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NGATI WHATUA: AN OVERVIEW HISTORY

September, 2010

E. Subasic and D. Armstrong

TABLE OF CONTENTS

INTRODUCTION 1

Methodology and Approach 1

Chapter Outline 2

The Authors 4

Executive Summary 5

1. THE ORIGINS OF NGATI WHATUA 16

2. THE EARLY NINETEENTH CENTURY 21

War with Ngapuhi 21

Ngati Whatua’s Early Contact with Europeans 27

3. ‘WHAT IS THE WIND THAT SOFTLY BLOWS’: THE ARRIVAL OF THE CROWN 34

Background to the Treaty 34

Signing the Treaty 38

‘Ratifying the Treaty’: The Gifting of Auckland 43

4. POLITICAL AND ECONOMIC DEVELOPMENTS: 1840-1865 56

Economy 56

‘Collateral’ Advantages: Schools and Hospitals 59

Politics, Law and Order 61

Grey’s First Governorship 78

Economic, Social and Political Decline, 1856-1860 87

The Kohimarama Conference 95

The Mangakahia War 104

‘New Institutions’ 106

Retrenchment and ‘Self-Reliance’ 111

War in the Waikato and Ngati Whatua 113

5. OLD LAND CLAIMS AND PRE-EMPTIVE WAIVERS 118

Old Land Claims 119

The Land Claims Commission 120

Pre-emptive Waiver Claims 128

The October 1844 Proclamation 134

Grey’s Approach to Pre-Emption Waiver Claims 140

Pre-emptive Waiver Claims: The Matson and Bell Commissions 151

6. ‘SINCERITY, JUSTICE AND GOOD FAITH’: CROWN LAND PURCHASE, 1840-1865 156

Crown Policy Development 156

Crown Purchases, 1841-1848 160

Mahurangi 165

Crown Purchases, 1848-1853 177

Crown Purchases, 1854-c1865 180

The ‘Tenths’ 188

7. NGATI WHATUA AND THE NATIVE LAND COURT 195

The Native Land Act 1862 197

The 1864 Kaipara Court 199

The Native Lands Act 1865 202

‘A Disaster for Maori’: The Native Land Act 1873 208

8. NGATI WHATUA LAND AFTER 1865 212

The Calm Before the Storm: 1865-1869 212

Vogel’s Immigration and Public Works Scheme 214

‘Death is There’: The Native Land Court and Crown and Private Purchasing From 1869 216

Private land Purchases 225

9. NGATI WHATUA AND THE CROWN, 1865-1900 230

Ngati Whatua and the Crown, 1865-1871 231

Ngati Whatua and the Crown, 1871-1900 238

10. ‘LONG DEFERRED PROSPERITY’: NGATI WHATUA IN THE TWENTIETH CENTURY 254

The Maori Councils Act 1900 254

Maori Land Administration Act 1900 256

Consolidation, Land Development and Ngati Whatua, 1920-1945 265

World War II and Beyond 268

The Myers Commission, 1948 270

The Taitokerau Trust Board 273

Te Runanga o Ngati Whatua 274

TABLES 285

Pre-Emptive Waiver Certificates Issued for Ngati Whatua Lands March-October 1844 285

Pre-Emptive Waiver Transactions, Auckland 285

Land transferred by Ngati Whatua between 1848 and 1853 288

Crown land purchases in Northern and Southern Kaipara, 1854-1860 289

Crown purchases Mahurangi/Tamaki 1854-1865 291

SELECTED BIBLIOGRAPHY 293

ANNOTATED BIBLIOGRAPHY OF MAIN SOURCES 297

MAPS

MAP 1. NGATI WHATUA ROHE 20

MAP 2. HAPU AREAS OF INTEREST 33

MAP 3. NGATI WHATUA’S OCTOBER 1840 GIFT TO THE CROWN, WAITEMATA 53

MAP 4. MAHURANGI 167

INTRODUCTION

METHODOLOGY AND APPROACH

This report is a distillation of the many research reports, Tribunal Reports and other material prepared in connection with Kaipara, Te Roroa, Orakei, Northland  and other claims within or touching on the Ngati Whatua rohe  This material runs to thousands of pages of text and supporting papers. The purpose of this report is to provide an accessible ‘overview’ narrative based on this voluminous material which will support Te Runanga o Ngati Whatua in their pending claim settlement negotiations with the Crown, particularly negotiations in respect of an agreed Historical Account and Crown acknowledgements. Given the nature of our brief and the quantity and quality of existing research on the relationship between Ngati Whatua and the Crown (especially the work of Bruce Stirling and Phillipa Wyatt), the authors have not undertaken a great deal of archival research, apart from the more accessible primary material, including the Appendices to the Journals of the House of Representatives, Great Britain Parliamentary Papers, New Zealand Statutes, Hansard, and the Raupatu Document Bank. A number of files at Archives New Zealand (Wellington and Auckland) have also been examined in connection with the formation of Te Runanga o Ngati Whatua in 1988. These are listed in the bibliography. 

Given that the Runanga o Ngati Whatua is an overarching iwi-wide Ngati Whatua organisation, this report takes a broad approach, emphasising the impact of Crown actions since 1840 on Ngati Whatua as a whole. This also conforms with the Runanga Statement of Claim (Wai 303). What follows is therefore not a ‘summary’ of the existing material. Such a summary would simply repeat what we already know. Rather, this report takes a step back from the detail of specific claims and land blocks and seeks to set out the ‘global’ or broader Ngati Whatua experience. One advantage of this approach is that wider and fundamental issues relating to the political engagement between the Crown and Ngati Whatua as a whole may be traversed in a manner perhaps not possible within the context of more local claim settlements. It is also appropriate that a broad approach is taken by the Runanga o Ngati Whatua which is, in many respects, a successor of the Orakei Parliaments and other broadly-based Ngati Whatua political organisations which were active in the later decades of the nineteenth century. 

This report is written from a Ngati Whatua perspective. Although we have addressed conflicting interpretations of the history, we have not relitigated in any great detail the major historiographical debates which occurred during the Kaipara and other hearings. A resolution of contested historical issues is instead left for the negotiation process, with this report hopefully providing the Ngati Whatua negotiators with a sound basis on which to put their case. 

Some maps have been included in the body of the report to assist readers. A further much more extensive series of maps, illustrating the major means of land alienation within the Ngati Whatua rohe over time in greater detail, have been prepared in a separate ‘map-book’ by Moira Jackson. Ms Jackson’s maps should be used in conjunction with this report. 

CHAPTER OUTLINE

The report is divided into 10 parts. Part 1 sets the scene with a brief summary of the origins of Ngati Whatua.  Part 2 considers the period between c1800-1840, particularly the impact of inter-tribal warfare and how this shaped Ngati Whatua political strategies from the late 1830s onwards, particularly in relation to settlers and the Crown in 1840.

Part 3 discusses the arrival of the Crown in New Zealand, focusing on seminal moments in the growing relationship between Ngati Whatua and the Crown, notably the signing of the Treaty of Waitangi and crucially, Ngati Whatua’s invitation to the Crown to settle and establish the colonial capital on the shores of the Waitemata in the hope of establishing a positive and a mutually beneficial partnership.

Part 4 examines the political relationship between Ngati Whatua and the Crown between 1840 and 1865. During this period the parties, for the most part, enjoyed a largely positive relationship. Ngati Whatua experienced an economic boom during much of this period through trade with the growing settlement of Auckland, and some attempts were made by the Crown to include Ngati Whatua in decision-making and the colonial justice system. The 1860 Kohimarama conference provided a further opportunity for Ngati Whatua to confirm and renew its commitment to maintaining a positive relationship with the Crown, and the Crown appeared to have at least partly reciprocated through the introduction of the New Institutions promulgated by Governor Grey.

Part 5 considers an important feature of the relationship between Ngati Whatua and the Crown in the 1840s – the Old Land Claims and pre-emptive waiver claims. The Crown’s temporary waiving of pre-emption in 1844 was initially welcomed by Ngati Whatua, but in the long term the pre-emption waiver claims would have seriously adverse consequences for Ngati Whatua.

Part 6 focuses on land transactions during the period 1840-1865 when the Crown had a monopoly on land purchase (pre-emption). During this period the majority of land in Tamaki Makaurau and Mahurangi passed out of Ngati Whatua hands, as well as hundreds of thousands acres in the Kaipara and Whangarei. 

Part 7 discusses the introduction of the Native Land Court and its impact on Ngati Whatua. The chapter contrasts the Ngati Whatua experience of the Native Land Courts set up by the 1862 and 1865 Native Land Acts, and describes the negative consequences for the iwi after 1865. 

Part 8 outlines the sale of Ngati Whatua land after 1865. In the early 1870s Ngati Whatua suffered a further considerable erosion of their land base resulting in increasing prejudice to the iwi, which even the Crown itself recognised. Despite this, the Crown and third parties continued to acquire Ngati Whatua land.

Part 9 provides a general overview of the political relationship between Ngati Whatua and the Crown between 1865 and 1900, and the Ngati Whatua response to the calamitous introduction of the Native Land Court and large-scale Crown purchase. This relationship steadily deteriorated from 1865 onwards within the context of land loss and Ngati Whatua’s political marginalisation, even though the iwi to maintain and rekindle a positive relationship with the Crown they had once enjoyed. By the 1880s, however, it was clear to Ngati Whatua that they had been politically marginalised by the Crown, and they sought to organise their own parliaments throughout the late 1870s and 1880s at Orakei and other places. Later the iwi participated in the pan-Maori Kotahitanga movement. 

Part 10 briefly traverses key developments in the twentieth century, with a focus on land administration. The section begins by considering political developments from 1900, partly resulting from pressure exerted by Kotahitanga, and then considers the impact of consolidation and land development schemes in Kaipara, and the Crown’s continued acquisition of Ngati Whatua lands, even though the tribal land base had been severely compromised by this time. The chapter concludes with a discussion of Ngati Whatua aspirations for political autonomy in the immediate post-war period, and circumstances surrounding the formation of the Runanga o Ngati Whatua in 1989.  

THE AUTHORS

Evald Subasic obtained a BA Hons. (First Class) degree in history from Victoria University of Wellington, and has been working in the Treaty research field since 2003, when he was employed as a researcher by the Crown Forestry Rental Trust. Since 2005 Mr Subasic has worked as an independent historian. He has researched and written reports for the Central North Island, Northland, and East Coast District Waitangi Tribunal Inquiries.

David A. Armstrong has a BA (Hons) degree in History (1984) and a Bachelor of Laws degree (2007), both from Victoria University. Between 1988 and 1993 Mr Armstrong worked for the Crown Law Office as a contract historian. During that time he researched and wrote a number of historical reports in connection with the Ngai Tahu, Te Roroa, Muriwhenua and Te Whanganui-a-Tara (Wellington) claims. Between 1993 and 2004 Mr Armstrong worked variously as Research Director and Research Manager for the Crown Forestry Rental Trust, and as an independent researcher. Since 2005 Mr Armstrong have been a Director of HistoryWorks, a private Wellington-based research company. During the period 1993-2008 Mr Armstrong prepared a number of historical reports on behalf claimants in connection with the Chatham Islands (Rekohu/Te Wharekauri), Central North Island, Bay of Plenty, Te Tau Ihu (northern South Island), Rangitikei, Kaipara and Northland claims. 

EXECUTIVE SUMMARY

The early part of the nineteenth century was a time of turmoil and destructive warfare. Ngati Whatua suffered a catastrophic defeat at the hands of a musket-armed Ngapuhi taua at Te Ika-a-Ranganui in 1825. For many Ngati Whatua this resulted in temporary exile. But Ngati Whatua did not abandon their rohe altogether, and cemented a military alliance with Waikato which allowed them to reoccupy most their rohe by 1835. 

Despite a reassertion of rights within their rohe, Ngati Whatua were aware that their future prosperity depended on having regular access to European trade and technology, and ultimately by securing permanent European settlement. From 1835 Ngati Whatua made efforts to foster settlement in their rohe, and entered into a number of land transactions with Europeans. While these efforts brought some success in terms of trading opportunities, the limited nature of this engagement did not satisfy their wider ambitions. An opportunity to rectify this would provide itself in early 1840, with the arrival of the Queen’s representative. 

The arrival of the Crown in New Zealand in 1840 heralded a sea-change for Ngati Whatua and heralded what appeared to be immense opportunities. Following two tumultuous decades Ngati Whatua were looking for avenues through which to strengthen the tribe’s position in its rohe and ensure its future. The arrival of the Crown appeared to present such an opportunity. 

Ngati Whatua actively sought to bring the Crown and settlers into their midst by offering land at Waitemata. The Crown was receptive to Ngati Whatua overtures. A relationship between Ngati Whatua and the Crown was ‘officially’ recognised and confirmed at Manukau in March 1840, when three leading Ngati Whatua rangatira signed the Treaty of Waitangi. At first Ngati Whatua were reluctant to accede to the Treaty, and did so only after Crown officials offered assurances of European settlement and promises that Ngati Whatua laws, customs and taonga (including land and resources) would remain sacrosanct. This March 1840 agreement was consummated in September 1840, when Ngati Whatua gifted a 3,500 acre block on the shores of the Waitemata as a site for the new capital. 

While the Treaty of Waitangi set out the broad political context of the relationship between the Crown and Ngati Whatua, this agreement was given the necessary local shape and meaning by the subsequent gift of land at Waitemata. This gift was a tuku whenua conducted within customary Ngati Whatua terms. It bound the parties in a manner which accorded with Ngati Whatua law and tikanga, imposing definite obligations on each side. Ngati Whatua would support the Crown and settlers and make land and resources available for them. In exchange the iwi would gain a range of long-desired material and other advantages. For Ngati Whatua the September agreement, ratified on their land in the presence of the chiefs and people, was the key event. 

It has been suggested that Ngati Whatua were little more than refugees in 1840, fearful for their very existence and desperate to obtain the Crown’s protection at virtually any cost. This is not correct. Ngati Whatua already had powerful allies, and the protection the Crown was able to afford in 1840 was minimal at best. It was more a case of Ngati Whatua protecting the Crown. Moreover, Ngati Whatua had to be persuaded to sign the Treaty. This does not suggest that they felt themselves to be powerless and lacking in choices. The choices they made in March and September 1840 were based not on a need to ensure their immediate physical survival, but were based on an assessment of the tribe’s long-term interests and their desire to participate in the new world of Pakeha trade and technology. The relationship they had entered into was, for them, based not on subservience and weakness but rather on reciprocity and partnership. Ngati Whatua had clear ideas about the economic, social and political advantages they expected to derive from their compact with the Crown. 

Ngati Whatua experienced some economic advantages in the years after 1840, for a time enjoying a brisk trade with the developing town of Auckland. For the Crown, however, a political relationship with Ngati Whatua was based on expediency. The growing influx of settlers throughout the 1840s and 1850s meant that the balance of power inexorably shifted in favour of the Crown. The Crown’s commitment to maintaining its relationship with Ngati Whatua lessened visibly. Settler interests always took priority over Ngati Whatua interests. The benefits that Ngati Whatua expected from their relationship with the Crown, including educational and medical facilities, improved infrastructure, commercial opportunities and participation in the government, failed to materialise in a real or lasting sense. 

Despite this Ngati Whatua, although somewhat disillusioned, remained committed to building a positive relationship with the Crown. The Crown in turn appeared to offer solutions for Maori power sharing in the early 1860s, as exemplified by the Kohimarama conference and Grey’s New Institutions. At Kohimarama in 1860 Governor Gore Browne and Native Secretary Donald McLean had, among other things, promised that annual hui would be convened, providing an opportunity for the chiefs to participate in government. This proposal was rejected by Grey a few months later. Instead he moved to set up a system of District Runanga (New Institutions) which would give a measure of local control to iwi, including Ngati Whatua. This proved a short-lived experiment which was discarded after the Crown defeated the Kingitanga and assumed a more muscular approach to race relations.  

With the onset of the war in the Waikato the Ngati Whatua position, especially in Auckland, became precarious. Ngati Whatua, however, remained committed to their chosen path of partnership. The manner in which the Crown dealt with old land claims and pre-emptive waivers further strained the relationship, and revealed more starkly that the Crown was not genuinely with protecting Ngati Whatua interests. 

Old land claims were transactions entered into between Ngati Whatua and settlers prior to the Treaty. The Crown set up a process to investigate the validity of these transactions. If they were upheld a maximum grant of 2,560 acres would be made to the claimant. The Crown retained the balance, which became Crown ‘surplus land’. The iwi had entered into these transactions in order to obtain the benefits of European settlement. These land transfers were in the nature of customary tuku whenua arrangements, conferring on-going rights and imposing responsibilities on both parties. If this reciprocity was not maintained for whatever reason the land would revert to Ngati Whatua. The old land claims process subverted these arrangements by cutting across the relationships Ngati Whatua had tried to build with settlers and imposing a new form of land tenure. In many cases Crown surplus lands remained unoccupied, thwarting Ngati Whatua objectives.  

During 1843 and 1844 Governor FitzRoy abandoned the Crown’s right of pre-emption and permitted settlers to deal directly with Ngati Whatua. Conditions were imposed, however. Sales were not to be permitted if the vendors did not possess sufficient other land, and ten percent of all purchases would be set aside for Maori purposes. 

The old land claims and pre-emptive waiver claims had a negative impact on the iwi’s land base. Ngati Whatua’s role in the various investigations involving old land claims and waiver claims was reduced to confirming information recorded in the deeds. Ngati Whatua understanding of the nature of these transactions was not considered. No serious effort was made to ensure that the lands involved were alienated by the rightful owners or that the vendors had sufficient other lands for their present or future use. Furthermore, the Crown’s decision to abandon the plan of reserving tenths from the waiver purchases, and the application of its surplus land policy in respect of both the old land claims and the pre-emptive waiver claims, combined to deprive Ngati Whatua of some of their most valuable lands, especially in the urban and suburban areas of Auckland. The adverse impact of this loss proved serious and the consequences were far reaching. 

Between 1840-1865 Ngati Whatua also participated in a number of significant land transactions with the Crown. The tribe believed that through these arrangements they would achieve a substantial range of material and other advantages. The Crown itself fostered this view, telling the tribe that the sums received in the first instance were akin to a ‘down-payment’. The ‘real’  rewards would come later in the form of collateral advantages. These undertakings became an explicit and important element in Crown land purchase policy right up until the 1870s. In this sense there appeared to be a meeting of the minds between Ngati Whatua and the Crown. For Ngati Whatua land transfers were a means of cementing their relationship with the Crown and settlers, and they looked forward to a long-term relationship based on reciprocity and mutual advantage. Crown promises reinforced a Ngati Whatua impression that these land transfers were conditional, and reflected features of their own traditional land transfer practices. 

Ngati Whatua transferred a significant amount of land in the Kaipara. They did this in order to create new markets and outlets for their produce within the context of their increasing exclusion from the settler-dominated Auckland market. Promises of future benefit were made by the Crown and accepted in good faith by Ngati Whatua. 

Land transactions within the Ngati Whatua rohe between 1840-1865 were generally conducted by the chiefs and reflected a collective tribal consensus. These were tribal dealings, designed to ensure the future prosperity of the iwi. It is certainly not the case that Ngati Whatua or their chiefs were profligate land sellers careless of the future. 

This form of tribal control stands in stark contrast to the position after 1865. Individualisation of title brought about by a succession of Native Land Acts, and effected through the Native Land Court, severely eroded tribal structures and community control. Ngati Whatua were exposed to a free market in land where individual tribal members – often heavily indebted – proved easy prey for Crown and private purchasers. 

Not all land transactions between Ngati Whatua and the Crown in the pre-1865 period proceeded smoothly. The Crown’s muddled purchase processes, often characterised by the failure to investigate the nature of complex and overlapping non-exclusive Maori interests, and further confounded by a lack of surveys and confusion over boundaries, either deprived Ngati Whatua of lands or limited their meaningful participation in negotiations. This was perhaps most glaring in the Crown’s infamous Mahurangi purchase. This vast tract was first acquired from other iwi, and Ngati Whatua were presented with a fait accompli. The land had been sold, according to the Crown, and the best the iwi could hope for was to have their interests acknowledged in the form of a small payment and a few reserves.

Very few reserves were made during the pre-1865 purchases, and some reserves that were created were subsequently sold. This was not considered to be problematic at the time, as Ngati Whatua were thought to retain substantial areas of land. But it would certainly become problematic if the Crown continued to acquire land on a large scale. A fresh burst of Crown and private land purchasing took place within the Ngati Whatua rohe after 1865, particularly after 1870 in connection with the Vogel public works programme, which was based on the massive acquisition of Maori land for settlement purposes. 

The Crown’s failure to protect what remained of the Ngati Whatua land base after 1865 was bad enough in itself, but it also undermined the integrity of pre-1865 land transfers as the terms which had been agreed (on-going advantage to Ngati Whatua and their participation in the economic development of their districts) were rendered largely incapable of achievement. 

Settlers were less interested in partnership and reciprocity than establishing their own economic independence, and the Crown’s objective was always to advance the interests of settlement. An increasingly precarious Ngati Whatua position was exacerbated by periodic economic downturns, forcing many to rely on finite extractive industries, such as gum and timber. It is not sufficient to say that the Crown was not obliged to ensure Ngati Whatua economic success, or that the Crown lacked the resources to do more. The Crown had made promises when acquiring land, with the result that Ngati Whatua had received minimal payments in the expectation of partnership and future prosperity. Ngati Whatua were, in effect, massively subsidising the development of the colony. 

While it could not guarantee Ngati Whatua economic success, at the very least the Crown should not have hindered or eliminated opportunities for Ngati Whatua economic advancement by continuing to purchase land. Massive land purchase nevertheless went on without regard for the iwi’s future. The Crown only became concerned with Ngati Whatua landlessness and poverty when it seemed they might become a burden on the state.  

The Native Land Act 1865 was passed without consultation with Ngati Whatua (or any other Maori). This Act differed significantly from the land title adjudication models proposed at the Kohimarama Conference in 1860, Grey’s Runanga, and the Native Land Act 1862. These earlier models had envisaged a high level of Maori agency and community control, and the 1862 Act, trialled in the Kaipara district, proved reasonably successful from a Ngati Whatua perspective. 

By late-1864, in the aftermath of the defeat of Waikato, the Crown became less sensitive to Maori opinion and no longer felt the need to provide a meaningful role for Maori in the land title adjudication process. The form of individualisation introduced in 1865 did not permit collective decision-making or Maori control of the alienation process.  For Ngati Whatua this was to prove almost fatal to their tribal structures, their political organisation and their ability to manage land alienation and settlement within their rohe. The Native Land Act 1873 elevated individualisation to a new level. Instead of determining a tribal title and then leaving it to the people to decide what the next step might be – sale, lease or retention – the Native Land Acts ensured that individual Maori would receive land titles which had no other utility than for the purposes of alienation. 

After 1865 was always possible for Crown and private land purchasers to identify indebted or vulnerable Ngati Whatua individuals who could be induced to make an application to the adversarial ‘winner-take-all’ Native Land Court. No longer were such people exposed to tribal sanction or control. This set in train an expensive and disruptive Land Court process which all were required to join, resulting almost inevitably in the alienation of all or much of the land. Even if a sale did not immediately occur Maori land tenure was transformed in a manner which made later alienation a virtual certainty. 

From around 1870 hundreds of thousands of acres within the Ngati Whatua rohe were acquired by Crown agents. These agents were instructed to acquire as much land as possible as quickly as possible at the cheapest price possible. Many of the methods they used were questionable at best. Under this pressure Ngati Whatua were unable to maintain a collective or tribally-based approach to land dealings, and there was no possibility of managing land and resources in a manner which would advance collective interests. In a real sense 1870 marked the beginning of a steep downward trajectory for the iwi, not only in an economic sense, but also politically. 

Ngati Whatua did not, however, assume the role of passive victims. Tribal representatives continually and consistently protested against measures which were clearly inflicting serious damage on their tribal structures and economic prospects, and they sought the abolition of the Native Land Court or reforms which would ameliorate its worst aspects. 

Many Ngati Whatua rangatira realised that without an effective voice in the government little could be done to arrest the assault on their land and tribal organisation. The political relationship between Ngati Whatua and the Crown had indeed continued to steadily deteriorate. A form of Maori Parliamentary representation had been introduced in 1867, but this provided for only four Maori members. They were heavily outnumbered in the settler-dominated Parliament and, as Ngati Whatua immediately realised, could achieve very little. In addition, the Member for Northern Maori represented the whole district from Auckland to the North Cape, including a number of iwi. 

From the 1870s it was becoming obvious to Ngati Whatua that as they were being largely ignored by the Crown they needed to develop their own political organisations. The resulting Orakei parliaments played a significant role in crystallising Ngati Whatua political thought, and as a forum through which they repeatedly (and unsuccessfully) tried to engage with the colonial government. Ngati Whatua also developed links with other iwi, which would make it possible for the Kotahitanga movement to gain prominence in the last decade of the nineteenth century. 

Ngati Whatua fully supported the Kotahitanga movement. Although the movement did not achieve its stated aim – full recognition of a Maori parliament empowered to legislate for Maori – it did gain some concessions from the Government in the form of twin legislation passed in 1900. These measures (the Maori Councils Act and the Maori Land Administration Act) purported to give Ngati Whatua and other Maori a degree of control over their lands and affairs not seen since the early 1860s. On this basis Ngati Whatua were persuaded to abandon the Kotahitanga movement. 

Both the 1900 measures ultimately proved disappointing. The narrowly focused Maori Councils Act did not satisfy Ngati Whatua political desires, while the Maori Land Administration Act was soon reworked to suit settler interests. By 1909 protective mechanisms had been stripped away, and land purchase recommenced in spite of the recommendations of the Stout/Ngata Commission. 

Government attempts in the late-1920s and early-1930s to introduce land title consolidation and land development schemes also proved unsuccessful. Ngati Whatua’s land base was by this time too small for the development schemes to work. The Government eventually abandoned the schemes without providing Ngati Whatua with any alternative means of improving their position. At the same time the Crown continued to acquire Ngati Whatua land, and carried on doing so up until 1960, even though it was aware that the iwi were virtually landless.

Ngati Whatua made an effective contribution during World War II. This was and important manifestation of their Treaty partnership. The highly successful Maori War Effort Organisation, brought to life largely through the efforts of the Ngati Whatua Northern Maori MHR P. K. Paikea, showed what Maori could do when they were fully supported. The MWEO was seen by Ngati Whatua and other Maori as the basis of a post-war autonomous organisation which would address vital economic and social issues, replacing the moribund, oppressive and out of touch Native Department. But just as it had always done, the Crown subverted and stymied this Maori initiative. Assimilation and control of Maori remained the dominant Crown ethos. 

Ngati Whatua failed to gain a satisfactory resolution of their long-standing grievances over surplus lands through the Myers Commission in 1948. The Taitokerau Trust Board, was set up to administer such compensation as was forthcoming, did not provide them with an effective avenue through which to seek further remedies or express their long-held economic and political aspirations. 

The disestablishment of the old Maori Affairs Department in the late-1980s and the devolution of many of its service delivery functions to iwi organisations held out a further promise that Ngati Whatua might achieve some significant autonomy within their rohe. Te Runanga o Ngati Whatua (TRoNW) was established as an overarching Ngati Whatua iwi authority, and was expected to take over a significant degree of service delivery to iwi members. TRoNW was, however, constituted as a Trust Board under the Maori Trust Boards Act 1955. This Act was in many respects restrictive, and TRoNW was not able to exercise any independent authority in its own right. A lack of funding and support severely limited the effectiveness of TRoNW in its early years. 

In 1991 the National Government repealed the Iwi Runanga Act and introduced ‘mainstreaming’, but the Te Runanga o Ngati Whatua Act remained in place. In many respects TRoNW found itself in something of a legal ‘limbo’. It remained the only statutorily recognised body representing the whole of Ngati Whatua, but now competed with other organisations (including other Ngati Whatua bodies) for service delivery contracts. An opportunity to achieve Ngati Whatua Kotahitanga – a key aim of the Runanga – was once again deferred. Nevertheless, TRoNW has had some successes. It is heavily involved in the delivery of educational and other services to iwi members, and more recently it filed the Ngati Whatua iwi-wide Wai 303 claim. Despite this Ngati Whatua have yet to attain the partnership promised to them in 1840.     

The Ngati Whatua case, in its most fundamental aspects, is easily stated. Essentially, Ngati Whatua sought from 1840 to engage with the Crown and settlers and forge a relationship based on partnership, equality, reciprocity and mutual advantage. Ngati Whatua were prepared to transfer land and access to resources in order to encourage settlement and nurture the political and economic relationships they sought. The Crown, however, almost invariably developed and applied its policies in a manner which seriously disadvantaged the iwi and served the interests of European settlers. 

The tribe was, from 1840, exposed to (and bore the brunt of) every mechanism of land alienation: Old land claims, pre-emption waivers, raupatu, Crown purchase, the Native Land Court and a plethora of means by which land was compulsorily acquired for public works, scenery preservation and a host of other purposes. As each decade passed their ability to engage with the Crown and settlers in any meaningful way was further diminished. 

By the turn of the nineteenth century Ngati Whatua were economically, politically and socially marginalised, and their tribal structures had been dealt an almost fatal blow. Pauperisation, rather then partnership, was the predominant Ngati Whatua experience. Such ameliorative measures which were effected by the Crown, principally in the twentieth century, came too late and were too little. 

Ngati Whatua were not mere passive victims of Crown policies and processes. They consistently sought to give expression to their own aspirations within the context of their Treaty partnership as they understood it, and the more particular and specific compact they thought they had established with the Crown, sealed by their September 1840 gift of land for the new colonial capital. Positive alternatives were often put forward by Ngati Whatua sponsored pan-iwi movements, such as the Orakei parliaments, and at the 1860 Kohimarama Conference, but were almost invariably rejected or ignored by the Crown. It is notable that at all times the iwi sought to work within the law and within the terms of their partnership with the Crown.

1. THE ORIGINS OF NGATI WHATUA

The confederation of hapu and iwi known today as Ngati Whatua had its genesis in the far north (Muriwhenua). The tupuna of Ngati Whatua made their way south, over many generations, establishing settlements along the way.  The rohe of Ngati Whatua which eventually took shape as a result of these migrations stretched from the area south of Hokianga to present-day Auckland (Tamaki Makaurau or Tamaki). The boundaries are currently expressed as Tamaki ki Maunganui i te Tai Hauauru, and Tamaki ki Manaia i te Rawhiti. The northern boundary is Manaia titiro ki Whatitiri, titiro ki Tutamoe, Tutamoe titiro ki Maunganui. The southern boundary Te Awa o Tamaki.  The Ngati Whatua rohe was rich in natural resources. Much of the land was heavily forested, and was linked by an extensive system of waterways and portages. Ngati Whatua have maintained their relationship and customary associations with their rohe and its resources until the present day. 

During the establishment of their current rohe Ngati Whatua did not exterminate or completely drive off those iwi they found in occupation of the whenua. In many cases the iwi already in occupation of the land were defeated in battle. Ngati Whatua intermarried with those they defeated, thus ensuring that they assumed tangata whenua status in accordance with tikanga. 

The Ngati Whatua rohe is not exclusive. A number of other iwi and hapu (including Te Parawhau, Te Kawerau a Maki, Ngati Paoa, Waikato/Tainui and Hauraki/Marutuahu tribes) also claim rights in this region. Although their relationship with these tribes was often characterised by conflict, Ngati Whatua developed whakapapa connections and long-standing relationships with many of these iwi. This customary reality resulted in a complex of overlapping and intersecting customary rights and interests not easily defined in western terms or by lines on maps. 

The names Ngati Whatua or Ngati Whatua-whanui refer to a broad confederation of tribes, including Te Roroa, Te Uri-o-Hau, Te Tao U, Te Uringutu and Nga Oho. Each tribe is affiliated with a number of waka, but all are linked to the Mahuhu-ki-te-rangi waka, captained by either Whakatau or his son Rongomai.  The Ngati Whatua tribes also share descent from the ancient tupuna Tuputupuwhenua (also sometimes known as Tumutumuwhenua), who married Tarepo, a Patupaiarehe woman.  Te Roroa believe that Tuputupuwhenua and his people were living on the land when Kupe arrived, and were the earliest occupants of the Waimamaku Valley and Waipoua.  According to southern Ngati Whatua traditions Tuputupuwhenua emerged from the whenua. These shared Ngati Whatua connections are exemplified in the following pepeha:

Ko Pokopoko te taniwha

Ko Rangiriri te rakau whakangautai

Ko Hoeroa te ngaru

Ko Mahuhu ki te Rangi te waka

Ko Rongomai te ariki

Ko Ngati Whatua te iwi

While connected through whakapapa and sharing a common heritage, each Ngati Whatua group historically retained its own identity and independence within its own core territories, and each pursued its own objectives. When faced with external threats the tribes might, however, act in concert and emphasise their shared heritage in order to achieve unity and greater strength. This was particularly evident after the disastrous battle with Ngapuhi at Te Ika-a-Ranganui in 1825. Ngati Whatua were heavily defeated and suffered substantial losses. In the wake of this battle a common Ngati Whatua identity was emphasised as the various constituent iwi sought to strengthen their connections and act in concert to meet the serious Ngapuhi threat.  

Te Roroa are the northernmost section of Ngati Whatua. They were a border hapu with close links to Ngapuhi. Their name means ‘the tall ones’, and dates from the time of the tupuna Manumanu I and his brother Rangitauwawaro. Under Manumanu II, Rongotauma and Toa, Te Roroa extended their influence, occupying the Waimamaku valley, Kaihu, Maunganui and Waipoua.  

Te Uri-o-Hau descend from Haumoewaarangi. This tupuna travelled down the Kaihu valley and northern Wairoa and settled at Pouto, on the northern side of the entrance to Kaipara Harbour. Descendants of the children of Haumoewaarangi and Waiheko – Mawake, Whiti, Rongo, Mauku, Riunga, Weka and Hakiputatomuri – subsequently took control of much of the Kaipara region, partly through the intervention of the legendary warrior tupuna Kawharu, and extended their occupation inland as far as Whangarei, Wellsford and Mangawhai. 

Te Tao U descended from Mawake. The iwi takes its name from circumstances surrounding the death of the female tupuna Toutara, who was killed by a spear thrust to her chest. Te Tao U came to control much of south Kaipara and the Waitakere area. Te Tao U and other sections of Ngati Whatua subsequently defeated the Wai-o-Hua iwi and went on to occupy much of Tamaki Makaurau (Auckland), a highly sought after area (‘the bride sought by a hundred suitors).  Te Tao U intermarried with Wai-o-Hua, and Te Uringutu and Nga Oho are said to be the products of these unions.  Apihai Te Kawau later became ariki of all the Ngati Whatua hapu of Tamaki Makau-Rau, and led them in their dealings with the Crown in 1840.   

Ngati Whatua interests also extended into Mahurangi, where they overlapped, intersected and often came into conflict with Hauraki and other iwi. Marriage alliances and other customary arrangements formed a further complex overlay of rights and interests in this district. The Mahurangi iwi Ngati Rongo were affiliated to Kawerau a Maki, but identified strongly with Ngati Whatua from early times. Arama Karaka Haututu was, for example, generally though of as being Te Uri o Hau. After 1840 the Ngati Rongo chiefs (including Te Hemara Tauhia, Arama Karaka Haututu and Te Kiri) increasingly identified themselves with Ngati Whatua. They found it prudent to associate themselves primarily with Tamaki Makaurau Ngati Whatua, who were forging a close relationship with the Governor and Auckland settlers.

MAP 1. NGATI WHATUA ROHE

2. THE EARLY NINETEENTH CENTURY

WAR WITH NGAPUHI

Towards the end of the eighteenth century conflict between Ngati Whatua and Ngapuhi commenced in the Kaipara region. This conflict led to a decisive victory for Ngati Whatua under the leadership of the great rangatira Murupaenga over their Ngapuhi foes at Moremonui in 1807, in a battle known as Te Kai-a-Karoro (the feast of the seagulls), a reference to the large number of Ngapuhi dead left on the field, including the father, sister and other close relatives of the Ngapuhi chief Hongi Hika.  Although the battle was a resounding success for Ngati Whatua, its consequences would prove devastating for the tribe over the coming decades. A burning Ngapuhi desire for utu would ensure that the two tribes would remain bitterly opposed over the coming years, and the arrival of Pakeha and firearms would ultimately give Ngapuhi the decided advantage in this conflict.

Ngapuhi were already experiencing contact with Europeans early in the nineteenth century, mostly with the crews of whaling ships stopping off in the Bay of Islands for re-supply. From 1814 the Ngapuhi monopoly access to European goods and weapons became a matter of increasing concern for Ngati Whatua, who had no contact with Europeans until August 1820, when Samuel Marsden, who had established the Church Missionary Society mission in the Bay of Islands in 1814, visited the Kaipara, accompanied by Apihai Te Kawau. 

Marsden’s diary reveals the extent to which Ngati Whatua had already experienced the superiority of European arms technology at the hands of Ngapuhi, and that the only solution for them was to gain regular access to Europeans and guns. At Ruarangihaerere Marsden met the brother of the great Ngati Whatua rangatira Te Kawau, who had been wounded in a recent battle with Ngapuhi. Marsden noted that Te Kawau himself 

‘showed great aversion to war; reprobated the conduct of many of his countrymen; stated how much the people of Kiperro [Kaipara] had been destroyed and cut off by war – that they had been fighting for years with the Napooes [Ngapuhi] and the tribes in the Bay of Islands; and that the Napooes were then in the districts of Kiperro, plundering and murdering the inhabitants. I lamented these public calamities, and hoped when more Europeans resided amongst them an end would be put to their mutual contests’. 

On the following day Marsden set out for the sand hills in order to take a view of the western ocean. Along the way he passed

‘a hippah [pah] upon a commanding spot, but the chief told us that it now afforded them no protection against their enemies since firearms had been introduced into New Zealand. He showed us where their enemies had fired upon them in the hippah with balls, and that the distance was too great for them to throw their spears’. 

Marsden also met Murupaenga, who had led Ngati Whatua at Moremonui. The conversation again centred on war with Ngapuhi and the escalating threat that Ngapuhi posed. Marsden recorded that Murupaenga and he

‘talked over the wars between Shunghee’s [Hongi Hika] tribe and his. Moodeepenga [Murupaenga] said that he did not wish to be at war with any tribe, but he was compelled to fight to protect himself and people; a party of Shunghee’s tribe [Ngapuhi] was now plundering and murdering the inhabitants in the district…and he was afraid he should be compelled to appeal to force of arms again’. 

For Ngati Whatua the most pressing need was to secure regular access to Europeans and their technology as a means of ensuring their survival. Ngati Whatua had no contact with Europeans prior to Marsden’s arrival at Kaipara. Te Otene Kikokiko, who was present at the first meeting with Marsden, later described ‘the wonder with which they all beheld a white man for the first time’. Despite that, it also clear that Ngati Whatua understood the necessity of securing a significant European presence in their rohe. Marsden noted that his conversation with Te Kawau did not only relate to the calamites of war, but also to the advantages of agriculture and commerce, subjects upon which, according to Marsden, Ngati Whatua were anxious to gain information. Te Kawau also stated that Waitemata belonged to him, and that he would readily give the timber on it to Europeans, presumably for trade.  Murupaenga also made it clear to Marsden that he desired European presence in the Ngati Whatua rohe. Marsden noted that Murupaenga

‘said there were plenty of fine spars on the banks of the river in his districts if the ships could come for them, which he very much wished. He should also like some Europeans to reside with him for the benefit of his people’. 

Murupaenga reiterated this point when Marsden was taking his leave from Kaipara, when he once more

‘expressed himself much gratified by my coming amongst them, and assured me that if any Europeans should come to Kiperro [Kaipara] to reside there he would protect them and he requested that, if the harbour should be found safe for ships, he might be furnished with colours to hoist as a signal when a ship might appear’.   

The conflicts which were evident during Marsden’s visit escalated in the following years. For a time Ngati Whatua, under the leadership of Murupaenga, managed to hold off the better armed Ngapuhi, and in one incident were able to avenge the desecration of Ngati Rongo graves at Mahurangi by Ngati Wai. 

The turning point came later in 1821, when Hongi Hika and Ngapuhi acquired hundreds of muskets as a result of Hongi’s visit to London and Sydney. By September 1821 Hongi had gathered a large well-armed taua and began to turn his attention to the south. Over the following months Ngapuhi attacked Ngati Maru and Waikato, inflicting heavy losses on them and those Ngati Whatua who had sought shelter with Waikato. Some Ngati Whatua from Tamaki Makaurau sought refuge in the Waitakere hills with Te Kawerau A Maki, and on the west coast around Muriwai.  

By the autumn of 1823 Ngati Whatua had returned to their lands and forged an uneasy truce with Ngapuhi. Between 1823 and 1824 Ngapuhi began their campaigns in the Ureweras, Rotorua and East Cape, inflicting heavy losses and securing victory in each case.  In the meantime Ngati Whatua remained cautious and established a defensive position and large kainga at Okahu in 1824, under the leadership of Te Kawau. In 1824 a party of Te Parawhau (southern Ngapuhi) under the leadership of Tirarau attacked and defeated Ngati Whatua at Mahurangi. In response, Te Kawau led a party of Ngati Whatua and Ngati Tahinga (of Waikato) to Whangarei, where they surprised Te Parawhau and defeated them, taking forty prisoners.  The Te Parawhau defeat required a response from Hongi Hika, and gave him the opportunity to avenge Moremonui.

In late 1825 Hongi Hika, accompanied by other Ngapuhi chiefs including Whareumu, Tirarau and Patuone, led a party of 500 musket-armed warriors against 1,000 Ngati Whatua, who possessed only two muskets. The two sides met at Te Ika-a-Ranganui in central Kaipara. The result was a defeat of catastrophic proportions for Ngati Whatua. Hundreds were killed or captured, and the noise of gunfire and frenzied shouting which accompanied the last doomed Ngati Whatua assault was so great that the battle became known as Te Ra Reo Reo – the day of the voices.  Te Kawau had moved north from Okahu to help his kin, but he was too late to join the battle. The surviving Ngati Whatua scattered and retreated in small parties. Te Uri O Hau retreated north to the Tangihua ranges, Ngati Rongo went to Mahurangi, and the people of South Kaipara went to the Waitakeres, and eventually to Waikato.  Ngati Whatua of Tamaki, under Te Kawau, eventually moved south to the Waikato. 

Kaipara was largely deserted in the years following the battle. In 1832, Joel Polack, a European trader, passed through the region with some Te Parawhau. He observed many deserted kainga, many of which were tapued. Yet Ngati Whatua did not completely abandon the Kaipara at this time. A number of small parties remained and continued to fight Ngapuhi. Murupaenga led one of these groups, which fought Ngapuhi at Mahurangi in 1826, but he was defeated and later killed at Mahurangi. Ngati Whatua were more successful in other encounters. In one of them, Ngati Whatua warriors killed a number of Ngapuhi before retreating back to Mahurangi. A party of Te Mangamata and Te Wai-a-ruhe led by Rewha Rewha, Ohurua and Whaka-oho fought a contingent of Te Parawhau at Otamatea, and apparently killed around seventy of them before retreating back to Waikato. The prominent Ngati Whatua rangatira Te Otene Kikokiko and his party also remained in the Kaipara and engaged in ‘guerrilla’ warfare against Ngapuhi, on one occasion killing two Ngapuhi at Kaukapakapa.  In this manner Ngati Whatua kept their fires burning. 

Ngati Whatua in Waikato, despite the losses they had sustained, also continued to fight against Ngapuhi in alliance with their Waikato hosts. They assisted Waikato in repelling Ngapuhi invasions, and defeating them in a number of encounters. In 1827 Ngati Whatua and Waikato together inflicted heavy losses on their enemies at Tamaki, prompting S. P. Smith to comment that this victory ‘wiped out part of the deep debt of revenge they owed to Nga-Puhi’.  News that Hongi Hika had been wounded in a separate battle in c1828 also encouraged Ngati Whatua, and they accordingly raised a taua, together with Ngati Tipa, and proceeded from the Waikato Heads up the East Coast, where they surprised a Te Parawhau pa on Tawatawhiti Peninsula, taking it with ‘considerable slaughter’ before retreating back to Waikato. In 1832, when Ngapuhi again attacked Waikato, Ngati Whatua once more rendered assistance and the invasion was repulsed. 

While in the Waikato Ngati Whatua also rendered assistance to their hosts in disputes with tribes other then Ngapuhi. In 1834 Ngati Whatua joined with their Waikato hosts against Ngati Paoa after the latter had attacked a Waikato rangatira, and Waikato and Ngati Whatua were victorious at Whakatiwai. It was probably this dispute which necessitated the peace agreement, arranged through a customary gift exchange, between Ngati Whatua and Ngati Paoa in 1836. 

Ngati Whatua returned permanently to their rohe in 1835, accompanied by their Waikato ally Te Wherowhero. The greatly diminished threat from Ngapuhi – caused by the increased balance of power in terms of access to muskets, and the increasing military strength of Waikato – allowed Ngati Whatua to re-establish kainga throughout much of their rohe, with the most important settlements at Mangere, Ihumatao and Okahu now strengthened with defensive pa better adapted to musket fighting.  

Te Wherowhero and his people accompanied Ngati Whatua on their return home, and Ngati Whatua honoured their debt to Waikato for sheltering them in the aftermath of Te Ika-a-Ranganui by tuku rangatira, or traditional gifts of land, to cement and maintain the alliance which had been forged in the war against Ngapuhi. The gift to Waikato included land at Onehunga, Koheraunui (Three Kings), Pukapuka (Orakei), and Omahu (Remuera). Te Wherowhero himself occupied land gifted by Ngati Te Ata at Waiuku, thereby giving a further assurance of protection in the case of any further incursions from Ngapuhi.  Professor Stone describes the nature of these gifts 

‘Any land on the isthmus occupied by Waikato was held (in their opinion) as a tuku or gift to the tribe invited to be there, a gesture of goodwill, a payback to allies for services rendered during the musket wars. But the gift was not to be thought of as outright. Ngati Whatua considered it gave only conditional rights of residence and cultivation. When the land was no longer needed for those things, ownership must revert to themselves as holding the mana whenua’. 

That Ngati Whatua continued to hold mana whenua over these gifted lands is further confirmed by the fact that permission was sought from Te Kawau when some of those blocks were later transferred by Waikato to the Crown. The Waikato/Ngati Whatua alliance was also reinforced by strategic marriages, including the marriage of Te Kawau’s son Te Reweti and a Waikato woman. 

Ngati Whatua’s position was further strengthened through an alliance with the Ngapuhi hapu Ngati Hine, whose rangatira Kawiti had sheltered some Ngati Whatua, particularly Te Uri O Hau, at Hokianga in the aftermath of Te Ika-a-Ranganui. Kawiti also sent a rangatira named Mate to act as Ngati Whatua’s protector, and he was gifted land at Kakaraea and Puatahi. Marriages sealed this alliance, with Mate and his people marrying into Ngati Whatua. The current descendants of these unions primarily identify themselves as Ngati Whatua. 

By the late 1830s Ngati Whatua had clearly re-established themselves within much of their rohe. But the aftermath of Te Ika-a-Ranganui was devastating, with Ngati Whatua suffering a significant population decline and temporary exile in Waikato. The Ngati Whatua population, including Te Uri O Hau and possibly some other groups in northern Kaipara, was estimated at around 2,000 in the mid-1840s, about half their estimated population at the close of the eighteenth century.  Yet despite this population loss, Ngati Whatua’s alliance with Waikato, Ngati Paoa and Ngati Hine ensured that their position within their rohe was relatively strong and secure. Ngati Whatua also retained a strong leadership cadre, spearheaded by Te Kawau, Te Otene Kikokiko, Te Keene Tangaroa, Hauraki, Paraone Ngaweke, Te Hemara Tauhia, Tautari, Te Tinana, and Te Kawau’s sons Te Reweti and Te Hira, and his nephews Paora Tuhaere and Wiremu Reweti. But Ngati Whatua remained under threat from powerful neighbours, and they needed to further strengthen their position. For Ngati Whatua access to European trade opportunities and technology remained critical.

NGATI WHATUA’S EARLY CONTACT WITH EUROPEANS

While Ngati Whatua had been well aware of the advantages regular contact with Europeans could provide from the outset, having already identified resources that they possessed which could be of use to Europeans as early as 1820, the disruption brought by warfare with Ngapuhi during the 1820s and early 1830s made such contact difficult. However, with Ngati Whatua re-establishing themselves in their rohe in the second half of the 1830s, the opportunity to develop trading relationships with Europeans became more viable. Such opportunities were far from numerous, but Ngati Whatua nevertheless acted with alacrity whenever an opportunity presented itself. 

The earliest such opportunity arrived in 1833, when the then disgraced ex-missionary William White arrived in Kaipara with a view to timber and other trading. Little is known of his actual activities in the area, but Te Tinana later described White as ‘the first Pakeha that attached himself to me’.  By 1836 White was assisting the Hokianga timber merchant Thomas Mitchell to establish a trading post on Ngati Whatua land at their Manukau kainga, Karangahape, with Te Kawau and Tinana participating in the transaction. This arrangement apparently also allowed Mitchell to settle at Puponga Point and access the timber on nearby land. Timber was being cut in the area before Mitchell died on a trip to Hokianga later in 1836.  Before Mitchell died, however, he entered into an arrangement with Te Kawau, Te Reweti, Te Hira and Paora Tuhaere on behalf of the ‘Manukau and Waitemata Trading Company’ for the settlement of a colony of Scottish emigrants within their rohe. The settlers, however, would not arrive for another five years, and after their arrival it was discovered that both parties held very different understandings of the agreement. 

This was not the only effort made by Ngati Whatua to organise a small-scale settlement in their midst at this time. In December 1836 Ngati Whatua in Kaipara asked White to assist them in further developing settlement in the area. According to White, shortly before he departed New Zealand for England 

‘the chiefs proposed… that I should, if possible, on my arrival in England induce at least a hundred families to go out and settle with them in a body.

“Then”, said they, “we shall have a pah – a place of refuge – and quietly pursue our several avocations, without the various interruptions which occur in the present state of things”; plainly intimating that should such a colony be established wars and rumours of wars would cease’.  

White noted that at this stage Ngati Whatua were seeking only small-scale settlement rather than the large towns planned by the emigration companies such as the New Zealand Association. White also claimed that he had informed Ngati Whatua that their customs and usages would be swept aside if British law was established, and that they had accepted this. But as Stirling notes this seems unlikely, particularly considering the pattern of early relationships between Ngati Whatua and the Crown following the signing of the Treaty of Waitangi, but it is clear that they did seek the advantages of small-scale settlement.  

Although settlement of any kind was slow in coming for Ngati Whatua they continued their efforts to establish and maintain a regular European presence in their midst. Throughout the later 1830s the iwi participated in a number of transactions in Manukau, the North Shore and Mahurangi with timber merchants. In 1837 they made an agreement with the American William Webster, who already had extensive timber operations around the Hauraki Gulf. Although Webster appears to have accessed timber in the area, he did not reside on the land, and eventually on-sold his claim to Hellyer. Thomas Clayton entered into similar arrangements with Ngati Whatua involving land at Waipapa in central Auckland, and across the Waitemata at ‘Konata’ (Takapuna, now known as the North Head), and he was constructing sawpits and clearing timber at the latter place by 1839.  

Clayton was assisted in his transaction by Thomas Maxwell, an early settler in Maraetai who had married into the Ngati Tai people of that district. Ngati Whatua also apparently allocated some land to Maxwell in the upper Waitemata, but Paora Tuhaere later said that he never came to live on it. Maxwell was also involved in transactions between Henry Tayler and Ngati Paoa affecting Ngati Whatua land at Takapuna and Te Weiti, and Tayler found on his arrival that he had to pay Ngati Whatua for the right to occupy land in that area. Maxwell and Ngati Paoa were also involved in another major transaction affecting Ngati Whatua interests – that of Reverend Fairburn over a large area from Otahuhu to Papakura, Maraetai and Wairoa. Although Ngati Whatua were not a party to the initial transaction their land at Otahuhu was certainly included in it, and consequently a payment was made to Te Kawau’s son, Tamaki, in 1839, ostensibly for Ngati Whatua land at Otahuhu, and in acknowledgment that their interests had not been hitherto recognised. Ngati Whatua certainly travelled to Fairburn’s station at Maraetai, but were unlikely to have greatly benefited from his presence, given that he was hosted on the land by Ngai Tai and Ngati Paoa. 

Ngati Whatua also had some experience of missionaries at Kaipara in the form of James Buller, the Wesleyan missionary stationed at Tangiteroria. Although not stationed in Kaipara, by the late 1830s Buller made annual visits to the recently re-established small settlement at Omokoiti. While the missionary’s religious message probably carried strong resonance with a people devastated by war, Ngati Whatua also undoubtedly also saw the missionaries as a point of access to European trade, technology, and ultimately settlement, which would in turn ensure more regular contact with Europeans. From 1839 Buller often recorded the enthusiasm of Ngati Whatua for a missionary to live among them. The best they got, however, was a native teacher and a chapel at Omokoiti.  

Ngati Whatua received their first ‘real’ settlers towards the end of the 1830s in the form of James Honey and George Rex, two English deserters who settled in south Kaipara. They were given land at Kaukapakapa and occupied it as the guests of Te Otene Kikokiko and his wife Maata. They became, like many similar early arrivals in the colony, ‘Pakeha-Maori’. They were incorporated in the community and were permitted to use land and resources, but they were also expected to abide by Maori law. There were some tensions between Ngati Whatua and the two men because of this, including an incident in which they burned a wahi tapu, and as a consequence suffered a muru. Descriptions of the two men in European sources are far from flattering, and they seem to have had an uneasy relationship with Ngati Whatua. But Honey provided a valuable service in transporting European visitors in his leaky boat, and several stayed at his house. Considering this, and Ngati Whatua’s desire for more extensive contact with Europeans, his transgressions were perhaps more readily overlooked by the tribe than they otherwise might have been. 

Summary

The early part of the nineteenth century was a time of turmoil and destructive warfare. Although Ngati Whatua were victorious over their Ngapuhi foes in 1807 at Moremonui, the access to European technology and weapons that Ngapuhi monopolised from 1814, due to their extensive contact with European traders, ultimately had devastating consequences for Ngati Whatua. The major advantage that muskets gave Ngapuhi resulted in a catastrophic defeat for Ngati Whatua at Te Ika-a-Ranganui in 1825, and a temporary exile to the Waikato for many. 

Ngati Whatua did not abandon their rohe altogether, but continued to raid their Ngapuhi foes in a series of guerrilla actions. Ngati Whatua also rendered military assistance to their Waikato hosts and assisted in repulsing Ngapuhi invasions, thus cementing a military alliance which eventually allowed Ngati Whatua to return to their rohe by 1835.

In 1835 Ngati Whatua re-established and re-asserted their mana whenua. This was made possible by their military alliance with Waikato, and the greatly diminished threat from Ngapuhi brought about by their own growing access to muskets. Ngati Whatua strengthened their position by gifting lands to Waikato as a symbol of peace and alliance making.

Yet despite this reassertion of rights within their rohe, Ngati Whatua realised that their future prosperity depended on having regular access to and contact with European trade and technology, and ultimately by securing permanent European settlement. From 1835 Ngati Whatua made efforts to foster settlement in their rohe, and entered into a number of land transactions with Europeans. 

While these efforts brought some success in terms of trading opportunities, for Ngati Whatua the limited nature of this contact did not satisfy their wider ambitions. An opportunity to rectify this would provide itself in early 1840, with the arrival of the Queen’s representative. 

MAP 2. HAPU AREAS OF INTEREST

3. ‘WHAT IS THE WIND THAT SOFTLY BLOWS’: THE ARRIVAL OF THE CROWN

BACKGROUND TO THE TREATY

The arrival of the Crown in January 1840 heralded fundamental change. Ngati Whatua’s relationship with the Crown would become the central focus of their attentions over the coming decades, and the early years of this relationship were characterised by Ngati Whatua’s efforts to mould and develop it into a mutually advantageous one. The relationship between the parties was initiated in March 1840, with the signing of the Treaty of Waitangi, and formalised within a local context in September that year, when Ngati Whatua gifted land at Waitemata to Hobson for the establishment of the new colonial capital. These two interconnected and crucial events are the subject of this chapter. 

Although Ngati Whatua were not present at the original signing of the Treaty of Waitangi  at the Bay of Islands on 6 February 1840, they were well aware that the Crown’s arrival in New Zealand presented them with an opportunity to end their isolation from the focus of Pakeha settlement further to the north, and thereby facilitate the much desired trade and settlement.  As noted in the previous chapter, Ngati Whatua had been aware of the need to ally themselves with Pakeha ever since they perceived the manifold advantages Ngapuhi gained by such links. Despite this realisation, the opportunities for Ngati Whatua to take advantage of relationships with Pakeha had been limited, given the pattern of pre-Treaty Pakeha settlement in New Zealand. The arrival of the Crown on the scene changed this dynamic, and Ngati Whatua sought to maximise the opportunity presented to them.

At some point in early 1840 Ngati Whatua had held a large hui to decide their course of action. An old prophecy by Titahi, a matakite (seer), was recalled by the people who agreed that Titaki had prophesised the arrival of Hobson 

‘He aha te hau e wawa ra, e wawa ra

He tiu, he raki, he tiu, he raki

Nana i a mai te puputara ki uta

E tikina atu e au te koitu

Koia te pou whakairo e tu ki Wai-te-mata

Ka tu ki Wai-te-mata i oku wairangitanga

E tu nei, e tu nei!

What is the wind that softly blows?

Tis the breeze of the north west, the north

That drives on our shore the nautilus.

If I bring from the north

The handsome carved post and place it here in Wai-te-mata

My trance will then be fulfilled’.  

The ‘nautilus’ of the Pakeha had been driven by the wind to New Zealand, and the ‘carved post’, or flag of the Queen, was to be planted among them. As the Waitangi Tribunal observed in its Orakei Report: “[i]t would be consistent with tribal experience had Ngati Whatua interpreted the vision of a seer to determine upon an arrangement with new arrivals from a distant place”. 

The next step taken by Ngati Whatua to bring the Crown to Tamaki Makaurau is a matter of some conjecture. Some decades later Puna Te Reweti related to S. P. Smith how Ngati Whatua acted on the prophecy at some point in 1840, inviting the Crown to live amongst them at Tamaki Makaurau. Te Reweti stated that Ngati Whatua sent messengers to Captain Symonds in the Kaipara inviting him to Waitemata, whence, after staying for some time, an embassy then accompanied him to the Bay of Islands, going by way of Kaipara and Mangakahia. They found the Governor living on board a man-of-war, and after a fortnight’s stay, he brought the ambassadors back in his ship, and anchored off Wai-ariki (Official Bay, Auckland). There they found Te Kawau and the Te Tao U people, who welcomed the Governor. After a time Hobson landed and made a camp, where Fort Britomart later stood, his tents covering the whole of the point. At that time, Horotiu (Commercial Bay), Wai-ariki (Official Bay), Wai-papa (Mechanics’ Bay), Mata-Harehare (St. George’s Bay), and Taurarua (Judge’s Bay) were all covered by kumara and potato cultivations, the whole of the produce of which was presented to the Governor and the settlers as a gift.    

Although, as Stirling notes, Te Reweti’s account was adopted and expanded by historians, the accuracy of his recollections is difficult to verify in the absence of other evidence.  One particular issue is Smith’s placing of these events in February 1840. Donald Loveridge has considered Symonds’ movements in February 1840 in minute detail, and coupling them with various accounts of Hobson’s activities in early 1840, he concluded that the belief that Ngati Whatua visited Hobson in the Bay of Islands in February 1840 was not credible. The more likely scenario is that the deputation referred to by Te Reweti in Smith’s account arrived at the Bay of Islands in late April or early May 1840, after the signing of the Treaty at Manukau.  

Regardless of whether or not a Ngati Whatua deputation had met with Hobson at the Bay of Islands in February 1840, the Governor departed for Tamaki on 21 February 1840. Hobson had already identified the Tamaki and Waitemata district as the preferred site for the capital of New Zealand in early February 1840, probably on the advice of the missionary William Williams.  Upon his arrival at Waitemata Hobson decided it was indeed suitable, and swiftly issued orders for the supply vessel, stationed in the Bay of Islands, ‘to proceed hither immediately – that is, bringing down the wherewithal to establish a township without further delay’.  

Stirling has pointed out that Hobson’s decisiveness perhaps indicates that he had already received Ngati Whatua support for locating the township on their land bordering the Waitemata, but the absence of any reference by officials of meetings with Ngati Whatua is problematic, even if, as Stirling has suggested, this does not necessarily preclude Ngati Whatua agency in Hobson’s speedy arrival at Waitemata and his approval of the district as the intended site for the new capital. 

Ultimately, the most critical point is that Ngati Whatua, through their own agency, sought to bring the Crown into their midst at Waitemata, and that for its part the Crown was willing to accept Ngati Whatua’s invitation. Ngati Whatua rangatira continued to stress this point over the following years and decades. At the Kohimarama conference in 1860, Tinana recalled the events of 1840

‘Do not suppose the Pakeha crept in stealthily. No. Mr. White was the first Pakeha that attached himself to me; after him Captain Symonds arrived. We addressed him thus: “Will you consent to become our friend?” He answered, “Yes”. After this Governor Hobson was driven out of the Bay of Islands. I took hold of him and said, “Will you not become a father to us, that we may be your children?” He then said, “Yes”…The Pakeha did not come here of their own accord, they were invited to come’. 

It is notable that Tinana and Ngati Whatua perceived the Crown to be in a position of need in 1840. The Kaipara rangatira Paikea stated at the Kohimarama conference that at that time he was ‘small and friendless’, as was the Governor.  Paraone Ngawake also stressed the agency of Ngati Whatua in bringing the Crown to Waitemata when he told Governor Grey in April 1862 that ‘Ngati Whatua is the ancestor of the European. We brought the Governor on shore’.  Ngati Whatua’s invitation to Governor Hobson and the Crown was a milestone of fundamental importance. 

SIGNING THE TREATY 

During Hobson’s visit to Waitemata in February 1840 William Symonds, Felton Mathew and the missionary William Williams went to Maraetai to seek signatures for the Treaty, and on 4 March sixteen Ngati Paoa of the western Hauraki Gulf signed the Treaty. By 9 March, Hobson (now back in the Bay of Islands and recovering from a stroke he had suffered earlier that month) had instructed Symonds to proceed to Manukau and Kaipara in order to secure further signatures. Symonds was sent a copy of the Treaty and directed to ‘obtain the adherence of such high chiefs as you can induce to affix their signatures thereto’. He was also told that the Treaty ‘must be fully explained and understood before you allow it to be attested’.  

Although Symonds did not report back to Hobson until 12 May 1840, he had acted swiftly upon receipt of his instructions, and assembled as many Manukau chiefs as he could on short notice. Some of these chiefs included Ngati Whatua. Symonds, whose ability in te reo was limited, was assisted in explaining the Treaty by the missionary James Hamlin (who had been involved in pre-Treaty land dealings with Ngati Whatua and Ngati Paoa at Otahuhu in 1838). The hui was also attended by Rewa, a Ngapuhi chief from Kororareka. He strongly opposed the Treaty and exerted all his influence against Symonds.  Rewa may well have been the rangatira who had visited Ngati Whatua at Takapuna and south Kaipara in 1823 to arrange what turned out to be a short-lived peace, so he was in all likelihood well known to the Ngati Whatua rangatira present at the meeting. He was also married to a relative of Te Wherowhero, and was therefore peripherally linked to Ngati Whatua, so his opinion probably had some influence among them. Rewa’s objections at this hui were not recorded, but he had previously stated at Waitangi that

‘this land is ours, we are the Governor, we the chiefs of this our father’s land, send the man away; do not sign the paper; if you do you will be reduced to the condition of slaves, and be obliged to break stones for the roads. Your land will be taken away from you, and your dignity as chiefs will be destroyed’. 

Symonds claimed to have dispelled many of the doubts which Rewa’s words had created in the minds of rangatira present, but was not able to secure any Ngati Whatua signatures on this occasion. 

Symonds then convened a further meeting on 20 March, which was not only attended by Ngati Whatua but also by rangatira from Waikato, Tauranga and Taupo. Although Symonds reported somewhat over-optimistically on the outcome of the meeting, he did succeed in securing three signatures. Crucially, these signatures were those of three leading Ngati Whatua rangatira – Te Kawau, Te Tinana, and Te Reweti.  It is also notable that Te Wherowhero did not sign the Treaty at this hui. Nor did he sign at subsequent meetings arranged by Symonds in April 1840. The conclusion here is clear – while Ngati Whatua may have formed an alliance with Waikato, that did not have any impact on their own political independence. Ngati Whatua remained an autonomous entity, capable of making their own decisions.

Ngati Whatua did not sign the Treaty without careful thought and some hesitation, and when they did sign their expectations were clear. Symonds indicated in his report on these events that he had

‘I found the best disposition displayed towards Her Majesty’s government, but at the same time that their expectations are raised very high as to the immediate benefits which they are to derive from its establishment in their country; and, if I might presume to offer an opinion, I would suggest, that in order that they might not be disappointed, measures might be adopted to put the chiefs in communication with the government officers to make arrangements for the purchasing of lands, &c’. 

Loveridge has contended that the ‘immediate benefits’ Symonds mentioned in his report referred to the exercise of the Crown’s pre-emptive right under the article 2 of the Treaty. This seems an unduly narrow interpretation of Symonds’ report.  Ngati Whatua had already displayed interest in promoting European settlement in their rohe, and their thinking in 1840 undoubtedly went beyond land transactions and was directed more at what would follow. For Ngati Whatua, European settlement in their midst would permit access to European goods and technology, and presented trade and commercial opportunities which could ensure the future prosperity of the tribe. In this context, it is unreasonable to conclude that Ngati Whatua’s acceptance of the Treaty was based on an understanding that a few land transactions might follow and a few sovereigns would be distributed. Ngati Whatua expectations undoubtedly went beyond that, and it is highly likely that Symonds would have encouraged them in these beliefs. Moreover, by the time of the meetings at Manukau, Symonds was already aware that Tamaki Makaurau was the preferred site for the new capital, and it seems he intimated this to Ngati Whatua, judging by his report quoted above, perhaps in order to further induce them to sign the Treaty. 

In light of this it is difficult to believe that a broader discussion about the impact of moving the capital to Ngati Whatua territory, and the manifold advantages which would accrue to the iwi, did not take place. Indeed, as Stirling has argued, ‘the many other material benefits of the Crown’s presence at Tamaki Makaurau so outweighed the pittance to be gained in land transactions that the first such transaction between Ngati Whatua and the Crown was a tuku rangatira, or gift’.  

Some have argued that the primary reason for Ngati Whatua signing the Treaty was that the arrival of the Crown would mean ‘an end to lawlessness which would by definition mean an end to tribal wars’, and that ‘this peace would now be policed by a central authority with troops and ships at its back’.  Loveridge contends that by signing the Treaty, Ngati Whatua ‘unilaterally cut themselves adrift from Waikato protection against Ngapuhi in favour of the much more comprehensive protection offered by the Crown’, and further claims that ‘the Treaty meant peace and protection: protection of their land and persons from unlawful attack’.  There are several problems with this argument. It is erroneous to suggest that Ngati Whatua severed their alliance with the Waikato by signing the Treaty, since the two iwi, despite some minor disagreements from time to time, actively maintained their relationship throughout the nineteenth century, and indeed still do so up to present day. 

Despite the tribulations that Ngati Whatua had suffered during the 1820s and 1830s, by 1840 they had largely recovered and returned to their lands. With most tribes (including Ngati Whatua) acquiring muskets by the mid-1830s, the military balance of power had been restored. The advent of Christianity, and the extensive alliance-making that Ngati Whatua entered into, primarily with the Waikato, left them in a much stronger and more secure position than Loveridge allows. Furthermore, the Crown went out of its way to gain Ngati Whatua’s assent to the Treaty, and they  had to be persuaded to sign. This indicates that Ngati Whatua were not eager to ally themselves with the Crown at any cost, after the manner of refugees or people fearful of their own existence. This was a positive act based on their own estimation of what was best for the tribe in the long term.

In contrast, it was the Crown that was in a weak position in 1840, and the Governor was unable to offer the kind of physical protection that Loveridge alleges Ngati Whatua sought. Hobson’s civil service consisted of ‘39 genteel officials and their assistants’, and an ‘army’ of 11 drunken and broken down tubercular New South Wales police troopers’.  Throughout the 1840s the entire British armed force in New Zealand amounted to a company of 56 men stationed at Wellington, another company of 78 men in Auckland, and a single warship.  It was this toothlessness that led Governor FitzRoy to bemoan in 1843 that the repeated rejection of applications made by of successive governors for more effective support obliged them to have recourse to a system of 

‘forbearance and conciliation, which… encouraged encroachments, as well as injurious trials of strength, on the part of both races. In the colony an extreme forbearance – arising out of an utter inability to carry out the law efficiently, rather than from real leniency, bordered on inhumanity towards the settlers, and placed the local authorities in a most painful and humiliating position’.  

Under these circumstances the Crown was hardly in a position to offer Ngati Whatua more effective physical protection than Waikato. Furthermore, Loveridge himself has acknowledged elsewhere that Ngati Whatua neither needed nor sought any such protection from the Crown, nor indeed did the Crown offer such protection. 

In fact, for most of the first two decades of Crown presence in New Zealand, it was the Crown that frequently called on Ngati Whatua for such assistance. The Kaipara rangatira Paikea, when recalling the Northern War of 1845-1846, observed: ‘When the Ngapuhi, years ago, wished to fight the Pakeha, he [Paikea] would not open the river to the Ngapuhi; he retained the key’.  At Governor Grey’s farewell ceremony in 1853, Ngati Whatua, describing a threatened Ngati Paoa attack Auckland, described themselves as ‘the people who protect the Europeans’.  When Auckland again appeared threatened in 1860 Ngati Whatua were once more ready to offer their protection to Europeans, assuring them that ‘if any come here to attack our town, we will be ready to die with you’. 

While the Crown was in no position in 1840 to offer physical protection to Ngati Whatua, Hobson, at the Waitangi Treaty signing, sought the assistance of the chiefs in restraining and punishing lawless Europeans resident in New Zealand and ensuring that fair dealing took place between settlers and Maori.  Although there is no record of Symonds’ discussions with Ngati Whatua at Manukau in March 1840, he was acting under instructions from Hobson and most likely emphasised the same points. Willoughby Shortland, acting under similar instructions, told Muriwhenua Maori at Kaitaia that the Governor had been sent

‘to protect them from white men who had latterly come in such numbers to their shores, many of whom being lawless men might injure them – that the Queen would not interfere with their native laws nor customs but would appoint gentlemen to protect them and to prevent them being cheated in the sale of their lands…’. 

Indeed, the same points were made by each official, laying emphasis on benefits which would accrue to Maori, and the preservation of their laws, customs and authority, while at the same time offering them protection from unscrupulous Europeans. As Stirling has pointed out, the Crown did not offer military protection in 1840; rather, it promoted itself as arbitrator in Maori disputes and, with Maori assistance, would ensure harmony between the races by controlling the more unruly European element.  

Seen in this way, the Treaty relationship between Ngati Whatua and the Crown was in effect another development in Ngati Whatua’s strategic alliance-making – a process they had been engaged in since the 1830s. For Ngati Whatua, the emphasis was on creating a mutually beneficial relationship with the Crown which would ensure future prosperity. The Crown, for its part, did not hesitate in confirming this understanding, promising material benefits and commercial opportunities to Ngati Whatua, as well as undertaking a general protective role over Ngati Whatua’s lands, laws, customs and authority in the face of impending European settlement. 

‘RATIFYING THE TREATY’: THE GIFTING OF AUCKLAND

Ngati Whatua’s desire to engage and develop a close relationship with the Crown in order to ensure future prosperity for the tribe was manifested in the Crown’s decision to locate the new capital on Ngati Whatua land at the Waitemata. At the same time the Crown was eager to maintain a close link with Ngati Whatua so as to ensure the survival and ultimate flourishing of the new town. In a real sense this ‘marriage’ was signalled by the signing of the Treaty at Manukau in March 1840; its consummation came in the form of Ngati Whatua’s gift of land at Waitemata.

As already noted, Hobson had shown a preference for Waitemata as the site for the new capital – perhaps even without any urging from Ngati Whatua – and he instructed Surveyor General Felton Mathew to proceed to Waitemata on 9 March 1840 (the same day he instructed Symonds to obtain signatures to the Treaty in the area) to assess the locality.  Mathew apparently did not share Hobson’s enthusiasm for Waitemata and dismissed the idea. He felt that the southern shore of the Waitemata might form a suitable port, and the township might occupy land nearer the Tamaki River. Hobson was reluctant to separate the township from the port, and in fact sailed down to Waitemata in June 1840 to determine the site himself. He returned to the Bay of Islands in July 1840, having decided on the southern shore of Waitemata as the site of what would become the city of Auckland, and left Mathew to lay out the township and make arrangements for labour and materials needed for the initial work. 

Considering the timing of Hobson’s return to the Waitemata, it is highly likely that he met with Ngati Whatua during this visit. He would have already met with Ngati Whatua in the Bay of Islands (regardless of whether their visit was in February or April/May) and discussed their invitation to situate the new capital on their land. Although no record exists of Hobson’s meeting with Ngati Whatua at Waitemata in June or July 1840, as Loveridge has pointed out, it would have been ‘both useful and politic’ for Hobson to meet with them at the time he was making a final selection of town site.  The meeting most likely took place at the Karaka Bay Treaty signing ceremony on 9 July 1840, when a further seven Ngati Paoa rangatira signed. Hobson was accompanied at this meeting by his land purchasing officer, Chief Protector of Aborigines George Clarke snr, who made definite arrangements for acquisition of some Tamaki lands from Ngati Paoa, and who probably also held discussions with Ngati Whatua about the land required for the new capital.  

On 13 September 1840, almost the entire Crown establishment in New Zealand -seven officials and thirty-two artisans and labourers and their families – departed the Bay of Islands for Waitemata. Symonds, by now the Police Magistrate, was instructed by Hobson to be patient and tolerant in his dealings with Maori, and ensure that ‘strict justice be done to the natives as well as the Europeans in every case’.  Hobson also directed Symonds to take possession of the land to be gifted by Ngati Whatua and hoist the British flag, further adding that

‘should any difficulties arise in relation to the occupation of the land about to be formed into a township on the Thames, you will use your utmost exertions to remove all obstructions and treat with the natives for the purpose of satisfying them’.  

Hobson’s instructions clearly tasked Symonds with completing the earlier arrangements with Ngati Whatua. Finalising the arrangements was necessary as the original agreement had been made some months previously, at the time of the Ngati Whatua’s deputation to the Bay of Islands, and while further discussions were probably held in July, customary formalities could not be entered into until the boundaries of the land were walked and Crown officials were present. Hobson’s mention of possible ‘obstructions’ probably reflected his own uncertainty as to whether some other rangatira, or even iwi, could lay claim to the land in question, and he thus felt it necessary to instruct Symonds on how to deal with that potential situation. 

Upon the arrival of the Crown party at Waitemata on 15 September, Symonds swiftly sent a messenger to call together the rangatira. At the meeting convened on the following day, 16 September, Symonds, through an interpreter, explained the reasons for the Crown’s arrival. He later reported to the Colonial Office that he had met no difficulty in

‘obtaining from them their sanction to the houses and stores being landed on any spot which might be selected by the Surveyor-General as well as a promise of assistance in discharging the ships from all of the tribe in the vicinity – about 60 in number’. 

As Loveridge notes, despite the cautious tone of Hobson’s instructions to Symonds, ‘the casual acceptance of the occupation of their land implies that Ngati Whatua had expected something of this kind to happen, reinforcing the idea that they had made a tentative agreement to that effect with Hobson earlier on’.  Despite this, Symonds believed that Ngati Whatua viewed the Crown party with some suspicion, and he decided to allay this by drawing up a deed for the land, which was apparently drafted on 17 September. Apparent Ngati Whatua concern seems to have been driven by rumours spread by some resident Pakeha asserting that the Crown would take all their land from them.  At the formal gift exchange and flag–raising ceremony on 18 September, Te Kawau raised some of these concerns in a speech recorded by Surveyor-General Felton Mathew’s wife. She noted that Te Kawau

‘stepped forward and in a long and vehement harangue seemed to be making very strong objections to admitting the Pakehas [sic] at all among them… He said that a Pakeha who resided among them told him that the Queen of England would take all their land from them, and that they should then have none to live on. In reply he was told through the interpreter that this was false and that he should not believe what was said by bad white men who were only deceiving him for their own purposes; but that the Governor was come to see that neither Pakeha nor Mauris [sic] were wronged and that all he and his officers promised them should be strictly performed. 

It is quite possible that Mrs. Mathew, and the Crown officials, misunderstood Te Kawau’s motives. As Stirling has pointed out, Te Kawau may have simply been ‘following tikanga rules and lending the occasion due ceremony; to have neglected to have raised a debate would have implied that the event was of no importance’.  As the Muriwhenua Tribunal has commented, ‘a battle of words does justice to the cause, sharpens the issues, augments the occasion and leaves stories to memorialise the event…  ‘impassioned declamation is also a standard oratorical tool… [that] solicits a clear position on a point in issue’.  In essence, Te Kawau was simply asking the Crown to reiterate and confirm (before the assembled people) what had been said at Manukau in March 1840, and to receive oral assurances from Crown officials to that effect. 

Symonds reported on 21 September that he ‘first obtained the cession of the spot in due form from the native chiefs in anticipation of its purchase from them by the proper Crown Officer’.  The ‘due form’ was the deed, in English, which had been arranged by Symonds on 17 September, the day before the formal land gifting and flag raising ceremony. It stated that Te Kawau, Te Reweti and Te Tinana agreed to cede the land to Her Majesty’s Government, ‘temporarily until its purchase may be affected by the proper Crown officer”.  The external boundaries were described as Waitemata and a ‘line drawn through Maunga Wau [Mt. Eden] midway between the waters of Manukau and the Wai Te Mata’, being bounded on the east by Mata-hare-hare River and on the west by Opou River.  After a further discussion relating to the boundaries, four Ngati Whatua rangatira signed the document (the three named in the deed and Horo), and received £6, which was to be deducted from the price of the land once determined.  Notwithstanding the deed, the rangatira would still have looked to the verbal agreements as confirming all the essential aspects of the transfer, including assurances of long-term future benefit and partnership.  

After receiving Symonds’ report Hobson set sail for Waitemata, arriving there on 17 October. On 20 October he formally instructed Clarke ‘to treat with the Ngati Whatua tribe… for the possession of the largest portions of their territory’, while also ‘taking care to reserve for the natives an ample quantity of land for their own support’.  Clarke had apparently already received some verbal instructions prior to this date, as he had arrived at the Waitemata on 12 October and began assembling Ngati Whatua with a view of arranging the September land allocation. On 20 October Clarke walked the boundaries of the land and marked the limits of the approximately 3,0 00 acre block with stones. He afterwards met with Ngati Whatua to make the final arrangements, with the deed being read to the chiefs in Hobson’s presence. The gift exchange consisted this time of £50 in coin and goods (blankets, clothing, tobacco, pots, hatchets, flour and sugar) to the value of £100, although the goods were later re-valued by more than 100% to a value of £215/16/2, which took the total payment to £273/16/2.  Ngati Whatua reciprocated with extensive gifts of food. As Stirling notes, Hobson’s gift was a token payment, particularly when compared to the massive £15,000 Hobson agreed to pay to land claimant James Clendon for his Okiato claim (re-named Russell), the site of what was always intended to only be a temporary colonial capital. 

For Ngati Whatua these events were perceived as tuku rangatira; an exchange of gifts and land which cemented their compact with the Crown entered into in March 1840 at Manukau, giving those earlier arrangements a specific local meaning and context. Ngati Whatua and the Crown were now joined in an alliance based on reciprocity. The whole day was characterised by ceremony and a festive mood – the signing of the document was followed by official flag-raising, the hoisting of ship’s colours, a 21 gun salute, and a toast to the Queen accompanied ‘with cheers long and loud… to the very evident delight of the natives’.  Some rangatira were also apparently given wine to toast the Queen’s and Governor’s health, and Ngati Whatua received further gifts of tobacco. There was also a waka race for Ngati Whatua and a boat race for the Pakeha. 

To fully understand the nature of the agreement one needs to view it within the context of 1840. Ngati Whatua were operating under their own laws and customs, and attempting to incorporate the stated intentions of their guests, the Crown, within that framework. It is unreasonable to conclude that Ngati Whatua, having had limited contact with Pakeha and little experience of European land dealings, entered into a land arrangement with the Crown based on European notions of absolute alienation for all time. As Stirling has observed,

‘It has been presumed, from a position of perceived superiority, that because Maori were participating in British procedures with regard to the transfer of ownership of land, that they therefore fully understood and agreed with what was occurring. In fact there is no evidence to show this, rather the evidence is to the contrary. For instance, the series of payments given by the Crown in 1840 – and Ngati Whatua’s reciprocal gifts of land and food – can be seen from their perspective as indicating that Pakeha understood the concepts of tuku whenua and utu rather than as demonstrating that a full and final alienation had been willingly entered into by Ngati Whatua’. 

The Ngati Whatua view of these early land transactions (or, perhaps more aptly, ‘allocations’) has been commented upon by the Waitangi Tribunal in its Orakei Report 

‘In pre-European times sales were unknown but gifts were commonplace and a variety of customary laws applied. Many gifts created reciprocal obligations of a kind unknown in English law, the essential element being the duty of the receiver to honour the giver, so that an ongoing relationship was established… It was the mana of the giver that had always to be respected’.   

Paora Tuhaere, perhaps the most renowned Ngati Whatua rangatira in the later nineteenth century, succinctly explained the nature of such early land allocations in 1871. Noting that a number of Pakeha had resided at Waiariki (Official Bay) and Waipapa (Mechanics Bay) before the arrival of the Crown, he stressed that 

‘they did not own those lands… it was agreed by the chiefs, the owners of the land, that the Europeans should occupy the lands…The occupancy by the Europeans was simply occupancy without ownership”.  

Ngati Whatua continued to move freely on the land gifted at Waitemeata, and continued to cut timber and cultivate it well after October 1840. The Ngati Whatua understanding of the October 1840 arrangement – that it had been conducted in accordance with their own tikanga –  was not to be challenged by the Crown for some time. 

In this context the inescapable conclusion, at least as far as Ngati Whatua were concerned, was that the land arrangement entered into in October 1840 was a gift; an allocation allowing the Crown to settle in Ngati Whatua’s midst for the benefit of both parties. Although Ngati Whatua received goods and cash, this was not a payment for the land, and was certainly not perceived as such by Ngati Whatua, who in turn made their own gifts of food to the Europeans. Te Kawau, the leading Ngati Whatua rangatira in 1840 and himself intimately involved in the arrangement with the Crown, made this point very clearly at the Native Land Court Orakei hearing in 1868. Asked by his lawyer, ‘Who were the people who sold Auckland to the Europeans?’, Te Kawau replied

‘I did not sell it. I gave it to them

[Lawyer] Did not the government give you and your people money for it afterwards?

No. I have been waiting constantly for payment but have not got it’. 

As Stirling has pointed out, it is now impossible to know whether the Court interpreter used the word ‘moni’ when translating the lawyer’s question, or if he had used a term with a broader meaning, such as ‘utu’. What is clear, however, is that Te Kawau did not use the word ‘moni’ in his reply – even though he was very familiar with both the word and the concept at this stage – but rather a more encompassing term, indicating that he was placing the 1840 land arrangement within the traditional context of tuku rangatira. 

The goods and cash Ngati Whatua received from the Crown were accepted, in Sir Hugh Kawharu’s words, as a ‘token of intent’.  The ‘intent’ was the compact entered into in March 1840 – the Treaty signing at Manukau, which was then cemented by the tuku rangatira. Indeed, as Stone argues, the very fact that the same rangatira signed both the Treaty (in March) and Symonds’ document in September points to the fact that the two events were inextricably linked in the minds of Ngati Whatua. Underpinning the compact was a desire to develop and maintain a mutually beneficial relationship between the two parties, from which Ngati Whatua would gain economic, social and political advantages, and effectively secure future prosperity for the whole tribe. 

Bearing all this in mind, the document signed by the four Ngati Whatua rangatira in October 1840 was much more than a simple deed. It was, as the Waitangi Tribunal has pointed out previously, a ‘treaty’ in its own right, incorporating elements not found in a mere land conveyance.  Assistant Native Secretary T. H. Smith effectively admitted as much when giving evidence before the 1856 Board of Inquiry into Native Affairs when he observed that ‘[m]ore or less, every transfer of land may be looked upon as a national compact, and regarded as binding both parties to mutual good offices’.  This is a particularly apt characterisation of the tuku, which was in every sense a ‘national compact’. The land at Waitemata would house the Governor himself and the colonial establishment. As Professor Stone has written

‘Putting to one side the issue of whether Maori owners were precisely told just what it was they were signing away – which modern historians much doubt – we can nevertheless understand why Te Kawau and his fellow chiefs imagined they had struck a fair bargain on behalf of their tribe. As patron of the capital, with the governor (the most powerful man [Pakeha] in the colony) as his Pakeha-Maori, Te Kawau would have his mana immeasurably strengthened – so he thought.  

For Ngati Whatua the October 1840 document was the most important step in creating a relationship with the Crown. As Stirling has contended

‘It was this specific act of trust and generosity, rather than the generalities of the Treaty of Waitangi, that allowed the Crown to settle at Auckland and become established on Ngati Whatua’s land… In customary terms, they brought life to the Crown in New Zealand. This, in their eyes, created an obligation on the part of the Crown to particularly take care of them and advance their interests and they constantly referred back to this tuku rangatira when seeking to prompt the Crown to display the reciprocity they expected. 

References to the tuku mentioned by Stirling are indeed plentiful, and provide examples of the importance Ngati Whatua attached to the events of October 1840. In 1862 at Ongarahu, for example, Paraone Ngaweke told Governor Grey “Ngatiwhatua [sic] is the ancestor of the European. We brought the Governor on shore”.  Paora Tuhaere expressed the same sentiment when welcoming the newly appointed Governor Bowen to Auckland in 1868

‘welcome to Waitemata, to the land where the Governors first began to live when they were sent to New Zealand. These are the people – the Ngatiwhatuas [sic] – who drew the Governor and the Europeans hither. Apihai [Te Kawau], who is sitting there beside you, has been a father to the European, and the friend of the Governors from the first to you. Now you have been called to Auckland. The Ngatiwhatua is your tribe’. 

Ngati Whatua continued to gift land to the Government thereafter, making it one of the features of their on-going compact with the Crown. Among the gifts were the Orakei church and school site in the 1840s, the Auckland to Kaipara road line in 1857, Takaparawha Point defence land in 1859, land for general public purposes (including a court, church, hostel, and school) in the nascent township of Te Awaroa (Helensville) in 1864, the Auckland to Kaipara railway route in 1871, the Woodhill School in the mid-1870s, the Wharepapa church in 1877 and the Te Awaroa Methodist church and town cemetery in the mid-1880s.  Significantly, the deed of gift for Takaparawha Point included a statement that ‘in the event of the Government ceasing to require it for such purposes of military defence it shall not be disposed of to private individuals but shall revert to us’.  As the Waitangi Tribunal has noted, Ngati Whatua’s understanding of such gifts of land was that ‘the lands were merely held on trust, to be returned when no longer required for the purpose intended’. 

MAP 3. NGATI WHATUA’S OCTOBER 1840 GIFT TO THE CROWN, WAITEMATA

Summary

The arrival of the Crown in New Zealand in 1840 heralded a sea-change in Ngati Whatua history, and heralded what appeared to be great opportunities. Following two tumultuous decades Ngati Whatua were, in 1840, looking for avenues through which to strengthen the tribe’s position in its rohe and ensure its continued vitality and prosperity. The arrival of the Crown presented just such an avenue. Ngati Whatua had been well aware of the material advantages that Pakeha settlement had brought to Ngapuhi in the north, but had limited opportunity to enjoy the same advantages, given the pattern of Pakeha settlement in pre-Treaty New Zealand. 

Ngati Whatua actively sought to bring the Crown into their midst. The Crown, for its part, was very receptive to Ngati Whatua overtures. Hobson had decided very early on (perhaps without even an initial consultation with Ngati Whatua) that Waitemata would be his preferred site for the new colonial capital, and Ngati Whatua’s offer (regardless of whether it came in February or April 1840) was accepted with alacrity by Hobson.

This developing relationship between Ngati Whatua and the Crown was ‘officially’ recognised and confirmed at Manukau in March 1840, when three leading Ngati Whatua rangatira signed the Treaty of Waitangi. Despite some initial opposition from Ngati Whatua to the Treaty, the signing was effected after Crown assurances that it would bring European settlement into Ngati Whatua’s midst along with all its attendant benefits, and the Crown would assume a protective role, ensuring that Ngati Whatua laws, customs and taonga (including land and resources) would remain sacrosanct. This March 1840 agreement was, crucially, consummated within a local context in September 1840, with Ngati Whatua gifting a 3,500 acre block of land on the shores of Waitemata to the Crown as the site of its new colonial capital. 

While the Treaty of Waitangi set out the broad political context of the relationship, the agreement was given the necessary local shape and meaning by the subsequent gift of land for the new capital. This gift was a tuku, conducted within a customary Ngati Whatua context, the meaning of which was clear to the tribe. It bound the parties in a manner which accorded with Ngati Whatua law and tikanga, imposing definite obligations on each party. Ngati Whatua would support the Crown and settlers, and make land and resources available for them. For their part Ngati Whatua would gain a range of long-desired material and other advantages, derived from the special and particular relationship between themselves and the Crown effected in September. There were, in effect, two treaties; March and September 1840. But for Ngati Whatua the September agreement, ratified on their land in the presence of the chiefs and people, was the key event. 

It has been suggested by Crown historians that Ngati Whatua were little more than refugees in 1840, fearful for their very existence and wishing to obtain the Crown’s protection at virtually any cost. This argument cannot be sustained. Ngati Whatua already had powerful allies. Indeed, they had to be persuaded to sign the Treaty, which does not suggest that they felt themselves powerless and lacking in choices. The choices they made in March and September 1840 were based not on the need to ensure their immediate survival, but on an assessment of the tribe’s long-term best interests, and their great desire to participate in the new world of Pakeha trade and technology. Moreover, the relationship they had entered into was, for them, based on reciprocity and partnership, not weakness or subservience.

Confirmation that Ngati Whatua considered themselves to be in control of their destiny at this time can be seen in the fact that they offered the 3,500 block, but indicated that more land (including land on the North Shore) would be allocated only when the Governor came to live among them, and this they did in 1841 when the Governor took up residence. 

Ngati Whatua had clear expectations of the economic, social and political advantages they expected from their compact, and the Crown fostered this view through its assurances and promises. The next chapter will consider to what extent these advantages accrued to Ngati Whatua in the next two and a half decades.

4. POLITICAL AND ECONOMIC DEVELOPMENTS: 1840-1865

The relationship between Ngati Whatua and the Crown initially headed in a positive direction despite, as we shall see, a somewhat rocky start in the first two decades after 1840. Initially the compact brought many of the anticipated commercial opportunities to Ngati Whatua in Tamaki Makaurau, a close link with the colonial administration, and some role in the political life of the new colony. 

The compact was coming under increasing strain at the onset of the 1860s, but Ngati Whatua remained committed to building it, and the Crown continued to assure them of its desire to do the same, even if its actions were increasingly suggesting otherwise. 

ECONOMY

The most immediate benefit for Ngati Whatua arising from their newly established relationship with the Crown was the growth of the new colonial capital, which increased demand for Ngati Whatua produce. By 1842 almost 2,900 settlers had arrived in Auckland and its vicinity, and Ngati Whatua were quick to seize on the attendant economic opportunities.  As Wyatt notes, ‘[f]or the first five years, Ngati Whatua, in conjunction with their Ngati Paoa and Waikato competitors, literally fed the capital’.  George Clarke observed that it was

‘no uncommon occurrence to see from fifteen to twenty large canoes laden with native produce, potatoes, corn, pigs, poultry &c put into one of the numerous bays of which the town is skirted for the purpose of supplying the European market with the necessaries of life, receiving in return clothing and other articles of British material for trade’. 

Ngati Whatua had extensive potato, maize, and melon gardens at their major Okahu Bay kainga, located some two miles from Auckland, and regularly brought fresh produce to the colonial capital.  Early settler Charles Terry noted that Ngati Whatua soon adapted to the new commercial environment, despite relatively limited experience in trading with Pakeha, observing that

‘[t]hey are very sensible of their own interests and very acute in all their dealings…The increasing demand for the produce which they raise, of potatoes, kumara and maize, as well as for their pigs, has taught them the advantage and profit of increased cultivation of their lands, beyond their own wants, for the winter season, and therefore, it is far more consonant to their habits, to apply themselves to such extra labour than undertake the work, for many hours, of Europeans. Labour on their part being at present not a necessity, they will only exercise it on their terms, and the regular rate of daily wages, given now in Auckland to the natives, for landing timber, goods, &c., is…four shillings…’. 

Terry also noted that Ngati Whatua supplied the town with firewood at a moderate rate, and had erected raupo fences and houses for the settlers.  Ngati Whatua from Kaipara were also taking advantage of these economic opportunities from very early on. As early as March 1841 the missionary James Buller had noticed a vast profusion of fruit trees already introduced into the Kaipara. Some two years later Buller observed that almost all his congregations at Otamatea and south Kaipara were absent in Auckland when he visited these areas, undoubtedly seeking to profit from commercial opportunities presenting themselves in the town.   

The Ngati Whatua agricultural economy remained strong, and remained crucial for the settler population, even when European numbers in Auckland fell to about 2,500 during 1843. One account from 1844 estimated that Maori in the wider Tamaki Makaurau area cultivated about 100 acres of maize, 500 acres of potatoes, 150 acres of kumara, and around 100 acres of other crops such as taro and melons. It was estimated that from this they produced 2,500 bushels of maize, 2,500 tons of potatoes, and 300 tons of kumara. Ngati Whatua produced much of this, ranging from half to about three-quarters, depending on the type of crop. A more detailed census from later in 1844 showed that at Orakei alone Ngati Whatua grew 75 acres of maize, 250 acres of potatoes, and 60 acres of kumara, from which they produced 3,000 bushels of maize, 1,000 tons of potatoes, and 120 tons of kumara. 

In 1843 Protector of Aborigines George Clarke described Auckland Maori generally as ‘affluent’. Ngati Whatua produce and supplies from Orakei continued to be very important to the township, especially during the 1845-46 Northern War, when Ngati Whatua and other tribes increased their output, resulting in stable prices despite an increase in the European population of Auckland, which rose to 4,655 by 1846.  

The wealth, proximity to the seat of the colonial Government, and the importance of Ngati Whatua to the settler population in Auckland greatly enhanced their mana and prestige. This enabled Ngati Whatua to invite or allow other groups from outside their rohe to participate in trade with settlers and take part in other commercial opportunities. But as Wyatt notes

‘beneath the seeming generosity of such an act rested a powerful assertion of strength and a corollary recognition of Ngati Whatua’s importance. Within the context of continuing tribal rivalry it provided, together with their growing wealth, a significant beginning towards readdressing the imbalance in power that had occurred in the 1830s and in achieving advancement Ngati Whatua sought’. 

These outside groups participated strictly on Ngati Whatua terms, and Ngati Whatua were very vigilant and remained determined to defend their interests. George Clarke observed in 1843 that

‘considerable jealousy exists among the different Tribes residing about Auckland, especially those whose possessions lie somewhat remote and who cannot consequently compete with their more fortunate Countrymen and look with extreme jealousy on those whose Lands being situate in the vicinity of the Town, find ready purchasers for all they are disposed to sell. We have had many little disputes arising out of these jealousies to adjust between the Ngatiwhatua Tribe, and the Waikato, who reside upon and cultivate Land at some distance from Auckland.

The advantages possessed by the Ngatiwhatuas in consequence of the proximity of their Lands to the Capital have raised them up many troublesome friends…thereby causing no little annoyance. Indeed the Native Tribes watch and guard against any encroachment upon their respective territories either from friends or foes…with much vigilance and anxiety…these feelings are carried to such a height that they almost constantly distrust each other’s movements…while each attempts to impress to themselves the advantages to be derived from their own fortuitous position either as it respects the quality or the situation of their Land or their more immediate connexion with the seat of Government, they eagerly strive to defeat any undue  attempts of the other to participate in the privileges they possess’.  

Considering the advantages Ngati Whatua were gaining from the establishment of Auckland it is no wonder that by 1842 they also sought to bring European settlement to other parts of their rohe, including Kaipara. 

‘COLLATERAL’ ADVANTAGES: SCHOOLS AND HOSPITALS

Despite the early economic boom experienced by Ngati Whatua during the early phase of their relationship with the Crown, the early years also saw some problems. In addition to economic advancement, Ngati Whatua sought other tangible benefits which they expected to follow from European settlement, particularly education and medical services. 

Education was seen by Ngati Whatua as particularly important, as fluency in English was perceived by the iwi as necessary if they were to engage fully with European commerce and participate in the administration of the new colony. Yet the colonial government, often under severe financial stress, took no steps to provide Ngati Whatua with any such services in the early years of the colony. In 1846 Governor Grey admitted this, stating that the colonial government had hitherto ‘erected no hospital, has established no school, has constructed no place of shelter, and has contributed towards the erection of no church for the aboriginal population’.  Grey was, for political reasons, trying to justify his disestablishment of the Aboriginal Protectorate Department, which he rightly or wrongly blamed for this state of affairs. But whether the Protectorate was at fault or not, it was certainly true that no hospitals or schools had been built.  

The colonial government’s inaction in this respect not only contravened the terms of its compact with Ngati Whatua, but also failed to live up to the instructions given to Hobson by the Colonial Office in early 1841. Hobson was instructed in January 1841 that

‘[a]s often as any sale shall hereafter be effected in the colony of lands acquired by purchase from the aborigines, there must be carried to the credit of the Department of the Protector of Aborigines a sum amounting to not less than 15 nor more than 20% in the purchase money, which sum will constitute a fund for defraying the charge of the Protector’s establishment, and for defraying all other charges which, on the recommendation of the Protector, the Governor and Executive Council may have authorised for promoting the health, civilisation, education and spiritual care of the natives’. 

Little money was ever put into this fund, although two trustees had been appointed to manage it. Bishop Selwyn explained the situation to FitzRoy in 1845

‘by this fund, we hoped that schools, hospitals, hostelries, would be built; that every useful art would be taught; every habit of civilisation introduced; and the whole social character of the people changed for the better. As one of the first Trustees of Native Reserves and Funds I am sorry to be obliged to state that not one of these objects has been accomplished, or rather that not one has been attempted. When Governor Hobson appointed the Chief Justice and myself as joint Trustees of the Native Funds, he acknowledged to me that a balance of £4,000 was due to the natives, being the surplus of 15% upon the produce of the land sales, after payment of the Protector’s establishment. This sum, he said, had been swallowed up in the necessary expenses of the colony; though the instructions were imperative that the surplus must be invested. It was suggested first… that a grant of £200 should be made to enable the Trust to commence its operations. On the death of Captain Hobson, the promised grant was reduced by Mr Shortland [Acting Governor until FitzRoy’s arrival in New Zealand] to £100, but the increasing difficulties of the colony prevented, I conclude, even that sum from being paid. Mr Shortland, however, promised to enter the balance due to the native fund upon the schedule of the debts of the colony, which were to be paid by a vote of Parliament, but this item was struck out by the Commissioners of the Treasury, who refused to recognise it as part of the debt of the colony…’. 

In light of this, it was up to Ngati Whatua to instigate their own training and education initiatives. A Maori-run mission school was established at Orakei in 1844, and although missionaries occasionally provided supervision, the school was essentially run by Wiremu Hopihana Te Karore.  It also appears that in the same year Ngati Whatua proposed a scheme to utilise unemployed Pakeha tradesmen and artisans in order to advance their own technical knowledge and skills. The idea behind the proposal centred on giving reliable married men of good character and health a house and at least one acre to cultivate. The Maori hosts would provide necessary provisions and supplies, while the guests were expected to provide Ngati Whatua with instruction in various branches of trade. The guests were also to ‘render… assistance to the general stock of usefulness’, and were assured of Ngati Whatua protection and assistance as long as they wished to remain part of such an arrangement. The interpreter Edward Meurant apparently helped several migrant families in reaching this type of agreement with Ngati Whatua.  

POLITICS, LAW AND ORDER

There were a number of ongoing concerns among some Ngati Whatua about the motives of the Crown and settlers. In March 1841, Assistant Protector of Aborigines Kemp visited Ngati Whatua at Kaipara, at least in part to ‘disabuse their minds of the ill-concerted reports circulated by evil-disposed British subjects, prejudicial to the interests of Her Majesty’s Government’. Upon his arrival at Kaipara Kemp found some Ngati Whatua to be troubled about the settlement of their district, believing it to be ‘a precedent to a final extermination of their tribes and people’. He attributed this view to a local rangatira, Wiremu Tipene

‘[t]his information they have derived from one William Stephenson [Wiremu Tipene] (a Native Chief of that district), who has recently returned from Van Diemen’s Land [Tasmania], assisted by a settler of Hokianga, who accompanied him. The chief, soon after his arrival, convened a meeting of the principal chiefs of Kaipara, and publicly declared that sooner or later they would become slaves, would be disinherited of their lands, and eventually totally exterminated’. 

Tipene’s comments, based on his understanding of what had happened to the Tasmanian aboriginals at the hands of settlers, were said to have caused ‘much excitement, much conversation and much disputation’ at Kaipara. Kemp reported that he had assured Ngati Whatua of the falsity of such views, and added that they ‘appeared glad that I had visited them…[t]hey still remain incredulous, but in no way hostile to the measures of Government’. 

These concerns did not linger long in the Kaipara. Wiremu Tipene, for one, appears to have changed his mind only a year later. In March 1842 Tipene had a chance meeting with the Protector of Aborigines Clarke at Kaipara, during which he (Tipene) explained that he had only circulated information received from Europeans in Hobart, among whom was Frederick Maning, the Hokianga settler mentioned by Kemp as Tipene’s travelling companion. Thinking such people to be well informed and sincere, Tipene believed their reports of the nefarious intent of the Crown and, according to Clarke

‘… two years having elapsed, and witnessing the conduct so at variance with these assertions, he could only conclude they were not to be depended upon, and he was now making every effort to convince others, that they as well as himself had been misled, but said he “Mr Clarke, tell the Governor to place the blame in its proper place”’. 

Perhaps the clearest manifestation of problems in the early phase of the relationship between Ngati Whatua and the Crown came in the area of law and authority. Ngati Whatua had entered into their compact with the Crown believing that their customary law and authority would be respected and protected by the Crown, and that they would participate in the government of the colony. As far as the Crown was concerned its own sovereignty was all-encompassing, indivisible and non-negotiable. Such differing expectations proved a fertile source of dispute between Ngati Whatua and the Crown in the early years of their relationship.

Crown officials brought with them to New Zealand an inherent belief in the supremacy of English law and the British system of justice, and sought to enforce it whenever possible. Maori, including Ngati Whatua, understood that a system of civil law was needed to encourage trade and commerce. But attempts to apply a foreign, and in Maori eyes unduly harsh, system of punitive justice based on the punishment of individuals of whatever rank in Maori society was anathema to Maori and caused much consternation among tribes throughout New Zealand, Ngati Whatua included. As early as 1841 Assistant Protector of Aborigines Henry Kemp noted the dissatisfaction among Maori in northern Kaipara at the ‘exercise of magisterial power in the country, as applicable to the Natives’, particularly arrests and imprisonment for misdemeanours.  Kemp claimed that the actions of magistrates in these instances were approved of by the rangatira and was a ‘great preventive of future depredations’. He patronisingly claimed to have ‘succeeded in satisfying their untutored minds, and convinced them of the protection they, with the white people, received by the establishment of law and justice in this colony’.  

Crown attempts to elevate English law above customary law are perhaps best illustrated by the ‘Forsaith muru’, which occurred in the northern Wairoa in early 1842. This incident has been discussed fully by Bruce Stirling and the Waitangi Tribunal in its Kaipara Report, and is also addressed in the Te Uri O Hau Claims Settlement Act 2002.  The following is therefore a summary of what transpired.

Early in 1842, a group of Maori, led by Te Parawhau rangatira Tirarau and the Ngati Whatua chief Paikea, raided the store of local trader Thomas Forsaith at Mangawhare. This was a customary act of muru. The problem arose in November 1841 when Taurau, brother of Tirarau, saw a human skull at Forsaith’s store. Taurau later returned with Tirara, who deduced, after questioning the store manager Elihu Shaw, that the skull had been taken from a nearby urupa.  Outraged at this serious breach of tapu, Tirarau and other rangatira (notably Te Wheinga) determined to plunder Forsaith’s property in accordance with Maori custom, but seem to have been dissuaded from this course of action by the missionary James Buller, who suggested they wait until Forsaith returned to the area. 

The situation escalated early in 1842. Opataia, a visiting rangatira, reported to Parore Te Awha that he had seen three heads in Forsaith’s store. Parore himself saw one of these skulls at the store, and understood that the other two had been taken away by visiting ships. The visiting sailors were indeed in the habit of acquiring koiwi and taonga taken from urupa, and Parore’s suspicions that Forsaith had been engaged in this deeply offensive activity may not have been entirely unfounded. Tirarau, Te Wheinga and Paikea then organised a muru party and plundered Forsaith’s store and property, again in accordance with Maori custom. The rangatira divided the plundered property, took the koiwi to an urupa and reburied it.  

Desecration of urupa and the removal of koiwi is an extremely odious offence in Maori custom, and it is no wonder that the rangatira decided to inflict a customary punishment on Forsaith for the offence, and the settler, who had lived among Maori and was almost certainly aware of the Maori attitude to such things, was lucky that a more serious punishment was not meted out.

After learning about these events Governor Hobson instructed Protector of Aborigines George Clarke to investigate. Clarke arrived at Mangawhare with Forsaith on 9 March 1842, and found the store plundered. On 12 March Clarke held a meeting at Tirarau’s kainga attended by some 200 Maori, including Tirarau, Paikea, Parore and Te Wheinga. Forsaith, Buller and some settlers were also present. Clarke called on the chiefs to give their version of what had happened, after which Forsaith testified. He stated that he had known nothing about a skull before the muru. Only afterwards had he learned that his wife had ‘found’ it and brought it to his store. After hearing the evidence Clarke concluded that there was no justification for the muru, and told Tirarau that he would withdraw from the meeting to leave the Maori to decide how to compensate Forsaith for his losses.  

As Stirling observes, it is difficult to see how Clarke came so easily to such a conclusion, considering the gravity of the offence for Maori. The most likely explanation is that regardless of what had happened, Clarke’s main objective was to curb such manifestations of custom law and encourage Maori to have recourse to the European law and magistrates. In short, Maori were to be punished for exercising their own tikanga. The Maori present were outraged by Clarke’s demands for compensation. As Clarke himself observed

‘simultaneously cried out that they were the compensation and they were very desirous that the Governor should take them as payment as soon as he pleased, until that is done we shall give no compensation.  

A further Maori witness, a man associated with Buller’s mission station, then arrived when Clarke was away having lunch. He told Forsaith that he was 

‘in the habit of visiting Mr Forsaith’s place… he saw a skull laying amongst the fern near the spot described by Mrs Forsaith as that where she found it, and that he not only saw it himself, but all his family saw it. He did not mention it sooner because it did not strike him that that was the skull until he heard Mr Forsaith say that it had been picked up by the side of the river.  

These comments, which had not been made in the open before the assembled people, were subsequently added to the inquiry minutes by Clarke. Although the timing and the manner of this testimony seems peculiar (and highly convenient for Forsaith), Clarke quickly accepted the evidence as genuine. 

On hearing the new evidence Tirarau was greatly angered and apparently had to be physically restrained from doing harm to the witness. Te Wheinga eventually interceded and offered himself to the Governor as ‘prisoner and payment’ for his part in the muru. Clarke’s suggestion, however, was that

‘giving up a piece of land [would be] the best and quietest mode of adjusting all differences, but not a word would they hear about land. They declared it would be a degradation to do such a thing. The Governor would have no land here until he first killed them and their children’. 

The meeting broke up at this point as it was getting late in the day, and Clarke promised to resume the hui after the Sabbath, on the morning of 14 March 1842.  In the meantime there was an exchange of letters between Clarke and Tirarau. Clarke urged the rangatira to settle the situation in a peaceful manner before concluding in no uncertain terms that

‘today friends my heart is dark. I say soon will evil come, and war, and other things, but beware lest you say, by the Governor. No, No, by yourselves only. The Governor told me that he was not good for war but he will not look carelessly on the plunder of white people for this it is that the Governor and I shall strive constantly with you to settle peaceably this evil, that wars may cease and we dwell peaceably with each other’. 

Clarke’s veiled threat of war provoked a strong reaction from Tirarau, who responded by vowing: ‘[w]e will not pay, if your hearts are dark write to the Governor to kill us, we are well pleased’. Tirarau’s reply in turn prompted Clarke to accuse the rangatira of issuing a challenge, a ‘fighting answer’, and stated that the Governor desired the matter be settled peacefully with a ‘piece of land or some timber’. 

This exchange raised the stakes considerably. It seems, however, that an intervention by Paikea and Te Wheinga resulted in the Maori resolving to give up a piece of land as compensation for the muru. That Paikea played a critical role in the resolution of the matter is attested by the fact that the block given up was mostly Te Uri O Hau, not Te Parawhau or Ngapuhi land, although Tirarau had borne the most responsibility for the muru.  The boundaries of the block were given as ‘Te Kopuru te Weiki te wahi tapu Te Pouna ariri, te Awahou te Ngaha a ki te aw ate Ara tapu tem aka[ka] ki tetahi tuku’; a strip of land on the Pouto peninsula in the vicinity of Te Kopuru and lying between  the Aratapu and Te Makaka streams, including the Pouarere and Ngaha streams.  

The subsequent history of this Te Kopuru block is a complicated one and has been documented elsewhere.  But it should be pointed out that both the Crown and the Waitangi Tribunal have acknowledged Crown breaches of the Treaty in this case. In section 8 of the Te Uri O Hau Claims Settlement Act 2002, it is said that

‘The Crown acknowledges that the process used to determine the reparation for the plunder of a store, which led Te Uri O Hau chiefs and others to cede land at Te Kopuru as punishment for the plunder, was prejudicial to Te Uri O Hau. The Crown acknowledges that its actions may have caused Te Uri O Hau to alienate lands that they wished to retain and that this was a breach of Te Tiriti o Waitangi/The Treaty of Waitangi and its principles. 

The Waitangi Tribunal found a number of Crown breaches of good faith and of the guarantees of protection made in the Treaty of Waitangi

• The Crown failed to instigate a process to ensure a full and proper inquiry into the facts and surrounding circumstances of the muru of Forsaith’s store at Mangawhare;

• The Crown imposed a ‘penal infliction’ for the muru by demanding the cession of Te Kopuru without a proper investigation of the ancestral rights in that land;

• The Crown failed to maintain a proper record of the ‘agreement’ to cede land at Te Kopuru; and

• The Crown failed to respect the boundaries described by Tirarau and recorded by [Surveyor-General] Ligar by asserting title to a much larger area in the Te Kopuru block. 

It seems, however, that there was more to this than mere questions of process. A far more fundamental issue was at stake – the vindication of Crown authority and the replacement of Maori custom law by English law, despite the promises of 1840. The action taken by Tirarau, Paikea and other rangatira caused Clarke to try to convince them of the ‘necessity of referring all their disputes to the Governor and not take the law into their hands’.  Similar sentiment had been expressed by Lord Stanley, the Secretary State for the Colonies, who, in commenting on the incident (and not altogether being convinced that the muru was unprovoked and that the Crown response was appropriate) noted the importance of encouraging Maori ‘to be satisfied with our mode of administering justice and to abandon their own’.  In the end, the Maori acceptance of the cession of land as compensation for the muru perhaps had less to do with their acceptance of British authority than with the desire of rangatira like Paikea to maintain peace in the district and continue to build a positive and beneficial relationship with the Crown. 

In 1844 another incident involving issues of authority and law arose between Ngati Whatua and the Crown. In February of that year a Ngati Whatua man named Te Mania was accused of stealing a settlers cap in Auckland and was arrested. Ngati Whatua believed that the arrest must have been a mistake, as Te Mania ‘had always borne an excellent character’. But in an atmosphere of settler outrage at the Government’s decision not to arrest Te Rauparaha for his part in the Wairau affray, and frequent accusations of petty theft against Maori in Auckland, Te Mania was found guilty by an all-European jury and sentenced to three months imprisonment with hard labour. 

Ngati Whatua rangatira Te Kawau, in conformity with custom, offered to pay compensation for the offence, but the magistrate refused the offer.  As Professor Alan Ward comments, while the sentence was probably in accordance with the general severity of British property laws at the time, Maori viewed imprisonment as deeply shaming and degrading.  Moreover, not only did the sentence and its severity conflict with Ngati Whatua beliefs, but the refusal of Te Kawau’s offer of compensation added insult to injury. Ngati Whatua, outraged by the Magistrate’s ruling, proceeded to almost immediately free Te Mania from the courthouse where he was being held. 

Te Mania and his fellow Ngati Whatua fled to their kainga at Okahu, pursued by the Police Magistrate Felton Mathew, Major Bunbury and a group of soldiers. At the kainga a confrontation followed. In the words of Ngati Whatua witnesses inside the kainga

‘The Major called us to go to him. One of our men was standing alone with a gun in his hand…the Major took it and broke it… he was taken and given in charge of the soldiers, he took another also, Hira, three in all, we were led by the soldiers. The Major then went to look for Te Tawa [Te Kawau]….The Major and Mr. Mathew saw him, pounced upon him, took hold of his hand, and pulled him, one had hold of one hand, and one of the other; but Te Tawa remained firmly seated, the Major drew his sword, the other his bayonet; his child thought that there and then he would have been killed, and said Alas! Alas! My father! The Major saw another person with a hatchet, and tried to force it from him which he could not do; the Major then drew his sword at him and said he would cut off his head, when he replied, what if you do, (or, I don’t care if you do) the Major stood with his sword over him to kill him, and Mr. Mathew with a bayonet at his side, when someone called out to the Major that the Natives had escaped…. 

Bunbury and his men pursued the fleeing Maori, firing shots at them, and he eventually caught and detained Te Kawau’s son Te Hira ‘as a hostage for the rescued prisoner’.  Bunbury and his men then returned to Auckland with their hostage, announcing that they had received a promise that Te Mania and his rescuers ‘should surrender to the authority of British law on the morrow – Major Bunbury declaring that if this promise was not fulfilled, he would return with Pakeha power and take them’. 

Ngati Whatua, unsurprisingly, did not share Bunbury’s view of the situation, particularly considering the latter’s grossly offensive behaviour towards the senior rangatira Te Kawau. They instead sent a message of ‘mortal defiance’, threatening that ‘they would meet them first….returning the bounce of the soldiers the day before. The Major had bounced them, and they would bounce him”.  They added that they would determine ‘what amount of UTU would satisfy, to recompense for the enormous insult which had been put upon them’.  The next day arrived with Te Mania and his kinsmen ‘at large in perfect defiance of the government’. The Executive Council then met and decided that

‘in the absence of the Governor, there was no sufficient authority present to enforce the law; that it was probable that during the time which had been suffered to elapse the Maori had made allies from their sable kindred…and would be too strong for us.  

The colonial government was thus clearly aware of its own vulnerability should the crisis escalate further, and fearing that Bunbury’s approach would only make an already delicate situation worse, decided to turn to the Protector of Aborigines George Clarke once again in an attempt to arrive at a peaceful resolution of the dispute.  Clarke sent a letter to Te Kawau demanding that he and Te Mania come to Auckland the following day

‘Friend Te Kawau

We are very grieved for what you did in court. It is a very great crime to rescue a person when found guilty.

You and [Te] Mania must come to-morrow; if you do not come, the soldiers will have to fetch you; you had better come quietly to-morrow…’. 

Te Kawau’s response was emphatic: ‘listen to me: I will not go… would it not be better for you to come to me?… Do you listen to me, because the evil is increasing, the love of many is growing cold…’.  The Government promptly issued a warrant for the arrest of Te Kawau, Te Reweti and Te Nana (presumably Tinana) in order to enforce (and illustrate) the ‘supremacy of the law’. The Attorney-General believed that the law had been ‘so openly and violently set at defiance’ by Te Kawau ‘that it cannot be overlooked, and [that] the guilty parties should… be rigorously dealt with’.  

Clarke, who was increasingly of the view that a more conciliatory approach would pay better dividends, accepted Te Kawau’s invitation and visited Orakei on the following day, 22 February. Clarke claimed in his report of this meeting that Ngati Whatua expressed their ‘sincere regret at what had taken place’, and that they ‘had neither ate nor slept for grief of their conduct’, having ‘no idea of their crime’. Clarke further stated he had received assurances that nothing similar would happen again, and in order to convince the Governor of their sincerity Ngati Whatua made the ‘only atonement’ possible and offered to return Te Mania to prison, even though they still doubted his guilt.  

Clarke later reported, however, that Ngati Whatua had decided that Te Mania should give himself up at an earlier hui held that morning before his arrival, with Te Mania himself believing that a return to prison was preferable to exposing ‘his family and tribe to the consequences of their rash conduct’.  Yet as Stirling has suggested, it appears that Clarke was diplomatically overstating Ngati Whatua contrition in an effort to appease some of the less sympathetic Crown officials.  

Although some other Pakeha accounts, like Mathew’s and Bunbury’s, also stressed that despite a fear among the Government and settlers at Auckland about how the dispute would be resolved, it was Ngati Whatua who were ‘greater tremblers than ourselves’, such assessments seem more like the efforts of officials desperate to save face, rather than a realistic appraisal of the situation.  Firstly, the arrest warrants issued for Te Kawau, Te Reweti and Tinana were never executed. Secondly, although Te Mania was handed back into custody, he was not returned until the government paid utu to Te Kawau – a suit of clothes on this occasion – for the grossly offensive conduct towards him by Bunbury. Furthermore, Ngati Whatua themselves suggested that Te Mania was not returned because of fear caused by Mathew’s and Bunbury’s earlier appearance at Orakei, but out of the similar sentiment expressed at northern Wairoa some two years earlier, namely a strong desire to avoid conflict and maintain a positive relationship with the Crown and settlers. 

The settler press, too, noted that resolution of the incident had less to do with Ngati Whatua fear than with the government’s preparedness, largely borne out of necessity, to compromise with Ngati Whatua. The Auckland Times consequently bemoaned the Government submitting to Maori demands, and questioned whether the Queen’s ‘natural subjects’ were to be made ‘subordinate… to the savages they live among’, and whether the 

‘boasted flag of British law and power, which is held, as at least equivalent, if not superior to that of any among the greatest nations upon the earth, is to be at least succumbed to the wiles and the hypocrisy of the Maori and his Protector?’ 

Ngati Whatua explained the reasons for their conduct in a letter to the Southern Cross soon after the return of Te Mania. In this letter they made it abundantly clear that their handing over of Te Mania was not from fear or because they accepted the paramountcy of British law over their own customs, but was instead an attempt to diffuse tension and reach a compromise with Clarke. Te Hira, writing on behalf of Ngati Whatua, stated

‘Listen, O Europeans! We have heard of your taunts in your Newspapers, about calling us black fellows… If we had had black hearts the Queen’s laws would not have restrained us (in this affray). If we had agreed on rejecting the Queen’s laws the world would have been on fire (meaning that the Natives would all have been in arms)… You say it was fear on our part which induced us to give up Te Mania. No, it was our voluntary and good thoughts, therefore we gave him up – had we kept him, the sun would have shone in vain on Tawauwau (a proverb, intimating not fear, but a dislike to shedding blood and perpetrating the mischief already done).

Friend, Europeans, we are the only people who have good thoughts, we have no thoughts about this that [are] tending to mischief. Our thoughts are only good (towards you). Our badness in the affair of the Court surely is not very great, only as you make it great – it is only now that it is made great. 

Indeed, Ngati Whatua had very little reason to fear reprisal from the Crown over this incident. FitzRoy himself was well aware that the limited forces at his disposal struck no fear into Maori, and, writing about the dispute over Te Mania, noted that in Auckland at the time 

‘there were about seventy young soldiers, fifty bad muskets, which would have been in awkward hands, and a few fowling pieces. There was no defensible position. The scattered wooden town might have burned like dry grass…’  

FitzRoy also realised that attempts to compel Maori compliance with the British system of law and justice would ‘sooner or later, bring on serious difficulties’, considering the gulf between the British and Maori concepts of justice and its execution, and the balance of power between the two on the ground in the 1840s.  But while the Crown’s options were limited in this case by a lack of troops and an ability to coerce Ngati Whatua, that situation was clearly temporary, and would change  as the number of settlers increased and Crown power grew. This did not bode well for Ngati Whatua. 

Nonetheless, just as at Te Kopuru, it was largely due to a Ngati Whatua desire to nurture and maintain a relationship with the Crown that no serious difficulties ensued from the Te Mania incident. It is clear that Ngati Whatua acceptance of the Crown’s kawanatanga was thus conditional, as long as the kawanatanga did not encroach on their own rangatiratanga, also guaranteed by the Treaty. Ngati Whatua had suggested as much to FitzRoy upon his arrival in New Zealand, stating that they would ‘give up or cast off their native customs’ only when they could ‘see the equity of your government, the mildness of Her Majesty’s laws’.  

The corollary to this was that Ngati Whatua, at least initially, reserved the right, should they choose to exercise it, to ‘correct’ any perceived injustice stemming from an overly harsh application of English law, as they did in Te Mania’s case. But Ngati Whatua exhibited a desire to compromise to some extent in the interests of peace and good relations, upon which their prosperity depended. As Stirling has pointed out, Bunbury would surely have been killed for his insult to Te Kawau had that not been the case, and Forsaith too might have met a bad end.  

It is also very doubtful that Ngati Whatua were prepared at this time, or later, to abandon their own systems of law and customs wholesale in favour of English law. Rather, they sought compromise and respect for their own customs and institutions, which they understood had been guaranteed in 1840. The problem was not simply a question of Maori ignorance of English law; a difficulty which would simply go away once Ngati Whatua became fully ‘assimilated’. Rather, the question turned on the role of Ngati Whatua within the government of the colony, and their role in making of laws that would apply to all. We will return to this subject later. 

In the wake of Te Mania incident FitzRoy proposed to adapt aspects of English law in New Zealand to better sit with Maori views, at least until such time as Maori better understood English law and institutions – or until British power increased. Consequently FitzRoy invited Ngati Whatua rangatira to Government House in Auckland to discuss his proposals. Reflecting on the Te Mania incident, FitzRoy blamed the ‘rashness of young men’, while at the same time being careful not to censure the conduct of Ngati Whatua rangatira. FitzRoy then outlined to the rangatira how, in order to prevent future incidents, he and his judges had been engaged in preparing a modified code of law which would allow for Maori views to be taken into account. FitzRoy noted that these ‘special laws’ were especially designed to prevent them from ‘being dealt with harshly or hastily in cases where you are not sufficiently acquainted with the law’.  He added that ‘you may depend on it that government, and myself individually, never will allow too harsh punishments to be executed. I have the power to overrule them if I see sufficient cause’.  After being asked whether compensation would be accepted instead of imprisonment in doubtful cases, FitzRoy confirmed that ‘I and the law officers are now considering whether compensation might not be made by Maori under certain circumstances. I am very anxious to make some such arrangements’. 

For Ngati Whatua, FitzRoy’s apparent willingness to listen, adapt, acknowledge wrongs provided a strong indication that the Crown shared their desire to continue to build and maintain a relationship. At the meeting with FitzRoy Ngati Whatua welcomed the Governor’s implicit acknowledgment of the wrong done in Te Mania’s case, and agreed that a measure needed to be prepared to ensure similar incidents did not happen again.  

A further sign of the Crown’s conciliatory attitude occurred soon after, when FitzRoy pardoned Te Mania.  The steps taken by both parties – Ngati Whatua in handing Te Mania back into custody, and the Crown’s acknowledgment that the mechanisms through which it operated in such situations needed to be redefined – thus appeared to be a step toward a greater atmosphere of trust and co-operation. 

The centrepiece of FitzRoy’s new legislation was the 1844 Native Exemption Ordinance. This created procedures to deal with offences committed by Maori which better recognised Maori authority through the closer involvement of rangatira. In disputes between Maori, two rangatira of the injured party’s hapu had to bring an information against the alleged offender before a magistrate could issue any summonses, and these would then be delivered to two rangatira of the offender’s hapu to execute. In cases of disputes between Maori and Europeans outside of towns, the summons was to proceed through two principal rangatira via the local Protector of the district. The rangatira were also to receive small payments for executing summonses. The ordinance also took account of the principle of utu (payment of compensation in lieu of punishment in criminal cases other than rape and murder), allowing for part of a fine to go to the victim.  The inclusion of utu provisions in the ordinance was at the special request of Ngati Whatua, and Chief Protector of Aborigines Clarke noted that it gave ‘very general satisfaction to the intelligent chiefs’.  Finally, the ordinance provided that no Maori could be imprisoned for civil offences such as theft, debt or breach of contract, doubtless with the aim of preventing incidents such as the one involving Te Mania from happening again. 

Three other ordinances were introduced in 1844 with the aim of better aligning Maori and British views of justice and authority. The Unsworn Testimony Ordinance allowed non-Christian Maori to give evidence in court, and appear as plaintiffs against Europeans. The Jurors Ordinance made it possible to appoint Maori to sit on juries in cases where either the defendant or the plaintiff were Maori, although in practice this did not occur due to settler opposition. Finally, the Cattle Trespass Ordinance 1842 was amended to also allow claims for damages to unfenced cultivations. The amendment effectively placed the responsibility upon the run-holders (predominantly European) to fence in their cattle, rather than on gardeners (predominantly Maori) to fence cattle out of their cultivations. 

The new legislation acknowledged rangatiratanga, and pointed to the necessity of drawing upon the authority of chiefs to deal with issues of law and order for both Maori and Europeans. FitzRoy, however, never intended the new legislation to become permanent. These were to be temporary measures. FitzRoy observed that the 1844 Native Exemption Ordinance was designed to be ‘less at variance with those habits and customs, which, in… present circumstances, cannot be laid aside and discarded’.  FitzRoy intended the legislation to be a transitional step and the most appropriate avenue through which to manage issues of law and order within the current climate, although this was certainly not the way he presented the measures to Ngati Whatua and other iwi.

Ngati Whatua, however, saw the new legislation as a means to ensure the ongoing involvement of rangatira in the administration of justice in the colony. This indeed was what the Treaty of Waitangi and their compact with the Crown had offered. FitzRoy himself made the link between the new legislation (albeit temporary) and the Treaty, observing that

‘much, very much, may be effected by rigid justice; – the natives having the practical as well as theoretical privileges of British subjects, when those privileges are favourable to them; but being allowed the full consideration due to ignorance and their peculiar habits when brought under the arm of English law. This may sound too much like undue partiality: it is in strict accordance, however, with the Treaty of Waitangi, and – it may be added – with truly equitable conduct’. 

This new legislation came under heavy criticism from the settler population. They saw it as a sign of FitzRoy’s weakness and the apparent powerlessness of the colonial government . The Auckland Times was particularly scathing

‘We know of and we appreciate very highly the motives which prompt the present local Government in its bearing towards the Maoris [sic]… but it is quite possible that… protection for, and justice towards her own people is at least as imperative upon her as generosity to the natives.

The Maoris [sic] are not such babes as to need the protection of which we hear so much. Protection from whom? – we know of no one disposed to harm them. A good motive is carried too far in this case… The imbecility of the late government has gone far to plant habitual contempt and derision towards European character in the mind of the Maori, instead of the admiration and deference which was formerly in vogue. 

The Crown, however, was in a much more delicate position than the settlers acknowledged or even realised. As Protector of Aborigines Clarke observed, 

‘we have been so apprehensive lest any position of the executive power should pass into their hands, that our firmest [Maori] friends have been shaken in their confidence in our ultimate intentions’.  

Essentially, Ngati Whatua behaviour during the Te Mania incident had forced the Crown to reassess the way in which it conceived its relationship with Maori in general and Ngati Whatua in particular, and the outcome at least suggested the form which an equal and positive relationship might take root and flourish. But if this seed was to take root, it would need careful nurturing.  

 GREY’S FIRST GOVERNORSHIP 

The political relationship between Ngati Whatua and the Crown showed some promise during the period of Grey’s first Governorship. During this time Ngati Whatua continued to take advantage of the economic opportunities which European settlement provided, and Grey’s efforts at providing educational and medical services for Maori, combined with his highly personal style of governorship aimed and developing and maintaining close relationships with leading rangatira (what is often called his ‘flour and sugar’ policy), seemed to convince Ngati Whatua that the Crown was as committed to fostering the relationship as they were. On the other hand, as we shall see, a reasonably close relationship with the Governor did not prevent the Crown’s failure to protect the interests of the iwi in the matter of, among other things, surplus lands and pre-emption waivers. Nor did it ultimately secure them a real role in the administration of the colony. 

Nevertheless, trading opportunities provided by the expanding settlement of Auckland in this period meant that Ngati Whatua experienced a degree of prosperity, at least initially. The population of Auckland district rose to just under 12,000 by 1853, thus increasing the market for Ngati Whatua and other Maori engaged in providing the town with produce and supplies.  Ngati Whatua continued to focus on fresh produce, with Okahu remaining the largest cultivated area (some 360 Ngati Whatua are recorded living there in 1848-1849), but the production of smaller communities in Kaipara was also growing in significance. The missionary Buller reported in 1852 that Ngati Whatua at Kaipara were almost wholly engaged in ‘husbandry, and transporting their produce, chiefly in small vessels of their own, to Auckland where they readily obtain a good market’.  

The Maori Messenger noted in 1851 that Kaipara Maori were among main producers of colonial wealth, and were ‘no less industrious than they are honest and well behaved’.  Timber was the main focus in the northern Wairoa, Otamatea and Mahurangi. With the growing needs and increasingly more sophisticated wants of the Auckland market, Ngati Whatua also sought to diversify their produce, adding by the early 1850s melons, grapes, quinces and oysters to the already established staples like potatoes, cabbages, fish, pigs, and wood. In 1852 Ngati Whatua sent 348 canoes laden with produce to Auckland which delivered 1600 kits of potatoes (averaging 75lbs in weight each), 138 kits of onions (averaging 50lbs each), 700 kits of cabbage, 73 kits of peaches, 5000 bundles of grass, 87 tons of wood, 5.5 tons of fish, 169 pigs, 157 fowls and 186 kits of maize, in addition to an array of goats, ducks, oysters, melons, grapes and kauri gum.  

By the following year the number of Ngati Whatua canoes rose to 477, reaching the peak in 1855 when 622 canoes departed to trade in Auckland.  One observer described the arrival of a small fleet of canoes in Auckland

‘Drawing them up in a line upon the beach, and with their masts and sails pitching a long line of various figured tents, they encamp themselves for several days. The neighbourhood of their camping ground presents the appearance of a fair: pigs and potatoes, wheat, maize, melons, grapes, pumpkins, onions, flax, turkeys, geese, ducks, fowls, and firewood, are exposed for sale in great abundance, and meet with a ready market. But the money they receive in payment does not leave the town… Their ‘shopping’ ended, they take their departure, laden with spades, blankets, iron-ware, and clothing of various kinds…’. 

The prosperity experienced by Ngati Whatua at this time strengthened their position and further convinced them of the value of continuing to deepen and expand their relationship with the Crown. Ngati Whatua, however, necessarily became inextricably locked into the settler economy, and while this proved to be a source of material advantage for them in the 1840s and early 1850s that, as we shall see, would not be the case in the following years, especially during fluctuating economic cycles. 

A Ngati Whatua belief that the iwi would continue to reap the benefits of a close and positive relationship with the Crown was strengthened with the arrival of Governor George Grey in 1846. Grey, like his predecessor FitzRoy, was cognizant of the balance of power on the ground, and based his policy on continuing to foster the belief among Ngati Whatua (and other Maori) that power sharing and an equal political relationship was acceptable to the Crown. Like FitzRoy, Grey’s policy was borne out of necessity and expedience rather than a genuine or thoroughgoing desire to develop an effective political partnership. It was this necessity which forced Grey to resist settler attempts to institute settler self-government early in his governorship. Commenting on this proposal for self-government, Grey noted that it would only

‘give to a small fraction of her subjects of one race the power of governing the large majority of her subjects of a differing race… [it] will give to a small majority of one race the power of appropriating as they think proper a large revenue raised by taxation from the greater majority of her subjects of another race. And these further difficulties attend this question: that the race which is in the majority is much the more powerful of the two; the people belonging to it are well armed, proud, and independent; and there is no reason that I am acquainted with to think that they would be satisfied with and submit to the rule of the minority, while there are many reasons to believe that they will resist to the utmost’. 

In essence, Grey recognised that ignoring Maori wishes and expectations at this time would simply make impossible for the Crown to govern. As Donald McLean later admitted, ‘to support and conciliate the chiefs is the only policy by which our influence and power for good can be maintained’. 

Grey thus continued to build on FitzRoy’s attempts to involve rangatira in the administration of justice. He introduced the Resident Magistrates Ordinance in 1846, which included many elements of the Native Exemption Ordinance 1844. The Ordinance allowed for disputes between Maori to be resolved in a court presided over by a Resident Magistrate and two Maori whakawa (judges or assessors, as they became officially known). The Ordinance further provided that no judgement could be executed until all three concurred in the decision. The whakawa were to be ‘men of the greatest authority and best repute in their respective tribes’, and three Ngati Whatua rangatira – Te Kawau, Te Tinana and Te Keene – were appointed to the office in April 1852 on an annuity of £50.  As with the Native Exemption Ordinance, Resident Magistrates were given the discretion of allowing Maori to pay compensation (utu) in cases of theft or assault to avoid imposing gaol sentences. Resident Magistrates were also instructed to be guided by equity and good conscience, and thus take into consideration possible Maori ignorance of the law and its application when making judgements. 

The introduction of the 1846 Ordinance was welcomed by Ngati Whatua, as it served as a further indication of Crown’s commitment to power sharing while also enabling them to achieve quick and efficient legal remedies. In December 1846 Thomas Beckham was appointed Resident Magistrate for the Auckland district, and one of the first cases he heard was brought by Te Reweti against a European for failure to pay for the hire of a schooner. Te Reweti won the case.  Indeed, considering the extent of Ngati Whatua involvement in commercial activities in and near Auckland, the Resident Magistrate’s court proved of considerable utility to the tribe in resolving civil disputes. As Loveridge has noted, in one quarter in 1847, 25 out of 40 civil cases before the Resident Magistrate’s Court involved Maori complainants.  In Kaipara, Francis Dart Fenton (future Chief Judge of the Native Land Court) arrived as the Resident Magistrate in 1854, but it appears his working relationship with the whakawa was poor, due to his narrow and legalistic approach and his belief (shared by many settlers) that Maori should not have any significant authority in the administration of colonial justice. 

Other measures were also introduced to further involve Maori in the administration of justice. For Maori resorting to justice in Auckland, a government-subsidised lawyer was appointed as standing counsel. The Constabulary Ordinance of 1846 allowed recruitment of Maori to a Native Constabulary to assist the Government police establishment, and some Ngati Whatua enrolled in this service.  Their role, however, was largely confined to cross-cultural disputes since, despite Grey’s efforts, Ngati Whatua almost invariably continued to rely on their own system of justice when disputes involved only Maori. 

Grey, however, was prepared to go further than simply involve Maori in the colonial legal system in order to ensure their continued allegiance. He realised that the only avenue through which Maori allegiance could be firmly secured in the long term was ‘to attach them to the Crown by permanent benefits, which may convince them that Her Majesty’s views towards them are benevolent in the highest degree, and that the Queen entertains no idea of despoiling them of their property’.  This is sometimes referred to somewhat derisively as Grey’s ‘flour and sugar’ policy, but it was in reality much more than that.  

Grey also recognised that FitzRoy, despite repeated promises, had failed to assist Ngati Whatua (or Maori more generally) in securing their future through provision of schools, hospitals and other public amenities and services. As noted above, in May 1846 Grey observed that

‘[w]hen I arrived here, I found that a Department termed that of the Protector of Aborigines, was maintained at a cost of about £2,500, of which sum about £1,000 was appropriated to the salaries and allowances of Mr Clarke and two of his sons, and that not a single hospital, school, or institution of any kind supported by the Government was in operation for the benefits of the natives’. 

Grey had in fact abolished the Protectorate Department some three months earlier, intending to expend the funds formerly devoted to the Protectorate on schools, hospitals and other services for Maori in order to ensure more practical and lasting benefits for them. Grey consequently approved the building of a hospital on the grounds of the Auckland domain in the hope that it would prove beneficial for local Maori. It appears that initially it was, with 80% of the patients treated there in 1848 being Maori, although mainly as out-patients rather than in-patients. An aversion to being hospitalised for extended periods of time, combined with other factors, resulted in far fewer Maori using the hospital by the end of the 1850s. 

In 1847 Grey introduced an Education Ordinance which, although applicable to Europeans and Maori, was initially utilised chiefly for the education of Maori and ‘half-castes’ (mixed race children). The Ordinance made funds and land available to Anglican, Wesleyan and Roman Catholic churches to help them finance existing mission schools and establish new ones. In 1849 the Government donated land for the construction of Three Kings Institute (for Maori children of both sexes) and St. Mary’s (for both Maori and European children). In the following year the Government provided funding for St. Stephen’s (for Maori girls).  Although the settlers strongly opposed educational programs which included both Maori and European children, Grey firmly believed that such measures would ensure the future advancement of Maori ‘in the arts of civilized life’, so ‘that they may have a prospect of standing on terms of equality with the European race, and understanding and speaking their language’.  Essentially Grey saw the schools as agents of assimilation. Ngati Whatua saw these institutions in a different light; not as a means of assimilation and the destruction of their own culture, but as an opportunity to learn new and increasingly necessary skills, including fluency in English, the language of commerce. As the Maori students from Three Kings, undoubtedly including a number of Ngati Whatua, explained to Grey in upon his departure from New Zealand in 1853

‘our hearts are glad because you are the father for all the Maori men of this island. You are very kind to the Maori men to build the school for Maori children, to let the Maori men be chiefs, this is the thing, that we are sorry for thy going because some English men stop thy way to make us chiefs you did not listen to their hard way. You would try to build the School in every place of this island of New Zealand, you have great loving to us, to build the School, you are laying the large Stone of the corner. That is the reason that we know that you are standing before God….Try to send the teachers for the Schools, that the Maori men may be saved, that they may be like their brethren to make them chiefs together, in this world, and in that world also, in heaven’. 

Grey also succeeded in securing funding for Maori purposes once the New Zealand Constitution Act, establishing settler government, was enacted in 1852. Under this system a portion of the Civil List (the revenue directly under the control of the Governor under the Constitution) was reserved for Maori purposes. Grey obtained an agreement that £7,000 should be annually set aside for

‘The construction and maintenance of hospitals, to which Maoris are admitted on equal terms with other subjects of Her Majesty;

The establishment and maintenance of schools, to which Maori children are admitted on the same terms as other scholars;

For the payment of resident magistrates and of native magistrates and for the maintenance of a Native police;

For making presents to native chiefs in acknowledgment of services rendered by them;

And, generally, to such other purposes as may tend to promote the prosperity and happiness of the Native race, and their advancement in Christianity and civilisation’. 

Grey went on to add that in

‘naming the sum that will be required for native purposes I have supposed that, as under Lord John Russell’s original instructions, the Governor in Chief would still, if a necessity for his doing so should arise, be authorised to apply 15% of the land fund to such purposes’. 

Grey did not secure a portion of the Civil List for Maori purposes out of aroha for the race. Rather, he feared that a settler dominated Assembly would make no such provision, and race relations might thereby be imperilled, as would his own ability to manage the chiefs through the careful distribution of patronage. 

Grey understood the importance Ngati Whatua and Maori in general placed on maintaining on-going relationships as the basis for co-operation, and he sought to ensure that his relationship with them followed this path through visits, meetings and correspondence with leading rangatira, and by making gifts and granting pensions and loans. Grey approved a number of loans (amounting to several thousand pounds) for the purchase of mills, schooners, horses, livestock and farm equipment. For the Governor this was a worthy investment, given ‘what the Natives have done with those loans, the faithfulness with which they have been repaid, the stimulus it has given to industrial pursuits, [and] the influence it has given the Government over them’.  Te Otene Kikokiko and Arama Karaka each received £10 as reward for their services in northern war of 1845, and Te Kawau received £10 in appreciation of his continued efforts in ‘suppressing wrongdoing’ and ‘his continued friendship with Pakeha and the Government over many years past’.  

Grey also understood the importance hospitality played in fostering relationships with Maori. In 1850 he hosted a large feast for Government officials and leading rangatira from around the Auckland isthmus, believing that such hospitality could produce a ‘decidedly beneficial effect’.  He believed that by meeting with the rangatira and listening to them he was ‘practically’ giving them a voice in the government, and Wynyard, the acting administrator following Grey’s departure from New Zealand, followed in Grey’s footsteps in this respect. 

For Ngati Whatua, Grey’s policy undoubtedly brought material advantages, but perhaps more importantly it also indicated to them that the Crown had an on-going commitment to building a relationship, which in turn reinforced Ngati Whatua’s determination to pursue the same goal. It should also be noted that Grey’s policy of presenting gifts and loans not only fostered a positive relationship, but also imparted customary obligations of reciprocity. Grey’s efforts in attempting to provide medical and educational services served as further confirmation of the Crown’s long-term commitment to the relationship. In return, Ngati Whatua continued to support the Government and honoured the compact. In 1851 for example, open conflict nearly broke out in Auckland as a consequence of an assault by a police constable on a Ngati Paoa rangatira during an attempted arrest. Large numbers of Ngati Paoa – between 600 and 800 – arrived in Auckland to demand compensation, threatening to attack the town if they did not receive it and seeking Ngati Whatua support for their cause. Ngati Whatua refused, as they would remind Grey some two years later, on the eve of the Governor’s departure from New Zealand, because they (Ngati Whatua) had never 

‘resisted your authority. It will be seen that the hands of the Ngatiwhatua have not touched a gun to molest the Europeans. You will remember that Ngati Paoa sought a quarrel with the Europeans, and came to our place, but we rendered them no assistance….This is our love, the love of the people who protect the Europeans…’. 

ECONOMIC, SOCIAL AND POLITICAL DECLINE, 1856-1860

By mid-1850s, the relationship between Ngati Whatua and the Crown, which had apparently been heading in a positive direction just a few years earlier, was coming under increasing strain. Ngati Whatua’s economic position was weakening, and their involvement in the political life of the colony was rapidly diminishing. The growing influx and influence of settlers in Auckland increasingly served shut Ngati Whatua out of the European economy and politics, in effect beginning the process which would completely marginalise Ngati Whatua (in both political and economic sense) by the turn of the twentieth century. 

While an increase in Auckland’s population had initially provided many commercial opportunities for the tribe, the settlers’ main aim had always been to achieve self-sufficiency and avoid dependence on Maori. This shift is most clearly evident in the amount of land under cultivation or occupied as runs by Europeans during the decade between 1848-1858. In 1848, this amounted to just over 4,000 acres; by 1853, just five years later, the amount climbed to almost 20,000 acres, and tripled to 60,000 acres by 1858.  

Increasing competition in the Auckland market forced Ngati Whatua to look to other options. Some increasingly turned to extractive industries, such as gum-digging and timber trading, and some also attempted to explore other markets for their produce, most notably Rarotonga.  But from 1856 the importance of establishing new accessible markets closer to home was becoming increasingly evident, and Ngati Whatua efforts in this regard focused on attracting European settlement to the Kaipara in the hope that it could provide a ready replacement for the declining Auckland market. Kaipara had generally been ignored by the Crown until the mid-1850s, although as noted already, Ngati Whatua in Kaipara had benefited from the Auckland trade in the 1840s and 1850s. 

In 1857 the Land Purchase Commissioner (and future Native Minister) Donald McLean visited the Kaipara and Whangarei areas. He was impressed by the economic and settlement potential of these regions. McLean made an extensive report upon his return to Auckland, advocating the purchase of virtually all the land in the region, but also stressed the need for ‘liberal and comprehensive measures’ to ensure good relations with Maori in the region – Ngati Whatua included. He recommended that part of the Government’s profit from re-sale of Maori land to settlers be re-invested back into the region to provide for roads, schools, hospitals and other benefits. As McLean explained

‘I am quite aware that time, patience and perseverance, mutual forbearance, and reciprocity of good offices, are required to reconcile the Natives to our forms of government, but I am nevertheless fully confident that if they are once made to feel the aim and object of the Government is to promote impartially the permanent advancement of both races of Her Majesty’s subjects, irrespective of any temporary expedient for gaining some particular object, they will soon adapt themselves with zeal and loyalty, to such changes as their natural acuteness of observation may prove to them as in reality conducive to such a consummation. 

This was yet another blueprint for a mutually beneficial relationship. Ngati Whatua certainly hoped that this path would be followed in the Kaipara, and Te Keene Tangaroa permanently moved there from Orakei in 1857 in order to facilitate this.  The results, however, would prove to be disappointing for Ngati Whatua, as we shall see below.

As Ngati Whatua economic opportunities in Auckland came under increasing threat, other developments further weakened and undermined their position at this time. One notable factor was the deteriorating health situation. From the mid-1840s missionary James Buller noted the illness and mortality of Maori in the Kaipara region with increasing frequency. One historian has estimated that the total Ngati Whatua population in the Kaipara alone declined by about 30% between 1843 and 1858.  This situation was exacerbated by the inadequacy of Crown-provided medical facilities at this time. As noted earlier, few Ngati Whatua, or Maori in general, were using the Auckland hospital by the end of the 1850s. Lady Martin – the wife of Chief Justice Sir William Martin – noted that she could only rarely persuade Maori to attend the government hospital ‘though we dwelt on the advantage of a regular doctor and the many appliances’.  She also commented that Ngati Whatua preferred her own little cottage hospital at Taurarua (Judges Bay) because of the ‘homeliness of our arrangements and the simplicity of our rules, and above all the fact that we could talk Maori’.  In other words, Lady Martin’s hospital provided a more appropriate medical service for Ngati Whatua within a cultural context, but could hardly have carried the burden on its own. 

Educational services established under Grey’s governorship also proved largely ineffective as far as Ngati Whatua were concerned. The main problem consisted in the type of education the Crown intended to provide for Maori. Grey, and many other officials and settlers, saw the future role of Maori as fully assimilated farm workers, labourers or domestic servants.  The curricula adopted by the Native Schools reflected this, and involved a considerable amount of physical labour outside in the fields and gardens associated with the schools. This prompted Maori parents to complain that their children were being treated as servants rather than scholars.  This kind of instruction hardly equated with the Crown’s promise of equality. Nor did it meet a Ngati Whatua expectation that their young people would be fitted for a role in commerce or the professions. Ngati Whatua wanted, and needed, their children to be educated in order to function equally at all levels of the new colonial society, but the Crown’s vision of education for Maori fell well short of that goal.  

By the mid-1850s the native schools had mostly proved a failure, not even succeeding in teaching the children how to read and write.  The instruction, which focused on domestic, religious, moral and social duties, prompted Paora Tuhaere to complain that ‘there was too much of the bible taught and too little of other subjects; that they were taught in their own language, whereas their great desire was to learn English’. 

Perhaps of greatest concern for Ngati Whatua at this time were developments on the political level. With the growth of European settlement came the growth of settler and Crown political power, and the power sharing that Ngati Whatua had hoped would eventuate from their compact with the Crown was appearing more and more unattainable. The shift in political power was gradual, and would not become complete until later. However, the inexorable road to Ngati Whatua’s political marginalisation perhaps began in 1852, with the passage of the New Zealand Constitution Act which established settler government in New Zealand. 

In one sense, however, the passage of the Act gave the Crown an excellent opportunity to involve Ngati Whatua, and other Maori groups, in governing the colony. Section 71 of the 1852 Act gave the Government the power to proclaim Maori districts in which Maori laws and customs would be maintained, and Ngati Whatua and other Maori groups would continue to point to this provision over the following decades to justify a greater Crown recognition of their political aspirations. The Government chose not to proclaim such districts. Grey believed that establishing Native Districts would merely perpetuate ‘the barbarous customs of the Native Race’.  Indeed, the Government’s reluctance to genuinely involve Ngati Whatua and other Maori groups in the political establishment was certainly driven in part by prejudice and an overwhelming belief in the superiority of European institutions. The ‘barbarous’ and ‘uncivilised’ Maori could hardly expect to be involved in the leadership of the colony as long as they clung to their traditional – and by extension, ‘barbarous’ and ‘uncivilised’ – values and customs. As Adams observes, “[e]quality of political rights demanded Maori subscription to the material and social values of the early Victorian civilization. Being equal meant being British’.  This was far from partnership. 

Beneath the prejudice lay a more deep-seated and fundamental conflict of interest between Maori and the European settlers. Put bluntly, Maori could not be afforded a genuine share of state power as long as the protection and advancement of their interests clashed with those of the settlers. Allowing Maori such political clout would have threatened the settler ability to assert their views and interests in the political arena, and thereby jeopardised the entire colonial project in New Zealand. When in 1847 Grey resisted settler efforts to establish settler government in New Zealand he did so mainly out of expediency. Maori were simply in too strong a position to accept such a shift in political power without dire consequences for the colony. And while Maori were still in a relatively secure position in the 1850s, the growth of European settlement and a strengthening of the Crown’s position ensured that settler government would become a reality before long.

This change, and the road to political marginalisation that it presaged for Ngati Whatua and Maori generally, may not have been immediately apparent to the tribe. The determination of Native policy remained the sole preserve of the Governor until 1864, and Ngati Whatua continued to maintain close links with the Governors (Grey and his successors) in the hope of sustaining the positive relationship with the Crown they had enjoyed through much of the 1840s and early 1850s. The arrival of settler self-government, however, gave settler politicians like Alfred Domett (who regarded the Treaty with ‘utter contempt’) and J. C. Richmond (who anticipated the time when it would be overruled and Maori claims to the extensive bush-lands would no longer be able to ‘damp the ardour and cramp the energies of the industrious white man’) an official forum to express such views and afforded then an opportunity to formulate strategies to undermine any Maori role in government.  

Moreover, responsibility for allocating finances necessary for the administration of land purchase and Native policy in general rested with the settler Assembly, allowing it to effectively prevent implementation of any policy contrary to the settler interests it represented. While Grey succeeded in securing a £7,000 Civil List for Maori purposes in the New Zealand Constitution Act, that sum was almost wholly used to fund or subsidise education. All additional expenditure for Maori purposes was dependant on the settler Assembly, and as Ward has noted

‘the sum approved paid for little more than the salary of Nugent [New Ulster Colonial Secretary] and a clerk who printed the tawdry Maori language paper The Maori Messenger, a few pensions and presents for chiefs who had assisted the Government, and a contribution to the cost of smallpox vaccination’.  

Furthermore, Maori were largely excluded from the electoral franchise, and were further distanced from the Crown by the imposition of the provincial system in 1853.  The political reality in the 1850s meant that Ngati Whatua were effectively shut out from any meaningful decision making, in stark contrast to their expectations in 1840. 

Voices of discontent among Ngati Whatua began to be heard as early as 1856. One Auckland observer noted that Maori in the region had begun expressing ‘their desire to be represented in the councils of the country, and they have spoken about being placed on juries. They are very suspicious as regards the acts of the present Government’.  The level of disillusionment among Ngati Whatua was such that they convened a hui in 1857, attended by rangatira from Orakei and Kaipara, and enlisted the support of William White, who wrote to the Governor outlining Ngati Whatua concerns. The principal grievance was a land dispute, but general disenchantment with the Government is evident in the letter

‘That having lost all confidence in the Government, and exhausted all constitutional and legal means in order to avoid hostilities and seeing that they are expected to render obedience to British Rule, while at the same time that they are excluded from its protection, they wish most explicitly and clearly to convey to your Excellency their determination to take their own course unless some expedient can be devised in order to avert the calamity which now threatens them…’. 

Despite their disillusionment, Ngati Whatua did not renege on their commitment to continue to build and maintain a positive relationship with the Crown. This was even more important within a changing demographic environment. With the settler population growing, the Crown increasingly offered the only means of protection within the colonial power structure. But expanding settlement, the European population in New Zealand rose to 97,000 in 1861 from just over 26,000 in 1851, put pressure on the colonial government to acquire more Maori land, and acquire it speedily. 

This pressure for land was further exacerbated by a growing unwillingness among many Maori groups, particularly in the central North Island, to sell further land. The growing Maori opposition to land selling gave rise to the Kingitanga – the Maori King movement. The Kingitanga had its genesis as a pan-Maori movement aimed at the consolidation of Maori culture and society, offering protection from encroaching European settlement and the assertion of a system of authority equal to that established by the British.  The Crown, however, perceived the movement in a much more sinister light, viewing it as a ‘land league’ with ‘dangerous political leanings, representing a rejection of British sovereignty and the treaty’ which sought to ‘inhibit indefinitely the expansion of a thriving colony’.  

In order to secure support from Maori tribes perceived as loyal, including Ngati Whatua, and isolate the Kingitanga, the Crown again sought to implement measures which would allow for their greater involvement in the administration of the colony. Governor Gore Browne, on the urging of Donald McLean, agreed in April 1857 that the time had arrived when ‘some permanent arrangement for the better government of the Native districts must be made’, and he in turn introduced a number of acts the following year with that aim in mind.  Thus in 1858 the Native Schools Act was passed by which an annual sum of £7,000 was provided for denominational schools engaged in educating Maori students. The passing of this Act, together with the Assembly’s agreement to assume responsibility for the funding of the Native Department, freed the Civil List to be used for purposes other than education, most notably for greater assistance to Maori patients treated in hospitals, and in particular for the extension of the Resident Magistrate system. This move, however, was only achieved after Gore Browne consented to give his ministers discretion over the Civil List, meaning that after 1858 it could only be altered with ministerial consent, effectively giving more control to the settler Assembly over native policy. 

Gore Browne’s plans to modify and extend the Resident Magistrate system and give Maori greater control in their own districts was embodied in the Native District Regulations Act 1858. The Act authorised the establishment of runanga (effectively local councils) under the supervision of a European chairman which would make by-laws on matters of local concern. It also provided for the establishment of Native Districts (essentially districts over which Native title had not been extinguished) and provided regulations to assist in civil disputes between Maori and settlers, such as boundary fencing and control of dogs. A related measure, the Native District Circuit Courts Act, authorised the appointment of Circuit Court Judges (with a wider jurisdiction than that of Resident Magistrates) to sit with Maori Assessors and enforce by-laws. The measures again signalled to Ngati Whatua that a positive relationship with the Crown was still achievable, but benefits were slow to arrive. Settler politicians in the Assembly remained reluctant to provide additional finances for Maori purposes and ensured that Gore Browne’s extension of the Resident Magistrate system could not be immediately implemented. As Donald McLean would point out the following year: ‘Half a dozen legislative enactments, however admirable in themselves, will effect little practical good as a civilizing agency, in the absence of pecuniary resources’.  

Gore Browne attempted to introduce more legislation with the same broad aims in 1859, most notably a Bill for ‘promoting the Colonization of Lands in New Zealand, whereof the Native Title is at present unextinguished’. The Bill proposed permitting the Governor to raise a loan of £250,000 for the purpose of obtaining land from Maori, or to expend on public works beneficial to Maori, loans to individuals or through annual payments to chiefs or others, or through the establishment or maintenance of institutions for Maori benefit.  The Bill also envisaged that land be acquired from Maori for the formation of townships, with reserves set apart for the support of hospitals, schools, churches and other institutions beneficial to the vendors, with part of the proceeds of land sales to be also expended on constructing roads, bridges, and other public works. The Bill failed to receive ministerial assent, and further Bills drafted later in 1859 seeking to provide more comprehensive measures for co-operation between Maori and the Crown remained unimplemented due to the outbreak of war in Taranaki. 

THE KOHIMARAMA CONFERENCE

The outbreak of the war in Taranaki, combined with the growing strength of the Kingitanga, forced the Crown to seek a closer alignment with so-called ‘loyal’ tribes. Governor Gore Browne and Native Secretary Donald McLean convened a large pan-iwi hui in July 1860, hosted by Ngati Whatua at Kohimarama. The choice of Ngati Whatua as the hosts was not accidental, not only because they had been particularly close, reliable and trustworthy partners of the Crown over previous years, but because they had already underlined their commitment to continuing a relationship with the Crown at a hui with the Kingitanga representatives at Ngaruawahia earlier in 1860. At the Ngaruawahia hui Te Kawau had stressed the importance of continuing friendly relations with Europeans and the Crown, and Paora Tuhaere pointed to the beneficial aspects of their existing relationship. He concluded his remarks by fixing a stick in the ground to represent ‘the Queen and British nation’, warning the Kingitanga that ‘it is good: there the stick remains’. 

While the Crown’s primary purpose for convening the Kohimarama hui was to isolate Wiremu Kingi in Taranaki and the Kingitanga, the meeting also provided Ngati Whatua with a forum to engage in open discussion with the Crown and other iwi on a range of political issues, to air their grievances and both seek, and give, reassurances to the Crown that the positive relationship they had striven to achieve would be maintained and further developed. Gore Browne, in his opening address, invited the gathered rangatira to

‘confer with me frankly and without reserve. If you have any grievances, make them known to me, and, if they are real, I will try to redress them… If, therefore, you can make any suggestions for the better protection of property, the punishment of offenders, the settlement of disputes, or the preservation of peace, I shall gladly hear them and will give them my most favourable consideration’.  

Gore Browne also stressed the Crown’s continued commitment to Maori advancement and well-being, noting that ‘Her Majesty has instructed the Governors who preceded me, and she will instruct those who come after me, to maintain the stipulations of…[the] Treaty inviolate, and to watch over the interests and promote the advancement of her subjects without distinction of Race’. 

Ngati Whatua used this opportunity to remind the Governor of their long-standing relationship with the Crown and their continued commitment to maintaining and nurturing it

‘Listen to us, whilst we speak to you and explain our views and sentiments. They are the same as in the time past, even from Governor Hobson’s time down to your own – the present. We have always firmly adhered to you and the Queen’s sovereignty. Do not suppose that we are holding to the New Zealand customs. It is not so; for it was we who called you as a great and powerful people to establish yourselves on our lands, on the shores of the Waitemata…’. 

Ngati Whatua also sought to raise their concerns over the political direction of the colony, with themselves and other Maori groups increasingly being shut out of any meaningful decision making. It was this lack of political representation and power sharing which led Paora Tuhaere to call on the Crown to

‘let us be admitted into your councils. This would be the very best system. The Pakeha have their councils, and the Maoris have separate councils, but this is wrong. The evil results from these councils not being one. I therefore say let Maori chiefs enter your councils. The Governor says that there is a difference of language. In my opinion this does not matter, inasmuch as there are plenty of European friends who would make matters clear to us, as they know our language. I am desirous that the minds of the Europeans and the Maoris should be brought into unison with each other… This is the point I intend to press now, namely, the admission of my fellow chiefs into the council with Europeans to explain matters for them’. 

These sentiments were later reiterated by Paora Tuhaere

‘Now, therefore, our system shall not be a different one from yours, for the town is one, and the offences committed here by the Maoris the law will punish. It is for this reason that we so strongly press upon you the subject… of your printed address, where you say that it is ignorance of the English language which excludes the Maori from your councils and assisting in framing laws for the Maori and Pakehas.

Hearken! Although unacquainted with the Pakeha language, yet allow your friends, the Maori Chiefs, to enter into your councils, for we have many Pakeha friends, who can speak Maori to translate into English and Maori what is said in the council. By this means we shall have one law and one way of proceeding for the Maoris and Pakehas…’. 

In a real sense Ngati Whatua saw the present Conference as an opportunity for the renewal of their compact with the Crown. In his speech on 13 July Tuhaere argued that 

‘this [the Kohimarama conference] is more like it; this is the real Treaty upon which the sovereignty of the Queen will hang, because here are assembled chiefs from every quarter, and even from the other island, to discuss various questions and to seek out a path’.  

Ngati Whatua wished the conference to become an annual affair, to ensure the continued open discussion and their involvement in political decision making. Tuhaere urged that the conference should

‘be called a Maori Conference for the Queen. The Conference is now sitting here: let its proceedings be carried on here, and let it be held here in time to come, that we may be near to the Governor to give us directions, and that we may be near to convey our wishes to the Governor, that the Europeans may see them, and also that the European Assembly may be near to us sitting here. This Conference is a proper means by which we may come under the protection of the Queen. 

Gore Browne agreed that the Conference would become an annual event, providing a conduit through which Ngati Whatua and other iwi might involve themselves in the machinery of government and decision-making processes. For Ngati Whatua this undertaking seemed to reflect their own aspirations for power sharing. The Governor stated in his concluding remarks at the end of the conference 

‘I trust, therefore, that this Conference will prove to have been the means of restoring and strengthening confidence between the two races. Convinced of Her Majesty’s desire that her subjects should live in peace, you will return to your homes reassured, and enabled to correct any false impressions which may still linger in the thoughts of your people.

The education of your children, greater attention to the cultivation of the soil, the erection of better houses to live in, and the acquisition of European property, will, I sincerely trust, claim your chief attention, when you return to your people….

It now only remains for me to inform you that the Conference will be convened again next year, and the Assembly will assist me in devising measures for the establishment of order, and for the good of your race generally.

In the interval between the present time and the next Conference, I trust you will carefully consider the subjects to which your attention has been directed, in order that you may come prepared to express matured opinions, and to recommend measures for giving practical effect to your wishes. 

Paikea, a Ngati Whatua rangatira from Kaipara, proposed a resolution at the end of the conference

‘[t]hat this Conference takes cognizance of the fact that several Chiefs, members thereof, are pledged to each other, to do nothing inconsistent with their declared recognition of the Queen’s sovereignty, and of the union of the two races; also to discountenance all proceedings tending to a breach of the covenant here solemnly entered into by them’. 

Despite these assurances, and a Ngati Whatua understanding that annual hui would be held, there would be no further conferences of this kind. The following year Gore Browne was replaced by the returning George Grey, who promptly dismissed Gore Browne’s promise, believing that it would be impolitic to ‘call a number of semi-barbarous natives together to frame a constitution’.  Grey also rejected the proposal of the Secretary of State for the Colonies to institute an annual conference or parliament of chiefs as he believed that such a body would undermine the authority of the General Assembly.  Ultimately the ‘Covenant of Kohimarama’ would prove hollow. 

During the Conference the crucial subject of Maori land titles had also been raised. On July 18 McLean read a message from Gore Browne on this subject. Land titles were clearly a key issue for the Crown at this time, especially in the light of  recent events in Taranaki, where misdirected Crown attempts to buy land had led to war. According to the Governor it was notorious that Maori wars and feuds originated in the ‘uncertain tenure by which land is now held’. In his view it was desirable that some general rules or principles for regulating property rights should be set out, otherwise ‘progress in civilisation must be both slow and uncertain’, and unless the chiefs and people were secure in their possession of land it could not be passed on to future generations. While Browne emphasised a desire to avoid disputes among Maori and the need to secure property rights, he did not refer directly to recent events in Taranaki, which had arisen not so much as a result of conflict between Maori or the ‘uncertainties’ of Maori custom law, but rather had resulted from McLean’s insistence on pushing ahead with a purchase at Waitara from certain individuals despite tribal opposition. McLean and Browne were clearly seeking some means of ensuring that in future land sales might be achieved without similar difficulties. An emphasis on securing Maori property rights and ensuring the peaceful retention of land for future generations was thus somewhat disingenuous.   

The Governor first suggested that land rights in existence as at 1840 should be recognised as giving a ‘good title’. Where disputes arose, he added, these might be referred to a ‘committee of disinterested and influential chiefs, selected at a Conference similar to the one now held…’. According to Gore Browne some land might be set aside ‘in common for tribal purposes’, but the better option was for every individual Maori to possess a Crown grant ‘for as much land as they could possibly desire or use’. If a dispute arose the holder of a Crown grant need not appeal to the Government or go to war. Rather, the ordinary courts would protect his rights. The Governor did not go on to describe the next logical step in this reasoning; namely that those Maori secure in a Crown grant would be free to sell the land. Instead he stressed that it was

‘essential to the peace and prosperity of the Maori people that some plan for settling disputes about land should be adopted; the Governor therefore hopes that the chiefs will consider the subject carefully and dispassionately, and [he] assures them that he will gladly cooperate with them in carrying into effect any system that they can recommend, provided it will really attain the desired end’.  

McLean then spoke directly on this subject. He was of the view that no ‘fixed’ Maori custom law on the subject could be said to exist, other than the ‘law of might’. It was true that

‘various customs relating to native tenure existed, but these were not in any way permanent, and the endless complications of such customs were eventually resolved into the law of might… the Native has no well-defined law. The Governor had long thought of this subject, and he availed himself of the present Conference of chiefs to place his own views before them, in the hope that they would co-operate with him to devise such a measure as would simplify Native tenure, and enable them to leave the land they inherit in the quiet and undisturbed possession of their children. Scarcely a year passed without our hearing of war about land in some part of New Zealand. At Tauranga… also at Whakatane, Tunapahore, Upper Whanganui, Hawkes’ Bay, Ngapuhi, Te Ihutaroa, and now at Taranaki’. 

Despite McLean’s assertions in many of these instances it was blundering Crown land purchasing activity and a failure to ascertain customary rights, rather than the lack of any fixed or appropriate Maori custom law, which had led to the fighting, McLean insisted, however, that this was untrue. The Government used every endeavour to prevent such quarrels when conducting purchases, he claimed, and he cited cases where fighting had developed in the absence of Crown purchasing activity.    

As Loveridge notes, although the emphasis was on the peaceful resolution of land disputes it was clearly implied that a complete change in Maori land tenure, involving individualisation of titles, and by implication, the alienation of land, was under consideration.  This was made plain by McLean when he went on to note that the Governor 

‘was most anxious that some means should be devised by the chiefs of this Conference to define tribal boundaries and make such a subdivision of property among tribes, families, and individuals as would secure to them their lands rights on a more certain foundation than now existed’.  

While McLean’s emphasis on the broader need for establishing an orderly means of determining Maori titles, including individual titles, in order to ensure peace and a secure form of tenure was somewhat misleading in that he did not refer to the way in which the Crown’s land purchasing objectives might also be facilitated by such measures, it is fair to say that his comments would have gained a measure of acceptance among his audience, including the Ngati Whatua chiefs. They too sought peace and order as a means of fully participating in the new European economy. 

But lest we read this forward as a justification for the later introduction of the Native Land Court (a subject which will be discussed in detail in subsequent chapters), a number of points should be stressed. Firstly, according to McLean land titles would be determined not by a European judge but by a ‘committee of disinterested and influential chiefs’ to be selected at a subsequent conference. Secondly, it was not envisaged that all Maori land would be dealt with in this manner. According to Gore Browne some land would be set aside ‘in common for tribal purposes’. 

This proposal was not therefore, to be an unbridled individualisation of title. It would be controlled by Maori themselves. Sufficient land would remain in common ownership to support tribal purposes, with the strong implication that this would consequently assist in the retention of tribal structures, tribal control and rangatiratanga. Finally, although McLean had virtually dismissed the very existence of a rational system of custom law which might be applied in deciding land titles, he had, by assigning responsibility for making such determinations to a body of disinterested chiefs, implicitly acknowledged that customary principles existed and could be effectively brought to  bear. 

On July 25 McLean made further reference to the Governor’s proposals concerning the resolution of land disputes. This, in his view, was the ‘most important subject for discussion’ and should not be allowed to stand over for too long, although he accepted that many would wish to consider the proposals after they had returned to their homes and consulted their people. McLean added that some had found fault with the Government’s system of land purchase. One complaint was that the price was too low, and bore little resemblance to the much larger sums paid by settlers to the Government for the same land. That there was such a disparity was ‘certainly correct’, McLean admitted, but

‘if the land is allowed to lie waste it produces no return. When acquired by the Government, it is surveyed, and can only then be called productive land. The money received by the Government is expended in the construction of bridges and in the formation of roads, by means of which the produce of the land may with facility be conveyed to the towns for sale… indeed, I have always frankly told you when acquiring land that such would be the case. The reasons for its increased value are very clear and obvious. You must observe, from the much higher price of town lands as compared with country or wild lands, that it is the… improvement consequent on European settlement which really enhances the value thereof…’.

After thus clearly making the point that ‘collateral’ or indirect advantages of sale (including the provision of communications infrastructure and commercial opportunities) formed the main payment for land, the Native Secretary then returned to his main point, observing that in order to fully enjoy land and the advantages consequent upon European settlement a ‘good and indisputable title’ was necessary. The confidence which a good title inspired would lead to development and progress, he stressed. Were it otherwise

‘and that the land was merely held under a doubtful tenure, no improvements would be made, and the country would still remain in a comparatively wild and unproductive state – without a numerous people to inhabit it – without law – without Government – without security for life and property – and without wealth’.   

As O’Malley notes, the response to this message was ‘muted’.  There was indeed no immediate comment by the chiefs on these proposals, most likely because they required more time to consider the matter and consult with their people.  One of the few to respond was Paora Tuhaere. He noted that his tribe, Ngati Whatua, had been selling land for the last 20 years, yet few disputes had occurred. This was because when a block of land was offered for sale a tribal Runanga ensured that all those who were interested consented, and that any disputes arising after the transaction were settled.  What Tuhaere was saying, in effect, was that Ngati Whatua tikanga (or custom law) was sufficiently dynamic and capable of adaptation to meet changing circumstances, especially when administered and applied through existing tribal structures. This at any rate had been Ngati Whatua’s experience since 1840. 

Moreover, Tuhaere had made it clear four years earlier, in his evidence to the Board of Inquiry into Native Affairs, that he at least did not support any radical changes to traditional land tenure. He informed the Board that

‘many individuals would like to get their land set out and surveyed, with the view of obtaining Crown grants; but I think the chiefs would oppose it. The Ngati Whatua would prefer holding their lands conjointly with the chief as trustee.  

The manner in which land titles ultimately came to be determined, and the impact of this on Ngati Whatua land and tribal structures and organisation, will be addressed further below. 

THE MANGAKAHIA WAR

Despite McLean’s insistence that the Crown’s purchasing activities, particularly a failure to investigate the nature and extent of customary interests prior to embarking on purchases, were not to blame for tribal conflicts, it was not long before armed conflict broke out within the Ngati Whatua rohe, caused directly by shoddy Crown purchasing and just such a failure. 

The background to this conflict has been fully traversed by Paul Thomas in his 1999 report, and need not be recounted again here in great detail.  The area involved a border zone between Ngati Whatua and Ngapuhi, and tribal relationships and customary interests were fluid and complex. The valuable timber growing on the land made it a focus of Crown and settler attention during the 1850s. During this period a number of disputes were sparked by Crown purchase activity. The Crown’s response was simply to press on with purchases coupled with attempts at mediation. Many of these disputes involved the Te Parawhau chief Te Tirarau, Parore Te Awha, Paikea of Ngati Whatua and Matiu Te Aranui, who had links with Ngati Whatua and Ngapuhi.

Crown purchase activity was a catalyst for further conflict in 1860, at around the time of the Kohimarama Conference. This resulted in a ‘Great Meeting’ at Te Kopuru, organised by the Maori involved. No Government officials were present. This hui appears to have been successful in arranging a peace, but this was imperilled in 1862 by continuing rumours that Crown purchase agents were again active in the region. McLean had claimed that there was no system of Maori law except might. The ability of Maori to arrange matters among themselves in this instance contradicts that assertion. Further Crown intervention, not an absence of law of tikanga, undermined the Te Kopuru agreement. 

Williams, the Waimate Resident Magistrate, urged the Crown to withdraw from the area and recommended an arbitration. But there was no agreement among the contending parties on where such an arbitration might be held.  The situation worsened, and by April 1862 Tirarau and Matiu Te Aranui, the main leaders of the respective contending parties, had gathered their forces near Waitomotomo and built pa. Serious fighting broke out on May 16, involving around 500 men, and a number of warriors on both sides were killed.  

The Government response was feeble. Attorney-General Henry Sewell merely instructed the local Magistrates to make an announcement that anyone involved who was in receipt of Government salaries might be dismissed from their positions or have their pay stopped.  Further fighting subsequently took place with more casualties. There were rumours that both sides were about to be reinforced. It is notable, however, that great care was taken by both sides to avoid injury to Europeans or damage to their property. At this point Grey, fearing a serious escalation, decided to act. 

On June 11 Grey met with Paikea, Te Hemara Tauhia and other Kaipara chiefs at Auckland. He suggested that an arbitration take place on neutral ground in Auckland. The chiefs agreed. As Thomas notes, Grey was adamant that the arbitration be limited to the immediate dispute, rather than turning it into an inquiry into the conduct of Crown purchase agents, which both Paikea and Te Hemara wished to have traversed. Instead Grey told the chiefs that these matters would be considered later. They never were. Grey then visited the scene of the fighting and persuaded the parties to lay down their arms and send their arbitrators to Auckland.   

F. D. Bell presided over the arbitration but did not play a direct role. Both sides claimed customary associations, but an agreement could not be reached. In conformity with the terms of the arbitration a final decision was left up to Grey. He decided that Tirarau had an ‘overall’ right to the land, but in the event of any sale he must share the proceeds with Matiu’s party. Moreover, in order to avoid future difficulties only the Crown would be permitted to purchase the land, and the Crown would decide on the relative payments to be made in the event of a sale. The parties were bound to accept this decision as it was a condition of the arbitration, and there the matter rested.  Thomas concludes that this ‘settlement’ had all the hallmarks of a politically motivated decision designed to facilitate further Crown purchase. 

‘NEW INSTITUTIONS’

Despite Grey’s reluctance to involve rangatira in a political partnership at the national level, he nevertheless recognised the need to make some concessions in respect of local administration. Grey preferred to follow this path as it would tend to break the Maori population up into small units, instead of teaching them to look to one powerful ‘Native Parliament’. 

Grey outlined his plans in October 1861. His proposal envisaged a high level of Maori participation in the administration of Native Districts. According to Grey, it was the earnest desire of the Queen that

‘Her subjects in all parts of these Islands should participate in the benefits of law and order, be maintained in the undisturbed possession of their lands, and enjoy a perfect security for life and property: and that, for the attainment of these ends, they should, in as far as practicable, themselves frame and enforce regulations suited to their various requirements, and taken an active share in the administration of the government of their own country; so that all may regard with contentment and gratitude a government adapted to their wants, administered by themselves, and in the benefits off which all participate. And inasmuch as… large portions of the Northern Island of New Zealand have never been provided with any machinery by which law and order could be maintained, the good and well-disposed be protected, and the violent restrained, it is now intended to create the following machinery to give effect to the laws which have… been made for the security and welfare of Her Majesty’s subjects, both European and Native’. 

The machinery of Grey’s ‘New Institutions’ was complex. Each Native District was to be divided into administrative units called Hundreds, overseen by local Runanga. A Warden or head policeman would also be appointed to each Hundred, to be assisted by five constables. Two salaried Maori would be selected by the Governor (from a list supplied by the ‘Runangas of the Hundreds’) to represent the Hundreds in the ‘Runanga of the District’ and to act as Native Magistrates (Assessors). 

The District Runanga were to consist of a European Civil Commissioner and Maori members, with the Civil Commissioner presiding over the Runanga meetings with voting powers. The District Runanga would be charged with a wide range of duties, including the drawing up by-laws relating to cattle trespass, branding and animal health, the erection of fences (including fencing Maori lands and lands acquired by the Crown), preventing the spread of weeds, distributing the proceeds of land sales, the prevention of bush fires, dog nuisance, sanitation and health, the ‘suppression of common nuisances’, protection of property (including the ‘common property’ of tribes) the prevention of drunkenness, the ‘suppression of injurious native customs’, the inspection of Native schools and recommending the establishment of further schools, the erection and maintenance of gaols and hospitals (to which surgeons would be attached), and road maintenance. By-laws were to be drafted by the District Runanga and submitted to the Governor for approval. Courts charged with enforcing them would be conducted by the Civil Commissioners, Resident Magistrates and Maori Assessors working together. A report of the decision in each case would then be reviewed by a Supreme Court judge, in chambers, for approval or otherwise. 

Another important duty of the Runanga was to provide for the adjustment of any disputed land boundaries and determining land titles. As we have seen this matter was discussed at Kohimarama, and Grey’s proposals similarly envisaged a high degree of Maori involvement in any title adjudication process. The Runanga, in addition to its other duties, was to be charged with recommending the terms and conditions on which Crown grants might be issued (to tribes, hapu, or individuals). 

The manner in which titles would be determined was, however, not described in any detail, although it is clear that the chiefs themselves, sitting on the Runanga, would play a pivotal role in this. Once title had been determined land sales were to be strictly controlled, and it is notable that as well as assuming a key role in title determination, the Runanga would also be involved in selecting suitable settlers. It was envisaged that in order to be judged ‘suitable’ the settlers would be required to live on the land. Once boundaries and ownership had been determined and registered in the Civil Commissioner’s office, the Maori owners would be permitted to dispose of their lands, not exceeding the extent of one farm (the size of which was to be determined by the Civil Commissioner and the Runanga), to a purchaser approved by the Government on the recommendation of the Runanga. Purchasers were required to occupy the land for three years, and were not to be permitted to be absent without the leave of the Government for more than six weeks. A fine of £100 would be levied on transgressors. After three years the purchaser would receive a Crown grant. He might then sell the land on to another settler, but the same occupancy conditions would apply to the new purchaser. These stipulations were to be removed after 10 years. Maori, after their land interests had been determined, might also lease land on terms to be decided by the Government after consultation with the Runanga. 

Grey’s intention was to gradually introduce direct purchase and strictly control the pace and nature of settlement, while at the same time attempting to exclude speculators from the land market.  Grey himself described this as ‘the gradual occupation of the country by European proprietors’ based on the agreement of the Maori inhabitants’.  This proposal was in many respects appropriate as far as Ngati Whatua were concerned, as it would ensure that they would have a real role in controlling the pace and scale of settlement, and form a guarantee that settlers who took up residence on the land delivered real economic benefits to the vendors, principally employment and trade opportunities. In many respects these proposals accorded with what had bad been said by the Governor at Kohimarama on the subject of land titles; namely, that Maori themselves would largely control the adjudication process. 

The legislative authority for Grey’s New Institutions rested on Gore Browne’s Native Districts Regulation and Native Circuit Courts Acts of 1858. Many settler politicians supported Grey’s proposals because they believed it provided an opportunity for peacefully achieving what the war in Taranaki had failed to do – incorporate Maori fully under the British authority, and secure their co-operation in land selling for the purposes of settlement.  

The initial cost of introducing the New Institutions was estimated at £50,000 for the first year, and approximately £43,000 annually thereafter. The funding was to come from a £25,000 vote from the Assembly, and from re-directing the funds previously expended in contributions to the cost of Imperial troops in New Zealand. It was further intended that the fines and fees levied in the several courts of the Civil Commissioner and the Resident Magistrate would be used to provide further funding for the system. It was also expected that part of the cost of the system would eventually be covered by local taxation. The Government, however, would continue to fully or partly subsidise funding for Maori education and medical care.  

The system set up by Grey’s Runanga, in terms of its judicial and legislative functions, was said to be at least modelled on the provincial governments, established in 1853. As Grey observed in the Daily Southern Cross, ‘this is the way with the laws which the Europeans make in their Runangas’.  An amendment to the Native Districts Regulation Act (in 1862) extended the regulations to include alienated land and European settlers dwelling in predominantly Maori districts. In this way the Runanga system not only potentially empowered Ngati Whatua in furthering their own self-advancement, but also provided them with some jurisdiction over Europeans. 

In 1862, Grey visited Ngati Whatua at Ongarahu to personally present and outline his Runanga system. Ngati Whatua welcomed his proposals and once again reaffirmed their commitment to maintaining their relationship with the Crown. As Paraone stated

‘[T]the Ngatiwhatua are the children of the Queen. We are in the shadow of the Queen. We were married to the first Governor & the Queen & to you, we are true to you, will you come at some further time to see us in Kaipara. The Ngatiwhatua is the ancestor of the European. We brought the Governor on shore…’.  

By November 1864 nine Ngati Whatua rangatira had been appointed as Assessors – Te Keene, Te Hemara, Watarauihi, Matini Murupaenga, Pairama, Arama Karaka, Winiata, Wiremu Tipene and Wikiriwhi. Eleven were appointed as karere (messengers) on an annual salary of £10. As a sign of their support for the New Institutions and the on-going commitment to working with the Crown, Ngati Whatua gifted the Crown 10 acres at Helensville in November 1864, following the appointment of John Rogan as the Resident Magistrate, as the site for a courthouse and accommodation.  

By 1862, however, Grey had decided that the task of defining boundaries and title determinations would not fall within the purview of the Runanga, but would be handled by a separate body, a Native Land Court set up under the Native lands Act 1862.  While a full discussion of the way in which this new Court operated within the Ngati Whatua rohe will follow in a later chapter, suffice it to say for the purposes of the present discussion that this too provided for a large measure of Ngati Whatua control. 

In the period 1860-1864 all discussions on land titles and boundaries which had taken place between Ngati Whatua and the Crown, and all the measures which were instituted, reflected a view that Maori themselves would largely control the title adjudication process, and by implication, the scale and pace of European settlement.  

RETRENCHMENT AND ‘SELF-RELIANCE’

Unfortunately for Ngati Whatua, Grey’s New Institutions were stymied almost as soon as they had been introduced, and before the system was fully instituted within their rohe. There were a number of reasons for this. The initial support of settler politicians for Runanga soon dissipated after they realised that Maori were no more willing to part with their lands through the Runanga system than previously. The Assembly was unwilling to contribute funds for a policy that ceased to have any interest for settlers, who were also outraged at any suggestion that they submit to ‘Maori law’ administered by Maori.  As Alan Ward notes, among those who expressed the strongest objections to the New Institutions was one who had much to do with administering them, Francis Dillon Bell, the Acting Native Minister and Native Secretary. He not only opposed numerous appointments made in the out-districts, but ‘dragged his feet over requests for agricultural implements or stock, or grants for flour mills and access roads, sent in by the Runanga or Resident Magistrates’. 

Bell undermined not only the Runanga, but also the existing government, forcing Premier William Fox to resign due to his Ministry’s inability to implement the New Institutions. Although his successor as Premier, Alfred Domett, who was no friend of Maori autonomy, did not immediately disestablish the Runanga system it was mostly ignored.  

Grey was well aware of the half-hearted fashion in which Government officials approached the administration of the Runanga system, but hardly seemed troubled. As Dalton has argued, there is no evidence that Grey ever tried to ensure that his plans were more closely followed. He attempted no appraisal of the development or achievements of his new institutions. His only remarks on their operation comprised a few ‘brief and jejune comments’ made while forwarding some reports from Civil Commissioners: ‘It is scarcely possible to account for this extraordinary lack of interest except on the hypothesis that Grey had never attached any real importance to the scheme…’.  

More serious reductions (or ‘retrenchment’) in financial support for the Runanga were effected by the Weld Government in late-1864, just as steps were being taken to set up a Ngati Whatua Runanga. These policies were continued by the Stafford Government which took office in 1865. Weld and Stafford believed that Grey’s Runanga had been little more than ‘bribes’ to secure Maori support during the Waikato war, and now that Waikato had been defeated they served no useful purpose. Moreover, the new ‘muscular’ approach adopted by the Crown in the wake of the Waikato war, and a general settler ‘backlash’ against Maori, meant that there was no room for ‘exceptional law’ or separate treatment for Maori. Grey’s Runanga were a prime example of separate treatment and ‘exceptional law’, and were anathema to most colonial politicians.  As we shall see below, the Native Land Court set up under the 1862 Act was another casualty of ‘self-reliance’, and was soon to be replaced by a European-dominated Court which left little room for Maori agency. 

Grey’s New Institutions thus proved to be little more than another convenient political expedient for the Crown which was discarded as soon as its potential usefulness was deemed to have ceased. For Ngati Whatua, however, the collapse of the Runanga system within their rohe, just as it was about to assume a concrete role, removed another opportunity for the iwi to be involved in genuine power sharing, even at a limited local level, and a forum through which they might have participated in the economic development of their districts. Even more distressingly, such opportunities were to become even rarer as time passed. 

WAR IN THE WAIKATO AND NGATI WHATUA

The promises made by Gore Browne and McLean at the Kohimarama conference and Grey’s New Institutions evaporated so fast that by 1863 Ngati Whatua were beginning to feel like strangers on their own land. The increasing tension between the Crown and the Kingitanga in Waikato escalated into war in 1863, and Ngati Whatua, largely because if their kinship ties with the Waikato, found themselves targets of suspicion and even the outright racism of some Auckland settlers. The settler press in Auckland, led by the Daily Southern Cross, ran articles accusing Ngati Whatua of being spies for Waikato, and by August 1863 began demanding that all Maori be removed from Auckland to protect the town from a potential ‘fifth column’.  

Settler hysteria was totally unfounded, since even if Ngati Whatua sympathised with some of the goals of the Kingitanga movement, they clearly disapproved of Kingitanga methods. They reiterated their commitment to maintaining a positive relationship with the Crown, forged in 1840 and recently renewed at Kohimarama. Settler accusations and racism must have been particularly galling for Ngati Whatua, considering the critical role played by the tribe played in establishing the town of Auckland and helping it survive through difficult early years.

The Crown yielded to settler pressure and placed strict restrictions on ‘friendly’ Maori in Auckland in August 1863. A curfew was imposed, and Ngati Whatua were required to wear a distinguishing badge, a chevroned deep scarlet coloured cloth worn on the right arm.  Three months later the Governor demanded that south Auckland Maori take a further oath of allegiance to the Queen and give up their arms until the war was over. If they were unwilling to do this they should retire into the Waikato.  

In some instances the Crown’s paranoia led to even worse situations. In one instance, supposedly ‘friendly’ Maori kainga around Manukau Harbour were searched, and waka were taken away on suspicion that they were being used to transport ammunition to ‘rebels’. The soldiers ransacked houses in the kainga and took away much property.   

The increasing tension in Auckland forced many Ngati Whatua to move away from their homes in Orakei. Te Kawau himself threatened to ‘leave this land of confusion’ and go to Rarotonga.  Te Kawau did not leave the country, but he did leave Auckland, moving back with many of his people to their Kaipara kainga. By 1865 Orakei was virtually deserted, with only Paora Tuhaere, Tautari and Te Reweti maintaining residences in the area.  Even in departing Auckland Ngati Whatua raised the suspicions of settlers. A letter to the editor in Daily Southern Cross stated

‘Until lately, the Oraki [sic] natives used to call round amongst Remuera settlers very frequently with some kind of produce, but for weeks past an Oraki native is not to be seen in or about Remuera. They have left their former place of residence in Oraki Bay, and gone into a more secluded part inland, where their operations will not be so readily observed. It is also reported that they have increased in numbers lately’. 

More tension was created in late December 1863, when a Ngati Whatua man murdered the wife and daughter of John Thomson, the Kaipara mailman, at their house at Kaukapakapa. It was reported that the perpetrator had been heard by a surviving family member to say that he would kill more Europeans. Pakeha officials took the murder as evidence of Ngati Whatua hostility and a desire to assist their old allies in Waikato in war against the Government. 

Such comments could not have been further from the truth. The leading Ngati Whatua chiefs fully co-operated with the militia in apprehending the culprit, a young man named Ruarangi, the brother-in-law of Tamati Reweti. He was apprehended and taken to Auckland, where he was later tried and hanged. During the search for the murderer the Ngati Whatua chiefs continued to reinforce the point that they were, and would continue to be, friends of the Government and desired peace. Wiremu Tipene spoke of the need to have ‘this stain of blood taken away from Kaipara’, and Ngati Whatua unanimously agreed that Ruarangi be handed over peacefully for trial.  The leading Ngati Whatua chiefs also moved to reassure the Kaipara settlers. Te Keene Tangaroa, Te Otene Kikokiko and other chiefs promised their continued and absolute protection and ‘begged their Pakeha to stay’. 

Ngati Whatua conduct during the incident was exemplary. Premier Fox was generous enough to recognise this in an address to the tribe

‘You have behaved like great chiefs on this occasion, all of you. My heart is proud to see the great chiefs of Ngatiwhatua [sic] behave so. When the word of this murder came into Auckland – some people said, “this is the evil work of the Ngatiwhatuas”. But the Government said: No. The Ngatiwhatuas are a good tribe. It was the Ngatiwhatuas that asked the Pakeha to come to Auckland – and they sold them all the land there. And ever since that time they have been the friends of the Pakehas on all occasions…. It is not the evil of the tribe, it is the evil of that one man… When that man is tried and punished for his crime, then the stain will be washed altogether away from the Ngatiwhatuas… you have cleared yourselves, and no-one will say the Ngatiwhatuas are a bad people… Continue then to be the friend of the Pakeha, and let us be at peace in the neighbourhood of the City of Auckland, where you invited us to stay at first’. 

Ngati Whatua efforts to maintain a positive relationship with the Crown and settlers, and their great to desire for peace within their rohe, were perhaps best exemplified when 200 Waikato prisoners, captured at the battle of Rangariri, escaped from Kawau Island and built a pa on Crown land at Omahu, in the Mahurangi district.  The escaped prisoners remained peaceful, but there was an outbreak of settler hysteria and an increasing likelihood of conflict, especially if the escapees stole settler stock or other provisions. Ngati Whatua (particularly Te Hemara Tauhia and Paora Tuhaere) played a key role in brokering an agreement whereby the prisoners were given safe passage back to the Waikato, and also supplied them with food so as to avoid and pillage of settler property. Once agreement had been reached the prisoners were escorted to the Kaipara (Paparoa) by Te Hemara, Tuhaere, and other chiefs, and then made their way back to their homes.   

Summary

Ngati Whatua prospered to some extent, and for a time enjoyed a brisk trade with the developing town of Auckland. For the Crown, however, a commitment to nurturing their political relationship with Ngati Whatua was based on expediency and pragmatism. The growing influx of settlers throughout the 1850s and the advent of settler government meant that the balance of power was inexorably shifting in favour of the Crown and settler interests, and consequently the Crown’s commitment to maintaining its relationship with Ngati Whatua lessened visibly. 

The benefits that Ngati Whatua expected from their relationship with the Crown, including educational and medical facilities, improved infrastructure, commercial opportunities and participation in the government, failed to materialise in a real or lasting sense. 

Yet despite this Ngati Whatua, although somewhat disillusioned, remained committed to building a positive relationship with the Crown. The Crown in turn appeared to offer solutions for Maori power sharing in the early 1860s, as exemplified by the Kohimarama conference and Grey’s New Institutions,  but these  once again proved little more than political expedients largely driven by the emergence of the Kingitanga. 

With the onset of the war in the Waikato, the Ngati Whatua position, both in Auckland and Kaipara, became even more precarious. Ngati Whatua, however, remained committed to their chosen path. The manner in which the Crown dealt with old land claims and pre-emptive waivers – the subject of the following chapter – further strained the relationship, and showed that the Crown was largely unconcerned with protecting Ngati Whatua interests. 

5. OLD LAND CLAIMS AND PRE-EMPTIVE WAIVERS

Introduction

This chapter provides an overview of Old Land Claims and the pre-emptive waiver claims, and describes the impact that these land transactions, and their subsequent treatment by the Crown, had on the Ngati Whatua land base. These two processes are related, and both the Crown and Ngati Whatua treated them as such. Old Land Claims is a general term for land transactions between Maori and Europeans prior to the signing of the Treaty of Waitangi, and Ngati Whatua entered into several of these. Pre-emption waiver claims stemmed from Governor FitzRoy’s brief waiving of the Crown’s right of pre-emption (or monopoly land purchasing right, set out in article II of the Treaty) in 1844, which allowed private individuals to enter into direct land dealings with Maori. Both sets of transactions often involved the same people, and both were dealt in broadly the same manner by the Crown, with the result that thousands of acres were lost to Ngati Whatua, the bulk of which went to the Crown as ‘surplus lands’. 

It should be noted that it is not the purpose of this chapter to explore in any great detail the many Ngati Whatua transactions in respect of both Old Land Claims and pre-emptive waiver claims. Most of these were very complex and took years to disentangle, and they have already been covered in detail elsewhere.  While some reference has to be made to individual claims in order to illustrate the processes involved, the main emphasis is on Ngati Whatua understandings of the transactions and the Crown’s subsequent treatment of them and the broad impact on Ngati Whatua’s land base.

OLD LAND CLAIMS

As noted, Old Land Claims is the general term applied to land transactions between Maori and Europeans prior to the arrival of the Crown in New Zealand. Ngati Whatua entered into a number of these transactions across its rohe, five in Tamaki Makaurau, four in Mahurangi, and fourteen in the Kaipara (most of them around the Wairoa river). Some of these transactions were entered into by Ngati Whatua on their own account, and other were initiated by other iwi and subsequently involved Ngati Whatua when they sought to achieve recognition of their interests. All these transfers and purported transfers are characterised by uncertainty over boundaries and, perhaps more importantly, questions about the very nature of the transaction. 

Pre-Treaty land transfers, carried out at a time when Ngati Whatua possessed little knowledge of European concepts of sale, can be described as tuku whenua arrangements. They were not sales in the European sense, but were rather carried out within a Maori cultural paradigm. A gift  (or tuku) of land conveyed and imposed rights and obligations on both parties. The obligation of the European ‘purchaser’ was to stay on the land and deliver a range of benefits, including trade and employment. Ngati Whatua were obliged to protect ‘their Pakeha’. If either party ceased to fulfil their obligation the terms of the tuku were deemed to be breached, and the arrangement was at an end. In many respects the European settler was incorporated in into the tribe, and was subject to Maori law. 

Once the Treaty had been signed the Crown deemed it necessary to investigate these claims, and if they were found to be valid the European claimant would be awarded a Crown grant of up to 2,500 acres, with the balance going to the Crown as ‘surplus land’. If the claim was unsuccessful the lands would remain the property of Maori. The Old Land Claims Commissioners were charged with carrying out this inquiry. They did not, however, endeavour to discover the Maori understanding of what had occurred. If one or two Maori appeared and attested to the accuracy of the deed a valid sale was deemed to have taken place, and the land passed from Maori hands. But while Maori witnesses might agree that they had entered into an arrangement in respect of land, and had received some payment, they were never asked about their intentions, the nature of the relationship which had been entered into from their perspective, and their broader expectations. The Old Land Claims inquiries were Eurocentric. They were based on an assumption that ‘sales’ in a European sense had taken place. When transactions were not upheld by the Commissioners this was usually because the European claimant had did not secure the attendance of witnesses or failed to satisfy some technical requirement. 

The Crown’s approach to the question of Old Land Claims not only failed to accommodate Maori understandings and Maori law, but also cut across and undermined the reciprocal relationships which Ngati Whatua had sought to establish with early settlers. Ngati Whatua had agreed to allocate land and resources to a particular European individual for a particular purpose. Once the claimant had received a Crown grant, however, he was free to sell the land or move off. Moreover, when the Crown assumed ‘surplus land’ these areas often remained unoccupied for a considerable time. This did not reflect Ngati Whatua expectations.

THE LAND CLAIMS COMMISSION

The first official step that Hobson took, even before the Treaty was drawn up, was to issue a proclamation in January 1840 forbidding any further private European purchases of Maori land.  At around the same time New South Wales Governor George Gipps – at this stage New Zealand was a part of New South Wales – issued a proclamation stating that all the land acquired from Maori by Europeans prior to January 14 1840 would be subject to investigation by a commission. The proclamation also stated that all transactions completed from the date of its issue would be null and void. In the same year the New Zealand Land Claims Act was passed in New South Wales, putting in place a Land Claims Commission to investigate pre-Treaty land dealings. The Act, which was replaced by a local New Zealand Ordinance in 1841, required an investigation of all claims by settlers who purported to have purchased land from Maori. The focus was on European claimants and what they were claiming. This narrow focus excluded Maori from the process to a large extent, leading the Waitangi Tribunal to note in its Muriwhenua Report that ‘the requirement to protect Maori interests was at best obscure’.  Instead the legislation focused on the claimants, providing a sliding scale of grants designed to favour genuine settlers over speculators (this sliding scale, known as Schedule B, converted proven payments for land into an acreage grant using a sliding scale that allowed for far larger grants for early, or ‘genuine’, dealings, as opposed to later, or speculative, dealings). A maximum grant of 2,560 acres (or one square mile) was allowed, and any excess land over and above that which was found to have been obtained from Maori on ‘equitable’ terms became the surplus land of the Crown.

The Crown may indeed have had a Treaty-based right to regulate and limit the granting of land to European claimants as a matter of colonial policy, the right of kawanatanga allowing it to limit the amount any individual could acquire. The question of whether the Crown was entitled to ‘surplus lands’ is an entirely different question. The Waitangi Tribunal investigated this issue in the Muriwhenua inquiry, concluding that

‘We consider that the Government’s surplus land claims are unsustainable on several counts. The assumption was that the land had been “sold”, whereas, in our view, this was not the case. It was further overlooked that the transactions were personal to the Europeans concerned, and neither the Government nor anyone else could enter upon that land without the hapu’s agreement. In addition, some reliance upon a legal theory about the Crown’s radical title was inappropriate for the circumstances of the colony, where the radical title was already spoken for. Moreover, the Governor’s intention to take the surplus land had not been stated during the Treaty of Waitangi debate when the matter was raised. Instead, the opposite impression was given. That same impression was given also by the later governors’. 

The last sentence refers to the unequivocal and public statement Governor FitzRoy gave to assembled Maori, including Ngati Whatua, in Auckland in December 1843. He stated that surplus land would be returned to Maori. In reference to the granting of land to pre-Treaty claimants, FitzRoy promised to investigate the claims and then went on to

‘most unequivocally and with most perfect sincerity disown any and every intention on the part of the government to appropriate… the surplus lands of the original settlers, they are to revert to the original owners. The government is to act as umpire between the two for the purpose of justice solely; the claim to the “lion’s share” is abandoned… Not only are the surplus lands of the claimants to revert to the natives, but there is every prospect that before long the aborigines of this country shall receive the fullest rights and privileges of British subjects in being permitted to sell their lands to whom they please’.  

The Colonial Office viewed ‘surplus lands’ as the property of the Crown, but concluded that FitzRoy would need to exercise discretion, and protection of Maori interests was to be a priority.  Despite such promises by FitzRoy, surplus lands were indeed retained by the Crown and not returned to the original owners. As noted, in many cases this land remained unoccupied, compounding the prejudice to Maori who had transferred the land in the first instance with the aim of attracting Europeans. 

Ngati Whatua and other Maori consistently opposed the Crown’s surplus lands policy. They failed to see how land not allocated to ‘their Pakeha’ could be the property of anyone but the original vendors. FitzRoy noted that Maori were ‘exceedingly irritated’ by the Crown’s claim to surplus land and remarked that ‘as yet it is quite impossible to make them comprehend our strictly legal view of such cases’.  The Waitangi Tribunal was not inclined to agree with the Crown’s ‘strictly legal view’, concluded that

‘Crown policies and practices and acts and omissions which gave rise to the appropriation of the surplus lands were inconsistent with the Treaty principles which require the Crown actively to protect Maori rights to their land, to ensure that they maintain an economic base, and to respect tribal autonomy and law. As a consequence, Maori were wrongly deprived of land they had not sold and over which they had continued to exercise rangatiratanga’.   

The Crown’s reasoning was largely guided by self-interest. The theory behind ‘surplus lands’ was that all transactions upheld by the Commission totally extinguished Maori title to the lands in question, and any excess beyond the statutory 2,560 stipulated in the legislation would be claimed by the Crown as the sovereign power in New Zealand. The Crown envisioned that it would acquire large tracts of land as surplus, from which some could perhaps be reserved for Maori and the rest on-sold used for settlement purposes, thus helping to fund the administration of the colony. The theory, however, failed to taken into account Maori tikanga and the very nature of the transactions. In presuming that transactions were sales in the European sense the Crown, as noted, failed to recognise that the early transactions between Maori, including Ngati Whatua, and Europeans were of a conditional nature rather than being permanent alienations. 

Indeed, the early land transactions that Ngati Whatua entered into were clearly conditional customary transfers. As Wyatt has argued, Ngati Whatua

‘allowed many outside parties – including Pakeha – to use and occupy their land as a part of and in conjunction with their community. At no time, however, did the acquisition of such rights in any way displace the claims of that community. On the contrary, the very allocation of land to individuals reaffirmed their title as it was itself an exercise of their rights of ownership’. 

Furthermore, it is not as if Crown officials were completely unfamiliar with Maori custom in relation to land dealings. Protector of Aborigines George Clarke himself wrote that

‘the primary object of a New Zealander in parting with his land is not only to obtain the paltry consideration which in many cases is given to them for their land, but to secure to them the more permanent advantages of finding at all times a ready market for their produce with their white neighbours; but this important end is at once defeated upon the assumption of total alienation’. 

Yet even though Maori custom generally, and Ngati Whatua tikanga specifically, indicated that early land transactions were allocations of land in the form of tuku whenua arrangements, the Crown’s Land Claims Commission treated them as outright alienations. The Commission failed to inquire into the Maori understanding of the original transactions or the conditions upon which the claimants resided on the lands in question, and simply awarded either Crown grants or compensation in the form of scrip (a transferable credit for the purchase of Crown land) to all those claiming Ngati Whatua land as a result of these tuku whenua arrangements. Derivative claimants, who acquired the claim from the original claimant without Ngati Whatua permission, were similarly rewarded. 

The inadequacy and Eurocentric approach of the Land Claims Commission’s investigations (even by the standards of the 1840s) is indeed startling. One pre-Treaty claimant later revealed to a British Parliamentary inquiry into New Zealand just how limited the nature of the inquiry was

‘If I came into a room with one Commissioner sitting, and brought my deed, I should deliver it to him; he would look at it, and having put me on my oath, he would ask me when I bought the land, what were the goods which I gave for it and so on; I would answer his questions and that would be all which would pass; the native chief would then be called up; he would be told by the interpreter what I had said, and if he acknowledged that he had sold the land to me, that would be considered satisfactory’.  

The nature of Maori testimony before the Commission was highly formulaic. The witnesses were asked a series of standard questions designed to ascertain whether the Maori witness

• had signed the deed and/or had seen others sign it

• had had the deed read out and explained to him

• had received the payment mentioned in the deed and/or seen others receive their share

• had a right to sell the land

• had never sold it to anyone else

• and had not had his rights to the land challenged by either Maori or Pakeha 

Considering the complexity and nature of Maori land tenure, and the unfamiliarity of iwi like Ngati Whatua with western concepts of ‘sale’ (as a complete and permanent alienation of land), it is highly doubtful that this process had the potential to reveal he meaning of Maori cultural terms and arrangements. Ward perhaps understates the position when he observes that ‘some doubt must exist as to the adequacy of the commissioners test of a bona fide purchase and of its equity’. 

The first Commissioners, Edward Godfrey and Matthew Richmond, had been instructed to be guided by the ‘real justice and good conscience of the case’ without regard to legal forms and solemnities, and to ‘direct themselves to the best evidence they can procure or that is laid before them’.  But this was not an instruction to ascertain the Maori perspective. It was rather an instruction to base their inquiries on the approach to evidence taken in the English courts of equity, which had been developed to overcome the rigidity of common law. But while some flexibility was permitted in the manner in which evidence was procured and heard, this did not go so far as to allow for a Maori voice. As the Waitangi Tribunal observed in its Muriwhenua Report, neither the legislation nor the Commission’s procedure demanded that pre-Treaty claims should be examined

‘for mutual comprehension, and no such examination was made in fact. The conditional occupations of custom law were thus changed to permanent alienations, and, accordingly, the ordinance served not to effectuate the agreements, but to amend them’.  

It is difficult to quantify Ngati Whatua land loss resulting from the Old Land Claims process. Over 150,000 acres of land in the Ngati Whatua rohe were included in pre-Treaty Old Land Claims, with the Crown retaining the vast majority of these lands through its surplus lands policy. In the claims relating to just the Tamaki Makaurau lands, the Crown claimed 111,700 acres as surplus. It is also notable that much of the land in question was subsequently ‘reacquired’ by the Crown in the wave of Crown purchases between 1840 and 1853. However, the Crown’s assumption of existing rights over the lands through their nominal status as ‘surplus land’ is likely to have greatly diminished the price the Crown was willing to pay to acknowledge any remaining rights. 

Another significant feature of Old Land Claims involving Ngati Whatua was their late inclusion in transactions initiated by other iwi, usually Hauraki tribes, with Ngati Whatua’s interests only acknowledged at a later date. This is perhaps not surprising considering the complexity of Maori land tenure and a frequent overlapping and sharing of use and occupation rights, but it did at times disadvantage Ngati Whatua and occasionally led to disputes. 

One example of this occurred in the Mahurangi district, where Ngati Whatua found sawyers working for a claimant named Tayler on his enormous claim extending from Takapuna north to Te Weiti and Whangaparoa. Tayler had dealt with Ngati Paoa, who asserted a right of conquest. Ngati Whatua viewed the entire transaction as ‘clandestine’ and disputed Ngati Paoa’s rights to the land. However, once Tayler acknowledged Ngati Whatua’s rights they were willing to engage with him and supply provisions.  

Another example was Fairburn’s claim (OLC 589-590), which included Ngati Whatua lands at Otahuhu. The transaction was originally entered into by Ngati Paoa in January 1836, and Ngati Whatua’s interest in Otahuhu was not acknowledged by Fairburn until July 1839, when a payment was made to Tamaki, Te Kawau’s son. Despite this clear acknowledgment of Ngati Whatua interests, in the subsequent and very complicated history of this claim the exact extent of their interests was never investigated by the Land Claims Commission. Nor did Ngati Whatua receive any land or compensation for their interests in Otahuhu and to the north-east of Otahuhu, although these claims were later clearly established in the Native Land Court and therefore indicated that Ngati Paoa’s rights were far from exclusive in this area. 

A particularly egregious pre-Treaty claim affecting Ngati Whatua lands was James Honey’s in South Kaipara. Honey and his partner George Rex were the only Europeans known to have settled in the area prior to the arrival of the Crown. In October 1841 another of Honey’s partners, Edward Parker, registered a late claim to the Whakatiwai block at Kaukapakapa, where Honey resided. Although the subsequent history of this claim is very complicated, two important features emerge. Firstly, it is clear that Honey and Parker did not enter into transactions with Ngati Whatua, although it was evident that the tribe had significant rights in the area. Secondly, despite this and the Crown’s own uncertainty over the legality of the transaction, Honey and Parker were given a Crown grant in 1849. Throughout this time Ngati Whatua were completely unaware that the legal status of their lands – which they had never in fact transferred – had changed, and that they were no longer its owners. Ngati Whatua only became aware of this situation in 1854, when their vociferous opposition to the Honey/Parker claim began, and they demanded that Honey leave the land. The Crown eventually made an arrangement with Ngati Whatua to purchase and thus extinguish their interest in the land, and after a few more years of delay the Crown finally paid £700.  Even though Ngati Whatua’s interest was ultimately acknowledged, the whole nature of the dispute and the Crown’s role in it indicated that for the Crown, the interests of settlement took precedence over the protection of Ngati Whatua interests.

PRE-EMPTIVE WAIVER CLAIMS

The right of pre-emption given to the Crown by the Treaty of Waitangi was starting to cause some concern within a few years. This concern was shared by both Ngati Whatua and the settlers, in a rare convergence. The thrust of the problem was that the Crown’s right of pre-emption, meaning that only the Crown could purchase land from its Maori owners, was restricting the Maori vendors from achieving market prices. This was because the Crown’s policy was to purchase land at minimal cost and then on-sell it to settlers at the highest price obtainable in order to maximise the Crown’s profit and provide funds for administration of the colony and necessary infrastructure. For both Ngati Whatua and settlers, the preferred option seemed to be to remove the Crown’s right of pre-emption. Ngati Whatua would thus be paid more than the Crown was prepared to offer. In addition, the parlous state of colonial finances had brought Crown purchasing to a virtual standstill, with the result that little land was becoming available for settlement purposes. From the settler perspective, an end to pre-emption would make land available for purchase, possibly at prices lower than those demanded by the Crown when on-selling Maori land. 

For Ngati Whatua a removal of the Crown’s pre-emptive right had the added advantage of enabling them to exercise more control over settlement and ensure that those settlers who lived among them would deliver the advantages they sought. This issue was raised at the very first hui the newly arrived Governor FitzRoy held with Ngati Whatua and other local iwi in Auckland in December 1843. The gathered chiefs told FitzRoy that at Waitangi in 1840 he had ‘pledged’ that

‘we should be British subjects, and that our lands should be sold to the Queen. But we understand from that part of the Treaty that Her Majesty should have the first offer; but in the event of Her Majesty not being able to bargain with us we should then be allowed to bargain with any other European’.  

Waiving the Crown’s right of pre-emption had, in fact, been already discussed during 1843. FitzRoy himself raised the matter with the State Secretary for Colonies, Lord Stanley, before his arrival in New Zealand, with Stanley choosing to leave the issue at FitzRoy’s discretion once the newly appointed Governor arrived in New Zealand and assessed the situation on the ground.  Crown officials in New Zealand had also proposed the waiving of pre-emption before FitzRoy’s arrival, telling Acting Governor Willoughby Shortland that the interests of both the government and settlers would be advanced ‘by allowing purchases of country lands to be effected by individuals direct from the natives’.  Although Shortland did not explicitly mention the interests of Maori, he did state that any such purchases would be subject to confirmation by the government, which indicated that there was at least some intention to inquire into the probity of the transactions. The Acting-Governor also proposed that the government could derive some income from the process by charging a fixed sum per acre when issuing a Crown title to European purchasers. 

FitzRoy’s response, based on the free hand he was effectively given by the imperial government, and strident demands from Maori and settlers, subsequently formulated a policy broadly based on Shortland’s proposals. The waiving of the Crown’s right of pre-emption, however, entailed creating a process whereby Maori land interests would be protected, since this protection was in fact ostensibly the motive for the Crown’s assuming the right of pre-emption in the Treaty of Waitangi in the first place. FitzRoy addressed the need to protect Maori land interests by including various provisions in his pre-emptive waiver policy to deter speculators, identify the proper vendors, prohibit the sale of lands needed by Maori and reserve for Maori one-tenth of the land purchased. These provisions were outlined in a proclamation issued by FitzRoy on 26 March 1844. The provisions in the proclamation required

• Applications to be made in writing to the Governor for a waiver over ‘a certain number of acres of land at or immediately adjoining a place distinctly specified’. The land was to be described ‘as accurately as possible’

• The Governor’s consent or refusal would then be given ‘to a certain person’ or his assignee ‘for the public welfare, rather than for the private interest of the applicant’

• The Governor would ‘fully consider’ the nature of the locality; the state of the neighbouring and resident Maori; their abundance of deficiency of land; their disposition towards Europeans and towards Her Majesty’s Government’. He would also consult the Protector of Aborigines before giving his assent in any case

• No Crown title would be given for any pa or urupa, or lands adjoining them, ‘however desirous the owners may now be to part with them’. As a ‘general rule’ pre-emption would not be waived over land required by Maori for their present use, ‘although they themselves may now be desirous that it should be alienated’

• No waivers were to be given in respect of land lying between ‘Tamaki road and the sea to the northward’ 

• Of all land purchases under a waiver, ‘one-tenth part, of fair average value as to position and quality’, was to be conveyed by the purchaser to the Crown ‘for public purposes, especially for the future benefit of the aborigines’

• A fee of 10 shillings per acre, for nine-tenths of the land over which pre-emption had been waived, was to be paid by the European applicant as a contribution ‘to the land fund, and for the general purposes of Government’ 

• Surveys of the land purchased under a waiver certificate were to be done at the purchaser’s expense ‘by a competent surveyor, licensed or otherwise, approved of by the Government, who will be required to declare to the accuracy of his work, to the best of his belief’. The surveyor was to be deposit certified copies at the Surveyor-General’s office prior to a Crown grant being prepared

• Deeds of transfer were to be lodged at the Surveyor-General’s office as soon as practicable in order to enable ‘necessary inquiries’ to be made and notice given in (Maori and English) in the gazette that a title was to issue ‘unless sufficient cause should be shown for its being withheld for a time, or altogether refused’

• The Crown reserved the right of constructing roads and bridges for public purpose ‘through or in lands so granted’. 

FitzRoy held a hui outlining his new policy with leading rangatira, undoubtedly including Ngati Whatua, on the same day the proclamation was issued. Considering the insufficient and somewhat confusing translations of the proclamation, and Maori custom which assigned more importance to the spoken word, what FitzRoy told the gathered rangatira at this hui certainly carried more weight with them than the written proclamation. 

FitzRoy claimed at this hui that it was no longer the Crown’s desire to purchase Maori land, it having already acquired as much as it wanted, and he wished that Maori should not part with much more territory, for their own sake and sake of that of future generations. This was untrue, since the only reason the Crown had ceased obtaining further Maori land was its poor financial situation and the poor price it was willing to pay to Maori. Indeed, despite FitzRoy’s warnings to Maori not too sell too much land – he had no objections to small portions which could be spared – the Crown would continue to acquire vast areas of Ngati Whatua land over the coming years. 

FitzRoy promised that in order to ensure that Maori would not be cheated, or left in danger by selling land they needed for their on-going maintenance, proposed purchases would be investigated before any waiver was approved. He then outlined the general terms of his waiver plans

‘There is no longer any objection to your selling such portions to Europeans, provided that my permission is previously asked, in order that I may enquire into the nature of the case, and ascertain from the protectors whether you can really spare it, without injury to yourselves now, or being likely to cause difficulties hereafter.

Let me take this opportunity of advising you not to part with you land hastily, and only with such portions as you can well spare, and to be cautious to sell to the best advantage, and not to the first person who asks you. See that you get a fair price, and as much as the land will sell for; be very cautious in making your bargains, in order that once settled, you may abide by them honestly; in order that there may be no quarrelling, or even misunderstandings afterwards.

There are some places which I will not sanction Europeans purchasing, however willing any of the owners may be, at present, to part with them. I will not consent to your selling of pahs, or your sacred places, or any land about them which you want for your own purposes; these places I will not allow to be purchased by Europeans, because I know that bye-and-bye you would be sorry for having sold them; and, looking forward to may years hence, for you own sakes, I will not consent to your alienating those portions of grounds which I know you will want. 

FitzRoy emphasised that the arrangements he had made contained

‘distinct conditions that one-tenth of land so purchased is to be set apart for, and chiefly applied to your future use, or for the special benefit of yourselves, your children, and your children’s children. 

FitzRoy’s description of the waiver process requires some comment. Firstly, his advice to Maori not to sell on the first offer and test the market in order to obtain the best possible price reflected a strong Eurocentric assumption on his part, which completely ignored the way in which Ngati Whatua and Europeans interacted in early colonial New Zealand. As in pre-Treaty times, relationships were personal and reciprocal. Ngati Whatua still sought long-term relationships, such as those they enjoyed with many of the sawyers and cattlemen in Mahurangi and Kaipara. Simply selling to the highest bidder was not how such relationships were commenced or sustained.  

Even more notably, FitzRoy’s interpretation of the tenths provision in the proclamation assumed a somewhat different character in his meeting with the rangatira. The proclamation stated that the ‘tenths’ were intended for public purposes, especially for the future benefit of Maori, but at the hui FitzRoy specifically told the rangatira assembled that the land was to be set apart for Maori purposes. He went on to explain that reserved lands would be administered by the Crown, and the income derived used for building hospitals and establishing schools. FitzRoy further noted that the 10 shillings per acre fee charged by the Crown would be devoted to funding the government, immigration and other public purposes, which would also benefit Maori.  

Yet despite FitzRoy’s promises, the tenths provision proved a failure. One measure that the Crown did introduce on the back of FitzRoy’s tenths promises was the Native Trust Ordinance of 1844, which allowed for the establishment of a Board of Trustees to manage the proceeds of the pre-emptive waiver tenths (and of similar tenths made in New Zealand Company purchases) with a view to the establishment and maintenance of schools and providing medical care and other means to assist Maori ‘advancement in the scale of social and political existence’.  Although the Colonial Office approved this legislation it remained a dead letter, and the pre-emptive waiver tenths themselves were in almost all cases never formally identified before the Crown eventually discarded them altogether. 

The majority of the pre-emptive waiver purchases were within Ngati Whatua’s rohe, principally in Tamaki Makaurau, and especially in the fertile Remuera area which consisted of lands that could be easily converted into productive pasture or cropping land. This included some areas that had already been cleared by Ngati Whatua. Other less attractive areas in the Ngati Whatua rohe were not so affected by the March proclamation because of the onerous ten shillings per acre fee (in addition to the purchase price paid to Ngati Whatua) and other costs, including survey charges.  

Until October 1844, when FitzRoy introduced a second pre-emption waiver proclamation, 57 pre-emption certificates were issued, of which 43 related to Ngati Whatua land on the Auckland isthmus, although only 15 of the certificates involved Ngati Whatua vendors (and these certificates involved only 13 pre-emptive waiver claims as one claimant obtained three certificates for one claim), with the rest being transactions involving Waikato iwi. The certificates covered an area of approximately 2,337 acres, including some of the most valuable land in the Auckland region. The average price achieved by Ngati Whatua amounted to 8/6 an acre, but land in Epsom, Remuera and Maungakiekie realised £1 per acre and upwards. 

THE OCTOBER 1844 PROCLAMATION

The very high costs involved continued to stymie the ambitions of both Maori and settlers, and led to increased agitation. Protector of Aborigines George Clarke snr viewed this situation with some concern, telling FitzRoy that the ‘increasing disquietude of the Natives at the Bay of Islands, Hokianga and Auckland’ was alarming, and he advised the Governor that the ‘peace of the country cannot be secured, without something being done to admit of their alienating such portions of their land as they can very well spare’.  FitzRoy’s response was to issue a new proclamation on 10 October 1844, slashing the 10 shillings per acre fee to a nominal one penny, payable when a Crown grant was issued. The other conditions outlined in October were largely similar to those contained in the March proclamation.  

The passage of the October 1844 proclamation made purchasing of less valuable lands more affordable, resulting in further transactions (or purported transactions) in the Mahurangi, North Shore  and Kaipara districts. On the North Shore, for example, 43 claims were lodged, with 26 eventually being allowed.  While it is not intended to consider any of these claims in detail, it is necessary to consider some of the more general issues arising out of the pre-emptive waiver claims process in order to fully appreciate the impact they had on Ngati Whatua.

One notable feature of the pre-emption waiver claim process was that many of the claims were clearly in excess of the area originally specified by the Crown. As FitzRoy’s proclamation of October 1844 had stated, the area involved in any such purchase was to be ‘a limited portion of land not more than a few hundred acres’.  Many claimants took the statement to mean anything less than around 1,000 acres. Of the 43 claims on the North Shore, 23 were of 800 acres or more, with the largest being 1,500 acres. In addition to exceeding the acreage guideline, numerous claimants filed multiple claims in the same area, or filed claims in the names of family members in an attempt to increase the extent of their claims. 

FitzRoy’s October proclamation also stated that a waiver had to be applied for before any purchase took place, and it also made clear that no Crown grant would be issued to any claimant who contravened any of the regulations.  The intention behind this was for the Crown to consider the locality of the intended purchase and permit a proper consultation with the Protector of Aborigines to ascertain the extent of other land owned by Maori in the area. If there was little land in Maori ownership a certificate would not be issued. Despite this regulation, it was later found that FitzRoy’s administration had ‘rendered the nominal acquisition of land so easy, that individuals soon began to consider that it would be no crime to purchase land in the first instance, and to have the right of pre-emption waived over them afterwards’.  This was found to have occurred in at least one-third of all claims filed, while many other claimants avoided restrictions by reaching an agreement with Maori owners prior to filing a claim, but not formally drafting a deed until after the Crown issued the certificate waiving pre-emption over the area concerned.  

Furthermore, some of the land included in the waiver claims had been illegally negotiated and arranged well before the Crown waived pre-emption, let alone before the pre-emption certificates had been obtained by the European claimants, and the Europeans involved in such transaction were only too happy to seek to legalise them through the pre-emption waiver process in order to convert their share of use rights to outright and permanent alienation in a European sense. 

The task of investigating the claims and ensuring that Maori interests were not harmed by the pre-emptive waiver process fell first to Protector of Aborigines George Clarke. Clarke had initially been anxious about the waiving of pre-emption, viewing it as a temporary measure put in place to relieve tensions. However, he firmly believed that disputed land, or land claimed by more than one iwi or hapu would create serious problems.  Yet despite these concerns, Clarke’s investigations were limited at best. He did not appear to spend any significant time in investigating the purported purchases. In most cases he simply minuted that he knew of no objections or any other factor preventing the issue of a certificate. Clarke did not undertake any comprehensive investigation into the customary rights to land claimed under the waivers.  

Another of FitzRoy’s protective measures related to pa and wahi tapu, which were to be made inalienable. Clarke failed to go into the field to investigate whether any pa or urupa (or indeed any other land required for Ngati Whatua’s use) were located on the land in question. It does not appear that any pa or urupa were excluded from any claim, and no land was identified as necessary for Ngati Whatua present use, let alone for the future well-being of the tribe. As Stirling has pointed out, this seems particularly surprising considering that Clarke himself had argued in March 1841 that the land from Orakei down to Onehunga be reserved for Ngati Whatua, and it was precisely this fertile and valuable land that was the target of many of the pre-emptive waiver claims. 

Neither did Clarke ensure that the boundaries of the land being transacted were properly marked or understood, or that the Maori vendors had a clear understanding of what they were agreeing to. FitzRoy’s regulations demanded that surveys of the claims be completed only after Clarke’s investigations, and after the waiver had been granted and the deed had been signed. Because of a lack of qualified surveyors it sometimes took years before the boundaries were established, with the claimants’ notions of what they had acquired taking prominence.  Indeed, the accurate boundary descriptions which the claimants were supposed to include in their applications were, as in the case of pre-Treaty Old Land Claims, so vague and unclear that they largely remained a mystery.  

A further problem caused by not properly investigating the transactions or defining boundaries was that it became extremely difficult to set apart the tenths reserves. The tenth part was supposed to be of ‘fair average value, as to position and quality’. This could not be determined without inspecting the land in question. As noted earlier, in the end nothing was done about the tenths, and the whole reserves proposal was eventually abandoned altogether. 

A further notable point is that many of the Protector’s staff (usually interpreters) were paid by European claimants to assist them in negotiating land transactions with Maori. Charles Davis featured prominently in this role in Mahurangi, as did Meurant in Auckland.  Davis and Meurant suggested that other Protectorate staff, including interpreter Duncan, and even Sub-Protector Forsaith, were also involved in such practices, although Forsaith later strenuously denied this.  Although Davis later claimed that he undertook negotiations for waiver claimants after office hours in his own time, and it was generally known that the government interpreters were employed in this manner, this hardly seems as a valid excuse.  The role of the Protectorate in the waiver process was to ensure that Maori interests were protected. Yet it is difficult to believe that this outcome could have been achieved by officials who themselves had a vested interest in ensuring that European claimants’ interests received the best possible consideration. The inappropriateness of this was observed by Grey after his arrival in New Zealand. Grey wrote to the Colonial Office confessing

‘that it was with feelings of great concern and regret that I learnt that officers, paid upon one hand by the government to watch over and protect the interests of the natives, should, upon the other hand, have been acting privately as the paid agents of Europeans, in order to effect purchases of land for them from the natives, upon terms the nature of which is sufficiently evident from the various documents relating to these purchases which have already been transmitted to Her Majesty’s Government’. 

While Grey was intent on justifying his disestablishment of the Protectorate, and his comments reflect a political agenda, there is enough other evidence to conclude that his was a reasonably accurate description. 

Grey was also concerned about a limited Maori understanding of the pre-emptive waiver process and the future consequences of this, especially when purchasers arrived to occupy their lands. In another despatch to the Colonial Office, Grey observed that

‘It is a mistake to suppose that because in some instances large tracts have been disposed of to Europeans, and the natives have not yet contested the sale, that they will never do so. In most of these circumstances the natives are yet allowed the free use and occupation of the greater portion of the land, and no possession has been taken of it by Europeans, nor have any other European purchasers appeared; but I am quite satisfied that so soon as a re-sale of these lands is attempted by Europeans, and new settlers go upon them, that the natives will resist the occupation of them…’. 

Ngati Whatua continued to use and occupy much of the area they had purportedly alienated under the pre-emptive waiver purchases, and in all likelihood continued to view those transactions as giving both parties the right to share occupation and use of resources on the land in question. Grey contended that when Maori realised that the claimants and the Crown viewed these transactions as outright alienations in the European sense, they would find ‘themselves and their children… impoverished… by their improvident sales of large tracts of the country’, and that this would lead to them repudiating the agreements. This would leave the Crown, as the granter of land rights to the pre-emptive waiver claimants, then having to enforce the claimants rights against the Maori. 

It was, however, not so much the unforeseen loss of ‘large tracts of the country’ that led to Ngati Whatua challenging the pre-emptive waiver claims, but rather the Crown and claimants view that the transactions amounted to outright alienations of land in the European sense. Ngati Whatua saw themselves as retaining rights over the lands, and they asserted these rights in a number of ways. They occasionally later included the land in further transactions with other claimants, indicating that they believed they were simply allocating land for shared use, rather than permanently alienating it. In other cases, when the original pre-emption waiver claimants on-sold their claims to new settlers, Ngati Whatua demanded payment from the new occupier, thereby asserting their continued rights and interests in the land.  That Ngati Whatua viewed the pre-emptive waiver transactions as land allocations rather than ‘sales’ is also evidenced by their continued use of resources on the lands in question. Between 1845 and 1847, a number of pre-emptive waiver claimants in Mahurangi lodged complaints about ‘theft’ of timber from their land. As late as 1849 some claimants in Okahukura were still complaining about Maori cutting timber on lands they claimed to have purchased. 

Despite the regulations contained in FitzRoy’s proclamations, the pre-emptive waiver process ultimately set up by the Crown failed to establish whether the claimants had extinguished Maori interests in the land claimed. The result was that Maori were on most occasions not aware of the nature or the extent of claims relating to their whenua, or the consequences of the Crown upholding claims. This led to a situation in which, by the late 1840s, there were still unextinguished Ngati Whatua interests in lands supposedly alienated to pre-emptive waiver claimants. This in turn prompted a series of vaguely defined further ‘purchases’ and one-off payments from the Crown over following years in order to extinguish those interests. These purchases are discussed in the following chapter.

GREY’S APPROACH TO PRE-EMPTION WAIVER CLAIMS

Governor FitzRoy was recalled by the Colonial Office in April 1845, at least partly because of dissatisfaction over his pre-emption waivers. He was replaced by George Grey. Colonial Secretary Stanley instructed Grey to recognise any sales sanctioned by his predecessor, even though the waivers were ‘a most impolitic arrangement’ which should not be repeated. 

Stanley preferred a return to Crown pre-emption, and Grey, who also identified a number of problems with the pre-emption waiver process set up by FitzRoy, concurred. After his arrival in New Zealand in November 1845 Grey promptly set about ending pre-emptive waivers and curtailing claims. Indeed, he was so critical of the policy that he believed that ‘the future prospects of the colony are becoming irretrievably ruined’. 

Grey’s initial response to the pre-emptive waiver claims was to issue a notice on 15 June 1846 which required all those who had purchased land under the proclamations to ‘send in all the papers, whether deeds or surveys, connected with their claims, for examination within a period of two or three months, after which time no claims will be entertained’.  Grey’s notice was extremely unpopular with the claimants, primarily because of shortage of surveyors made compliance difficult, and partly because Grey indicated he would not proceed to issue any further grants until he received further instructions from London, which entailed a lengthy delay. 

The instructions from the Imperial Government required Grey to formally restore Crown pre-emption, which he did by way of the Native Land Purchase Ordinance 1846. Grey now possessed financial backing from London (which had been denied to FitzRoy) enabling the Crown to embark on an extensive land purchase programme. The Land Purchase Ordinance not only re-established Crown pre-emption, but also made it illegal to lease Maori land, although Maori, and especially Ngati Whatua, often favoured lease-like arrangements through which they could allocate the use of land and resources, such as timber, to European sawyers and farmers and thus receive a regular income and some of the benefits of settlement without permanently alienating their land. With the passage of the 1846 Ordinance this option was closed to them, with particularly negative consequences for Ngati Whatua on the Auckland isthmus. Almost all of the Ngati Whatua land remaining in Tamaki Makaurau except Orakei was alienated to the Crown within a decade of the passage of the Ordinance.   

Only two days after the passage of the Native Land Purchase Ordinance Grey introduced a Land Claims Compensation Ordinance, which sought to resolve the complex web of poorly defined and overlapping pre-emptive waiver claims. The problem with the Ordinance for Ngati Whatua, however, was that it was focused on disposing of numerous claims and providing compensation to European claimants and adding to the Crown’s stockpile of surplus land rather than addressing the validity of the ‘sales’ or the Ngati Whatua understanding of their terms and meaning. 

This was despite the fact that Grey had been instructed by the Colonial Office to take into account some of these very issues. The Colonial Secretary (now Earl Grey) urged Governor Grey to make sure that before any grant was issued the Attorney General should certify that the Maori vendors were ‘according to native laws and customs, the real ad sole owners of the land which they undertook to sell’. Even then, the grants were no guarantee of title against any claims other than those of the Crown itself, meaning that any outstanding Maori interests were theoretically not extinguished. Earl Grey also suggested that claims involving payment in the form of guns and ammunition should be disallowed, and anticipated that as a result of all these conditions, ‘of the purchases made under Governor FitzRoy’s proclamations, very few indeed will be sustained’.  

Earl Grey’s suggestions, if put into practice, would have ensured that the majority of pre-emptive waiver claims within the Ngati Whatua rohe would have been disallowed, including many claims which involved payment of guns and ammunition, those arranged prior to the issuing of the waiver certificate, those which exceeded  ‘a few hundred acres’, those which involved Maori ‘vendors’ other than Ngati Whatua, those which included land required by Ngati Whatua, those which had pa and urupa within their boundaries, and perhaps even claims where Protectorate staff had acted improperly. The preamble of Grey’s Ordinance required an investigation to ascertain that the purchases in question were made from the ‘true owners’ of the land, that the rights of all owners were extinguished, and that all regulations included in FitzRoy’s proclamations had been complied with. 

The subsequent investigation did not consider any of these issues to any significant extent, with the result that very few of the claims relating to Ngati Whatua land were disallowed. In fact only 6 pre-emptive waiver claims were dismissed, and in all cases the land claimed reverted to the Crown on the basis that Ngati Whatua title had been extinguished by the waiver purchase. In some cases the claimants received compensation payments even though they were not entitled to a grant. 

The Crown encouraged claimants to accept compensation in order to expedite the matter and resolve the tangled web of claims as quickly as possible. The compensation was to be based not on what the claimants had paid to Maori, but rather on the total cost of the claim, including not just payments to Ngati Whatua but also costs incurred from surveys, employment of interpreters, improvements made to the land and any other associated costs. No corresponding inquiry process was put in place for identifying outstanding Maori claims and compensating them. Even more pointedly, the Crown resurrected the ‘surplus land’ concept it had used in relation to the pre-Treaty Old Land Claims, applying it to all the lands for which the claimants accepted compensation or which were not granted to the claimant. 

The Crown did concede, however, that not all Maori interests were necessarily extinguished in some of these lands, but it placed the onus on Maori to prove the continued existence of their rights rather than on the claimants or the Crown to demonstrate that such rights were completely and properly extinguished. As Stirling has argued, since the Crown stood to gain significantly from any Maori failure to prove the continuing existence of their rights it is hardly surprising that it discouraged a full investigation of pre-emptive waiver claims for fear of providing Maori with an opportunity to dispute the claims. Even more disconcertingly, in cases where claimants failed to prove that they had complied with all the conditions imposed by FitzRoy in his proclamations (conditions put in place in order to protect Maori interests) land invalidly acquired was claimed by the Crown, rather than being returned to the original Maori owners. 

This came about in spite of FitzRoy’s public and unequivocal promise in December 1843 that the Crown would not take any surplus land arising from Old Land Claims, and all such land would revert to the original owners. FitzRoy’s promise was made in the context of an impending pre-emption waiver, which was then only three months away, and as there was no discussion with Maori subsequent to that about any policy change, it can be assumed that Ngati Whatua understood that the Crown would similarly disown its claim to surplus lands arising out of the pre-emptive waiver process. Indeed, the Crown’s intention to take surplus land arising from the original pre-emptive waiver transactions was not made apparent until some years later, and Ngati Whatua strongly opposed this, continuing their earlier opposition to the taking of surplus land in connection with pre-Treaty Old Land Claims. 

An example of Ngati Whatua’s opposition to the Crown’s surplus lands policy arising from pre-emptive waiver claims occurred in September 1848, when Paora Tuhaere became aware of the Crown’s plans in connection with the disallowed waiver claim of an Auckland settler named McConochy. McConochy’s claim was disallowed by Commissioner Henry Matson, (a general account of Matson’s investigations is provided below), and the Crown took legal proceedings to remove him from the land, which the Crown now claimed as surplus. Tuhaere appeared as a witness in these proceedings. He vociferously objected to the Crown’s plans to assume ownership of McConochy’s claim. The Daily Southern Cross gave the following account of this incident which, although lengthy, deserves to be quoted in full

‘Ostensibly, there was a reasonable ground for dispossessing the claimant, inasmuch as he had not effected his purchase in conformity with the regulations. But herein lay the difficulty; the natives who sold the land were not at all disposed to repudiate the bargain, and evinced such a clear perception of the line of their own duty that the real design for the prosecution – the quiet transfer of the land from the claimant to the Crown was in no whit likely to be forwarded by the act of ejectment… The pleadings at the Magistrate’s Court when McConochy was summoned, abundantly proved the fact. The greatest pains were taken to impress upon Paora, the idea that he had nothing to do with it – that he had been paid for the land, and that consequently all his interest had ceased. But the natural good sense and honest principle of the New Zealand chief were more than a match for the sophistry and special pleading of the English official. Paora was not to be hoodwinked. He maintained that he had an interest in the land, and that he should be compelled to refund the money that he had received if McConochy were not allowed to retain possession. The Government officers and the native chief were evidently playing at cross purposes, though the former would not openly explain their wishes, and the latter hardly suspected them. They wanted to convey the idea that he might sit quietly down and enjoy the price of the land, and leave McConochy to his fate, indifferent to what became of either him or the land – in other words, they wanted to prepare Paora to witness with unconcern the appropriation of this land as part of the demesne land of the Crown’. 

Tuhaere, on the other hand

‘with the simplicity of an honest man, maintained the obligation he was under either to see that McConochy had the land, or restore the money he had received for it. Now, in the name of all that is honest in practice, and upright in principle, we would ask whether appropriation of land that is disallowed to the claimants by the Government, as demesne lands of the Crown, can be justified as an honest procedure. If the bargain that was made between the native and the claimant is found invalid, and rendered null by some technical informality, then the land reverts to its original position, and the purchaser… has an equitable claim upon the natives for restitution of the purchase money. The abrogation of the agreement between the claimant and the native, certainly cannot create another and distinct claim in favour of the Government’.    

Tuhaere clearly enunciated the Ngati Whatua position in the matter in an open letter to the ‘White People of Auckland’ in the same issue of the newspaper

‘The Governor is unjustly taking the lands of the white people. Now I say this law of the Governor is wrong. Because I have sold the land to the white men. The money has been received by us, our eyes have seen the payment, and we were glad. But the Governor’s payment we have not seen, therefore I said this principle is wrong, is it not so friends?….now I said let the lands which we sold to the white people rest with them in consideration of the payment received by us, because our darkness (of our hearts) was great about the things received by us therefore we said let the payments for those things be the Land. Our doings are right, there is nothing wrong in this our custom….This is another word, listen all. The white people who are residing on their lands, do not disturb them, but leave them to reside on their lands, that is all.  

Tuhaere then refunded the payment McConochy had given him, effectively repudiating the agreement, and formally took possession of the land by occupying McConochy’s house and taking is stock into custody.  For Ngati Whatua the arrangement had been a personal one between them and McConochy, and they saw no place for the Crown and its claims to the land in the transaction.

It is clear from this case that Ngati Whatua opposition was not driven by some particular or discrete aspect of this case, but by more a deeper disagreement with Crown policy. In many other claims, particularly in suburban and rural areas, the Crown interest in surplus lands lay dormant for years as the matter remained outstanding throughout the 1850s. In some cases the Crown on-sold the surplus lands it was claiming to neighbouring land-holders who were already residing in the vicinity with Ngati Whatua’s blessing, thereby obscuring the extent and import of its actions. 

This ‘continuity’ on the ground undoubtedly played an important role in the absence of Ngati Whatua objections in some instances. Moreover, Ngati Whatua simply continued to use much of the land in question well after the transactions were completed, thereby ensuring that their understanding of the transactions – as agreements allowing for shared use and occupation, rather than exclusive ownership in the European sense – effectively went unchallenged. As Alan Ward has pointed out 

‘There are many references in the literature of Auckland Maori continuing to use the land and the resources of the land after the sales. Even by 1860 Auckland was a series of villages linked by relatively few roads and separated by large tracts of farmland and bush. Maori continued to traverse land, cut timber on it, even garden it [sic], after the large blocks had been sold. They would without doubt have formed the impression that continued co-existence with the settlers on the blocks which they had “hokonga” or “tukua” was possible’. 

For Ngati Whatua the transactions in many instances appeared to be working to their satisfaction. They had received payments, in some cases ongoing, for allocating land, while for all intents and purposes the land effectively remained theirs.

In some cases Ngati Whatua quietly reclaimed ownership of some land, nominally  surplus, which the Crown then had to acquire once more through a series of vaguely defined purchases in the 1850s. These purchases may well have been influenced by the awkward position the Crown found itself in over its surplus land policy, As one contemporary observer noted in 1848

‘…it cannot be denied that the natives have been taught to believe that the lands taken from the Europeans were to revert to them. Captain FitzRoy made most distinct and solemn assurance on this point. Governor Grey has continually been making them believe that the European purchasers obtained their land both illegally and cheaply – that the natives were in fact defrauded out of their property, and that he (the Governor) was exerting all his energies to do them justice. Did he not therefore encourage them to believe that they were to get back the lands of which they had thus been defrauded? Surely it never could have been the intention of the Government to become the recipient of stolen property of this kind; so that the natives now have a good right to turn round upon the Government and demand fulfilment of their promises’. 

FitzRoy’s promise, however, was never explicitly fulfilled. The surplus lands claimed by the Crown following the completion of the pre-emptive waiver process were not returned to Ngati Whatua. 

As noted, the Land Compensation Ordinance favoured claimants over Maori in several ways. Those claimants who had occupied the whole or part of the lands they claimed were able to acquire all or part of that land from the Crown for a nominal fee of £1 per acre; less than they had spent in acquiring the land from Ngati Whatua. Furthermore, under this provision Maori were not even given the opportunity to come forward and prove their continuing rights in those lands. The Crown simply presumed that no such rights existed, and therefore precluded any legal or quasi legal avenue for asserting them. In contrast, the same opportunity to re-acquire the land they also continued to occupy and use was not given to Maori. Any land not required by the claimant acquired the status of Crown surplus land. Finally, the tenths provision, designed to protect Maori, included in FitzRoy’s proclamations and explained to Ngati Whatua by the Governor in person, was abandoned altogether as impractical and inconvenient. This change was never discussed with nor agreed to by Ngati Whatua, and no measure was put in place to compensate Maori for the loss of these tenths. 

No tenths were ultimately reserved for Ngati Whatua in connection with the pre-emptive waiver transactions. The abandonment of the tenths had a profoundly negative impact on Ngati Whatua, particularly when considering that the Crown, during this same period, purchased the bulk of Ngati Whatua lands in Auckland with the exception of the Orakei block. As Ward has argued

‘to confine the tribes to subsistence reserves and rural property only was a form of marginalisation. To truly benefit from the economic growth of the colony the iwi needed urban property over which only fixed-term leases could be granted. This is the kind of perception which underlay Normanby’s and Russell’s instructions…’. 

The loss suffered by Ngati Whatua through Grey’s abandonment of the tenths provision is difficult to quantify. Stirling has argued that in Auckland and the North Shore alone some 6,400 acres (notably, this amount is almost ten times more than the land that Ngati Whatua actually retained in Auckland by 1860) should have been reserved under the tenths regulations for the iwi. This could potentially have generated an on-going and increasing income for Ngati. Much of this estate now forms some of the most valuable land in Auckland, stretching from Remuera and Ellerslie down to Mt Roskill and westward to Henderson.  

As noted, Grey’s waiver Ordinance required all pre-emptive waiver claimants to submit their claims to a Commissioner who would assess their merits, ostensibly in terms of FitzRoy’s proclamations and Grey’s notice of June 1846. Major Henry Matson was appointed as the sole Commissioner. He commenced work in December 1846. As we have already noted, the claimants who were found to have complied with all the conditions received a debenture for the amount they had paid Maori for the land, and were required to pay cash for the balance of the claim, or that part which they wished to acquire, at the rate of £1 per acre. Unsurprisingly, few claimants were willing to bring their claims forward for investigation under these terms. Most preferred to wait for a favourable change in Government policy.

Grey subsequently outlined a new policy for resolving the waiver claims which took even less account of Maori interests. Although the new policy was ostensibly informed by Earl Grey’s instructions of February 1847 (see above) Governor Grey largely ignored Colonial Office instructions. Instead he sought to placate the settlers with a quick resolution of their claims which inevitably came at the expense of Ngati Whatua interests. Rather than FitzRoy’s focus on the protection of Maori interests, Grey emphasised the Crown’s duty to the purchasers.  Furthermore, he ignored Earl Grey’s directive to investigate whether the waiver purchases were transacted with the rightful owners according to Maori custom. Even though Grey was aware that failing to hold such investigations could prove highly injurious to Maori, he justified his position by arguing that

‘each claim would require a long and minute investigation, which might by the claimant be lengthened out for many months, perhaps even for years, and, in the mean time, as the whole of the land in the vicinity of Auckland was claimed by the purchasers, or pretended purchasers, the progress of the colony would have been greatly retarded…’. 

Once again this was a clear indication that for the Crown the interests of settlement overrode the interests of Maori. This was despite the fact that Grey himself had grave doubts about the equity of many of the pre-emptive waiver claims, as he informed the Legislative Council

‘I have for many reasons experienced great difficulty in arriving at this determination, for I cannot but remark that Her Majesty’s government have recorded it as their opinion, that many of the claims which are about to be adjusted, are unsupported by equity, justice, or public policy, an opinion to which the knowledge I have acquired of them, compels me to give the fullest assent. On the other hand, however, I must admit, that the claims of bona fide and industrious settler require, under all the circumstances of the case, a most indulgent consideration from the government and that this may be afforded to them, I am prepared to adopt a plan, which, whilst it will secure to the real settler the greatest possible facilities, will extend to all the land claimants far greater advantages that they would be entitled to under the instructions I have received’. 

The aim of Grey’s policy was therefore to ‘terminate speedily and satisfactorily the almost inextricable mass of difficulties which have arisen with respect to these claims’, and ‘to promote to the utmost the interests of the really industrious settler, with whom I always warmly sympathise’. 

Grey introduced his new policy on 10 August 1847, in which he gave the waiver claimants three options

• Under the regulations of Earl Grey: This required the claimants to comply with all the provisions of the waiver proclamations. The Attorney-General was required to certify that the Maori vendors were the real and sole owners of the land

• Under the Land Claims Compensation Ordinance: Under this option claimants could choose to receive a debenture, or, if they had occupied, cultivated or fenced the land, they could purchase some or all of their claim from the Crown at £1 per acre, and had the option of purchasing the reserve tenths also at the rate of £1 per acre

• Under Governor Grey’s new regulations: For 10 shilling-an-acre claimants, a Crown grant would be issued if the claims complied with the terms of the Government notice of 15 July 1846, and were investigated and reported on favourably by the Commissioner. A grant would then issue, provided claimants paid the remainder of the fees due within a month of the Commissioner’s report. Where the claim did not exceed 200 acres, the reserve tenths could be included at £1 per acre 

As Stirling and Towers observe, the interests of Maori were of little concern. Earl Grey’s regulations required that Attorney-General Swainson investigate and ensure that the vendors were the true and sole owners, but only if claimants chose this option, which was the most stringent.  There are also questions as to whether Swainson was qualified to carry out such a task, and the Aboriginal Protectorate Department, which might have done a better job, had been disestablished by this time. In any event Daamen has concluded that Swainson did not appear to consider Maori customary interests in cases where Earl Grey’s regulations were applied.  The second and third options failed to require any investigation of Maori ownership. Stirling and Towers conclude that for Grey Maori rights were ‘an afterthought’.   

Grey was of the view that should any Maori claims arise they would be dealt with by the Government, which favoured compensation rather than return of the disputed land. In fact, the fee of five or six shillings per acre stipulated in the third option was intended to cover the expenses of the Commissioner’s Court, the Government surveys, and to satisfy any Maori claimant who may afterwards appear. The Government, ‘by giving absolute title’, took upon itself the obligation ‘to make the title good’.  In effect, if Ngati Whatua challenged the title to any land granted under these regulations the best they could hope for was meagre compensation coming from a portion of the 5 or 6 shillings an acre fee the claimants had paid to the Crown. The land would not be returned.

This new policy marked a substantial reversal of Governor Grey’s initial approach to the issue, as well as standing in stark contrast to the instructions he was given in the matter by the Colonial Office. As noted above, Grey identified a number of problems with the pre-emptive waiver process which were highly injurious to Maori, and in mid-1846 recognised that all the claims would need to be fully investigated before they could be resolved. By 1847 this recognition was discarded in favour of speedy resolution of the claims in the interests of settlement and at the expense of Maori. There was no real investigation of claims, at least insofar as Ngati Whatua’s interests and understanding of them were concerned. Grey’s new policy simply assumed that all the land transacted in the pre-emptive waiver claims had been alienated from Maori, and the main issue that remained was to identify the interests of the Crown and claimants.

PRE-EMPTIVE WAIVER CLAIMS: THE MATSON AND BELL COMMISSIONS

Major Henry Matson was appointed to investigate waiver claims after the introduction of Grey’s Land Claims Ordinance, and he continued in this role after the introduction of Grey’s ‘three options’. His inquiry was limited, consisting of a statement from the purchaser, a description of the land and its extent, how much was paid and to whom, what improvements had been made to the land, whether the claimant was in occupation and if they wished to purchase the reserve tenths. Maori whose names appeared on the deeds were also heard. However, as in the Land Claims Commission, the questions asked of witnesses were standard and formulaic. The Ngati Whatua witnesses who appeared before Matson were not there to attest that a valid sale had taken place, or that they were rightful owners according to custom, but to simply affirm whether or not they had received payment from the claimant for the land in question and if that represented the full consideration agreed to, or if they had a claim for a further payment. Meurant and Davis, the former Protectorate interpreters who had been heavily compromised in the pre-emptive waiver process through their involvement as agents for the claimants, were heavily relied on by the Commission for evidence concerning payments. The use of these interpreters to translate the evidence given by Ngati Whatua rangatira before the Commission did not seem to bother Matson, particularly since he was unconcerned with investigating the nature of the transactions and the Ngati Whatua, and wider Maori, point of view.  

Matson’s Commission eventually considered 62 claims lodged under the ten-shilling-per-acre proclamation, of which Grey gave Crown grants to 49 upon payment of outstanding fees. Nine claims were disallowed for non-payments of fees, 2 were disallowed for lack of survey plans, and 2 remained to be settled. Matson also considered 189 claims bought under the penny-an-acre proclamation, of which only 53 were granted by the Crown on the payment of fees. Of the rest, 21 were settled by the payment of compensation, 80 were disallowed for non-compliance with Grey’s notice of June 1846, 28 were disallowed because of non-compliance with the original proclamation, and 7 were disallowed or abandoned without a reason being given. These outcomes, however, were not the end of pre-emptive waiver story, as the claimants were given further opportunities to establish their claims. 

Many claimants who were dissatisfied at the outcome of the Matson Commission continued to press the settler government to revisit their waiver claims, resulting in the recommendation from the Outstanding Land Claims Committee (also known as the Domett Committee, named after its Chairman and future Premier, Alfred Domett) that a new investigation be held to resolve the old land claims and pre-emptive waiver claims left unsettled by the Matson Commission. The result of the committee’s report was the 1856 Land Claims Settlement Act, which authorised the establishment of a new Land Claims Commission to finally settle the many outstanding claims. Francis Dillon Bell was appointed as the Commissioner, and he began his enquiries in 1856, completing them in 1862. 

The Act also encouraged the surveying of claims in order to enable properly defined Crown grants to be issued and for the boundaries of the Crown’s surplus lands to be formally defined on the ground. Compensation for the costs of prosecuting and surveying the claim was to be granted to those claimants who completed the survey of their claims, such compensation being in land where possible.  Daamen has observed that

‘The survey-compensation mechanism may have tempted settlers to exaggerate the extent of their now 10-year-old claims. The greater the cost of survey and area surveyed, the greater the area of land given in compensation under the Act. 

Bell justified this approach, contending that

‘If the Government had attempted to survey the claims themselves, the claimants would have had no interest in the whole exterior boundaries being got, and would only have felt called upon to point out as much as was actually to be granted to them. The residue would, practically, have reverted to the natives, and must at some time or other have been purchased by the Government: and a large extent of territory must have remained, as it was before the passing of the Land Claims Acts, a terra incognita. But when the claimants were told they would receive an allowance in acreage to the extent of 15 per cent on the area surveyed, it became their interest to exert all the influence with the native sellers to give up the whole boundaries originally sold. The result has been not only to produce a large area of surplus land which, under the operation of the existing Acts, goes to the Crown; but to connect the claims together, and lay them down on a map’. 

The focus for Bell was thus to ensure that the Crown settled outstanding European claims and received as much surplus land as possible. It certainly did not focus on whether or not the original claim was a bone fide purchase or was acknowledged as such by either the Maori vendors or other Maori with interests in land.  Instead Bell was merely interested in whether the payment received by Maori was the same as that mentioned in the deed. Bell also relied on Clarke’s ‘investigations’ when determining whether the sellers had the right to alienate and fully understood what was being purchased. Protecting the interests of Ngati Whatua and other Maori was not Bell’s intention. His aim was rather to recompense the claimants for any ‘injustice’ occurring through what Domett saw as the overly strict enforcement of the technical requirements waiver claimants were required to meet.  

The main purpose of the Commission was to identify and separate claimant and Crown lands, with the underlying presumption that the original waiver transactions had been bona fide purchases. The Ngati Whatua view and understanding of the transactions was simply not considered and was deemed as irrelevant.  The final outcome of Bell’s inquiry saw most of the claims he investigated result in Crown grants and the levels of compensation to claimants greatly increased. A significant area reverted to the Crown as surplus land. As we shall see this matter was to revisited later, in 1948, by the Myers Commission. 

Summary

The Old Land Claims and pre-emptive waiver claims had a highly negative impact on Ngati Whatua’s land base. The iwi entered into these transactions in order to obtain the benefits of European settlement, while at the same time believing they were merely allocating use and occupation rights rather than completely and permanently alienating the land. 

Ngati Whatua’s role in the various investigations (where they were assigned any role at all) was reduced to simply confirming information recorded in the deeds. No serious effort was made to ensure that the lands involved were alienated by the rightful owners or that the vendors had sufficient other lands for their present or future use. Furthermore, the Crown’s decision to abandon the plan of reserving tenths, and the application of the surplus land policy in respect of both the Old Land Claims and the pre-emptive waiver claims, combined to deprive Ngati Whatua of some of their most valuable land, especially in the urban and suburban areas of Auckland. The adverse impact of this loss proved serious, and the consequences were far reaching. 

6. ‘SINCERITY, JUSTICE AND GOOD FAITH’: CROWN LAND PURCHASE, 1840-1865

CROWN POLICY DEVELOPMENT

Throughout much of the period between 1840-1865 Ngati Whatua maintained their strategy of transferring land in order to attract settlement and gain access to trade opportunities, employment and technology, as well as a range of health and education services. For Ngati Whatua these land transactions were carried out firmly within the context of their Treaty relationship, and perhaps even more importantly, the compact entered into with the Crown in 1840, sealed by the gift of land for the new capital. Land and other dealings with the Crown and Europeans were conducted in a customary manner, with the rangatira expressing the will of the iwi and hapu. At all times Ngati Whatua’s strategies were rational, and were developed and pursued in a manner designed to secure a prosperous future  for the tribe. 

For its part the Crown developed a land purchase policy which, at least on its face, seemed to conform with Ngati Whatua ambitions. The genesis of Crown policy in this regard can be found in Lord Normanby’s August 1839 instructions to Governor Hobson. Normanby told Hobson that Maori land would be bought cheap and sold dear. This would enable the Crown, through the profit made when on-selling the land to settlers, to fund the administration of the colony and provide necessary public works. Normanby, however, saw no ‘injustice’ in this because

‘To the natives or their chiefs much of the land in the country is of no actual use, and, in their hands, it possesses scarcely any exchangeable value. Much of it must long remain useless, even in the hands of the British Government also, but its value in exchange will be first created, and then progressively increased, by the introduction of capital and of settlers from this country. In the benefits of that increase the natives themselves will gradually participate’. 

Normanby’s instructions also required Hobson to assume a protective duty on behalf of the Crown

‘All dealings with the aborigines for their lands must be conducted on the same principles of sincerity, justice, and good faith as must govern your transactions with them for the recognition of her majesty’s Sovereignty in the Islands. Nor is this all: they must not be permitted to enter into any contracts in which they might be the ignorant and unintentional authors of injuries to themselves. You will not, for example, purchase from them any territory the retention of which by them would be essential, or highly conducive, to their own comfort, safety, or subsistence. The acquisition of land by the Crown for the future settlement of British subjects must be confined to such districts as the natives can alienate, without distress or serious inconvenience to themselves…’.  

Normanby had thus made it clear that Maori were to be protected from improvident land dealings, and while such land that was acquired was to be obtained cheaply, the vendors would ultimately benefit through the introduction of settlers and the trade and other opportunities they would bring, the development of communications infrastructure, and an increase in the value of lands retained by Maori. As noted, this resonated to some extent with Ngati Whatua objectives, principally their great desire to attract European settlement. 

Throughout the period between 1840-1865 Crown land purchase agents emphasised to Maori, including Ngati Whatua, that while the initial cash payment for their land might be small, the ‘real’ benefits would accrue later in the form of commercial opportunities, trade, roads, bridges, employment, schools and hospitals. That such promises were universal is conformed by the testimony of successive Governors and a number of Crown land purchase agents. These comments have been traversed in a number of research reports, and need not be examined in detail here. Suffice it to record the remarks of Gore Brown, Grey and Donald McLean. In 1857 Gore Browne informed the Colonial Office that 

‘I am satisfied that from the date of the Treaty of Waitangi, promises of schools, hospitals, roads, constant solicitude for their welfare and general protection on the part of the Imperial Government have been held out to the natives to induce them to part with their land’. 

In 1879 Grey told the Smith Nairn Commission (charged with investigation Ngai Tahu claims) that he had ‘no doubt’ that such promises were made, ‘because those were the instructions I always gave… I explained to them that the payment made to them in money was really not the true payment at all… I have over and over explained it to them’.  

McLean observed in 1858 that 

‘it is well ascertained that the New Zealand tribes regard their land as a National property, the cession of which when decided on, they prefer making as a National act to Her majesty, even while they are aware, that the sums to be realized by such cessions are inconsiderable. Nor do they generally attach so much importance to the pecuniary consideration received for land held by them in common, as to the future consequences resulting from its alienation’. 

In many respects such promises appeared to represent a meeting of the minds, given that Ngati Whatua looked more to the ‘future consequences’ of land alienation than any immediate token payment. In short, promises of ongoing benefits fitted well with Ngati Whatua concepts of partnership, reciprocity and mutual advantage, and served to further confirm what the iwi understood to be the basis of their partnership with the Crown. As the Waitangi Tribunal has observed, these assurances gave land transactions the ‘flavour of ongoing reciprocity’ rather than of ‘final settlements’.  

There is little surviving documentary evidence of explicit Crown promises of ‘collateral advantages’  made to Ngati Whatua, especially during the 1840s and 1850s. This is partly explained by a significant gap in the archival record (caused by fires and other mishaps, including the sinking of the White Swan, which was carrying Government records to Wellington when the capital was being shifted from Auckland). More importantly, a conclusion that such promises were invariably made is supported by the unequivocal statements of both Grey and Gore-Browne. When considering this question in its Northern South Island (Te Tau Ihu) inquiry, the Tribunal concluded, within the context of a similar absence of surviving written evidence of specific promises, that such assurances were indeed invariably made. ‘The words of the Governors were ‘too plain of meaning to leave any doubt on this issue’. Notwithstanding the absence of specific evidence that undertakings were made, according to the Tribunal, it was ‘highly likely’ that Crown officials encouraged an expectation that collateral benefits – schools, hospitals and other advantages of European settlement would accrue to the iwi.   

What is abundantly clear that Ngati Whatua expected such advantages, as evidenced by their desire to attract the Governor to Auckland in 1840, and their more general approach to land alienation in subsequent years. The iwi did not transfer extensive areas for nothing, as in the case of the Waitemata gift, or a mere ‘mass of pottage’. They anticipated Pakeha settlement and the manifold advantages it would bring, which as they understood it, would secure the future prosperity and strength of the tribe. 

It is axiomatic that Ngati Whatua could only benefit from settlement in the manner envisaged by Normanby (and by themselves) if they retained lands sufficient for them to engage with the new settler economy from a position of reasonable equality. If the extent of land loss meant that this was not possible, then by Normanby’s own standards ‘injustice’ would result. This is not only a question to be addressed within the context of Crown purchases between 1840-1865, but also the post-1865 Native Land Court period. If the extent of land alienated after 1865 rendered Ngati Whatua expectations and Crown promises made during earlier decades incapable of achievement, then this too undermines the integrity of these earlier Crown purchases. 

This is the broad background and context within which the period of Crown purchasing after 1840 can be judged. As we shall see, in the period between 1840 and 1865 Ngati Whatua suffered significant land loss. Their lands in the Auckland area were reduced to the kainga at Orakei, and the great majority of their lands at Mahurangi passed out of their hands, as did well over 200,000 acres in the Kaipara. 

This chapter will traverse some of the main issues and trends arising from land transactions between Ngati Whatua and the Crown in this period which resulted in this very significant land loss. 

CROWN PURCHASES, 1841-1848 

After Ngati Whatua’s initial gift of land to the Crown at Waitemata, Protector of Aborigines George Clarke reported a willingness to allocate a still larger tract of country, conditional on the Governor coming to live among them. Hobson finally arrived in Auckland on 14 March 1841, and he was greeted at a ceremony at Okahu where more than a 1,000 Ngati Whatua had gathered to welcome him. Te Kawau welcomed the Governor as a ‘father’. Te Kawau then announced: ‘Governor, go and pick the best part of the land and place your people, at least our people, upon it’.  Te Kawau’s words were a clear signal of Ngati Whatua’s commitment to honouring the solemn compact they had entered into in the previous year, and their desire to build a close and mutually beneficial relationship with the Crown.

It was not until three months later, however, in June 1841, that Ngati Whatua signed a Crown deed, known as the Waitemata-Manukau deed, allocating a large tract of land extending south and west from the 1840 Waitemata gift to the Manukau Harbour. The deed was signed by Te Reweti, Te Kawau, Te Hira, Paora Tuhaere and Taumata on 29 June 1841. It included an area estimated at around 3,000 acres, although in reality the area actually contained around 8,000 acres. This land was allocated to the Crown for £200, four horses, ten cloaks, one tent, and one ‘sealing box’. Te Reweti was later given £25 in lieu of the cloaks. The total value of the payments was determined to £389, indicating the high value of horses at the time, as all the other items were of minimal value.  The price paid per acre was less than one shilling, and considering that Ngati Whatua had just seen the Crown realise £24,000 from the first sales to settlers of only a small part of the land gifted at Waitemata the previous year, it is difficult to believe that the iwi saw their payment as the full extent of the consideration. For Ngati Whatua the real payment was to be realised in ongoing benefits and advantages. The money and goods received merely sealed the compact. As had been the case in 1840, Ngati Whatua reciprocated by giving Hobson and the settlers a large present of food. This was consistent with a traditional process of gift exchange. 

There were a few problems surrounding this deed. No reserves for future Maori occupation were made. While this in itself may not have been seen as an issue in 1841, it was certainly possible that it would become significant at a later stage if Ngati Whatua continued to transfer lands to the Crown and thus suffer a further erosion of their land base, which of course eventually occurred. 

A further problem related to confusion over the boundaries, which was to become a common problem during this period, largely because of the Crown’s failure to survey the land before acquiring it. Even when the land was eventually surveyed, Ngati Whatua objected to the Crown taking a triangular area of around 200 acres on the south-east corner of the block, which according to them had not been included in the transaction. Ngati Whatua thus demanded a further ‘payment’ for the land which the Crown had already sold to a settler. This difficulty was resolved with another Crown deed – the Manukau Road deed – which was signed by Te Kawau, Te Reweti and Te Keene Tangaroa on 14 September 1842. Ngati Whatua received £40 for the 200-acre section. 

The subsequent Ngati Whatua experience of land dealings was also beset with problems, given that the Crown began to acquire land from other iwi without consulting Ngati Whatua, who also claimed rights in these blocks. An early example of this was the Kohimarama transaction of May 1841. On 28 May Clarke arranged the acquisition from Ngati Paoa rangatira of around 6,000 acres of land on the west side of the Tamaki river, including all the land from Mission Bay to Whakamahu (Achilles Point), along the river to Mokoia (Panmure Basin) and inland to Waiatarua and back to Mission Bay. This area took in a small part of Dalziell’s pre-Treaty land claim, and it is important to note that he had been required to deal with Ngati Whatua rangatira in respect of land as far east as Whakamahu and Mokoia. In contrast, the Crown deed included land as far west as Mission Bay, immediately adjacent to Ngati Whatua’s heartland at Orakei, but Ngati Whatua were not consulted at all.   

Ngati Whatua had in fact gifted the eastern portion of this land, comprising almost half of the land described in the Kohimarama deed, to a group of Ngati Paoa to whom they were related through marriage. After Ngati Paoa were defeated by Ngapuhi in the 1820s, and their pa at Mokoia was destroyed, they had never returned to resettle the area, although they had returned to other parts of Tamaki. In addition to the original gift of land at Tamaki, Ngati Whatua also came to Ngati Paoa’s assistance when the latter were attacked by Ngapuhi, and Ngati Whatua also sheltered them in the Waitakeres during this time (prior to the battle of Te Ika-a-Ranganui). As Stirling has argued, citing Kawharu, it seems that that Ngati Paoa had neglected to take into account their customary obligations when entering into the transaction.  

Yet while Ngati Paoa’s actions in this situation are perhaps understandable, the Crown’s actions are more perplexing. A key part of George Clarke’s responsibility, as both Protector of Aborigines and Crown purchaser of Maori land interests, was to investigate the nature and extent of all customary interests before entering into any transactions. In this case it is apparent that he failed to carry out his duties. Sir Hugh Kawharu has been particularly strong in his criticism of Crown’s actions in this matter

‘tensions between two tribes occupying adjoining territories by right of conquest was without doubt heightened by the Crown’s haste to acquire land, its wilful ignoring of evidence of doubt about the right to sell, and its encouragement of sellers to set aside obligations inherent in a gift’.  

Ngati Whatua did not receive any payment for this land, and were not even aware that the land had been acquired by the Crown until settlers occupied it some years later. By then it was too late for them to do anything about it.

Crown dealings in Ngati Whatua land without their knowledge continued with the  Remuera deed in early 1844. On 27 March 1844, a Ngati Tamaoho man named Epiha Poutini signed a deed conveying a piece of land lying north of the Tamaki (Remuera) Road to the Crown. He received £50. The deed included no description of boundaries, other than its broad location, and there is no indication of even an approximate acreage, although it is likely that it was of small extent. Most of the area fitting this description would be acquired from Ngati Whatua in a series of purchases from 1848 onwards, which not only further confused the exact location of this block, but also clearly indicates that Ngati Whatua did indeed possess predominant interests in the area, making the Crown transaction with Ngati Tamaoho, without Ngati Whatua’s involvement, all the more questionable. 

Indeed, the land at Remuera was among the most valuable and desirable of Ngati Whatua’s lands, and the tribe had excluded this area from any land transactions up to this time. Even some Crown officials believed the Remuera lands should be reserved for Ngati Whatua. Logan Campbell, an early settler, visited the area and was highly impressed with the quality of the land, but he also noted a Ngati Whatua refusal to allocate this land to settlers. Campbell and his party met with Te Kawau and Te Hira at Onehunga, and explained to them that they had ‘set [their] hearts on the Remuera slopes stretching down to Orakei Bay. But to the question, would they sell that land, a very prompt and decided Kahore (No) was unhesitatingly given’.  

Charles Terry, another early visitor to New Zealand, also noted a firm Ngati Whatua determination not to transfer the area (as well as land south of Remuera down to Manukau), writing in 1842 that

‘this district, including the bay and valley of Hokao, adjoining Orakei, and extending south to Manukau, the Ngati Whatua have reserved for their own occupation and cultivation, and it is the finest land and most beautiful scenery on the Waitemata’. 

Ngati Whatua’s desire to retain their Remuera lands was acknowledged by Clarke in 1844, when he recommended to FitzRoy that their land in this area be made inalienable to both the Crown and private purchasers, who were preparing to enter into land transactions directly with Maori under FitzRoy’s proclamation waiver in March 1844. Clarke’s description of his proposed ‘inalienable reserve’ for Ngati Whatua was ‘the belt of land belonging to the Ngati Whatua tribe lying between Tamaki and Auckland having portage to Waitemata north and also to Manukau south’, including the area from Orakei to Onehunga and Penrose. 

FitzRoy took up Clarke’s advice at least in part. His pre-emption waiver proclamation of 26 March 1844 included a unique proviso which excluded from its provisions all the land lying between the Tamaki Road and the Waitemata. This took in Orakei and Remuera, but did not include the area from Greenlane to Onehunga which Clarke also recommended be reserved for Ngati Whatua – all of which would subsequently be awarded either to settlers as a result of pre-emptive waiver claims or assumed by the Crown as surplus land. FitzRoy explained his removal of some lands from the proclamation to Ngati Whatua at the hui of 26 March 1844, saying that ‘they must have this land for themselves; and, being so near the town, it would be very valuable in a few years, and would be eagerly sought for by the Europeans’. 

Despite this, the very next day, 27 March 1844, FitzRoy acquired some of this ‘inalienable’ land from Epiha Poutini without any reference to Ngati Whatua. As Stirling has argued, this move casts FitzRoy’s exclusion of Remuera land from pre-emptive waiver transactions in a very different light. Rather than representing a desire to ensure Ngati Whatua’s on-going ownership of these lands, it simply appears as an underhanded (and successful) attempt by the Crown to exclude any competition with its own efforts to acquire this highly desirable and valuable land. This is confirmed by the fact that the land was excluded only from private purchase under the pre-emption waiver, and was not made an ‘inalienable’ reserve. Nor was it ever surveyed. Furthermore, FitzRoy himself personally witnessed the transaction. 

It is difficult to understand why the Crown chose to deal with Epiha Poutini and Ngati Tamaoho when it was clear that Ngati Whatua had a very strong claim. Ngati Whatua had, in fact, gifted some land in the area to Waikato in the 1830s. Epiha Poutini descended in part from Wai-o-Hua, the earlier occupants of the land who had been conquered and absorbed by Ngati Whatua when they took over the area and established their dominance in the time of Kiwi Tamaki.  But whether this provided sufficient authority for Ngati Tamaoho to alienate the land without Ngati Whatua participation, and in the face of strong Ngati Whatua opposition, seems questionable. As in the case of the Kohimarama land, it was the Crown’s responsibility to ensure that it was dealing with the rightful owners and that all interests in the land in question were identified and acknowledged. 

What makes this case even more egregious is that Crown officials, including FitzRoy and Clarke, were well aware of the strength of Ngati Whatua’s claim to the area and their firm opposition to any alienation of these lands. Indeed, FitzRoy himself supported their view on this at the hui on 26 March 1844. That the Crown then proceeded to deal with the land the very next day with a different tribe and without any involvement from Ngati Whatua can only point to a lack of transparency and integrity.

MAHURANGI

The complex and convoluted Mahurangi purchase was the largest transaction undertaken by the Crown without (at least initially) any recognition of Ngati Whatua interests. The Crown intended to completely extinguish Maori interests and acquire the entire area on the east coast between Waitemata and Te Arai (consisting of more than 200,000 acres). The acquisition of this area would, however, prove anything but straightforward for the Crown, largely because it initially chose to ignore the considerable rights and interests of Ngati Whatua. The problems experienced by the Crown would be further compounded by a number of overlapping pre-Treaty land claims in the area, and it would take the Crown well over two decades to accomplish its aim of entirely extinguishing Maori rights after the first Mahurangi transaction in April 1841.

MAP 4. MAHURANGI 

The Crown’s efforts to acquire Mahurangi commenced in April 1841 with the signing of a deed with 22 rangatira representing the four Hauraki iwi of the Marutuahu confederation – Ngati Paoa, Ngati Maru, Ngati Tamatera and Ngati Whanaunga. The deed purported to extinguish Maori title over an area of over 200,000 acres, with ill-defined and unsurveyed boundaries extending in the south from Pitoitoi to Takapuna (North Head), northwards along the coast to Te Arai, west to the watershed between the Kaipara Harbour and the east coast, and south along the watershed to Pitoitoi. The payment for this transaction consisted of £200 in cash and 400 blankets, 60 cloaks, 60 gowns, 200 pairs of trousers, 30 coats, 100 caps, 2 horses, 2 head of cattle, 4 casks of tobacco, 6 bags of flour, 2 bags of rice and a bag of sugar.  

The block was unsurveyed at the time of the original transaction, and there was a considerable amount of uncertainty over the boundaries. Soon after the deed was signed Surveyor-General Felton Mathew sent the surveyor Campbell, with an interpreter and four of the Hauraki vendors, to fix the northern boundary. One of the four chiefs was Wiremu Hoete, who was paid £5 for his part in pointing out the boundary. The survey party did not map the southern boundary of the block. Mathew reported to the Colonial Secretary that

‘the determination of the southern boundary being at present a matter of no great importance, and there being, besides, no natives at present who could point it out, I propose to employ Mr Campbell in making a survey of the river and Mahurangi  and of the available land  in that vicinity…  

Mathew’s comments clearly relate only to the Hauraki vendors, who would have been less familiar with the southern boundaries of the block, and in fact may have been afraid to going onto that land to point out the boundaries. Here was the first indication that the Crown had made a grave error in transacting this vast area with only the Hauraki tribes before considering the complex of overlapping rights in the land. Rigby has described the Crown’s decision to sign the original deed with only one group, the Hauraki tribes, as a ‘major blunder’.  Alemann similarly observes that this was one of the 

‘most complex and complicated transactions between the government and Maori. It also demonstrates the complete lack of knowledge of the early government officials when dealing in Maori land, and it also indicates that Maori had a totally different concept of land holding, completely different from European notions of Land Tenure’. 

That Ngati Whatua possessed significant customary interests in the area is confirmed by the fact that they had entered into a number of pre-Treaty transactions within the block. These were largely upheld by the Crown in its subsequent investigations. Furthermore, Crown officials appear to have simply forgotten Ngati Whatua’s assertion of rights to lands north of the Waitemata harbour when Hobson arrived at the site of his new capital in March 1841. Te Kawau welcomed the Governor, and pointed to the lands north of the Waitemata harbour, claiming them as Ngati Whatua lands.  Yet only a year later the Crown would enter into dealings in respect of those same lands with the Hauraki tribes alone.

The Crown would soon realise the extent of Ngati Whatua interests in the area, and an extended and drawn out process would commence in order acknowledge those interests. As the Crown historian Loveridge notes

‘It appears… that the Crown accepted that the specific interest of southern Ngati Whatua chiefs (at least) had not been affected by the main Mahurangi purchase, and acknowledged that their lands would have to be purchased separately’. 

The Crown would later be forced to acknowledge Ngati Whatua interests not just in the southern part of the block, but also in the northern section in a series of transactions throughout the 1850s. Yet despite all these subsequent transactions, discussed briefly below, it is not at all clear that the Crown ever completely extinguished Ngati Whatua interests in Mahurangi.

The first Mahurangi transaction involving Ngati Whatua occurred some two months after the Crown’s original purchase from the Hauraki tribes. The Crown agreed to purchase from Ngati Whatua around 6,000 acres between Takapuna and Uruamo creek, an area overlapping the original Mahurangi deed. No deed was drawn up specifically for this transaction, and boundaries were again left unsurveyed. The payment made to Ngati Whatua was £100 cash, one horse with a bridle and saddle and one boat. The vendors were Tautari, Titahi, Parenga, Te Horo and Kaiarero. They were later paid £10 in lieu of the boat. 

The Crown saw this transaction as a ‘completion’ of the original Hauraki sale of April 1841. As already noted, there was no new deed signed with Ngati Whatua, but rather the Ngati Whatua vendors were merely required to sign the receipt for the payment of goods. The receipt was on the reverse of the original Mahurangi deed, and did not even refer to the boundaries of the land involved, simply stating

‘Ko nga utu enei ke riro mai i a Ngati Whatua mo tetahi o te ratou i roto i nga kua oti to tuhituhi ki tua o tenei Pukapuka’. 

Some decades later, the Government interpreter Puckey translated the receipt as stating that

‘These are the payments received by Ngati Whatua for some portion of their lands within the boundaries defined on the other side of the deed’.  

The form of this ‘conveyance’, a receipt rather than a new deed, confirms that as far as the Crown was concerned it was no new transaction but rather a ‘completion’ of the April 1844 Hauraki deed. This suggests that Ngati Whatua choices, and their bargaining position, was substantially weakened. The sale was a fait accompli, and Ngati Whatua were given only one choice in the matter; to accept payment or go without. Moreover, the payment received by Ngati Whatua was only for 6,000 acres, which did not encompass the full extent of Ngati Whatua interests in Mahurangi. For Ngati Whatua interests to be fully extinguished further transactions would have to be effected.

A further Mahurangi transaction involving Ngati Whatua took place in early 1842. In December 1841 the Ngati Whatua Rangatira Te Reweti had offered to sell the Crown a block of land on the north side of Waitemata bordering the 6,000 acre block within the Mahurangi purchase for which Ngati Whatua had been compensated in June 1841. At the end of December Clarke reported that Te Kawau and Te Reweti had agreed to transfer ‘a portion of land to the north-west of Auckland, containing ten thousand acres, more or less’, for which they sought £300 in cash, plus three horses with saddles and bridles and 40 blankets. The Governor approved the transaction, and on 3 January Paora, Te Hira, Te Reweti and Te Kawau signed a second receipt on the reverse of the Mahurangi deed acknowledging the payment.   

One noticeable and significant difference was that the wording for the second receipt was altered. The phrase ‘mo tetahi o te ratou wahi’ (‘some portion of their lands’) was changed to “mo ta wahi katoa” (‘all their places’ or ‘the whole of their lands’ [within the Mahurangi deed]).  The Crown appears to have been trying to signal the complete extinguishment of Ngati Whatua interests in Mahurangi. 

Whatever the case, this was certainly not a sentiment shared by Ngati Whatua. Subsequent dealings with Mahurangi lands involving Ngati Whatua with the Crown (and private individuals) clearly indicate that the iwi were only concerned with the land Te Reweti had offered to the Crown in December 1841. This seems to have involved around 10,000 acres located to the north of the 6,000 block Ngati Whatua transferred in June 1841; an area stretching from the mouth to the head of the Uruamo Creek and then almost due north to the Okura River. This area has been estimated to contain 18,000 acres. The total payments Ngati Whatua received for these two Mahurangi transactions amounted to £410 in cash, and a value of £154 in goods. Ngati Whatua, however, continued to hold and claim interests in the balance of the Mahurangi block, and the Crown would have to make yet more payments over the following years in an attempt to completely extinguish Ngati Whatua interests in the area.

The Crown appears to have paid another £100 to the Ngati Whatua chief Tautari, at some point in 1842, for land on the north side of the Auckland harbour, and although no description of the boundaries was given, it seems that the payment related to the lands Ngati Whatua had transferred (or been compensated for) in June 1841 and January 1842. The next payments to Ngati Whatua for Mahurangi lands occurred in 1852, following a Crown investigation of claims made by the Ngati Rongo and Ngati Whatua rangatira Te Hemara Tauhia, and a rangatira from Matakana named Parihoro, identified in the deed as Kawerau. Their claims were investigated by Native Land Purchase Commissioner Johnson. Following his report Native Secretary Nugent and Surveyor-General Ligar met with Te Hemara, Parihoro and other claimants from Hauraki and Ngati Whatua in an effort to buy out outstanding Mahurangi claims. The Crown first completed payments to various Ngati Paoa chiefs in 1853, involving a total sum of £120, which was ratified in early 1854 by the signing of yet another Mahurangi deed. The interests of Parihoro and four other rangatira, also identified as Kawerau, were then acquired in respect of about 20-25,000 acres between the Whangateau and Mahurangi rivers. This area was marked on a plan attached to a deed signed by Parihoro and the four rangatira on 1 November 1853. This area excluded a 1,000 reserve at the eastern tip of the Matakana peninsula, north of Kawau Island. 

As far as the Crown was concerned this settled all claims on the northern side of the Mahurangi block, but the claims of Te Hemara, Ngati Rongo and Ngati Whatua people on the southern side of the block, at Waiwera and Puhoi, remained outstanding. Te Hemara’s dispute with the Crown over the original Mahurangi purchase dated back to 1841. It appears that in that year Te Hemara and Hobson had agreed that a substantial reserve would be set aside for Te Hemara and his people on the north bank of the Waiwera River in the vicinity of Puhoi. Te Hemara also subsequently protested that his father’s signature had been posthumously added to the original Mahurangi deed. The reserve Te Hemara and Hobson were said to have agreed on was not mentioned in the 1841 Mahurangi deed, but this agreement was noted later by Johnson. 

Te Hemara’s claim re-emerged in 1852, prompting Johnson’s report, and in August 1853 Te Hemara further sought to gain the attention of the colonial government by obstructing Pakeha sawyers occupying the land under licenses issued by the Crown. Te Hemara’s actions angered Nugent and Ligar, who believed they had struck a deal with the rangatira the previous year whereby he and his people ‘consented to forgo any claims on the said land, if a reserve was allowed to them in the vicinity’.  The main point, of course, was that Te Hemara had not received his reserve. 

Johnson arrived to investigate the situation in early September 1853, and subsequently reported that he had settled the reserve issue with Te Hemara. Johnson now accepted that Crown tardiness over the reserve had prompted Te Hemara’s actions. Johnson also found that Te Hemara was justified in turning away the sawyers from the land, as they had in fact taken timber from Maori land at Puhoi, and he had assisted Maori in obtaining payment for the stolen timber. Although no deed was signed by Te Hemara, the reserve between Waiwera and Puhoi was sketched by Johnson in 1853, and was clearly marked as ‘Hemara’s Reserve’ on the plan attached to Parihoro’s deed.  

But Ngati Whatua rights elsewhere in Mahurangi remained, particularly in the areas around Waiwera, Okura and Pitoitoi. Ngati Whatua also sought to further assert their rights in the northern part of the block after the Crown paid off Parihoro. Only days after Parihoro signed his deed on 1 November 1853 and received his payment, Haimona Pita of Ngati Whatua complained to Governor Grey that ‘my finger has never touched a copper’, and he also deeply resented the additional payments the Crown had made to the Hauraki tribes earlier in 1853, as the land ‘does not belong to them’.  Johnson reported that Haimona represented those Ngati Whatua claiming land from Te Weiti to Orewa, and erroneously stated that their claims had been extinguished by the Crown in March 1844, when Ngati Whatua allegedly received 100 blankets to the value of £42. It is not clear on what basis Johnson made this assertion, and it was certainly not accepted by his superiors, with Nugent recommending to Grey that Ngati Whatua interests be further acknowledged through the payment of £10 to Haimona and £20 to Te Ara Tinana. This was formalised in a deed of 7 November 1853, in which Te Ara Tinana, Apiata, Haimona Pita and Paora Kawharu received £30 in exchange for ‘the final unreserved giving up of Mahurangi… bought many years ago [ara o te whenua i hokona i mua]’, with the boundaries being those of the original 1841 deed. 

Despite this apparent finality, the payment was clearly not large enough to completely extinguish Ngati Whatua interests in the vast area encompassed in the original Mahurangi deed, and the iwi would continue to demand compensation and acknowledgement of their rights and interests throughout the 1850s and into the early 1860s. In June 1854, for example, only a few months after the signing of the November 1855 deed, Kereihi, the wife of Wiremu Te Reweti, was paid £100 for her claims to Mahurangi land between the Wainui Stream and Te Hemara’s reserve.  Between 1854 and 1864 the Crown would enter into a further eleven transactions with Ngati Whatua in an attempt to extinguish their interests in Mahurangi.

These later transactions are better documented and were executed more systematically than hitherto, largely because of the involvement of Chief Native Land Purchase Commissioner Donald McLean. There was increasing settler demand for the land, making the effective extinguishment of all Maori interests imperative. McLean instructed Johnson to study the various Maori claims and settle them with an eye to opening the entire district for settlement. McLean purported to believe that the repeated transactions involving Mahurangi to have resulted not from Crown blundering but from Maori dishonesty. However, McLean’s instructions to Johnson on how to proceed with completing the outstanding Maori claims clearly reflected the inadequacy of the Crown’s purchase process rather Ngati Whatua malfeasance. McLean instructed Johnson to ensure that this time Maori had

‘a clear understanding respecting the external boundaries of the lands they dispose of, and the blocks they retain for their own use… it is most desirable that they should fully comprehend its nature, and the boundaries should be inserted with the greatest possible care’. 

McLean also insisted that accurate surveys were carried out. It is clear that McLean was well aware that shoddy methods had led to trouble in the past, in respect of Mahurangi and elsewhere, and he had quickly moved to remedy this. He informed the 1856 Board of Inquiry into Native Affairs that he had insisted on higher standards than had been apparent in the past: the external boundaries of the blocks must be walked in the presence of Maori owners, and reserves should be carefully surveyed and situated within natural boundaries in order to avoid future disputes involving stock trespass. He admitted that up to that point no surveys had been completed north of Auckland.  

A unifying feature of all these transactions and those that followed (at least until the mid-1850s, when McLean’s Native Land Purchase Department was formed) was confusion caused by vague boundaries. There is no evidence that the boundaries were walked with the Maori vendors to confirm the extent of the block or the location of reserves, and many blocks were simply not surveyed before the signing of deeds. 

In addition, once Grey disestablished the office of the Protector of the Aborigines in 1846 there were no specialist officials to undertake land purchasing or exercise a protective role. In terms of the latter function we must assume that this duty fell upon the Crown land purchase agents, but there is little evidence that they seriously considered themselves as defenders of Maori interests. In almost every case Crown agents sought to advance the Crown’s land purchase objectives. 

If a proper process for ascertaining the nature and extent of Ngati Whatua interests had been implemented prior to 1854, and if Ngati Whatua claims had been fully investigated and acknowledged, there may have been no need for their repeated decade-long assertion of rights within the Mahurangi block. As it was, Johnson, and his successor Rogan, were obliged to acknowledge Ngati Whatua’s interests, even though that acknowledgment was nothing more than a prelude to the extinguishment of their interests by means of another small payment in yet another Crown purchase deed. 

The lands within the original Mahurangi deed that Ngati Whatua were compensated for between 1854-1864 included Wainui, Onewherowhero, Waiparaheka, Te Weiti, Mahakorau, Komokoriki and Pukeatua.  Slightly higher prices were paid in these transactions. Although is not entirely clear why this increase occurred, Stirling has offered some possible reasons. Firstly, it seems clear that the Crown had abandoned the original Mahurangi deed in the period between 1854 and 1864, and therefore may have viewed the land acquired in this period as not having been previously alienated. As no payments were deemed to have been made these were ‘new’ transactions and the payment was more ‘liberal’. It is also possible that the increased price was a reflection of a broader change of Crown purchase policy, with McLean’s insistence on ensuring a clearer definition of boundaries over much larger areas leading to more substantial payments to Maori owners. A third factor may have related to returns achieved by Ngati Whatua through leasing land at this time, even though this was technically illegal. The result was that the Crown had to respond by offering more for the land. Ultimately, however, even though the prices did increase somewhat, they continued to be low in comparison to the rising value of land in the colony. As will be discussed later in this chapter, Ngati Whatua’s reasons for accepting low prices was encouraged by promises of the ‘collateral benefits’ of settlement invariably held out by McLean and his land purchase commissioners.  

The final outcome was that by 1864 the Crown deemed itself to have entirely extinguished Ngati Whatua’s interests in Mahurangi. As noted, the Crown’s original deed with Ngati Paoa in April 1841 effectively presented Ngati Whatua with a fait accompli. The best Ngati Whatua could hope for from that point was to have their rights acknowledged by a small payment from the Crown. No reserves were made for the tribe save for Te Hemara’s (which was also eventually alienated), and although Ngati Whatua continued to assert ongoing rights in Mahurangi, notably through Te Hemara in the 1870s, the Crown’s view prevailed: no Ngati Whatua lands remained in their ownership east of Kaipara and north of Waitemata. That such an outcome was deeply unfair is obvious. The Ngati Whatua view was perhaps most eloquently expressed by Te Hemara Tauhia at an 1879 Orakei Parliament attended by Premier Grey and Native Minister Sheehan. Although Te Hemara had received a reserve, wider iwi interests in the land remained uncompensated. ‘I refer to my lands at Mahurangi, Te Hemara stated 

‘that have been taken from me by the Government. It was not through me that those lands were sold. Those lands were sold wrongfully by some of the persons who are now present at this Parliament – namely, by Ngatipaoa. I think the Government should return to me part of my lands at Mahurangi, because Sir George Grey and Mr. Sheehan are now appointed the heads over this Island before them. The boundary of that land commences at Te Toroa, thence to Okura, the Wade, Wangatura, Tiri Tiri Matangi, Orewa, Otamarua. I have never received the money paid on account of them. The lands are at Mahurangi, Puhinui, Matakana, Whangateau, and Te Kawau. I wish this matter to be investigated, because I have not received money for this land. These are the wrongs that the Government have done to me. They purchased that land without any survey having been made, in its natural state. It was not measured. Sir George Grey and Major Nugent promised to return to me all my lands at Mahurangi. The word of Sir George Grey was, “What is your opinion with regard to that land that the Government claim?” I said, “It ought to be returned to me”. Grey said, “Very well, by-and-by you will be paid for that land at Mahurangi”. It is now thirty years since that promise was made, but up to the present time nothing has been done. Therefore I make known my grievance in this matter. I have waited up to the present time, but no money has been paid to me’. 

CROWN PURCHASES, 1848-1853

There had been a lull in land transactions involving Ngati Whatua and the Crown in the period between 1842 and 1847. Part of the reason for this was the dire financial position of the Crown, which led to the pre-emptive waiver transactions discussed in an earlier chapter. However, with the arrival of George Grey as Governor in 1846 land transactions would recommence in earnest, and would in just a few short years result in further serious land loss for Ngati Whatua in central and western Auckland. But before he could commence large-scale land acquisition Grey was faced with some serious problems. 

Colonial Office instructions to Hobson in 1839, and the Treaty of Waitangi itself, had both recognised that Maori owned all the land in New Zealand. This idea soon came under attack, however, and a much more limited view of Maori property rights came into vogue. It was now claimed that Maori owned only those lands which they cultivated or resided upon. The balance was ‘waste land’ which was thought to be the property of the Crown. When Earl Grey took over the Colonial Office in mid-1846 he instructed Governor Grey to give effect to the ‘waste lands’ policy.  As Governor Grey (and many other colonial jurists, missionaries, settlers and officials) realised, such a policy could not be sustained. Maori (including Ngati Whatua) claimed and used virtually every acre, rood and perch, and there was little doubt that they would strongly resist the imposition of a policy so utterly at odds withy reality and antithetical to their attitudes toward their land and resources.

Governor Grey thus faced a dilemma. How might he reconcile Earl Grey’s instructions with colonial reality. He responded by setting out the policy he intended to apply in New Zealand, but in a manner which appeared to make it at least partly consistent with Earl Grey’s instructions. The Governor told Earl Grey that he did not need to confiscate ‘waste lands’ since the Crown’s pre-emptive right, recently re-imposed, provided an opportunity to acquire the land for little more than a nominal sum. Maori, while they would undoubtedly resist the enforcement of a confiscatory ‘waste lands’ policy, would, according to the Governor, ‘cheerfully’ dispose of lands not required for their own immediate subsistence for a ‘nominal’ sum in order to encourage settlement, provided that necessary reserves were set aside. As settlement increased the value of these reserved lands would surely rise, providing further benefit to Maori. Crown pre-emption would thus serve a dual purpose. It would enable the Crown to protect Maori property rights while at the same time permitting the Crown to fund the administration of the colony through the re-sale of land at prices significantly higher than those paid to Maori.  

There was, however, one potential difficulty. Given that ‘cheerful’ Maori acquiescence was largely based on ignorance of the ‘true’ value of their land, it was crucial, at least in the short term, to purchase Maori land in advance of settlement;  in other words, before Maori became aware of the re-sale prices likely to be obtained by the Crown. If this was not possible, as in the case of Ngati Whatua, who were increasingly aware of the prices paid to the Crown by settlers, an alternative strategy was to spare no effort in persuading them that despite small payments their ‘real’ reward lay in the manifold ‘collateral’ and other advantages which would inevitably accrue to them through settlement. Land acquisition was thus to be promoted as something akin to a ‘joint enterprise’, with Ngati Whatua providing land for settlement purposes, and in turn achieving longer-term rewards. As noted, such assurances broadly conformed with Ngati Whatua notions of reciprocity and partnership, and seemed to reflect and confirm the basis of their partnership with the Crown. 

Soon after Grey reinstated Crown pre-emption in 1846 he set about acquiring the remaining Ngati Whatua lands in the greater Auckland and North Shore areas. This particular series of transactions commenced in 1847 and continued until c1853, involving around 60,000 acres. 

The first area acquired by the Crown in this wave of purchases was, as noted above, the highly sought-after Remuera land which FitzRoy had excluded from his pre-emption waiver proclamation. As a result of this series of purchases Ngati Whatua retained only the 700 acre block at Orakei and one small reserve of 103 acres in Remuera which was vested in Paora Tuhaere. The prices Ngati Whatua achieved in respect of all these transactions, with the notable exception of Remuera, were paltry. 

Why did Ngati Whatua part with so much of their most valuable land at this time for what was, on average, little more than a nominal price? When entering into these transactions Ngati Whatua fully expected to reap the manifold long-term advantages invariably held out to them. Auckland lands were in great demand, and the Crown was eager to acquire them. For Ngati Whatua the transfer of these lands was no more than a further demonstration of their commitment to partnership and reciprocity, although such a demonstration was to come at a very high price. 

CROWN PURCHASES, 1854-C1865 

The Crown embarked on a further land purchase programme involving Ngati Whatua land from 1854, the year in which the Land Purchase Department was established with McLean at its head. As noted above, by this time Ngati Whatua were coming under increasing economic pressure as European competition began to exclude them from the Auckland market, and the tribe sought to encourage settlement in other parts of their rohe, including the Kaipara.

Johnson was appointed the District Land Purchase Commissioner for the Kaipara/Whangarei district in 1854. His initial purchases centred on the Whangarei area, but in May 1854 he received instructions from Donald McLean that increasing demand for land by settlers rendered it necessary 

‘that measures should at once be adopted to acquire additional tracts of country from the Natives. The District…. which I propose for the present to assign to you for carrying on these duties, comprises the whole of the country lying North of the portage between the Waitemata and Kaipara. I have every confidence that you will use your utmost exertion to acquire from the Natives the whole of their lands within this district, which are not essential for their own welfare, and that are more immediately required for the purposes of colonization’.   

Within a month Johnson acquired just under 30,000 acres of Ngati Whatua land in central Kaipara. This provided a springboard for future Crown purchases in the area.  But while this start had been made, financial constraints on the Crown meant that the Land Purchase Department was forced to postpone further activity in the area until 1857, although Johnson noted the willingness of Ngati Whatua to transfer further land. In the meantime Johnson was instructed to focus on the purchase of more accessible blocks around Whangarei, rather than more remote land in the Kaipara district. 

Ngati Whatua were also involved in Crown purchases in the Whangarei district. They received £175 in recognition of their interests in the large Ruarangi block in September 1855, although the bulk of the £700 payment went to Te Parawhau, an iwi closely aligned to Ngapuhi.  In the following month Johnson completed the purchase of the Maungakaramea block of over 17,000 acres. He relied heavily on the Te Parawhau chief Tirarau to push through this transaction, and on 10 October Johnson forwarded a deed signed by Tirarau and 18 others, and requested that the remaining balance of the payment due to Tirarau and his people (£700) be forwarded as quickly as possible. This was because Tirarau refused to share out the money already received – Johnson had handed over £2,000 as the initial payment – until the whole amount was received. Kemp, the Acting Chief Land Purchase Commissioner, declined to send the remaining balance for the time being, ‘in consequence of the repeated applications to the Government of several influential persons of Ngatiwhatua tribe residing at Orakei’.  Nevertheless the remaining balance was paid to Te Tirarau in December 1855. In the same month a hui had been convened by Ngati Whatua and Ngapuhi, ostensibly to resolve this land question. According to the report in Te Karere Maori, Tirarau and Parore appeared at the hui at the head of a large body or armed warriors and threatened the Ngati Whatua rangatira Paikea.  Ngati Whatua later constructed a pa at Otakanini in expectation of an attack by Tirarau, but this did not eventuate. In order to avoid further potential hostilities the two parties agreed to attempt to resolve their disputes in the presence of the Land Commissioners.

No resolution was forthcoming. In March 1856, T. H. Smith, the Acting Native Secretary, informed Governor Gore Browne that

‘the purchase by the Government of the Maunga Karamea block had indirectly led to revival of a feud between two tribes both claiming the land in that District. At present it is uncertain whether the endeavour of the Government to mediate in the matter will be successful. Should strife begin and loss of life ensue, it is impossible to say to what extent we may become involved. Our neighbours Ngati Whatua would certainly join in the fray and probably might be inclined to push matters further than they otherwise would, relying upon our support and their own secure position – Auckland lying between them and their enemies’.  

In November 1856 McLean informed Johnson that Te Uri O Hau had declined to accept the £100 he had offered them to in respect of the disputed land at Maungakaramea, which he had hoped would smooth things over, and added that

‘it appeared to me they felt apprehensive that Tirarau would make it a cause of quarrel with them if they accepted any payment on land sold by him and bordering so close on the Tangihua range, therefore it is perhaps as well that the matter should stand over, leaving Tirarau to adjust it himself’.  

Johnson’s reliance on Tirarau to complete purchases in this area, and the formers failure to investigate the full extent of customary rights in various blocks prior to their purchase, led to increasing tensions between the different tribal groups, and eventually reached a point where armed conflict would break out in 1862 over land at Mangakahia (see above). The Crown’s shoddy and muddled purchasing process once again disadvantaged Ngati Whatua, and, as we shall see, led to very dire consequences. 

In 1857 the Crown turned its attention once more to the Kaipara. McLean had acquired the necessary finances, which enabled him to commence an aggressive purchasing programme. He signalled his intent when he separated the Kaipara and Whangarei districts and appointed John Rogan as Land Purchase Commissioner for the Kaipara area. Rogan’s initial instructions from McLean were to proceed to the area and extinguish Maori title at ‘as low a rate as possible, and on no account to exceed more than 8d per acre’. McLean stressed the ‘extreme care and accuracy that will be required in defining the boundaries of the block, for which purpose a surveyor has been instructed… to accompany you and cut the lines under your personal superintendence’. Rogan was also to take care that ‘ample and eligible reserves are made for the use of the Natives, the selection, number, and extent of which must be determined by the wishes of the vendors themselves, and you own discretion’.  While Rogan was given some discretion in the matter of reserves, it is clear that he, and other Crown land purchase agents, were intent on acquiring as much land as possible at the lowest rate possible, and with as few reserves as possible.

In June 1857 Rogan was given further directions. He was told that ‘for obvious reasons’ the Governor considered it

‘highly important that the European population should not be more than necessarily isolated; he therefore desires that the instructions be given to the Land Purchase Commissioners to use their utmost endeavours to connect and consolidate Crown lands, and not to commence negotiations for the purchase of land, unless adjacent to and connected with Crown lands… 

This was revealing. Purchases were to be conducted not in conformity with Ngati Whatua preferences, but rather in a manner which afforded the best advantage to settlers and the Crown. 

Rogan arrived in the Kaipara armed with this set of instructions in 1857. He initially focused on purchasing land in the northern part of the district, including Ikaranganui and Matakohe. From October 1858 Rogan, following a short stint in Auckland, was back in the Kaipara and began purchasing operations in earnest. Over the following seven years Rogan would traverse the district purchasing tens of thousands of acres, including the Kaukapakapa, Mairetahi, Matawhero, Waiherunga, Hoteo, Kaikai, Okaka, and Whiritoa blocks.  

In February 1865 Rogan received instructions to cease purchasing any more land in the district. By this time he had succeed in acquiring 225,196 acres, the majority of which had been purchased at an average price of one shilling and eleven pence an acre. At that price the Crown was once again bound to garner a healthy profit from the on-sale of the lands, since its starting sale price was set at 10 shillings an acre. Ngati Whatua’s interests in the entire are stretching north from Riverhead to Oruawharo were removed, and a large and continuous area of Crown land, uninterrupted by Maori title, was secured. 

There is little doubt that the main Crown objective was to further the interests of settlement, and if this occurred at the expense of Ngati Whatua interests then so be it. Rogan’s failure to create ‘ample reserves’ for Ngati Whatua particularly stands out. Of the eleven reserves he created, seven were purchased by the Crown before 1865. By 1865, after the close of the Crown’s purchase programme, just 3,193 acres remained as reserved land, equating to just over one percent of the total land acquired by the Crown in the Kaipara. Rogan’s justification was that Ngati Whatua’s remaining Kaipara land was sufficient to provide for their present and future needs. He wrote in November 1865 that in the whole district ‘they have yet left several hundred thousand of acres of land… The land now in their possession is so valuable that the period is far distant before they become paupers’.  But as Wyatt notes, ‘in choosing to rely on that remaining land to justify the creation of minimal reserves at this time, the Crown necessarily undertook a responsibility to protect that remaining land for the future’.  How the Crown responded to this implicit and crucial undertaking will be discussed in a later chapter.

For all Rogan’s failings, it should be noted that Ngati Whatua were active participants. Rogan and the leading Ngati Whatua chiefs co-operated fully, and the rangatira, as spokesman for their people, played a key role in calling hui, finding consensus, directing surveys, signing deeds and distributing the proceeds.  Close co-operation between the chiefs and Rogan in the purchasing process, and especially the fact that surveys were completed before the purchase was finalised, meant that there was not as much room for the misunderstandings and disputes which had characterised earlier Crown purchases. Rogan singled out Te Keene Tangaroa for particular praise. Rogan stated that Te Keene had been 

‘an adherent of the Government for many years and has been the means of inducing the natives of the district to dispose of their land. He has been of real service to the government during the war by putting down natives who were constantly spreading false rumours in the north. He is more true to his trust than any Native Assessor in the Kaipara’. 

Rogan’s description of Te Keene was superficial. This chief, and other Ngati Whatua rangatira, were not de facto agents of the Crown, ‘inducing’ their people to cede land. They acted in the manner outlined above, as representatives of their people seeking to achieve a number of economic and other objectives. With the political and economic climate in Auckland changing for the worse for Ngati Whatua – particularly from the early 1860s – the leading Ngati Whatua rangatira realised that one way of extending the economic benefits that Ngati Whatua enjoyed in Auckland from the 1840s to the mid-1850s was to encourage the spread of European settlement into the Kaipara. To achieve this, Ngati Whatua were prepared to offer a significant amount of their land in the district, and they demonstrated this early on by gifting the Portage as a Government road in the district.  

Ngati Whatua were not, however, prepared to attract European settlement into the Kaipara at any cost, and certainly not at the cost of their entire tribal estate. To do so would have been a self-defeating exercise. Ngati Whatua agency in this regard can be seen from the pattern of Rogan’s purchases in the district. Although he succeeded in large measure in extinguishing Ngati Whatua interests in the north and the east of the district, he was unable to do the same in the west Kaipara district – the land on which the majority of Ngati Whatua kainga were situated. 

The fact that all of the land on this western arm of the Kaipara was not sold suggests the extent to which the Ngati Whatua rangatira were able to influence the Crown’s purchase programme. Ngati Whatua also retained land in other key areas, usually the sites of major settlements (as at Puatahi, Waipiro, Mairetahi and Kaukapakapa). This further suggests that there was deeper strategic thinking behind the Ngati Whatua’s participation in the Crown’s purchasing programme. 

Settlers soon began arriving in the Kaipara in the wake of Rogan’s purchases. Ngati Whatua welcomed them into their midst, notably at Kaukapakapa and Albertland. They provided the settlers with food and other supplies in an effort to establish a firm relationship. Ngati Whatua also experienced some benefits from having settlers in their midst, selling them fresh produce at monthly markets at Oruawharo, providing them with canoe transport, initially the primary means of transport for settlers and their goods, and supplying labour for European mills and logging operations. Some were engaged in gum-digging on contract to European settlers such as John McLeod, and were occasionally also employed in the construction of roads.  

Yet while Ngati Whatua experienced some immediate economic benefits, these largely proved short-lived in the Kaipara and did not arrest a gradual decline of Ngati Whatua’s economic position in the district. The settlers, as had been the case in Auckland, sought to achieve self-sufficiency and ‘independence’ rather than fostering a partnership with the tribe. This attitude was perhaps best encapsulated by the Daily Southern Cross when writing about the Oruawharo market in June 1863

‘Hitherto the settlers have felt far too dependant on the natives, so that commercially everything has fallen into their hands. Now our people are awakening to a more adequate feeling of self-reliance, and every energy is being put forth to render our settlement independent of all native produce at the very earliest possible period. Various garden crops are being put in and many are up and looking well. Several patches of ground varying from half an acre to three acres, are assuming the appearance of grass meadows; and crops of wheat just coming up give a promise of next year’s harvest. Before twelve months are over we hope to produce the bulk of all we require for our own sustenance’. 

Moreover, the Crown failed to bring settlers in sufficient numbers to provide a sound basis for future Ngati Whatua prosperity, and also failed to provide the necessary regional infrastructure and development, particularly roads and bridges. By 1866 there were only 450 settlers in the entire Kaipara district, and many of those struggled to make a living. Ngati Whatua and the settler communities remained largely isolated from one another. Transport was a significant problem since there were few usable roads, and the lack of an efficient link to Auckland greatly hampered the development of trade and industry. Consequently the settlers themselves competed with Ngati Whatua in both the produce and labour markets. By 1872 it appears that Ngati Whatua had virtually abandoned cultivating produce for sale. 

Subsequent developments exacerbated the Ngati Whatua decline. Auckland and the rest of the colony fell into an economic crisis in 1865, which could only have added to Ngati Whatua’s economic woes. The collapse of the timber market from 1866 also had a highly adverse impact on Ngati Whatua, given their heavy involvement in the industry. By 1866 all the timber mills in the Kaipara were operating at a loss, and between 1867-1868 the two most successful mills in the district both shut down. The economic downturn forced Ngati Whatua onto to the gum-fields. This had a highly negative impact on the iwi and gum-field conditions were very hard. Furthermore, the fluctuating price of gum, coupled with an increasing reliance on store-bought goods, tended to force many Ngati Whatua into a cycle of debt which many found it difficult, if not impossible, to escape.  

Some might argue that the Crown was under no obligation to ensure that Ngati Whatua achieved economic success, and even if so inclined the colonial administration lacked the capacity to do anything, or that it was clear that the Crown equally neglected the settlers and Ngati Whatua. It is true that the Crown could not ensure economic success and had no control over market fluctuations. On the other hand, however, it can be argued that the Crown had a duty to at least ensure that Ngati Whatua were not hindered in achieving their economic ambitions, and that it was incumbent on the Crown to do all that it could to encourage Ngati Whatua endeavours. We refer particularly to the provision of communications infrastructure, which would have encouraged closer European settlement, as well as opening up new markets. 

In 1839 Normanby had told Hobson that Maori land might be bought cheap and sold dear, but there was no ‘injustice’ in this, so long as Maori obtained the advantages of settlement and an increase in the value of their remaining lands. From 1840 Ngati Whatua were told that while the price paid for their land was nominal, they would reap greater rewards in the future with the arrival of settlers, roads, bridges, schools and hospitals. Ngati Whatua had indeed sold their lands cheaply, but in the Kaipara none of the promised benefits were evident. What had happened, in effect, was that Ngati Whatua had made a massive contribution, their land, and the promised return had simply not been delivered. This was not simply a question of what a colonial government possessing limited resources might or might not be capable of delivering, and the fact that settlers were treated just as poorly is irrelevant. It is rather a question of what the Crown had promised Ngati Whatua. The Treaty, Ngati Whatua’s compact with the Crown, and the terms of the land transfers required the Crown to do better. 

THE ‘TENTHS’

Ngati Whatua should have reaped substantial benefits from some of the transactions they entered into with the Crown during this period. In several transactions in 1853 and 1854 (involving lands at Hikurangi, Mangawhai and Pukapuka) the deeds contained a ‘Ten Percent’ clause under which a tenth of the funds generated by the Crown’s on-sale of the land to settlers would be devoted to schools, hospitals, medical attendance, mills, annuities for rangatira and similar purposes. These clauses were part of a short-lived policy applied between September 1853 and April 1854. They were entirely consistent with Ngati Whatua’s expectations of on-going benefits resulting from land transactions with the Crown. The primary reason for the inclusion of these clauses in the deeds at this time was Grey’s fear that a settler dominated Assembly would stint on Maori purposes and race relations might deteriorate, with a consequent falling off of land purchase. This fear was given shape by the passage of the 1852 New Zealand Constitution Act, which established a settler government, and although an annual sum of £7,000 from the Civil List to be expended on Maori purposes was maintained, it did not appear sufficient to maintain Grey’s ‘flour and sugar’ policy. 

Grey had supported the proposed Constitution Act in 1851, particularly the setting aside of £7,000 on the Civil List, but he also assumed that the endowment policy of setting aside of 15 per cent of the land fund for Maori purposes would continue to run in parallel with the Civil List provision.  Grey’s interpretation was, however, challenged by the Auditor-General’s office, and Grey consequently used his gubernatorial authority to make explicit a principle that had hitherto been applied informally in land purchase deeds; namely the promise of future benefits. Through the Civil Secretary Alfred Domett, Grey instructed the Auckland Commissioner of Lands Donald McLean to

‘pay one-fifteenth part of the proceeds of any sales of lands purchased from the aborigines previously to this date, into the general treasury in order that such amounts may be devoted to objects for the benefit of the Native Race, in accordance with agreement entered into with the owners at the time of the purchase of those lands’. 

In order to ensure that his occurred Grey then directed that the clause relating to an endowment fund included in Crown deeds. Although this policy could not be applied retrospectively, as Grey seems to have suggested, it was appended to a number of new deeds signed with Maori vendors in the just created Auckland and Wellington provinces. The percentages included in the deeds, however, did not equate to the one-fifteenth (just under 7 per cent) in either of those provinces; in Auckland the sum was set at ten percent, and in Wairarapa at five percent. 

The ‘the ten percent clauses’ included in the deeds were linked to Grey’s endowment policy, which emphasised the collateral advantages and on-going benefits which already formed a key part of Ngati Whatua’s expectations. Yet despite Grey’s intentions, his first governorship was coming to an end (he was to return in 1861), and as the Waitangi Tribunal has observed

‘it would appear that the policy went into abeyance after his departure at the end of 1853… after Governor Browne’s arrival the new policy appears to have been completely suspended. The new governor saw the civil list as being supplemented by the ordinary revenue of government, not by any particular provision from the land revenue’. 

Just as the policy was abandoned, so too was the commitment made to Ngati Whatua in the Hikurangi and Pukapuka deeds. No effort was made to administer the fund at all, and it was left in the hands of the Treasury. The Treasury expended a sum of £1,125/7/5 to pay for the Orakei bridge, but as the Waitangi Tribunal has observed, the bridge was only of limited value to Ngati Whatua at Okahu and principally benefited the European settlements at Mission Bay, Kohimarama, St. Heliers and beyond.  Furthermore, bridges were not mentioned in the deeds, as opposed to schools, hospitals, doctors and other annuities. The ‘Ten Percent’ clauses were clearly intended for expenditure which would benefit Maori, not the general public.

Ngati Whatua continued to demand their just dues from the ‘Ten Percent’ clauses, and in 1874 the government appointed Major Charles Heaphy, Commissioner of Native Reserves, to arrange payment of the accrued and largely unused fund. At that time £1,348/9/10 had accrued from what was called the ‘Remuera’ lands, and £1,653/7/2 from Hikurangi, making a total of £3,001/17/-. Of the Remuera lands, only the Pukapuka blocks had the ‘Ten Percent’ clauses included in the deeds, and it was later estimated by the Lands and Survey Department that only £524 had accrued. It is thus not clear how the figure of £1,348/9/10 was arrived at. It is possible that the later estimation was an error on the part of the Lands or Survey Department, or perhaps the original sum included additional Remuera lands, or perhaps there was confusion surrounding the block boundaries. 

Heaphy then engaged in some creative accounting. He firstly claimed that Ngati Whatua had agreed in 1862 that a large portion of the cost of the Orakei bridge should be charged against their ‘Ten Percent’ fund, but this claim was undermined by his further statement that he had to explain the nature of the bridge expenditure to Ngati Whatua in 1874.  There was also no surviving record of this supposed agreement. The majority of the money (expended on the bridge) was thus withheld from Ngati Whatua, and Heaphy also withheld from them over £100 for administration and ‘management expenses’. Of the total of £3,001/17/- owing under the ‘Ten Percent’ clauses, Ngati Whatua directly received less than a third of that amount – £844/8/11, with another £1,050/13 set apart to cover the costs of education and hospital care, even though by 1874 such services as had been delivered were clearly inadequate. Indeed, that inadequate education services had hitherto been provided to Ngati Whatua was confirmed by their conditional acceptance of this payment; namely that schools be established in their kainga. It is also clear that Ngati Whatua viewed the ‘Ten Percent’ clauses as an ongoing and permanent benefit rather than a one-off payment. 

After 1874 no further payments were made to Ngati Whatua, even though funds continued to accrue from the Remuera and Hikurangi lands. Although the figures are not entirely clear for the Remuera lands, the government assessed the ‘Ten Percent’ fund of Hikurangi lands in 1927 at £3,699 (without including any interest on the fund since the 1850s). 

Ngati Whatua continued to complain about the absence of further payments after 1874, and their grievance was briefly looked into by the Sim Commission in 1927. The Commission simply accepted the Crown’s argument that it had expended over £2,000,000 since 1853 on Maori health and education, and that consequently no further payments on account of the ‘Ten Percent’ clauses were necessary. But the sum named by the Crown was expended on Maori nationwide, not specifically on Ngati Whatua. Put this way, the £2,000,000 had nothing to do with the ‘Ten Percent’ clauses. Ngati Whatua’s understanding of the deeds was that the benefits described would accrue to them, not Maori in general. Indeed, the Crown’s actions in 1874 suggested that at least at this time it held the same view. Heaphy may have been arbitrary and harsh in his disbursement of the ‘Ten Percent’ fund to Ngati Whatua, but his disbursements were made in a manner that he considered to be consistent with the deeds in question. Despite this, the Sim Commission unreservedly accepted the Crown argument, and Ngati Whatua are yet to see the payments that are rightfully theirs.

Another aspect of these transactions deserves some mention. As in the case of pre-Treaty and pre-emption waiver claims, it is not entirely clear that Ngati Whatua viewed these transactions with the Crown as complete alienations of land in the European sense. On the contrary, the evidence suggests that they saw deeds not as signalling the end of their relationship with the land and resources, but rather as confirming a shared interest with settlers in conformity with traditional tuku whenua arrangements. For example, in 1853 Ngati Whatua prevented Waikato Maori from gathering kauri gum on land at the Whau because they thought that ‘as they originally sold the land to the government they have a prior right of indulgence’.  In other words, they still believed they had a right to the land and its resources even if it had supposedly been ‘sold’ in an earlier Crown deed.  This attitude among Ngati Whatua prevailed until at least 1857, when Paora Tuhaere imposed a fee on members of the Tapuika hapu who were taking gum from ‘his’ land at Te Ararimu, north-west of Pitoitoi/Riverhead. This caused a dispute which had to be taken to the Resident Magistrate, with the result that Tapuika had to pay money to the government for taking gum without a licence, while Ngati Whatua agreed to refund to Tapuika half of what they had charged, ‘having wrongfully taken money from the Tapuika for permission to dig gum on land not belonging to them’.  

Summary

Between 1840-1865 Ngati Whatua participated in a number of significant land transactions with the Crown. The tribe believed that through these transactions they would achieve a range of material and other advantages. The Crown itself fostered this view, making it an explicit and important element in its land purchase policy, particularly following Grey’s return to New Zealand in 1846. Ngati Whatua were told that the nominal sums paid when deeds were signed was a mere fraction of the ‘real’ benefit that would accrue to them after the transfer of the land. In short, the main payment would come later in the form of manifold economic and other advantages. 

In this sense there was a meeting of the minds between Ngati Whatua and the Crown. For Ngati Whatua land transfers were a means of cementing their relationship with the Crown and settlers, and they looked forward to a long-term relationship based on reciprocity and mutual advantage. In many key respects Crown promises reinforced a Ngati Whatua impression that these land transfers were conditional, and reflected features of their own traditional land transfer practices. 

In the 1850s Ngati Whatua transferred a significant amount of land in the Kaipara. They did this in order to create new markets and outlets for their produce within the context of their increasing exclusion from Auckland.  The same promises of future benefit were made by the Crown, and accepted in good faith by Ngati Whatua. Land transactions were conducted by the chiefs in a manner which reflected tribal consensus. In other words these were tribal dealings, designed in a rational manner to achieve the future prosperity of the tribe. It is certainly not the case that Ngati Whatua or their chiefs were profligate land sellers careless of the future. 

Very few reserves were made during this round of Kaipara purchases, and some reserves that were created were subsequently sold. This was not considered to be problematic at the time, as Ngati Whatua retained substantial areas of land. But it would certainly become problematic if the Crown continued to acquire land on a large scale. 

As we shall see, the introduction of the Native Lands Acts in the 1860s removed tribal control and seriously undermined Ngati Whatua’s ability to manage the process of land alienation and settlement. Individualisation of title brought about by a succession of Native Land Acts, and effected through the Native Land Court, eroded tribal structures and tribal control, and exposed Ngati Whatua to a free market in land where individual tribal members – often indebted – proved easy prey for Crown and private purchasers. 

The Crown’s failure to protect what remained of the Ngati Whatua land base after 1865 was bad enough in itself, but it also undermined the integrity of pre-1865 land transfers as the terms which had been agreed (on-going advantage to Ngati Whatua and a secure role in the economic development of their districts) were rendered largely incapable of achievement. 

As it turned out Ngati Whatua economic objectives were not achieved. Settlers were less interested in partnership and reciprocity than establishing their own economic independence. The Crown failed to encourage settlement in the Kaipara on the scale sought by Ngati Whatua, and an absence of communications infrastructure generally stymied the Kaipara economy. An increasingly parlous Ngati Whatua position was exacerbated by periodic economic downturns, forcing many to rely on extractive industries, such as gum and timber. 

It is not sufficient to simply say that the Crown was not obliged to ensure Ngati Whatua economic success, or that the Crown lacked the resources to do more. The Crown had made explicit promises when acquiring land, with the result that Ngati Whatua had received minimal payments for their land. In short, Ngati Whatua were massively subsidising the Crown through the contribution of their land, but the Crown did little to meet its obligations. 

Not all land transactions between Ngati Whatua and the Crown in this period proceeded smoothly. This was particularly evident in the 1840s and 1850s, when the Crown’s muddled purchase processes, often characterised by the failure to investigate the nature of complex and non-exclusive Maori interests, and often further confounded by a lack of surveys and confusion over boundaries, either deprived Ngati Whatua of lands or limited their meaningful participation in negotiations. This was certainly the case with some of the valuable Remuera lands, and was perhaps most glaring in the Crown’s infamous Mahurangi purchase. Ngati Whatua were presented with a fait accompli. The best they could hope for was to have their interests acknowledged in the form of a small payment.

7. NGATI WHATUA AND THE NATIVE LAND COURT

Introduction

During the two decades after 1840 extensive areas of Ngati Whatua land were alienated to the Crown under pre-emption. Many of these purchases were problematic because of the Crown’s failure to properly investigate customary ownership. This had serious consequences for Ngati Whatua, resulting in the Mangakahia war of 1860 and the death of a number of people.

Towards the end of the 1850s the Government was coming under increasing pressure from settlers to abandon pre-emption and allow direct purchase in the interests of speedier land settlement, and many Maori (including Ngati Whatua) also preferred to sell their land on the open market rather than be constrained by the Crown monopoly. Some Ngati Whatua felt that higher prices might be obtained as a result of direct dealing, and perhaps more importantly, direct purchase would enable them to select settlers who intended to permanently reside on the land and provide long-term benefits. In contrast to Crown many purchases, the land would not simply lie fallow for an indefinite period. Nor would it be occupied by settlers whose activities were unlikely to generate commercial opportunities or employment for his Maori neighbours. 

As we have seen, direct purchase and the resolution of title and boundaries issues had been discussed at Kohimarama in 1860, and were addressed within the context of Grey’s New Institutions. It had, however, been stressed by Gore Browne and McLean at Kohimarama that Maori themselves would largely control the process, and Grey’s Runanga similarly provided for significant Maori input and agency. 

Instead of assigning a key title adjudication role to the Runanga the Native Land Act 1862 was passed. Crown pre-emption was abandoned, and a Court was set up to ascertain individual titles. This Court provided for a high degree of Maori agency and control, even though Maori involvement was less than that envisaged in 1860 and by Grey. The new Court permitted Ngati Whatua, within whose rohe the it was briefly trialled, to largely manage the process and regulate settlement in a reasonably positive way and in accordance with their own tribal preferences. 

By 1864 the Crown, emboldened by the defeat of Waikato, decided to do away with ‘Maori institutions’ and ‘separate treatment’ for Maori under what has been called Weld’s ‘self-reliant’ policy. The 1862 legislation and the Native Land Court were radically altered. The Court was seen (at least in part) as a ‘Maori institution’ and a manifestation of ‘separate treatment’, and as such was unacceptable to colonial politicians. These changes were given legislative sanction by the Native Lands Act 1865. Maori agency was heavily reduced, and a new European controlled Land Court was constituted under the supervision of Chief Judge, Francis Dart Fenton.  

These were pivotal events in the relationship between Ngati Whatua and the Crown. The 1865 legislation (and successive land acts, particularly the Native Land Act 1873) took away virtually all vestiges of tribal or chiefly control and made it easier for any individual Maori, often indebted or otherwise vulnerable, to make an application to the Court. Land sales almost inevitably followed. This process struck at the heart of tribal rangatiratanga and Ngati Whatua’s ability to collectively control land alienation and colonisation or pursue sound economic objectives in accordance with tribal preferences. As more land was lost in the decades after 1865 the ability of Ngati Whatua to engage with the colonial economy was severely eroded. Ngati Whatua were increasingly seen not as equal partners in a colonial enterprise but as mere donors of cheap land on a massive scale. 

The nature and extent of land loss after 1865 also rendered the Crown’s promises of on-going ‘collateral advantage’, a feature of the pre-1865 transactions, impossible to achieve. This insidious process was therefore not only highly egregious in itself from 1865, but also severely undermined the integrity of these earlier purchases.  

THE NATIVE LAND ACT 1862

As a result of settler pressure, and mistakes often caused by clumsy Crown purchasing, the disastrous consequences of which were all too evident in Taranaki in 1860 and 1861, Grey was instructed by the Imperial Government to formulate

‘any prudent plan for the individualisation of Native title, and for direct purchase under proper safeguards of Native lands by individual settlers, which the New Zealand Parliament may wish to adopt’.   

As we have seen, initially Grey and Premier Fox intended to utilise the Runanga set up under the New Institutions as a means of adjusting ‘disputed land boundaries, of tribes, of hapus, or of individuals, and for deciding who may be the true owners of any Native lands’.  With this accomplished the Runanga would then largely control the land alienation process. Furthermore, under these measures alienation could, for the first time since 1846, include leasing rather than sale. Such a policy stood in direct contrast to settler ambitions. Settlers hated ‘Maori landlordism’ and demanded direct dealing with individual Maori rather than corporate tribal authorities. 

The Fox Government then introduced a Native Lands Bill, but political opposition to it proved exceptionally strong because it contained modest restrictions on alienation and provided for a degree of Maori control. Fox then resigned, and was replaced by Alfred Domett. He and Native Minister F. D. Bell strongly opposed Grey’s New Institutions and the Runanga system.  

A new measure, the Native Lands Act 1862, was subsequently passed. Its sponsors hoped that it would ‘to a great extent convert the Native Lands into transferable paper’.  The Act claimed to give full expression to the Treaty of Waitangi by abolishing pre-emption, even though pre-emption was included in article II. It claimed to do this by permitting Maori to deal with land on an individual basis, in the same manner as Europeans.  In contrast to the Fox Bill, and Grey’s Runanga, there were no provisions restricting absentee speculators, no requirement for intending purchasers to prove that they intended to occupy the land, and no provision for public auction. 

But as Loveridge points out, the Court was to be primarily a Maori body, although it was under the supervision of a European Magistrate. This reflected a view that, due to the current unsettled state of the colony, it was necessary to gain active Maori support and participation in such a process. The Court was to ascertain land ownership according to Maori custom.  The panel (comprising the Magistrate and rangatira, who were of equal status to the Magistrate, and could outvote him) would merely declare customary entitlements. The Court had no immediate power to transform those entitlements into ‘English estates or interests in land’.  If titles were found to be ‘tribal’ or ‘community’ they remained so unless the tribe or community subsequently applied to subdivide the lands. While settlers ‘fervently’ hoped that this would occur, there was no statutory compulsion. As the Tribunal observes in its Turanga Tangata, Turanga Whenua (Gisborne) report, the Court ‘offered a compromise between the races as to which side would control title ascertainment’.  It was a ‘hybrid’ model, but one which permitted the exercise of a significant degree of Maori control.

The Governor also had the power, ‘whenever it shall appear to him requisite for the future benefit of the Native proprietors’, to reserve for Maori benefit any of the land over which title had been determined.  This reserved land was to be held in trust rather than being retained by the owners. The European purchaser was required to pay a ten percent duty on the transaction, and subsequent purchasers were required to pay a further four per cent, with the payment going to the Government’s Land Revenue. This requirement bore some similarity with the ‘Ten Percent’ clauses discussed above which were, as we have seen, included in some of the deeds involving Ngati Whatua. It is not entirely clear, however, whether the sums collected in this way were intended wholly for Maori purposes. Notably, none of the Act’s requirements applied to the Crown, which was permitted to continue to deal with land whose title had not been determined by the Court.

Ngati Whatua (and other Maori) were not directly consulted before the 1862 Act was passed, and the measure was not translated into Maori. These omissions have drawn criticism from the Waitangi Tribunal and other quarters. Although the Act was less attuned to Ngati Whatua aspirations than the proposals put forward by Grey and Fox, it nevertheless had considerable merit, insofar as it provided for a significant degree of Maori agency and was effectively a Maori forum. The Act also, to some extent, satisfied a widespread Maori desire to deal directly with settlers of their own choosing and thereby obtain a full measure of value, both in terms of the immediate payment and on-going advantages. 

THE 1864 KAIPARA COURT

It was decided that a trial of the new Court would take place in the Kaipara district – considered to be a suitably ‘safe’ area inhabited by Maori mostly loyal to the Crown. In March 1864 Fox visited the Kaipara to discuss the pending introduction of the Court. He described it in benign terms, stressing that Ngati Whatua were now free to sell land to whomever they pleased. All they needed to do was see Rogan, who had been appointed to head the Court, ‘and satisfy him that they had a good claim to it, and he would give them a certificate of title, which would enable them to sell the land or not: the Government would not interfere with them about it’.  

Ngati Whatua then pressed Rogan to organise a Court sitting. Rogan, a former Crown land purchase agent and now Resident Magistrate, was well known to Ngati Whatua and was popular with them. He was to adopt a highly facilitative rather than an adjudicatory role.  Wiremu Tipene and Te Matikikuhu were appointed to sit with him as ‘brother judges’ in south Kaipara. Te Keene and Tamati Rewiti were appointed to sit with Rogan in north Kaipara.   

Upon receiving applications from ‘several influential Natives of the district’, and once the date of the sitting had been fixed, Rogan sent out messengers to notify anyone who may have an interest in the land to attend.  The Court convened in John McLeod’s house at Te Awaroa on 7 June 1864. Many Ngati Whatua were present. Rogan took a back seat, leaving the main business to be settled by the Maori judges and other rangatira present. The Court determined ownership of two blocks  (Otamateanui and Te Pua a Mauku) which were subsequently transferred to McLeod. Ownership was vested in senior rangatira, who then transferred the land to McLeod as representatives of the wider community of owners. 

The proceedings were apparently concluded to everyone’s full satisfaction, and the newspaper reporters present at this inaugural sitting were suitably impressed. The Daily Southern Cross remarked that the

‘Native Judges appeared well-suited for the important task they have to perform. They well know that all the responsibility will fall upon themselves should they award the certificates to any but the rightful owners – hence the examinations are extremely minute and well and ably conducted’. 

In August and September 1864 Rogan, assisted by the Maori judges, carried out further investigations in the Kaipara and Whangarei districts. Several disputes had been anticipated, but so far, according to the New Zealand Herald, ‘all differences have been amicably adjusted’.  As Stirling states, Rogan maintained the procedure he had devised at Awaroa in June 1864, and the process remained largely a Maori one. As Rogan remarked in a December 1864 report 

‘The parties interested meet and by previous arrangement among themselves they agree that the title shall be issued in favour of a certain member of the party as the case may be before calling on the judges to investigate the title’.

As Stirling further points out, Rogan remained little more than a ‘rubber-stamp’ for the decision of the iwi or hapu concerned. Maori tikanga continued to govern proceedings or at least form a major element of the adjudications. This was illustrated when the Commissioner of Crown Lands pointed to a lack of evidence in one case. Rogan responded that the chief in question, Paikea, had refused to answer any questions. It had been agreed that he (Paikea) and Manukau should be declared owners, but the two chiefs had disagreed over a proposed sale of the land. Paikea, not wanting to incur a slight on his mana, refused to refer to the land or the dispute in court or in front of Rogan. The President averred, as it was considered ‘by the two judges and myself conclusive, that no question of disputed title to this land would arise hereafter’. 

The Herald was pleased with Ngati Whatua’s apparent ongoing enthusiasm to utilise the Court in order to advance their district and themselves

‘Judging from the hearty interest the natives have taken in this new law, and the large tracts of valuable land which they are now proposing to dispose of by auction and otherwise, we must soon begin to feel the beneficial effects of direct purchase, while the general courtesy of the natives towards each other at their meetings, and the adjustment of their individual titles being in the hands of their most influential men, who judge in accordance with their own customs, must in every way tend to show that we have everything to expect from the new Act; while there is not the slightest danger of the Government falling into difficulties, such as have led to war in former times’. 

From a Ngati Whatua perspective the ‘experimental’ Kaipara Court worked reasonably well. They were able to transfer discrete parcels of land to McLeod, a local settler, in order to further their particular local objectives. But the Kaipara Court was only a qualified success, as the ‘prototype’ did not last long enough for a more complete assessment. 

Later in 1864 a very different Court emerged. As soon as Weld’s ‘self reliant’ Ministry came to power F. D. Fenton was appointed the Chief Judge of an expanded ‘national’ Court, and work began on the watershed Native Lands Act 1865. Colonial politicians, the Tribunal adds, ‘no longer saw any need to proceed cautiously’.   

THE NATIVE LANDS ACT 1865

By late-1864 there was to be no more ‘separate’ treatment or ‘exceptional laws’ for Maori. Responsibility for Native Affairs was no longer divided between the Assembly and the Governor. The Native Department was abolished, and for a time there was not even a Native Minister. Changes to the Native Land Court were initiated by Fenton, who was appointed Chief Judge in late-1864. He accepted the position on the understanding that he would remould the Court based on his ‘own principles’. 

In December 1864 a Proclamation was issued establishing a unitary nationwide Court governed by a single set of regulations, to be presided over by Fenton. Judges such as Rogan were now increasingly unable to take account of local conditions or display any real degree of flexibility. The Court would now be ‘a formal English style adversarial Court’. Fenton adopted the so-called ‘best evidence rule’, an approach peculiar to English legal tradition. It was not a commission of inquiry. Instead judges were restricted to taking into account only the evidence given in Court, ‘even where it was a matter of common knowledge that the evidence was wrong, or that other unrepresented interests existed.  

The court was to consist of ‘one Chief Judge, being a European Magistrate, and other such Judges, being European magistrates, and such Native Assessors as may be from time to time appointed by the Governor’. Any Judge sitting with two Assessors would henceforth constitute a Court.  Rogan was among those appointed Judges in January 1865, and a total of eleven Maori were appointed as Assessors, all of whom had formerly been judges under the 1862 Act.  Assessors were, however, now subordinate to the European judges. Their role had been seriously downgraded. While the agreement of the judge and Assessors was necessary, the latter could no longer outvote the judge. Because the Court had been reconstituted as a centralised ‘national’ European system under Fenton’s control, the degree of flexibility which had hitherto characterised its operation in the Kaipara district was no longer present. As Stirling notes, Rogan clashed a number of times with the autocratic Fenton, and considered that the new centralised approach ‘appears to me so difficult in its operation that I should like to get out of the whole business’.  

The Native Lands Act 1865 subsequently gave legislative effect to Fenton’s scheme and further developed it. The 1865 legislation transformed titles in a manner not envisaged by the 1862 legislation. The new Act provided that such a transformation would, as the Tribunal has observed, occur immediately and not on a subsequent application to subdivide tribal titles.  Instead of the Court declaring Maori customary interests, leaving it up to the community of owners thus identified to reach a decision as the to ultimate fate of the land – sale, lease or retention – the Court awarded title to individual Maori. Tribal control was thus side-stepped. 

Also dispensed with were the protective measures contained in the 1862 Act permitting the Governor to set aside reserves. As Ward has pointed out, Maori communities were to be reduced to the role of individual litigants appearing before a ‘body of self-proclaimed experts who had to try, and frequently failed, to interpret Maori custom’.  This, according to Ward, invited ‘not cooperation but contention between parties who, although the Court frequently divided the land, could win all, or lose all, on the judge’s nod’.  O’Malley similarly argues that a rigid set of rules ‘based on simplistic and hierarchical notions of the traditional bases of native title in Maori society’ would now determine the outcome of title adjudications.  

The explicit object of these changes was not to provide a mechanism through which Maori might control the title adjudication process or achieve their collective economic and other objectives. Its aim was rather to extinguish customary title, undermine tribal structures and facilitate land alienation. As the long-serving Native Under-Secretary T. W. Lewis remarked when giving evidence to the Rees Carroll Commission in 1891

‘the whole object of appointing a Court for the ascertainment of Native title was to enable alienation for settlement. Unless this object is attained the Court serves no useful purpose, and the Natives would be better without it, as… fairer Native occupation would be had under the Maoris own customs and usages without any intervention from outside’. 

The manner in which this overarching ‘object’ was to be achieved was by deliberately undermining existing Maori institutions, such as Runanga, and existing tribal structures. As Sewell, a future New Zealand Premier, stated in 1870, the aim of the 1865 Act was 

‘two-fold: to bring the great bulk of the lands of the Northern Island which belonged to the Natives, and which, before the passing of the Act, were extra commercium – except through the means of the old land purchase system, which had entirely broken down – within the reach of colonisation. The other great object was, the detribalisation of the Natives – to destroy, if it were possible, the principle of communism which ran through the whole of their institutions, upon which their social system was based, and which stood as a barrier in the way of all attempts to amalgamate the native race into our social and political system. It was hoped that by the individualisation of titles to land, giving them the same individual ownership which we ourselves possessed, they would lose their communistic character, and that their social status would become assimilated to our own’.  

This ‘principle of communism’, based on communal land ownership and tribal control, was to be destroyed through individualisation of title. It would now be possible for any individual Maori to apply to the court, irrespective of the wishes of the wider community of owners. Individuals had been named by the Kaipara court in 1864 as a matter of convenience, with the agreement of the hapu concerned, and the individuals were in fact chiefs who represented a community consensus. But this would no longer necessarily be the case. Any single claimant now had the right to seek such a determination, and in doing so would set in train the whole costly and disruptive Land Court process. If control of the land title adjudication process enabled hapu and iwi to control the nature and scope of settlement, the denial of tribal control of the adjudication process necessarily took away that power. Rightful owners could not avoid appearing in court if they wished to defend their interests. Those unaware of hearings involving lands they claimed simply missed out, as did those who were unwilling or unable to attend the court.  

Provision was made in the Act for the title of blocks comprising 5,000 acres or more to be awarded to tribes rather than individuals. This provision was rarely (if ever) adopted by the judges, who increasingly saw their primary role as the extinguishment of tribal or collective ownership, not its preservation. Judge Monro, who was active in the Ngati Whatua rohe from 1865, believed that recognition of customary title was ‘too much at variance with the habits of a civilised community’ and should be eliminated.  The approach adopted by the judges, with Fenton’s concurrence, was simply to award blocks to ten or fewer owners as a matter of course. This was the notorious ‘Ten-Owner Rule’. Those named became the legal owners of the land and were free to dispose of it as they saw fit without regards to the wider community. 

Some Europeans, including Judge Monro, claimed that these ten or fewer owners were supposed to act as trustees for the iwi or hapu, but there was no legal requirement for them to do so. While many rangatira did indeed act as trustees, some did not. This became a more frequent problem when the chiefs became heavily indebted and therefore vulnerable to the blandishments of Crown and private purchasers, or when others who lacked a sense of chiefly responsibility succeeded to the chief’s interests on their decease. The replacement of tribal sanctions and  rangatiratanga by an inadequate law paved the way for abuse.  

There was no consultation with Maori, either when Fenton remodelled the Court in late-1864 or when the Act was passed in the following year. As we shall see below, Ngati Whatua (and other Maori) did not achieve even limited Parliamentary representation until 1867. This failure to consult is particularly egregious, considering the fundamental and far-reaching changes brought about by the 1865 Act. 

For Ngati Whatua the changes instituted in late-1864, before the passage of the Act, had little immediate impact, apart perhaps apart from a rather more formalistic approach taken by the judges.  Rogan and Monro, with two Assessors, presided over a number of further hearings during early and mid-1865 which appear to have proceeded satisfactorily.  In March 1865 the Herald reported that Rogan had been holding a highly successful Court at Whangarei. The lands for which certificates had been issued were said to contain valuable coal resources: ‘We may, therefore, shortly expect to see European energy and enterprise brought to bear upon the development of this most important… resource’.  In June 1865 Rogan’s court was back at Awaroa,  and in August 1865 he conducted a further series of hearings at Whangarei, where there was much work caused by high land prices which settlers were prepared to pay for some Maori land.  

According to the Herald the June 1865 court was unusually busy. Maori had arrived from every direction, and on every tide the river was full of boats and waka. Between 250-400  Maori were present and complete decorum prevailed, ‘far superior to what is generally seen in a Court composed of Europeans’.  The court concluded its business on June 30. At an evening church service the chiefs exhorted their people to ‘shun and abhor’ the Pai Mariri religion and to honour and respect the laws of the Queen. ‘Thus has ended’, according to the Herald

‘this great meeting, one of signal importance to the whole northern district, not only in that it has set to rest for ever any fear of disputation respecting the valuable blocks of land now open to the public, and to which the Judges have awarded titles, without dread of other claimants arising – but that it has caused a re-union of the tribes and numerous chiefs of this important district – they have met from far and wide, have fraternised and smoked the ‘pipe of peace’ together, and have departed to their various homes in amity and concord. The manner in which the judges have discharged their duties has impressed them with a respect for our laws and restored confidence to the wavering (if any such there were) of our intentions to do them justice, has banished distrust if any existed, and has undoubtedly given the North a greater assurance of peace and security for some time to come, than they ever enjoyed before’.   

But this was only a temporary respite. Once the Native Land Act was passed in October 1865 the Court quickly began to assume a more sinister shape and was to have an increasingly negative impact on Ngati Whatua. 

There is little doubt that the new Court proved highly effective. In the eighteen months after the passage of the 1865 Act Judge Rogan was reported to have issued certificates of title for some 200,000 acres within the Kaipara district, much of which was soon leased or sold to settlers or sold to the Crown.  Unlike the situation which had prevailed in the Kaipara in 1864, such title awards were, as the process of individualisation gained momentum under Fenton’s firm guidance, progressively less likely to reflect community decisions about the ultimate fate of the land or how disposal of the land might best serve the interests of the community.

‘A DISASTER FOR MAORI’: THE NATIVE LAND ACT 1873

The Native Land Act 1873 marked the end of the ‘Ten-Owner Rule’ by requiring every owner to be named on the memorial of ownership issued by the Court. While this may have been an effort to avoid widespread abuse of the old system, which had been a frequent subject of Maori complaint, it had the effect of elevating the principle of individualisation to a new level of perfection. A mere list of names did not reflect tribal control or rangatiratanga, and did not permit rational collective decision-making. 

Section 49 of the Act provided that all the named owners could sell if there was unanimity, but if such unanimity could not be achieved the block would be subdivided between sellers and non-sellers, so that the selling group might be deemed ‘unanimous’. In this manner a consensus decision involving all of the owners was circumvented. Crown and private purchasers could now negotiate the purchase of undivided individual interests, and partition would follow once sufficient interests had been obtained. No provision was made requiring purchasers to deal with the community of owners as a community. Nor did the community have any veto power over alienations.  

In addition, the interests allocated to each individual Maori under the 1873 Act did not amount to a right to a separate allotment of land or farm for each named owner. The aim was land alienation, not Maori possession of farms. The Land Court did no more than declare that each named owner had an interest in common with all the other named owners, and the purchase of these fully alienable undivided shares formed the primary means by which Crown and private purchasers subsequently acquired the land. There is no question, the Tribunal has concluded, that the intention and effect of the memorial of ownership was to create individually tradable interests in land where none had existed in Maori custom. The Tribunal was unequivocal: ‘There can be no argument about this’. The 1873 Act individualised the sale of Maori land only for the purpose of alienation. ‘For every other purpose, it was merely customary land outside law and commerce’.

The objectionable effect of the Act was therefore that Maori, including Ngati Whatua,  could participate in the colonial economy only by selling or leasing their land. The tenurial changes which had been brought about ‘would recognise no other form of engagement’. Moreover, according to the Tribunal, Maori communities could not have withstood the introduction of an aggressive land purchase market armed only with the form of tenure system provided under the 1873 Act. ‘In fact, no population could have…’.  A similar analysis was provided by the Tribunal in its Hauraki Report. The Tribunal observed that the 1873 Act did nothing to assist Maori. On the contrary. It exacerbated divisions among right-owners, undermined the relationship between chiefs and their people, ‘and through title complexities, made the development of the land more difficult’.   In addition, under the Native Land Court title system Maori could generate little income from leasing or farming. There was no mechanism for communal management. Once the law had turned customary land rights into negotiable titles.  Individuals then took the opportunity to sell, ‘living as they did in a money economy in which Maori  needed ready money, or credit resulting in debt’. 

The Hauraki Tribunal thus concluded that the 1873 Act was a ‘disaster’ for Maori. It created a form of hybrid title (the memorial of ownership) which was not a truly individual title, but rather a form of multiple title which allowed each individual to sell his or her interests piecemeal.  A number of historians have reached the same conclusion. As Alan Ward has stated

‘The Crown grants awarded after an order of the Native Land Court extinguished customary tenure and substituted rights of a totally different order – including the right of an individual title-holder to sell his interest to any settler who wished to buy it. This led to a judicial raupatu as devastating as any confiscation… directed without distinction against allies and opponents of the government… Maori society was fundamentally disrupted and exposed to half a century and more of land-sharking”.  

This ‘pseudo’ individualisation of title, and its inevitable consequences, was not an unintended or unforeseen consequence, and criticism of its impact on Maori communities is not confined to modern Treaty research. Elsewhere we have discussed long-serving Native Secretary T. W. Lewis’ characterisation of the Native Land Court at the Rees-Carroll Commission; namely, that unless it facilitated Maori land alienation the Court served no useful purpose. Rees and Carroll themselves described the system if title individualisation as being imposed on a ‘helpless’ people 

‘The crowds of owners in a memorial of ownership were like a flock of sheep without a shepherd, a watch-dog, or a leader. Mostly ignorant… they became suddenly possessed of a title to land which was a marketable commodity. The right to occupy and cultivate possessed by their fathers became in their hands an estate which could be sold. The strength which lies in union was taken from them. The authority of their natural leaders was destroyed. They were surrounded by temptations’.  

Even the contemporary settler press was aware of the calamitous impact of the 1873 Act on Maori. In May 1883 the New Zealand Herald remarked, in language very similar to that used by modern commentators, that the history of the Native Land Court

‘has been an unsatisfactory one… it has certainly not fulfilled its purpose. It has failed to individualise native titles for the purpose of holding the land, and has only effected a quasi-individualisation for purposes of alienation. Nor has the Court itself been free from the reproach of having done actual harm to the natives’.  

Ward concludes that for all of the aforementioned reasons the Native Land Court and land purchase were the ‘worst destroyers’ of Maori enterprise. It was very difficult for the owners listed on multiple titles – especially when their shares became increasingly fragmented through succession and partition – to farm or otherwise effectively utilise their land. Nothing, ‘save perhaps epidemic disease, was so disruptive of Maori life as this. It was the sordid, demoralising system of land purchasing, not war and confiscation, which really brought the Maori people low’. 

8. NGATI WHATUA LAND AFTER 1865

THE CALM BEFORE THE STORM: 1865-1869

In the period immediately after 1865 little pressure was placed on Ngati Whatua’s remaining lands. The Crown had largely abandoned land purchase activities, leaving the field to private European purchasers. This short ‘hiatus’ allowed Ngati Whatua to continue to manage the land alienation process, at least to some extent. Ngati Whatua in the Kaipara, in particular, sought to pass some lands through the Court and lease them to settlers. This process continued to be managed under the auspices of the chiefs, who distributed proceeds to their people. Some land in the vicinity of Kaihu was leased to flax companies. 

In 1867 Rogan reported favourably on the working of the Native Lands Act in the Kaipara district. He observed that three years previously the area had been a ‘wilderness’, but now Ngati Whatua were in receipt of half-early payments from settlers who had leased their lands for periods of up to 21 years. Several Maori were themselves also proving efficient farmers and were busy stocking their runs with sheep and cattle. Rogan concluded that

‘a feature never before known in Kaipara now begins to develop itself, namely, that fat cattle are being forwarded to the Auckland market. The natives were never in such a position before, and I am gald to say they have as a rule sufficient sense to appreciate it. Pairama has an estate for which he receives £300 per annum, Armama Karaka, Manukau, and other chiefs, are leasing extensive runs to Europeans, who are in a position to carry out their agreements; and after the next sitting of the Court shall have been held a large proportion of the lands in central Kaipara will be taken up and stocked’. 

The manner in which transactions were carried out at this time was later described in a colourful but revealing way by Kaipara settler W. Hay. After a meeting with the chiefs a price of ten shillings an acre was agreed. An application was then made to the Native Land Court at Helenseville for a title investigation. The chiefs arrived at the Court, according to Hay, armed with the necessary maps, and a Crown grant was duly issued. Hay and his associated paid not the full price agreed, however, but only a deposit. According to Hay the vendors required the balance to be paid over a number of years

‘we were to pay interest on the sums remaining due, which was actually a sort of rent for the balance of the estate. As a concession on their side, the Maoris gave us the right of running cattle free over the unpaid-for acres…’. 

The Ngati Whatua vendors clearly saw this transaction not so much in terms of a sale, but rather as the beginning of a long-term reciprocal relationship more akin to a lease. 

Other observers also noticed considerable progress in the Kaipara at this time, largely due to the willingness of Maori to make land available to local settlers through the Native Land Court. The Daily Southern Cross commented in March 1868 that

‘large tracts of land are being passed by the Maoris through the Native Land Court, for lease or purchase, by European stockholders. The annual income of these natives from leases alone will shortly amount to as much as they could have obtained for the fee simple of the land during the “good old times” of the Land Purchase Department. Every pound thus spent and received in rental is a guarantee of peace, by the community of interest thus created between the two races…’. 

Many of these early transactions involved land around Te Awaroa. Early in 1868 the Pukekorari, Rakauwhatiia, Rautawhiri No. 1 and Rautawhiri No. 2 blocks were all transferred to Isaac McLeod, with Rautawhiri No. 3 passing to the Auckland merchants Brown and Campbell. 

As Ngati Whatua’s circumstances worsened during the 1870s, many became heavily indebted even before having to meet the heavy costs of the Land Court process, and further blocks were alienated immediately after passing through the Court, largely to speculators, in an attempt to clear debt. By this time land could be utilised as security for the credit needed to meet the costs of tangi, to tide the people over during a poor harvest season or when a drop in gum prices occurred. As soon as the title was obtained the land went to the creditor. In this context of increasing Ngati Whatua economic marginalisation it is no surprise that land speculators remained active within the Ngati Whatua rohe, especially the Kaipara.

Ngati Whatua, however, despite increasing predation on their land, remained eager to cooperate with any scheme to develop the district or improve communications and thus enhance their own economic prospects. This included offering land for a lighthouse and customs station at Pouto Point, and giving land for a railway.  As Maata Tira Koroheke stated, when discussing a gift of land for railway purposes

‘from the very first we welcomed the pakeha and liked his work. We brought them from the Bay [of Islands] to Auckland that they might be near us, and we are still on their side, and wish them to be amongst us. We give the land you ask for and we give it willingly, without cost. You know my lands; take your railway through them. It will do good. Our land will rise in value. We can travel quickly, provisions and clothing will be cheap, and Europeans will come to dwell amongst us. Kaipara will come to be a dwelling place of chiefs, as Auckland now is. When we die, we will leave our children among a people who will treat them kindly, as we, when living, treated the pakeha’. 

It hardly needs to be said that Koroheke’s assent was based on an assumption that he and others would retain sufficient land to benefit from these new and long-sought developments. Such an assumption was to prove misguided. 

VOGEL’S IMMIGRATION AND PUBLIC WORKS SCHEME

The introduction of the Vogel Immigration and Public Works Scheme in 1869 brought about speedy and profound changes. Vogel’s scheme was designed to lift the colony out of a post-gold rush slump and boost the economy by introducing settlers and carrying out public works (particularly communications infrastructure) on a hitherto unheard-of scale.  It also had other less publicised goals, namely to hasten the assimilation of Maori by divesting them of their lands, and extending and strengthening the Crown’s authority. Vast sums were to be borrowed from the London money markets to fund this programme. The money would be repaid in large part from the profits made through the on-sale of Maori land to settlers. This was reminiscent of early Crown land purchase policy, and formed an echo of Normanby’s 1839 instructions to Hobson. 

At first sight this scheme seemed to promise much for Ngati Whatua, as it could potentially lead to a boost in their fortunes. As already noted, Ngati Whatua economic ambitions had hitherto been stymied in the Kaipara by a lack of large scale settlement and the absence of communications. The architects of the Vogel scheme did not, however, foresee any role for Ngati Whatua other then as donors (at discount prices) of the vast amount of land necessary to make the scheme work. 

Under the Immigration and Public Works Act 1870 the Government was authorised to spend £200,000 on Maori land purchase. A further £500,000 was authorised in 1873 – half of which was to be expended in the Auckland province, including Ngati Whatua’s rohe. In the period between 1870-1876 £415,634 (or 4.3% of total Government expenditure) was spent on Maori land purchase, the bulk of it in the north. After 1873 the massive programme of land acquisition, which led to a sustained frenzy of land purchasing in the north lasting until 1876, and continuing thereafter in less extreme form, was administered by a special land purchase branch of the revitalised and expanded Native Department under Donald McLean’s direction.  

This process, carried out within the legislative framework of the Native Land Acts,  proved little short of catastrophic for Ngati Whatua. Their remaining land base was substantially diminished, customary land tenure was transformed within a very short period, and tribal structures suffered a near-fatal blow. Although it was not immediately apparent to the tribe, 1869 effectively heralded the beginning of the end of their meaningful involvement in the economic affairs of the district and their ability to rationally manage land alienations – both sales and leases – with a view to securing long-term advantages.  As the Waitangi Tribunal notes in its Muriwhenua Report, there was no reason why the alternative; developing existing Crown and Maori land in a mutually advantageous or cooperative fashion, was not explored, and such plan could have proved of benefit to both races. 

‘DEATH IS THERE’: THE NATIVE LAND COURT AND CROWN AND PRIVATE PURCHASING FROM 1869

Instead of partnership and a shared future, Ngati Whatua were exposed to the full brunt of the Native land Court and Crown purchasing. Some of the issues which they were increasingly faced with were indeed evident as early as April 1869. A Native Land Court sitting, presided over by Rogan, lasted for three weeks (excluding a recess of one week to enable the applicants to travel to Auckland to see the Duke of Edinburgh). Over 600 Maori were present and more than 50 cases were heard comprising some 200,000 acres. This presented a number of grog-sellers and shopkeepers who were present with a bonanza. A lack of lawyers was, according to the New Zealand Herald, explained by ‘a scarcity of funds among the natives, and the large fees necessarily charged [by lawyers] for attending especially at such a distance from the city’.  

At around the same time Te Otene Kikokiko incurred a £350 debt to a lawyer (Sheehan, a future Native Minister), and he was subsequently forced to speedily sell land at Te Awaroa at a discount to meet his obligations.  This sum was borrowed from the future Native Minister Sheehan for paying survey charges and costs associated with title investigations involving a number of blocks.  

At another 1869 Court sitting the survey of fourteen Ngati Whatua blocks cost a staggering £553, an average of more than a shilling per acre, representing a substantial proportion of the value of those blocks.  The end-product of this was increasing Ngati Whatua indebtedness, the only cure for which was alienation of yet more land.

By 1869 Court fees alone were forming an increasing financial burden, let alone the myriad other costs involved in the title adjudication process. In 1870 Rogan reported to Fenton that he was finding

‘a practical difficulty in collecting the fees charged in the Courts in which I presided because of the Natives pleading poverty and representing their inability to raise money except from sale of their lands, which cannot be accomplished until purchasers are certain that the certificate of title is issuable to the acknowledged owners’.  

Although Rogan placed much of the blame for this situation on Maori ‘improvidence’, he nevertheless conceded that

‘It costs them in many cases all they can collect or borrow to support themselves while attending Courts held at a distance from their settlements. It is difficult to ascertain the time that will be occupied in hearing any case in the Native Land Court and after a decision is given the adverse claimants are not likely to agree to pay any charge. If they are not permitted to be heard it would obstruct the action of the Court as titles to the land could not fairly be ascertained and so dispute on the ground would certainly follow’. 

These comments should be contrasted to his 1867 remarks, noted above, made at a time when Ngati Whatua still retained a degree of agency and a measure of control over the process. 

In February 1871 another lengthy Court sitting took place at Awaroa. On this occasion 500 Maori were present, as well as the by now ubiquitous crowd of lawyers, grog-sellers, shop-keepers, ‘Native agents’ and speculators. That Court sittings such as this represented a watershed in the history of the Kaipara and Ngati Whatua was not lost on European observers. A New Zealand Herald reporter who was present wrote that ‘no more important sitting of the Native Lands Court has ever been held in New Zealand’. He opined that the Native Lands Acts were working well in the Kaipara, and the ‘present sitting will form an era in the history of this district, and by its means an immense quantity of land will be thrown open for settlement…’.  

During much of the period all blocks set for hearing were gazetted without any indication of when they might come before the judge. Sometimes hearings were adjourned at short notice, or the location of hearing venues were changed at short notice. This added to the expense and disruption faced by Ngati Whatua. The wait for a particular block to come up for hearing could stretch out for months, and claimants from distant kainga often found themselves at the mercy of the storekeepers who provided them with credit. The alternative, not attending the Court or sending a representative, was simply too risky as claimants could easily find themselves left off the titles in what was an increasingly capricious environment. The disruption caused by frequent necessary attendance at Courts, often at a distance from their kainga, also had a negative impact on cultivations, husbandry and other activities, and children were often taken out of school to accompany their parents. During winter months poor accommodation in the towns where the Court sat, and a lack of food, often led to serious health problems and an increase in mortality. In 1875 Ngati Whatua requested that Native Land Court hearings only be held in summer, and although the Native Minister concurred, the Court continued to schedule hearings as it saw fit, including frequent mid-winter sittings throughout the 1870s and 1880s.  

Court processes also encouraged an adversarial winner-take-all attitude among Ngati Whatua. This stood in stark contrast to the cordial and collegial atmosphere which characterised hearings held under the 1862 Act, where the process was managed by rangatira and decisions reflected a tribal consensus. Yet only a few years later, in 1869, a major dispute arose at the Court over several southern Kaipara blocks, involving Te Otene Kikokiko, his wife Maata Tirakoroheke and Matini Murupaenga on one side, and Paora Tuhaere, Te Keene Tangaroa and Watarauhi on the other. Newspaper reports suggested that Te Otene went so far as to threaten to take up arms against Tuhaere, and while it is likely that the newspapers sensationalised the dispute to some extent, the case was nevertheless illustrative of the increasing discord encouraged by the Court process. 

Ngati Whatua opposition to the Native Land Acts was evident by 1876. In a letter to the Maori newspaper Te Wananga, Ngati Whatua stated, in reference to the 1873 legislation, that

‘We have only now in 1876 seen those laws, and we now see that they are the very acts of murder, these hidden laws of Sir Donald McLean and the Government. Now hearken to these words. The words of the government are like fire. When a fire is burning, a man will not jump thereon, as he is aware that death is there. If a man be out on the seas in his canoe, he will not jump into the sea, as he knows that death is there. 

Given the scope of Crown ambitions, its purchase agents soon penetrated every part of the Ngati Whatua rohe, including those more remote and heavily timbered areas (such as the northern Wairoa and Maunganui) which had hitherto escaped the attention of land purchasers. In fact, no part of the rohe was left untouched. This was despite the warnings of Native Reserves Commissioner Charles Heaphy, who in 1871 identified sections of Ngati Whatua as being in danger of becoming paupers if they alienated further land.  Rogan had earlier reported that Ngati Whatua had no reserves left from the pre-1865 Crown purchases, and by 1871, only 10 of their blocks which had passed through the land Court, totalling a mere 7,817 acres had alienation restrictions placed on their titles.  

As already noted, the Crown had made few reserves during earlier phases of land acquisition, apparently based on an assumption that Ngati Whatua retained substantial areas. The Crown was under an obligation to closely monitor the situation and call a halt to further purchasing so as to leave Ngati Whatua with a sufficient land base. This raises the question of how much land was sufficient, and at which point a halt should have been called. 

Such a calculation cannot be based on nineteenth century ideas of ‘sufficiency’, the amount necessary for ‘subsistence’, or simply the number of acres required by a European smallholder. An assessment must rather be based on the nature of Ngati Whatua expectations. From 1840 Ngati Whatua had sought to attract settlement in order to reap the manifold economic and other benefits they understood this would bring. They sought to engage with the emerging settler economy from a position of parity. Moreover, the Crown had assured Ngati Whatua during the pre-1865 pre-emption period that land transactions would result in significant long-term benefits and the purchase price was a ‘mere earnest’. If the integrity of these pre-1865 transactions was to be maintained Ngati Whatua would need to retain land sufficient to achieve long-term advantages of the sort held out by the Crown. Ngati Whatua therefore should have retained sufficient land to enable them to engage with the settler economy from a position of equality. Anything less would, in Normanby’s terms, result in ‘injustice’. 

There is little evidence that the Crown paid any regard to the future prospects of Ngati Whatua, or to ensuring that they secured benefits through the Vogel scheme through their retention of lands. As we have already observed, Ngati Whatua (and other northern Maori) were not seen as a party likely to benefit from the public works and immigration scheme, and there was no thought of a cooperative approach. Instead Ngati Whatua were merely seen as the suppliers of large amounts of land at low cost. In addition, divesting Ngati Whatua of their land would result in political benefits for the Crown: it would hasten the highly desired process of assimilation by reducing the tribe to the status of farm labourers or domestic servants, and would facilitate a thorough extension of Crown sovereignty and authority into areas which had hitherto been primarily Maori districts. 

The Native Land Act 1873 required 50 acres (for every man, woman and child) of any block passed through the Native Land Court to be set aside as inalienable reserves. This requirement was ignored. In late-1871 McLean issued a circular to his land purchase agents which touched on the subject of reserves. This memorandum was subsequently reissued in 1873 and 1875. As far as we can tell these were the only instructions issued by McLean to Crown land purchases agents during the 1870s, a time when land purchasing in the north was reaching a crescendo. McLean merely required his agents to provide him with ‘a clear idea as to what reserves it will be necessary to make for the natives – in the case of these, discriminating most carefully their acreage’  This was reiterated in April 1874 by Native Secretary H. T. Clarke. He instructed land purchase agents to ‘make it a point to secure a sufficiency of good land for the present and future wants of the natives’.  Given that purchase agents had been told to secure as much land as possible as quickly as possible, and the fact that some worked on commission, it is not surprising that they paid little attention to the matter of reserves. Their instructions, such as they were, provided no real guidance as to size. They were simply told to consider what was sufficient or necessary. As we have pointed out, this question needed to be addressed within a wider economic and social context, not what was required for mere subsistence, or what a Crown purchase agent may have considered to be ‘adequate’.  

The Crown land purchase agents engaged at various times in the north throughout the 1870s were W. B. White, E. T. Brissenden, H. T. Kemp, J. W. Preece, Charles Nelson and Colonel T. McDonnell. At any given time a number of them were active within the Ngati Whatua rohe, and their frenetic and uncoordinated activities sometimes caused alarm in the Native Land Purchase Department as it was feared that in some cases they were bidding against each other. As one official noted in April 1874, ‘some instructions should be given to all of them or they [will] cut each others throats’.  

Brissenden was the most successful and least principled member of this group. He had been a Government spy in the Waikato before being employed as a purchase agent by McLean. Brissenden received a commission of 2d per acre on lands he purchased. When accepting his appointment in March 1874 Brissenden vowed to acquire ‘all useful native lands that I can, be the blocks small or large’. 

These Crown agents were also now in competition with private speculators. This encouraged further sharp practice and carelessness. Private purchasers had the potential to disrupt the Crown’s purchase programme by bidding for choice parcels of land, thus raising prices and defeating a Crown desire to acquire large contiguous blocks. Crown purchase agents sought to overcome these difficulties through the use of a number of strategies. One was to once more hold out the carrot of long-term ‘collateral benefits’. Ngati Whatua were told that only the Crown could deliver roads, bridges, schools and hospitals. Such benefits, of course, had not eventuated for Ngati Whatua in the 1850s and 1860s, and the extent of Crown purchasing at this time meant that Ngati Whatua were unlikely to retain sufficient land to share in these future benefits.  In 1873, the Maori of Kaipara questioned the Crown purchase agent Thomas McDonnell about his terms of purchase, agreeing to the Government’s low price only on the condition that settlers would indeed arrive and Ngati Whatua would be able to derive long-term benefits. McDonnell told them that their land was 

‘a fat ox, the whole of which you cannot consume; a part of which you offer for sale to buy utensils to cook and enjoy the remainder; but what a fool I would be to take what you offer – namely, the horns and the hoofs. No! Sell me a quarter of your bullock, and the Government will then give you that which will enable you to turn the remainder to advantage…’.  

As it turned out Ngati Whatua were lucky if they retained even the horns and the hoofs! 

Another key tactic was to make advance payments, sometimes referred to as ‘tamama’ (‘sprinkling mana’). This was a feature of virtually every Crown land purchase during the 1870s. Purchase agents would identify willing vendors and make advance payments prior to a Native Land Court adjudication. This served to bind the owners to a sale on the terms agreed. The recipients of tamana would then commence surveys and make an application to the Court. Often the wider community of owners only became aware of what had occurred when the surveys commenced, and all would be required to attend costly and disruptive Land Court sittings in order to defend their interests. The Waitangi Tribunal, in its Te Roroa Report, concluded that tamana was

‘undoubtedly an established pressure tactic, an unfair practice designed to purchase land as quickly and cheaply as possible, and incompatible with the Crown’s fiduciary duty under the Treaty. Tamana was a sprat to catch a mackerel. 

McLean provided few specific instructions to his agents on the subject of identifying right-holders, and those that were provided were contradictory. On the one hand purchase agents were told to exercise care when making down-payments and identifying owners so as to avoid conflict, but on the other hand they were exhorted to speedily acquire large areas of land as quickly as possible. The need for urgency, added to the commission paid to Brissenden and others, hardly served to encourage a high standard of care or a careful and mature consideration of the future of Ngati Whatua, especially in the matter of reserves. 

By the time of his dismissal in 1876 Brissenden claimed to have negotiated for 547,000 acres to the north of Auckland, although of these transactions 295,000 acres remained unsurveyed and were therefore incomplete. Brissenden was only paid a 1 penny per acre commission for these incomplete purchases, leading to bitter complaints. In 1876 Brissenden was removed for persisting in conduct which McLean feared would lead to large-scale war, including the wholesale payment of tamana to the wrong people and pushing on with survey in the face of determined opposition. Brissenden repeatedly failed to observe legal requirements of the 1873 Land Act, particularly the requirement to have deeds explained to the vendors by an interpreter and for signatures to be attested by a Native Land Court judge.  

Such shoddy practices were, for example, a feature of the Arakiore block purchase, Brissenden produced an invalid deed, and was warned by McLean that the form of the conveyance must be explained to the vendors by an interpreter and witnessed by a Native Land Court judge, Resident Magistrate or other credible witness. The interpreter was also required to endorse the deed to that effect. None of these conditions were met in the Arakiore case. This required a new deed which was signed in October 1874. This was not the only questionable aspect of the Arakiore purchase. The price paid by Brissenden was exceptionally low – only 5 pence an acre – while the neighbouring Owhetu block was acquired for almost four shillings per acre. The survey costs for Arakiore exceeded the sum Brissenden had paid for the block.  

While Brissenden provides an extreme example of Crown malfeasance at this time, and was dismissed as a result, other Crown purchase agents, while not so notoriously or obviously deficient, continued to acquire Maori land in a manner which served to seriously prejudice Ngati Whatua interests. They may have been more careful about observing the formalities, but the ultimate impact of their actions was the same. 

The speed of land purchasing and the large number of applications made to the  Native Land Court not only encouraged shoddy and sharp practice, but threatened to swamp the system, and at times the Court could barely cope. A layer of error and muddle was thus added to more egregious practices. Because of a backlog in surveys, the Court began awarding title on the basis of ‘sketch plans’ which used the boundaries of adjoining surveyed blocks. Sometimes these sketch plans were appended to a deed of sale, but the problem was they often did not include reserves within the blocks being transacted. As a result reserves and wahi tapu were lost to Ngati Whatua, and decades of grievance was often the result. Omissions such as this formed a major part of the Te Roroa (Wai 38) claims. 

In 1876 Native Minister Donald McLean told the Parliament that northern Maori, seeking to attract settlers and collateral advantage, had alienated much of their best land. He feared that if purchases continued they would not retain sufficient land to reap these advantages. He therefore proposed to call a halt to land purchasing in the north

‘Viewing the large extent of country that has been from time to time acquired from the Natives in the North, and the representation that have been made by the District Officer, appointed under the Native Land Act of 1873, as to the quantity of land still in the possession of the Natives, it has become a question for consideration whether, after the present negotiations are completed, it would be right, regard being had to the wants of the Natives, for the Government to acquire any more land in that district’. 

For Ngati Whatua this was a case of closing the stable door after the horse had bolted. Their ability to engage with the settler economy in any meaningful way had already been largely removed, not just through outright land loss but also through partition and fragmentation of titles, exacerbated by the Court’s application of inappropriate Europeans succession laws. Such land as remained in Ngati Whatua ownership was, in large part, increasingly uneconomic. Although Crown purchasing after 1876 dropped off in intensity, with the main effort devoted to completing many ‘incomplete’ purchases, further land continued to be alienated to the Crown during succeeding decades. In addition there was no halt in private purchasing.

PRIVATE LAND PURCHASES

The Ngati Whatua experience of alienating land to private individuals during the period after 1869 differed little from its dealings with the Crown in most key respects, as illustrated by the acquisition of the Paeroa blocks by the Phillips brothers. The brothers began by leasing blocks, but due to the decline in Ngati Whatua’s fortunes in the 1870s were ultimately able to convert these lease into sales, picking off indebted individual grantees and eventually forcing even those opposed to sale to accept the inevitable, after they had to bear the cost of partitioning their interests in order to preserve them. The process of acquiring Paeroa was not finally completed until 1883. 

By the 1880s and 1890s the Crown had developed an appreciation that large-scale landlessness was occurring, but protective measures put in place proved as ineffective as the half-hearted implementation of restrictions on alienation and reserve provisions contained in the Land Acts. Ultimately, although the pace of land loss slowed down and the prices achieved were only slightly higher, land loss continued. The speculators and Crown agents of the 1870s were now replaced by another wave of land sharks.

Ngati Whatua’s position had significantly deteriorated by this time. Many were almost completely dependant on credit or finite extractive industries, and they were very vulnerable. A poor growing season, natural disasters, a drop in gum or timber prices or an unexpected event like a tangi left the people in a parlous position and more often than not further land alienation. Thus in 1895 Waimauku settler Andrew Foster advanced food to Nopera Kepa and Hakuene Ratu for Pera Tare’s tangi in return for a nearby 86-acre block. 

Shopkeepers Daniel and Andrew Stewart also advanced credit to many Ngati Whatua and brought numerous court actions against those who failed to pay their debts. Creditors such as the Stewarts could apply to the Resident Magistrate’s Court and obtain a judgement for the debt owing, and then apply to the Native Land Court where a costly partition would be forced to secure a payment in land. Judgements of the Resident Magistrate’s Court frequently demanded payment of debt on pain of imprisonment. Lawyers such as Dufaur offered mortgages to debt-laden Maori, or arranged mortgages between grantees and other speculators who simply waited in the wings for a quick and cheap purchase should the mortgagees default on a payment. To further strengthen his hold over the land, Dufaur’s mortgages often contained a stipulation that he control the administration of the land, including controlling any rental monies from leases he arranged prior to obtaining the mortgage.  

In 1880 Dufaur would give an inkling of his tactics when writing to the New Zealand Herald about a Bill to control the alienation of Maori land

A Maori, in reference to his land, is a conservative of the most rigid type, and very few will of their own accord, without any solicitation, intimate any such desire [to alienate land]…In nearly every instance where land has been acquired from the Natives, the purchaser, either by himself or of his agent, has made the first overture. The aboriginal is well satisfied with his condition, gum-digging or the sale of a pig or two enabling him to exist, and it is only when the purchaser undertakes the survey and the passing of the land through the court, and he sees that he can obtain money for what is useless to him, that he consents to sell. 

Dufaur forgot to acknowledge that it was the cost of the surveys and passing land through the Court which often transformed Ngati Whatua into eager vendors. The vicious cycle into which Ngati Whatua had fallen continued, and they were increasingly powerless to stop it

Summary

The Native Land Act 1865 was passed without consultation with Ngati Whatua (or any other Maori). This Act differed significantly from the models discussed or proposed at the Kohimarama Conference in 1860, Grey’s Runanga, and the Native Land Act 1862. These earlier models had envisaged a high level of Maori agency and control, and the 1862 Act, trialled in the Kaipara district, proved reasonably successful from a Ngati Whatua perspective. 

By late-1864 however, the Crown no longer felt the need to provide a role for Maori in the land title adjudication process. The form of individualisation introduced in 1865 did not permit collective decision-making or Maori control of the alienation process.  For Ngati Whatua this was to prove almost fatal to their tribal structures, political organisation and their ability to manage land alienation and settlement within their rohe. 

The Native Land Act 1873 served to elevate individualisation of land title to a new level. Instead of determining a tribal title and then leaving it to the people to decide what the next step might be – sale, lease or retention – the Native Land Acts, by the early 1870s, ensured that individual Maori would receive only a paper title. This title had no other utility than for the purposes of alienation. 

It was always possible for Crown and private land purchasers to identify indebted or vulnerable Maori individuals who could be induced to make an application to the adversarial ‘winner-take-all’ Native Land Court. No longer were such people exposed to tribal sanction. This set in train an expensive and disruptive Land Court process which all were required to join, resulting almost inevitably in the alienation of all or much of the land. Even if a sale did not immediately occur Maori land tenure was transformed in a manner which made later alienation almost certain. 

In the period immediately after the passage of the 1865 Act Ngati Whatua were able to retain a measure of control, largely because there was little pressure on their land. They engaged in a number of transactions with settlers designed, as hitherto, to advance their collective economic interests, and land dealings at this point were still tribally based. This was to change in 1869, when the Crown re-entered the land market in order to obtain vast areas required under Vogel’s public works and immigration scheme. 

From 1869 hundreds of thousands of acres within the Ngati Whatua rohe were acquired by Crown agents. These agents were instructed to acquire as much land as possible as quickly as possible at the cheapest price possible. Many of the methods they used were questionable at best. The Crown paid little heed to Ngati Whatua’s future prospects, and there was no effort to ensure that the tribe retained sufficient land to enable them to engage with the new settler economy – or share in the potential rewards of the Vogel scheme. Instead Ngati Whatua were merely seen as the suppliers of cheap land. In so far as any consideration was given to their future, it was assumed that they would become fully assimilated labourers or domestic servants. 

Under this pressure Ngati Whatua were unable to maintain a collective or tribally-based approach to land dealings, and there was no possibility of managing land and resources in a manner which would advance collective interests. In a real sense 1869 marked the beginning of a downward trajectory for the iwi, not only in an economic sense, but also socially and politically. 

Ngati Whatua did not, however, assume the role of passive victims. Tribal representatives continually and consistently protested against measures which were clearly inflicting serious damage on their tribal structures and economic prospects and sought to ameliorate some of the worst aspects of the Land Court process. 

9. NGATI WHATUA AND THE CROWN, 1865-1900

Introduction

Although the positive relationship with the Crown which Ngati Whatua had sought to establish had markedly deteriorated by the mid-1860s, with the termination of Grey’s New Institutions, ‘self-reliance’ in the wake of the Waikato war and the failure to provide Ngati Whatua with any voice in Government – as promised at the Kohimarama Conference – the iwi’s commitment to maintaining and building this relationship remained strong. Developments after 1865, however, would clearly signal to Ngati Whatua that the Crown did not share that commitment. From the 1870s onwards the iwi found themselves without an effective political voice. Tribal leaders became increasingly aware that no significant reform of the land laws was possible if they continued to be excluded from the government of the colony, and if Parliament, the main seat of power, continued to be dominated by narrow settler interests. 

Much energy was therefore devoted to finding some means to participate in the government. As far as Ngati Whatua was concerned this had been promised by the Treaty of Waitangi, and their own particular 1840 compact with the Crown. These promises had then been reiterated and confirmed at Kohimarama in 1860 by Gore Browne. 

Ngati Whatua constantly sough ‘equality’ under the law. But this did not mean that they simply desired a universal application of English law. For them ‘equality’ meant partnership, expressed through their equal role in framing laws which would benefit Maori and European alike. When those efforts failed Ngati Whatua attempted to introduce separate institutions which later turned into pan-iwi movements. These included the Orakei Parliaments, and later the Kotahitanga movement. 

NGATI WHATUA AND THE CROWN, 1865-1871

The first obvious sign of a serious breakdown in the relationship between Ngati Whatua and the Crown was the removal of the capital from Auckland to Wellington in 1865. This was a bitter blow to Ngati Whatua in every sense. Their gifting of Auckland to the Crown as the site for the new capital in 1840 was symbolic of the relationship. The shift to Wellington also hindered access to political decision-making. As we have seen, Ngati Whatua had tried hard to develop personal relationships with the various Governors, and Grey himself had assured them, during his first Governorship, that they did indeed have a voice in the Government. While that was doubtful, Ngati Whatua were nevertheless afforded the opportunity to voice their opinions and raise their concerns to Governors in face to face meetings. After 1865 this was extremely difficult. 

A further sign of the deteriorating relationship came in the form of cutbacks and retrenchment of the Native Department from late 1865. The new Native Minister in the Stafford Government, A. H. Russell, set about dismantling the Native Department.  The Native Department budget was nearly halved within two years, and 300 of 450 Maori recipients of Government stipends (Court Assessors and pensioners) lost all or most of their salaries. By August 1866 Stafford announced that his new Ministry would not even have a Native Minister, arguing that the state of Native affairs had improved to such an extent that a Minister was no longer required.  

Rogan feared the consequences of such cut-backs in the Kaipara. He reported that

‘The chiefs now on the list of Assessors have all been selected by myself… and the service they have rendered to the North in keeping quiet at a time of great excitement during the outbreak in Waikato and subsequently when the escaped prisoners from the Kawau retreated into this place should not be forgotten. I can state from personal knowledge that nearly all the Assessors have expended the salary which was paid to them in June last and mortgaged their pay for the present period… and for this and many other reasons which will I think be obvious to the Government such as the sale of their land to the Government at a time when the Government was surrounded by enemies I earnestly hope that no alteration will be made – at least for a time to disturb the harmony which exists in the minds of these people towards the settlers and the Government’. 

Rogan proposed a range of measures, including dispensing with medical expenses for the district, in order to retain all the Assessors (whakawa) in their positions. His efforts were in vain. Two months later, in January 1866, he received direct instructions to halve the number of whakawa and karere in his district, and although he proposed further cost saving measures to keep as many whakawa as possible the Government responded negatively. One gains a clear impression that ‘retrenchment’ was less about cost saving than reducing the participation and influence of Maori in the administration of their districts. By May 1866 Rogan was further instructed to only keep four whakawa on salary, and to reduce the rest to ‘honorary’ positions.  

With the passage of the 1867 Resident Magistrates Act the authority of even those whakawa who remained was taken away. Land disputes were now out of bounds with the introduction of the Native Land Court. The option of empanelling Maori juries in civil cases was removed, and the whakawa lost their independent jurisdiction for cases involving less than £5. This swept away the last vestige of Grey’s New Institutions, and the possibility that Maori law or Ngati Whatua tikanga would have any means of expression.  Ngati Whatua whakawa continued to exert themselves in maintaining law and order in their districts, but their role faded fast after the passage of the 1867 Act. Despite the efforts of whakawa like Te Keene Tangaroa throughout the 1870s, they were simply not taken seriously by settlers and became increasingly ineffective. By the end of the 1870s there were only a handful of whakawa still active in the Kaipara. 

Ngati Whatua reacted angrily to these developments. In mid-October 1866 over 200 Ngati Whatua gathered at Te Awaroa to voice their protests against Government policy. There was some discontent over the loss of salaries, but that was not the main cause of complaint. Ngati Whatua appeared more concerned about what the cut-backs and reductions meant in terms of their relationship with the Crown. For the chiefs the unilateral stopping or reduction of salaries struck at the heart of the special relationship they thought they had established with the Crown. As the Daily Southern Cross reported 

‘By the threatened deprivations of their salaries, the chiefs see the last sign of their rank passing away, and their connection with the Government, which has been of service in past times of trouble, completely destroyed’. 

Te Hemara Tauhia of Mahurangi doubted that Grey was aware of these developments, telling the hui his that he could 

‘scarcely believe that he [Grey] would place these chiefs… in situations that were to make them not only the laughing stock of their own servants, but would also eventually cause a spot on their… mana’.

For Te Hemara the payments meant little

‘some will speak of our salaries. What are they? The salary with me was a secondary consideration as long as I could be of service and do good. I fancy some evil is on the point of overtaking us… we are not the cause of it but the Governor. It would be as well for all of us to resign… We are an unfortunate race, ever in search of the right road and never able to find it… I [do not] care for the salary… It is the people and their teachers, and guides that I am concerned about, not money’. 

As Te Keene stated, the Kaipara customs revenue was more than enough to cover the expenses

‘in fact there cannot possibly be a doubt about it now. I would wish to know what is becoming of our money, yes, our money. Has it been spent in the Waikato, or where is it?… We are dismissed, we are the despised race in the mind of the pakeha… What have we done to deserve this. Have we not been of good service to the Government as well as to our own pakeha neighbours’.  

Te Keene was right to ask where the money had gone. One Government response to such questions was to claim that it had indeed been devoted to the war in Waikato, and in this manner the blame was shifted onto other Maori.  There was, however, no reduction in expenditure on the Native Land Court, nor were the salaries of judges or Court staff reduced. This was a telling indicator of the Crown’s priorities at this time. 

Ngati Whatua attempted to bargain with Rogan, who had not attended the 1866 hui, being absent in Taranaki. Te Keene passed on an ultimatum, insisting that all the whakawa who remained in receipt of salaries were prepared to resign their positions unless the Government reappointed those dismissed. The Government was unwilling to compromise, and in the end Ngati Whatua whakawa, both paid and ‘honorary’, continued to assist in local administration where possible. Indeed, this continued assistance (largely unpaid) illustrated the extent of Ngati Whatua’s commitment to partnership. As Stirling has pointed out, ‘so greatly did they value even this limited recognition of their authority that they would do it whether paid or not’. 

From the mid-1860s, Ngati Whatua attempted to strengthen their position in the district by forging closer links with the Auckland Provincial Government. At this time the provincial government was carrying out the bulk of public works and was involved in the purchase of Maori land. In 1867 Paora Tuhaere was appointed to the Provincial Executive as an advisor on Maori Affairs. His role seems to have been little more than cosmetic, especially since the prime responsibility for Native Affairs remained in the hands of the central Government. 

In December 1867 Ngati Whatua invited the Auckland Superintendent John Williamson for a Christmas hakari at their Ongarahu kainga.  One rangatira told the Superintendent that all Ngati Whatua required were ‘roads, bridges, equal laws and schools’. Ngati Whatua complained that they, as ‘loyal natives’, had been neglected by the Government, ‘while those who had disturbed the peace of the island were well cared for’.  Williamson completely misunderstood the purpose of the hui. In response he provided a lesson in ‘self-government’ and told the chiefs to fund the improvements they desired themselves. 

With Ngati Whatua effectively shut out of local administration, limited moves to include them in the central Government proved wholly ineffective. The Native Representation Act 1867 created four Maori electoral districts. The Ngati Whatua rohe was included in the Northern Maori district, which stretched from Auckland to North Cape. The Act proved no more than a token measure, as four Maori Members sat in a of Parliament with 41 European Members and were powerless. The Northern Maori district was, moreover, a very large one, encompassing many diverse tribal interests, including Ngapuhi. The extent to which a Northern Maori Member could enunciate a particular Ngati Whatua perspective was therefore necessarily limited. 

Ngati Whatua realised the severe limitations of the Act from the outset. Paora Tuhaere declared at a December 1867 hui that four members were insufficient. In his view there should be twelve;  ‘that number might have influence, but that four were not able to stand against hundreds’.  At a March 1868 hui at Otamatea Ngati Whatua further expressed their concern and disappointment. Arama Karaka Haututu declared that he was not willing

‘to elect these four men. Our views could not be carried out by them. They would be swamped by the many European members of the Assembly. We should be deceived. If there be fifty European members, let there be fifty Maoris also, and then matters will work well. 

Paora Tuhaere echoed those thoughts

‘I agree with what you have said; let us carefully consider first this law made by our European friends. The Government first gave us a political power in sitting as assessors and they said there shall be one law for the Maoris and the Europeans; but the laws were not equal, but diverse; now also the law is not equal in relation to these men. Now let us see, the principal chiefs of this island were elected as magistrates for the Queen, but the thing was not satisfactory’. 

With avenues for any meaningful political involvement and representation increasingly closed to them, Ngati Whatua again turned to the Governor, who as the personification of the Queen remained a key figure for them. Indeed, Ngati Whatua increasingly looked to the sovereign, given the increasingly obvious self-interest of the settler dominated Government which appeared determined to advance the interests of colonisation at Ngati Whatua expense. In 1868 the tribe attempted to induce Bowen, the new Governor, to return to Auckland.  Ngati Whatua spoke strongly about

‘the necessity of bringing back the Seat of Government to Auckland, and are in such earnest on this matter that they have appointed certain members of their tribes to canvass the whole of the Northern Districts on this matter, and have already written to other tribes on this subject’.  

As one contemporary European observer noted

‘We are perhaps apt to smile at the constant urging that the Governor should come to Auckland to live, but we must remember that the Governor’s absence from Auckland is felt by the natives in a way that we Europeans do not feel it… The natives, finding no one in Auckland who can give them any assistance, conclude that this is because the Governor has been taken away to Wellington’.  

Ngati Whatua saw a personal relationship with the Governor as central to their partnership. It is therefore no wonder that they linked their increasing exclusion from political power with the Governor’s absence in Wellington. Furthermore, the changes in Government policy which fostered the political marginalisation of Ngati Whatua appeared to commence in 1865, the year the Governor left Auckland. What Ngati Whatua failed to appreciate that the Governor was no longer in a position to assist them. Control of Maori affairs had fallen into the hands of the settler-dominated colonial Government. 

When Governor Bowen arrived in New Zealand in March 1868 Paora Tuhaere was given the task of officially welcoming him to the colony. A few days later Bowen paid a brief visit to Ngati Whatua at Orakei, where he was greeted by (among others) Tuhaere, Apihai Te Kawau, Te Keene Tangaroa, Te Hapimana, Te Hira, Wiremu Reweti and Honana Te Maioha. Tuhaere addressed the Governor. He spoke of the genesis of their partnership, and alluded to his desire to rekindle it

‘Welcome to Waitemata, to the land where the Governors first began to live… these are the people – the Ngati Whatua – who drew the Governor and the Europeans hither. Apihai, who is sitting there beside you, has been a father to the Europeans, and the friend of the Governors from the first to you. Now you have been called to Auckland. The Ngati Whatua is your tribe. The tribes both north and south have been covered with blood; but in this district… the people have not had their hands smeared with blood. And therefore I say this is the tribe who carry into effect the words sent hither by the Queen. They act as Europeans. Other tribes live at one time under the Queen and at other times have a desire to go outside to the Maoris. Welcome to this land to take care of your children…. We are your children who obey your words, and will not go astray’. 

Bowen responded with some platitudinous remarks; that he had come to be a ‘father’ to both races, and desired to see all living under ‘one law’.  ‘One law for all’ had a rather different meaning for Ngati Whatua. For them equality was not so much about all being equally subject to English laws, but was more about their ability to participate in the law-making process.

A subsequent visit by Bowen in late 1869 provided Ngati Whatua with a further opportunity to reiterate their desire for real partnership. At Te Awaroa Paora Tuhaere read Bowen an address signed by Ngati Whatua rangatira which set out their understanding of their relationship with the Crown and settlers

‘Salutations to you. Come hither to Te Makiri, part of Kaipara, that you may see the solitary ones of this land of Kaipara. Bring hither the representation of Queen Victoria, the Queen of England, and of the numerous islands of the sea. Come hither to see your children.

Te Tinana is dead and Apihai Te Kawau is ill. The chiefs of these hapus, Ta Taou and Ngaoho, the chiefs who drew the Europeans on shore at Waitemata, where they remained as a foundation for the seed of God and Queen to multiply on, in this island of New Zealand, and this is a manifestation of it – your arrival here. This is a place (land) which has been held tapu or forbidden by all the former Governors, but in your administration this sea – Kaipara – has been made common, i.e., rendered accessible to all.

We, these tribes, do still praise the words, which were uttered by you, and by the Queen’s son (the Duke of Edinburgh), “that there should be one law for the Pakeha and Maori, and that the sun might always shine over each tribe”. Therefore, do our tribes hold fast the advice which was given at first by the old men, and by the successive Governors up to the present day. 

Bowen replied that he was pleased Ngati Whatua were living in friendship with their neighbours and  wished to work with Europeans in developing the resources of the district.  

NGATI WHATUA AND THE CROWN, 1871-1900

At the onset of the 1870s Ngati Whatua remained hopeful that they could rebuild their relationship with the Crown. All the signs after 1865, however, and especially after 1869, pointed to the contrary. The introduction of the Native Land Court, cutbacks and retrenchment of the Native Department and the effective exclusion of Ngati Whatua from local and central Government were all combining to consign Ngati Whatua to the margins of colonial life. As the decade wore on this marginalisation gained momentum. The effects of the Native Land Court and associated land loss, discussed in previous chapters, were now starting to have a significant economic and social impact on Ngati Whatua, along with a growing awareness that the Crown was not willing to engage in any form of partnership, either at a local or national level.

From a political perspective Ngati Whatua were all but ignored throughout the 1870s, and even the basic formalities ceased to be observed. Despite welcoming Governor Bowen in 1868, Ngati Whatua were not even notified of the his departure from New Zealand in 1873 until the very last moment. The iwi had little opportunity to meet Bowen’s successor, Fergusson, other than to participate in the signing of a Maori address of welcome later presented to him. 

In 1879 Paora Tuhaere and Te Hemara Tauhia would wait at the gates of Government House in order to present their traditional welcoming address to the new Governor, Hercules Robinson, whose hurried response consisted of a promise to reply in writing. By the end of the nineteenth century Ngati Whatua played no more than a ceremonial role in the civic receptions. 

Yet the beginning of the 1870s had held some promise. The return of Donald McLean as Native Minister gave Ngati Whatua some hope, and there was an increase in spending on Maori purposes.  Most of this, however, was expended in the ‘disturbed’ districts and those that were still considered ‘disaffected’. ‘Loyal’ Ngati Whatua continued to be overlooked, much to their chagrin. 

In 1871 McLean introduced the Native Councils Bill, a measure which proposed to permit elected Maori komiti to pass local by-laws. There was also some provision for Maori play a preliminary role in investigating land titles. Maori, including Ngati Whatua, reacted enthusiastically and began electing komiti in anticipation of the Bill’s passage into law. Although the measure was intended to apply only in districts in which Maori still formed a majority of the population, this limited authority was too much for the settler-dominated Parliament. McLean was forced to withdraw his Bill in the face of overwhelming opposition, despite support from the four Maori Members. The parliamentary opposition claimed that the Bill would destroy the Native Land Court and subject settlers in outlying districts to ‘Maori rule’. For the settler-dominated Parliament this was unacceptable.  Another opportunity for Ngati Whatua to exercise a degree of authority over their own affairs was lost. Such an opportunity would not arise again for another decade. 

The reluctance of the Crown to engage with Ngati Whatua on a political level encouraged to iwi to find new means of expressing their aspirations. Ngati Whatua decided to begin holding their own Parliaments (paremata). The first such hui was held at Otamatea in April 1877 in a whare built for this purpose by Arama Karaka Haututu. This whare was named Te Tamaiti  (the child ) evoking a new beginning and a renewal of the Treaty partnership.  The parliament was attended by over 350 Ngati Whatua and representatives from Waikato and Thames. Items on the agenda included land titles, the administration of law, the position and status of Native Assessors, the Native Lands Acts and Government policy. Strong opposition to the Native Land Court was expressed at this parliament, particularly its misinterpretation or failure to understand customary tenure. The parliament passed 14 formal resolutions, including one calling for land sales to cease. Despite strong opposition to a range of Government policies another resolution confirmed Ngati Whatua’s ‘loyalty’ and their determination to adhere to the laws of ‘God and the Queen’. Ngati Whatua did not seek to repudiate the Treaty or their particular compact with the Crown. Rather, they sought to give full expression to these earlier ‘covenants’. The resolutions were forwarded to the colonial Government in Wellington but without any result. 

Ngati Whatua parliaments would be held annually until 1889, but it was the third parliament, held at Orakei from 25 February to 8 March 1879, in the specially constructed whare symbolically named Kohimarama, that would crystallise Ngati Whatua’s political aspirations. Three hundred Maori attended this parliament, including Ngati Whatua and representatives from other tribes, including Waikato.  Following opening speeches by Paora Tuhaere and Arama Karaka Haututu an address from the Premier, George Grey, and Native Minister John Sheehan, was read to the assembly. This lauded Ngati Whatua for their continuing loyalty to the Crown and stressed the historical links between the Crown and the tribe

‘Salutations to you and to our tribe, Ngati Whatua, and the chiefs and people who are now assembled by your invitations at Orakei. This work of yours is good. It is well that the call to the tribes should come from Ngati Whatua. Our tribe Ngati Whatua has been an upholder of the law and a preserver of the peace since the first coming of the Pakehas to the island. It was our tribe, Ngati Whatua, which led the first Governor and the first Europeans from Kororareka to the banks of the Waitemata. Afterwards, when evil came upon the land, and strife arose between the two races, it was in the land of Ngati Whatua at Kohimarama that there was held a great gathering of chiefs of the native race. Though the words spoken at that first meeting did not take root in Waikato, yet they flourished and bore fruit in many other parts of the island. Therefore, it is well that once more the tribes should meet at Kohimarama…’.  

While lauding Ngati Whatua for their on-going ‘loyalty’ this address completely ignored the main issue; namely, Ngati Whatua exclusion from Government, the introduction of laws which were antithetical to their interests, and their increasing economic marginalisation. It must have been obvious to many Maori present that while Ngati Whatua had tried hard to uphold and develop a relationship the Crown had not reciprocated. Indeed, the reference to the 1860 Kohimarama Conference was most likely particularly galling to the iwi. In 1860 Gore Browne and McLean had not only assured the chiefs that that they would participate in the government, but also that the adjudication of land titles would be largely left to them. 

Despite this Ngati Whatua continued to hold to the Treaty of Waitangi, renewed by  the ‘covenant’ of Kohimarama. Paora Tuhaere expressed this succinctly 

‘Some people say we did not participate in the Treaty of Waitangi, but I contend that we did take part in it. They say that blankets were given to some people to induce them to sign the Treaty; but I say that the Treaty was ratified by all of us, and we also ratified that Treaty that was made at Kohimarama’.  

Many other Ngati Whatua speakers confirmed these sentiments. Te Otene Kikokiko stated

‘”To you remains the mana of your land, the control of your forests and of your fisheries”’. Governor Browne used these words at Kohimarama. I do not object to the Treaty of Waitangi. Both these Treaties… were made in this island. I shall adhere to them. They must be carried out by both races. God is one and the Governor is the other. These are the only two I have acknowledged in the past years… I hope I shall die under the shadow of the Queen. 

One of the more forceful speeches was made by Hori Tauroa. He stated that the Crown had failed to honour the ‘covenants’, but remained hopeful that a positive relationship with the Crown could be restored

‘The words that were spoken at Kohimarama have been trodden under feet… These matters had disappeared under the ground, but now they are being disinterred. I approve of the words of our parents who invited the Europeans to come here as parents for all the Native people… We are their children; we are like the young birds, with the Queen’s wings over us…The Queen is now the bird that has her wings spread over the people from one coast to the other’. 

As hitherto, affirmations by Ngati Whatua of their own continued adherence to the Treaty and subsequent ‘compacts’ did not lessen their protests about the Crown’s failure to reciprocate. Eruera, for example, noted that the Treaty granted Maori the mana of their lands, fisheries, forests, and ‘other things’, but they had not received 

‘any of those benefits; but I think the Queen was not the cause of this – it lies with the Government of New Zealand. Another disadvantage is the Native Land Court and the Crown agents’. 

The most trenchant criticisms were directed at the Native Land Court. This was hardly surprising, considering the devastating economic and social impact that the Court had (and was having) on Ngati Whatua. Tuhaere stated that at the time of the Treaty Ngati Whatua had authority over their lands, but

‘after the Treaty, the Maori Land Courts were established… It was the Native Lands Court that took away the authority over the land from the owners, and put the authority in a Crown grant. Owing to the issue of those Crown grants all classes of Europeans have been seeking to purchase land. If the lands had remained under the old authority of your fathers there would have been no Crown grants, and your lands would not have been wasted. 

Eruera Paerimu echoed Paora Tuhaere’s thoughts on this subject

‘The mana of the land has been taken by the Crown grants. I thought the Crown grants would bind the land, but I see the Maoris are selling the lands held under those grants; and therefore I think that the Crown grants are of no use. They do not prevent the sale of land. I agree that the sale of land should cease. If this Parliament resolves that land shall not be sold in future by the Maoris, it will not be sold; and I think that this runanga should come to that decision. If any one sells land in future, let the censure of this Parliament be brought down upon him. 

Mihaka Mikaere demanded that the Court be done away with 

‘The worst thing that I can see is the Government Land Court… the surveys, Crown grants, and the deposits paid on the land. I wish all assembled here to come to a decision to stop the survey of blocks of land that have not passed away from us. Let us decide that the Native Land Court shall be done away with, and the surveys and Crown grants abolished. The best thing that the Government can do is to protect us in the possession of our lands… we have all suffered by the laws that the Government have made for the Land Courts, and the Crown grants. There are thousands of people who have suffered by these laws. Therefore, I say let all who are assembled here agree with me that the Native Land Court shall be abolished. 

Towards the end of the hui Tuhaere put forward a series of resolutions which were almost unanimously assented to. They resolutions called for the abolition of the Land Court, that ‘Maori mana’ should remain over lands not surveyed and adjudicated, that road boards and local bodies should not be permitted to charge rates on Maori land (except those under lease to Europeans), that reserves should be inalienable, that mortgages should cease, and that tamana (advance payments) be prohibited. Further resolutions were passed the following day, one of which was to the effect that ‘this runanga decides not to have a member in the Parliament at Wellington for Kaipara, Auckland, or Hauraki, and that our representation shall be the Maori Parliament’. 

The Government had no interest in abolishing or reforming the Native Land Court. The only alternative left to Ngati Whatua was a boycott. But in order for this to be effective there needed to be complete unity. Even if one individual could be encouraged to make an application to the Court and a hearing would be scheduled. Those who did not attend would simply be left off the titles. Nevertheless, Ngati Whatua attempted a boycott in July 1880 and formed a committee which exhorted all tribal members to eschew the Court. At a subsequent Te Awaroa sitting only one block was passed through the Court (Tuperakura) because an agreement for sale had already been reached, and this was honoured.  In the long run, however, such boycotts were doomed to failure. It ultimately proved impossible to achieve complete unanimity. 

Ngati Whatua continued to convene Orakei parliaments. The fourth such parliament, held in 1881, was the largest yet. It was attended by Maori from Thames, the Bay of Islands, Waikato, Tauranga and Whanganui. Paora Tuhaere prepared an ‘order paper’. This represented a sophisticated analysis of the difficulties facing the tribes and set out solutions. It began by listing the various compacts upon which the authority of the Orakei parliaments was based. These included the 1835 Declaration of Independence, the Treaty of Waitangi and the ‘Treaty of Kohimarama’.  

Ngati Whatua’s own particular ‘compact’ with the Crown, based on the gift of the site of Auckland to Hobson in September 1840 , was not specified. There are two possible explanations for this. One is that the Orakei parliaments had become a pan-iwi movement and Ngati Whatua may not have wished to emphasise their own particular arrangements within this context The other is that the signing of the Treaty of Waitangi in March 1840 and the subsequent gift of land involved the same chiefs, and in the minds of the people the two events were inextricably connected. The gift of land in September 1840 ‘ratified’ the events of March. For Ngati Whatua they were the two major components of a single process. Hence, when Ngati Whatua refer to ‘the Treaty’, they are also referring to the subsequent gift which formed an integral part of it and gave it specific local shape and meaning. 

Tuhaere’s ‘order paper’ went on to list a set of solutions to the current difficulties. These difficulties included the taking of foreshores abutting Maori lands, the absence of any meaningful Maori role in the land title adjudication process, land purchase and the failure to translate key legislation into te reo. Tuhaere called for the ‘suppression’ of the Native Land Court and its replacement with a new body with the aim of conserving remaining Maori land and the formation of Maori komiti to settle land titles. He also sought a role for such komiti in local administration. Tuhaere concluded by urging the Government to be more active in carrying out promised public works.   

None of these proposals should have been particularly controversial. Maori had been repeatedly promised a role in the title adjudication process and local administration, particularly at Kohimarama in 1860, and Grey’s Runanga and McLean’s abortive 1871 legislation both envisaged greater Maori agency. Tuhaere’s demands were not revolutionary or unworkable. They were simply antithetical to settler interests. In addition, in asserting their own authority and demanding an active role in government and their own affairs Ngati Whatua were acting wholly within the terms of the Treaty, at least as they understood it.

A further parliament was convened at Aotea, near Helensville, in March 1884. This sat in a new meeting house, also named Kohimarama. An instruction to build this whare had been among the last works of Te Otene Kikokiko, who passed away in 1883. He had also insisted that a monument be erected bearing the words of the Treaty of Waitangi in English and Maori, upon which was to be placed a bust of Queen Victoria. Over 300 Maori attended this parliament. Matters on the agenda included the ‘the Treaty of Waitangi and the Kohimarama Conference’, abolition of the Native Land Court and an end to land sales and termination ‘of the laws bearing heavily upon the Maoris’. There was a good deal of sympathy for the Kingitanga, but many Ngati Whatua felt unable to support the King as they had entered into a solemn compact with the Crown and could not resile from this. The Ngati Whatua rangatira Arama Karaka told the gathering that 

‘our tupuna said gather together the Pakeha… the carved flagpole at Waitemata is a symbol of this. It is named Ngati Whatua. Their words were: hold fast to the faith. Stay close to the shelter of the Queen whose protection was given… to you… The [elders] never changed their thinking… I will go on what our tupunas have said. I will remain firm on this stand’. 

By the beginning of the 1880s increasingly strident nation-wide Maori demands for iwi and hapu control over the land title adjudication process and land sales had increased. The formation of ‘Native Committees’ which might assume a larger role in the Court process was seen as a potential answer to the problem. In 1880 Hone Mohi Tawhai of Waima, the MHR for Northern Maori, and Te Wherowhero, the Member for Western Maori, submitted a draft Native Committees Bill to Native Minister John Bryce. Tawhai envisaged that the Committees would adjudicate on land titles, and if a sale or lease was contemplated the Committee would also ensure that the proceeds were fairly distributed – perhaps through a Board of Trustees. The Governor would define ‘Native Districts’, within which the Committees, consisting of 6-12 members, would operate. Ngati Whatua gave the proposal their full backing, but it was constantly dropped down the Parliamentary order paper and eventually lapsed.  

The Bill was submitted again in 1882 but proceeded no further than a second reading. It was brought before the House again in 1883. At the last minute the clause requiring the Native Land Court to take ‘judicial notice’ of Committee decisions was altered. The Court was now required only to take note of Committee decisions ‘as it saw fit’. The Native Committees were thus reduced to an advisory role. This gave Ngati Whatua and other iwi no more power than they already possessed, which was none at all. The Bill’s Maori sponsors appear to have been unaware of this change, perhaps because the Maori translation was garbled. There was no confusion among the European Members, however. To them it was clear that the measure was ‘harmless’ because it reduced the Committees to an advisory role. Colonel Whitmore observed during the debate: ‘Well, what was all this for?… what did the Bill do?…’. It was clear to him that the Committees had ‘no power whatever, but they might express an opinion to the Land Court, which the Court might accept or reject as it saw fit’. 

Nevertheless, Ngati Whatua responded favourably to the new law and by March 1884 they had elected a Kaipara Committee, chaired by Te Keene Tangaroa. Other members included Parata Mate, Te Hemara Tauhia, Eruera Paerimu, Apihai Te Wharepouri, Hare Kiwara Te Ro, Poata Uruamo, Herewini Maui and Arama Karaka. But despite this initial enthusiasm the Kaipara Native Committee never got off the ground. After an initial burst of enthusiasm Ngati Whatua realised that their Committee provided them with no real power. As John Williams has pointed out, unofficial Maori committees ‘could have done as much without any legal recognition at all.  

Meanwhile Ngati Whatua continued to convene Orakei parliaments. Towards the end of the 1880s their deteriorating economic position made it increasingly difficult for the tribe to host these large meetings. Furthermore, from the middle of the decade a new shift in strategy, centring on a wider pan-Maori political movement, was beginning to emerge. As well as convening their own parliaments Ngati Whatua had, throughout the 1880s, also attended political meetings hosted by Ngapuhi at Waitangi. It was during these meetings that a strategy of unified Maori political action would crystallise and eventually gain expression in the Kotahitanga (unity) movement. 

In 1888 a series of inter-tribal meetings was held at Waitangi, Waiomatatini, Omahu and Putiki (representing the north, east, south, and west of North Island) designed to achieve more thorough tribal co-operation and present a more organised and united opposition to Government policies. Ngati Whatua attended the Waitangi meeting, with Paora Tuhaere taking a leading role. He proposed establishing a Maori body which would both review legislation relating to Maori and submit its own proposals to the colonial Government. The proposals continued to be based on the 1835 Declaration of Independence, the Treaties of Waitangi and Kohimarama, and also Section 71 of the New Zealand Constitution Act 1852, which envisaged Maori autonomy in Maori districts but had remained a dead letter.  

At a further meeting at Waitangi in March 1889 a document pledging Maori union under the Treaty of Waitangi, and demanding that Maori be allowed to administer their own affairs, was signed by over 400 people, including ‘a large number of leading chiefs’. Only a few weeks later the tenth and final Orakei parliament was held, although the focus was now on the formation of Kotahitanga. Paora Tuhaere outlined the reasoning behind the planned Kotahitanga paremata

‘Friends, we have come to destroy all the troubles that have arrived on this island. I wish you all to understand that you are called here to make the natives and Europeans one people. I have got three things to lay before you: – 1st The consolidation of the two races. 2nd To lay before you the fact that in olden times there were chiefs, and now they are not… The meaning of [the] Treaty was to make Europeans and Maoris [sic] as one people. 3rd I wish therefore, to make all the native tribes one in asserting their rights against the Government. The natives wished to bring various matters before the House, but there is no use in troubling it, therefore it must remain for ourselves to do what we can. Her Majesty the Queen gave us a right to all our lands. Now, have we got them? The Treaty has been broken by the present Government…’. 

Native Minister Mitchelson and Attorney-General Frederick Whitaker were present at the Waitangi and Orakei meetings in 1889. Both offered assurances that the Government would listen to any ‘reasonable’ proposals relating to Maori land legislation and the Native Land Court, and Mitchelson was particularly pleased with Paora Tuhaere’s remarks about the need for ‘unity of the races’, which was also an aim of the Government. For Mitchelson, however, that phrase was simply another term for Maori assimilation. For Ngati Whatua it meant an equal voice in Government and empowerment.  This would be the goal that Kotahitanga would strive to achieve during the last decade of the nineteenth century.

The first Kotahitanga parliament sat at Waipatu in June 1892, and similar hui would be held annually during the decade at various places around the North Island. The parliament consisted of a Lower House, with elected members, and an Upper House – or Runanga Ariki, which included appointed chiefs from all parts of the North Island. At its height the Kotahitanga parliament drew support from Ngati Whatua, Northland, Thames, the East Coast, Rotorua, Wairarapa and Whanganui. The Kotahitanga parliament advocated many of the policies which Ngati Whatua had repeatedly enunciated at the Orakei parliaments, including abolition of the Native Land Court and its substitution with a Maori controlled body. The Kotahitanga parliament would, however, attempt to go much further than the Orakei parliaments. Well aware that independent Maori initiatives had largely fallen on deaf Government ears, the Kotahitanga leaders strove not as hitherto to achieve a sympathetic response, but now demanded official recognition of the authority of the Kotahitanga paremata. This was not been a new idea. As early as 1881 a hui at Waitangi, attended by leading Ngati Whatua chiefs including Paora Tuhaere and Te Hemara Tauhia, had told Native Minister Rolleston to

‘Let us have a Parliament to ourselves. Let Government watch it. Don’t put it down until you see evil from it. The Parliament in Wellington has broken the Treaty. Let there be a council to consider the Maori question… we should have a Parliament of our own. We have tried your Parliament and found it wanting’.  

The Kotahitanga leaders now acted to put such ideas into practice. Relying on the Treaty of Waitangi and section 71 of the Constitution Act the paremata forwarded a number of bills to Wellington in the hope they would be ratified. Hone Heke, a Kotahitanga representative and the Northern Maori Member in Wellington, worked strenuously to achieve this aim. In 1894, following a Kotahitanga parliament sitting at Pakirikiri, Heke introduced a Native Rights Bill. The Bill aimed to establish a separate authority for the Maori parliament to legislate for Maori, since, as it stated in the preamble

‘It is to the benefit of both the European and aboriginal inhabitants of New Zealand that the said aboriginal inhabitants and their lands and other property should be governed by laws enacted by themselves’. 

Needless to say Heke’s Bill proved too radical for the European Members, who walked out of the chamber, one after another, until a quorum was no longer present and the Bill could not be voted on. Kotahitanga leaders would make another effort in 1895, re-introducing the Hone Heke’s Bill, along with another less ‘radical’ measure, but with no more success. Such ideas were anathema to settler politicians.

Following the final defeat of Hone Heke’s Bill in 1896 the Kotahitanga parliament found itself at a crossroad. Some Kotahitanga leaders, including Hone Heke, wanted to make an appeal to the Imperial Government in London. Others preferred to carry on talking with the colonial Government in the hope that more limited concessions could be achieved. This faction was encouraged by statements emanating from Premier and Native Minister R. J. Seddon, who in 1897 signalled an apparent willingness to allow a degree of Maori autonomy in respect of land and local administration. These different strategies led to an acrimonious Kotahitanga parliament sitting at Papawai in 1898, and the future of the movement for a time hung in the balance. 

A change in Government policy was driven by Seddon’s realisation, by 1897, that it was no longer necessary for the Government to acquire more Maori land and the focus ought now to be on preventing Maori, including Ngati Whatua, from becoming completely landless paupers and a burden on the state. Large-scale Maori support of the Kotahitanga movement was also clearly a factor. Essentially, Seddon felt that it was politic to take the wind out of Kotahitanga sails. 

In November 1897 Kotahitanga representatives wrote to Seddon asking him to halt further land purchase by the Crown and private parties and demanded that remaining land be retained in Maori ownership as inalienable reserves.  Seddon appeared willing to talk. He stated that he was ‘wishful to preserve to the Natives the benefit of their lands [sic]’, although he warned them that the authority of the Wellington Parliament would be maintained: ‘The mana must be with the Parliament… and the Parliament will never agree that any persons in the Colony shall be wholly independent of it’.  

At a meeting in Wellington with Kotahitanga representatives a few days later Seddon indicated that he was pondering a reform Maori land legislation. He envisaged appointing a Board, representing both the Government and Maori, which would have control of land with power to manage and lease lands and to pay over all sums received to the owners. But until this scheme was perfected, Seddon added, it would not be possible to entirely discontinue the purchase of Maori lands by the Government.  

A Bill subsequently introduced by Seddon proposed halting Maori land purchase and establishing Land Boards consisting of Maori and European members to administer Maori lands. This proposal had several limitations. The Boards were to have a European majority and were to assume control of all Maori land in their districts which might then be leased. These provisions, as John Williams observes, were highly problematic for Maori. Far from being agents of local or tribal control, the main purpose of the Boards appeared to have been to open further land for Pakeha settlement.  

Although the Bill was far from ideal, by 1899 the tribes participating in the Kotahitanga movement accepted it as the basis for negotiations with the Government. Kotahitanga leaders did, however, attempt to gain more concessions, as evidenced by Hone Heke’s proposed amendments in 1899. Heke suggested limiting the powers of the Boards, replacing the Native Land Court with committees consisting of Maori and European members, setting up of Papatupu committees composed solely of Maori to determine the external and internal boundaries of papatupu lands, and establishing Block Committees comprising representatives selected by the landowners to administer the land. Above all, Heke reserved

‘the right to oppose any legislation that proposes to take away too much individual mana, or the mana of a number of owners to their own properties, and have such mana concentrated in the hands of a constituted body. Constituted bodies under this Act must only exercise administrative power, and at the request and direction of the parties seeking their aid.  

After further negotiations and amendments the new legislation was introduced in 1900 in the form of the Maori Land Administration Act. The Act was in many respects a compromise between the Government and Maori. It included some Kotahitanga amendments but omitted key demands. As Hone Heke stated during the final debate on the Bill

‘the Bill as it stands now does not give effect to all that I want. It is not really the Bill as I would like to see passed. We have endeavoured to amend it in the direction of carrying out the wish of the Maori people; that is, the direct prohibition of all sales of Native land, and simply to allow the only form of alienation be that of leasing. We could not get all we wanted in the Native Affairs Committee. We only got a compromise.   

In addition to the Maori Land Administration Act, the Government also passed the Maori Councils Act. The Councils Act, promoted by Apirana Ngata, set up Maori committees to oversee sanitary and social conditions in kainga. This Act purported to provide Maori with a degree of self-government, and it too received a measure of support from the Kotahitanga movement. The new legislation, although falling far short of the goals that Kotahitanga, and Ngati Whatua, provided some hope. It was on this basis that Ngata persuaded the Kotahitanga movement to disband and those that had been involved in the movement to devote their attentions to making the new measures work.  

Summary

The relationship between Ngati Whatua and the Crown deteriorated steadily from 1865. Developments after 1865, including the removal of the seat of Government to Wellington, the introduction of the Native Land Court and the cutbacks and retrenchment of the Native Department, made it increasingly difficult for Ngati Whatua to continue to maintain a positive relationship with the Crown. Despite this the iwi continued to hope that the relationship could be restored.

From the 1870s it was becoming obvious to Ngati Whatua that they were being largely ignored by the Crown and would need to develop their own political organisations. The resulting Orakei parliaments played a significant role in crystallising Ngati Whatua political thought and in developing cross-tribal links which would make it possible for the Kotahitanga Maori parliament movement to gain prominence in the last decade of the nineteenth century. 

Ngati Whatua gave the Kotahitanga movement its full support, and were indeed active in its formation. Although the movement did not achieve its stated aim; full recognition as a Maori parliament empowered to legislate for Maori, it did gain, through such pressure as it was able to exert, some concessions from the Government in the form of twin legislation passed in 1900 which purported to give Maori a degree of control over their lands and affairs not seen since the early 1860s.  

10. ‘LONG DEFERRED PROSPERITY’: NGATI WHATUA IN THE TWENTIETH CENTURY

Introduction

The start of the twentieth century brought new hope to Ngati Whatua that their desire to participate in the administration of their lands and their own affairs would be met, at least to some degree, by the new legislation passed in 1900 – the Maori Councils and Maori Land Administration Acts. Further hope that they would be able to materially improve their position came in the late 1920s and 1930s with the Government’s introduction of consolidation and land development schemes. After decades of Land Court activity the land retained by Ngati Whatua had become hopelessly fragmented through partition and the imposition of inappropriate succession laws, rendering it of little real use or value. Development of remaining land was also critical, given that Ngati Whatua largely retained remote blocks or poor quality unwanted by settlers. 

Despite these promising developments Ngati Whatua would continue to experience land loss for a good part of the twentieth century, even though their land base had already been severely compromised by 1900. Consolidation was not carried out in any effective or systematic way, and development proved a mixed blessing. There was simply insufficient good land left in Ngati Whatua ownership when the schemes were introduced in the early-1930s. 

THE MAORI COUNCILS ACT 1900

The Maori Councils Act in 1900 initially appeared to go some way towards meeting Ngati Whatua aspirations. The Act provided for the establishment of Maori Councils in the mainly rural districts where most iwi members still lived. Richard Hill notes that the Councils were in many respects a reflection of Grey’s New Institutions, and there were indeed some strikingly similar features in the 1900 legislation.  For Ngati Whatua the outcomes were ultimately also on a par with Grey’s Runanga; both failed to meet their aspirations. The new system consisted of elected Maori Councils of six to twelve members which in theory, although not always in practice, were based on tribal boundaries.  These Councils acted on a regional level, making rules in the form of by-laws. The by-laws were concerned with health, welfare and social issues. Elected village committees (Komiti Marae) were intended to supervise and enforce these by-laws on the local level. The Government provided a set of model by-laws for the Councils (although there was some Maori input into these from Apirana Ngata, Ihaia Hutana and Raueti Mokonuirangi), but ensured that the office of the Superintendent of Maori Councils would be held by a European official. His task was to closely monitor and oversee the work of the Councils, steering them away from any politically sensitive issues. 

A total of twenty-six Maori Councils were ultimately created, including the Ngati Whatua and Wairoa Maori Councils which covered the great majority of the Ngati Whatua rohe. The Maori Council by-laws adopted by the northern Councils dealt with sanitary issues and housing improvement, and also attempted to control behaviour considered to be unacceptable, such as drinking and gambling. The Councils were also empowered to collect the much hated dog-tax, although this duty would be handed back to the County Councils in 1919.

Ngati Whatua, at least initially, reacted with a considerable degree of enthusiasm. But the realisation soon dawned on them that the Councils fell far short of satisfying their political and other ambitions. Despite that the sanitary and social work carried out by the Councils benefited many Ngati Whatua. James Browne, the census enumerator for Whangarei, Hobson and Otamatea noted in 1906 that the health of Maori in his district had improved since 1901, largely through the influence of the Councils.  

Nevertheless, Ngati Whatua, and Maori generally, wanted the Councils to assume wider powers, including criminal and civil legal jurisdiction, especially in cases involving only Maori. Gilbert Mair, the Superintendent of Maori Councils, complained in 1903 that there was ‘a disposition shown by the Councils to assume authority not bestowed on them by the Legislature’, which in his opinion ‘diverted’ the Councils from their more important sanitary work.  The 1903 General conference of Maori Councils demanded wider powers, noting that ‘the general jurisdiction of the Maori Councils may be extended as far as possible, in order that they may the better carry out the intentions of Parliament in enacting the measure’. A similar demand was made at the 1908 conference. 

It was certainly not the intention of Parliament to hand over substantive authority. The Councils were in effect little more than a ‘safe’ means of placating Maori and taking the impetus away from Kotahitanga. This, and a failure of the Crown to fund the Councils soon led to their demise. By 1915 the Superintendent of Maori Councils, J. B. Hackworth, reported that the Ngati Whatua Council was defunct, and the Government had not paid its promised annual grants for a number of years. 

Once again the Ngati Whatua hopes of achieving a degree of political control over their affairs had been raised, and once again they were dashed by a Government not prepared to permit any semblance of genuine autonomy. Indeed, the Government was not even prepared to support the very limited functions of the Councils. Although the Councils continued to exist in one guise or another until the 1940s their political importance was nil.

MAORI LAND ADMINISTRATION ACT 1900

The Maori Land Administration Act was also passed in 1900. The Act appeared to address widely held concerns within Maoridom (and Ngati Whatua) over the rate of land alienation and a desire to halt this process. The Act set up Maori Land Councils (entirely distinct from Maori Councils set up by the Maori Councils Act) which were composed of Maori and European members with a Maori majority on each Council. The Councils were able to assume some of the powers of the Native Land Court, and were designed to ensure that a ‘sufficient area was left for Maori maintenance and support and to grow food for their communities’.  Furthermore, the preamble of the Act stipulated that Maori should not be left landless, and provisions for inalienable reserves for papakainga, urupa and other traditional use were duly included. Crucially, however, the Act did not abolish the Native Land Court, which continued to operate and in some cases acted as a superior appellate court.

One of the most important features of the Act was that it encouraged leasing as the main form of alienation. This was largely in accordance with Ngati Whatua wishes. Leasing suited both Maori and the Government’s needs at this time, albeit for different reasons. For Ngati Whatua leasing was the only avenue through which they could prevent further permanent alienation of their dwindling land base while still being able to receive some form of income. The Government also saw leasing as an expedient policy at this point. As noted, it was concerned at the prospect of Maori becoming completely landless and a ‘burden on the state’. As Hill has pointed out, this marked a significant shift in Government policy; the progress of European settlement did not need to hinge on permanent alienation of Maori lands.  This shift was intimately connected with the ‘taihoa’ policy, a pause in land sales encouraged by Native Minister James Carroll. The aim was to provide Maori with ‘breathing space’ to recover from land loss while still receiving rentals from their remaining lands. But ‘taihoa’, although it was widely supported by Ngati Whatua and other Maori, was never meant to be anything more than a brief holding operation.

The leasing process set up by the Act empowered Maori owners to vest their lands voluntarily in the Maori Land Councils, who would in turn lease the lands to Europeans. Such a system would ostensibly ensure the further progress of European settlement, as well as continued Maori management of the leased lands through the Maori majority on the Councils. While this sounded workable in theory it proved less so in practice. There was a general unwillingness among Ngati Whatua to voluntarily vest land in the Tokerau Maori Land Council. European settlers also resented the prospect of Maori ‘landlordism’ and often refused to lease Maori lands vested in Land Councils.

The Act also provided for the establishment of Papatupu Block Committees. They were empowered to inquire into ownership of papatupu blocks in accordance with Maori custom. The Papatupu Committees had five to nine members and were required to pass on their determinations to Maori Land Councils. In contested cases the mater was referred to the Native Land Court. 

This was the first time that a legal process to determine Maori land titles was put in place without permanent land alienation following directly as a result.  The Papatupu Block Committees would, as far as Maori (and Ngati Whatua) were concerned, prove to be the most successful feature of the Maori Land Administration Act. Unfortunately they did not last long. 

While the Maori Land Administration Act was not a panacea for Ngati Whatua it was nevertheless a step in the right direction, especially in comparison to the oppressive machinery of the Native Land Court, which had had such a devastating impact on Ngati Whatua over the preceding four decades. However, the Act in its original form would soon be abandoned by the Government under a barrage of heavy criticism from the Opposition and the press, who claimed that Maori land was being ‘locked up’ up and ’taihoa’ was obstructing the progress of European settlement and endangering the welfare of the colony.  The Opposition also accused the Government of failing to ‘protect’ Maori by encouraging ‘idleness’ and retarding ‘self-reliance through individual labour’.  Pressure to make amendments to the legislation grew. 

A change came in 1905 with the passing of the Maori Land Settlement Act. The Government had already started bowing to opposition pressure the previous year, passing a measure which allowed for compulsory vesting in the Councils of land on which rates were owed. The land was leased and the proceeds used to clear the debt. The 1905 Act, however, went far beyond this. The legislation brought land purchasing back to the fore and replaced the Maori-majority Maori Land Councils with three member European-majority Maori Land Boards, giving them more coercive powers and additional duties. The principal of compulsory vesting was further extended. This had particular ramifications for Ngati Whatua since section 8 of the Act named the Tokerau and Tairawhiti districts as areas in which the Native Minister could compulsorily vest lands in the Boards which, in his opinion, ‘was ‘not required or not suitable for occupation by Maori owners’.  

The Boards, like the Land Councils, also dealt with applications for removal of restrictions on alienation and consents to lease and disburse rental money to the owners, while the Papatupu Block Committees continued to operate for the time being. Nevertheless, changes in Land Board membership, a new process, and coercive powers were a significant step away from the philosophy behind the original Land Councils experiment and signalled the abandonment of the ‘pretence that the Crown-provided Maori land mechanisms were intended to provide a means of a degree of self-government’. 

The Government portrayed the 1905 Act as a compromise between its aims and a widespread Maori desire for substantial control of their remaining lands. For Maori there were a few mitigating factors. The Government was compelled to ensure that Maori retained sufficient land, and the Tokerau and Tairawhiti districts were not exposed to further land purchase until January 1908. This was a concession gained by Hone Heke, the Northern Maori MHR. A further ‘compromise’ was the inclusion of a provision allowing for state loans to Maori, primarily for land development. Ten year loans would be made available on one-third of the assessed land value at 5% interest, although the constant undervaluation of Maori land was not taken into account.  Hill has noted that Maori Land Boards were run on a ‘shoestring’ and had little or no capital to assist Maori land development.  

Undoubtedly the most significant change for Ngati Whatua was compulsory vesting of what were termed ‘idle’ lands in 1906, when all of the larger and more fertile blocks in Ngati Whatua ownership in southern Kaipara – Otakanini, Araparera, Aoteraoa, and Kakaraea – came under the control of the Board. The Otakanini block, the second largest and most valuable in Ngati Whatua ownership at this time, was compulsorily vested in the Board without any consultation with the owners. The following year, in July 1907, Paora Otene made a representation to the Board on behalf of the block’s owners in order to ensure that at least some of the land remained in Ngati Whatua ownership

‘I am appearing for the owners of the Papakainga. I wish to ask the Board although the land is vested in it, that the papakainga’s [sic] made on the judgment of the Native Land Court be reserved for their own use. The natives are prepared to pay the rates and taxes and to make further improvement on this land and are prepared to bind themselves to the Board to do so. If the sections were not taken up and worked within 12 [months] the Board could take up the land and lease it for them. I think the Natives will start at once to go and improve the land. I respectfully ask the Board to carefully consider the matter in order that our children may have some land for the future. The Natives are prepared to allow the Board to lease all the poor land. 

The Board’s ‘scheme of settlement’ for this block (of just over 7,500 acres) eventually led to 200 acres being reserved for papakaingas and 360 acres being set aside for lease to Maori. All the Maori lessees gave up their leases before their first renewal, however, mainly because of a lack of effective financial assistance. The balance of the block was leased to Europeans. 

The Otakanini block was revested in Ngati Whatua in 1958. As Fiona Small has observed, although the compulsory vesting of the block might have prevented it from being permanently alienated, the owners’ lack of participation in deciding how the block could be utilised meant that Ngati Whatua missed out on gaining valuable experience in managing and developing a commercially viable block for at least two generations.  

Furthermore, the compulsory vesting of the block prevented Ngati Whatua from accessing the resources on the land, notably kauri-gum and timber. In July 1909 G. H. Hill had written to the Board on behalf of Ngati Whatua wishing to collect gum on the mud-flats

‘I am asked by a number of Maoris [sic] to write and enquire of you as to whether they still may dig gum on the mud flats adjoining the sections which have been lately leased to Europeans. Some of them have for years been digging about these flats but are now stopped by both European and Maori lessees of sections running down to the edge of the flat’. 

The vesting and leasing of other blocks in Ngati Whatua ownership also resulted in a lack of access to resources. The lease of Aotearoa denied Ngati Whatua legal access to mahinga kai in the winter months. Similarly, the lease of Araparera 1 restricted access to kaimoana to the Ngati Whatua communities at Kakanui and Araparera.

Even more disconcertingly for Ngati Whatua Crown land purchase agents returned to their rohe during the second decade of the new century. The Native Land Act 1909 stripped away many protective features of earlier legislation, and the policy of vesting Maori land in the Land Boards for leasing and sale was abandoned. The sale and lease of Maori land by the owners was now permitted under the supervision of the Boards, whose increasing focus was ‘opening up’ Maori land for settlement. The Under-Secretary of Native Affairs T. W. Fisher observed that

‘The main feature of the present law is the widening of the avenue and facilitating the alienation and settlement of Native lands. Formerly the disposal of Native lands was more or less restricted, and in some cases absolutely prohibited. The Act of 1909 removes all restrictions and prohibitions on the alienation of land by a Native or on the alienation of Native land, with certain exceptions’.  

This change in Government policy would eventually lead to the loss of Ngati Whatua’s remaining land at Orakei, the only Ngati Whatua land in Auckland at the turn of the century. This process began as early as 1907, with the Auckland City Council taking part of Orakei for drainage purposes. Paora Otene, Ruarangi Kingi and Wiremu Watene Tautari petitioned the Native Minister expressing concern about the loss of the land and the environmental impact a drainage scheme would have on their kaimoana

‘We are owners of the Orakei block… Most of us are without any other lands, and such of us that have other lands, have only interest in lands which are poor and totally unfit for our maintenance and support… seeing that the aforesaid flat and surrounding land at Orakei is our only means of existence, and that we have no other lands to which we could go, should such lands be taken, other than the hilly parts of the Orakei block, which are not suitable for cropping purposes, and further, seeing that our fish supplies would be destroyed by such reclamation and sanitary scheme… we respectfully ask that you would recommend the introduction of legislation to protect us in our rights, which we held from time immemorial, and which were preserved to us by the Treaty of Waitangi.  

The scheme nevertheless went ahead. Much of the balance of Ngati Whatua’s remaining Orakei lands was acquired by the Crown and private parties during the following decade. Four hundred and sixty nine acres of the remaining 643 acres was acquired from individual owners between 1914 and 1916. A further 138 acres were sold by 1920, leaving only 36 acres in Ngati Whatua possession. The majority of this was alienated between 1920 and 1927, and the final 2.5 acres at Orakei still in Ngati Whatua ownership was taken under the Public Works Act in 1951. Although Ngati Whatua may have received over £50,000 for the sale of the Orakei block, it was money that they desperately required to cover outstanding legal bills, mortgages and debt that had been incurred over the previous years, including extensive survey costs resulting from the partition of the block in 1898. Ngati Whatua were now landless in Auckland, even though the Stout/Ngata Commission had recommended in 1908 that 85 acres of the block be reserved as a papakainga and the remainder to be leased rather than sold. 

The main task of the Stout/Ngata Commission, set up in 1906, was to expedite the land alienation process by identifying those lands in Maori ownership which were not ‘profitably occupied’, and recommend the ‘mode in which such lands can best be utilised and settled in the interests of the Native owners and the public good’.  After carrying out an inquiry the Commissioners observed that the Ngati Whatua tribe, ‘once a numerous and powerful people’, were now ‘much reduced in numbers, and living in scattered kaingas’. The tribe wished to utilise their remaining lands in a ‘proper manner’, and they had not been an ‘idle people’, but 

‘their energy… has been expended in other directions, gum-digging, bush felling, and other employment in connection with the timber industry of the district. The period 1873 to 1899 or thereabouts was marked by great activity in the kauri gum and kauri timber industry. At the same time the Maoris… derived large sums of money from land sales. We estimate the area sold between 1873 and 1900 at 380,000 acres…’. 

But by the end of the 1890s the gum industry had begun to fail and kauri timber had become scarce. This only served to exacerbate the problems faced by many Ngati Whatua who had become virtually or completely landless. Those with land or access to land had, since 1900

‘turned their attention more to farming. A few Natives in each County are dairying and sheep-farming… The time seems opportune in the Kaipara district for fostering and directing these attempts to lead a more industrial life; there is need for the proper adjustment of titles to secure to the more industrious the fruit of their efforts, and to the State, or other lending body, a sufficient guarantee of title’.

But above all, according to Stout and Ngata

‘there is a need for proper instruction and direction, that the energy hitherto used productively under European management and the spur of an assured wage may be diverted to the more difficult task of cultivating land with the incentive of a hard-won and long deferred prosperity’.  

Stout and Ngata made a number of recommendations in relation to lands which might be sold, leased or retained by Ngati Whatua. Few of these were followed by the Government. The Stout/Ngata recommendations are summarised in the following table: 

County Recommended to be Reserved for Maori Occupation (acres) Leased or Under Negotiation for Lease (acres) Not dealt with Lands Available for General Settlement (acres)

Waitemata 2,681 6,652 1,118 9,344

Rodney 10,346 2,527 595 2,012

Otamatea 5,034 30,573 420 412

Hobson 13,484 18,541 5,531 27,805

Totals 31,545 58,293 7,665 39,573

The Stout/Ngata report did not support a view that there were large areas of Ngati Whatua land available for alienation and European settlement, and most Ngati Whatua wished to retain their land or lease it. Selling was a last resort. Despite this, after 1908 another vigorous land purchasing programme was embarked upon in defiance of Stout and Ngata’s recommendations and, as noted many remaining protections that existed were stripped away by the Native Land Act 1909.  

The Commissioners had also found that Ngati Whatua were willing and able to utilise their remaining land in a profitable manner, but because of the title position, a lack of training and no access to finance they were unable to do so. If the Crown was serious about ameliorating Ngati Whatua’s increasingly impoverished condition this was a blueprint for action. As we shall see subsequent Crown actions in this regard proved half-heated and ineffective. 

CONSOLIDATION, LAND DEVELOPMENT AND NGATI WHATUA, 1920-1945

By the 1920s there was a clear and pressing need to remedy problems associated with title fragmentation (caused by decades of Land Court activity) and provide Maori with some form of land development assistance. Native Minister Apirana Ngata remarked in 1929 that the difficulties which had arisen

‘are not singular to this year or to the period of this government. They were there under the previous administrations. They are bound up with the general question of the ability of Native Land owners to discharge their liabilities in regard to local taxation and therefore with the wider of Native land titles and the financing of Maoris [sic] who take up farming’. 

Ngata’s aim was to alleviate these difficulties through the introduction of state development schemes for Maori land.  Ngata’s vision involved developing the land and the people and revitalising Maori communities. Control of lands would be handed over to the Maori Affairs Department, which would then manage a comprehensive scheme of development. Dairying was the favoured option, and it was envisaged that the owners, or at least some of them, would gain employment and necessary training. Once the land was developed a number of owners would then take up the dairy units and farm independently. The cost of development would be a charge on the land, to be repaid before the land reverted to Maori control. A necessary prerequisite was the consolidation of titles, but this proved almost insurmountable and was soon dropped. 

Ngati Whatua in south Kaipara reacted enthusiastically. But progress stalled in the mid-1930s, partly because of the depression, and partly because the Government focused its attention on other areas of the North Island where land development schemes could be more speedily implemented. These delays were a matter of grave concern to Ngati Whatua. The Consolidation Officer in Kaipara remarked on their eagerness for land development

‘The owners generally speaking are very anxious to come under development. They complain bitterly about the appellation of ‘gum land’ to their district, and rightly or wrongly are suffering from the feeling of neglect. They claim that everything in the way of development assistance “goes over their head to the North”. If the Department is in a position to handle this class of country, then the benefits to be gained by repatriating from public works and the slums of Auckland cannot be overestimated… Apart from the development aspect, survey assistance is the most pressing need in this district.

These are now a most united people determined to improve their position’. 

Despite Ngati Whatua expectations the south Kaipara scheme had little chance of success. Their land base had been so eroded over the preceding 100 years that insufficient good land remained. As a Crown Consolidation Officer involved with scheme administration later observed

‘This [Kaipara] scheme is peculiar in that the area per head of Maori population is smaller than in any other northern scheme, being about 11 acres per head. Consequently there is a greater difficulty to find a quid pro quo in spare land for awarding to Crown in settlement of charges (surveys, rates, etc) without encroaching unduly upon areas urgently required for their maintenance and betterment, the area of good land remaining being little – chiefly small village holdings. Selling in the past brought this position about, thus leaving with Natives now a residue barely sufficient. The major part of this residue is of poor value, being mostly gum lands not able to stand heavy charges. 

By 1938 the south Kaipara scheme was considered to be a failure and was abandoned by 1941. Ngati Whatua were simply left with their dwindling land base and scanty resources, disillusioned once again by the Government’s failure to fulfil its promises. The best Ngati Whatua could hope for now was to receive individual land development loans, but they remained crippled by the lack of land and resources. Meanwhile land titles continued to be shattered into a myriad of uneconomic shares. Only one Ngati Whatua individual in southern Kaipara (Mate Komene) succeeded in obtaining a Government loan. While Komene’s farm appears to have been profitable, his whanau was able to pay off their debt by 1951, it was small-scale with no scope for expansion due to the constricted land base. 

The Pouto people also initially welcomed a development scheme in their district because it promised to protect their remaining land and result in some improvement in their dreadful living conditions, which by this time approached third world standards. Once the scheme got under way a few new houses were built and there were some employment opportunities for local Ngati Whatua whanau. But the costs of development mounted and the Government refused to return the land to Ngati Whatua control until the debt had been paid off. This was not likely to happen soon, given that the quality of land included in the scheme was poor. As noted, land remaining in Ngati Whatua ownership by the end of the 1920s largely consisted of marginal blocks not desired by European settlers. 

At the inception of the scheme the focus had been on the development of Maori people. By the 1950s the whole exercise had turned into a bureaucratised debt-recovery programme. By the 1970s the Crown was the majority shareholder in the Pouto scheme, having obtained a 70% interest through purchase and compulsory acquisition of what were termed ‘uneconomic interests.’ 

While all this was going on the Crown continued to acquire Ngati Whatua land, including the large Puketapu block (7,420 acres) for sand dune reclamation purposes. The total price paid was £1,328/5/-. Ngati Whatua were encouraged to sell by promises of work on sand-dune reclamation and in proposed affforestation. The Crown also acquired the Araparera 1 block in 1930. 

WORLD WAR II AND BEYOND

Despite the fact that Ngati Whatua were virtually landless, the Crown kept on acquiring their remaining lands in the period immediately following the end of World War Two. Perhaps the most significant sale was the 1,000 acre Kakaraea block, which the Crown purchased for its Okahukura Farm Settlement Scheme in 1957. The block had been under a lease prior to the purchase and the block owners, most of whom lived in Auckland, simply did not have the resources to pay for the improvements, let alone develop the block for themselves. Part of the sale agreement required three nominated owners to be placed on the Crown’s Okahukura Scheme, but because of the lack of the qualified nominees only one was identified and the other two places went to Maori from other districts The total purchase price was £3,000. When divided between the 119 owners this equated to an average payment of a mere £25/4/- per owner. 

Little Ngati Whatua land was alienated in the period between 1960 and 1998. Only around 350 acres, either through land development debt recovery, public works takings or sale to private individuals. This is hardly surprising, considering the devastating land loss, with all its attendant consequences, which Ngati Whatua had experienced over the previous century and a half. By the end of the twentieth century Ngati Whatua had only one block of a relatively large size in its ownership – Otakanini, comprising some 7,133 acres. The vast majority of Ngati Whatua’s other lands had vanished. 

Ngati Whatua, in conformity with what they saw as their obligations to the Crown, had been represented in the Maori Pioneer Battalion which saw service in France in World War I. Ngati Whatua demonstrated their continued adherence to their alliance with the Crown once again in World War II, forming part of A Company, which comprised Maori from the Auckland and North Auckland districts.  The Maori Battalion covered itself in glory, and suffered disproportionate casualties. 

Ngati Whatua involvement in the war effort was not confined to enlistments in the Maori Battalion but was also manifested on the home front. The Native Department was by now largely regarded as an oppressive agency, out of step with Maori aspirations. It could not therefore act as an effective central organisation required to coordinate the Maori war effort. A new structure was proposed by the Maori members of Parliament, led by P. K. Paikea, the Ngati Whatua MHR for Northern Maori. 

Paikea wished to build on existing informal tribal structures and create a largely autonomous Maori-controlled organisation. In this way hoped to give Ngati Whatua and other Maori an opportunity to enhance their rangatiratanga and form a broader and more effective means of engaging with the Crown which would last into the post-war years.  In April 1943 Paikea told Cabinet that for his constituents and other Maori, the Maori War Effort Organisation (MWEO) was for his people and Maori in general 

‘the greatest thing that has happened… since the signing of the Treaty of Waitangi. They feel that in the organisation lies the future prosperity, development and happiness of the people…’. 

Paikea’s ideas met with broad support within the Government, and the MWEO was up and running by 1942.  Paikea took a leading role in the organisation until his death in 1943. The MWEO, organised on a tribal basis, made a very significant contribution to the war effort. Maori enlistment was encouraged, labour was directed to essential industries and land was put into full production. Maori became increasingly confident of their own abilities. Ngati Whatua were among those iwi who began to look forward to an extension of the MWEO and its activities into the post-war period in the manner envisaged by Paikea. 

The ongoing operation of an effective and largely independent vehicle for Maori in the post-war period, built on the foundation of the MWEO, which in turn was built on existing Maori tribal structures, was, however, strongly opposed by the Native Department, which feared a diminution of its power and influence, and was not favoured by Pakeha politicians who feared the growth of an independent Maori organisation.    

In 1945 the Maori Members of Parliament drafted a Maori Social and Economic Reconstruction Bill. It envisaged a new ‘Department of Maori Administration’ incorporating structures based on the MWEO. In this way autonomy would be largely retained, but with Government support and resources.  For Ngati Whatua such an organisation was consistent with their Treaty relationship and their deeper alliance with the Crown, and to them it was a legitimate and long-overdue expression of that relationship. 

The legislation which was ultimately passed, the Maori Social and Economic Advancement Act 1945, represented a highly diluted form of autonomy. It made no provision for Maori autonomy or control. It simply incorporated aspects of the MWEO into the structure of the Native Department. The MWEO was thus contained and integrated into the existing state apparatus. Assimilation, rather than autonomy, was to remain the prevailing ideology within the Government, just as it had for the preceding 100 years.  

THE MYERS COMMISSION, 1948

Repeated Maori protests throughout the nineteenth and twentieth centuries over the Crown’s taking of surplus lands, arising both from the pre-Treaty Old Land Claims and the pre-emptive waiver claims, led to the appointment of a Royal Commission of Inquiry in 1946. The Commission was chaired by retired Chief Justice Sir Michael Myers, and thus became known as the Myers Commission. The Ngati Porou soldier and statesman Anara (Arnold) Reedy, and long serving Member of Parliament for Coromandel, Albert Samuel, also sat on the Commission. The Commission was appointed in October 1946 but did not finally report its findings until December 1948.

The Commissioners adopted very different approaches to the matter of surplus land, but they agreed that Maori retained some equity in 87,582 acres arising from various old land claims, although this figure included only 16,427 acres of surplus land arising from the pre-emptive waiver claims. This total was much smaller than earlier estimates, including Bell’s national total of 205,000 acres, and was the result of the Commissioners’ incorrect and confusing analysis of the 1841 Land Claims Ordinance.  It also appears that the Commissioners relied on contemporary returns compiled by Lands and Survey officials which also greatly reduced the area of surplus. The officials apparently deducted surplus land subsequently alienated to the Crown in later purchases (a common occurrence, considering the uncertainties surrounding the waiver claims), and thus omitted or heavily reduced surplus land from the central and west Auckland areas. 

This considerable reduction in surplus land may also have been the result of the scant attention given by the Commissioners to the waiver claims. Reedy and Samuel did not comment on this type of claim in their report, although they did include waiver claims in the total acreage of surplus land in which they found Maori had a right in equity and good conscience. They also pointed out that FitzRoy had promised Maori, upon taking office in December 1843, that the Crown would return surplus land to its original Maori owners, and that the Government was bound by that promise.  

In a separate report, Myers – who did not mention FitzRoy’s promise of December 1843 – dismissed any Maori claim to surplus land arising from pre-emptive waiver claims, since in his opinion Maori had been paid for all of the land included in every claim, and thus had no claim on any difference between the area claimed or surveyed by, and the area granted to, the claimant.  Myers was thus either unaware of the nefarious practices which were a characteristic of the pre-emptive waiver process, or simply chose to ignore them. 

Despite this, Myers eventually included 16,427 acres of surplus land arising from the pre-emptive waiver claims in the total acreage in which he found Maori had a right in equity and good conscience. As Stirling has observed

‘This was due to some contorted reasoning related to Maori having, in Myers’ eyes, some right to the difference between the acreage estimated by pre-Treaty claimants in their deeds and the acreage actually contained within their claims. The pre-emptive waiver claims surplus was arbitrarily transposed over to this category of ‘excess’ land and was added to the 71,155 acres of surplus perceived to have arisen from pre-Treaty claims. 

The Commissioners also differed on the issue of compensation to be paid to those Maori with a claim to surplus land. Reedy and Samuel came up with a figure of £61,307 for all the surplus land, which included £11,498/18/- for the surplus arising from the pre-emptive waiver claims surplus. They based this figure on the Crown’s adoption of £1 per acre when dealing with claimants, and then reduced it to 14 shillings per acre as the compensation due to Maori, since their claim was deemed to be not a legal or a contractual one, but was rather ‘only’ based on equity and good conscience.  

Myers’ figure was significantly lower. His total figure for all of the Old Land Claims was only £9,476/6/9, of which only £1,026/13/9 related to surplus arising from the waiver claims. Myers reached this figure by relying on the average price paid for land by the pre-emptive waiver claimants, which was a meagre 1/3 per acre. Even Myers himself recognised that the final figure was low, and he was ‘prepared to add something to that amount by way of solatium [solace or consolation]’, and somewhat arbitrarily suggested that the final compensation figure be increased to £15,000.  

The Commissioners had ostensibly set out to resolve the deep-seated Maori grievances over the Crown’s surplus land policy in an ‘amicable’ manner. They stated

‘this is the first occasion in which a tribunal has been requested to decide the matter on the basis of equity and good conscience, and we consider that it would be to the honour of the Crown to have this long-standing dispute disposed of amicably, and so establish in the minds of the descendants of the parties alleged to have been injured that spirit of mutual confidence so necessary to the harmony of our national life’. 

An amicable settlement, at least as far as Ngati Whatua were concerned, certainly did not follow.

THE TAITOKERAU TRUST BOARD

The Myers Commission recommendations and compensation procedure were formalised in the 1953 Maori Purposes Act, which created the Taitokerau Trust Board to receive the compensation payment for all claims in Northland. However, Ngati Whatua and Te Uri O Hau had grave concerns over the Board’s establishment and refused to participate in it. At a meeting in March 1954 Ngati Whatua objected not only to the concept of a Trust Board, but to the settlement itself, deeming it to be highly unsatisfactory. Instead they continued to demand that their land be returned. Ngati Whatua had been particularly hard hit by the pre-emption waiver claims, losing not only their land in the flawed claims process but also the valuable urban and suburban tenths that had been promised. They were informed that the Crown had already alienated the surplus lands, making their return impossible. Ngati Whatua responded by stating they had petitioned Parliament on the matter, and they refused to join Trust Board. 

The Board was constituted, without Ngati Whatua participation, along tribal lines into seven districts, with a Ngati Whatua region comprising Waipoua, Tutamoe, Kaihu, Awakino, Tangowahine, Arapohue, Okahu, and Kopuru ridings of the Hobson County, and the Counties of Otamatea, Rodney, Waitemata and the City of Auckland. It was estimated that there were 5,000 acres of surplus lands in this region, but this is probably an underestimate. No member for the Ngati Whatua district had been appointed by the time of the first Board meeting, and by March 1956 the issue of Ngati Whatua representation on the Board was still outstanding. The Northern Maori MHR, Mr Paikea, who was of Ngati Whatua, was then asked to look into the matter. Paikea apparently called a meeting in order to resolve the problem, but nothing resulted from this.  Ngati Whatua dissatisfaction remained. The iwi remained without a representative on the Board until 1958, ten years after the Myers Commission, when Kemp Nathan was finally nominated to represent Ngati Whatua. 

The issue did not go away, and Ngati Whatua involvement with the Trust Board was half-hearted. In August 1958 Board member Tawai Kawiti raised this issue with Walter Nash, the Prime Minister and Minister of Maori Affairs. Kawiti noted that although Ngati Whatua had nominated a member, they continued to be unwilling participants in the Board. Nash advised Kawiti to persevere, as Ngati Whatua attitudes might soften over time.  The Government was committed to the Trust Board as the only avenue through which the surplus lands question would be dealt with, and there appears to have been no detailed consideration of Ngati Whatua protests. Their concerns were ignored, and the Board was simply instructed to continue on with its work with or without Ngati Whatua participation.

TE RUNANGA O NGATI WHATUA

Devolution

By the early-1980s the Department of Maori Affairs continued to be seen by many Maori as ‘paternalistic and anachronistic’, and ‘centralised, inefficient and unresponsive’. Its usefulness was increasingly questioned. A number of iwi sought to establish bodies through which more effective partnership arrangements with the Crown could be pursued. Many Maori argued for a devolution of the Department’s functions to iwi authorities which, free from Crown control, would deliver key services to iwi members. The need to prepare claims to the Waitangi Tribunal provided further impetus for the development of iwi organisations. This resulted in the strengthening or renewal of Runanga or other ‘federative’ tribal groupings which might assume greater responsibilities and assume greater autonomy.  

The ‘Maori loans affair’ resulted in a Commission of Inquiry into the Maori Affairs Department. The findings of the Commission further encouraged those who sought the demise of the Department. The Commission recommended a progressive transfer of community and economic development programmes to tribal authorities.  This was broadly consistent with Maori, and Ngati Whatua, ambitions. In June 1987 Cabinet agreed that in order to 

‘achieve a true partnership between the Government and the Maori people, there had to be devolution of responsibility to the Maori people themselves for the management of Government programmes’.  

The Labour Government then began to move towards devolution. Based on evolving Treaty principles, and what it understood to be ‘partnership’, it set out to develop officially-sanctioned iwi authorities which could assume the role of ‘partners’, although as Hill observes, as far as the Government was concerned they were to be ‘junior’ partners.  

Officials increasingly came to believe that Runanga operating at an iwi level would provide the best model. Management of service delivery, involving a significant number of social programmes, would be devolved to Runanga, and a whole new structure for iwi-government relations began to be created, overseen by the Iwi Transition Agency (ITA). This process was rapidly instituted. There was very little time to consider how extensive health, education and other programmes might effectively be transferred, or the level of resources and logistical support the Runanga might require. Many iwi authorities, including Te Runanga o Ngati Whatua, would soon find themselves  under-resourced and unable to effectively carry out the functions assigned to them.   

Legislative sanction for these changes was provided by the Runanga Iwi Act 1990, which provided a framework for devolution. The Act acknowledged ‘the enduring, traditional significance and importance of iwi’. Legally incorporated Runanga would become the administrative arm of the tribes. They were required to meet various criteria, including ‘authenticated boundaries’ and demonstrating that they possessed appropriate financial structures. But these organisations were not, as Hill observes, ‘governmental or jurisdictional authorities in their own right’. Instead the Runanga were to operate within narrow parameters, and would compete against one another to secure Government funding. Hill concludes that

‘Nine decades on from the Maori Councils, and despite the now limited utility of the official committee concept introduced in 1945, for some critics little seemed to have changed’.  

In many respects the Runanga had much in common with Grey’s New Institutions set up in 1861-1862 (see above), which had also envisaged a measure of local autonomy, but under Crown control and direction. In 1990, as in the early-1860s, power remained firmly in Crown hands.  These more recent Runanga were not, in a real sense, a manifestation of rangatiratanga. Nor did they represent a true partnership, at least as far as Ngati Whatua were concerned. The Runanga were required to observe strict operational and policy guidelines, and funding would only be forthcoming if they observed strict reporting, accountability and audit procedures.  This raised questions about whether the Runanga were to be accountable to their respective iwi or the Government. 

Nevertheless there was some optimism in Maori quarters, despite the restrictive aspects of the Act, and Ngati Whatua, who had agreed on the need for an iwi Runanga at a hui taumata as early as 1984, greeted these developments with some enthusiasm.  

The Maori Trust Boards Amendment Bill

The Government decided that Trust Boards, operating under the terms of the Maori Trust Boards Act 1955, were the appropriate iwi bodies. Section 24 of the Act permitted Trust Boards to apply funds for the promotion of health, social and economic welfare, education and vocational training, and ‘such other additional purposes as the Board from time to time determines’. This latter provision gave the Boards a wide scope.  Despite this the Act was in many respects restrictive, and Trust Boards were subject to a great deal of official scrutiny, oversight and control. 

Prior to the passage of the Iwi Runanga Act the Government moved to create Trust Boards in those areas where no such organisations existed. Although there were Trust Boards operating within the Ngati Whatua rohe there was no overarching iwi organisation which might assume responsibility for service delivery to the whole iwi. The Maori Trust Boards Amendment Bill, introduced into Parliament in 1988, provided for the establishment of five new Trust Boards, including a Ngati Whatua Board which was to be known as Te Runanga o Ngati Whatua (TRoNW).  

When introducing the Bill Minister of Maori Affairs K. T. Wetere said that it provided the necessary power for Maori organisations to enter into contracts and accept grants from Government agencies ‘for the purposes of programmes relating to employment, education, health, housing, and enterprise development’. This would ‘provide greater scope for the delivery of social programmes by the Government in partnership with Maori people and iwi’.  

‘the Bill is seen to return much of the historical responsibility to the iwi base of the Maori people. Maoridom will achieve increased autonomy in the determination of its own future programmes and priorities…’. 

As the Minister went on the explain, ‘the beneficiaries of the Runanga were be the descendants of Haumoewaarangi. A specific provision provided for the establishment of a council of elders known as Te Kauhanganui. Its principal task was to advise the Runanga ‘on all matters involving Ngati Whatua lore, and it will consist of kaumatua appointed by te Runanga after consultation with kaumatua’. The Bill also required that TRoNW consult 

‘with other tribal authorities within Ngati Whatua with the objective of bringing all of the assets of the people under a unified administration and reaffirming tribal identity, while maintaining local autonomy’. 

Restrictive features of the Maori Trust Boards Act 1955 did not, however, go unnoticed by Ngati Whatua, and they did not agree that the legislation reflected principles of partnership. In early-1988 iwi members demanded 

‘the removal of the requirement of prior Ministerial consent or approval in respect of sections 26, 27, 28 and 32(3) of the Maori Trust Board Act 1955. They see these provisions as outmoded and patronising…’.  

Moreover, while it was envisaged that TRoNW would represent all Ngati Whatua, the relationship between the Runanga and existing tribal structures was not defined. The expectation was that this relationship would be worked out through a process of consultation.  

Ultimately TRoNW was established by its own separate legislation, Te Runanga o Ngati Whatua Act 1988. Section 4(1) established a body corporate, which was a Maori Trust Board within the meaning of the Maori Trust Boards Act 1955, subject to the provisions of that Act. Section 4(2) defined the beneficiaries as descendants of Haumoewaarangi. The Runanga was to comprise eleven members (S5(1)), appointed by the Minister until such time as a beneficiary roll was compiled (s5(3)) and elections were held. Section 7 provided for the establishment of Te Kauhanganui. Section 6 dealt with the relationship between the Runanga and other Ngati Whatua organisations

 ‘In performing the functions conferred on it by section 24 of the Maori Trust Boards Act 1955, Te Runanga shall consult with other tribal authorities concerned with the administration of resources for the benefit of members of the Ngati Whatua tribe, with the objective of bringing the assets of the whole tribe under a unified administration, thereby reaffirming tribal identity, while still preserving local autonomy’.  

The National Government came into office in 1990. It opposed ‘separatism’, and quickly repealed the Iwi Runanga Act.  Henceforth service delivery to Maori was to be through what was termed ‘mainstreaming’.  Although iwi which chose to maintain legal corporate entities would be encouraged to participate in tendering processes, contracted service delivery would no longer, as Hill observes, be posited upon ‘a systematised incorporation of tribal authorities into the state system’. In effect this meant that TRoNW, and other Ngati Whatua organisations could, along with anyone else, tender for service delivery. A new Ministry of Maori Development, Te Puni Kokiri, was formed in 1992.  

An anomalous situation was thus created. The National Government had repealed the Runanga Iwi Act, but TRoNW remained in place under its own legislation, and remained the only legally sanctioned body representing the whole of Ngati Whatua. Despite this TRoNW was now required to compete with other Ngati Whatua bodies if it wished to involve itself in service delivery, and after the changes effected by National came into force there was little encouragement for other Ngati Whatua organisations to consult with the Runanga with a view to ‘bringing the assets of the whole tribe under a unified administration’. 

Te Runanga o Ngati Whatua

TRoNW was underfunded from the outset, and struggled to establish an administrative base which meant that it was unable to undertake crucial work.  Without the ad hoc support of the Maori Trustee and the ITA the Runanga would probably have collapsed almost at the point of its inception, despite the efforts of its Secretary, Tom Parore. In early-1991 Mr Parore complained that ‘the Runanga had virtually no funds to use on administration, and the money it did have was ‘for specific purposes… and must be used for those purposes only…’.    Later in 1991 the Runanga had no funds at all and its bank account was overdrawn.  Mr Parore informed the ITA in September 1991 that ‘we have now been left high and dry part way through the exercise’.  This made it, among other things, impossible to complete the roll of beneficiaries, which meant that there could be no elections, or carry out other administrative functions. A lack of computer equipment certainly did not help. Mr Parore also complained that the Runanga was receiving a disproportionately small share of the funds made available by Government for iwi authorities in the north – especially given the size of the iwi in comparison to others.  Moreover, MACCESS (Maori vocational training) and other programmes were being run by other iwi organisations within the rohe. 

The disbursement of funds to other Ngati Whatua organisations led to a claim to the Waitangi Tribunal (Wai 297), filed by T. A. Paki in July 1992. Mr Paki alleged that the Government, in providing MACCESS funding to other groups, was breaching Treaty principles.  Mr Paki informed the Waitangi Tribunal Registrar that the Government had continued to deliver MACCESS and MANA programmes 

‘intended for the whole of the Ngati Whatua iwi through the Orakei Maori Trust Board. Such organisation having been established to administer assets of the Orakei hapu of the iwi for the benefit of that hapu only’. 

This was despite repeated requests that programmes be delivered through the TRoNW.  As far as the present writers can tell this claim was not inquired into by the Tribunal. 

Meanwhile TRoNW tried to carry out what it saw as its key functions, many of which had  – notably – also been identified by the iwi in the latter nineteenth century at the Orakei and other paremata. The TRoNW Corporate Plan for 1990-1991 stated that the Runanga’s first priority was to uphold ‘te ‘Kotahitanga me te Tino Rangatiratanga o Ngati Whatua’.  It also sought to 

• build up the wealth of the iwi and encourage independence from Government

• preserve natural resources

• represent the iwi in dealings with Government, local bodies and other organisations

• maintain communications within the iwi

• promote and administer education, vocational training and MACCESS schemes

• promote cultural development, and the preservation of Ngati Whatua heritage

• provide health services

• improve housing

• support the establishment of marae, wananga and community development

• encourage the retention and sound management of land and natural resources 

• encourage land development

• retain full rights to traditional fisheries and develop aquaculture

• support iwi business ventures

• promote tourism in a manner which benefits the iwi.

Planning for all these things was, however not in an advanced state, principally because of a lack of funding and support. 

Despite major setbacks TRoNW has continued to operate and achieved some success. It has been heavily involved in the delivery of education services in particular, and submitted a major claim to the Waitangi Tribunal (Wai 303). The overarching iwi-wide nature of this claim reflects the role of TRoNW as the only body representing all of Ngati Whatua. 

There have also been challenges to the TRoNW mandate. In 1989 the Manukau Maori Trust Board filed a Treaty claim challenging the Runanga’s right to speak for the iwi in respect of claims to south Auckland surplus railway lands. It was claimed that the Runanga was defunct and had lost the support of the people. This claim was aired before the Tribunal during its 1992 inquiry into surplus railway lands in south Auckland. 

The Tribunal observed, on the basis of its own independent research, that TRoNW was constituted under the Te Runanga o Ngati Whatua Act 1988 ‘for the express purpose of representing the wider tribe’.  Moreover, the Claimants (the Manukau Maori Trust Board) had produced little ‘corroborative’ evidence that the Runanga was not operating properly, or was largely defunct and had lost support. In a rejoinder to these claims Runanga counsel Mr Rapata made submissions to the Tribunal in which he

‘reviewed the trials, tribulations, successes and progress in the establishment of this large Runanga. Mr Parore, Secretary, outlined the works that had been done and the extensive consultations that had been effected, whilst certain elders and leaders… spoke at length on the extent of consultation and the ground-swell of general Ngati Whatua support… Mr Rapata and the Runanga challenged the right of the Manukau Trust Board… to represent Ngati Whatua at all’. 

The Tribunal found that ‘On the evidence it was obvious that the greater support by far, and the greater competence in leadership was vested in the Runanga’.  The Tribunal concluded that the Crown would not be acting contrary to the Treaty if, in its disposal of railway assets, it agreed terms with a number of iwi groups, including the Runanga. 

Summary

Developments at the turn of the century encouraged Ngati Whatua to believe that they would finally be permitted to achieve a degree of autonomy and control of their lands, and they were persuaded to abandon the Kotahitanga movement, hitherto perhaps the most effective vehicle for their aspirations, on this understanding. But both the Maori Councils Act and the Maori Land Administration Act ultimately proved disappointing. The narrowly focused Maori Councils Act did not satisfy Ngati Whatua political desires, while the Maori Land Administration Act was soon reworked to suit settler interests. By 1909 protective mechanisms had been stripped away, and land purchase recommenced in spite of the recommendations of the Stout/Ngata Commission. 

Government attempts in the late-1920s and early 1930s to introduce consolidation and land development schemes were also singularly unsuccessful. Ngati Whatua’s land base was by this time simply too small for the development schemes to work effectively. The net result of the schemes was that land was taken out of Ngati Whatua control, sometimes for a considerable period. 

The Government eventually abandoned the schemes without providing Ngati Whatua with any alternative means of improving their position. At the same time the Crown continued to acquire Ngati Whatua land, and carried on doing so up until 1960, even though it was aware that Ngati Whatua were in danger of becoming completely landless.

Ngati Whatua made an effective contribution during World War II. The highly successful MWEO showed what Maori could do when they were fully supported, and this organisation was seen by Ngati Whatua and other Maori as the basis of a post-war structure which would address vital economic and social issues. But just as it had always done, the Crown subverted and stymied it. Assimilation and control of Maori remained the dominant Crown ethos. 

Ngati Whatua failed to gain a satisfactory resolution of the grievances concerning surplus lands through the Myers Commission, and the Taitokerau Trust Board did not provide them with an effective avenue through which to seek further remedies, or express their long-held and legitimate political aspirations. 

The disestablishment of the old Maori Affairs Department in the late-1980s and the devolution of many of its service delivery functions to iwi organisations held out a further promise that Ngati Whatua might achieve some significant autonomy within their rohe. TRoNW was established as an overarching Ngati Whatua iwi authority, and was expected to take over a significant degree of service delivery to iwi members. 

TRoNW was, however, constituted as a Trust Board under the Maori Trust Boards Act 1955. This Act was in many respects restrictive, and TRoNW was not able to exercise any independent authority in its own right. A lack of funding and support severely limited the effectiveness of TRoNW in its early years. 

In 1991 the National Government repealed the Iwi Runanga Act and introduced ‘mainstreaming’, but the Te Runanga o Ngati Whatua Act remained in place. In many respects TRoNW found itself in something of a legal ‘limbo’. It remained the only statutorily recognised body representing the whole of Ngati Whatua, but now competed with other Ngati Whatua organisations for service delivery contracts. An opportunity to achieve Ngati Whatua Kotahitanga – a key aim of the Runanga – was once again deferred. 

Nevertheless, TRoNW has had some successes. It is heavily involved in the delivery of educational and other services to iwi members, and more recently it filed the Ngati Whatua iwi-wide Wai 303 claim. 

TABLES

(All tables are taken from Walzl, T. Ngati Whatua Iwi Overview. 2008). 

PRE-EMPTIVE WAIVER CERTIFICATES ISSUED FOR NGATI WHATUA LANDS MARCH-OCTOBER 1844

PC No. OLC No. Claimant Claim Vendors Price

(£) Area

(Acres)

14 1074 Other Epsom Ngati Whatua 80 64

20 1079 Wilcox Remuera Ngati Whatua 4 4

22 1081 Henry Maungakiekie Ngati Whatua 593 1,400

23 1035 Lang Remuera Ngati Whatua 8 4

24 1086 Jackson Onehunga Ngati Whatua 2 163

25, 33, 47 1088 Robinson Remuera Ngati Whatua 51 124

36 1056 Dilworth Remuera Waikato 107 107

38 1101 Beveridge Mt Roskill Ngati Whatua 64 123

39 1262 Magee Onehunga Ngati Whatua 20 50

40 1105 Robinson Epsom Ngati Whatua 20 37

44 1111 Lorrigan Maungakiekie Ngati Whatua 13 70

49 1115 O’Keefe

Donoghue Mt Roskill Ngati Whatua 15 87

56 1120 Ring Mt Roskill Ngati Whatua 46 123

Totals £1,023 2,356

PRE-EMPTIVE WAIVER TRANSACTIONS, AUCKLAND 

West Auckland

OLC

No. Date Claimant Purchase

Price Surveyed 

Acres Acres

Granted Acres to Crown Payment or (Compensation)

114910 Jan 1845Alice Porter£1536432340

1150-4 No Deed Porter Family Goods 3,922 0 3,594 (270)

1227-84 Mar 1845R. ThomsonGoods3,3981,1442,254

1251 24 Mar 1845 Robinson/Hart £10 310 0 310 (27)

1326 No Deed Henderson

/McFarlaneSchooner17,7845,00012,784

Totals £25 25,778 6,467 18,982 £(297)

Mt. Roskill

OLC

No. Date Claimant Purchase

Price Surveyed 

Acres Acres

Granted Acres to Crown Payment or (Compensation)

1099 ? Donovan – 167 167 0 54

1099 – Donovan £35 85 83 2 28

1101-3 21 Jun 1844 Beveridge £64 124 123 0 54

1115 20 Jul 1844 Keefe/Donahue £15 86 77 11 38

1120 16 Sep 1844 Ring – 34 34 0 15

1121 28 Jan 1845 Ring £46 93 86 6 29

1184-5 23 Dec 1844 Hill £25 386 342 44 87

1189 3 Jan 1845 Power £5 64 57 7 19

1200-1 6 Jan 1845 Ring £30 178 178 0 58

1208 14 Jan 1845 Atkins £92 1,109 0 1,109 (161)

Totals £312 2,326 1,147 1,179 £221

Onehunga

OLC

No. Date Claimant Purchase

Price Surveyed 

Acres Acres

Granted Acres to Crown Payment or (Compensation)

1086 7 May 1844 Jackson Goods 163 2 161 (82)

1096 14 Jan 1845 P. Donovan £15 122 0 122 (50)

1104 24 Jun 1844 J. Magee £20 51 0 51 0

1124 14 Oct 1844 G. Ormsby £27 114 5 109 1

1182 23 Dec 1844 Hart £80 156 0 156 (111)

1246 10 Mar 1845 B. Smith £62 66 5 60 (66)

1262 13 May 1845 J. Magee No Deed 35 0 35 (210)

1289 24 Oct 1845 P. Forbes £8 9 1 8 (13)

Totals £212 724 14 709 £(541)

Maungakiekie

OLC

No. Date Claimant Purchase

Price Surveyed 

Acres Acres

Granted Acres to Crown Payment or (Compensation)

1074 20 Apr 1844 Other £42 64 50 14 27

1081-4 10 May 1844 Henry £593 1,400 695 705 225

1105 29 Jun 1844 Robinson £20 38 37 0 21

1111 16 Jul 1844 Lorrigan £13 72 70 2 38

1129 23 Oct 1844 Watt £10 271 236 34 59

1148 5 Dec 1844 Goddard £9 13 13 0 4

1176-8 23 Dec 1844 Lundon £10 124 123 1 40

Totals £697 1.982 1,205 756 £414

Remuera

OLC

No. Date Claimant Purchase

Price Surveyed 

Acres Acres

Granted Acres to Crown Payment or (Compensation)

1079 7 May 1844 Wilcox £4 4 4 0 2

1085 10 May 44 Lang £8 4 4 0 2

1088-92 20 May 1844 Robinson Goods 128 124 3 49

1134 5 Dec 1844 Graham £14 64 64 0 21

1135 5 Dec 1844 Cleghorn £20 218 100 118 32

1202 14 Jan 1845 McCann £48 41 41 0 13

1282 24 Sep 1845 Stone No Deed 20 0 20 0

Totals £94 479 337 141 £119

Ellerslie

OLC

No. Date Claimant Purchase

Price Surveyed 

Acres Acres

Granted Acres to Crown Payment or (Compensation)

1093 6 Jan 1845 Robinson £16 166 0 165 50

1213 14 Jan 1845 Cretnay £80 242 214 28 55

1277 30 Jul 1845 Moffitt £69 510 351 158 90

Totals £165 918 565 351 £195

Otahuhu/Mount Smart

OLC

No. Date Claimant Purchase

Price Surveyed 

Acres Acres

Granted Acres to Crown Payment or (Compensation)

1191-2 3 Jan 1845 Williams £50 789 253 536 63

1256 13 May 1845 Jackson £10 479 479 0 156

1284 13 Jun 1845 Imlay £138 4069 500 3,069 125

Totals £198 5337 1,232 3,605 £469

North Shore

OLC

No. Date Claimant Purchase

Price Surveyed 

Acres Acres

Granted Acres to Crown Payment or (Compensation)

Totals Several £1,040 16,578 7,389 24,935 £3,259

GRAND

TOTAL £2,743 54,122 18,356 50,658 £3,839

LAND TRANSFERRED BY NGATI WHATUA BETWEEN 1848 AND 1853

Southern Kaipara

Deed

No. Date Block Names Purchase

Price Area

-Kaipakau–

139 21 Oct 1851 Pukeharakeke No.1 £30 No Survey (estimated 3,400 a.)

21 Oct 1851Waikoukou£60No Survey (estimated 1,320 a.)

25 May 1852Pukeharakeke No.2£60No Survey

226 15 Apr 1853 Papakoura £30 No Survey

North Shore

Deed

No. Date Block Names Purchase

Price Area

-Kaipakau–

215 30 Mar 1848 Hanakora £10 No Survey

216 30 Mar 1848 Kariripaua £15 No Survey

223 26 Nov 1851 Te Rarawaru £25 No Survey

195 10 Dec 1851 Pukekohe £6 No Survey

196 27 Dec 1851 Pukekauere £10 No Survey

224 19 Apr 1852 Berry’s Claim £8 10s No Survey

227 2 Jun 1853 Waipareira £50 No Survey (estimated 600 a.)

142 1 Jul 1853 Te Kauri £10 No Survey (estimated 500 a.)

143 1 Jul 1853 Kaiakeake £10 No Survey (estimated 600 a.)

1 Aug 1853Kumeu£100No Survey (estimated 2,800 a.)

1 Aug 1853Mangatoetoe  -No Survey (estimated 4,480 a.)

198 7 Nov 1853 Mahurangi £30 No Survey

Central Auckland

Deed

No. Date Block Names Purchase

Price Area

213 21 Dec 1847 Te Tiki No.1 £11 10s 200 a.

214 21 Dec 1847 Te Tiki No.2 £53 As Above

  – 30 Oct 1848 Te Tiki £15 100 a.

262 2 Aug 1849 Rarotonga (Mt Smart No.1) £10 250 a.

263 Aug 1851 Mt. Smart No.2 £15 250 a.

220 19 Aug 1851 Ohinerau £150 250 a.

231a 21 Oct 1853 Ohinerau No.2 £100 50 a.

West Auckland

Deed

No. Date Block Names Purchase

Price Area

217 12 Jun 1848 Whau Portage £23 800 a.

  – Aug 1848 Nihotopu £2 –    

260 Oct 1848 Pukeatua £30 1,200 a.

261 16 Nov 1848 Titirangi £270 3,000 a.

222 15 Nov 1851 Matakaraka £20 960 a.

280 10 Nov 1853 Hikurangi £1,100 57,141 a.

TOTALS£2,254(estimated) 77,901 a.

CROWN LAND PURCHASES IN NORTHERN AND SOUTHERN KAIPARA, 1854-1860

Northern Kaipara

Deed

No. Date Block Names Purchase

Price Area

Dec 1854Tokatoka£3004,000 a.

26 May 1855Ruarangi£70035,000 a.

Nov 1856Waikiekie£40012,000 a.

1857Okahu

24 Mar 1857Tatarariki£35012,000 a.

Feb 1858Te Ika a Ranganui£5008,128 a.

Mar 1858Matakohe£200068,000 a.

Dec 1858Paparoa£500 14s15,021 a.

1859Arapohue

1859Pukekaroro£422 18s8,400 a.

Southern Kaipara

Deed

No. Date Block Names Purchase

Price Area

8 Dec 1858Kaukapakapa North (or East)£5005,787 a.

24 Mar 1859Kaukapakapa South (or West)£3005,223 a.

1859Waikeriawera£50012,738 a.

TOTAL 1854-1860 Northern & Southern Kapara £5,172 186,297 a.

Northern Kaipara

Deed

No. Date Block Names Purchase

Price Area

24 Dec 1860Te Kuri£62213,220 a.

27/31 Dec1860Oruapo£442 2s8,842 a.

27 Jan 1860Oruawharo£50030,000 a.

1862Piroa£5009,200 a.

1862Whakapirau

1862Opau

1862Mangaturoto£511 2s6,815 a.

22 Jul 1862Tapapahuakaroro Res.£1090 a.

22 Jul 1862Otiaho Res. (2 thirds)£35 11s474 a.

6 May1864Mareretu [Maraeretu]£2062 10s27,500 a.

TOTAL £4,682 77,841 a.

Southern Kaipara

Deed

No. Date Block Names Purchase

Price Area

5 Jan 1860Kaukapakapa (Te Keene’s Reserve)£15 (estimate) 30 a.

6 Jan 1860Whakatiwai (Te Otene’s Reserve)£27(estimate) 200 a.

24 Aug 1860Mairetahi£297 10s5,950 a.

21 Dec 1860Waioneke£1,03020,600 a.

19 Nov 1861Okaka£138 16s1,851 a.

28 Nov 1861Whiritoa£116 17s1,558 a.

10 Dec 1861Ti Pare Reserve£7 10s54 a.

10 Dec 1861Waiharekeke Reserve£7 10s81 a.

26 Jun 1862Atiu Reserve£2 15s37 a.

24 Jul 1862Waiherunga£2162,884 a

16 Sep 1862Otai Reserve£2 14s36 a.

203 29 Sep 1862 Komokoriki No.1 £3500 35,395 a.

204 4 Nov 1862 Komokoriki No.2 £39 10s 395 a.

22 Nov 1862Te Karae Reserve£324 a.

26 Nov 1862Matewhero£6855,480 a.

14 Feb 1863Ararimu£14337,165 a.

31 Jul 1863Kaikai£334 10s2,230 a.

5 Aug 1863Roketahi£101 5s810 a.

183 20 Jan 1864 Pukeatua £3,550 23,800 a.

26 Jun 1865Waitangi£762 15s4,039 a.

TOTAL £12,264 112,619 a.

North Shore

Deed

No. Date Block Names Purchase

Price Area

12 22 Jul 1862 Te Weiti £20 No Survey

37 19 Sep 1862 Mahakirau No.1 £100 1,800 a.

38 3 Oct 1862 Mahakirau No.2 £100 As above

29 30 Jan 1864 Te Weiti, Pukekohe & Pukekauere £550 No Survey

TOTAL £770 1,800 a.

GRAND TOTAL £17,716 192,260 a.

CROWN PURCHASES MAHURANGI/TAMAKI 1854-1865

Mahurangi

Deed

No. Date Block Names Purchase

Price Area

35 21 Jun 1854 Parekakau £100 1,710 a.

22 Jun 1854Ahuroa/Kourawhero£80014,867 a.

200 22 Jun 1854 Wainui £800 13,300 a.

36 22 Jan 1855 Wainui £200 As above

North Shore

Deed

No. Date Block Names Purchase

Price Area

241 31 Dec 1856 Onewhero £25 172 a.

243 24 Oct 1857 Waiparaheka £25 88 a.

Central Auckland

Deed

No. Date Block Names Purchase

Price Area

234 17 Mar 1854 Pukapuka No.1 £270 100 a.

235 23 Mar 1854 Pukapuka No.2 £500 150 a.

  – 3 Feb 1855 Remuera £2,000 470 a.

TOTAL Mahurangi & Tamaki £4,720 30,857 a.

SELECTED BIBLIOGRAPHY

Adams, P.  Fatal Necessity: British Intervention in New Zealand, 1830-1847. Auckland. 1977.

Alemann, M. Early Land Transactions in the Ngati Whatua Tribal Area. MA Thesis, University of Auckland, 1992.

Alexander, D. Consolidation, Development and Public Works Takings in Southern Kaipara. A Report Commissioned by the Crown Forestry Rental Trust. January, 1999.

Armstrong, D. and Walzl, T. Overview of Crown Policy with Respect to Endowments and Expenditure on Maori, 1840-1860. Crown Law Office, 1989.

Armstrong, D. and Stirling, B.  Surplus Lands, Policy and Practice: 1840-1950. Crown Law Office. 1995.

Armstrong, D.  Te Uri O Hau and the Crown. November, 1996.

Armstrong, D. and Subasic, E. Northern Land and Politics, 1860-1910, An Overview Report prepared for the Crown Forestry Rental Trust. June, 2007.

Belich, J.  Making Peoples. Auckland. 1996.

Campbell, J. L.  Poenamo: Sketches of the Early Days in New Zealand: Romance and Reality of Antipodean Life in the Infancy of a New Colony. Christchurch. 1952.

Daamen, R. The Crown’s Right of Pre-emption and FitzRoy’s Waiver Purchases. Waitangi Tribunal Rangahaua Whanui Series. Wellington. 1998.

Dalton, B. J.   War and Politics in New Zealand, 1855-1870.  Sydney. 1967.

Fenton, F. D. Important Judgments Delivered in the Compensation Court and Native Land Court. 1866-1879.

FitzRoy, R.  Remarks on New Zealand. London. 1846.

Hill, R.  Autonomy and Authority: Rangatiratanga and the Crown in Twentieth Century New Zealand. Wellington. March, 2000.

Hill, R. State Authority, Indigenous Autonomy: Crown-Maori Relations in New Zealand/Aotearoa 1900-1950. 2004.

Hill, R. Maori and the State. Crown-Maori Relations in New Zealand/Aotearoa, 1950-2000. 2009

Hutton, J. L.  A Ready and Quick Method: The Alienation of Maori Land by Sales to the Crown and Private Individuals, 1905-1930. Twentieth Century Maori Land Administration Programme, Crown Forestry Rental Trust. May, 1996.

Kawharu, M. Te Tiriti and its Northern Context. An Overview Report Commissioned by the Crown Forestry Rental Trust. 2008.

Loveridge, D. The Origins of the Native Lands Acts and Native Land Court in New Zealand. October,  2000.

Loveridge, D. Ngati Whatua and the Crown – The First Quarter Century: An Appraisal of the Wyatt Report. Crown Law Office. April, 2001.

Lady Martin. Our Maoris. London. 1884

Murdoch, G. Te Kawerau A Maki and the Crown in Kaipara: A Traditional/Historical Report. 2000.

O’Malley, V. Northland Crown Purchases, 1840-1865. A Report Commissioned by the Crown Forestry Rental Trust. July, 2006.

O’Malley, V and Armstrong, D. The Beating Heart. A Political and Socio-Economic History of Te Arawa. 2008.

O’Malley, V. and Robertson, S.  Muriwhenua Land and Politics, 1862-1909. A Report Commissioned by the Crown Forestry Rental Trust. September, 1997.

Orange, C.  The Treaty of Waitangi. Wellington. 1987.

Philips, J. R.  A Social History of Auckland, 1840-1853.  MA Thesis, University of Auckland. 1966.

Reed, A. W. Auckland: The City of the Seas. Wellington. 1955.

Rigby, B. The Crown, Maori and Mahurangi, 1840-1881. August, 1998.

Sheffield, C. Men Came Voyaging. Auckland. 1963.

Small, F. The Socio-Economic Consequences of Land Loss for Ngati Whatua of Southern Kaipara. A Report Commissioned by the Crown Forestry Rental Trust. October, 1999.

Smith, S. P. The Peopling of the North: Notes on Ancient Maori History of the Northern Peninsula and Sketches of the History of the Ngati Whatua Tribe of Kaipara. Wellington. 1897

Smith, S. P. Maori Wars of the Nineteenth Century. Christchurch. 1910.

Sorenson, M. P. K. ‘The Maori People and the City of Auckland’. Te Ao Hou. No. 27, June, 1959.

Stirling, B.  The Lands of Te Uri O Hau O Te Wahapu O Kaipara – Volume One, The Nineteenth Century. November, 1996.

Stirling, B. Ngati Whatua and the Crown, 1864-1900. December, 1998.

Stirling, B. Ngati Whatua’s North Shore Lands, 1840-1865. January, 2002.

Stirling, B. Ngati Whatua o Orakei and the Crown, 1840-1865. February, 2002.

B. Stirling and R. Towers. ‘Not With The Sword But With The Pen’: The Taking of the Northland Old Land Claims’. Parts 1-2. July, 2007.

Stone, R. C. J.  James Dilworth. Auckland. 1995.

Terry, C. New Zealand, its Advantages and Prospects. London. 1842.

Thomas, P. The Crown and Maori in the Northern Wairoa, 1840-1865. April, 1999.

Thompson, T. J.  British Government Policy and New Zealand’s Ethnic Relations: Sir George Grey’s First Governorship, 1845-1853. MA Thesis. Victoria University of Wellington. 1993.

Tuhaere, P. The Ancestors of the Ngati Whatua Tribe. Auckland City Libraries. NZMS 725, 1-11.

Waitangi Tribunal  Orakei Report. Wellington, 1987.

Waitangi Tribunal. Report on South Auckland Railway Lands. 1992. 

Waitangi Tribunal Te Roroa Report. Wellington, 1992.

Waitangi Tribunal. Ngai Tahu Report. Wellington. 1992.

Waitangi Tribunal. Muriwhenua Land Report. Wellington, 1997.

Waitangi Tribunal. Turanga Tangata Turanga Whenua. The Report on the Turanganui A Kiwa Claims (2 vols). 2004. 

Waitangi Tribunal. The Kaipara Report. Wellington, 2006.

Waitangi Tribunal. Te Tau Ihu o te Waka a Maui. Report on Northern South Island Claims. 2008.

Ward, A.  A Show of Justice: Racial ‘Amalgamation in Nineteenth Century New Zealand. Canberra, 1974.

Ward, A. Supplementary Historical Report on Central Auckland Lands. Crown Congress Joint Working Party. 1992.

Ward, A.  National Overview. Waitangi Tribunal Rangahaua Whanui Series. Wellington, 1997.

Williams, J.  Politics of the New Zealand Maori: Protest and Co-operation, 1891-1909. Auckland, 1969.

Wyatt, P.  Ngati Whatua o Kaipara Ki Te Tonga and the Crown, 1840-1869. Crown Forestry Rental Trust, 1998.

Archives New Zealand – Relating to the Establishment of Te Runanga o Ngati Whatua. 

Archives New Zealand-Auckland

BBDL 1030 2639/a 30/6/12/5. Iwi Authorities (Taitokerau) – Ngati Whatua. 1986-1990. 

BBCZ 5056 25/b 2205-3 Pt. 3. Ngati Whatua. 1990.

BBCZ 5056 25/c 2205-3 Pt. 2. Ngati Whatua. 1990. 

BBCZ 5056 25/e 2205-3 Pt. 1. Ngati Whatua. 1990. 

BBCZ 5056 19/f 3402-1. Te Runanga o Ngati Whatua – General. 1992.

BBCZ 5056 19/g 3402-0. Te Runanga o Ngati Whatua – Policy. 1992. 

BBCZ 5061 4/b T9. Te Runanga o Ngati Whatua. 1988-1989. 

BBCZ 5020 9/b. Correspondence – ITA Auckland, ITA HO. 1990. 

BBCZ 5020 38/a. Runanga o Ngati Whatua Corporate Plan. 1990. 

BBCZ 5020 38/b. Te Runanga o Ngati Whatua Trust Board. 1990-1991. 

BBCZ 5020 38/e. Runanga o Ngati Whatua Charter Part I  – Draft. 1990. 

Archives New Zealand-Wellington

ABJZ 869 w4644 66 26/3 Pt. 1. Trust Boards – Te Runanga o Ngati Whatua – General. 1987-1991. 

ABJZ 869 w4644 66 26/3/2 Pt. 1. Trust Boards – Te Runanga o Ngati Whatua – Members. 1989-19993. 

ANNOTATED BIBLIOGRAPHY OF MAIN SOURCES

Given that this is a summary overview report a number of research reports dealing with specific issues or land blocks are not included in the following annotated bibliography. Rather, we have included reports which focus or touch on the overarching issues which form the focus of this report. 

Alemann, M. The Mangawhai Forest Claim. nd. 

Provides a general overview of issues relating to the Mangawhai Forest Claim. Examines Crown purchases and the issues arising, including the question of reserves and tenths, as well as issues related to the Native Land Court. Not based on extensive primary research. A useful introduction. Later expanded to become an MA thesis. 

Alemann, M. Early Land Transactions in the Ngati Whatua Tribal Area. MA Thesis, University of Auckland, 1992. 

A good source relating to early land transactions between Ngati Whatua and the Crown, which expands on Alemann’s earlier work. Includes an excellent discussion of the Mahurangi purchase. 

Alexander, D. Land Dealings in Waipoua 2. Crown Law Office. nd. 

Prepared in connection with Te Roroa claims. Provides a chronological and comprehensive account of land dealings in Waipoua 2 and subsequent subdivisions. Much of the detail is specific to Waipoua (Te Roroa) land. 

Alexander, D. Consolidation, Development and Public Works Takings in Southern Kaipara, A Report Commissioned by the Crown Forestry Rental Trust. January, 1999.

Considers some of the most critical land issues facing Ngati Whatua in the twentieth century, including consolidation, land development schemes and public works takings. A very well researched report from a researcher renowned for his grasp of detail and comprehensive coverage.

Anderson, R. Nga Hapu o Whangarei and Lands in the Stage Three Kaipara District. nd.

Outlines historical issues relating to customary relationships in the Whangarei district. The focus is on Te Parawhau and the Crown in the nineteenth century, including Crown purchasing and the Native Land Court. A useful background paper, but the focus on Te Parawhau renders it of limited utility for Ngati Whatua. 

Armstrong, D. Te Uri O Hau and the Crown, 1860-1960. November, 1996. 

Prepared in connection with Te Uri O Hau claims. Describes the political relationship between Te Uri O Hau and the Crown – and issues such as Crown purchasing, the Native Land Court, the Pouto development scheme, the social and economic consequences of land loss and Te Uri O Hau/Ngati Whatua responses. Based largely on primary research. It represents one of the first and seminal attempts to link Maori social and political marginalisation with land loss. This theme has been taken up and significantly developed in claimant research in this and other districts since 1996. 

Armstrong, D and Subasic, E. Northern Land and Politics, 1860-1910. June. 2007. 

Prepared as a part of the CFRT Northland Research Programme. A lengthy and detailed report covering five northern hearing districts. Provides a comprehensive account of the political relationship between Northern Maori and the Crown, and discusses the impact of the Native Land Court and land purchase. It develops important themes and context which shed much light on the political relationship between Ngati Whatua and the Crown in the second half of the nineteenth century, and deals with relevant land and other issues in Mahurangi, Wairoa and Kaipara.  

Belgrave, M. Auckland: Counting the Hectares: Quantifying Maori Land Loss in the Auckland District, 1865-1908. Waitangi Tribunal Rangahaua Whanui Series. July, 1997.

Quantifies the extent of land passing through the Court and land purchases. Well researched and detailed, this report will no doubt be a key document in the claim settlement negotiations context. 

Belgrave, M, Young, G, and Deason, A. Tikapa Moana and Auckland’s Tribal Cross Currents. Commissioned by the Hauraki Maori Trust Board and the Marutuahu Confederation. April,  2006.

The report provides support for Ngati Paoa, Ngati Maru, Ngati Whanaunga, Ngati Tamatera and Ngai Tai interests in Auckland. It was an influential source in the Tribunal’s Tamaki Makaurau Settlement Process hearings. 

Bennion, T. Overview Report on the Kapehu Blocks Rating Claim. June, 2000.

Outlines specific issues relating to the Kapehu block. Good discussion of rating, which is applicable to other blocks.

Brown, N. Te Waiariki/Ngati Korora Iwi Hapu and the Crown in the Northern Kaipara: A Traditional Report.  September 2000.

‘Traditional history report’ which considers the rights and interests of Te Waiariki in the Kaipara hearing district, especially in Mangawhai.

Clough, R. An Archaeological Assessment of Northern Kaipara, A Report Prepared for the Otamatea Maori Trust Board. May, 1996. 

Short report discussing the nature and distribution of archaeological sites in the northern Kaipara, with some recommendations for archaeological management. May be useful in discussions surrounding sites of significance.

Colquhoun, D. The Waipoua-Maunganui Claim. Waitangi Tribunal. June, 1989. 

A good and soundly researched report describing the alienation of Te Roroa lands in the 1870s. A good description of the way in which Crown land purchase agents operated. Lacks some of the broader contextual discussion which characterises later reports. 

Daamen, R, Hamer, P. and Rigby, B.Auckland. Tribunal Rangahaua Whanui Series. July, 1996.

The report provides a broad outline of key historical issues in the Auckland/Northland region, including land purchase and the operations of the Native Land Court. Sections of the report are directly relevant to Kaipara. An excellent introduction to many key issues. 

Daamen, R. The Crown’s Right of Pre-emption and FitzRoy’s Waiver Purchases. Waitangi Tribunal Rangahaua Whanui Series. August, 1998.

The report outlines the policy adopted by the Governor FitzRoy in 1844. This issue is of particular relevance to Ngati Whatua, considering that they were the iwi whose lands were most directly effected. A very sound report which has formed the basis of much subsequent discussion of these issues. 

Ferguson, G. Ngai Tai ki Tamaki within the Hauraki Inquiry. A Report Commissioned by Ngai Tai ki Tamaki. February, 2002.

Presents an overview of the effects of Crown actions on Ngai Tai ki Tamaki rights, with a strong focus on the East Wairoa confiscation block, Urungahauhau, Mataitai and other lands east of the Wairoa river, and Waiheke and other offshore islands within the inquiry area.

Goldstone, P. Maori Population in the Kaipara, 1840-1920. Crown Law Office. January, 2001.

Provides an outline of demographic trends in Kaipara and Auckland during the nineteenth and early twentieth century. Should be read in conjunction with Ian Pool’s demographic work prepared in connection with other claims, particularly Hawke’s Bay and the CNI, which provide a more rounded and nuanced picture. 

Goldstone, P. A History of the Woodhill-Helensville Sand-dune Reclamation Scheme and the Woodhill State Forest. Crown Law Office. January, 2001. 

Outlines the history of the Woodhill forest from the commencement of sand dune reclamation in 1920 to the management of the forest by Carter Holt Harvey under a Crown Forestry licence. Seeks to rebut some of the conclusions advanced by claimant researchers (principally Stirling). Includes a detailed discussion of wahi tapu issues in and around the forest which challenges aspects of claimant evidence. 

Harrison, N. Te Uri O Hau (Otamatea) and the Crown, 1840-1996. January, 1997. Describes Te Uri O Hau’s (Otamatea) relationship with the Crown in the nineteenth and twentieth centuries, which resulted in considerable land loss, economic decline and political and social marginalisation and deprivation. Not based on extensive primary research, and should be read in conjunction with Armstrong’s 1996 report Te Uri O Hau and the Crown (see above). 

Henare, M, Petrie, H and Puckey, A. Northern Tribal Landscape Overview (Hokianga, Whangaroa, Bay of Islands, Whangarei, Mahurangi and Gulf Islands). November, 2008. 

Prepared in connection with the CFRT Northland Research Programme. Provides a general overview of the ‘tribal landscape’ in Northland in the pre-contact and post- contact periods. The report is primarily concerned with Ngapuhi, although there is a section on Ngati Whatua ‘traditional history’,  as well as numerous references to Ngati Whatua within the main body of the report.

Hooker, G. Maori, the Crown and the Northern Wairoa District – a Te Roroa Perspective.  March 2000.

Covers the traditional history of the area from a Te Roroa perspective, as well as the involvement of the Crown in the alienation of several blocks in the area and the impact of the Native Land Court. 

Horan, M. Pre-emption Waiver Investigations, 1844-1848. Office of Treaty Settlements. October, 2004.

A quantitative analysis of the Crown’s pre-emption waivers, confirming the  significant impact of these for Ngati Whatua, and that they were the iwi most effected.

Jackson, M. The Archaeology of Pouto, 1996. 

A description of the history of archaeology on the Pouto peninsula. Prepared in connection with Te Uri O Hau claims. May be useful in discussions surrounding sites of significance. 

Jackson, M. A Report on Desecration of Taonga by Andreas Reischek in Northern Kaipara-Wairoa. November, 1996. 

Describes desecration of wahi tapu and the fate of stolen taonga and koiwi. Useful in any discussion about the Crown’s failure to protect wahi tapu. Prepared in connection with Te Uri O Hau claims. 

Johnson, R. The Northern War 1844-1846. July, 2006.

Prepared in connection with the CFRT Northland Research Programme. Describes the war between various Ngapuhi groups under the leadership of Hone Heke and Kawiti and British forces and their Ngapuhi allies in 1845-1846, as well as the causes of the war and the immediate aftermath. The focus is strongly on Ngapuhi, although there are brief references to Ngati Whatua perspectives on the conflict, and reference to some Te Roroa siding with Hone Heke during the fighting.

Kawharu, M. Te Tiriti and its Northern Context. 2008.

Prepared in connection with the CFRT Northland Research Programme. Considers the significance of the Treaty for Northland Maori in the 100 or so years after 1840 within the context of an ongoing Northland Maori effort to maintain and exercise their rangatiratanga. Provides some international context relating to British Treaty-making with indigenous peoples. The report considers Ngati Whatua perspectives in relation to the Treaty, and also discusses Ngati Whatua political initiatives and movements in the second half of the 19th century – particularly the Kohimarama Conference and the Orakei, Waitangi and Kotahitanga Maori parliaments.

Loveridge, D.The Origins of the Native Lands Acts and Native Land Court in New Zealand. Crown Law Office. October, 2000.

An influential report by a highly experienced and respected Crown historian. It reflects the Crown’s perspective. Has been ‘recycled’ through a number of inquiries. Tends to be taken seriously by the Waitangi Tribunal, perhaps because it forms the only available thoroughly researched report dealing in detail with this broad subject. It provides information and background on Crown policy development, culminating in the Native Land Acts and the establishment of the Native Land Court. There is a short section on the operation of the first Native Land Court, sitting under the 1862 Act, in Kaipara. Loveridge attempts to exculpate the Crown (at times unconvincingly), emphasising that the Native Land Acts were well intentioned. There is, however, a lack of any discussion of the Maori response to the Court which gives the report a rather skewed look. Will most likely remain influential in the absence of a similarly well-researched claimant report. 

Loveridge, D. Ngati Whatua and the Crown – the First Quarter-Century: An Appraisal of the Wyatt Report. Crown Law Office. April, 2001. 

A surprisingly aggressive and lengthy response to Philippa Wyatt’s report prepared in connection with South Kaipara claims (see below). It main purpose is to undermine the ‘alliance’ argument promoted by Wyatt; namely, that Ngati Whatua’s gift of land for the new capital in September 1840 imposed a layer of special and particular obligations on the Crown, in addition to those imposed by the Treaty itself. Loveridge’s report is important as it defines the Crown’s likely view of the early relationship between Ngati Whatua and the Crown in any claim settlement negotiations. The Kaipara Tribunal, which heard the Wyatt evidence, rejected the ‘alliance’ analysis, but in an inadequate and unsatisfactory way. This issue will most likely be a major cause of contention in Ngati Whatua settlement negotiations. 

Loveridge, D and Goldstone, P. Selected Statistics for the Auckland/Kaipara Region, 1840-1870. Crown Law Office. April, 2001. 

Tabulation of the major statistics relating to the demographic and economic trends in the Auckland and Kaipara region in the period between 1840-1870. Intended, inter alia, to support conclusions drawn by Loveridge in his rebuttal of Wyatt (see above). 

McCormack, F. Parore Te Awha: A Discussion of Social Complexity in the Northern Kaipara. Te Runanga o Ngati Whatua. August, 2000. 

Discusses the complexities of whakapapa and customary rights and interests in the northern Kaipara district with reference to Parore Te Awha.

Melvin, M. Te Keti Block History. July, 1997.

The report examines the history of the ownership of Te Keti blocks, documenting alienation occurring through the Native Land Court, Tokerau Maori Land Board, and Public Works Acts.

Murdoch, G. Te Kawerau A Maki and the Crown in Kaipara. March, 2000. 

A Te Kawerau A Maki traditional history, setting out their associations with the Auckland, Waitakere and Kaipara districts, and their subsequent relationship with the Crown. Cogent report by a respected Kawerau expert. It has been, and will continue to be, influential. 

O’Malley, V. Northland Crown Purchases, 1840-1865. July, 2006.

Prepared in connection with the CFRT Northland Research Programme. Provides a detailed analysis of Crown land purchase policy and its implementation during the pre-emption period and its impact on northern Maori. The sections dealing with Crown purchases in the Mahurangi and Whangarei districts contain very useful material relating to Ngati Whatua, building on and broadening the analysis provided by Rigby and others (see below).

O’Malley, V and Hutton, J. The Nature and Extent of Contact and Adaptation in Northland, c. 1769-1840. April, 2007.      

Prepared in connection with the CFRT Northland Research Programme. Assesses the political, social, economic and cultural impact of explorers, whalers, traders, Crown officials and missionaries in the north in the period from Cook’s first arrival in to the signing of the Treaty of Waitangi. There is little material explicitly relating to Ngati Whatua, although there are a few brief and anecdotal examples of contact from the 1820s and 1830s. Nevertheless, the conclusion drawn – that colonisation is a two-way process which does not in itself necessarily result in the subjugation of the indigenous –  can be equally applied to Ngati Whatua. 

Rigby, B. The Crown, Maori, and Mahurangi 1840-1881. Waitangi Tribunal. August, 1998.

Provides a good and accessible overview of Mahurangi land dealings. The Ngati Whatua role in these transactions is discussed in detail, and the report also includes a brief discussion of the extent of Maori land ownership in Mahurangi at the time of writing (1998).

Ross, K. The 1854 Mangawhai Crown Purchase. June, 2000. 

The report considers the 1854 Mangawhai purchase and subsequent outcomes for the Maori vendors in the light of promises made by the Crown, including ‘tenths’ provisions in the deed. Takes a  Ngati Wai perspective.

Small, F. Twentieth Century Blocks in the Ngati Whatua Southern Kaipara Rohe. December, 1998. 

Prepared in connection with south Kaipara claims. The report provides block histories and wider context relating to the impact of the Native Land Court. A well researched and detailed report. 

Small. F. The Socio-economic Consequences of Land Loss for Ngati Whatua of Southern Kaipara from 1900. October, 1999.

Prepared in connection with south Kaipara claims. The report deals with critical social and economic issues confronting Ngati Whatua in the twentieth century within the context of ongoing land loss and increasing marginalisation. The report also considers the continued pressure on the remaining land base and issues around employment, education and health. A well researched and detailed report. 

Stirling, B. The Lands of Te Uri O Hau o Te Wahapu o Kaipara, Volume One, the Nineteenth Century. November, 1996.

Prepared in connection with Te Uri O Hau claims. Detailed report describing the Crown’s acquisition of Te Uri O Hau lands in the nineteenth century, placing alienations within a wider political and socio-economic context. The report also considers the role and impact of the Native Land Court in the district. This latter themes was to be further developed by Stirling in a further series of important reports (see below). 

Stirling, B. The Lands of Te Uri O Hau o Te Wahapu o Kaipara, Volume Three, Pouto No. 2, Twentieth Century Block Histories. November, 1996.

Prepared in connection with Te Uri O Hau claims. Block histories of Pouto subdivisions during the twentieth century. Very detailed. 

Stirling, B. Ngati Whatua and the Crown, 1864-1900. December 1998.

A key report prepared in connection with south Kaipara claims describing the relationship between Ngati Whatua and the Crown in the crucial Native Land Court period. The report considers political and socio-economic developments, as well as the impact of the Native Land Court and the continued land loss for Ngati Whatua. Extremely well researched. Established Stirling as the doyen of Ngati Whatua and Kaipara research. 

Stirling, B, Ngati Whatua Native Land Court Block Histories, 1864-1900. December, 1998. 

Prepared in connection with south Kaipara claims. Detailed block south Kaipara histories during the Native Land Court period. Very detailed and comprehensive. 

Stirling, B. Ngati Whatua’s North Shore Lands, 1840-1865. Ngati Whatua o Orakei Corporate. January, 2002.

Key report considering the nature of Crown land acquisition of Ngati Whatua lands on the North Shore, focusing on faulty processes set up by the Crown which resulted in the total alienation of Ngati Whatua’s lands in the region by 1864. The report does not deal with the wider political and socio-economic context, since they are traversed in a companion volume, Ngati Whatua o Orakei and the Crown, 1840-1865 (see below). 

Stirling, B. Ngati Whatua o Orakei and the Crown, 1840-1865. Ngati Whatua o Orakei Corporate. February, 2002.

Another key Stirling report. Provides an overview of the relationship between Ngati Whatua and Crown in the Auckland area up until the start of the New Zealand wars, refining and further developing the ‘alliance’ argument first put forward by Philippa Wyatt. Considers the political and economic aspects of the relationship, and evaluates the impact of the massive land loss experienced by Ngati Whatua during this period through Crown purchasing, and surplus lands policy arising out of pre-Treaty land claims and pre-emptive waivers. Contains a wealth of useful material.

Stirling, B and Towers, R. ”Not With The Sword But With The Pen”: The Taking of the Northland Old Land Claims (2 parts). July, 2007.

A massive three-volume, two-part report prepared in connection with the CFRT Northland Research Programme. A tour de force. Traverses the history of old land claims and pre-emption waiver claims in Northland. Part 1 provides an historical overview, particularly in relation to the Crown’s taking of surplus lands, and as such is pertinent to Ngati Whatua claims. There is also some discussion relating to Ngati Whatua in part 1, primarily in the chapter of pre-emption waiver claims and the Myers Commission. 

Part 2 contains case studies, most of which are not relevant to Ngati Whatua, although there is some discussion of pre-emption waiver transactions involving Ngati Whatua, as well as a summary and tabulation of transactions in the Mahurangi district. Contains an amazing level of detail, and powerful and compelling conclusions. 

Thomas, P. The Crown and Maori in the Northern Wairoa, 1840-1865. April, 1999.

Describes the relationship between Maori, the Crown and settlers in the Northern Wairoa region prior to the Native Land Court period. Traverses land transactions up to 1865 – including pre-Treaty transactions and Crown purchases, and underlying Maori motivations and expectations. The strongest part of the report deals with the Mangakahia war, in particular the Crown’s failure to properly investigate the nature and extent of customary rights which caused it.

Walzl, T. Land Issues Within the Otamatea Area, 1839-1950. April, 1997. 

Prepared in connection with Te Uri O Hau (Otamatea) claims. Provides an overview of land dealings in the Otamatea area from pre-Treaty transactions right up to the 1950s. Provides useful insights. 

Walzl, T. Ngati Whatua: Iwi Overview. March, 2008. 

Attempts to summarise (and reproduces) much detail already provided in a number of the more important research reports (principally Stirling, Wyatt and Small). Identifies the need for further analysis in respect of some key issues (especially Wyatt’s ‘alliance’ thesis), but provides little new thinking on these issues. 

Watson, G. Te Taou and the Crown in the Southern Kaipara. October, 2000. 

Provides a Te Tao U perspective of Kaipara history and tribal relationships, as well as an analysis of  Crown acts and omissions which prejudicially affected the iwi.

Webb, L. The Manukau Whanau of Ngati Whatua and the Crown in Kaipara. May, 2000.

Discusses issues relevant to the descendants of the rangatira Manukau, particularly focusing on land dealings and the role of the Native Land Court.

Wyatt, P. Ngati Whatua o Kaipara ki te Tonga and the Crown, 1840-1869. 1998.

A key and highly influential report prepared in connection with south Kaipara claims, in which Wyatt provides a detailed and compelling description and analysis of the evolving relations between Ngati Whatua and the Crown. Concludes that Ngati Whatua, through their gift of land for the new capital in 1840, established a relationship with the Crown which imposed a range of additional duties and obligations on the latter. Provoked a strong Crown response, in the form of Loveridge’s report (see above), and was not accepted by the Kaipara Tribunal, whose analysis was superficial. Wyatt’s thesis remains valid.