitiu 13. Wahaika 9. Hemi Mou [?] 14. Te Teira Haruru
10. Tamihana Hoka
Women
21. Ruta 27. Wheato 22. Reretataiapa 28. Ruruhira 23. Hinerau 29. Ripeka 24. Anipeka 30. Harai 25. Maria 31. Huriana 26. Mere Ngutuhori 32. Hira te Okiwa
Children
37. Mahana 40. Te Waru 38. Peta 41. Riripeti 39. Hemi 42. Timoti
188 DOSLI Auckland, 'Awards to Maoris', Index no 1, 'Lots awarded by the Compensation Court to claimants in the confiscated Bay of Plenty district, or, settled by agreement with the Crown in accordance with the provisions of the 9th clause of the NZ Settlements Arndt and Continuance Act' (RDB vol 119, pp 45889-45890)
58
According to Buddy Mikaere, Wilson compiled new schedules for these and other blocks when
'official activity' resumed in 1871-1872 following the conflict that had forced the Compensation
Court to adjourn in late 1867, because the old ones were out of date. As such, he suggests that
the legality of these schedules may be in question, as they do not appear to have received
approval by any court.189 Furthermore, he points out, regardless of the legality of these revisions,
the schedules themselves 'do not seem to have been processed through the Court and it is not
clear whether they were officially approved, rather the schedules appear to have been simply
deposited with the Court'. This may have been, he states, because the arrangements were
completed before the Court could legally have awarded lands to surrendered rebels. 'Although
they were officially made under the Confiscated Lands Act 1867 there is evidence to suggest that
the arrangements·· they· were ·ba.sed· on ·date from . early 1866, i.e. during the time· Wilson· was
carrying out his survey work.,190 This survey work of the confiscated area had obviously been
carried out prior to the court hearings. This, Mikaere argues, was deliberate government policy, as
illustrated by the instructions regarding the nature of survey work issued by Governor Grey the
day after he issued the Proclamation ofPeace.191
In 1939, Mihirangi Koutu gave evidence before the Native Land Court (see section 6.2, below)
that Upokorehe lived at Ohiwa and Waiotahe: 'Hiwarau was a hill and my home was below it
the name of the kainga was Roimata'. She stated that with the confiscation of their land,
Upokorehe had taken refuge with their whanaunga at Waimana, and it was there that Wilson had
discussed Upokorehe with Rakuraku, who told him that they were from Ohiwa and now had
nowhere to live:
Wilson told Rakuraku he had better take these people back to Ohiwa where they came from.
Rakuraku replied 'yes' he would but he would ask Wilson to give back a small portion of the
Upokorehe land that had been confiscated for them to live on. And Wilson told Rakuraku he
would do this but that Rakuraku should meet him at Ohiwa and then on Christmas Day. On
that Christmas Day Rakuraku met Wilson at Ohiwa and then Wilson kept to his promise and
gave back Hiwarau. And Wilson also told Rakuraku that he should stay at Hiwarau and be
the leader of the Upokorehe. I was at this Christmas day meeting as a small child with my
mother. Then Rakuraku informed Wilson that he could not stay as he was not of Upokorehe
but he pointed round and said to Wilson - These are the Upokorehe people.l92
189 Mikaete, p 31; Mikaere notes that in Taranaki, by comparison, there was a late sitting of the Compensation Court in 1874 to authorise such schedule changes, p 31, n 75 190 Mikaere, p 37 191 Fitzgerald to Pollen, Confidential instructions, 3 September 1865, AGG-A 1/1; Mikaere p 34 192 Opotiki minute book 30,19 July 1939, fols 13-15
59
As Miles points out, 'Rakuraku's name does not appear on the ownership list for either Hiwarau
or Hokianga Island.'193
According to Mihirangi Koutu, Hemi Kakitu had submitted a list for Hiwarau lands to Wilson at
Whakatane, once he had 'returned from his wanderings with the Hauhau people'. It was this list,
she claimed, that was adopted for the Hiwarau block. She described Hemi Kakitu as 'a Hauhau',
and 'of Tuhoe - not even of Whakatohea. His hapu was Ngati-Kareti'. She also stated that he
was 'not a rangatira of Upokorehe', although he lived and cultivated the land 'but not
permanendy', and that he 'lived at Hokianga with all the rest of his people'. She added that
Upokorehehad-also'cultivatedatHokianga'anfrthat'Hiwar-auhasonlybeencultivatedrecendy'.
Upokorehe, she claimed, did not originally object to the inclusion of his name on the list because
'there were no men left in the hapu to represent it - only women were left.,194
It was not until June 1886 that the Crown grant of Hiwarau was actually registered, and the actual
area of the block was given as 1260 acres. The block was described as:
All that Parcel of Land in our Provincial District of Auckland in the Colony of New Zealand,
containing by admeasurement one thousand two hundred and sixty (1260) acres more or less
situated in the Whakatane Survey District and being Allotment number one hundred and
eighty-nine (189) of the Parish of Waiotahi Bounded towards the East by the Ohiwa
Harbour by a road line the crossing of a road one hundred (100) links wide and a road line
[described in full] Towards the South and South West by the Nukuhou river and towards the
North West by the Ohiwa Harbour aforesaid [ ... ] Save and excepting one surrounded space
being allotments numbers two hundred and seventy five (275) and two hundred and seventy
six (276) of the said parish in area fifty (50) acres [ ... ] Also save and excepting a road one
hundred (100) links wide and a road reserve which intersect the area hereby granted Subject
nevertheless to the right of the Governor at any time hereafter to take and layoff for public
purposes one or more line or lines of road in through or over the said parcel of land.
A plan of the block was included in the grant, and is reproduced in this report as figure 7. The
two excluded lots (Lot 275 and Lot 276, Waiotahi parish) and the road reserve can be clearly
seen. The grant was made to those people listed in the schedule of owners gazetted in 1872, 'as
193 Miles, Te Urewera, p 139 194 Opotiki minute book 30,19 July 1939, fols 13-15
60
189
13Z(. 0: 0
61'., 0, 0
, 0 : 0
-.
Figure 7: Plan of Hiwarau Block, Grant to Teira Haruru, and others, 11 June 1886 [Source: Closed File Series 16, 'Hiwarau', Waiariki Maori Land Court, Rotorua]
from the 29th day of March, 1872, their Heirs and Assigns for ever. Provided however that the
said land hereby granted shall be inalienable by gift sale lease or mortgage or by lease for a longer
period than fifteen years.'195 Thus, a restriction was clearly placed on the alienation of this land.
As Cathy Marr has stated in her 1991 Tuwharetoa Ki Kawarau raupatu report (Wai 46 ROD, A2):
In general it was held that confiscation took land outside the jurisdiction of the Maori Land
Court for investigating ancestral tide. According to Maori Land Court officials giving
evidence on later petitions, confiscated land was returned by Crown grant. In many cases
these grants were issued to certain individuals 'in trust' for different hapu [ ... J
Compensation Courts seemed to be following the policy of the Maori Land Court in
determining exclusive ownership to land and encouraging individual tide. The Courts
themselves seem to have been more concerned with individuals than with the interests of iwi
or hapu and only awarded to them when forced by the circumstances.196
Mart also refers to the question of how Wilson, and the Compensation Court, decided the
amount of land to be awarded. Land, she claims, appears to have 'decided on some calculations
for returning land but it is not clear on what basis these decisions were made'. Wilson himself,
Mart states, was later to claim that in the Matata district, 'compensation was decided by surveying
the area of claimants' lands, taking their numbers and dividing the number of individuals over the
acreage. According to Wilson,' Marr continues, 'this gave various rates for various tribes, some
getting up to 50 acres per person and others only ten,.197 In the case of returned rebels, Wilson
claimed 'that there was no set scale of allotments and each case was decided on its merits,.198
The Hiwarau block, as is discussed in later sections of this report, was predominandy steep land,
not easily farmed or otherwise used. As the main (and in some cases only) land holding of
Upokorehe, the marginal quality of the Hiwarau block would have implications on future
generations.
195 Grant to Teira Haruru, and others, 11 June 1886, Closed File Series 16, 'Hiwarau', Waiariki Maori Land Court, Rotorua 196 Cathy Marr, 'A Report Commissioned by the Waitangi Tribunal on the background to the Tuwharetoa Ki Kawarau Raupatu Claim', 30 June 1991 (Wai 46 ROD, doc A2), pp 47-48 197 Marr, p 46; she cites evidence of J A Wilson on petition of Charlotte Brown, Le 1/1874/9 (RDB vol 1, pp 92-93) 198 Marr, p 46; she cites evidence ofJ A Wilson on petition of Taiawa Te Ngaherehere, Le 1/1874/9 (RDB vol 1, pp 106-108)
62
4.4 The Compensation Court
Acknowledging that blanket confiscation would necessarily result in the alienation of land from
all Maori in the confiscated area, 'rebel' or not, the New Zealand Setdement Act 1863 provided
for the establishment of Compensation Courts to hear claims for compensation, and to issue
certificates entiding eligible persons to land 'according to the nature of the[ir] tide interest and
claim,.199
Section 5 [of the Act] provided for compensation to be granted to those persons with an
interest in land taken under the Act, except for those rebels who had taken up arms against
the Crown; or anyone who had aided or induced any individual to do so; or anyone who had
actedasapdncipaloraccessoryinanyoutrageagainstperson or property; or those who had
failed to comply with Government proclamations demanding the surrender of arms. The Act
empowered the Governor to call upon any tribe or individual who had engaged in any of the
offences outlined in section 5 to come in and submit to trial on or before a named date.
Those who refused to come in would not be eligible for compensation under section 5 (but
as O'Malley notes, this section did not in any way enticle those who did come in to receive
compensation).200
Those owners who were to be compensated were 'defined negatively, that is to say those with
rights were to be compensated, as exceptions from those considered to be in rebellion'.201 Maori,
therefore, 'had to prove that they had not engaged in rebellion in order to win their lands back in
the Compensation Court. ,202
The Compensation Courts were not only responsible for determining compensation for the non
rebel land owners whose lands had been taken under proclamation, but also for 'the laying-out of
towns and farms for military setdement and for the sale and disposal of both suburban and rural
allotments,.203 Upon confiscation, all customary tenUre was extinguished, and any land returned to
Maori by the Compensation Court was done so under Crown tide.
Notification was made, by means of the Gazette, that potential claimants had six months from the
date of 17 January 1866 in which to lodge claims to confiscated lands. However, this deadline
199 Ward, National Ove17liew, vol 2, pp 173-174 200 Miles, Te Urewera, p 111; Vincent O'Malley, 'The East Coast Confiscation Legislation and its Implementation', report commissioned by the Crown Forestry Rental Trust, February 1994 (Wai 144 ROD, doc A2), P 38 201 Gilling, P 114 202 Miles, Te Urewera, p 132; O'Malley, p 57 203 Miles, Te Urewera, p 111
63
was not gazetted until 3 April 1866, which, as Gilling notes, would have 'surely disadvantaged
potential claimants in their quest for compensation,.204
The Compensation Court was to have convened at Opotiki on 1 October 1866, under
Lieutenant-Colonel Lyons, however, when it was discovered that the boundaries had been
incorrectly stated, the period for the submission of claims was redefined (three months from 1
September 1866), and a new date for the hearing was set for 7 March 1867.205 In the end, it was
Major William Mair who presided at Opotiki, and he was assisted in this by Judge T H Smith. As
Miles has noted,
Whatevetpretence toitnpartialitymayhave· been assumed by. the court,the.factthat.Mair
[ ... ] was a military officer [who had led the Arawa forces in the eastern Bay of Plenty] and
that Smith had been the Civil Commissioner responsible for organising arresting warrants for
the Opotiki invasion, must have rankled deeply with Maori. None of the Compensation
Court Judges had a legal background but Mair, at least, had been a resident magistrate.'206
H T Clarke, the Civil Commissioner at Tauranga, acted as counsel for Maori claimants, and
appears to have assisted Wilson, on occasion, with his 'out-of-court arrangements,.207 'The Court,'
Binney argues, 'had no interest in impartiality: its function was to exclude those whom it deemed
to be 'rebels' from any of the titles it awarded.'208 'The court was operational,' Miles notes, 'at a
point when there was still general misinformation in official circles about the actual aggregate
amount of land that had been confiscated, and when unsurveyed boundaries had not been
investigated and corrected.'209 Wilson, who was formally appointed Crown agent for the court
sittings in April 1867, reported that the Court was adjourned on 6 April, 'in consequence of the
absence of many claimants, who are engaged on our side in the war at Rotorua; and, because the
other Natives are at this time of the year too occupied gathering in their crops to attend either as
claimants or witnesses'.
He further reported that ,[o]ut of 235 cases 133 were disposed of involving compensation to the
amount of 1006 acres, and no money has yet been awarded', adding that:
204 Gilling, P 125; Miles, Te Urewera, p 133; New Zealand Gazette, 3 April 1866 205 New Zealand Gazette, 11 January 1867; Miles, Te Urawera, p 134 206 Miles, Te Urewera, p 134 207 Miles, Te Urewera, p 134 208 Binney, 'Encircled Lands, Part One', Draft Version, August 2001, ch 4, P 20 209 Miles, Te Urewera, p 134
64
These lands are all however of good quality and generally well situated. It was only by
conceding such lands that the difficulty could be escaped in which I found the Government
placed, by what the Court affirmed to be the illegal settlement of the Opotiki district.210
As Miles has pointed out,
the relationship between Wilson's out-of-court arrangements and the compensation process
is not entirely clear. While Wilson was empowered to make these special arrangements with
claimants, it seems these agreements still had to be validated by the court. None the less, in
court, Wilson's evidence carried a considerable weight and his pre-sitting arrangements were
often authorised without any independent inquiry as to whether these agreements were fair
or satisfactory . .] Manyindividllalcases brought before the judges were dismissed where
the Crown agent said they had been setded out of court.211
On 7 March 1867, the Opotiki Compensation Court heard a claim brought by Anania Rakuraku
(on behalf of 'Ngaituhoe') regarding land at Ohiwa. Rakuraku stated that:
Ngaituhoe and Upokorehe are the tribes living on the land in question now. They are
connected with each other. Neither of them are connected with the Whakatohea,
Ngatihokopu and [Ngatihauipara? or Ngatiwharepaia?] and Ngatiawa but [are] connected
with the Urewera.212
He went on to say that Upokorehe 'live within the claim but the whole of it belongs to my tribe.'
An Upokorehe witness named Hirini, who is not identified further, supported the claim, stating
that 'there were so few of them, they could not bring any men into the field,' which agrees with
what Mihirangi Koutu was to say later, as discussed in section 4.3. Hirini added that although
both Te Upokorehe and Ngaituhoe lived on the same land, they were 'distinct hapus'.
Tiwai Piahana gave evidence that Whakatohea had claims within the area claimed by Rakuraku,
stating that 'the Upokorehe belong to the Whakatohea' and that 'the whole of them took up arms
against the Government'. Rewiri Te Rangimatanuku disputed Rakuraku's boundaries, claiming
that 'the boundary of the Whakatohea is from the sea to Pukenui and then inland and along
Pukenuioraho. This,' he continued, 'belonged to the Upokorehe and the rest of the tribes of the
Whakatohea.,213
210 Wilson to Pollen, 18 April 1867, IA 11867/1321 NA 211 Miles, Te Urewera, pp 134-135 212 Opotiki Compensation Court minute book, 7 March 1867, fo1 9 (RDB vol 120, P 46061); cited in Miles, Te Urewera, p 139 (the annotation is hers) 213 Opotiki Compensation Court minute book, 7 March 1867, fo1s 9-14 (RDB vo1120, pp 46061-6)
65
As a result of his perceived part in the failure of the military forces to capture Kereopa in Te
Urewera, Rakuraku was later labelled as 'having been in rebellion' by the Opotiki Compensation
Court, and his claim to lands at Ohiwa was dismissed.214
In another case, Joseph L Kennedy claimed 1800 acres of Paiwiwi at Ohiwa (between Ohiwa and
Waiotahi) 'through his mother Rangirauwaka of the Upokorehe tribe' who, he claimed, had
exclusively 'occupied the land' before being taken into slavery in 1838. Kennedy stressed that he
did 'not claim with Upokorehe'. One witness, Ihaia [?], stated that 'No other hapu had any claim
to any of the land. All the land between Waiotahi and Ohiwa belonged to the Upokorehe.'
Another witness, Rita, stated that Rangirauwaka had 'inherited it from her father [Te Rupirau]. It
was hers solely.· Thehapu had nothrimto it.?Kepa Toihau ofNgatiAwa,.whoha,d,hiso\Vn claim
to Ohiwa lands before the Court, stated that the land in question had belonged to Upokorehe,
but that his claim (on the basis of both conquest and ancestry) was superior to theirs. Another
witness stated that 'in accordance with the Maori idea no individual could claim so large a piece',
and that 'the land between Ohiwa and Waiotahi could not belong to one man'. Wi Teria agreed
with this, stating that 'the land in question belonged to the Upokorehe hapu', who 'numbered
about 18 men'. Rewiri Te Rangimatanuku likewise stated that 'Upokorehe own all that land'.
Kennedy was granted fifty acres of land at Paiwiwi.215
Where claims were found by the court to be proved, awards of land (and sometimes cash) were
made. Claims not proved were dismissed. Before an the cases could be heard, the Bay of Plenty
Compensation Court stopped its hearings in December 1867, due to the continuing hostilities in
the area.
However, even while the hearings were in progress, the Crown was disposing of some of the land
in the confiscated area. On 31 August 1867, a proclamation dated 12 August 1867, announced,
under the New Zealand Setdements Act, 1863, the setting aside of a significant area of land
within the eastern Bay of Plenty confiscation boundary, upon which would be 'laid out a
sufficient number of towns and farms to give full effect to the provisions of the contracts which
may be entered into by or on behalf of the Government of New Zealand with certain persons for
the granting of land to them in return for military service'. The area, which included Ohiwa
Harbour and its surrounds, was described as follows:
214 Opotiki minute book 2, 1 October 1867, fo187 (RDB vo1121, P 46617). See Miles, Te Urewera, p 135ff 215 Opotiki Compensation Court minute book, 7 March-8 April 1867, 12 March 1867, fo1s 14-16 (RDB vol 120, pp 46066-8); 14 March 1867, fo1s 25-26 (RDB 46078-9); Awards of the Opotiki Compensation Court 7 March-8 April 1867 (RDB vo1120, pp 46178-9)
66
All lands within the Bay of Plenty District, bounded by a straight line running due South
from Tirohanga [to the east of Opotiki] for seven miles, thence by a line bearing West which
shall strike the Waiotahi River, thence ascending the course of the Waiotahi River until it
reaches the southern boundary of the confiscated block, thence running westerly by the
southern boundary of the confiscated block until it reaches the Whakatane River, thence by
the course of Whakatane River to the sea, and thence from the mouth of Whakatane by the
sea coast to Tirohanga.216
In designating this land as available for the laying out of towns and farms for military settlers,
prior to the completion of hearing all claims before the Compensation Court, the Crown appears
to have denied claimants, and potential claimants, the full opportunity to have their claims heard,
and to defend their lands from the claims of others. Added to this was the n()t:icea.ble absence of
many claimants, as noted by Wilson, above.
Mikaere makes the point that the Confiscated Lands Act 1867, which allowed for the awarding of
lands to 'surrendered rebels', was not passed until October 1867, that is, after the majority of
sittings regarding Whakatohea lands.217 Furthermore, inconsistencies were noted regarding the
granting of land to people, such as Wepiha and his father, Apanui, who Wilson recorded were
'tangata hara' or 'rebel', prior to the change in legislation. When the Court made awards to
Wepiha and Apanui in March 1867, Whakatohea protested to Wilson, who reported to Daniel
Pollen, Auckland Agent for the General Government, that:
They complained that the judge lMair] was partial to Ngatiawa, and they accused me with
deceiving them, by saying the lands of rebels were forfeited, which had prevented them from
making claims; whereas now they saw the law made no distinction between rebels and loyal
persons, and therefore they demanded to have another sitting of the court to which they
might prefer claims for Opotiki and the land at Ohiwa, which they of course asserted
belonged to them - and not to Apanui and Wepiha, who were the very men they said that
had brought them, the Whakatohea, into trouble, by conducting Kereopa and Patara to
Opotiki, and using their influence to secure the success of those bad men's designs.218
Wilson advised Pollen that he did not agree with the judgement, referring to 'the settlement of
the Ngatiawa chiefs at Ohiwa' as 'a very unwise step'. He called for the case to be reheard, stating
that he thought it 'not merely desirable, but necessary to show the natives of the Bay of Plenty
216 New Zealand Gazette, 31 August 1867, 45, P 336 217 Mikaete, p 28 218 J A Wilson to D Pollen, 1 May 1867
67
district that the Agent for the Crown has not deceived them, and that the Government has not
been politically inconsistent in taking confiscated lands' .219
Pollen supported Wilson (referring to the decision as 'objectionable on principle and most
unfortunate in substance'), and he in turn wrote to both the Chief Judge of the Native Land
Court and the Colonial Secretary calling for a rehearing.22o The Government approved a
rehearing at Maketu on 20 June 1867, but it had to be abandoned when only one of the three
judges (Mair) was able to get to the venue.221 It is not clear if the matter was ever reheard, or if
Apanui or Wepiha ever actually received the Ohiwa land.
4.5 ConClusion
The government's confiscation of Upokorehe's lands in 1866 significandy added to the hapu's
already weakened position. Declared 'rebels', and with their numbers and power depleted, it
appears that the granting to Upokorehe of the Hiwarau block and Hokianga Island was
negotiated with Wilson (representing the Crown) on their behalf by others-notably Rakuraku
and, to some extent, Hemi Kakitu. With the actual Crown Grant of Hiwarau, tribal interests in
the lands were divested, and the property was vested in individuals, as listed in the official
schedule. This list, it was argued, included people who were not recognised by some as being of
Upokorehe. This was to be the subject of petitions made by Upokorehe to the Crown, and these
are oudined in the following section.
Section 5: The Hiwarau Block
5.1 Nineteenth Century Native Land Court Claims
In the late nineteenth century, a number of cases were heard by the Native Land Court regarding
issues of succession, partition and relative interests in the Hiwarau block.222 In March 1895, the
court heard a case concerning succession to the interests in the Hiwarau block of Tawhi Rangi.
219 J A Wilson to D Pollen, 1 May 1867; see also J A Wilson to F Whitaker, Auckland Agent for the General Government, 14 March 1867, DOSLI Hamilton: Opotiki Compensation Court 2/3, Correspondence 1867-1868 (RDB vo1122, pp 47122-47123, 47124-47126) 220 D Pollen, Memo for the Chief Judge of the Native Land Court, 7 May 1867; D Pollen to the Colonial Secretary, 11 May 1867, DOSLI Hamilton: Opotiki Compensation Court 2/3, Correspondence 1867-1868 (RDB vol 122, pp 47117-47121,47127) 221 W G Mair to Chief Judge, Compensation Court, 5 October 1867; Wepiha Apanui to Te Penetana, 21 June 1867 DOSLI Hamilton: Opotiki Compensation Court 2/3, Correspondence 1867-1868 (RDB vol 122, pp 47147-47150, 47160); Gilling, p 142 222 Hiwarau (Succession), Opotiki minute book 1, fo1s 217-18, 16 August 1879; Hiwarau (Succession), Whakatane minute book 1, fo1s 37-38, 2 September 1881; Hiwarau (Succession), Opotiki minute book 7, fo1s 75-88, 21 March 1895; Hiwarau (Survey), Opotiki minute book 14, fo1s 107-108, 2 May 1896; Hiwarau (Relative interests), Opotiki minute book 15, fo153, 3 March 1898; Hiwarau (Relative interests), Opotiki minute book 16, fo1s 237-259, 262-272, 275-287, 289-324, 326-338, 341, 7 March 1898; Hiwarau (Succession), Opotiki minute book 16, fo1s 324-325, 15 March 1898; Hiwarau (partition), Opotiki minute book 16, fo1s 338-341, 17 March 1898; Hiwarau (Succession), Opotiki minute book 17 fo1s 1-5,21 October 1898.
68
Evidence was presented by Rllnaha te Pahau, Herni Kakitu, Wi te Akeake, Rawiri Makawa, and
Mihaera Rehua, 'all of them,' it was stated much later, 'elders whose knowledge of history of this
title must have been as nearly complete as it was possible to bring to bear at that time,.223 In his
judgement, Judge Scannell stated that,
In this case the Court finds it impossible to get satisfactory evidence ftom either side. The
land was given to the Upokorehe hapu by the Government, but none of the witnesses can
give us any satisfactory explanation as to who the Upokorehe are or from what source the
hapu comes. All we have from which the Court can derive any guidance is the fact
admitted by one of the witnesses called to support the counter-claimants' case-that for four
generations at least the mother of the deceased and claimant in the case-and her
ancestors-have lived with Te Upokorehe and at Hiwarau.224
It was therefore ruled that, while the claimant was not of Upokorehe, succession was granted to
her because she and her ancestors had lived with Upokorehe at Hiwarau. This was to create a
precedent for rulings on later claims regarding this issue.
In March 1898, the Native Land Court heard an application for definition of relative interests in
the block, as follows:
Te Warana Mokomoko and others ask for the definition of relative interests in the Hiwarau
Block and claim that only thirty persons are entided to full rights as being really members of
the Upokorehe Tribe, to whom they state that the grant of land made by the Government
was restricted. They also state that the other twenty-six persons in the tide are members of
N'Karetehe, N'Hunapo, Te Kareke and other hapus - not Upokorehe - and that therefore
they should get merely nominal interests, as having been included in the tide without right.225
This was rejected by Ivlihaere Rehua and Rimaha te Pahau on behalf of those people objected to,
who claimed that 'most of the twenty-six persons are really Upokorehe, which is a general name
given, in connection with the killing of Taikurere, to the people of a number of hapus in the
Ohiwa district-the descendants of Raumoa'. This group in turn objected to several people
represented by Te Warana Mokomoko, 'as being members of another branch of the
Upokorehe-N'Raumoa and N'Patu-who have become identified with Whakatohea, and got
land at Opape, etc.'
223 'The Native Purposes Act 1938. Report and Recommendation on Petition No. 14 of 1937, of Henare Rako and Others, Praying for a Reopening of the Title of Hiwarau Block', AJHR 1944, G-6, P 4 224 Opotiki minute book 1, fols 217-18, 16 August 1879 225 Opotiki minute book 16, fo1332, 17 March 1898
69
In making judgement, Judge H Dunbar Johnson, stated that:
This Court is of opinion that, when adopting the name Upokorehe as a collective name for
the fifty-six persons in the schedule of owners of this block, the Compensation Court and
Crown Agent did so merely to distinguish a certain set of people who had lived in the
Ohiwa/Waiotahe district and for whom land was to be provided for setdement purposes.
The award then made was final and conclusive in favour of the individuals named, and it was
not then contemplated that there should be a further enquiry with a view to (practically) the
elimination of any who could not claim to be ancestrally connected with the Upokorehe.226
While it was acknowledged that a number of those included in the list did belong to 'outside
tribes', Judge Johnson stated that 'they had become identified with the Ohiwa!Wruotab.e people
owing to long residence amongst them'. Furthermore, he added that:
it is to be presumed that, in including those persons in the schedule, the Compensation
Court and Crown Agent were fully aware of their position. So also in respect of persons
included in other awards-at Opape, etc.-this Court assumes that the Compensation Court
and Crown Agent were fully cognizant of those matters and had good reasons for the action
they took.227
It was further noted that the function of the Court was 'to complete work left unfinished by the
Compensation Court - that is, the definition of the relative interests of the owners', and that:
If such had been done at the time that the list of owners was setded, this Court feels quite
sure that all would have been treated fairly and that no attempt would then have been made
to oust anybody, or to give merely nominal interests, more especially such persons as Henri
Kakitu and Te Teira Haruru, who were undoubtedly leading men, and who were so regarded
by the Compensation Court and Crown Agent To do what has been asked would be simply
going behind the award of the Compensation Court, and would be virtually making a fresh
order in favour of a limited number of persons-a position which this Court is not prepared
to take Up.228
As such, it was decided that 'this Court awards three shares to each adult male, two shares to
each adult female, and one share to each child-as set out in list published in the N.Z. Gazette of
14th November, 1874--making a total of 122 shares.'229
226 Opotiki minute book 16, f01332, 17 Match 1898 227 Opotiki minute book 16, f01332, 17 Match 1898 228 Opotiki minute book 16, f01332, 17 Match 1898 229 Opotiki minute book 16, f01332, 17 Match 1898
70
There are several points raised in this judgement that require comment. First, there is the issue of
the actual extent to which the Compensation Court and Crown Agent were fully aware and
'cognizant' of the seemingly very complex situation that they had so efficiently dealt with out of
court, and in negotiation with the Tuhoe chief Rakuraku. Related to this are the unidentified
'good reasons for the action they took'. Secondly, there is the decision of the 1898 Court to
confine the scope of its inquiry to 'complet[ing the] work left unfinished by the Compensation
Court - that is, the definition of the relative interests of the owners', and again relying solely on
the judgement of Wilson, who appears to have been eager to settle with Hemi Kakitu.
Another issue is that of 'ancestral title'. Judge Johnson stated that '[a]t the outset of this case, the
Collie· explained· . that, ·heing ····confiscated . land returned ... by·· the· Goveroment ·to ·.specified
individuals, the ancestral title was not involved'. Nevertheless, Te Warana Mokomoko, being
'very desirous' to address this issue, was allowed to proceed in presenting such evidence to
support his case. In response, the judge concluded that while 'a good deal of conflicting evidence'
was heard, 'the Court is of the opinion that Tapui te Kaka's evidence is reliable and that the name
Upokorehe was a general name applied to people of various hapu living in the Ohiwa/Waiotahe
district. ,230
5.2 The 1935 and 1937 Petitions regarding Hiwarau
The issue of the eligibility of those named as the original owners of the Hiwarau block, therefore,
was not resolved to the satisfaction of all, and continued to be contentious. On 8 July 1935, Rahi
Erana and nine other 'owners of undivided interests' in the Hiwarau block lodged a petition to
Parliament, which again stated that the original list of owners included 'a number of persons
whose claim as true members of the Upokorehe Hapu is disputable'. Furthermore, the petition
stated that the inclusion of these people 'has, since the date of grant to the present time
engendered discontent amongst members of the Hapu'. This discontent was fuelled, the
petitioners claimed, by the list including 'many persons who participated in grants of land by the
Compensation Court to other Hapus', and who 'were allotted equal shares in the Hiwarau Block
with those whose only grant was in the said Block.,231
The Registrar of the Waiariki District Maori Land Board advised the Native Department that:
230 Opotiki minute book 16, f01332, 17 Match 1898 231 Petition no. 32/1935 - Rahi Etana and othets - te Hiwatau Block, Bay ofP1enty, 1935, LE 1/1935/14 NA (RDB v015, pp 1598-1601)
71
It has been commonly held that by the Government confiscating these lands they no longer
remained Native lands, and the persons put into the tides later need not necessarily be
members of the tribe to whom the land was returned by the Compensation Court,232
Judge Johnson's 1898 judgement was also referred to, and on 30 October 1936 the Native Affairs
Committee reported that they had 'no recommendation to make in regard to this petition'.233
On 10 August 1937, an almost identical petition, this time lodged by Henare Rako and six others,
was presented calling for the case to be reopened. It again stressed that members of other hapu
had been included in the Hiwarau list, and that some had been granted 'shares in awards of other
landstotheHapustowhkhtheyactuallybelonged'~234 In 1938,the Native Affairs Committee
found that the petition should be referred to the Government for special inquiry and the case was
referred to the Native Land Court.235
The Native Land Court at Opotiki heard Henare Rako's Hiwarau petition on 19 July 1939 (as
discussed in section 4.3, above). The petitioners claimed that two lists of members of Upokorehe
had been submitted to Wilson in 1874. The first had included 30 members of Upokorehe, while
the second (26 names) had been submitted later by Hemi Kakitu who, being a 'paramount chief
was not challenged by Upokorehe at the time.236 It was only later, the petitioners stated, in 1898,
that an attempt could be made to 'remedy matters', without result. They now called for the
second list of 26 people to be excluded from the tide. The problem was, they stated, that 'there
has been a good deal of shuffling about by the people. People were Upokorehe when it suited
them'. 237
Another debated issue was the 'definition' of Upokorehe, primarily whether or not descent from
Taikurere constituted membership of the Upokorehe hapu. In his report of the hearing, Judge
John Harvey emphasised the issue, stating that 'the identity of Upokorehe hapu remains a matter
232 T. Anaru, Registrar, Waiariki District Maori Land Board, Rotorua, to the Under Secretary, Native Department, 12 November 1935. 'Rahi Erana and 9 others - Hiwarau Block', 8 July 1935 - 8 February 1945, Petition no. 32/1935, MAl 5/13/73 NA (RDB vol 58, P 22324) 233 Native Affairs Committee. Report on the Petition of Rehi Erana and 9 others of Opotiki, Praying for relief in re the Hiwarau Block, 32/1935, 30 October 1936, MAl 5/13/73 NA (RDB vol 58, P 22322) 234 Petition No. 14/1937 - Henare Rako and 6 others re: Hiwarau Block, MAl 5/13/73 NA (RDB vol 58, P 22320) 235 Native Affairs Committee. Report on the Petition of Henare Rako and 6 others of Nukuhou North, Praying that the Native Land Court be empowered to investigate the tide of Hiwarau Block, 14/1937, 24 August 1938, MAl 5/13/73 NA (RDB vol 58, P 22316). Under section 23 of the Native Purposes Act 1938, the Chief Judge was authorised to refer to the Native Land Court ten existing petitions regarding Maori land, including Henare Rako's petition. 236 The official report regarding the petition states that the lists were lodged by Te Warana Mokomoko. 'The Native Purposes Act 1938. Report and Recommendation on Petition No. 14 of 1937, of Henare Rako and Others, Praying for a Reopening of the Tide of Hiwarau Block', AJHR, 1944, G-6, P 3 237 Opotiki minute book 30, fo1s 11-18 (RDB vo158, pp 22299-22301)
72
of doubt', and that '[t]he origin of the name Upokorehe is also in doubt and the subject of many
conflicting stories':
There seems to be a consensus of opinion that the Upoko (head) belonged to one Taikurere,
but opinion is equally united on the point that others besides the descendants of Taikurere
are entided to be called Upokorehe. Mihirangi Kotu [sic], who was called before this Court
to give evidence on behalf of the petitioners and whose family are included in List No.1,
said, "I cannot trace from Taikurere." 238
Judge Harvey reported 'from the evidence given at the hearing of the application for definition of
relative interests that some persons were included in the list who were from outside tribes
altogether, but who had long occupation at Hiwarau', and that the Court was of the opinion 'that
the words "Upokorehe Hapu" and "Upokorehe Tribe" used in the Gazette notice of 14th
November, 1874, cannot be applied in derogation of the rights of the persons named as grantees
from the Crown.' The judge recommended that:
It does not appear to the Court that a reopening of this matter is justified, as no evidence can
now be adduced that could enable any tribunal to detect and correct mistakes (if any) made
in the root of tide to Hiwarau Block.239
On 23 November 1944, the Chief Judge of the Native Land Court notified the Native Minister
that 'in view of the conclusions reached by the Court-conclusions in which I concur-I
recommend that no further action be taken'.240
On 18 July 1946, Mautini Mokomoko wrote to the Native Minister, on behalf of 'members of
your Maori people, and descendants of Mokomoko', regarding the issue of land which, they
claimed, had been granted to Mokomoko by the government prior to his execution. According to
this letter, Mokomoko had asked the Crown for this land, and the government had 'favoured the
request'. 'This,' it was claimed, 'was their oath to each other. He was then executed [ ... ] though
he was not guilty'. The letter requested that the Native Minister 'enquire into this matter and to
return the land to the descendants of Mokomoko', who were listed as: Mautini Warana
Mokomoko; Hemoata Warana Mokomoko; Paki Warana Mokomoko; Pera Warana Mokomoko;
238 AJHR, 1944, G-6, P 4 239 AJHR, 1944, G-6, P 4 240 Memorandum from the Chief Judge, Native Land Court, to the Hon Native Minister, 23 November 1944, MAl 5/13/73 NA (RDB vol 58, P 22297)
73
and Miriama Warana Mokomoko.241 In response, the office of the Native Minister advised that
the matter had been investigated, 'but it has not been possible to trace any record of a promise by
the Government to give land to Mokomoko before his death in 1866. I regret that without
further information it is not possible for me to assist yoU.,242
5.3 Other Upokorehe Interests
The Maori Land Court minute books contain references to Upokorehe in regard to other blocks,
notably the Tahora No.2 and Waimana blocks, further indicating the connections Upokorehe
had with the peoples of this area. There are also references to Watana Mokomoko's participation
as a witness at several hearings.
In Tuhoe: The Children if the Mist, Best states that 'Te Upoko-rehe were awarded a portion of the
Tahora No.2 Block by the Native Land Court'.243 In 1889, when Tamaikoha gave evidence in the
Tahora No 2 Block heatings, he spoke not only for Tuhoe, but also for Te Whakatane and
Upokorehe, 'who,' he claimed, 'are my people'. He gave evidence that Upokorehe had often had
to take refuge with their inland relatives, but that they had always returned to cultivate at Ohiwa
harbour, and that they were therefore recognised in that area.244
In 1877, both Upokorehe and Tuhoe individually applied for a survey of the 10,491 acre
Waimana block and, at a hearing the following year, Waimana was claimed by 'Te Upokorehe on
one side and Te Urewera and Ngai Turanga on the other'. Both sides were in treaty with
European settlers to lease the land, notably Captain Frederick Swindley.245 The court noted that
the claimants and counter claimants were 'very much related and seem to have occupied portions
of the Waimana Block. , . at different times', The land was awarded to 'the descendants of
Tuhoe, who are living on it, and also to Ngai Turanga and Ngati Raka hapus, who are also living
on the land'.246 Upokorehe's independent claim was dismissed.
At a rehearing of the Waimana block in 1880, the Court again ruled that Upokorehe had no
independent claim to this land, as they 'had not been able to sustain a claim to the land in their
own tight'.247 However it did recognise that some individuals of Upokorehe did have tights, but
241 Mautini Mokomoko to the Hon H G R Mason, Native Minister, 18 July 1946 (translation), l\iA1 5/13/167 NA (Wai 87 ROD, docA1(a)). The letter IS annotated as follows: 'Mokomoko was a Hauhau leader. Captured in Waimana valley 20/10/1865. Tried in Auckland 17/5/1866 & executed. CowanNZ Wars, VolII,pp 101 & 111' 242 Native Minister to Mautini Mokomoko, 23 August 1946, l\iA1 5/13/167 NA (Wai 87 ROD, docA1(a)) 243 Best, vol 1, p 89 244 Opotiki minute book 5, fols 269-70, 27 March 1889 245 Jeffrey Sissons, Te Waimana, The Spring of Mana: Tuhoe History and the Colonial Encounter, Dunedin, University of Otago Press, 1991, p 89; Miles, Te Urewera, p 230; Miles cites Opotiki minute book 1,18 March 1880, fo1402 246 Opotiki minute book 1, fo163, cited in Sissons, 'Blocked In, Forced Out', Draft Version, June 2001, ch 2, P 7 247 Sissons, 'Blocked In, Forced Out', Draft Version, June 2001, ch 2, P 9
74
only through their extensive intermarriage with Tuhoe.248 The list of owners of the Waimana
block was extended to include Rakuraku and others, and also to include a number of Upokorehe
names.249
5.4 The Partition and Fragmentation of Hiwarau
From its creation, successive partitions of the Hiwarau block and the exponential succession of
title, led to such fragmentation that in 1969, the Maori Land Court amalgamated the majority of
the partitioned blocks to once again form a roughly equivalent contiguous block known as
Hiwarau C. According to claimant submissions, 'some lands were specifically excluded however
the majority of the lands as vested by the Compensation Court in 1874 formed the modern day
Hiwarau C Block,.250
In a letter to the Waitangi Tribunal dated 17 December 1992, Tuiringa Mokomoko, as 'Chairman
of the newly elected Responsible Trustees of Hiwarau C Block', outlined the history of the block,
stating that prior to confiscation the original area was about 1321 acres and 4 islands, the
boundary being from Maraetoto [sic] Stream to the west of Ohiwa Harbour', and that between
1867 to 1962 this had been 'drastically reduced to 800 acres and one island.,251
In 1904, the Hiwarau block was partitioned into Hiwarau A (785 acres, 44 owners); and Hiwarau
B (475 acres, 33 owners).252 See figure 8. InJune 1907, the Native Land Commission presented a
report on 'Native Land in the County of Opotiki', extending 'from Ohiwa on the west to
Whangaparaoa on the north-east'. Produced by Robert Stout and Apirana Ngata, the report
outlined the extent of Maori land holdings, and estimated the availability of land for lease or sale.
It was reported that Whakatohea 'have little land left in their hands' and, as such, 'has no surplus
land for sale'. The total area of Whakatohea land was calculated as 35,449 acres, most of which
was contained in the Opape Reserve (20,290 acres), the title of which had only recently been
settled by the Native Land Court. While the report found that the Opape Reserve was 'not good
land, and at best can only be called second-class land', it stated that 'the owners are desirous of
reserving all but a small area'. Of the total Whakatohea lands, 6,733 acres were identified as
available for lease to the general public. In the schedule of lands leased or under negotiations for
248 Miles, Te Urewera, p 227 ff 249 Sissons, 'Blocked In, Forced Out', Draft Version, June 2001, ch 2, pp 10-15 250 Submissions of Counsel for Upokorehe, p 7 251 T Mokomoko to Waitangi Tribunal, 17 December 1992 (Wai 46 ROD, doc F3, app 2) 252 Chief Surveyor to Captain J R Rushton, Ohiwa, 4 March 1910, Hiwarau Block 15/2/1910 - 25/9/1966 LINZ 20/114-SGS-Ol
75
./ ."V .,-.,
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.;.': VII· )1/ /I /l j{ /l T /l IV £ s· D. ~
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~ (~. " ,!!r;,~J"oo \ fr"'; '> KJ S8 ~ \\~r
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Tata/ Area:-733,3.00.',(i pt-of' A i
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Figure 8: The Partition of the Hiwarau Block into Hiwarau A and Hiwarau 13, 1904 [Source: Box 45 Block Order file 64B, Hiwarau - Hiwarau Al2 Titles, Miscellanedus; Box 46 Block Order file 65B, Hiwarau B Titles, Waiariki Maori Land Court, Rotor1:la]
/.T ~ ..... u,:; /
lease, both Hiwarau A and Hiwarau B blocks were identified as 'under negotiation,.253 In
December 1911, most of Hiwarau A (683 acres 2 rood 0 perches) was leased to Charles William
Reardon of Auckland, for a period of 28 years.254
Over the next 60 or so years, Hiwarau A and Hiwarau B were subsequendy partitioned into some
30 individual blocks, and over the same period of time the number of shareholders expanded
through succession, further splintering the block's tide. The partitioning and amalgamation of the
Hiwarau block is summarised in tabular form below, from information contained in Maori Land
Court records.255 Refer also to figure 9.
Table 1:TheCTeation,Partitionin~ an.d A 11 ~mationef HiwarauBl()Ck~ .... ..... . ..... B~ock Date of Order . ,·.Area '.' Superseded' ' ....... Date' '. Hiwarau 3june 1886 1268a lr Q£ Partitioned 22 March 1904 HiwarauA 22 March 1904 793a 3r Op Partitioned 27 November 1940 HiwarauAl 27 November 1940 73a Or IIp Amalgamated (now 4 August 1969
HiwarauC) HiwarauA2 27 November 1940 37a Or 31p Amalgamated (now 4 August 1969
HiwarauQ HiwarauA3 27 November 1940 80a1r21p Amalgamated (now 4 August 1969
Hiwarau C) HiwarauA4 27 November 1940 86a lr 4p Amalgamated (now 4 August 1969
HiwarauCJ. HiwarauA5 27 November 1940 50a 3r lp Amalgamated (now 4 August 1969
Hiwaraug HiwarauA6 27 November 1940 55a 3r 14p HiwarauA7 27 November 1940 26a Or 25p Amalgamated (now 4 August 1969
HiwarauCJ. HiwarauA8 27 November 1940 106a 3r 4p Amalgamated (now 4 August 1969
Hiwarau C) HiwarauA9 27 November 1940 38a 2r lLl:£. HiwarauAl0 27 November 1940 62a 2r 33p Amalgamated (now 4 August 1969
Hiwarau C) HiwarauAll 27 November 1940 59a 3r 38p HiwarauA12 27 November 1940 57a 3r 21p Amalgamated (now 4 August 1969
HiwarauQ HiwarauB 22 March 1904 484a 1r 35p Partitioned 9 December 1913 HiwarauBl 9 December 1913 133a Or 3Ll:£. Partitioned 29 AUKust 1916 HiwarauB2 9 December 1913 51a 2r 28p Amalgamated (now 4 August 1969
HiwarauQ HiwarauB3 9 December 1913 93a lr 38p Partitioned 20 S~tember 1917 HiwarauB4 9 December 1913 198a 3r 35p. Partitioned 111ulyl921 HiwarauB1A 29 August 1916 lOa lr 20p 1. Amalgamated 4 August 1969
(now Hiwarau C) 2. Excluded 1993 14 June 1993
HiwarauB1B 29 August 1916 31a Or 20p Partitioned 26 November 1940 HiwarauB1C 29 Au~st 1916 19aOr ~
253 'Native Lands and Native-land Tenure: Interim Report of Native Land Commission, on Native Land in the County of Opotiki', AJHR 1908, G-1M 254 Lease No. 10629; Transfer No. 161543 or Lease No. 10629; 'Hiwarau A' me note, n.d., Maori Land Court (Waiariki), Box 45 Hiwarau - Hiwarau A12 255 Memorial Schedule Data Capture Binder 8B, Waiariki Maori Land Court Records
77
/
/ /
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(dppn;JI"mat. on! .. )
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~~~~\ \_ .• :;::> ~~ 'l;..--~,~.
Figure 9: Hiwarau A and B prior to amalgamation into Hiwarau C, 1969 [Source: LINZ: L&S Gisbome Office, 20/114-SGS-02, Hiwarau Block, 25 September 1966 - 1 Apri11987]
HiwarauBID 29 August 1916 72a 2r 28p HiwarauB3A 20 September 1917 15a lr 21p HiwarauB3B 20 September 1917 24a Or 27p HiwarauB3C 20 September 1917 20a 3r 32p General Land 15 July 1920 HiwarauB3D 20 September 1917 32a 3r 39p Amalgamated (now 4 August 1969
HiwarauC) HiwarauB4A 11 July 1921 32a 2r Op Amalgamated (now 4 August 1969
HiwarauC) HiwarauB4B 11 July 1921 20a Or Op Amalgamated (now 4 August 1969
Hiwarau C) HiwarauB4C 11 July 1921 25a 3r 35p HiwarauB4D 11 July 1921 19a 3r 26p Amalgamated (now 4 August 1969
HiwarauC) HiwarauB4E 11 July 1921 41a 2r Op Amalgamated (now 4 August 1969
HiwarauC) HiwarauB4F 11 JUIyl921 29a. 3r 32p Amalgarnated (now 4 August 1969
HiwarauC) HiwarauB4G 11 July 1921 29a Or 24p Amalgamated (now 4 August 1969
HiwarauC) Hiwarau B 1B 1 26 November 1940 15a 2r lOp Amalgamated (now 4 August 1969
HiwarauC) Hiwarau B 1B2 26 November 1940 15a 2r lOp Amalgamated (now 4 August 1969
HiwarauQ
5.5 The Creation of Hiwarau C in 1969
In August 1969, the Maori Land Court amalgamated the majority of the partitioned Hiwarau
blocks, cancelling their tides and creating one tide in substitution, Hiwarau C. According to the
Maori Land Court minutes, 'the application was made and prosecuted by the Deputy Registrar' of
the Court.256 This was done under section 435 of the Maori Affairs Act 1953, which enabled the
Maori Land Court the 'special powers' to amalgamate tides of adjoining lands.257 In the case of
Hiwarau C, this was done 'upon the ground that the lands [ ... J can be more conveniendy worked
or dealt with as if held in common ownership under one tide,.258 With amalgamation, owners of
the partitioned blocks became shareholders in the new block, in proportion to their holdings
prior to amalgamation. With its creation by amalgamation in 1969, Hiwarau C was vested in the
Maori Trustee under section 438 of the Maori Affairs Act 1953.259
256 Opotiki minute book 45, fol 118, 4 August 1969 257 Opotiki minute book 45, fols 111 to 124, 4 August 1969; Maori Affairs Act 1953, Patt 28: Special Powets of the Court, section 435 258 Opotiki minute book 45, foll18, 4 August 1969 259 Undet section 438 of the Maoti Affairs Act 1953, the Maoti Land Court was empoweted to 'on application made to it in that behalf ot of its own motion during the course of any ptoceedings befote it, make an otdet undet this section vesting any customary land ot Maoti fteehold land ot land owned by Maotis [sic] in any trustee ot trustees, to be held upon and subject to such trusts as the Court may declate fot the benefit of Maotis [sic] ot the descendants of Maotis [sic] ot fot any specified class ot gtoup of Maotis [sic] ot their descendants', Maoti Affairs Act 1953, Patt 28: Special Powets of the Court, section 438 (1)
79
5.5.1 Amalgamation and the role of the Maori Trustee
The office of the Maori Trustee had been created in 1920 to manage Maori estates, and was also
involved in land development and in providing mortgage finance to Maori farmers. According to
Alan Ward:
Neither the Public Trustee nor the Maori Trustee nor their administrators exercised their
responsibilities consistendy in the best long-term interests of those Maori whose lands and
revenue was vested in them. The alienation of land, large capital expenditure with litde
return, the charging of lands with high levels of debt, problems surrounding the collection
and distribution of rents, land valuations, and the maintenance of lease covenants, and
inadeqllate c:onsultation 'With beneficial owners in respect of all these matters indicate a
dubious record of protection of Maori interests.
'Responsibility for setting the main aims of the trustee's administration,' Ward continues, 'rests
with the Govemment.'260
The Maori Affairs Amendment Act 1967 increased the Maori Trustee's powers in regard to the
compulsory conversion of uneconomic interests, defined as being land valued at less than £100.
Hiwarau land was being fragmented in terms of partitions of tide, as well as the expanding lists of
owners for each tide due to the laws of succession. Compulsory conversion by the Maori Trustee
was seen as a way of arresting the increasing fragmentation, however, at best it could only be a
temporary and partial solution. Ward points out that the Maori Trustee's powers of compulsory
acquisition of uneconomic interests (which they retained unti11974), 'infringed Maori rights to
land (which were valued for many more reasons than economic ones)'.261 As G V and S M
Butterworth state,
the Conversion Programme was unpopular with Maori as it deprived them of the interest in
land, however small, that proved their kinship connections and gave them their
turangawaewae [ ... I]t continued the legal tradition [ ... ] of treating Maori tribal property in
land as an aggregation of the individual interests of members of the tribe instead of as
ownership in common by the whole groUp.262
According to Hugh Kawharu, writing in 1977, '[a]malgamation has two objects in common with
consolidation: the demarcation of economic units of production and the simplification (i.e.
reduction of number) of tides - basic prerequisites,' he argues, 'for Maori land development
260 Ward, NationalOveroiew, vol 1, pp 112-13 261 Ward, National Overoiew, vol 1, p 113; vol 2, p 435
80
today'. For the individual owner, amalgamation means the substitution of a large share in a small
holding for a smaller share in a larger holding, 'although the nominal cash value of [the owner's]
interest remains, relative to other owners, precisely the same'.263 For the owners as a group,
amalgamation could be seen as a way in which, among other things, 'occupied but reverting
holdings' could be re-developed, with an emphasis on 'the pooling of capital resources by all
owner groups in the name of a tribal or sub-tribal project'.264 In the case of the Hiwarau blocks, it
was hoped that re-amalgamating the fragmented units into the original block would allow for
more profitable utilisation of the land for the benefit of all beneficial owners.
5.5.2 The Hiwarau amalgamation hearings
On· 21J rine1967 the Maori Land Court heard an application for . the vesting of HiWllrau A12,
which had been lying idle 'for some years', in the Maori Trustee, under section 438 of the Maori
Affairs Act 1953.265 The initial application had been lodged by Henry Mokomoko, through his
solicitors, Messrs Potts and Hodgson, for an Order under Section 387 of the Maori Affairs Act
1953.266 Under Section 387 (PART XXV Utilisation of Unproductive Maori Lands) of the Act,
the Maori Land Court, where satisfied that any Maori freehold land or European land owned by
Maori was unoccupied, not being properly kept clear of weeds, owing rates (and the amount
payable has been charged on the land), or the owners of the land had neglected to farm or
otherwise manage the land with due diligence, were able to appoint the Maori Trustee to be the
agent of the owners.
A Property Inspection Report prepared by the Office of the Maori Trustee noted that Hiwarau
A12 was 'quite uneconomic on its own, but could be advantageously used along with Hiwarau
All and Hiwarau B'; but conceded that 'the rental value must necessarily be somewhat limited
on account of type of land, its size, and above all, its difficult access'.267 Nevertheless, the court
was notified that the Maori Trustee accepted 'a vesting of the land to lease to best advantage', but
suggested that '[i]t may be a better proposition to consider the amalgamation of adjoining
unoccupied lands into one title to enable best utilisation- for all lands in this area. ,268
262 G W Butterworth and S M Butterworth, The Maori Trustee, Wellington, The Maori Trustee, 1991, p 85 263 I H I<awharu, Maori Land Tenure: Studies of a Changing Institution, Oxford, 1977, p 119 264 Kawharu, p 124 265 Opotiki minute book 42, fol159, 21 June 1967 266 H P Martin, Deputy Registrar, Maori Land Court, to Messrs Connell, Trimmer, Lamb & Gerard, Whangare~ 28 February 1968, Maori Land Court (Rotorua) Files 45-140, vol 1, Hiwarau A, Subs-Amalgamation 267 I J Brosnahan, Lease Inspector, Property Inspection Report, 438/5 Vesting Hiwarau A12, 2 August 1967, Maori Trustee Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C (papers formerly in binder HEA 106/138) 268 R W Panapa, 'Hiwarau C', 9 October 1985, Maori Trustee (Rotorua) Files, 12-580-1, vol 3, Hiwarau C Part
81
When the application came before the comt again on 8 September 1967, Judge K Gillanders
Scott suggested that 'the Deputy Registrar may well consider filing an application under Section
435 and Section 438' regarding the contiguous Hiwarau A8, A9, AI0, A12, and B2 blocks, which
totalled 317 acres 2 roods 10 perches. Hiwarau A8, A9, AI0 and A12 were described as
'unsurveyed partitions and idle lands, while it was noted that Hiwarau B2 was occupied only by
Sam Waaka, 'an old man', who lived in 'a whare' on the northern end of the block, and that this
latter block had road access (to Wainui Road) through Hiwarau B4A.269 It was also noted that it
looked as if Hiwarau Al, A2, A3, A4, AS, A7 'will be in the same position'. Hiwarau All had
been leased to Rene de Loree for 21 years from 1 January 1957.270
On ·7 . August:· 1967 ,the Deputy Registrar had also made an . application tohav<:: . Hi:"\\Tarau A 4
vested in the Maori Trustee, 'to lease', upon the grounds:
(1) That the owners of the land have neglected to farm or manage the land with due diligence
and that in consequence of their neglect the land is not being used to proper advantage.
(2) That rates are not being paid.
(3) That William Oakes an owner in the land supports an application to have the land
utilised.271
R G Lockie, a Land Utilisation Officer, prepared an Utilisation Report for the Maori Land Court
in May 1968, regarding the Hiwarau blocks. Lockie reported that, of the total area, approximately
thirty percent was in 'poor pastille', while the remaining 70 percent was 'covered in heavy second
growth, manuka and fern'. Regarding the land being leased at the time, he reported that 'in my
opinion not one of these areas is an economic leasing proposition'. He advised that: 'Without a
doubt this is grazing country and its only utilisation is for sheep and catde farming and I woUld
suggest the total area woUld be best used by making two farm units that woUld Ultimately include
the blocks at present under lease'.272
On 26 March 1969, the Registrar of the Maori Land Comt filed an application under sections
435,438,387, and 27(2) of the Maori Affairs Act 1953, to cancel the tides to the following Maori
freehold lands: Hiwarau Al to A12, BIA, BIB1, BIB2, BIC, BID, B2, B3A to B3D, B4A to
269 Sam Waaka was the father of Ivy de Loree, who was appointed as his successor (although the Maori Land Court noted there was no record of this), I J Brosnahan, Lease Inspector, 'AO Titles: Hiwarau Blocks' 28 July 1969 (MLC 45/140; 12/580), Maori Land Court (Rotorua) Files 45-140, vol 1, Hiwarau A, Subs-Amalgamation 270 Opotiki minute book 42, fo1225, 9 September 1967 271 In the matter of Section 438 of the Maori Affairs Act 1953, and in the matter of Hiwarau A4, application to have Hiwarau A4 vested in the Maori Trustee, 7 August 1967, Hiwarau Correspondence fue, volume 2, Maori Land Court (Waiariki)
82
B4G, and Waiotahi Lots 275 and 276, and 'substituting one tide therefore upon the grounds that
the said lands could be more conveniendy worked or dealt with if held under one title'. The
Registrar also applied for
an order under Section 438 vesting the single tide in the Maori Trustee to lease either in
whole or in parts to best advantage by public tender for a term to be fixed but not exceeding
42 years with no compensation or other relief for improvements.
The application stated that the Hiwarau lands would be vested in the Maori Trustee upon the
grounds that: 'each or some of the said lands are unoccupied'; 'that each or some of the said
lands are not being kept properly cleared of [noxious] weeds'; that rates were owing on 'each or
some of the said lands,;273 and that 'the owners of the lands or some of them have neglected to
farm or otherwise manage the same with due diligence and that in consequence of their neglect
the land is not being used to proper advantage'.
Furthermore, the application also requested that the amalgamation occur,
upon the grounds that some such class or orders is meet both in the interests of the Maori
owners of the said lands and in the public interest and are necessary to promote the effective
and profitable use and the efficient administration of the said Maori lands in the interests of
the owners. 274
The initial hearing regarding the amalgamation of the Hiwarau blocks was held on 24 June 1969,
with subsequent hearings on 1 July 1969, 31 July 1969, and 1 August 1969, before the Court
delivered its decision on 4 August 1969.275 The Court requested further information and evidence
regarding the actual status of the land (including occupants, dwellings, and lease arrangements);
the costs involved in developing the block as proposed; and the expected benefits for the
owners.276 Valuations for each block had been calculated in October 1968,277 as shown in the
following table:
272 R G Lockie, Land Utilisation Officer, to the Deputy Registrar, Maori Land Court, 8 May 1968, 'Utilisation Report - Hiwarau Blocks, Maori Land Court (Rotorua) Files 45-100, vol 1, HiwarauA, Subs-Amalgamation 273 A list of alienations and encumbrances on the Hiwarau blocks, prior to amalgamation, included ten rate charging orders, eleven charging orders for the costs of surveys, and ten outstanding survey liens. Only six of the thirty blocks initially considered for amalgamation were without any charges owing. 'Alienations and Encumbrances of Hiwarau Blocks', County Clerk, Opotiki County Council, to Registrar, Maori Land Court, 11 August 1969, Maori Land Court (Rotorua) fues, Hiwarau Correspondence File, vol 2 274 Deputy Registrar, Maori Land Court, application for amalgamation of Hiwarau blocks, 26 March 1969, Maori Trustee files (Rotorua) 12-580, vol 1, Hiwarau C block 275 R W Panapa, 'Hiwatau C', 9 October 1985, Maori Trustee Files (Rotorua), 12-580-1, vol 3, Hiwarau C Part 276 Opotiki minute book 45, fols 76-80, 1 July 1969
83
Table 2: Hiwarau Block Valuations 1968
Block Area Capital Block Area Capital
Value Value HiwarauAl 73a Or 11p_ $4400 *Hiwarau B 1 C 19a Or 6p $750 HiwarauA2 37a Or 31p $200 *Hiwarau B lD 72a 2r 28p $2150 HiwarauA3 80a 1r 21p $400 HiwarauB2 51a 2r 28p $1000 HiwarauA4 86a lr 4p $550 *Hiwarau B3A 15a 1r 21p $450 HiwarauA5 50a 3r lp $3000 *Hiwarau B3B 24a Or 27p $700 *HiwarauA6 55a 3r 14p $1500 Hiwarau B3D 32a 3r 39p $400 HiwarauA7 26a Or 25p $650 Hiwarau B4A 32a 2r Op $1000 HiwarauA8 106a 3r 4p $2600 HiwarauB4B 20a Or Op $500 *HiwarauA9 38a 2r 14p $1350 *Hiwarau B4C 25a 3r 35p $1750 HiwarauAl0 62a 2r 33p $600 HiwarauB4D 19a 3r 26p $1350 *Hiwarau All 59a 3r 38p $600 HiwarauB4E 41a 2r Op $250 HiwarauA12 57a 3r 21p $600 HiwarauB4F 29a 3r 32p $350 HiwarauB1A lOa 1r 20p $150 HiwarauB4G 29a Or 24p $300 ..
Hiwarau BiBl 15112tlOp $350 Waiotahi 275 25ftOr.(}p··· ... $200 Hiwarau B1B2 15a 2r lOp $1350 Waiotahi 276 25a Or Op $200
•. . .. .. . Total Valuatio:t:l $29,650 ............ . .... . ' .. Valuation (excluding·those blocks notithalgatnated) $20,40.0
*Blocks not included in Hiwarau C
The Court heard that the Opotiki County Council was 'anxious to see all these lands put to
profitable use and under proper tenure', and that '[t]he lands would lend themselves for
agricultural, horticultura~ and forestry purposes'. The Tasman Pulp and Paper Company reported
that the land 'would be entirely suitable for forestry purposes', and that 'the Company would be
interested in negotiating a forestry deal with the trustees,.278 The Court itself stressed that
'efficient administration of these Maori lands is essential in both the private and the public
interest'.279
There appears to have been significant interest in the afforestation of Maori land, particularly in
the Bay of Plenty area, throughout the 1960s. A memorandum in the files of the Department of
Maori Affairs, dated 20 August 1962, states that:
The Forest Service officials advise that any suitable land within reasonable distance from the
existing Kaingaroa Forest, the Tasman Paper Mill, or the Whakatane Board Mill Factory is an
economic certainty for forestry development. They are interested and anxious to acquire
Maori land in this area for afforestation purposes and have themselves carried out a detailed
survey of blocks which would be suitable. This shows a total of over 200,000 acres of Maori
277 Registrar, Maori Land Court, to County Clerk, Opotiki County Council, 8 August 1969; County Clerk, Opotiki County Council, to Registrar, Maori Land Court, 11 August 1969, Maori Land Court (Rotorua) files, Hiwarau Correspondence File, vol 2 278 B W Neutze, Office Solicitor, Tasman Pulp and Paper Company Limited, to The Registrar, Maori Land Court, Rotorua, 18 July 1969, Maori Land Court (Rotorua) Files 45-100, vol 1, Hiwarau A, Subs-Amalgamation 279 Opotiki minute book 45, fols 111-124, 4 August 1969
84
land in the Bay of Plenty area at present m scrub which is potentially suitable for
developing.28o
The Maori Affairs Amendment Act 1962 included a modification to subsection 235(1) of the
1953 Maori Affairs Act, to allow for Maori freehold land to be leased for longer than the
previously stated fifty years, provided it was 'to be used by the lessee exclusively or principally for
afforestation purposes,.281 The amalgamation of Hiwarau C should therefore be seen within the
context of both the government's concerns regarding fragmentation and partition, and the
interest in acquiring, or leasing, Maori land in the Bay of Plenty for the purpose of forestry, or
other 'profitable use'. Local authorities were anxious to see the amalgamation into one tide of
such fragmentedMaoriland,illldforittob~placedutlder the control of appointed trustees. Such
land would then be more readily available for commercial activity, and the collection of rates
would be more straightforward.
The Department of Agriculture conducted a report regarding the Hiwarau block, dated 9 June
1969, which concluded that the 'topography and areas limit development severly [sic]'; that its
'present carrying capacity is extremely limited' (emphasis in original); that 'development will be
expensive being approximately $54,000 for land and buildings and for capital stock $18,940'; and
that 'development could give a marginally economic hill sheep unit in 5 to 10 years'. The repor.!
stated that 'the present Block, in its present state of development is wholly unsuitable for beef
catde, due to lack of grazing area and fencing'. It was noted that 'some of the best land in the
Block' (Hiwarau A6, A 7, B3A and B3B) was leased to Joseph Manuel, and that this land was 'very
strategically placed in relation to working the block and for the development of it'; and, if
included in the amalgamated block, 'would allow a much faster development of the whole Block,
physically and financially'. The report stated that it appeared that Manuel also farmed Hiwarau
A5 and part of Hiwarau B1D, and calculated the total area farmed by him as 189 acres.
This report described the topography of-the Hiwarau block as follows:
This Block involves a variation of topography, from flat and rolling to steep erodable hills.
For this reason a considerable area should be kept in its natural state. This involves a total
minimum area of 370 acres mainly on the south-west side of the main ridge and two steep
gullies. Of this, some 240 acres should be permanendy left as is, with another 130 acres
which also should be left, but which perhaps could, in the very long term, be farmed. At
280 R Law to Secretary, Maori Affairs, 20 August 1962, MA 58/1, Part I, Afforestation of Maori land 1961-1973, NA; cited in Eileen Barrett, 'Rotoiti 15 Report, A Report Commissioned by the Waitangi Tribunal', 2001, (Wai 550 ROD,
doc A6), P 6
85
present, development of this 130 acres would be very expensive and defInitely uneconomic.
Trees could be considered here.282
On 24 June 1969, the Opotiki County Council informed the Maori Land Court that the Council
'considers the owners have acted responsibly in making the decision to amalgamate [the] 30
blocks', and that 'the Council is willing to assist the owners by every practical means at its
disposal to ensure that the lands [sic] potential is realised in the fullest possible way - firstly, for
the benefit of the owners and their children, and secondly, for the benefit of the district.' It was
noted that there were rates arrears on seven of the 30 blocks, 'comprising 287 acres amounting to
$350 varying from one to five years', however it was added that, while 'the Council recognises
that ithas·adutyto attain a l00%colleetian', 'it considers that there. are other . ~q\lallY i.n:lP()rtatlt
issues, such as the welfare and economic stability of the people who live in the district'.
While generally supporting the proposed amalgamation, the Council did raise a number of
concerns. While acknowledging that, 'for no capital outlay, a straight out leasing proposition will
return some income to the owners and eliminate all rating liability', it was suggested that the
owners would have difficulty in attracting 'the young man with access to capital'. They stated that
'experience in some areas shows that the type of person who will tender an offer for the lease will
not possess the capital resources to effect land development'; that they would be 'the type wno
seek a runoff or similar type of maintenance lease'. The Council also questioned the extent to
which 'rental received from a 42 years conventional farming lease, when divided among a large
number of owners, materially improves their welfare and economy'.
The Council also made the following, rather pointed, submission:
The Council is aware that at least two owners occupy small areas of the total acreage in the
application, and it respectfully suggests that the occupancies be regularized, and further, that
their ventures be investigated to ascertain whether or not additional areas should be made
available to them in order to improve their effIciency (if this is lacking) and/or their
profItability as economic units by today's farming standards.
Furthermore, the Council proposed 'the establishment of an incorporation, or a trust board, or a
board of managers, or a Committee of management, comprising owners', and
281 Maori Affairs Amendment Act 1962, s 18 282 0 W Steele, Farm Advisory Officer, Department of Agriculture, Property Report, Hiwarau Block, 9 June 1969 (Copy), pp 1-4, Maori Trustee files (Rotorua) 12-580, vol 2, Hiwarau C block, Now Hiwarau Lands Trust Main File
86
The establishment of a specialist advisory committee comprising those engaged in
agriculture, forestry, soil science, [mance, local authority and business management, and for
such a body to advise the management committee [ ... ] on all aspects of the land's potential
and to prepare a plan of development along predetermined guidelines having regard to the
interests and needs of the owners and the development of their land.
These recommendations were made, it was stated, 'in order to retain the land in the owners [sic]
control', and 'in order to demonstrate to the owners that by a consolidated effort, finance, and
the type of development that they seek will be easier to obtain, and thus dispense with the need
for prospective developers to deal with a large body of opinion.'
The Council's submission concluded that they 'believe[d] that by its situation this land has
economic potential for one or all of the following: [ ... ] beachside sections, tourist
accommodation, conventional farming, small fruits farming, marine farming and forestry.,283
In its submission, the Opotiki County Council made reference to a proposal put forward by a
company, Whakatohea Properties Limited, to acquire the lease for development of the block, and
commended the company's objectives.284 The governing director of the company was Pat Baker
and, according to a circular from the company 'to landowners in the Hiwarau block', dated 20
February 1969, 'Whakatohea Properties Ltd is a land-owning company formed in anticipation of
the Maori Land [Affairs?] Amendment Act 1967. Shares in the company may be held only by
members of the Whakatohea Tribe and their descendants.' According to the circular, the
company had commissioned Business and Economic Research Ltd (BERL) to investigate
'possible uses of Whakatohea tribal land for farming, forestry or tourism', and it had been
decided, by the board of Whakatohea Properties Ltd, that 'the company's first objective should
be the development of the Hiwarau Block for farming or for forestry'. It was stated that most of
the Hiwarau block had not been farmed 'for many years', and that, 'according to BERL, no more
than 200 acres appears to be produ~tively used. BERL considers that the remaining 1000 acres
could be profitably grazed or planted in trees for the benefit of Hiwarau landowners and
Whakatohea Properties shareholders'.285
283 L E Sisley, County Clerk, In the Maori land Court of New Zealand, Waiariki District, at Opotiki on Tuesday 24th June 1969, In the matter of an application by the Deputy Registrar for cancellation of tides and/or vesting in Maori Trustee to lease and/or to appoint the Maori Trustee agent for the owners - Hiwarau lands, 20 June 1969, pp 1-3, Maori Trustee flles (Rotorua) 12-580, vol 2, Hiwarau C block, Now Hiwarau Lands Trust Main File 284 ibid, P 2 285 Pat Baker, Governing Director, Whakatohea Properties Limited, 'Circular to Landowners in the Hiwarau Block', 20 February 1969, Maori Land Court (Rotorua) Files 45-100, vol 1, Hiwarau A, Subs-Amalgamation
87
Whakatohea Properties called a meeting of Hiwarau landowners at Kutarere Marae on 30 March
1969 to 'explain [their] proposals for this block', and to elicit 'an indication of likely support'.286
According to a statement made by Mr Baker in support of the amalgamation of the Hiwarau
blocks, approximately twenty owners attended the meeting, and a resolution was unanimously
passed, supporting the Whakatohea Properties proposa1.287 In his ruling on the amalgamation of
the block, Judge K Gillanders Scott commented that,
Having seen and heard Mr Baker and having read the documents which he produced in
evidence this Court is satisfied that Whakatohea Properties Limited is not a suitable person
to be considered by the Maori Trustee as a potentiallessee'.288
5.5.3 Opposition to, and amendment of, the application
The proposed amalgamation was not without opposition. The Court had originally proposed that
thirty pieces of land, totalling 1241 acres 3 roods 33 perches, be amalgamated into Hiwarau C.
However, eight of the blocks were deleted from the application due to: confusion over tide;
objections from existing lessees; and owner opposition to amalgamation. Hiwarau B4C, leased to
Harry Wilson, and A11, leased to Rene de Loree,z89 were excluded as there was some (separate)
confusion regarding tide, and consent was not (or could not be) given by the lessees as required
by the legislation. Joseph Manuel, who leased Hiwarau A6, B3A, B3B, and John Man~el, who
leased Hiwarau B 1 C, likewise did not grant their consent. The occupier and majority shareholder
of Hiwarau A9, Mrs Maggie McLean (nee Boynton), had fenced off her land and opposed
amalgamation. It is not clear from the Court minutes why Hiwarau BiD (72 acres 2 roods 28
perches) was excluded from the amalgamation, but an Inspection Report of the Hiwarau blocks,
prepared for the Court, describes Hiwarau BiD as 'family land farmed by John Manuel'. John
Manuel also leased Hiwarau B1C.290
Some of the blocks that were not amalgamated into Hiwarau C, being for the most part already
leased, were considered to be in .reasonably good condition. Joe Manuel, who leased Hiwarau A6,
B3A and B3B, was described as 'a most industrious farmer, milks 50 cows, rears young stock,
286 ibid 287 Heretaunga Pat Baker, statement regarding support of amalgamation of Hiwarau blocks, nd, Maori Land Court (Rotorua) Files 45-100, vol 1, HiwarauA, Subs-Amalgamation 288 Opotikiminute book, 45, fols 111-124, 4 August 1969 289 Hiwarau B4A, B4B, and B2 were, as with Hiwarau A11, leased to Mr and Mrs De Loree, and again there was some confusion regarding the tide and leasing arrangements of these lands. These blocks were, however, included in the amalgamation. The Court noted that '[i]f Mr & Mrs de Loree wish to continue to use Hiwarau lands they will just have to regularise their occupations'. The Court also noted that ,[i]t is true that some of the lands remaining in the application are used by various persons under arrangements, if at all, not confirmed by the Court'. Opotiki minute book, 45, fols 111-124,4 August 1969 290 I J Brosnahan, Lease Inspector, Hiwarau Block Initial Inspection Report: Leasehold Property, n.d., p 2, Hiwarau C Amalgamation ftles, Maori Land Court, Rotorua; Opotiki minute book, 45, fols 111-124, 4 August 1969
88
plus sheep and delivers cream to Kutarere'. Hiwarau A11 (leased to Rene de Loree) was
described as 'half grass'; Hiwarau B4C (leased to Harry Wilson) contained '15 acres grass balance
Bush Hill', while Hiwarau A9, the northern-most point of the block, sticking out into the
harbour, was described as 'undeveloped,.291 As can be seen in figure 9, the exclusion of Hiwarau
B1D, in particular, from the amalgamated block led to the creation of a block that was not
contiguous. This, combined with the nature of the existing leases, created a situation whereby
Hiwarau C continued to be fractured - by leases now, rather than by partitioning.
Nevertheless, the minutes of the Maori Land Court state that 'the Court is satisfied that the lands
remaining in the application are capable of effective and profitable use in the interests of the
benefiCial· owners generally·andlloftheodd Olleo.t: two of them or strangers to the title;,292
The blocks that were amalgamated into Hiwarau C were: Hiwarau Al; A2; A3; A4; A5; A7; A8;
Al0; A12; B1A; B1Bl; B1B2; B2; B3D; B4A; B4B; B4D; B4E; B4F; B4G; and Waiotahi 275 and
276.293 The original application (including all Hiwarau land), as stated above, was to have included
1241 acres 3 roods 33 perches.294 In the end, the actual extent of Hiwarau C block was 937 acres
3 roods 3 perches, and the block was surveyed as such in 1971. See figure 10. The number of
shareholders listed with differing relative interests in the block (calculated on their pre
amalgamation interests) was 233, with the combined number of shares in the block totalling
20,400.295
5.5.4 The vesting ofHiwarau C in the Maori Trustee
The ruling of the Maori Land Court on 4 August 1969 to amalgamate the majority of the
Hiwarau blocks and vest them in the Maori Trustee, was made subject to the trustee's
'unqualified consent', which the Court was duly informed of on 6 August. A Trust Order was
drawn up under Section 438(5) of the Maori Affairs Act 1953 as substituted by section 142 of the
Maori Affairs Amendment Act 1967. Section 438(5) stated that
For the purpose of facilitating the use, management, or alienation of any Maori freehold
land, or any customary land or any European land owned by Maoris, the Court, upon being
291 I J Brosnahan, Lease Inspector, Hiwarau Block Initial Inspection Report: Leasehold Property, n.d., p 2, Hiwarau C Amalgamation files, Maori Land Court, Rototua 292 Opotiki minute book, 45, fols 111-124, 4 August 1969 293 Opotiki minute book, 45, fols 111-124, 4 August 1969. Waiotahi 275 and 276 were the two 25 acre lots included in Pitcairn's Survey, prior to the granting of the original Hiwarau block 294 The total area is elsewhere described as 1,241 acres 3 roods 30 perches (emphasis added). K W Walsh, Chief Surveyor, Gisborne, to the Registrar, Waiariki District Maori Land Court, Rototua, 28 April 1969, Hiwarau Block 25/9/1966 -1/4/1987 LINZ 20/114-SGS-02 295 Opotiki minute book, 45, fols 111-124,4 August 1969
89
.. . .
.' .V\ \ X\
7Q¢al Area: 9372. 317 03p. "ll?c~:o;..fllwar8..{(C Roadway -6a. fr; 29p)
• '. t •
. ' . . H/warau C Blk
8//(s VI/ c XI· }Vl7akaial7e S, D, Glsi;or;7tJ Land f.)/J'frlc t . OpotlJ:l Covnty Svrveye,/ .by .oJ; I1~DoI1Cl/d Avgu.st /97/...
SCA/#/ . .10 CI"~/flS to £17 lac;'
HL 617.3/.· NL 617+. ,.Iff .,~1fY .
Figure 10: Hiwarau C August 1971 [Source: LINZ: L&S Gisbome Office, 2011 14-SGS-02, Hiwarau Block, 25 September 1966 - 1 April 1987]
satisfied that the owners of the land have, as far as practicable, been given reasonable
opportunity to express their opinion as to the person or persons to be appointed a trustee or
trustees, may, in respect of that land, constitute a trust in accordance with the provisions of
this section.296
The 'trusts upon which the Maori Trustee shall [ ... ] hold the said land' were set out in the
Hiwarau C Trust Order. These terms included the condition of 'alienat[ing] the said land as a
single unit or by parts to best advantage by private treaty or public tender', and reporting the
details of these alienations to a general meeting of beneficial owners. The Maori Trustee was also
instructed 'to apply the proceeds of alienation in and towards': payment of the trustee's costs in
admini~t~ringtllet:l:llst;paYlIl~llt of all title charges; payment of unpaid and legally recoverable
rates; payment of survey costs; and, lastly, 'payment of the net balance after deduction of taxes
and charges upon the share entitlement of individual beneficial owners, to the beneficial owners
. tho . h ,297 ill elf respective s ares.
5.5.5 The extent to which Hiwarau owners participated in the amalgamation proceedings
The minutes of the 4 August 1969 hearing state that, as shown above, 'section 438(1) provides
that as far as practicable the owners be given reasonable opportunity to express their opinion as
to the person or persons to be appointed a trustee or trustees in respect of the land'.298 With the
exception of those owners who objected to the amalgamation of their partitioned blocks, there
appears to be little evidence to show either the attendance or participation of Hiwarau owners in
any significant numbers in the amalgamation hearings. There is likewise nothing to indicate the
extent of consultation with owners regarding both the amalgamation and the vesting of the land
in the Maori Trustee. In a 1993 hearing, regarding an application to remove Hiwarau B1A from
Hiwarau C (discussed in section 7.2, below), it was found that, with the exception of the initial
hearing regarding the amalgamation, ,[t]here is nothing on the files to indicate that the owners of
any of the lands concerned received any notice of [subsequent] hearings ( ... ], nor of the decision
of the Court's to amend_ the application' .299 There is also no indication, at the time of vesting, of
the length of time that the owners expected the land to be administered by the Maori Trustee, or
any parameters for what kind of development they preferred.
296 Maori Affairs Amendment Act 1967, Section 142 297 Trust Order, Section 438(5) of the Maori Affairs Act 1953 as substituted by section 142 of the Maori Affairs Amendment Act 1967, in the Maori Land Court of New Zealand, Waiariki District, in the matter of the Maori. freehold land known as Hiwarau C, Opotiki minute book 45, fo1s 111-124, 4 August 1969 298 Opotiki minute book 45, fo1s 111-124,4 August 1969 299 Chief Judge's minute book 1993, fo1260, 14 June 1993
91
Section 6: Hiwarau and the Maori Trustee 1969-1992
6.1 1969-1981
The Wai 339 claimant counsel alleges, in regard to Hiwarau C, 'mismanagement by the Maori
Trustee, an agent of the Crown, since 1969,.300 This mismanagement, it is claimed, included the
failure to recover substantial rental owed by the lessees, breaches of covenant, and the
deterioration of the Hiwarau C block.
Much of the problem revolved around the lease of two portions of the block to Rene Augustus
de Loree, his wife, Ivy, and later, their son, Peter; and the Maori Trustee's failure to protect the
interests of the owners of the block in this arrangement. In 1994 the Maori Land Court heard
that Peter De Loorc··[sicJ ()wecr$54,037.36ilitent;301thatiliere were outstanding· breaches ··{;}f
covenant in the lease in the order of some $29,000;302 and that Mr De Loree owed $13,580.15 to
the Opotiki District Council in rates.303 The Office of the Maori Trustee had been made aware of
problems relating to de Loree, as early as 1970 (the year in which the first and larger of the two
leases had been made). By 1981 the Office of the Maori Trustee were contemplating re-entering
the leases. The situation (and the Maori Trustee's inability to resolve it) continued to be a source
of much dissatisfaction to the owners of the block until the smaller of the leases was re-entered
in April 1991, and Peter de Loree was evicted from the block in March 1992.
Following the amalgamation of Hiwarau C and its vesting in the Maori Trustee in 1969, the block
was leased as follows:
• Joseph Robert Edwards, 377a 2r 3p (formerly Hiwarau Al, A2, A3, A4, B4E, B4F, B4G), for
42 years from 1 March 1970, rent $426 p.a. reviewable every 14 years (lease transferred to his
son-in-law, Leonard Helmbright, upon Mr Edwards' death on 11 January 1971);
• Harry and Phillip Wilson, 52a 3r 15p (formerly Hiwarau B3D and B4D), for 42 years from 1
June 1970, rent $127.50 p.a. reviewable every 14 years;
• John Manuel! 41a 2r OOp (formerly Hiwarau B1A, B1Bl, B1B2), for 42 years from 1 March
1970, rent $114 p.a. reviewable every 14 years;
• Rene de Loree, 381a 2r 6p (formerly Hiwarau A8, Al0, A12, B2, B4A, B4B and Waiotahi 275
and 276), for 42 years from 1 March 1970, rent $432 p.a. reviewable every 14 years.
300 Submissions of Counsel for Upokorehe, p 2 301 Certificate of judgement in favour of The Maori Trost, Extract from the Civil Record in the District Court at Opotiki, 322/90, 3 November 1991 (Wai 46 ROD, doc F3, app 21) 302 Opotiki minute book 68, fo1320, 1 December 1993 303 Certificate of judgement in favour of Opotiki District Council, Extract from the Civil Record in the District Court at Opotiki, 240/91, 23 June 1992 (Wai 46 ROD, doc F3, app 21)
92
In addition, 76a 3r 26p (formerly Hiwarau AS and A 7) was to be leased to Joseph Manuel,
however the lease was not taken up because of a lack of finance, and it went to Rene de Loree,
for 40 years from 1 August 1972, rent $186 p.a. reviewable every 14 years. Joseph Manuel
continued to occupy an area of the former Hiwarau AS block, and challenged de Loree's
occupation of the land. With all of these leases there was no right of renewal and no
compensation for improvements.304 The details of these leases are summarised as follows:
a e : e n~1Ua lwarau T bl 3 Th 0" I H' C L eases .:. ....•...............•..
• •••••• .. .. ..... FonnerHiwatau;, .
:' .. ':< ' .Lengthof: . Lessee·'··· Area· . R811tal (i>:a;)· .. : .
.. . . ... . :. < Blocks: ... . ... ... : .•............ : Lease :.
Joseph Edwards Al, A2, A3, A4, B4E, 42 years from
(trans ferr(!d. to Leonard 377a 2r 3p .B4F,lHG
$426 1/3/1970 Helmbright, 11/11911f
....... . .... . ... ........ I
Harry and Philip Wilson 52a 3r 15p B3D,B4D $125.50 42 years from 1/6/1970
John Manuel 41a 2r Op B1A, B1Bl, B1B2 $114 42 years from 1/3/1970
A8, Al0, A12, B2, 42 years from Rene de Loree 381a 2r 6p B4A, B4B, Waiotahi $432
275 and 276 1/3/1970
Rene de Loree 76a 3r 26p A5,A7 $186 40 years from 1/8/1972
The blocks excluded from amalgamation were, with the exception of Hiwarau A9 and B1D,
already leased: Hiwarau A11 to Rene de Loree; B4C to Harry Wilson; A6, B3A, and B3B to
Joseph Manuel; and B1C to John Manuel. The only other remaining Hiwarau block, B3C (20a 3r
32p), had been purchased by Arnold Theodore Harris 'from the Maori owners' in 1920, and was
now described as European land.30s The alienation of Hiwarau B3C is discussed in more detail in
section 7.2, below. No other Hiwarau blocks were alienated in this way. The status of those
blocks excluded from Hiwarau C, at the time of the granting of the Hiwarau C leases, is tabulated
below:
Table 4: Status of Blocks excluded from Hiwarau C Brock Area Status . Lessee/Owner HiwarauA9 38a 2r 14p Not leased Hiwarau B1D 72a 2r 28p Not leased HiwarauAll 59a 3r 38p Leased Rene de Loree HiwarauB4C 25a 3r 35p Leased Harry Wilson HiwarauA6 55a 3r 14p Leased Joseph Manuel HiwarauB3A 15a lr 21p Leased Joseph Manuel HiwarauB3B 24a Or 27p Leased Joseph Manuel
304 A J Douglas for Maori Trustee, to Mr A M Hippolite, Valuation Department, Gisborne, 4 July 1974, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C; R W Panapa, 'Hiwarau C', 9 October 1985, Maori Trustee Files (Rotorua), 12-580-1, vol 3, Hiwarau C Part. 305 J J Dillon, Registrar, Maori Land Court, memorandum for the District Solicitor, Public Trust Office, Tauranga, 6 February 1953, Maori Land Court (Waiariki), Hiwarau Correspondence File, vol 1
93
Hiwarau B1C Hiwarau B3C
As early as August 1970, the Opotiki District Council notified the Maori Trustee that Rene de
Loree owed $257.40 in rate arrears, and that R J Manuel owed $227.50.306 By 1975, the situation
had worsened considerably. At a meeting of Hiwarau C owners in Opotiki on 21 February 1975,
representatives of the Maori Trustee informed the owners that there was rental owing on two
leases Oohn Manuel owed $495 and Rene de Loree owed $100); and that rental monies had yet to
be distributed to the owners, despite approximately $2000 having accumulated. The owners
raised a number of issues including: uncertainty regarding the actual surveyed areas of each lease;
the possibility of shares being excluded from the existing leases; the possibility of partitioning for
building houses; and leased land whlchwa.s lying idle aiid had not been improved (particularly
that being leased by Rene de Loree); and they called for an inspection of the leases, stating that it
was their 'wish to have these blocks brought up to standard'. Three owners were appointed as
representatives to accompany the Maori Trustee on the inspections: Mr H. Tamati; Mr H.
Mokomoko; and Mr Bill Oakes.307
According to the Maori Trustee, the inspection of the de Loree leases on 9 September 1975
revealed that, 'the lessee is maintaining the improvements present when the ,lessee
commenced,.308 However, the field officer who made the inspection did report that the three
representatives of the owners who accompanied him 'would like to see better progress with
eradication of blackberry and barberry on the former AS block [106a 3r 4p]'. It was also observed
that the former blocks Hiwarau A5 and A7 (the smaller of the two de Loree leases), 'look a bit
run down,.309 No action appears to have been taken subsequent to this inspection.
The issues raised by the owners at this 1975 meeting indicate that a certain degree of
dissatisfaction with, and uncertainty regarding, the Maori Trustee's administration of the block
had already developed by this time.
By 1979, the condition of the leased properties had deteriorated to such an extent that the Maori
Trustee was forced to take action. Further to this, de Loree was notified that he owed $690.06 in
unpaid rent for the period 1 August 1976 to 31 July 1979. A note on the Office of the Maori
306 Opotiki County Council to Maori Trustee, 4 August 1970, Maori Trustee Files (Rotorua) 12-580, vol 1, Hiwarau C block 307 Minutes of Meeting, Opotiki, 21 February 1975, Hiwarau C Block, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 308 C Sorensen, District Field Officer, Whakatane, Hiwarau C Pt. formerly A8, Ala, A12, B2, B4A, B4B pt. of 275 and 276, 7 July 1975, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
94
Trustee's copy of this letter recommended that they 'keep close watch on this one'.310 The leased
property was again inspected, revealing a number of breaches of covenant (the need for the
erection and maintenance of boundary and internal fencing; no evidence of topdressing or other
fertiliser; and a 'heavy infestation of blackberry in front and general reversion to scrub and fern
over the rest of the area,).311 De Loree was requested to forward a programme of how he
intended to remedy the breaches.
On 11 March 1980, when this had not been done, De Loree was warned that the Maori Trustee
would consider the issuing of a notice under section 118 of the Property Law Act requiring him
to remedy the breaches. He was reminded that 'legal proceedings have been instituted for the
recovery of t:he rent:'.312 On 3 Oct()ber 1980, the Office 6f the MaotiTrustee again instructed de
Loree to provide them with a programme of how he intended to remedy the breaches.313
On 17 February 1981, W Hodges, Executive Officer Trusts, informed the Assistant District
Officer and District Officer, Office of the Maori Trustee, that 'I think it is high time we
considered re-entry for non-payment of rent', adding that de Loree 'has a history of non-payment
and he is "wasting" the land to the detriment of the owners'. Hodges argued that, while 'this may
well involve us in an action for an order for possession out of the Court [.,.] if this is what we
must do in order to prove our point to the lessee that we mean business, then I say we should do
so. The land,' he continued, 'is too valuable to allow a muddling farmer to carry on until the year
2012'. He commented that the other lessees of Hiwarau C were 'doing a good job', and that De
L " b . di ,314 oree s two parts y compar1son are a sgrace .
The property was inspected again in March 1981, and it was reported that '[t]he whole area is fast
becoming a wilderness and if the present occupier performs over the next 30 odd years which is
the term of his tenure, as he has done up to now, then there is no future for the property'. It was
argued that:
309 C Sorensen, District Field Officer, Whakatane, Hiwarau C Blocks: Inspection by Owners, 9 September 1975, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 310 P H Hamon for District Officer, Office of the Maori Trustee, to Rene de Loree, 27 July 1979, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 311 P H Hamon for District Officer, Office of the Maori Trustee, to Rene de Loree, 14 November 1979, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 312 J J Gartner for District Officer, Office of the Maori Trustee, to Rene de Loree, 11 March 1980, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 313 Mrs G L Morrison for District Officer, Office of the Maori Trustee to Rene de Loree, 3 October 1980, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 314 W Hodges, EO Trusts, to Assistant District Officer and District Officer, Office of the Maori Trustee, 17 February 1981, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
95
Whilst nothing good can be said about the farming methods of the present occupier, the
property nevertheless could be made an attractive and viable unit under the right
management, [and] the right person could have this place in good order within a period of 5
years.315
The inspector concluded that the inspection had revealed 'absolutely no evidence of any sort of
performance which could reasonably be expected from an average efficient farmer with regard to
both maintenance and development'. He argued that, '[i]n the interests of the owners this
property should be re-entered without delay and the numerous breaches [ ... ] should be claimed'.
As such, he advised that:
In view of the fact that he will never be able to pay for the breaches outstanding nor will he
ever be able to remedy them, consideration should be given to waiving [the breaches] in
exchange for a voluntary surrender, whilst this is a very lenient out for him it is in the best
interests of the land and its future use.316
6.2 Hiwarau Lands Trust, 1981
On 13 May 1981, a meeting of Hiwarau owners was called by the Maori Land Court, to consider
formation of a trust to control the future use and management of Hiwarau C as well as Hiwarau
A6, A9, A11, B1D, B3A, B3B, B4C (those blocks, with the exception ofB1C and B3C, excluded
from the 1969 amalgamation). The owners were informed that the purpose of the meeting was
'to consider bringing all the blocks under one trust so that the Trustees can control the future use
and management of the blocks'. They were informed that Joseph Manuel had not exercised his
right to renew his lease of Hiwarau A6, B3A and B3B, and that the land was now lying idle;. that
Hiwarau A9 and B1D were lying idle; that Hiwarau A11 was lying idle since de Loree's lease had
expired in 1978; and that Hiwarau B4C was leased to A F Wilson for 10 years from 1 June
1975.317
Approximately 150 owners attended the meeting at Kutarere Marae on 8 June 1981, and a
motion was unanimously passed that the Maori Trustee take 'steps to terminate the lease of De
Loore's [sic] as soon as possible'. Another motion was passed acknowledging that 'the owners of
Hiwarau C accept in principle that A6, A9, All, BiD and B4C be included in the trust subject to
their consent', and that the Maori Trustee be appointed as Responsible Trustee for all the
315 L K Reenberg, Lease Inspector, Report of Inspection of Hiwarau C Pt (Ses A8, Al0, A12, B2, B4A, B4B, Part of 275 and 276), Lessee: Rene de Loree, 30 March 1981, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 316 Ibid.
96
Hiwarau blocks. Seven advisory trustees were appointed from among the owners. Not all owners
wished to be incorporated into this trust, with the owners of A6318 and B3B blocks announcing
that they were forming their own trust. When it was suggested that 'the Maori Trustee could also
be held pardy responsible for allowing the land to revert to its present condition', Hodges,
responded: 'I agree and make no excuses but we should move now to make sure the situation
doesn't get worse,.319 Hodges reported that:
The message that came across loud and clear was that the owners wish us to pursue to the
limit our action against Mr De Loree in the interest of terminating the lease as soon as
possible. I said that we would do this and had already issued instructions to our legal branch
for that. putpose.320
The matter of the new trust arrangement was heard by the Maori Land Court on 1 October 1981,
and orders were made under section 438 of the Maori Affairs Act 1953, 'cancelling [the] existing
trust order in respect of Hiwarau C Block and vesting it in the owners in their respective shares';
'vesting Hiwarau C, BiD, B4C, A6, A9 and A11 in the Maori Trustee'; and appointing seven
advisory trustees from the various blocks (three from Hiwarau C and one from each of the
others).321 In the end six advisory trustees were appointed: William Oakes; David Demant; Ray
Tuhi; Moira Edwards; Topana Te Wini; and Wiremu Rewiri.322 Under the conditions of the trust
order, the Maori Trustee was to call meetings of the Advisory Trustees 'from time to time but at
least once every year and whenever requested to do so by the Advisory Trustees', and was
required to supply the Advisory Trustees with an annual statement of account.323 The Advisory
Trustees, as representatives of the owners and in possessing local knowledge were, largely, a
consultative body, but also in theory were to serve as a check of sorts. Regarding leases, for
example, the trust order called for 'full consultation with the majority of the Advisory Trustees',
and that 'no instrument of alienation shall be executed by the [Maori] Trustee unless first
approved by the majority of Advisory Trustees,.324 Other decisions made by the Maori Trustee
317 P R Hunt, for the Registrar, Maori Land Court, Waiariki District, to EO Trusts, 13 May 1981, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 318 The block is listed as A6 in the minutes of the meeting, but as B3A in Hodges' report. W Hodges, EO Trusts, to Mrs Morrison, Office of the Maori Trustee, 9 June 1981, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 319 Minutes of Meeting of Owners for Hiwarau C and other blocks held Monday 8 June 1981 at the Kutarere Marae, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 320 W Hodges, EO Trusts, to Mrs Morrison, Office of the Maori Trustee, 9 June 1981, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 321 Opotiki minute book 58, fo1s 284-286, 1 October 1981 322 Order Appointing Advisory Trustees, Opotiki minute book 58, fo1s 284-286, 1 October 1981 323 Trust Order, The Maori Affairs Act 1953, Section 438 (5), in the matter of the Maori freehold land known as Hiwarau A6 and others, Maori Land Court Orders (Rotorua), Opotiki minute book 58, fols 284-286, 1 October 1981, pp 5, 6 324 ibid, P 4
97
were also subject to the majority consent of the Advisory Trustees, who also had the
responsibility of administering a putea, or communal, account.
The title of the new trust was the Hiwarau Lands Trust, and its objectives were set out in the
Trust Order as follows:
to provide for the use management and alienation of the land to best advantage of the
beneficial owners or the better habitation or user [sic] by beneficial owners, to ensure the
retention of the land for the present Maori beneficial owners and their successors, to make
provision for any special needs of the owners as a family group or groups, and to represent
the benefic:ial()\Vners()n all matters rel:ltil1g to the land and to the use and enjoyment of the
facilities associated therewith.325
6.3 The Continuing Problem of the de Loree leases
On 18 June 1981, prior to the creation of the new trust, de Loree was given notice by the Maori
Trustee, under section 118 of the Property Law Act 1952, requiring him to remedy the breaches
of covenant relating to the larger of his two leases, before 31 March 1982. These breaches related
to fencing, noxious weeds, and topdressing. If any of these breaches were not addressed within
this time frame, the Maori Trustee would have the authority to re-enter the lease.326 An inspection
on 26 May 1982 found that there was no change to the situation.327 It was reported that, at this
time, de Loree had informed the lease inspector that 'he would contest any moves to have him
vacate the land'. The cost of remedying the breaches was assessed at $21,239.328
On 21 September 1982, de Loree was given notice requiring him to remedy breaches of covenant
on the other Hiwarau C lease (formerly Hiwarau AS and A7). As with the larger lease, the
breaches were regarding fencing, noxious weeds and topdressing. De Loree was given until 1
September 1983 to remedy these breaches, which were estimated as costing $12,036.329
325 ibid, P 1 326 Notice under Section 118 of the Property Law Act 1952, In the matter of Section 118 of the Property law Act 1952 and in the matter of Unregistered Memorandum of Lease dated the 19th day of June 1970, Maori Trust Files (R.otorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 327 D A Farnum, Report of Inspection, Hiwarau C, 26 May 1982, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 328 R W Panapa, 'Hiwarau C', 9 October 1985, Maori Trustee Files (Rotorua), 12-580-1, vol 3, Hiwarau C Part. The cost of remedying the breaches was reassessed at $15,500 on 27 October 1982, with the use of aerial photographs of the land taken in June 1982. 329 R W Panapa, 'Hiwarau C', 9 October 1985, Maori Trustee Files (Rotorua), 12-580-1, vol 3, Hiwarau C Part; Notice under Section 118 of the Property Law Act 1952, 21 November 1982, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
98
At a meeting held at Kutarere Marae on 14 March 1983, the Advisory Trustees were informed by
Hodges that 'no further action had been taken as [they] were still arguing with the lessee's
solicitor to the degree of the breaches'. They were told that the Maori Trustee 'probably had a
50/50 chance' against de Loree, and that the Maori Trustee 'had not been demanding rent as it
has been [his] opinion that if we demand rent we may waive our right to re-entry'. 330 According to
GV and SM Butterworth, the Maori Trustee had a low success rate in taking court action against
lessees, and one of the prime reasons for this was the inability to prove such cases satisfactorily in
court. Related to this was the fact that 'there were areas where the Maori Trustee's own
performance was inadequate'. As the Butterworths continued:
Covenants to pay rent were usually easy enough to prove, hut rovenants to. carry out specific
works or to maintain fixtures like fences were often very much harder to prove from
inspections carried out only once every five years. Quite apart from cases where the original
lease document had failed to spell out obligations clearly, past inspection reports were often
too vague about the condition of fences, the extent and location of patches of scrub and
weed and the like to be produced in court.
Furthermore, there were often problems with the continuity of lease inspectors (and other staff),
and it was not until 1980 that steps were taken to provide a standard report form adequate for
use as evidence in Court,331
Another reason for the failure of breaches of covenant to be prosecuted by the Maori Trustee
was the fear that 'evicting a tenant would leave the land entirely unoccupied and the owners
worse off than before'.332 At the March 1983 meeting, Hodges emphasised that there had to be a
plan in place for the utilisation of the land, once the de Loree leases were terminated. He
proposed that the best utilisation of the land, aside from 'the flats and some of the easier
contoured areas already developed', would be forestry. In doing so, he acknowledged that any
future developments 'would depend entirely on our success getting the land back from Mr De
Loree and the Maori Trustee would concentrate on this aspect'. Meanwhile, he advised the
owners to select areas of coastline to be set aside as Maori Reservations, before planning consent
was applied for. He also pointed out that 'there were two burial grounds and a pa site on De
Loree's land which would have historical significance and should also be set aside,.333
330 Minutes of the Meeting with the Advisory Trustees, Hiwarau Lands Trust, held at Kutarere Marae, 14 March 1983, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 331 GV and SM Butterworth, pp 113-14 332 GV and SM Butterworth, p 114 333 Minutes of the Meeting with the Advisory Trustees, Hiwarau Lands Trust, held at Kutarere Marae, 14 March 1983, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
99
Hodges then sought the advice of forestry consultants, P F Olsen and Company Limited, who
advised that, while Hiwarau C 'would be very suitable for the growth of an exotic plantation,
there do appear to be a number of legal and administrative obstacles to the successful
establishment and management of a forest'. Chief among these was the issue of the five separate
long-term leases within the block, and the nature of the small adjacent blocks. It was pointed out
that there were likely to be 'a considerable number of historic sites on the land which under the
Historic Places Act could neither be planted nor modified by roading', and that this 'could
significandy affect the productive potential of the land for forestry'. It was further noted that the
Government valuation for the land 'will almost certainly be at a level where a rental based on the
G.V. wol.l1dbeunecononiiC:'?:14
Any such development, as Hodges had stated, was dependent on the removal of de Loree. The
Office of the Maori Trustee continued to make attempts to settle the dispute without provoking
litigation through the High Court for re-entry. Several meetings were held over the next few years
between de Loree and his solicitors and representatives of the Maori Trustee and the Advisory
Trustees. However, a compromise could not be reached between the parties, and meanwhile the
land deteriorated further and rent continued to be paid sporadically, if at all.
In August 1983, at a meeting of the Advisory Trustees, representatives of the Maori Trustee, de
Loree and his solicitor, the deadlock came close to being broken. De Loree was informed that 'as
far as the Maori Trustee was concerned justice was not being done with the land and if we could
come to some arrangement today, we would not worry about a claim for damages'. Furthermore,
it was put to him that the owners were prepared to allow him to retain occupation of the house
in which he was living, and were willing to negotiate a lease for the area around the house. De
Loree agreed to surrender the lease, subject to his retaining approximately 15 to 20 acres of flat
land below the house, and the Advisory Trustees agreed to this in principle.335 De Loree's
solicitor submitted to the Maori Trustee a document of surrender of memorandum of lease.
However this document was deemed to be 'not suitable' in that it was undated; it did not include
334 D Perston, P F Olsen and Company Limited, Forestry Consultants and Forest Managers, to W Hodges, Office of the Maori Trustee, 20 May 1983, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 335 Minutes of the Meeting held with the Advisory Trustees of Hiwarau C, Mr de Loree and his Solicitor, held at Whakatane Office on 5 August 1983, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
100
the Maori Trustee as a party to the agreement; and only the larger of the two leases was
included.336 A revised surrender of lease, however, was not forthcoming.
At a meeting a year later (in August 1984) de Loree stated that the reason why he no longer
wanted to surrender the lease, was that 'his sons wanted to keep it and that the family had the
finance to develop it'. The Advisory Trustees indicated that they would be 'hesitant to enter into
a lease with Mr De Loree's sons'. It was reported that two of the trustees:
had gone onto the block to have a look one day, De Loree's son had bailed them up with a
shotgun and told them to get off and he had verbally advised, when they pointed out the
blackberry, that it would stillbe.thereatthe end of the1ease,337
De Loree was warned that the lease was due for its first rent review (after fourteen years) and
that, as the adjusted rental would be based on six percent of the Government valuation, it was
likely to increase significandy.338
There is very litde information in the Maori Trustee's files regarding any dividends paid to
beneficial owners. In the Maori Trustee's response to a letter of inquiry regarding an individual
owner's shares and entidements in 1984, the owner was informed that her 64.29 shares in the
Hiwarau Lands Trust (out of a total of 20400.00), had earned her $35.54 in accumulated rental
between 1975 and 1982. She was also informed that '[n]o further distributions [had] been made
to the owners since 1982', but that 'rent has been accumulated and invested for future
development'.339
In September 1984, the Maori Trustee, despite the misgivings of the Advisory Trustees,
attempted to negotiate the lease of an area of approximately 100 acres (the former Hiwarau B2,
B4A and B4B) to Peter de Loree, on the condition that Rene de Loree surrendered his existing
leases. At this time Peter de Loree was also informed that the Advisory Trustees had declined his
application seeking permission to extract rock from the land, and warning him that he was
'erecting a house [on the leased land] without any security of tenure,.340 However, in March 1985,
336 Mrs G L Morrison, for Director, Office of the Maori Trustee, to Messrs Frederic and Spiers, Barristers and Solicitors, 18 November 1983, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Ciaims, Hiwarau C 337 Minutes of the Meeting held with the Advisory Trustees of Hiwarau Lands Trust held at the Whakatane Maori Affairs Department on 6 August 1984, , Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 338 Ibid. 339 G L Morrison for Maori Trustee, to Messrs Rainey Collins Armour and Boock, 17 December 1984, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 340 R J Nicklin, Assistant Director, Office of the Maori Trustee, to Messrs Fredric and Spiers, Barristers and Solicitors, 20 September 1984, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
101
R J Nicklin, Assistant Director, Office of the Maori Trustee, reported that he had met with Rene
and Peter de Loree, and found that Rene de Loree no longer intended 'to surrender his existing
leases in consideration for any proposed new lease to his son Peter', stating that '[h]e apparendy
has been persuaded to "ride it out".' Moreover, he discovered that the de Lorees were
endeavouring to establish that 'Mrs de Loree is probably entided to succeed to one of the owners
of Hiwarau C, namely Hami Waaka [her father]'.341 Nicklin summarised the outcome of the
meeting as follows:
This change in attitude really puts us back to square 1. A balanced decision now needs to be
made as to whether a claim for breaches of covenant would succeed. The De Lorees do not
have the funds topayanydamagesthat.tnightbe awarded. 1 am. satisfied that the aspirations
of the Advisory Trustees is to regain possession of the land. That being the case, it really
comes down to a question of whether we could successfully commence an action seeking an
Order for possession of the property. If De Loree can claim ownership to some extent, then
I think that would be a difficult case to win.342
Further inspections of the de Loree leases on 10 June 1985, revealed that the condition of the
land was continuing to deteriorate. Regarding the larger of the two leases, an inspector, D A
Farnum, reported 'breaches in respect of fencing ($100), noxious weeds (scrub, heather, gorse,
blackberry, nodding thisde, barberry $4730), grassing ($2000), topdressing ($11475), a total of
$18305'. He described the section as 'very unattractive', concluding that ,[n]othing is being done
to improve the property and consideration could be given to using all the Hiwarau section for
forestry'. Of the smaller section, Farnum reported 'breaches in respect of fencing ($600), noxious
weeds (25 ha [sic]343 dense blackberry patches, $10,000), grassing ($250) and topdressing ($2550),
a total of $13,400'. He described the property as 'a mess', claiming that it was 'continuing to
deteriorate since last inspection 23.9.80', and that he could not 'see [the] present lessee
developing any of it. ,344
341 R J Nicklin, for Maori Trustee, to Advisory Trustees, Hiwarau Lands Trust, 27 March 1985, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 342 R J Nicklin, Assistant Director, Office of the Maori Trustee, Note for File: Hiwarau C Part - Lease to de Loree, 18 March 1985, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 343 This is acres rather than hectares itt origirtal ittspection report, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 344 R W Panapa, 'Hiwarau C', 9 October 1985, Maori Trustee Files (Rotorua), 12-580-1, vol 3, Hiwarau C Part
102
Just over a month later, on 16 July 1985, Rene de Loree died, leaving his Hiwarau C leases to his
wife Ivy Amy de Loree and his son Peter de Loree, in equal shares.345 The death of Rene,
however, did not bring about an end to either the leases or the conflict.
6.4 The Re-evaluation of the de Loree leases in 1985
On 1 November 1985, R W Panapa, Divisional Officer, Office of the Maori Trustee, informed
the Advisory Trustees that the government valuation of de Loree's larger lease had been received
and that, on the basis of this valuation, 'the rental would increase from the present $432 pa plus
$25.92 commission to $6270 pa plus $376.20 commission,.346 The trustees were warned that the
valuation was subject to objection, and that if this did happen, then 'so far as the Trust is
concerned,· this· w()uld mean some·· delay ahd· hothingfu:1:ther could· be· done until· that issue was
resolved'. Panapa reported that he had advised the meeting, that:
hopefully the increase would be such as to put the lessee into difficulty and might well result
in our being able to terminate the lease by peaceable re-entry on the grounds of non
payment of rent should we not otherwise have been able to effect forfeiture before then.347
Thus, while seeming to be making progress, it appears that the Office of the Maori Trustee was
in actual fact continuing its passive s~nce towards the situation, ever hopeful that the issue
would resolve itself. Rather than taking the option of re-entering the de Loree leases, the Office
of the Maori Trustee instead followed a policy of inaction, hoping that circumstances would
deteriorate to such an extent over time, that the de Lorees would be forced to quit the leases
themselves, thus saving the Maori Trustee the trouble of taking the case to court. Waiting over
fourteen years for the long awaited rent evaluation is one such example of this inaction.
While Panapa did advise the meeting of Advisory Trustees that, as the breaches of the lease were
'substantial', 'the position warranted proper proceedings being taken to the ultimate extent, if
necessary, of an action in the High Court for forfeiture and damages', he also warned that 'such
345 R W Panapa, 'Hiwarau C, 9 October 1985, Maori Trustee Files (Rotorua), 12-580-1, vol 3, Hiwatau C Part; Memorandum of Transfer of Lease, 30 April 1986, Maori Land Court, Rotorua, Files, Tide Notice Waiariki, TN 16725 346 R W Panapa, Divisional Officer, Office of the Maori Trustee, 'Hiwarau C, report of meeting with Advisory Trustees on 1 November 1985, 6 November 1985, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C. Panapa reported elsewhere that the valuation was made up as follows: unimproved value: $60,000; improvements ~essee): $44,500; improvements ~essor): $44,500; giving a capital value of $149,000. In terms of the lease and on the basis of this valuation, the revised rent was calculated as follows: capital value ($149,000) less lessee's improvements ($44,500) equals $104,500; multiplies by 6% equals $6,270. R W Panapa, 'Hiwarau C, 9 October 1985, Maori Trustee Files (Rotorua), 12-580-1, vol 3, Hiwarau C Part 347 R W Panapa, Divisional Officer, Office of the Maori Trustee, 'Hiwatau C, report of meeting with Advisory Trustees on 1 November 1985, 6 November 1985, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
103
proceedings took considerable time and whilst Ihe] was reasonably confident of success in getting
the lease terminated, such might not be the case in respect of the damages we could claim'.
Nevertheless, Panapa reported that '[t]he Advisory Trustees resolved by a majority vote that
action now be taken by the Maori Trustee towards effecting termination of the lease on the
grounds of the breaches of covenants,.348
An objection was indeed filed with the Rotorua Land Valuation Tribunal regarding the new
valuation, on behalf of the estate of Rene de Loree. The stated grounds of the objection were
that 'the assessment of the improvements by the Valuation Department is incorrect. The
valuation also does not appear to take into account the number of titles involved in the Block
anclthe difficUlty created by· one of the ·titles in the middle of the Blockheingexcludedfromthe
Lease'.349 This served to further delay any proceedings that the Maori Trustee may have intended.
A further inspection of the larger of the two properties leased to the de Lorees was undertaken
on 10 December 1985, and revealed that nothing had changed. It was reported that 'the property
has been under very poor management for a long period of time', and that 'the standard of
management lies around the subsistence level'. It was noted, however, that the land would
'respond to topdressing and management'. The report proposed a number of options, including
grazing and forestry, as well as horlicultural crops such as macadamia nuts and avocados, and
that '[o]ther operations such as camping grounds and house hire and trekking propositions' could
also be possible', but stated that long term projects would be 'financially risky'. The inspector
advised that 'in future, lease covenants on this type of property must be specific and designed
around a specific and time-framed development programme', and that 'the collection of a rental
should not be of prime importance,.350
On 16 June 1986, the Maori Trustee, 'acting under and in pursuance and for the purposes of the
provisions of section 239 of the Maori Affairs Act 1953 and of section 118 of the Property Law
Act 1952 and of the said lease', notified the estate of Rene de Loree, that they were required to
remedy the breaches of the lease before 9 January 1987, otherwise:
348 R W Panapa, Divisional Officer, Office of the Maori Trustee, 'Hiwarau C', report of meeting with Advisory Trustees on 1 November 1985, 6 November 1985, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 349 In the Rotorua Land Valuation Tribuna~ in the matter of sections 245 and 249A of the Maori Affairs Act 1953 and in the matter of a special valuation made by the Valuer-General under section 249A of the said Act in respect of the land known as Hiwarau C Part for the purposes of the revision of the rent payable under/establishing the rental payable on renewal of the lease of the said land of which Rene De Loree of Whakatane is the Lessee, Objection to Special Valuation, 19 December 1985, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, HiwarauC 350 B Peterson, Senior Field Officer, Whakatane, Hiwarau Cpt General Property Report for Lease Inspection of 10 December 1985, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
104
all the powers of the Maori Trustee conferred upon him by the provisions of the lease or
otherwise of entering or re-entering on the demised land and of forfeiting or determining the
lease and the term thereby granted will immediately become exercisable by the Maori
Trustee.351
Compensation was to be made in monetary form, 'to the satisfaction of the Lessor,.352 Once
again, in the absence of any attempt to remedy the breaches, no action appears to have been
taken by the Maori Trustee to actually put this threat into practice.
On 20 October 1988, Peter de Loree was informed by T Wi Rutene, for the Maori Trustee, that
'the Maori TrusteenowhllsjllPlac~certain stepsal1:9: measures which we believe will return the
land to the owners in the best condition possible and under their sole management'. He was also
advised that:
we find that there is litde merit to your occupation insofar as the owners are concerned and,
in fact, your activities and attitude has been seen to be one as moreobstructional than the
Maori perspective of partnership. Any sympathy which you may have wished to have raised
with the owners has been shot down by your past performance. 353
De Loree was reminded that if hls objection to the government valuation did not succeed, he
'would be obliged to pay rental immediately of approximately $19,000', and he was offered 'one
last opportunity to discuss all matters' with Wi Rutene.354
A meeting was held at which de Loree claimed that he was willing to negotiate with the owners,
indicating that he would sell his lease for $76,000, from which could be deducted 'whatever rental
he is owing to the owners, but he will not pay any rates, nor will he meet breaches,.355 The
Advisory Trustees, however, preferred to await the ruling of the valuation proceedings, rather
than setde the matter out of court. The hearing of the proceedings had been set down for the
351 Richard James Nicklin, for the Maori Trustee, to the Estate of Rene De Loree, 16 June 1986, notice under section 118 of the Property Law Act 1952, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, HiwarauC 352 Ibid. 353 T Wi Rutene, for the Maori Trustee, to Peter De Loree, 20 October 1988, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 354 T Wi Rutene, for the Maori Trustee, to Peter De Loree, 20 October 1988, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 355 T Wi Rutene, Senior Trust Manager, file note, 21 December 1988, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
105
High Court at Rotorua on 15 May 1989,356 but were postponed, possibly because de Loree was
considering withdrawing his objection.
On 9 October 1989, de Loree informed the Office of the Maori Trustee that he would not be
attending the hearing of his objection, accepting that 'the rent will be fixed using the valuation as
assessed by Valuation New Zealand'. Nevertheless, he stated that: he had 'no intention of paying
rental on the basis of 6% of capital value'; that 'it would be unfair to backdate increased rental';
and disputed the breaches of covenant In response, 'it was put to him as forcefully as politeness
allows' that 'the Maori Trustee has a duty to all the owners to obtain the best utilisation of the
land', and that 'the delays were at least pardy of his making in lodging a largely spurious
o bjectio11.'.·Hewas·also·informed . that <[iJtwaslike1yonnon~paymentofrefttthe·owllerswould
simply want the Maori Trustee to re-enter and determine the lease. He would therefore have
nothing to sell or surrender'. In addition, in such circumstances, he would remain liable for non
payment of rent and breaches of covenant. It was noted that de Loree, 'has no real desire to
continue farming the block [ ... ] but takes the view that the lease must be worth something,.357
On 30 October 1989, the Office of the Maori Trustee served Ivy and Peter de Loree a rent
demand totalling $49,271.61. They owed $39,783.11 on the larger lease (for the period 1 March
1984 to 31 January 1990), and $9488.50 on the smaller lease (for the period 1 August 1986 to 31
January 1990).358 On 11 June 1990, they were informed that they now owed $11,258.60 on the
smaller block, and were offered, 'in view of [their] lack of interest in this property', the
opportunity of surrendering the lease and therefore ceasing 'to have responsibility for rent and
breaches in the future'. They were, however, informed that this surrender would not exempt
them from the current arrears and breaches. They were informed that if they did not surrender
the lease, they would have three weeks before legal proceedings would commence, resulting in
the termination of the lease.359 They were also formally advised that, u11.less they rectified the
breaches of the larger lease within three months, the Maori Trustee 'will be forced to take legal
action to terminate the lease'.36o
356 T Wi Rutene, for Maori Trustee, to Peter de Loree, 5 May 1989, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 357 D F Bennett, District Solicitor, Note for File, 'Objection to Valuation for Rent Fixing Purposes and other matters',11 October 1989, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 358 Miss L S Tenana, for Maori Trustee, to I A and P De Loree, 30 October 1989, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 359 T L Ngata~ for Maori Trustee, to Mr and Mrs P De Loree, Re: Breaches of Part Hiwarau C-76a:3r:26p-Rent Arrears, 11 June 1990, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 360 T L Ngatai, for Maori Trustee, to Mr and Mrs P De Loree, Re: Lease of Part Hiwarau C Block - 381a:2r:06p -Rent Arrears, 11 June 1990, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
106
In May 1990, it had been noted in the Maori Trustee's file that 'probably the only realistic
solution will be to forgive [peter de Loree] the breaches and partition out the dwelling and an
area of land with access but I doubt that he will go along with it'. Peter de Loree was described as
'[s]till fairly responsive', having 'recently shot 3 of neighbour's dogs [ ... and ... ] some of same
neighbour's pigs,.361
6.5 Attempts by the Office of the Maori Trustee to resolve the situation
Following her appointment as head of the Maori Trust Office for the Te Arawa/Mataatlla areas,
Tina Ngatai called a meeting of the Hiwarau Advisory Trustees on 13 June 1990. She 'admitted
that the Maori Trustee had been very "slack" in the past and that she was [t]here today to face up
to this'. The· Advisory Trusfees acknowledged that . they <hadbecome·clisheartened with the past
attitude of the Maori Trustee and felt today's approach was positive and gave them all hope'.
According to the minutes of the meeting, 'a general discussion' took place at which the owners
expressed 'their concern at the terrible breaches and rent arrears'. A resolution was made 'that
Maori Trustee enter proceedings against De Loree to recover rent arrears and repair breaches and
if nothing resulted then to take all legal steps to re-enter the lease from De Loree.'362
At this meeting, Ngatai acknowledged that there had also been problems with the Maori
Trustee's administration of other Hiwarau C leases. The 377a 2r 3p section (formerly Hiwarau
A1, A2, A3, A4, B4E, B4F, and B4G), leased to Joseph Robert Edwards in 1970, had been
transferred to Leonard Helmbright on 9 December 1971, and then to Howard John Clark on 31
August 1978. In 1984, when the rental was re-assessed and increased from $426 per annum to
$7053.24 per annum, Clark attempted to re-negotiate his lease on the grounds that he could not
afford to further develop the property and pay the increased rentae63 On 26 November 1987, the
lease was re-entered on the grounds of rent arrears of $14872.29, and Clark agreed to repay the
rent in instalments.364 At the 13 June 1990 meeting, the Advisory Trustees were informed that the
current lessee, Kimoro Pukepuke, owed over $10,000 in rent arrears and was responsible for
'minimal breaches'. However it was reported that, in 1987, a lease inspector had stated that the
rental was too high, and 'the Maori Trustee promised to call a meeting of owners to discuss rent
concessions'. This meeting was not called, and Ngatai now 'admitted to fault on Maori Trustee's
361 Note for File (Dave to Carol Kingham, 4 May 1990, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 362 Minutes of Meeting of Hiwarau Lands Trust, Whakatohea Maori Trust Board, Opotiki, 13 June 1990, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 363 R W Panapa, 'Hiwarau C', 9 October 1985, Maori Trustee Files (Rotorua), 12-580-1, vol 3, Hiwarau C Part 364 Position Sheet, Hiwarau C Part, n.d., Maori Trustee Files (Rotorua), 12-580-5, series 3, Hiwatau C Part
107
part'.365 Furthermore, prior to Pukepuke taking over the lease, the Maori Trustee had spent over
$10,000 developing the land with the idea of entering into a share farming agreement with a
goatfarmer. This scheme had fallen through, and Ngatai reported that she could find no
authorisation for this development from either the Maori Trustee or the owners.366
The following year, on 24 April 1991, Ngatai addressed a full meeting of Hiwarau C owners at
Pakohai Hall, Opotiki. She introduced herself by saying she was 'nervous today before you
because this is one of the most appalling cases', and that when she was appointed, 'this was the
worst case I discovered'. Of the de Loree leases, themselves, she stated that '[t]his is the worst
case I have been involved in. De Loree is using every trick in the book to delay the proceedings'.
She inf6rmed the owners that the MaoriT rusteewassuingIvyandPeterde . Loree 'as
Administrators of Rene's Estate', and the meeting moved that the Maori Trustee continue with
legal action to terminate the lease.367
On 26 February 1991, Peter de Loree's solicitor had been advised by Shane Gibbons, the Maori
Trustee's Regional Solicitor, that 'the Maori Trustee [ ... ] will not accept a negotiated resolution
of this matter'. Gibbons made it clear that '[p]ast negotiations with Mr De Loree have not proved
fruitful and have left the owners "up the creek without a paddle" together with an increased
rental debt owing them,~68
6.6 The Re-entry and Surrender of the de Loree Leases, and the Owners' Growing
Dissatisfaction with the Maori Trustee
On 26 April 1991, the Maori Trustee re-entered the smaller of the de Loree leases. The re-entry
was 'effected peaceably there being no person in physical occupation of the said land,.369 On 30
April, Ngatai informed the Opotiki District Council that the Maori Trustee had 'instigated legal
action in the District Court in respect of de Loree's ~arger] lease', stating that the Maori Trustee
was 'suing Peter and Ivy de Loree as Administrators of the estate of Rene de Loree for non
payment of rent - approximately $44,000'. She advised that the Council 'take like action to
365 Minutes of Meeting of Hiwarau Lands Trust, Whakatohea Maori Trust Board, Opotiki, 13 June 1990, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwatau C; see also D A Farnum, Lease Inspector, report to T Wi Rutene, Senior Trust Manager, Hiwarau C - Development by Intensive Goat Fatming', 29 Jyne 1988, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 366 Ibid. 367 Minutes of Meeting of Owners of Hiwarau C, Pakohai Hall, Opotiki, 24 April 1991, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 368 Shane Gibbons, Regional Solicitor, to Messrs Buddie Harvey Bendey, 26 February 1991, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 369 Declaration of D A Farnum, In the matter of Unregistered Memorandum of Lease dated 7th September 1972 of Part Hiwarau C, 29 April 1991, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
108
recover your [rates] arrears of $10,568'.370 On 10 September 1991, Gibbons advised the de
. Lorees' solicitor that '[t]he best option is for your clients to vacate the land and to pay the
outstanding rental of $43,358.68'. The solicitor was warned that his 'attempts to delay the hearing
of this matter are considered to be obstructive and delaying the course of justice. Continued
delays on your part will result in an official complaint to the Law Society,.371
On 22 October 1991, Ivy and Peter de Loree signed a 'Confession of Claim for Recovery of
Land or Chattels, admitting the Maori Trustee's 'right to immediate possession of the land', and
agreeing to 'give up possession of the same on or before' 31 October 1991. The de Lorees also
confessed to owing the sum of $53,398.61 in rent.372 When the de Lorees had not surrendered
the lease or paid the money owing by 31· October 1991, a Warrant for recoveryofland was issued
in the Opotiki District Court on 13 November 1991.
Gibbons met with the Advisory Trustees and owners of Hiwarau C in Rotorua on 5 November
1991, and informed them that Peter de Loree, having confessed to the arrears of rent and
breaches, had now 'put himself in the hands of the owners'. It was decided that the Maori
Trustee should 'evict Peter and Ivy De Loree and enforce judgement for the $53,398.61'. It was
also decided that the Maori Trustee should pursue the matter of the breaches of lease, worth
$28,000.
When challenged that the Maori Trustee had 'not come up to scratch as trustee', Gibbons
responded that 'the Maori Trustee has done a lot of work on this file and have held something
like fifteen meetings in the last ten years'. He added that he 'personally wouldn't blame the Maori
Trustee - rather, the solicitors who worked for the Maori Trustee, who didn't act prompdy when
they should have'.373 Gibbons was informed that at a meeting of Hiwarau owners held at
Waiotahe on 29 October 1991, it had been resolved that 'with the return of the lands back to the
owners it is our wish that the Maori Trustee be taken off and the owners themselves administer
their lands known as Hiwarau in the future,.374 Gibbons was told by one owner that the Maori
370 Tina L Ngatai, for Maori Trustee, to General Manager, Opotiki District Council, Attention: S Powell- Rates Recovery Officer, 30 April 1991, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 371 S A Gibbons, Regional Solicitor, to Messrs Buddle Harvey Bentley, 10 September 1991, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 372 Confession of Claim for Recovery of Land or Chattels in the District Court held at Opotiki between The Maori Trustee and Ivy and Peter de Loree, Plaint No. 322, 22 October 1991, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 373 Minutes of Meeting of Advisory Trustees of Hiwarau Block, Iwi Transition Agency, Rotorua, 5 November 1991, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 374 Minutes of meeting of Hiwarau owners, Maromahue Marae, Waiotahe, 29 October 1991, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
109
Trustee should ,[fJinish this action and hand the land back to the owners for them to
administer,.375
At a meeting of owners of Hiwarau C and other Hiwarau blocks held on 23 November 1991,
owners of Hiwarau A9, All and B 1 were told that they could have their land handed back, while
the owners of Hiwarau C had to wait until the action with de Loree was resolved. One of the
owners proposed 'that the shareholders of Hiwarau C Block de-amalgamate their lands', and this
was accepted by a majority vote. A decision was also made to replace the Maori Trustee as
Responsible Trustee, and it was also suggested that if it was found that the Maori Trustee had
'erred, we could sue [them]'. The alternatives for administration of the block discussed at the
meeting were: t() stay with theMaoriTrostee;toappointanNZIGuardian· Trust; to appoint
Whakatohea Maori Trust Board as trustee; or to appoint owner trustees. It was decided that the
current Advisory Trustees replace the Maori Trustee, until de-amalgamation occurred.
Regarding the ongoing dispute with the de Lorees, the owners were informed by Carol Kingham,
Senior Trust Manager, 'that while legal action continues and is finished, this is the responsibility
of the Maori Trustee'.376 Likewise, at the meeting of Hiwarau Advisory Trustees and owners with
Shane Gibbons, held in Rotorua on 5 November 1991, Gibbons, when asked 'what is the
responsibility for Maori Trust to complete the ~egal] action [regarding de Loree] and is the cost
by them?', responded. 'Yes, so long as I am the solicitor acting, the cost will be borne by Maori
Trustee and we will follow through with any action.'377
As with all other aspects of the de Loree leases, re-entering the remaining larger lease was not
without incident. On 28 February 1992 Gibbons informed de Loree's lawyer that:
The Bailiff recovered possession of the land on Friday, 6 December 1991. We are informed
that your clients moved from the property at 1.00 pm. On Thursday, 12 December, an
officer of the Maori Trust Office, together with a tradesman and an Advisory Trustee went
onto the land to secure the house by putting locks on the doors of the house, which locks
had been removed by your client. The report from our officer indicates that "Peter De Loree
assaulted Bill and held him outside on the ground in a headlock for some time, making
several threats, including the warning to Bill not to go to the Police. On Bill being released, I
375 Minutes of Meeting of Advisory Trustees of Hiwarau Block, lwi Transition Agency, Rotorua, 5 November 1991, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 376 Minutes of meeting of owners for Hiwarau C blocks (amalgamated) and Hiwarau A9, All and B1D, Roimata Marae, Kutarere, 23 November 1991, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, HiwarauC 377 Minutes of Meeting of Advisory Trustees of Hiwarau Block, lwi Transition Agency, Rotorua, 5 November 1991, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
110
again asked Mr De Loree and his company to leave the block and warned them that it would
become a Police matter if they did not. There was no response."378
Gibbons then 'formally advise[d], that 'if your client is seen on and about the property, we will
bring criminal proceedings for trespass,.379
On 10 March 1992, Ric Carr, a Maori Trustee field officer, reported that Ivy De Loree had
'recendy' died. He also advised that, as Peter de Loree 'has a violent background, and apparendy
is no stranger to using firearms', that a professional should be used to serve the trespass notice.380
On 24 March 1992, de Loree was served with a trespass notice/81 and on 3 July 1992 he was
evicted.382 On 16 October· 1992,·in the·Opotiki District Court; . in the matter of the Maori Trustee
versus Ivy and Peter de Loree, judgement was made for the Maori Trustee, for the amount of
$54,037.36.383 On 13 November 1992, the Maori Trustee requested that a Bankruptcy Notice be
issued against Peter de Loree.384 However it was stated in March 1994 that '[b]ankruptcy
proceedings [had] not been commenced,.385
6.7 The Wai 339 Claim, and the Actions of Hiwarau Owners against the Maori Trustee
On 23 August 1993, an internal memorandum was prepared by the Office of the Maori Trustee
regarding the Wai 339 claim to the Waitangi Tribunal, noting in particular the statement made by
Tuiringa Mokomoko, as claimant, that 'After 98 years we are left with mismanagement by the
Land Court and the Maori Trustee [emphasis in original]. As a result we are left with a much run
down block of land, no finance and arrears in rates and rent.' It was noted in the memorandum
that:
It is clear from the files that our people in Rotorua have been faced with many difficulties in
the management of the trust, most of which have centred upon failure by lessees to comply
with the terms of their leases. Much effort has gone into discussion and negotiation with
378 Shane Gibbons, Regional Solicitor, to Messrs BuddIe Harvey Bendey, 28 February 1992, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 379 Ibid. 380 Ric Carr, Field Officer, Memorandum to Maori Trustee, Rotorua, 10 March 1992, Hiwarau C, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 381 Henare J Macown, for Maori Trustee, to R P K Paraone, Deputy Maori Trustee, 8 April 1992, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 382 Henry Macown, Senior Trust Manager, 'Eviction of Mr Peter De Loree from Hiwarau C on Friday 3 July 1992 at 12.30 pm, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 383 Certificate of Judgement, Extract form the Civil Record in the District Court of Opotiki, 16 October 1992, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 384 In Bankruptcy, In the High Court of New Zealand, Rotorua Registry, In the matter of the Insolvency Act 1967 and in the matter of Peter de Loree, a debtor ex parte, and the Maori Trustee, a creditor, 13 November 1992, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
111
lessees and in terminating some leases. I have not attempted to undertake a review of our
administration, as this would be an extensive exercise and would be poindess until we know
exacdy what mismanagement the claimant alleges has been committed by the Maori
Trustee.386
The memorandum concluded by stating that 'if the trustees intend to challenge the Maori Trustee
in respect of his administration, then I doubt that the Waitangi Tribunal is the proper forum to
deal with the issue'.387
In May 1995, the issue of the potential breach of the Treaty of Waitangi by the Maori Trustee
was outlined in more detail in the submissions made by counsel for the Wai 339 claimants to the
Waitangi Tribunal's Wai 46 and others inquiry. According to this submission:
The potential breach of Treaty identified by Upokorehe are as follows:
(a) That due to the mismanagement of the Maori Trustee, a substantial sum of rental
monies were not recovered by the Maori Trustee.
(b) That the Maori Trustee allowed breaches of covenant to occur without attempting to
enforce them.
(c) That due to their mismanagement the Maori Trustee have allowed the Hiwarau C Block
- to deteriorate.388
It was noted elsewhere in these submissions that '[a]t this stage Upokorehe can do no more than
outline what they identify to have been potential breaches of the Treaty,.389
On 29 March 1996, Timi Wi Rutene, Regional Manager, Maori Trust Office, and Doug McPhail,
solicitor for the Maori Trustee, met with Craig Coxhead and Stephen Clark of McCaw Lewis
Chapman, solicitors for the trustees of Hiwarau C, in Cambridge. They were accompanied by
Tuiringa Mokomoko, John Paki and Josephine Mortenson (trustees or representatives of trustees
of Hiwarau C). In an 'update report to insurers on potential claim', McPhail reported that at the
meeting, Clark outlined the trustees' claims as follows:
Claim for rental which MT is alleged to have failed to collect ftom De Loree "year after year
after year".
385 Richard Wickens, for Maori Trustee, to S R Clark, McCaw Chapman Lewis, 17 March 1994, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 386 Graeme Morrison, Memorandum to Mike West, 23 August 1993, Claim to the Waitangi Tribunal Hiwarau Block, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 387 Ibid. 388 Submissions of Counsel for Upokorehe, p 7
112
Claim for failing to force De Loree to remedy breaches of covenants in the lease [ ... J Claim for deterioration in the value of the property during the period of the MT's
trusteeship.390
Clark, McPhail noted, concluded that 'the trustees would like some money at the end of the day'.
In reply, McPhail stated that, among other things:
The present trustees took over in December 1992 when an order of the MLC was made
changing trustees. The effect of that order was to terminate the ability of the MT to continue
to enforce the Court order relating to the rent. It was the responsibility of the new Trustees
to take action since December 1992 to recover rental. Had any action been taken?391
This appears to contradict the messages that the Hiwarau Advisory Trustees and owners had
received from both Carol Kingham and Shane Gibbons, prior to the replacement of the Maori
Trustee as responsible trustee, stating that the resolution of this issue was the responsibility of the
Maori Trustee. There is a question as to whether the introduction of the new Trust Order in 1992
would retrospectively dissolve the Maori Trustee's responsibility for all actions and inactions
committed during his period of trusteeship, best illustrated by Tina Ngatai's admission that the
Maori Trustee had been 'slack' in this matter. McPhail's response also ignores the issue of the
faihtte of the Maori Trustee to collect the full rental over the period of the leases.
Furthermore, in contrast to the irregular, but consistendy negative reports regarding the state of
the leased land described above, McPhail stated that, regarding 'the alleged breaches', 'the issue
was whether the land had deteriorated during the period of time that De Loree was in
occupation'. He argued that 'the lease was not a development lease so De Loree's only obligation
was to maintain the property in the same state as it was at the commencement of the lease', and
sta,ted that 'fp]resent indications were that very litde of the land had been cleared before the lease
and some had been previously cleared and had already reverted by the date of commencement of
the lease'. McPhail reported that, as such, '[t]he MT denied liability for the breaches if in fact any
breaches capable of being persued [sic] existed'. Once again, McPhail's claims appear to
contradict the statements and reports of employees of the Maori Trustee, as illustrated
throughout this section, which indicate that there were indeed serious breaches, and that the
condition of the leased properties had clearly deteriorated over the period of the leases.
389 Submissions of Counsel for Upokorehe, p 5 390 Doug McPhail, Update Report to Insurers on Potential Claim: Trustees of Hiwarau C, 16 April 1996, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 391 Doug McPhail, Update Report to Insurers on Potential Claim: Trustees of Hiwarau C, 16 April 1996, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
113
Any testimony to the contrary of those owners present at the meeting was dismissed by McPhail,
who reported that Josephine Mortenson gave evidence that 'when [the] lease commenced there
had been open areas on the land with horses grazing and houses on the block.' She had stated
that 'De Loree had even taken the fences with him', and that 'the land had reverted when De
Loree was on the land'. McPhail reported that 'she kept repeating [that the Maori Trustee had
been negligent] as if doing so would make the allegation a fact'.
Clark, according to McPhail's account, had stated that:
he did not doubt De Loree was diffieult:·Howeverthereweteother tenants in the area who
also did not pay to the Maori Trustee and the MT did not collect that rental. In his view
there was a pattern of negligence.
He had instructions to file proceedings unless MT wanted to enter into a compromise. He
believed that the trustees had a great argument from a legal point of view. He handed over a
Schedule of Cost suggesting that the claim would be $110,524.07 plus dimunition in value
and legal costs.392
The Schedule of Cost was set out as follows:
- Rentals outstanding
- Cost to remedy breaches
- Interest at 11 %
- Court costs re De Loree
- Trustee expenses
TOTAL
$54,037.36
$29,000.00
$83,037.36
$10,979.19
$7,507.52
$9,000.00
$110,524.07393
According to Clark, attempts were made to negotiate a setdement of the matter between March
1996 and March 1998, without success, and on about 23 June 1998 an application was filed with
the Maori Land Court at Rotorua, along with a statement of claim, seeking damages against the
Maori Trustee. The Maori Trustee filed a notice of intention to appear on about 29 September
1999, timetabling orders were made on 6 October 1999, and the Maori Trustee served a 128-page
list of 1,567 discoverable documents. A setdement was reached on 9 July 2000, with the Maori
392 Ibid. 393 Hiwatau C - Maori Trustee, Schedule of Cost, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C
114
Trustee paying the Hiwarau C Trust the sum of $27,500 - substantially less than the $110,524.07
claimed by Clark in 1996, and thirty years after the amalgamation of the Hiwarau blocks into
Hiwarau C, the vesting of the block in the Maori Trustee, and the granting of Rene de Loree's
lease. The payment was made without any admission of liability.394
6.8 Conclusion
The amalgamation of the Hiwarau blocks in 1969 and the vesting of Hiwarau C in the Maori
Trustee were decisions made by the Maori Land Court with the object of best utilising the land in
the interests of its owners. As discussed in this section, counsel for Wai 339 alleged that the
Maori Trustee 'mismanaged' Hiwarau C from 1969, and that this mismanagement included the
failur€ . tor€cov€r substantiaL1:entaLowed,breaches . ofcovem.llt,allclthedeterioratioll ()fthe
Hiwarau C block. Hiwarau C was alienated through a number of long term leases, and when it
became obvious that a number of the lessees, de Loree in particular, were not fulfilling the terms
of their lease agreements, the Maori Trustee failed to prompdy and satisfactorily resolve the
matter. While the de Loree leases obviously placed the Maori Trustee in a difficult situation, it
appears that the matter was not adequately managed. The Maori Trustee acknowledged that there
was a serious problem and had the authority to resolve such matters, as evidenced in the
successive demands issued to de Loree to pay outstanding rental, and rectify breaches of
_ covenant, on the leases.
From as early as August 1970, the Maori Trustee was aware that Rene de Loree was in arrears
with his rent payments. In 1975 the situation had not improved and, at the request of the owners
who were already clearly dissatisfied with the Trustee's management of the Hiwarau C leases, the
Maori Trustee inspected the leases. No action was taken at this time. In 1979 the Maori Trustee
advised de Loree that he had not paid rent since 1 August 1976, and a further inspection of the
leases revealed a number of breaches of covenant. In March 1980, the Maori Trustee warned de
Loree that if the breaches were not remedied he would be issued a section 118 notice requiring
him to do so. In February 1981 the Maori Trustee was considering re-entering the lease for non
payment of rent, and in March 1981, an inspection of the lease found 'numerous breaches'. The
lease inspector, K L Reenberg, called for re-entry 'without delay' in 'the interests of the owners',
and for the surrender of the lease.
Reenberg's report suggests that the breaches were sufficiendy senous to warrant the Maori
Trustee re-entering the de Loree leases at this time. A meeting of owners at Kutarere Marae on 8
June 1981 unanimously supported such action being taken. While de Loree was served with a
394 SR Clark, McCaw Lewis Chapman, to E Johnston, Waitangi Tribunal, 13 March 2002
115
section 118 notice in June 1981, and despite a subsequent re-inspection of the lease on 26 May
1982 revealing no change, the lease was not re-entered. Instead, the Maori Trustee made several
unsuccessful attempts over the next few years to setde the matter out of court. An inspection of
the leases in June 1985 revealed continued deterioration of the property, and thus continuing
(and increasing) breaches of covenant. Despite these continued breaches, the Maori Trustee,
although empowered to do so, did not re-enter the lease. Furthermore, there were long periods
of time in which de Loree did not pay rental, for which the Maori Trustee was at liberty to re
enter the leases without notice. Given the view clearly expressed by the owners of the land at
Kutarere on 8 June 1981, that they expected the Maori Trustee to terminate de Loree's leases as
soon as possible, it is surprising that the Maori Trustee, when presented with opportunities to do
so, failed to meeftheserequesfs.
Following the death of Rene de Loree in 1985, the Hiwarau C advisory trustees again called for
the Maori Trustee to terminate the leases. However, instead of re-entering the leases for non
payment of rent, the Maori Trustee sought to effect a surrender of the lease by relying on the
ongoing process of re-evaluating the land - hoping that the expected significant increase in rental
would force the de Lorees to surrender the lease. This valuation process was not resolved until
October 1989, when Peter de Loree indicated he would not proceed with his objection to the
valuation. No rental was received over this period.
At a series of meetings held between Maori Trustee officials and owners and advisory trustees,
the owners continued to press for the re-enuy of the leases. At one such meeting in June 1990,
Tina Ngatai conceded that the Maori Trustee's management of the situation had been 'very
"slack" in the past'. Nevertheless, it was not until 3 July 1992 that Peter de Loree was evicted
from the leased land, and not until November 1992 that bankruptcy proceedings were
undertaken in an attempt to recover de Loree's unpaid rental. The Maori Trustee did not pursue
the bankruptcy proceedings. Despite assurances that the Maori Trustee would continue to pursue
the case following their replacement as responsible trustees for Hiwarau C by owner trustees in
1992, this did not happen. The owner trustees (as discussed in section 7.1, below) had been given
the authority and responsibility to, among other things, 'look into any rights against [the] Maori
Trustee'. In 1996, representatives of the Maori Trustee argued that with the change in trustees,
the Maori Trustee no longer had any power to act in respect to the unpaid rent and the
bankruptcy proceedings. Several attempts were made to negotiate a setdement of the matter
between the Maori Trustee and the Hiwarau C owners before the setdement of 9 July 2000 was
reached. The sum paid by the Maori Trustee was substantially less than that claimed by the
Hiwarau C owners, and it came with no admission of liability.
116
The relationship between the Maori Trustee and the Hiwarau C owners throughout the period of
trusteeship, and the setdement negotiations that followed, was complicated by what might be
identified as the dual role of the Maori Trustee as, ostensibly, an agent (or at least a creation) of
the Crown, acting on behalf of the beneficial owners of Maori land. Having negotiated the leases
with de Loree, the Maori Trustee was obliged to represent the owners whose lands it
administered in trust, in seeking to effect a satisfactory setdement to the problem. In doing so,
the Maori Trustee documented serious breaches of covenant and arrears in rent (as oudined in
this report), and took steps, albeit over an extended period of time, to effect a resolution.
However, once the management of the case had been called into question, the Maori Trustee,
according to McPhail, 'denied liability for the breaches if in fact a'!Y breaches capable of being persued
[sic] exisietf(eniphasisadded).
It has been argued that while 'the Maori Trustee was appointed to act as trustee in the interest of
landholders', the trustee also 'acted as an agent on behalf of its principal, the Crown'. This
functional duality resulted in something of a dilemma for the Trustee: that is 'whose interests
should be served, those of the Crown or those of Maori landowners?,395
Section 7: Hiwarau from 1992 to the Present
7.1 Post-Maori Trustee Administration of the Hiwarau block
In 1992, the Maori Trustee lodged an application with the Maori Land Court seeking to be
removed as responsible trustee for Hiwarau C. The application was heard at Opotiki on 1
December 1992. Under the Maori Affairs Act 1953, sections 438(5) and 438(3)(b), the Court
vested Hiwarau C in the Hiwarau Lands Trust. In doing so, the Court stated that '[t]he Maori
Trustee administration hard] been very poor', and stated that it 'support[ed the] owners wishing
to run the block themselves,.396 The Court recommended that the new trust be established for a
limited time only and possess limited functions. The trustees were given the authority and
responsibility to 'look after land'; to 'not dispose of land by way of lease or licence longer than 12
monthly term'; and to 'look into any rights against Maori Trustee'. The new trustees were:
Tuiringa Mokomoko; Phillip Wilson; Paku Edward; Josephine Mortenson; and Alamein Kopu.397
Approximately $4,000 was transferred from the Maori Trustee to the new responsible trustees.398
395 Parekw:a Tamati White, 'Maori Trustee: In the Interest of Whom?', Public Sector, vo122, no 2, 1999, P 23 396 Opotiki minute book 67, fols 271-2,1 December 1992 397 Opotiki minute book 67, fo1s 271-2, 1 December 1992 398 Opotiki minute book 69, fo1245, 1 February 1995
117
Those Hiwarau blocks that had been incorporated into the Hiwarau Lands Trust in 1981 were
not included in the new Hiwarau C trust. Their current status, and management structure (if any)
is summarised in the table in section 7.6, below.
On 1 February 1995, the Maori Land Court removed Paku Edwards and Alamain Kopu as
trustees in Hiwarau C, following their resignations, and Hiwarau C was vested in the three
remaining trustees. The court minutes indicate that there was some tension between those
trustees who wanted to re-partition the block, and those who wanted it to remain amalgamated.
Those wanting to partition were seen by the other trustees as being opposed to the development
of the block.399 The attempts to cancel the amalgamation of Hiwarau C, and so 're-partition' the
block are discussed in section 7.3,he1()w.
According to Stephen Clark, counsel for the Wai 203 and Wai 339 claimants, one of the grounds
for the successful application to have Alamain Kopu removed as a trustee of Hiwarau C was:
due to the fact that she and various relatives of hers were squatting on the block. That
situation continues [ ... J The view ofMr Mokomoko is that the reason squatting on the block
has occurred was due to the large period of inactivity and mismanagement by the Maori
Trustee. This drove various beneficial owners to form the view that their best way of utilising
the block was to squat on it.400
On 1 December 1995, the terms of the Hiwarau C trust order were varied, under Sections 244
and 351 of Te Ture Whenua Maori Act 1993, following an application to do so filed by Tuiringa
Mokomoko, acting on behalf of the trustees.401 The implementation of the Act, which replaced
the Maori Affairs Act 1953, necessitated, among other things, a reorganisation of the trusts
formed under the earlier legislation. Under Section 244, ,[t]he Court may at any time, in respect
of any trust to which this section applies, vary the terms of the trust by making a new trust order
in substitution for the existing trust order'. Section 351 allowed for the 'fp]eriodic review of trusts
constituted under section 438 of Maori Affairs Act 1953'. Furthermore, '[o]n any such review the
Court may, by order, confirm the trust order without variation, or vary the terms of the order in
such manner as it thinks fit, or make an order terminating the truSt'.402 Under Te Ture Whenua
Maori Act 1993, ahu whenua trusts were created to replace Section 438 trusts, including those in
existence when the new Act came into force on 1 July 1993.403
399 Opotiki minute book 69, f01s 245-246, 1 February 1995 400 SR Clark, McCaw Lewis Chapman, to E Johnston, Waitangi Tribuna~ 13 March 2002 401 Opotiki minute book 70, f01s 189-204, 1 December 1995 402 Te Ture Whenua Maori Act 1993 403 Maori Land Trusts, A Guide, Te Ture Whenua Maori Act 1993, Wellington, Department for Courts, 2001, pp 19-20
118
The objects of the new Hiwarau C trust, as described in the new trust order, were similar to those
of the Hiwarau Land Trust formed in 1981 (see section 6.2, above), with the significant
difference being that the Maori Trustee was no longer the responsible trustee. The powers of the
trustees were likewise based on those of the 1981 trust order, with some exceptions. The 1995
trustees were able to 'bring applications before the Court for partition orders to allocate such
allotments amongst the owners in accordance with their entitlements'. Unlike the Maori Trustee,
they were not entitled 'to operate with others' or to lend or invest money. However they were
able to: buy land; improve land; employ people; borrow money; set aside cash reserves; pay their
own costs; farm and develop the land themselves; distribute money to the beneficial owners
(through the Maori Trustee); and 'promote title improvement projects'. In the latter capacity, as
had been the case with the Maori Trustee, they could:; 1tt theirtiiscretion:
bring and prosecute in the Maori Land Court on behalf of the beneficial owners any
applications for amalgamation of tides, aggregation of owners, the inclusion of any further
lands in this Trust order, the exclusion of any lands from this Trust order, the variation of
this Trust order to increase reduce or otherwise vary the powers hereby given to the Trustees
or to bring any other application for orders within the jurisdiction of the Court that might
facilitate the operation of the Trust [ ... ]
Furthermore, the 1995 trust order gave the trustees responsibility to 'where appropriate as a matter
oj priority arrange all necessary surveys and effect registration of the Partition or other orders
constituting title to the lands under the Trust in the Land Transfer Office' (emphasis in original).
Regarding leases, .the 1995 trust order reduced the maximum length of time for which a lease
could be granted, from not more than 21 years (as specified in the 1981 trust order) to no longer
than five years. The trustees were also directed to seek 'expert advice [ ... ] as to what would be an
appropriate length of time of any alienation by way of lease or licence'. The trustees were also
'empowered' to take over existing leases.
The trustees, as with the Maori Trustee before them, were empowered to represent the owners in
objecting to zoning of the land, and 'on any negotiations or questions of compensation for lands
taken under the Public Works Act or other statutory authority with the Government or any local
authority'.
Unlike the Maori Trustee before then, the 1995 trust order did not allow for the trustees to make
'General Welfare payments'. However the new trust order did allow for the trustees to:
119
apply the whole or any part of any specified portion of the Trust income for Maori
community purposes or for such Maori Community Purposes as the Court may specify, and,
in such a case, the Trustees may apply any part of such specified portion of the Trust income
in accordance with section 218 ofTe Ture Whenua Maori Act 1993.404
As of November 2001, according to the Waiariki Maori Land Court records, Hiwarau Cremains
under the management of the Hiwarau Lands Trust, which is an ahu whenua trust, with the same
three trustees as listed in 1995: Josephine Mortenson; Phillip Wilson; and Tuiringa Mokomoko.405
7.2 The Removal of Hiwarau BlA from Hiwarau C in 1993
InJ99~,I-:li"\v~l:~llJ?JA(10acr~sJr()()cl2Qp~rcll~s):",as\Vit11<irawn from Hiwarau C leaving a
total area of 927 acres 1 tood 6% perches (375.2546 hectares), divided into 20055.88 shares.406
The application to amend the 1969 order of amalgamation, heard on 18 December 1992, had
been made by Mary Korara Erickson, who claimed that '[a]lthough the Court records show that
notices were sent to Louissa Agassiz (the sole owner of the former title Hiwarau B1A block) she
did not receive any such notices'. Erickson also stated that Agassiz 'was very old at the time of
the Amalgamation and never at any stage did she consent to the Amalgamation'; and that she
'was always under the impression that she was the sole owner of Hiwarau B1A block and in fact
paid the rates and fenced it'.407
Agassiz had become the sole owner of Hiwarau B lA in 1935 by succession to Hem Mere Katene,
who had been made the sole owner when the block was created by partition in 1916. She had no
interests in any of the other Hiwarau blocks included in the amalgamation. Erickson had
succeeded Agassiz, solely, in Hiwarau C block on 30 May 1984. While no objections had been
made at the time of the amalgamation to the inclusion of Hiwarau B lA, 'no written consent was
ever given by Lorussa Agassiz to have Hiwarau B1A block included in the Amalgamation'.408
Following an inquiry into this matter, the court found that, with the exception of the initial
hearing regarding the amalgamation, '[t]here is nothing on the files to indicate that the owners of
any of the lands concerned received any notice of [subsequent] hearings [ ... ], nor of the decision
of the Court's to amend the application', and that:
404 New Trust Order, Te Tute Whenua Maori Act 1993, Section 244 and Section 37(3), in the matter of the Maori freehold land known as Hiwarau C, Opotiki minute book 70, fols 189-204, 1 December 1995; Trust Order, The Maori Affairs Act 1953, Section 438(5), in the matter of the Maori freehold land known as Hiwarau A6 and others, Opotiki minute book 58, fols 284-286, 1 October 1981 405 List of Cutrent Owners Reports, Maori Land Information System, Waiariki Maori Land Coutt, accessed 20 November 2001 406 Chief Judge minute book 1993, fo1256, 14 June 1993 407 Chief Judge minute book 1992, fo1526, 18 December 1992
120
It would not be unreasonable to assume that there may have been some owners supporting
the proposed amalgamation of 22 blocks of land who would have withdrawn their consent
had they known of the withdrawal of eight blocks with a total area of 121 ha approximately
[and that] At least they were entitled to be heard on the amended application.
As such, the Court found that '[i]n the interests of natural justice Louisa Agassiz was entitled to
notice of the amendment to the application and to be heard thereon', and that:
in failing to give such notice and proceeding to make Orders on the amended application
without notice to Louisa Agassiz [the Court] committed an act of omission sufficient to
justify the variation of the Order.
Accordingly, there is an Order under Section 452 amending the orders made under Section
435 and 438 on 4 August 1969 by deleting reference to Hiwarau BIA block.4D9
In 1997, 4470 square metres of Hiwarau B1A (abutting Ohiwa harbour) was set apart as a Maori
Reservation, pursuant to section 338(1) ofTe Ture Whenua Ma.ori Act 1993, 'for the purpose of
historic interest for the common use and benefit of the descendants of Louisa Agassiz' .410
7.3 Attempts to Cancel the Amalgamation of Hiwarau C
On 19 April 1995, the Deputy Chief Judge of the Maori Land Court heard an application by one
of the trustees, Josephine Mortenson on her own behalf, to cancel the amalgamation order made
for Hiwarau C in 1969, pursuant to Section 45 of Te Ture Whenua Maori Act 1993. A report
prepared by the Deputy Registrar at Rotorua stated that:
The applicant claims that she and other owners have been adversely affected by the said
order in that the land has been placed out of their control in an amalgamated block which
the present owners or their predecessors in title did not agree to. The amalgamation has
effectively denied the owners the right of access and self determination in relation to use of
their land.
That the said order is erroneous in law by reason of a mistake, error or omission on the part
of the Court in that the Court at the date of the decision deleted eight of the blocks from the
proposed amalgamation without further notice to the owners of the 22 blocks which were
4D8 Chief Judge minute book 1992, fo1526, 529-530, 18 December 1992 409 Chief Judge minute book 1993, fo1260, 14 June 1993 410 'Setting Apart Maori Freehold Land as a Maori Reservation', New Zealand Gazette, 3 April 1997, p 747, LINZ MLB/0114-ZGS
121
amalgamated thereby denying them their entitlement to be heard on the amended
application.
That the use and condition of the land has not been materially affected since amalgamation
so as to make the recision of the order impractical and as it is the desire and consensus of the
owners of the constituent blocks that the land be returned without adjustment to the original
blocks. It is in the interests of natural justice that the original application be cancelled and the
original blocks be restored.411
The report noted that the circumstances of this application differed from that of the Hiwarau
B 1A case, 'in that Hiwarau B 1A was a solely owned block at the time of the amalgamation and
that the blocks in the present application ar~~lJ.mcltipIyowned;.412
The Deputy Chief Judge, N F Smith, stated that the Court would 'need to be satisfied that the
interest of the owners would not be adversely affected if the amalgamation order were cancelled',
and suggested that a special meeting of owners be called to consider the application. Smith noted
that section 308(4) of Te Ture Whenua Maori Act did not specifically empower the Court to
cancel an amalgamation order, and that 'the only means of constituting the original tides would
be either by partition or by an order of the Chief Judge under section 45 of Te Ture Whenua
Maori Act 1993'. Smith also noted that '[i]f the amalgamation order were cancelled then separate
surveys would be required to constitute the 21 separate blocks'. He stated that, before the Chief
Judge would consider the application, Mortenson would be required to call a special meeting of
owners to quantify the nature and extent of any improvements made to the land since
amalgamation, 'and the value of any such improvements insofar as they would relate to the
superseded tides'; and to confirm '[t]hat she or the owners will undertake to deposit with the
court prior to consideration of the application an amount sufficient to meet the cost of survey as
. db· d ,413 estu:nate y a regtstere surveyor.
The Deputy Chief Judge reviewed the application on 28 July 1995, following the filing of the
minutes of a meeting of Hiwarau C owners held on 4 December 1993, at which 206 owners had
voted in favour of cancelling the amalgamation order, with two against. Seven postal votes in
favour had been received following the meeting, bringing the total number for the proposal to
213. Smith noted that while the application relied on the claim that the amalgamation orders were
made without adequate notice to all of the owners, the applicant was now requesting the Court to
411 ChiefJudge's minute book 1995, fo179, 19 April 1995 412 Chief Judge's minute book 1995, fo183, 19 April 1995 413 Chief Judge's minute book 1995, fo1s 83-84, 19 April 1995
122
cancel the title with the support of 213 of the 660 owners, which did not, it was implied, indicate
'evidence of a sufficient degree of support from the owners'. Smith also stated that the Court had
to be 'satisfied that the partition is necessary to facilitate the effect of operation development and
utilisation of the land', and that as 'the majority of [the blocks amalgamated in 1969] were small,
uneconomic and in many instances without adequate access', this 'mitigates against a partition
back into separate title to facilitate the proper use and development of the lands'. A proposal by
Mortenson's counsel that the value of the house built on the property by the de Lorees could be
used as security for any survey costs was also rejected. The matter was deferred to allow counsel
th . k furth b" 414 e opportunity to ma e er su tnlsslons.
Smith reviewed the· application again on 10 Dctober1995, anadismis5ea··the·.applicatiou;latgely
on account of 'the absence of adequate support from the owners,.415
7.4 The Alienation of Hiwarau Land
Aside from that land temporarily alienated through leases, as discussed in section 6, above,
several portions of the original Hiwarau block were alienated through the course of the twentieth
century.
7.4.1 Matekerepu Historic Reseroe
In 1912, 48 acres 1 rood 0 perches of Hiwarau A were taken for 'Scenic Purposes' under the
Public Works Act 1908; the Scenery Preservation Act 1908; and the Scenery Preservation
Amendment Act 1910.416 In December 1913, the Maori Land Court directed that the amount of
compensation payable to the owners of Hiwarau A should be £94:19:7.417
In 1938, an adjacent block of 9 acres 3 roods 12 perches was likewise taken, under the provisions
of the Public Works Act 1928 and the Scenery Preservation Act 1910, for scenic purposes.418 It
was argued by W Robertson, Under-Secretary of the Public Works Department, that
414 Chief Judge's minute book 1995, fols 220-221, 28 July 1995 415 Chief Judge's minute book 1995, fols 357-358,10 October 1995 416 Land taken for Scenic Purposes in Block XI, Whakatane Survey Disttict, A Proclamation, 1 August 1912, New Zealand Gazette, no 67, 8 August 1912, pp 2434-2435 417 The Native Land Act 1909, in the matter of the land known as Lot 189 Waiotahi Parish or Hiwarau A Block, Opotiki minute book 23,2 December 1913, Maori Land Court (Waiariki), Box 45 Hiwarau - Hiwarau A12 418 Notice of Intention to take Land for Scenic Purposes in Block XI, Whakatane Survey District, New Zealand Gazette, no 39, 2 June 1938, p 1292; Land taken for Scenic Purposes in Block XI, Whakatane Survey District, New Zealand Gazette, no 71, 22 September 1938, p 2070
123
The acquisition [ ... ] will have the effect of preserving the whole of the old fighting pas and a
beautiful stand of mamaku, and will also materially reduce the amount of fencing required to
properly protect the whole reserve.
It was stated that 'advice has been received through the Native Land Court at Rotorua that the
owners are agreeable to the required area of Hiwarau A Block being taken', and that
It is proposed that the matter of compensation for the land shall be referred to the Court. In
this connection it is not anticipated that the compensation will amount to a great deal as the
area under acquisition is practically all unimproved.419
The land was valued at £5, and the Public Works Department recommended toth.eNit:iveLand
Court that '[a]s the matter is a comparatively small one and in order to avoid delay, [ ... ] an award
of the amount of £5 be made if the native owners raise no objection,.42o No objection appears to
have been made and the sum of £10 was paid to the Waiariki District Maori Land Board on
behalf of the owners of Hiwarau A.421 The Native Department's Property Supervisor at
Whakatane informed the Registrar of the Native Department, Rotorua, that he saw 'no objection
to this area being taken', arguing that '[i]t is all steep country and contains very little fencing
timber,.422 The reserve, now containing 57 acres 3 roods 32 perches, was known as the Hiwatau
Scenic Reserve.
In 1971 the 'extensive ridge pa' (noted in 1938) was re-discovered, and was found to be 'in
excellent condition'. Representatives of the New Zealand Historic Places Trust recommended
that the reserve be re-classified as 'a reserve for historic purposes' under the Reserves Act 1977.423
This was done in 1979, and the reserve was re-named the Matekerepu Historic Reserve (see
figure 11).424
419 W Robertson, Under-Secretary, Public Works Department, memorandum for the Permanent Head, Public Works Department, 14 December 1937, Maori Land Court (Waiariki), Hiwarau Correspondence File, vol 1 420 N E Hutchings, Assistant Under Secretary, memorandum for the Reeistrar, Waiariki District Native Land Court, 8 May 1939, Maori Land Court (Waiariki), Hiwarau Correspondence File, vol 1; Certificate of Valuation, no. 1/198/pt. 1,28 September 1939, Maori Land Court (Waiariki), Hiwarau Correspondence File, vol 1 421 Hiwarau A, In the matter of the Public Works Act 1928 and in the matter of an application by the Minister of Public Works for the assessment of compensation payable for land taken for Scenic Purposes, Opotiki minute book 30, fols 21-22, 20 July 1939, Maori Land Court (Waiariki), Box 45 Hiwarau - Hiwarau A12 422 K G Runciman, Property Supervisor, Native Department, Whakatane, to the Registrar, Native Department, Rotorua, 'Hiwarau A Block', 21 March 1939, Maori Land Court (Waiariki), Hiwarau Correspondence File, vol 1 423 Lynda C Bowers, Conservation Plan: Matekerepu Historic Reserve, Department of Conservation, Bay of Plenty Conservancy, Rotorua, 1993, p 5 424 Classification of Reserve, 18 October 1979, New Zealand Gazette, no 97, 25 October 1979, P 3080; Change of the Name of the Hiwarau Historic Reserve, 19 October 1979, New Zealand Gazette, no 97, 25 October 1979, p 3082
124
PT A
...........
..... . .. '
PT A
Figure 11: Matekerepu Historic Reserve, showing pa site and 1986 river diversion
[Source: Lynda C Bowers, Conservation Plan: Matekerepu Historic Reserve, Department of Conservation, Bay of Plenty Conservancy, Rotorua, June 1993, appendix 3]
In 1993, the Department of Conservation produced a conservation plan for the reserve, which
found that 'the primary role of the historic reserve will continue to be a protection function to
prevent damage or loss of the pa due to human activity'. The pa itself was described as 'a rare
example of a heavily defended, extensive pa in the Ohiwa area'. While one of the 'future
management' objectives was to 'consult with local iwi', the report stated that 'at this time the
Department does not know who are tangata whenua for the pa', and that 'the history of this
historic place is at present unknown to the Department'.425
According to Judith Binney, prior to 1870, Matakerepu pa was known as Whakarae, and was,
to be exact; a ·seriesofpasites:Thereil> a largeridgepa, extending ovetfoutlcik>mettes;with
five major tihi (platforms or central fortifications) on the north side of the Nukuhou river.
This pa dates from the sixteenth century, and it also has an identifiable archaeological history
of occupation in the first half of the nineteenth century. A distinct 'gunfighter' pa exists at
the northern end of the ridge.426
Binney describes this 'gunfighter' pa as commanding 'a particularly fine view over the Wainui
valley to the west, over Hokianga island and the heads of the Ohiwa harbour, the coastal route to
Opotiki in the east, and the overland route south up the Nukuhou river to Waimana'. A third,
smaller, pa, was situated to the south, across the Nukuhou River.
Whakarae, Binney writes, 'had long been a guardian of Tuhoe's access route from inland to
gather kaimoana from the Ohiwa harbour', and it was to here that Rakuraku had moved with his
people in 1868. However, Binney continues, in 1870, 'the Tuhoe people sheltering at Whakarae
(among them Tamaikoha) were driven out by an unauthorised government military assault'. It
was as a consequence of this action that Whakarae was renamed 'Matakerepu'.
In 1874, 142 acres ofland (Lot 183 and Lot 184 Parish of Waimana) , to the south of, and across
the Nukuhou river from the Hiwarau block, was set aside for Rakuraku and his immediate hapu,
however the tide was not legally granted until 1905, by which time Rakuraku had died. According
to Binney, Upokorehe contested the grant, 'but there seems litde doubt that Rakuraku Rehua and
his people had held Whakarae for Ngati Raka and Tuhoe,.427
425 Bowers, pp 2, 5, 6, 11 426 Binney, 'Encircled Lands, Part One', Draft Version, August 2001, ch 1, pp 17-18; Binney cites Ken Phillips, 'The Archaeology of the Eastern Bay of Plenty', MA Thesis, University of Auckland, 1996, pp 17,31,47-48 427 Binney, 'Encircled Lands, Part One', Draft Version, August 2001, ch 1, P P 17-18
126
In January 1986, an area of land comprising 1972 square metres, described as part Hiwarau A
block, was 'set apart' from the historic reserve 'for river diversion,.428
7.4.2 Maori Reservations
When the Hiwarau block was partitioned into Hiwarau A and Hiwarau B blocks in 1904, two
small portions of Hiwarau B were set aside as 'burial reserves'. The two reserves, Onerau (1
perch) and Oparaoa (4 perches) were placed in the ownership of six men, in equal shares: Wi
Kotu; Te Wttemu Lawrence; Warena Mokomoko; Papu Kiripa; Mu te Hura; and Te Hoeroa
Horokai (presumably the same man who presented evidence of Whakatohea's boundary to the
1920 Native Land Claims Commission).429 These reserves can be seen in the plan of Hiwarau B
reproduced in this report in figute K
In 1944, two acres of Hiwarau B4C were reserved for Turangapikitoi Meeting House as a iN ative
Reservation'. The Maori Land Court heard that Hiwarau B4C was in the sole ownership of 'Mr te
Nuni', who stated that 'we the Ngati Turanga hapu have built a Maori meeting house on this land
- "Turangapikitoi" is the name of it - 40 x 20 x 7 are the dimensions,.430 Hiwarau B4C was not
amalgamated into Hiwarau C.
Land was also reclassified as Maori Reservations in 1982 for Roimata Matae and Roimata urupa,
'for the common use and benefit of the U pokorehe Hapu of Whakatohea' under section 439 of
the Maori Affatts Act 1953.431
As noted in section 7.2, above, 4470 square metres of Hiwarau B1A was set apart as a Maori
Reservation in 1997 'for the purpose of historic interest for the common use and benefit of the
descendants of Louisa Agassiz'. 432
7.4.3 Hiwarau B3C
As mentioned in section 6, above, Hiwarau B3C (20 acres 3 roods 32 perches), which had been
created in 1917,433 had become 'European land'. The land had been purchased by Arnold
428 Crown Land Set Apart for River Diversion in Block XI, Whakatane Survey District, Opotiki County, New Zealand Gazette,S February 1986, no 15, p 407 429 Partition Order, Opotiki minute book 15, 22 March 1904, Maori Land Court (Waiariki), Box 45 Hiwarau -HiwarauA12 430 Opotiki minute book 30, fo1344, 29 February 1944 431 Setting Apart Maori Freehold Land as a Maori Reservation, 11 February 1982, New Zealand Gazette, 18 February 1982, no 18, p 531. 1.1640 hectares were set aside for Roimata Marae and 2,200 square metres for the urupa 432 'Setting Apart Maori Freehold Land as a Maori Reservation', New Zealand Gazette, 3 April 1997, p 747, LINZ MLB/0114-ZGS 433 Opotiki minute book 24, fol124, 20 September 1917
127
Theodore Harris 'from the Maori owners', and the sale had been 'duly confirmed by the Waiariki
District Maori Land Board' on 15 July 1920.434
In October 1944, Harris, who had paid £100 for the land, wrote to the Native Minister, offering
to sell the block 'back to the Native Department' for what he had paid for it as a contribution to
the War Loan. He was aware that '[i]t is the only section in the block held by a pakeha,.435 In
December 1944, Harris claimed that he had actually purchased Hiwarau B3C in error, having
been under the impression that he was getting Hiwarau B3A. He was advised that he had no
interest in Hiwarau B3A, and the matter appears to have gone no futther.436 In September 1945,
Harris offered to sell Hiwarau B3A to the Department of Native Affairs 'at £12 per acre for
RehabilitationofServicemeu';·Hewasadvised·that·he··hadpurchasedB3Cand··notB3A;and·
again the opportunity to buy the land was not taken up by the government.
It was noted by the Registrar of the Maori Land Court, Rotorua, in 1950, that
Under the circumstances it would appear that a mistake was made by the Solicitors
concerned in the preparation of the documents of Transfer and the supporting papers in
each case but how such mistake could be rectified at this stage is not at all clear. It would
probably require Special Legislation.
It was further noted that investigations were being made to ascertain whether 'the Hiwarau and
adjoining blocks' could be 'brought under Part 1/1936 so that it might be possible for the Crown
to purchase Hiwarau B3C from Mr Harris for this purpose,.437 The opportunity to do this,
however, was not taken up.
In July 1958, George Lawrence wrote to the Minister of Maori Affairs, informing him that he had
purchased Hiwarau B3C 'about' three years previously, before finding that it had been
'misrepresented' to him and that there were 'great difficulties such as fencing and means of
access'. As such, he offered to sell the block to the department, 'and have it revert back to the
Maori owners', or 'deem it a scenic reserve,.438 Lawrence was informed that the block would not
434 J J Dillon, Registrar, Maori Land Court, memorandum for the District Solicitor, Public Trust Office, Tauranga, 6 February 1953, Maori Land Court (Waiariki), Hiwarau Correspondence File, vol 1 435 Under-Secretary, memorandum for the Registrar, Native Land Court, 16 October 1944, Maori Land Court (Waiariki), Hiwarau Correspondence File, vol 1 436 J J Dillon, Registrar, Maori Land Court, memorandum for the District Solicitor, Public Trust Office, Tauranga, 6 February 1953, Maori Land Court (Waiariki), Hiwarau Correspondence File, vol 1 437 J J Dillon, Registrar, Maori Land Court, memorandum for the Under-Secretary, Department of Maori Affairs, 'Hiwarau B3C Sale to A T Harris', 25 May 1950, Maori Land Court (Waiariki), Hiwarau Correspondence File, vol 1 438 George Lawrence, Thames, to the Minister of Maori Affairs, 19 July 1958, Maori Land Court (Waiariki), Hiwarau Correspondence File, vol 1
128
'be of any use to the Department if purchased', and was told that a 1944 report on the block had
described it as having:
no road frontage and [ ... ] only about one acre of flat land, the balance being on the hill face
and all in fern and second growth, its only value would be to any neighbouring farmer and
even for this purpose it would have very litde value.
He was told that it was unlikely 'that any of the adjoining owners have the finance available to
purchase the block,.439 Lawrence replied that he was surprised that the offer had been turned
down, as he had been informed three years previously by 'an officer in the Rotorua office' that
'h,adit. not been for [his] section the whole of the Hiwarau block would have been put under
development' .440
It was noted in 1974 that Hiwarau B3C had been sold to Mr A J Scott (Certificate of Tide
114/29).441 Hiwarau B3C remains general land.
7.5 Hokianga Island
In 1973, Hokianga Island was converted from Maori freehold land to a Maori reservation, under
section 439 of the Maori Affairs Act 1953, 'for the purpose of a burial ground and as a place of
historic and scenic interest for the common use and benefit of Upokorehe and other Maori
peoples of the district generally,.442
7.6 Hiwarau Today
The Wai 339 statement of claim states that of the land granted to Upokorehe following the
eastern Bay of Plenty confiscation, only 800 acres and one island remain in Upokorehe
ownership. The current status of the Hiwarau blocks remaining in Maori ownership, according to
Maori Land Court records, as of 20 November 2001, is as follows:443
439 E W Williams for District Officer, memorandum for Head Office, Re: Offer of Sale by George Lawrence of Thames, 1 August 1958; W Nash, Minister of Maori Affairs, to Mr Lawrence, 11 August 1958, Maori Land Court (Waiariki), Hiwarau Correspondence File, vol 1 440 George Lawrence to the Minister of Maori Affairs, n.d., Maori Land Court (Waiariki), Hiwarau Correspondence File, vol 1 441 A J Douglas for Maori Trustee, to Mr A M Hippolite, Valuation Department, Gisborne, 4 July 1974, Maori Trust Files (Rotorua), 54/1/31/9 Maori Trust Office, Legal Claims, Hiwarau C 442 'Setting Apart Maori Freehold Land as a Maori Reservation', 18 June 1973, New Zealand Gazette, 28 June 1973, p 1197 443 List of Current Owners Reports, Maori Land Information System, Waiariki Maori Land Court, accessed 20 November 2001
129
.......
Table 5: Status of Hiwarau Blocks, 2001
Area Total No. of Land Management Details (if any)
Block (ha) Shares Owners Management Structure Type Administrator( s ) Structure Name
HiwarauA6 22.5966 5.5 21 HiwarauA9 15.6158 4 26 HiwarauA11 24.276 1 10 HiwarauB1A 3.39 1 2 HiwarauB1A Maori John Leonard Erickson
Maori Reservation Reservation Maria Herapuhi Dysart (0.447 ha) Mary Korara Erickson
HiwarauB1D 28.9133 7 69 Hiwarau B 1D Ahu Ahu Whenua Moera Edwards Whenua Trust Trust
HiwarauB3A 6.2245 3.5 48 Hiwarau B3A Ahu AhuWhenua Allan Higgs Whenua Trust Trust Connie Monika
HenareHape J ames Ritchie Maria Graham
Hiwarau B3lt 9.6902 5.5 21 HiwarauB4C 10.5091 1 5 HiwarauC 375.2546 19815.86 775 Hiwarau Lands AhuWhenua Josephine Mortenson
Trust Trust Phillip Wilson Tuiringa Mokomoko
1:~\T6bi.1:~5[ltPiYf'z~:f~~ ~496;4701~i ,0ft9844r.36'\~~ .~'1
Note: the Land Status of all blocks 1S Maon Freehold Land
The original Hiwarau block, as granted to the 'Members of the Upokorehe Tribe' in 1874, had
comprised 1,260 acres. As shown above, the total area of Hiwarau land in the collective
ownership of the vast majority of owners, that is Hiwarau C, today comprises 375.2546 hectares
(927 acres 1 rood 6% perches) as shown in figure 12. A further 121.2155 hectares of the original
grant (that is Hiwarau A6, A9, A11, B1A, BiD, B3A, B3B, and B4C) remain in the ownership of
202 descendants of the original grantees. Hiwarau B3C (20 acres 3 roods 32 perches) had been
sold into European hands in 1920; while 57 acres 3 roods 32 perches (23.4515 hectares) was
alienated by the government to form what would become Matekerepu Historic Reserve.
Section 8: Conclusion
This report has investigated the issues surrounding two inter-related claims brought to the
Waitangi Tribunal by a common claimant, Tuiringa Mokomoko. Both the Wai 203 and Wai 339
claims refer to the treatment of the tipuna Mokomoko, wrongfully executed in 1866 for the
murder of Rev Carl Volkner in 1865, and the effects that this execution wrought on his whanau
and descendants. Declared rebels, Mokomoko's whanau were unable to have the lands that had
been confiscated by the Crown returned to them through the Compensation Court. Members of
the Mokomoko whanau did receive title to returned land, however this was not through their
connection with Mokomoko, but rather, in the case of the Hiwarau block, through his
Upokorehe wives. The posthumous pardon granted to Mokomoko in June 1992 signified that the
Crown had made a serious mistake, which was to cause suffering and deprivation not only to
Mokomoko and his family, but also to their descendants.
130
Ohiwa Harbour
]. 605 ho--u-JW
[
(375 - 251.6ha)
HIWARAU (
ROADWAY 2. 1296tlQ ®
Blocks VII & XI Whaka tane Survey District GISBORNE LAND DISTRICT, OPOTIKI DISTRICT
Compiled in Survey Office, November 1993
S c,ale -1: 40000
M L 8691
MEASUREMENTS ARE METRIC tt
rrl/1If'
Figure 12: Hiwarau C November 1993 [Source: LINZ: DOSLI National Office, 6925/3526-1-DNO, Maori Land Claims Hiwarau Block,
29 March 1993 - 1 October 1998]
The Crown's grant of the Hiwarau block to members of Upokorehe, and the subsequent history
of this block, forms the basis of the Wai 339 claim and, as such, a significant portion of this
report. According to the Wai 339 statement of claim, prior to the eastern Bay of Plenty
confiscation in 1866, the original area of land occupied by Upokorehe at Ohiwa comprised
approximately 1321 acres, plus four islands. In December 1866, prior to the sitting of the
Compensation Court, the Crown Agent Wilson, in one of his 'out-of-court arrangements',
returned 1,260 acres (he estimated 1,500 acres at the time), in addition to Hokianga Island, to the
'rebellious' Upokorehe hapu. Upokorehe submissions to the Waitangi Tribunal claim that, as well
as creating 'insufficient reserves for the continued self-sufficiency of the hapu', the Crown vested
'lands in the Hiwarau block to persons who were not members of the Upokorehe Hapu, that is,
they were l()yalists and olltsiders,.444
As discussed, in section 4.2 of this report, significant amongst these names was that of Hemi
IZakitu, who had, Wilson reported, along with his 'followers', 'been included in this agreement'.
This was to become the basis of the series of petitions made to the government, regarding the
Hiwarau block, as well as cases brought before the Native Land Court, as outlined in Section 5.
Each successive hearing of this issue, rather than looking into the case afresh, continued to refer
back to the ruling made by Judge H Dunbar Johnson on this issue in 1898. This Native Land
Court ruling stated that, despite reference to both the 'Upokorehe hapu' and 'Upokorehe tribe' in
the Crown grant, 'when adopting the name Upokorehe as a collective name for the fifty-six
persons in the schedule of owners of this block, the Compensation Court and Crown Agent did
so merely to distinguish a certain set of people who had lived in the Ohiwa/Waiotahe district and
for whom land was to be provided for setdement purposes.' It was further 'assum[ed] that the
Compensation Court and Crown Agent were fully cognizant [of this seemingly very complex
situation] and had good reasons for the actions they took,.445 At the time of the Crown Grant of
Hiwarau, tribal interests were divested, and the property was vested in the listed individuals.
Relative interests were not defmed until 1898.
Between 1904 and 1940, the Hiwarau block was partitioned into thirty blocks, ranging in size
from 10 acres 1 rood 20 perches to 106 acres 3 roods 4 perches. One block, Hiwarau B3C was
sold in 1920 and became 'European land'. A total of 57 acres 3 roods 32 perches was alienated to
form Matakerepu Historic Reserve. In 1969 the majority of the Hiwarau blocks were
amalgamated to form Hiwarau C. It was later found that the owners were not notified of the
444 Submissions of Counsel for Upokorehe, p 6 445 Opotiki minute book 16, fo1332, 17 March 1898
132
amendment to the application to amalgamate, and may have objected to the amalgamation if they
had known that eight blocks were to be excluded.
Upon its creation, Hiwarau C was vested in the Maori Trustee, and claimants allege that the
trustee mismanaged the block from 1969 until replaced as responsible trustee in 1992. The claim
of mismanagement is outlined in detail in section 6 of this report, and revolves for the most part
around the Maori Trustee's inability to resolve the matter of the de Loree leases to the
satisfaction of the owners. From as early as 1970, the Maori Trustee was aware that de Loree was
in arrears with his rent payments. In 1975, Hiwarau C owners made known their concerns
regarding the state of the land leased to de Loree, and their dissatisfaction with the Trustee's
management of the leases .. In ·1979, ·aninspectionof the· leases undertaken by the Maori . Trustee
found a number of breaches of covenant. De Loree was called upon to remedy these breaches,
but an inspection in 1981 revealed 'numerous breaches' and re-entering the lease was discussed.
A meeting of Hiwarau C owners supported this action, and de Loree was served with a section
118 notice requiring him to remedy the breaches. Despite further inspections highlighting the
continuing deterioration of the leased land, and ongoing non-payment of rent, it was not until
July 1992 that Peter de Loree was evicted from Hiwarau C.
While the Maori Trustee began attempts to recover the money owed to the Hiwarau C owners,
despite assuring the owners that they would continue to pursue this matter, they ceased their
attempts when they were replaced as responsible trustees of the block by the owners in 1992. The
Wai 339 claim was lodged with the Waitangi Tribunal in December 1992, and the Hiwarau C
owners sought to reach a setdement with the Maori Trustee. While a financial setdement
(representing approximately a quarter of the amount claimed) was reached in 2000, the Maori
Trustee accepted no liability for its management of the de Loree leases. As stated in the Wai 339
statement of claim, in addition to the earlier historical grievances, when the Hiwarau C owners
did have the leased land returned to their control after more than twenty years they were 'left
with [a] much run down block of land, no finance, and arrears of rates and rent.'446
446 Wai 339 Statement of Claim, see appendix 2
133
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134
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doc c7) Mead, H, and J Gardiner, 'Te Kaupapa 0 te Raupatu I te Rohe 0 Ngati Awa: Ethnography of the
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Miles, Anita, Te Urewera, Rangahaua Whanui District Overview Report, Waitangi Tribunal, 1999 Miles, Anita, 'Ohiwa Harbour Scoping Report', a report commissioned by the Waitangi Tribunal,
June 2001, (\X'ai 339 ROD, doc Al) Milroy, Te Wharehuia, and Hirini Melbourne, 'Te Roi 0 te Whenua', 1995 (\X'ai 36 ROD, doc A4) Mikaere, Buddy, 'Exploratory Report to the Waitangi Tribunal being an Historical Account of the
confiscation of land in the Opotiki District', 1991 (\X'ai 87 ROD, Al) O'Malley, Vincent, 'The East Coast Confiscati()n Legislation and its Irnplementation',report
commissioned by the Crown Forestry Rental Trust, February 1994 (\X'ai 144 ROD, doc A2) Phillips, Ken, 'The Archaeology of the Eastern Bay of Plenty', MA Thesis, University of
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Ngati Awa, Whakatane, November 1995 (\X'ai 46 ROD, doc LI0) Te Roopu Whakaerni Korero 0 Ngati Awa, 'The Tuhoe Tribal Boundary: An Interim Ngati Awa
Response', report commissioned by Te Runanga 0 Ngati Awa, September1995 (\X'ai 46 ROD, doc H17)
Sissons, Jeffrey, 'Blocked In, Forced Out: A History of the Waimana Block and Other Tauranga Valley Lands', a report commissioned by Crown Forestry Rental Trust, June 2001, Draft Version
Waitangi Tribunal, Ngati Awa Raupatu Report, Wai 46, Waitangi Tribunal Report, Wellington, Legislation Direct, 1999
Ward, Alan, National Overview, Waitangi Tribunal Rangahaua Whanui Series, 3 vols, Wellington, Waitangi Tribunal, 1997
Were, Kevin, 'Mokomoko - Our Tipuna' research report (\X'ai 46 ROD, doc F3, app 13) 'Whakatohea Case Commentary in Preparation for Final Report to the Waitangi Tribunal',
presented to a hui of all the hapu of Whakatohea at Omarumutu Marae, 7 November 1992 (\X'ai 87 ROD, doc A2)
Published Official Documents Appendices to the Journals of the House of Representatives (AJHR) 1865, E-4. Further Papers relative to the Spread of the Hau Hau Superstition among the Maories 1865, E-5. Papers relative to the Murder of the Rev. Carl Sylvius Volkner by the Hau Hau
Fanatics 1868, A-8A. Papers relative to the Defence and Occupation of the Opotiki District 1872, C-4. Reports on Setdement of Confiscated Lands: Bay of Plenty, No.3 1908, G-1M. Native Lands and Native-land Tenure: Interim Report of Native Land Commission,
on Native Land in the County of Opotiki 1928, G-7. Report of the Royal Commission to Inquire into Confiscations of Native Lands and
Other Grievances Alleged by Natives 1938, 1-3. Reports of the Native Affairs Committee (p. 3. Petition No. 14/1937 Petition of
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135
Journal oj the Legislative Council 'Sketch Map of the Opotiki Confiscated Block', 1873, no 12, p. 60.
New Zealand Gazette Proclamation of Peace, 2 September 1865, New Zealand Gazette, 5 September 1865, no 35, p 267 Proclamation Proclaiming Martial Law throughout the Districts of Opotiki and Whakatane, 4
September 1865, New Zealand Gazette, 5 September 1865, no 35, pp 267-8 Order in Council: Land taken under NZ Setdements Act 1863, Bay of Plenty District, New
Zealand Gazette, 18 January 1866, p 17 Certificates and declarations of executions of Mokomoko etc, New Zealand Gazette, 30 May 1866,
no 33, p 229 Notice of Opotiki Compensation Court Sitting on Monday 1 October 1866, New Zealand Gazette,
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347-8 N()tice of postponement of OpotikiCofupehsation Court Sitting <until further notice'; and
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Proclamation, New Zealand Gazette, no 4, 15 January 1867, p 37 Schedules of Awards made by Compensation Court and Crown Agent to Loyal Natives out of
Confiscated Block, Bay of Plenty, 28 October 1874, New Zealand Gazette, no 60, pp 781-2 Land taken for Scenic Purposes in Block XI, Whakatane Survey District, A Proclamation, 1
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136
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137
· -
WAITANGI TRIBUNAL
CONCERNING
AND CONCERNING
Wai894
the Treaty of Waitangi Act 1975
Wai 203, Wai 339 and the Urewera inquiry
MEMORANDUM-DIRECTION OF DEPUTY CHAIRPERSON
1 Pursuant to clause 5A(1) of the second schedule of the Treaty of Waitangi Act 1975, the Tribunal commissions Dr Ewan Johnston of Wellington to complete, on behalf of the Tribunal, a research report covering the following matters:
(a) a brief explanation of this Tribunal commission, the aim of the project, and any comments on the methodological approach of this research;
(b) a discussion of the customary interests-held by Upokorehe up to 1866; (c) Upokorehe's experiences during the New Zealand wars; (d) the trial and execution of the tipuna Mokomoko; (e) the confiscation of Upokorehe land~, Upokorehe claims before the eastern
Bay of Plenty Compensation Court,~ and any lands returned'to Upokorehe after the raupatu;
(f) the administration of the Hiwarau block, including the Maori Trustee's administration of the Hiwarau block 1969-1992.
2 This commission commenced on 18 November 2001 and ends on 24 December 2001, when one copy of the report will be filed in unbound form together with an ind~xed document bank and a copy of the report on disk.
3 The report may be received as evidence and the author cross-examined on it.
4 The Registrar is to send copies of this dire~tion to:
Dr Ewan Johnston Crown Counsel, Crown Law Office Director, Office of Treaty Settlements Secretary, Crown Forestry Rental Trust Director, Te Puni Kokiri Wai 36 Tuhoe consolidated claim, counsel Wai 46 Ngati Awa land claim, counsel Wai 87 Whakatohea Raupatu claim, counsel Wai 203 Mokomoko claim, counsel
Wai 339 Hiwarau C block claim, counsel Wai 558 Ngati Ira 0 Waioeka claim, counsel Wai 794 Opouriao Lands and Resources claim, counsel New Zealand Maori Council National Maori Congress Tuhoe-Waikaremoana Maori Trust Board Te Runanga 0 Ngati Awa Whakatohea Trust Board Environment Bay of Plenty Opotiki District Council Whakatane District Council
DATED at Wellington this ~ day of December 2001.
__ ~Iv~ Chief Judge J V';"":W=il=h:-' am-s---;lZ-Deputy Chairperson WAITANGI TRIBUNAL
The claimant says:
i--:;
UUi-·-L.1 ~·r-\.I L Ie/Dim WAI 203
IN THE MATTER of the Treaty of Waitangi Act 1975
AND
IN THE MATTER of a claim by TUIRINGA MOKOMOKO on behalf of himself and the members of the Mokomoko Whanau of the Whakatohea Iwi
Claimant
STATEMENT OF CLAIM
1. THAT he is descendant of the Whakatohea chief Mokomoko and is member of Te Whanau-a-Mokomoko.
2. THAT his whakapapa Mokomoko was granted a posthumous pardon by Her Excellency; the Governor General, on 18 June 1992.
3. THAT he claims to be prejudiced notwithstanding the granting of the pardon by the following acts or omissions of the Crown:
3.1 On 17th April 1866 Mokomoko was wrongly executed by the Crown.
3.2 Following -the arrest of Mokomoko ~ there was a general raupa tu of Whakatohea lands by the Crown in the Opotiki area.
3.3 This raupatu was proclaimed by Order in Council on the 17th of January 1866.
3.4 It is well established that the confiscations of Whakatohea land exceeded what was just.
3.5 The effects of confiscations and the unlawful death of Tipuna Mokomoko on Te Whanau-a-Mokomoko were, and remain, extensive, pervasive and economically and culturally devastating.
In Particular:
4.1 The stigma of the name Mokomoko as a convicted murderer which has followed the whanau down through the generations.
4.2 The loss of mana for the unlawful execution of Tipuna Mokomoko-.
4.3 The loss of lands of Te Whanau-A-Mokomoko.
4.4 The loss of economic opportunity for our whanau following the confiscation of our lands.
;. j ( . • <-\
~refore the Claimant Claims:
5.1 The character, mana and reputation of Te Whanau-a-Mokomoko be restored through the enactment of a statute to that effect.
5.2 The Crown take appropriate action to compensate Te Whanau-aMokomoko for wrongful execution of Tipuna Mokomoko, the loss of their mana, the loss of their land, their economic base and the loss of opportunity associated with the wrong-doing to our whanau.
DATED this day of 1994
.~~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Counsel for Claimant
THIS Statement of Claim is filed by BRIAN SETWART NABBS, Solicitor for the Claimant, whose address for service is at the offices of McCaw Lewis Chapman, 77-79 Duke Street, Cambridge, telephone (07) 827 5147, fax (07) 827 7991, DX 4603, Cambridge.
TO:
AND TO:
RDS028:JP
100394
The Registrar, Waitangi Tribunal, Wellington
Tuirenga Mokomoko, R D 1, Opotiki
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!,: Fl! I (' l\ -T 'I r---------tl i i! ! !_~o! I I / \ I f- C/O 1m ~-' '-...i i L. I "- 0 t o
_\.: L 3 WAI frO
IN THE MATTER of the Treaty D Waitangi Act 1975
IN THE MATTER
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of a claim by TUIRENGA MOKOMOKO on behalf of himself and of the members of the Mokomoko family of the Whakatohea Tribe
Claimant
STATEMENT OF CLAIM
The claimant says:-
1. THAT he is a Maori and is a descendant of the Whakatohea
Chief Mokomoko (Whakapapa is attached to this claim as Annexure
1) •
2. THAT he claims to be prejudic~d by the following acts or
omissions of the Crown:-
2.1 In invading the Opotiki area in.1866;
2.2 In detaining the Chief Mokomoko and subjecting him to
M~litary cour~-martial pursuant to the suppression of
Rebellion Act 1863 for his alleged involvement in the
murder of the missionary, Carl Sylvius Volkner at Opotikii
2.3 In deciding to indict and prosecute Mokomoko for murder in
the Supreme Court at Auckland;
2.4 In executing Mokomoko on 17 April 1866;
2.5 In declining to grant an application for an acquittal
and/or statutory pardon brought on behalf of the Mokomoko
family in 1990.
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3. THAT the Act, actions or omissions of the ('::rown referred
to in paragraph 2 above amount to a breach of the principles of
the Treaty of Waitangi:-
Particulars:-
3.1 In March 1865 the CMS missionary at the Opotiki Mission
Station, Carl Sylvius Volkner t was killed at Opotiki by
Kereopa Te Rau and others who believed that the Reverend
Volkner was acting as aspy for the GOvernmeIlt of the
colony. After being shown certain documents in following
a proceeding similar to a trial, Volkner was executed by
hanging.
3.2 It is unclear who was primarily responsible for Volkner's
death. In February 1865 Kereopa Te Rau and Patara
Raukatauri came to the Opotiki as Pai Maririe
missionaries. It appears there is clear evidence linking
Kereopa with Volkner's death. Some members of Whakatoh~a
also may have had their reasons for wishing to kill
Volkner.
3.3 Following Volkner's death Sir George Grey issued two
proclamations on 2 and 4 September 1865. The first
proclamation advised that the Crown intended to send a
military expedition to Opotiki and threatened that unless
the murderers of Volkner (and also of James Fulloon) were
yielded up by the chiefs of the region, land would be
confiscated. The _second proclamation was a proclamation
of martial law.
3.4 Following the arrival of Crown forces in the region, the
Chief Mokomoko (along with other men) was detained and
then subjected to mili'tary court-martial. Fo-llowing an
opinion from the Solicitor-General that the military
proceedings were illegal (see Annexure 2), the Chief, "
Mokomoko with others was placed on trial in the Supreme
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3.5
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Court at Auckland.
The trial took place on 27 March to 4 April 1866.
Mokomoko was c6nvicted and was hanged at Auckland on 17
April 1866. A transcript of the trial forms Annexure 3.
This includes Mokomoko's unsworn statement after verdict
in which he protests his innocence. Certain documents
related to the Supreme Court trial and Chief Mokomoko's
execution are attached as Annexure 4.
3.6 Whakatoheaoral tradition hasconsi§tently been that
Mokomoko was innocent, and the family have maintained that
Mokomoko actually attempted to assist Volkner to escape.
3.7 In 1989 permission was granted by Government for the
family to exhume Mokbmoko's remains from Mt Eden Prison
where they had been buried after his execution. His
remains were re-interred at Waiaua; Opotiki, in October
1989 and a formal unveiling took place in October 19900
3.8 Meanwhile action was taken by the family during 1990 -to
take formal steps to have Mokomoko's innocence formally
recognised by Government. A precedent for this existed
already with the Te Runanga 0 Ngatiawa Act 1988. Contact
was made with Bruce Gregory, MP for Northern Maori, and
with Richard Boast of the Faculty of Law at Victoria
University of Wellington.
3.9 On 18 July 1990 members of the family, together with Mr
Boast( went to pa~liament Buildings to meet with
Government to discuss the Mokomoko case. Through earlier
discussions with Mr Gregory, the family were under the
impression that a meeting with the Prime Minister, Mr
Geoffrey Palmer, had been organised, but this turned out
to be a misunderstanding. No such meeting ever
eventuated, but members of the family were able to meet
with Shane Jones of the Prime Minister's Department and
with Amelia Manson of the Treaty of Waitangi Policy Unit.
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3.10
3.11
3~12
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A letter from Mr Boast to the Prime Minister and Minister
of Justice was also delivered (Annexure 5).
This letter was subsequently referred to the Law Reform
Division of the Department of Justice. No reply was
forthcoming until late December 1990. A copy of the
Minister of Justice's letter and attached departmental
report forms Annexure 6. The Department's view was that
insufficient evidence had been adduced to warrant
intervention by the Department of Justice.
A further meeting of the family Look place on 3 January
1991 at which it was resolved to pursue the matter
further. On behalf of the family, Counsel wrote to the
Minister of Justice on 4 March 1991. A copy of this
letter is attached as Annexure 7. This indicates that the
family has strong reservations about the adequacy of the
Crown • s response and is disappointed that the C,rown has
failed to conduct any research itself. It is hoped that
the intervention of the Waitangi Tribunal will allow this
matter to be resolved.
The Departmental response takes the view that insufficient
evidence has been adduced to warrant an acquittal or
pardon. The family rejects this view, but in any event
points out that the reason why some evidence cannot be
located is, itself, due to the Crown, in particular in the
Crown's failing to ensure the preservation of Court
documents and other materials relating to the trial of
Mokomoko. All Supreme Court records at Auckland were
deliberately destroyed in 1949.
Findings Sought
4. THE Claimant seeks finding that the acts or omissions of
the Crown:-
4.1 In invading the Opotiki area in 1866;
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4.2 In detaining the Chief Mokomoko and subjecting him to
Military court-martial pursuant to the Suppression of
Rebellion Act 1863 for his alleged involvement in the
murder of the missionary, Carl Sylvius Volkner at Opotiki;
4.3 In deciding to indict and prosecute Mokomoko for murder in
the Supreme Court at Auckland;
4.·4 In executing Mokomoko on 17 April 1866;
4.5 In declining to grant an application. for an acquittal
and/or statutory pardon brought on behalf of the Mokomoko
family in 1990;
amount to a breach of the principles of the Treaty of Waitangi.
Recommendations Sought
5. THE Claimant seeks the recommendation that:-
5.1 the Crown reconsider its provisional assessment that an
acqui.ttal and/or statutory pardon for Mokomoko should not.
be granted; and
5.2 the Crown takes appropriate action to grant by whatever
appropriate means a pardon for Mokomoko.
Mediation
6. THE Claimant states his desire that the Crown treat with
him by formal process of mediation and negotiation to settle the
question of the pardon of the Chief Mokomoko.
7. THE Claimant authorises the Waitangi Tribunal Division of
the Department of Justice to conduct whatever research is
necessary to assist in the resolution of this claim.
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-"'8--'-. __ ---'T"'-'H'-!cE~ Claimant asks that leave be given to amend this
Statement of Claim and to file further annexures.
9. THE Claimant seeks the assistance of the Tribunal in
funding counsel and research necessary for the claim.
DATED this (4- /J day of 1991
Counsel for Claimant
THIS Statement of Claim is filed by DEBORAH ANNE EDMUNDS r solicitor for the Claimant, whose address for service is at the offices of Kensington Swan, 6th Floor, Fletcher Challenge Houser 87-91 The Terrace, Wellingtonr telephone (04) 727-877, fax (04) 732-338, P.O. Box 10-246, Wellington.
The Registrar, Waitangi Tribunal, Wellington
AND TO: Solicitor-General, Crown Law Office, Well-ington
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R.D.l OPOTIKI
17 December 1992
Chief Judge Durie Chairman waitangi Tribunal WELLINGTON
Dear Sir
HIWARAU C BLOCK
I, being the Chairman of the newly elected Responsible Trustees of Hiwarau C Block, and one_island comprising approximately 800 acres, have been asked to seek your assistance. There is much confusion about the block, and the Responsible Trustees request that the Waitangi Tribunal investigate the circumstances relating to its deterioration, and make recommendation accordingly to the Maori Land Court, in Rotorua.
1)
2)
3)
Prior to confiscation the original area was about 1321 acres ,&/t'h~ !fJb't&caary being from Maraetoto stream to the west of Ohiwa Harbour. Granted under the 4th and 6th Clauses of the Confiscation Lands Act 1867.
after confiscation the land granted to the rebels comprised 1200 acres and one island. The rebels numbered 30 women who were blamed with Mokomoko for the murder of Volkner. Refer Document A, Maori Land Court, dated 17th Maroh 1898~
From 1867 to 1962 that 1200 acres has been drastically reduced to 800 acres, and one island. Refer Maori Land Court document A, judge Seamnet, March 1895, Pg 2 ..
After 98 years we are left with mismanagement by the Land Court, and the Maori Trustee. As a result we are left with much run down block of land, no finance, and arrears in rates and rent.
We are capable of_ managing this block, but feel as Trustees acting on Behalf of the owners, we are severely disadvantaged.
We ~ook forward to an early -response.
Yours faithfully
Tuiringa Mokomoko CHAIRMAN
