Te Roroa Claim

03 Nga Whenua Rahui (Reserves)

3.2 What Land was Reserved from Sale

KOUTU (AT KAWERUA)

3.2.1 Koutu was the traditional canoe landing place in the vicinity of the tauranga (channel) which comes ashore on the southern end of Kawerua. Literally Koutu means promontory or point of land (C7:att 2.11).

The claimants have stated that the Crown omitted to ensure that an approximately four acre area was in fact reserved and remained under the unrestricted control of Te Roroa; further, that the Crown omitted to provide legal mechanisms capable of recognising Te Roroa tribal title to the Koutu reserve (A1(i):41). We have already seen how early attempts to have Koutu reserved as a trust for Te Roroa and possible model for preserving mana whenua over a larger area of land foundered in 1872 and how no further action was taken to execute a declaration of trust before the sale of Waipoua No 1 block (see above, pp 42-43).{FNREF:0-86472-088-2:3.2.1:6}

The next round of activity by Crown officials was provoked by an inquiry from an Auckland solicitor, Peter Oliphant, on behalf of a client, George Wyatt, storekeeper of Kawerua, to the undersecretary, native office, 8 July 1884 (H60:13). Wyatt had taken an eight year lease from the trustees, but, on making inquiries at the registrar's office in Auckland, could find no trace of a certificate of title. The certificate was in the Crown Law Office and was assigned to the chief judge to report upon the case and advise "what action if any should be taken" (H60:13).

On 21 August 1884, Chief Judge Macdonald recommended that either a fresh application for investigation of title be sent in or the case be taken up from the moment Judge Maning verbally declared "Te Roroa" tribe to be owners (B16:15-18).{FNREF:0-86472-088-2:3.2.1:7}

Ballance approved a fresh application but thought it would be better if the chief judge disclosed the situation to Oliphant in person rather than by letter (B16:12, 14).

An application to the court from Tiopira Rehi and another for an investigation of title was notified for hearing at Rawene on 12 March 1885. The court sat but as nobody appeared the application was dismissed (B16:4, 8-9). These initial delays may have been a result of plans to establish a township to service the gum industry in the area, for in 1888, a surveyor, J I Philips, was sent to Kawerua to survey a series of sections on Crown land surrounding the Koutu reserve. His instructions from the chief surveyor have not been located. The Crown researcher suspected that "he was required to make sure that the sections he surveyed did not encroach on the Koutu Reserve, thus requiring him to carry out sufficient survey measurements to define the reserve" (E12:1). Philips's survey plan (ML 2193A) was on a larger scale than Campbell's 1871 plan. The south-eastern corner of 28 perches was cut off and marked "taken for road". The total acreage was therefore shown as 3 acres 2 roods 32 perches (E12:doc 1). Yet in the Maori Land Court register Koutu was still entered as 3 acres 3 roods 20 perches (B16:50).

The fourth statement of claim particularises the action of the Crown in 1887 in compulsorily taking without compensation, under s96 Native Land Court Act 1886, 28 perches of the Koutu reserve for roading purposes (A1(i):41). The Crown researcher believed that the most likely explanation was that the area was already occupied by a road and that the land was defined as legal road to acknowledge an existing use. He pointed out that the status of such land at the time was covered by s96 Native Land Court Act 1886, which did not provide for any compensation to be payable. The grounds for this, he believed, were "that the owners of the Native land would receive the benefits of having a road over their land, and the value of their remaining lands would increase accordingly" (E12:2-3).

The claimants objected to this compulsory taking of land on the grounds that:

(a) The land has been used for private not public purposes;

(b) Te Roroa gardens on the area were taken in breach of s94 Native Land Court Act 1886 under which maara, urupa, etc were excluded; and

(c) The compulsory taking of the land was in clear breach of the claimants' rights under article 2 of the Treaty, that is, the principle of tino rangatiratanga (C12(a):11).

The Crown found no evidence that the road reserve was occupied by maara (food gardens) (E12:3).

The claimants believed that the old Kawerua hotel was located on the Koutu reserve. The Crown researcher was unable to provide a definitive answer from the historical evidence and recommended that the boundaries be resurveyed. The surveyor located two of Philips' 1887 survey pegs. Department of Survey and Land Information Whangarei, plan 844-A2, 10 April 1990, showed that the hotel building was not located on the reserve (E12:doc 6). Nevertheless the Crown and the claimants were unable to agree on the original location of the boundaries.

Tiopira Rehi (Kinaki) died in 1887 and on 28 February 1894 Rewiri Tiopira applied to the Native Land Court to be appointed as "new trustee to Tiopira in Koutu Reserve" (C7:att 2.5; C12(a):10). Apparently he was advised to make another application to ascertain who the proper owners were under s14(10) of the 1894 Native Land Court Act conferring jurisdiction over native trusts on the Native Land Court.{FNREF:0-86472-088-2:3.2.1:8}

In accordance with the chief judge's recommendations, an order-in-council conferring jurisdiction on the Native Land Court in respect of the Koutu block was approved and gazetted on 16 July 1895 (B16:5-7; C7:att 2.6). Rewiri Tiopira, Tiopira Rehi (deceased) and Peneti Pana were notified on 22 July (B16:5).

A court sitting was held at Rawene on 6 April 1897 before Judge J A Wilson and assessor Karaka Kereru Tarawhiti (B16:42). Hapakuku Moetara was sworn and asked that he and others of Te Roroa might be included in the title. The trustees, Tiopira Rehi and Peneti Pana were of Te Roroa and "owners of this land with the rest of us". Tiopira Rehi was dead. Rewiri Tiopira was his successor. The case was adjourned "to enable the interests to produce a list of the persons interested and the shares of the same" (B16:46).

When the hearing resumed the following day, Hapakuku Moetara handed in a list of 12 persons entitled to the land which was read and, as there was no objection, passed. The court ordered the certificate of title for the land, dated 28 June 1871, be excised and a Crown grant be issued to 12 persons sharing the land equally. These were Hapakuku Moetara, Wiremu Rangatira (Moetara), Iehu (Moetara) Hapakuku, Raniora Te Rore, Peneti Pana, Rewiri Tiopira, Hone Tuoro, Hohaia Paniora, Matene Naera, Ahenata Rewiri, Te Rore Taoho, Wiremu Tuwhare. As Rewiri Tiopira had died on 7 August 1896 (D1:25), Hapakuku Moetara claimed for his sister Hiria Tiopira. There being no objections an order was made (B16:46-48).

The certificate of title was dated 26 July 1872 (B16:42).{FNREF:0-86472-088-2:3.2.1:9} A clause was added stating "that the land be inalienable by sale only" (ibid).

The claimants alleged that there was an apparent discrepancy between the assumption underlying the 1897 court order that a trust existed, and the registrar's report to the chief judge, 17 June 1895, that "there is no information in this office to show that the declaration of Trust was ever executed". From this it was concluded that: "Consequent upon this hearing twelve individuals were named as beneficial owners under the said non-existent Trust" (C7:att 2.6).

The court order was worded as follows:

Upon enquiry made into ... the existence (if any) of an intended trust it appearing such a trust do exist. (B16:42)

The claimants further argued that a number of objections could be taken to the court order. In his original application Rewiri Tiopira merely sought to be appointed as "a new trustee", but in his letter of 18 June 1895, he specifically asked for a s14(10) Native Land Court Act 1894 inquiry which clearly were not his "own unprompted words" (C12(a):10). After his death, his application was taken over by Hapakuku Moetara who simply asked that he and others be included in the title. It seemed self-evident to the claimants that the application was for new trustees, whereas under the Act they were absolute owners.

It was submitted that "Maori failed to understand the Pakeha distinction between trustee and beneficial ownership and did not perceive a grievance" and that this was further evidenced by the 1904 and 1911 applications for succession in Koutu reserve (C31:3).

In our view, the claim that Koutu reserve had always been recognised as a hapu communal estate held under kaitiaki (trustee) ownership (C31:3) needs to be re-assessed in the light of Waipoua No 2 alienations which are examined in the next section of this report. These indicate that by 1895, Rewiri Tiopira and Hapakuku Moetara were well aware that those named on the title were in law absolute owners; as do subsequent applications for succession orders to those named on the title for Koutu which were not heard.{FNREF:0-86472-088-2:3.2.1:10}

The claimants claim that administrative and legal confusion and irregularities occurred in the Crown's dealings from the outset also needs some re-assessment. The question of title to Koutu had been left in abeyance for some years when Rewiri Tiopira applied to the court to succeed his father. It seems to us that he was clearing up his father's affairs and was rather nervous about Koutu. Leaving successions in abeyance was a means of preventing its alienation by absolute owners entered on the title by the court.

It was further claimed that the Crown's prime motive for bringing the matter to court was to "facilitate the alienation of the Waipoua block" (C7:att 2.6). We found no evidence of this. Rather it was the court system of awarding the title to ten persons who in law became absolute owners, that was to generally facilitate the purchase of Waipoua No 2 (see below, Take 4).

More administrative and legal confusion with respect to the Koutu reserve resulted from Ata Paniora's requests of 21 November 1944 to the registrar of the Native Department for a tracing of the Rahui Tauranga o Kawerua showing the boundaries and the area, and if there were trustees appointed, for a list of their names. He was advised that a 6s search fee was required and sent off a 10s note as he did not have access to a post office. On 17 January 1945 he was sent a list of the 12 names set out in the 1897 court order as beneficial owners and the three who succeeded Hone Tuoro, plus a receipt for 10s (B16:60-64; C12(a):10). The list was headed, "Trustees appointed by a meeting held in the Waimamaku hui house for the Kawerua Landing Reserve" (C12(a):10).

On 16 April 1945, Daniel Mackie, on behalf of Piipi Tiopira, requested from the registrar full details on the ownership of Kawerua Landing Reserve, known as Koutu, and whether Tiopira Kinaki (Rehi) had any rights in the said block, and was requested to send the 6s fee. On 15 May 1945, he was advised that:

it may be wise now for the descendents [sic] of the owners appointed by the Court on the 6th April, 1897, to make application under Section 5 of the Native Purposes Act, 1937 to have this land set apart as a Native Reservation. (B16:57){FNREF:0-86472-088-2:3.2.1:11}

At a meeting held in the "Waimamaku hui house", trustees were appointed. Dan Mackie handed in the list to the court on 28 June 1945 (B16:55). The claimants identified the appointees as "representatives of the families of the several deceased individuals" whose names were listed in the same order that had been set in 1897. This, they said, would seem "to indicate the importance of Koutu to the people" (C7:att 2.8). Nearly two years elapsed before the registrar recommended that the "Best course seems to file and await further action to be initiated".{FNREF:0-86472-088-2:3.2.1:12}

In this regard, one of the claimants, Alex Nathan, stated:

It may [be] argued that due process was not adhered to by our people .... However, nothing that would indicate that this was communicated to our people has been found .... The tone of the appendments conveys a sense of at best ineptness and at worst conspiracy or cover up .... [As a result of the] failure to register Trustees appointed by the people; the convoluted manner in which officials conducted the Crown[']s actions and the responses given .... Koutu does not have any Trustees to this day and its status is unclear. (C7:att 2.9)

We do not accept the conspiracy claim. Rather it was for the descendants of the deceased to bring the matter back to court. Had they really wanted to do something about Koutu they could have.

On 24 June 1949, the conservator of forests wrote to the director of forestry recommending that section one, Koutu be purchased. The forest service had already acquired sections two to four from the Trounson estate, and the director-general of lands and survey was promptly requested to arrange the purchase of Koutu on its behalf.

The commissioner of Crown lands discussed the proposed purchase with the deputy undersecretary of Maori affairs who stated:

the land is held in trustee ownership under Order No. 6497 which was made under the provisions of subsection 10 of Section 14 of the Native Land [Court] Act, 1894 .... this land is regarded as a Wahi-tapu area ... [he was] extremely doubtful if it would be possible to acquire the land .... if the Maoris were prepared to sell, the cost of taking the necessary action to purchase would prove much too expensive and far beyond the true value of the area. (B16:65; C12(a):10-11)

On 1 February 1950, the director-general of lands and survey recommended that no further action be taken to purchase the 3 acres 2 roods 32 perches, apparently overlooking the existence of the road reserve of 28 perches.

The Kawerua area was gazetted permanent state forest in 1950. The claimants alleged that "from this point on it would appear that the NZFS assumed control of Koutu and the surrounding area" (C7:att 2.9). The boundaries of Koutu reserve were demarcated by forest service staff in 1952 and the conservator of forests in Auckland sought approval from his head office to lease the old Kawerua hotel buildings to the Auckland University Field Club in 1966. After confirmation that the building was within state forest, it was leased at a pepper corn rent for a full term of 33 years, should the lessee so desire. The lessee was to be responsible for maintenance (E12:3-4 & docs 3-5).

Of the original Hotel, gum store, and post office that stood here [at Kawerua] only the hotel building remains. Today the coastal area is administered by DoC and the pines by Timberlands. (B26:2)

In response to a question raised at the tribunal hearing, a witness for the Department of Conservation admitted that the coastal walkway from the Hokianga harbour to the Kai Iwi lakes, opened after the passing of the New Zealand Walkways Act 1975, passed over the Koutu reserve near Kawerua. The formal line of the walkway was between the mean low and high water marks on adjoining Crown land. The area adjacent to the mean high water mark, where the walkway would pass at high tide in this area, was a rocky outcrop that was not ideal for a walkway. For this reason walkway marker posts were placed along a previously formed path or roadway to provide an alternative more pleasant route for walkway users. When the Department of Conservation placed the walkway markers across the Koutu reserve, the precise location of the reserve was not known. It had not been taken into consideration that this alternative (unofficial) route was passing over private or Maori land. No consultation or permission was sought from the trustee responsible for the management or administration of the reserve. In closing their evidence, the Department of Conservation witness gave an undertaking that if the existence of the walkway within the reserve was unacceptable to the claimants, then the department would have the walkway markers removed and the alternative route relocated outside the reserve (E25).

WAIPOUA NO 2 (WAIPOUA NATIVE RESERVE)

3.2.2 (a) Waipoua as it was.

According to the late E D Nathan:

Waipoua is so named after the poua, a large sized pipi that tastes like a toheroa. The Waipoua River entrance had rock formations, was navigable, and abounded with paua, kutae, kina, poua, pipi, and all the popular species of fish.

In early times the river flowed directly out to sea along the northern foothills of the valley ....

Pahinui pa was the main fortification for the people of the Waipoua River valley defending them from attacks from the eastern and seaward approaches. Tirakohua, the high point opposite Pahinui, was the sentinel for the western and south-western approaches .... [it] was not strategically defendable and became a permanent look-out point, and on occasions a semi-permanent kainga .....

Manumanu .... settled in Waipoua, in a place named Whenuahou (new land) .... It is from [his son] Manumanu (II) that the name Te Roroa originates.{FNREF:0-86472-088-2:3.2.2:13}

According to an archaeologist, Michael Taylor:

Traditional Maori accounts place occupation of the Waipoua area back 27 generations or about 1000 years ... and archaeological evidence supports these traditional accounts of a long Maori presence in the forest .... There are strong Te Roroa traditions of settlement in the Waipoua valley, at Waikara and elsewhere on the No. 2 Block and there is widespread evidence of this including the remains of kainga, pa, gardens and a variety of less frequent sites, many of which have known Maori histories ....

During the more recent history of Waipoua, settlement has been located at what was generally known as Tiopira's settlement .... The centre of this settlement is the location of the modern Pahinui Marae. (B2:4)

Along the Waipoua river on either side were fertile river flats of varying width, suitable for cultivation. South of the river and inland was a kauri gum field. People living at Waipoua were isolated from European contact but highly mobile. They camped seasonally at the beach and moved to Waimamaku and the Kaihu valley to participate in the timber and gum trades. The 1878 census recorded only 11 Te Roroa living at Waipoua but 97 at Waimamaku (B1:5).

According to tribal historian, Garry Hooker, Te Roroa oral tradition is "fairly clear" that the original intention of the tupuna was that this ancient, ancestral land:

with its myriad of pas, kaingas, urupas, wahitapu, food gathering places and paths, be set aside as a papa kainga, a village settlement, for the people. (C12:9)

The landscape was "encrusted with the wahitapu, deeds and mana of generation after generation of tupuna" and formed "an inextricable part of the very fibre of existence of the tangata whenua" (A12:1). "Tradition records that Te Roroa's tupuna have resided there for a millenium .... Archaeological evidence ... supports this tradition ..." (I1(c):20).

In a personal communication to Garry Hooker, the late Piipi Tiopira (Cummins) said:

Te Roroa wished to have the Crown as a buffer against their Nga Puhi enemies and for that reason were encouraged by the Crown's Land Purchase Officers to sell to the Crown all the land surrounding their settlement, Waipoua 2 Block... (C12:5)

This block was, in fact, "an enclave completely surrounded on three sides by Waipoua 1 Block and on the fourth side by the Tasman Sea" (C12:5).

(b) The identification of Waipoua No 2.

We have seen how Waipoua No 2 block first came into existence when it was surveyed by the Wilsons, who were commissioned and instructed by Tiopira Kinaki. We have also seen how it was designated Waipoua Native Reserve on the Wilsons' plan of Waipoua block, ML 3277A, in May 1875, and on Smith's compiled plan, ML 3277. The total acreage shown on the Wilsons' plan was 12,153 acres and on Smith's plan, 12,220 acres. Yet Waipoua No 2 was not a native reserve in terms of the 1873 Native Land Act and 1873 Native Reserves Act. Rather it was Maori land outside the blocks that Tiopira Kinaki and Parore Te Awha sold to the Crown.

Neither the memorial of ownership for Waipoua No 2 nor the memorials of ownership for Waipoua No 1 and Maunganui showed Waipoua No 2 as a native reserve (A4:452-458(j)). However it was designated Waipoua Native Reserve on Weetman's check survey of part of Waimamaku and Waipoua blocks, 25 January 1876 (D2:7); also on the deed of sale, 5 February 1876, for Waipoua No 1 (A5:721(a)-721(d)). In the Kaipara minute book it was referred to as a native reserve (A12:1).

The claimants argued that at no time did the Native Land Court investigate the title to Waipoua No 2 block (C12:9). The only reason Waipoua No 2 block came before the Kaipara court and was the subject of a court order for a memorial of ownership was that it was part of the voluntary agreement of 2 February 1876 between Tiopira Kinaki and Parore Te Awha concerning the ownership of Maunganui-Waipoua. It was "the piece outside Waipoua" which Parore Te Awha wrote to Tiopira Kinaki was "to be for you only". Thereafter it was commonly spoken of as "Tiopira's reserve". "It was on that basis-and on that basis alone", the claimants submitted, "that the Roroa kaumatua in 1876 collectively consented to the sale to the Crown of the adjoining Waipoua 1 Block, the Waipoua Forest" (A12:1). In the opinion of counsel for the claimants, this voluntary agreement was the legal condition of the Maunganui-Waipoua sale.

We have seen that the memorial of ownership for Waipoua No 2 listed the ten names given to the court by Tiopira Kinaki. With regard to the ten names, Garry Hooker stated in his evidence:

The claimants say ... that they clearly were trustees .....

... The Maori Land Court order of 3/2/1876 respecting the Reserve was "in favour of Tiopira Kinaki's party." (Kaipara Minute Book 3 p 174). The claimants say that this amounted to an order in favour of Te Roroa, it already having been agreed by the other Ngati Whatua hapus that they would share in the proceeds of sale of Waipoua 1 and Maunganui Blocks, but not the Reserve. The claimants also say that it is ridiculous to suppose that such a famous fighting hapu as Te Roroa ever consisted of only ten persons and that the inescapable conclusion is that those ten held as trustees. (C12:10)

In clarification of this submission, the claimants further stated:

The Order of the Court is misleading in referring to three of the 10 owners, viz Hapakuku Moetara, Wiremu Moetara and Peneti Pana as being other than Te Roroa .... the Moetaras and Peneti Pana were entitled to be on the Order because they were of Te Roroa.

...neither Hapakuku Moetara nor Peneti Pana claimed other than as Te Roroa in the Maunganui/Waipoua 1 minutes of evidence ... and ... Waipoua 2 Block was part of the same tribal estate ....

... The 10 trustees were not of equal standing nor did they have equal rights through ancestral occupation ....

It is not possible to think of the 10 as heads of whanau as this was a concept only applied by the Maori Land Court in the defining of relative beneficial interests .... the Order was concerned only to establish trustees for customary land, all reference to relative beneficial interests being deleted in the Order and the land being declared by the Order inalienable by sale.

The absence of relative beneficial interests coupled with the absolute prohibition against sale ... display all the hallmarks of a communal estate held under trustee ownership-which marks are reinforced by numerous designations of the land as a Reserve and the magical number of 10 owners, i.e. the 10 trustees of communal estates authorised to be appointed by the Native Lands Act 1865. (C31:1-3)

In his summing up, associate counsel for the claimants endorsed these earlier submissions concerning the ten "owners":

Although the tribal affiliations of Hapakuku Moetara and his brother Wiremu were identified on the title as Ngati Korokoro and that of Peneti Pana as Ngati Pou, their entitlement in Waipoua came through their Te Roroa lines. (I1(c):47)

The claimants say the ten were trustees for the hapu (I1(c):49).

It was further submitted that the title to the Waipoua Native Reserve was issued in breach of the 1873 Act. Under s46 the court was permitted to adopt and record any arrangement claimants and counter claimants came to amongst themselves; but it had to enter the names of anybody who consented to any such arrangement or whose claim was settled by any such arrangement in the record (I1(c):45).

In the case of Waipoua Native Reserve:

there is no evidence that the Memorial or the Court's records reflected a "voluntary arrangement" reached between claimants and counterclaimants that was in accordance with section 46. There is no evidence at all that the Court recorded the names of anybody who consented to an arrangement over the title to Waipoua No. 2.

However, it is unlikely that even if Te Roroa had been aware of the 1873 requirements the hapu could have done anything about it. The Court of Appeal, in an important test case in 1902 on the validity of Land Court titles, refused to go behind the Land Court's certification that a 10-owner title was in fact in accordance with Maori custom: Timu Kerehi v. Duff (1902) 21 NZLR 416.

Accordingly, the question of the precise capacity in which the 10 owners took title to the land became of the utmost importance. (I1(c):48-49)

Clearly the ten persons were perceived by Te Roroa to be kaitiaki who:

were expected to '... act together as tribal representatives in any dealings with the land', especially in sales and leases where the nominal owners were to act only with the full knowledge and consent of the entire body of owners, i.e. the tribe or sub-tribe.{FNREF:0-86472-088-2:3.2.2:14}

The continued reference to Waipoua No 2 as a native reserve and the restriction on alienation in the memorial of ownership, it was submitted, would surely have served to confirm Te Roroa's perception that the land was permanently reserved to the hapu (I1(c):55-56). Yet in law the ten named were absolute owners as tenants in common, not trustees (B34:att 9). All other members of Te Roroa were disadvantaged and eventually disinherited. Under a restrictive clause in the memorial of ownership, the ten might not sell or in any other way dispose of the land except by lease for a period not exceeding 21 years. But, as we have already pointed out, such a restriction was easily removed. Under the ten-owner rule adopted by the Native Land Court any one of them or their successors could apply to the court for a partition or subdivision of his or her interests and then sell. In the event, partitions and subdivisions were to prepare the way for piecemeal alienations which eventually reduced the 12,000 or more acres Te Roroa intended to retain as papakainga, to about 690 acres (see below, p 165).

In the claimants' view, Waipoua Native Reserve is a further example of the ten owner rule creating individual interests in land transferrable as property rights, and eliminating the trusteeship of rangatira and hapu or whanau (B34:9). Once again the Crown had failed to ensure that land deliberately set aside by Te Roroa from the Maunganui-Waipoua sale through the Native Land Court was permanently reserved in tribal ownership and under tribal control.

(c) The outcome.

In order to consider these arguments by the claimants, it is necessary to examine in greater detail just how a title to Waipoua No 2 block was issued, the practices of the Native Land Court at that time, and the legislation under which the court acted.

On 3 February 1876, the Native Land Court concluded its hearing into the ownership of the Maunganui and Waipoua Blocks, the latter comprising Waipoua No 1 which was subsequently sold to the Crown by deed of sale dated 8 February 1876, and Waipoua No 2, having an area of 12,220 acres, which was described as "Native Reserve". The memorial of ownership for Waipoua No 2 listed ten people as "the owners according to Native custom" and further provided that the owners "may not sell or make any other disposition of the said land except that they may lease the said land for any term not exceeding twenty one years ..." (A4:458(g)).

The hearing before Judges Monro and Symonds concerning the Waipoua block came at the conclusion of lengthy hearings into the Maunganui block. It was brief. The minutes record:

Mr District Officer Kemp announced that a Voluntary arrangement had been Entered into between the Claimants and Counter Claimants in respect of these two blocks [Maunganui and Waipoua]. Two letters read-one from Parore and one from Tiopira.

Tiopira said the matter had been arranged. Parore said the same. (A4:451)

The minute concludes by referring to the "owners of the Reserve (Waipoua No 2)" and orders a memorial accordingly.

The court's jurisdiction was by virtue of the Native Land Act 1873. We can only suppose from Kemp's reference to "Voluntary arrangement", that the court was relying on s46 of the Act, which associate counsel for claimants submitted was breached.

If this supposition is correct it is most important to remember that the issue of a title under s46 did not mean that the court was not required to carry out other provisions in the Act.

It is unnecessary to dissect the 1873 Act in order to identify all these provisions. We need only to refer to the intention of the Act and some specific provisions.

The preamble to the Act expresses that it is of the "highest importance" that record be made of the ownership of native land "with a view of assuring to the Natives without any doubt whatever a sufficiency of their land for their support and maintenance". A "Local Reference Book" for each district was to be prepared and made available to the court during its proceedings. Section 24 required that reserves be set apart "for the support and maintenance of the Natives ... to an aggregate amount of not less than fifty acres per head for every Native man woman and child resident in the district". Section 28 required that a memorial of ownership be prepared following an investigation of the title providing "the names of all the owners" which were to be entered individually. Section 47 required the court to inscribe on the court rolls a memorial of ownership:

giving the name and description of the land adjudicated upon, and declaring the names of all the persons who have been found to be the owners thereof, or who are thenceforward to be regarded as the owners thereof under any voluntary arrangement as above mentioned, and of their respective hapu, and in each case (when so required by the majority in number of the owners), the amount of the proportionate share of each owner. Every such Memorial shall have drawn thereon or annexed thereto a plan of the land comprised therein, founded on the map approved as hereinafter mentioned, and shall be signed by the Judge and sealed with the seal of the Court.

At the February 1876 hearing, it was accepted that the evidence given in respect of the Maunganui block applied equally to the Waipoua block. This was incorrect. The court was aware that Maunganui and Waipoua No 1 were being sold to the Crown. Waipoua No 2, however, was being set apart as a "native reserve". The intentions of the owners of Waipoua No 2 differed from those of the other blocks and different provisions in the Act were applicable.

The Act provides first for an "inquiry", and secondly, a "determination" by the court. In respect of Waipoua No 2, there was neither. There was no inquiry as to the "sufficiency" of the reserve in terms of the intention expressed in the preamble to the Act and in s24; there was no "investigation of the title" pursuant to s28 by which a "Voluntary arrangement" pursuant to s46 could be adjudged. Furthermore s44 provided that "the investigation of title shall be carried on by the presiding Judge without the intervention of any counsel or other agent". In fact, in respect of all the hearings, there was considerable intervention by other agents. In the "hearing" of Waipoua No 2 block, the court did not make any inquiry with the parties themselves but simply accepted the letters produced by Kemp.

In addition to ignoring these other provisions of the Act, the court ignored the requirement in s46 itself that the names of the people consenting to the arrangement be recorded. The provision unambiguously draws a distinction between the persons who consent and "the persons by whom any claim shall have been settled". It was Tiopira and Parore who settled the claim. The ten people whose names were entered on the memorial of ownership were determined to be the "owners", but they were NOT necessarily those who consented to the arrangement and the court did not record them as such.

Finally, under s47, the majority of owners may require the court to determine the proportionate share of each owner. The court neither inquired nor gave an opportunity to the "owners" to record any agreement as to the allocation of shares in the land among them.

In accepting the voluntary arrangement and entering the names of the ten people on the memorial of ownership as absolute owners without an "inquiry" and a "determination", the court was adopting a practice described by Judge Monro in 1871:

where the Natives agreed that certain persons should be the owners of certain portions of the land, that was in accordance with Native custom, and the Court did not inquire into the arrangement, but accepted it. (A19:56)

Not having inquired into the arrangement, awarding absolute ownership was an assumption by the court unsupported by any evidence. If the arrangement was that these people stood as owners in a representative capacity for others of their hapu, by declaring them absolute owners, the court failed to give effect to the arrangement.

The claimants allege that the arrangement was that the ten people entered on the memorial of ownership were trustees for their respective hapu, in accordance with "native custom". There is ample evidence to support the view that others not included in the ownership of Waipoua No 2 had understood that either they were or should have been included, as for example, the subsequent applications to the court for succession.

Nonetheless in our view, those named on the memorial of ownership regarded themselves as representatives of their people.

The order for the memorial of ownership made on 3 February 1876 for Waipoua No 2 lists ten people as "the owners according to Native custom" (A4:458(g)-(i)). "Native custom" as to land tenure is described by Professor I H Kawharu whereby "The chief naturally REPRESENTS and defends the rights of his people" (emphasis added).{FNREF:0-86472-088-2:3.2.2:15} But the court's order vested the interests as tenants-in-common which conferred absolute title upon the named individuals. By ordering a memorial of ownership to ten persons in this manner the court released them from the necessity to perform their chiefly obligations. Yet in custom, these obligations were still recognised. The chief's customary obligations to his people were finally extinguished when the court made succession orders vesting his land interests in all his children equally. The social structure of the hapu was buried with the chief.{FNREF:0-86472-088-2:3.2.2:16} As Dr David Williams said, the court "was in the business of eradicating Maori customary land title rather than ascertaining it" (A19:19).

There is no doubt that this was understood by the court, and by the Crown who were aware of the court's practices. Judge Monro made no secret of this practice-that the memorial of ownership was falsely represented as being in accordance with "native custom" (A19:36).

The claimants allege that the owners of Waipoua No 2 never extinguished "the customary title" to the block. In other words the owners themselves never applied for Crown grants that would have extinguished customary (Maori) title and replaced it with a general title (known as title in fee simple).

Whilst there was no application to the court to partition the Waipoua block in 1875-1876, it nevertheless occurred as a consequence of the voluntary agreement between Tiopira and Parore. Waipoua No 2 was the residue of the partition of the Waipoua block for the purposes of selling Waipoua no 1 to the Crown.

(d) Why did the Maori owners themselves not try to rectify the situation?

The answer can be inferred from what happened over the Opanake block at Kaihu, awarded to Te Rore Taoho and Parore Te Awha in 1873.

Subsequently Tiopira claimed an interest, and according to his son Rewiri, applied several times to the court prior to his death in 1887 to be included on the title. Rewiri took up the matter after his father's death and sought to obtain rectification in the court on 16 February 1889. Failing, he wrote to "the Government of New Zealand" on 2 April 1889, alleging that the "land was secretly adjudicated upon" in 1873 and Parore and Te Rore Taoho's names only were entered on the title (I14).

Hapakuku Moetara also claimed an interest in Opanake and sought to have his name included when the court had heard Te Rore Taoho's application to partition the block in 1885. Because Te Rore Taoho would not consent to Moetara's name being included on the title, the application was declined. Moetara felt "much aggrieved that the land belonging to the whole tribe should have been awarded to one man Te Rore".

In 1890 the matter was referred to the chief judge of the Native Land Court, Seth-Smith, who after receiving a report from Judge Scannell, recommended that legislation would be required for the court to rehear the matter. In 1892 a Bill was duly prepared{FNREF:0-86472-088-2:3.2.2:17} and was "introduced but dropped by the House". Rewiri Tiopira's efforts to have the case reheard were unsuccessful.

On 5 July 1893, Hapakuku Moetara wrote to the speaker of the House of Representatives saying that, at the 1873 hearing:

the Europeans said it would be better to have only two persons names entered as owners to the block so as to prevent any trouble arising in the sale of the timber and to wait and insert the names of the other owners when the block was subdivided. In 1895 a further application was lodged with the Chief Judge of the Native Land Court by the solicitors for the complainants. In a memorandum to the chief judge the court registrar stated:

You will see by the evidence on the investigation (Kaipara MB no.3 pp 51-53 [ie the hearing in 1873]) which I forward herewith that these persons [Parore Te Awha and Te Rore Taoho] were clearly put in as representatives of the tribes to which the land belonged.

By order in council, 3 February 1896, jurisdiction was conferred on the Native Land Court to further investigate the title to Opanake No 1 block. The court duly investigated the title and made five orders awarding various portions of the block to 355 people.

That, however, was not the end of the matter. Before the orders were enforceable, they had to be presented to Parliament under s14 Native Land Court Act 1894. They were "laid on the table of the Legislative Council" on 29 June 1900, and that is where they stayed. Tiopira Kinaki, Hapakuku Moetara and their descendants had failed to obtain redress for mistakes which the Native Land Court itself had acknowledged.

(e) Conclusion.

Undoubtedly, in respect of the title to Waipoua No 2, there was neither an inquiry nor a determination by the Native Land Court as required by the 1873 Act. The court did not inquire whether all the interested parties had been consulted. The court did not explore the different intentions of the parties for Waipoua No 2, Maunganui and Waipoua No 1. The court directed its mind to the settlement of the dispute between Tiopira and Parore to enable the sale of Maunganui and Waipoua No 1 to proceed, rather than to the ownership of Waipoua No 2. In effect, the court failed to determine the ownership of Waipoua No 2 block.

Tiopira had tried previously with the Koutu reserve to establish a precedent for representative ownership. Not being successful, he apparently gave way to the pressure of the Crown purchase agents and the accommodating court, and handed in a list of ten names, intending, as Hapakuku Moetara pointed out, that each "owner" would make provision for his respective hapu. What in fact happened, however, was quite different, as we shall see in the next section of this report. Succession and partition orders resulted in extreme fragmentation which facilitated Crown purchasing.

As the New Zealand Herald in 1883 observed:

The working of the Native Land Court has been a scandal ... for many years past, but as the chief sufferers were the Maoris, nobody troubled themselves very much. (A19:67)

The Crown did nothing to remedy the situation, and indeed continued to take advantage of the problems it had itself created.

TAHAROA NATIVE RESERVE

3.2.3 The claimants have stated that the Crown failed to protect the Taharoa Native Reserve by omitting to give effect to Parore's intention that it be inalienable by sale or long term lease and be retained by tangata whenua forever (A1(i):42). The Taharoa Native Reserve was provided for in the deed of sale for Maunganui, 8 February 1876. A clause appended to the deed made the sale subject to a Crown grant being issued to Parore Te Awha for 250 acres, shown on the plan attached to the deed. The grant was to be made inalienable except by lease for a term not exceeding 21 years (A10:1(a)). A translation of the Maori version of the deed, reads: "To Parore Te Awha some acres, that is 250 acres, set out in the map attached" (C18:5).

Why did Parore Te Awha insist on this reservation? In the fourth statement of claim, it is assumed that Parore Te Awha wanted to ensure that the area he defined for the Taharoa Native Reserve "be reserved, in perpetuity" to his descendants "as wahi tapu, papakainga and mahinga kai for tangata whenua" (A1(i):11). The evidence we were given by claimants on a site visit to the Taharoa lakes, 20 June 1989, and at the first and third hearing supported such an assumption.

The claimant Robert Parore described Lake Kai Iwi as:

a mahinga kai of some renown .... a wahi tapu .... used by tangata whenua from time immemorial down to the present day as an important seasonal source of tuna, and also of inanga [whitebait] and kewai [fresh water crayfish]. (C18:3)

The reserve in 1876 was "surrounded by Crown Kauri Gum Reserves and was used as a base by Maori gum-diggers". Graham's survey plan showed five huts labelled "gum kainga" on the land and a track from the kainga and lake to Kaihu. The reserve was "a gateway to the lake system". There was "an old pa site overlooking the lake in the reserve and on the shores of Lake Taharoa there are two urupa". In Robert Parore's view the boundaries of the reserve were "quite arbitrary as in Maori terms the entire lake and surrounds are an essential ancestral food source and wahi tapu" (C18:3).

The kaumatua, Lovey Te Rore shared with us his recollections of the lakes from the time he first went there with his father about 1922-23. He remembered Johnson's swamp, where over 100 people lived in the 1920s, mostly digging gum:

It was a real papakainga.

... The people living there were from Kaihu. Some were Te Roroa. Others were Waiariki and Hokianga. Those families eventually settled around Kaihu and live there till this day.

... access to the lakes was by way of the Ngakiriparauri track .... used to transport gum from the settlement to meet the train at Kaihu. There was an 18 horse pack train which carried it over the track.

... others of our people settled around the fringes of both Lakes Kai Iwi and Taharoa.

... partly because of access to gum, but also because of proximity to both the eel fishery in the Lakes and the coastal Toheroa and Mussel beds.... plentiful around Pahekeheke Rock. The Lakes and coastal fisheries provided a plentiful food supply for the settlement .....

... I know there are wahi tapu around the Kai Iwi Lakes. There are both urupa and pa .... two urupa ... on the lake shore. One ... at the Promenade point on Lake Taharoa. The other ... on the north eastern shore of Lake Waikeri .... they must be very old urupa ....

Ngakiriparauri is an urupa .... to the east of the Lakes Taharoa and Waikeri .... outside the Domain, but ... fenced off from the surrounding farmland.....

... not far from where the old track to Kaihu went. As far as I know, the area was named by the Waiariki people [of Ngawha] who moved down into the area under Parore. I feel that part of the reason for reserving the lake estate was to make provision for these people as well as for Te Roroa.....

... There is another lake in the area called Shag Lake.... important to us because this is the lake which feeds the spring at Whangaiariki .....

Use of the fishing resource has always been an important part of our relationship with the Kaiiwi lakes.(C16:1-4)

Lovey Te Rore believed in his heart that Parore "sought the reserve in order to preserve this valuable source of food for the hapu living in and around the lakes". He had "never heard of him [Parore] or his descendants ever seeking to stop Te Roroa, Te Hokakeha, Waiariki or any of the other hapu from this area taking eels from the lake". He believed Parore "saw himself as a trustee over the resource in favour of all the hapu who used it". That was why Parore "wanted the land reserved and made inalienable". He thought Parore "intended to protect access to all of the lakes for tangata whenua. The reserve provided a sort of gateway into all of the lakes" (C16:6-7).

Eruera Makoare told us about eeling at the Kai Iwi lakes "in the way that our ancestors have done for generations" when the eels are running between February and April (C17:1).

Why Parore's reserve only encompassed most but not all of Lake Kai Iwi remains "a mystery" to the claimants (I1(d):4).

The boundaries of a 250 acre reserve and outline of Lake Kai Iwi were roughly drawn on plan ML 3253 of the Maunganui block probably "at or around the time of the agreement reached between Parore and Preece" (H7:5). Compiled by Percy Smith from adjoining block boundaries, it did not show the Taharoa lakes system.

The copy of plan ML 3253 attached to the deed of sale for Maunganui, incorporated plan ML 3457 showing the Taharoa reserve of 250 acres and the lakes system in the Maunganui block. The reserve was bounded to the north-east by Lake Taharoa and to the south-west by the Kaihu block. The boundary line cut off the north-east corner of Lake Kai Iwi, excluding it from the reserve (A10:1(d)). Plan ML 3457 was produced by W A Graham, a private surveyor, on 22 March 1876 and was submitted to the survey office on 3 April 1876 (A10:1; H7:5-6).

On plan ML 3457 it was noted that: "portion of the Kaiiwi Lake has been included in the area at request of Parore Te Awha" (A10:1). Graham had previously done survey work for Parore, and presumably Parore instructed him to reserve the area traditionally used for eeling, estimated by Preece to be about 250 acres, and he turned this into exactly 250 acres on the map (H7:16). The shoreline of Lake Taharoa was shown as the north-eastern boundary. Consequently the owners of the reserve were to enjoy riparian rights over part of Lake Taharoa (I1(d):4). The other three boundaries were shown as straight lines, regardless of natural features.

The claimant Robert Parore believed that Tiopira Kinaki possibly knew of Parore Te Awha's claim to Taharoa well before the sale and that, as a result, did not protest the subsequent Crown grant (C18:6).

Tiopira's reaction to the grant clearly indicates that he had no prior knowledge of Parore's claim. In a letter to McLean, 5 May 1876, stating that he should have received a like sum to Parore's, that is, 2500 not 2000, Tiopira referred to "a piece of land containing 250 acres out of the Maunganui Block, which was given back to him [Parore] by the Government... out of Maunganui" (A10:6-8; C18:6). On 22 April 1877, he applied to the colonial secretary, Dr Pollen for 500 and 150 acres "to make the quantity equal to that given to Parore" (A4:352). Again on 3 April 1878 he wrote to John Sheehan, McLean's successor as Native Minister, asking the Grey government to "rectify the wrongful actions of the late Government" and:

give me five hundred pounds and one hundred acres of land and fifty acres that is the half of Maunganui which was lost (with held) by the late Government. (A4:344-345){FNREF:0-86472-088-2:3.2.3:18}

Finally, on 14 September 1885, he wrote to Chief Judge J C Macdonald:

with respect to the half of my land, of Maunganui. Let it be considered by you the Chiefs managing the lands procured by the Government....

Parore got 200500 [sic] and 100 acres of land, and I got 2000.... Why was more given to Parore and less to me? (A4:341)

The different acreages referred to in these letters and errors in the translations led to some confusion and speculation in both the Crown and the claimants' evidence on the size of the reserve and exactly what land Tiopira sought (H7:14-16); I1(d):4-5). As we have seen he did not define blocks of land by English square measure. The claimants were inclined to think that the Taharoa Native Reserve should have included the whole of Lake Kai Iwi and a total of 300 acres, but, in the end, they accepted that there was "no evidence that the Reserve was intended to be anything other than 250 acres". Nevertheless, doubts arising from the failure completely to include the lake remained (I1(d):5).

Although Tiopira's letters are ambiguous, they clearly indicate he did not object to the reservation as such. Nor did he object to the Crown granting land to Parore that the court had vested in both of them jointly. This does not mean that he had any prior knowledge of Parore's claim as Robert Parore suggested. But he may have appreciated that the land was being (as Preece said) returned by the Crown to Parore, not set aside from the sale. Probably Tiopira understood, as the claimant does, that Parore was asking for a reserve that was a wahi tapu, papakainga and mahinga kai for all the local hapu including Te Roroa, Te Hokakeha and Waiariki as well as Te Kuihi (I1(d):3). The crux of Tiopira's objections was the insult to his mana implicit in the extra payment and the grant of the reserve to Parore. As he saw it, the Crown had breached the principle of equality of interests embodied in the voluntary agreement of 2 February 1876 with Parore and in the court award of a memorial of ownership for Maunganui to both of them. His objections were in vain.

On 15 March 1881, the Native Minister, William Rolleston, directed that a Crown grant for Parore be prepared under s5 Volunteers and Others Land Act 1877. According to Robert Parore "tradition maintains that Parore had to persist with the authorities to finally obtain his grant" (C18:7).

Section 5 of the 1877 Act legally enabled the governor, with respect to any lands acquired under the provisions of the Immigration and Public Works Act 1870 and its amendments, to reserve or grant any portion of land stipulated in a sale "in [a] manner required by the Natives" (A8:11-12). The purpose of this provision was to enable the government to carry out any promises it had made in respect of reserves when it revested any such land (H7:9; I2:(b)(ii):41-42).

A Crown grant and land transfer title were signed by the governor, Sir Arthur Gordon, on 25 August 1881 (A10:33). The grant was registered on 27 August (A10:29) and the land transfer title entered on 7 September 1881 (A10:34). The grant, as from 8 February 1876, was made to Parore Te Awha, his heirs and assignees for ever. In law Parore Te Awha became the absolute owner, not the trustee, of the Taharoa Native Reserve. This was clearly contrary to the Crown's understanding of Parore's interest in the land at the time of the Maunganui-Waipoua purchase. In this report of 12 February 1876, Preece stated:

concluded with Parore, WITH THE CONCURRENCE OF HIS PEOPLE, to purchase HIS INTEREST in the whole of the two blocks... (A3:99) (emphasis added)

The restrictions on the standard form for a Crown grant applied. The land was made inalienable except with the consent of the governor, by sale or mortgage or by lease for a longer period than 21 years. The right to take roads through the land was reserved on the land transfer title (A10:32-33).

A point at issue between claimants and the Crown is whether these restrictions were contrary to the clause appended to the deed of sale making the grant inalienable except by lease for a term not exceeding 21 years (C18:7-8). Had the governor failed to reserve the land "in [a] manner required by the... Natives" under s5 of the Act?

Robert Parore told us he firmly believed that Parore Te Awha intended the land to be inalienable and remain a native reserve forever (C18:1). His belief was borne out by the oral evidence we were given on the continued use of the land for traditional purposes by tangata whenua. The claimants were aggrieved that the grant effected a partial "watering down" of the restrictions on alienation (I1(d):17).

The Crown researcher was of the opinion that the restriction on alienation was a reflection of statutory requirements going back to the 1866 and 1867 Native Lands Acts, rather than a wish by Parore for the reserve to be retained by tangata whenua forever (H7:9). Crown counsel, on the evidence available, submitted, that it did not appear that the alienation clause was inserted in the deed of sale at the request of Parore. Preece was following the letter of the legislation by adding the inalienation clause to it. The claimants had not shown that Parore expressed this intention to the Crown land purchase agents. There was no express clause restricting alienation in the Maori version of the deed which was read to Parore. In her opinion, ss48-49 Native Land Act 1873 (which was not repealed until 1886) applied to the transaction. Section 48 denied all owners named on a memorial or nominated as owners by voluntary agreement the power to sell or dispose of their land except by lease for a period not exceeding 21 years. Section 49 provided that nothing in s48 precluded any sale of the land "where all the owners of such land agree to the sale" (H7:9-14).

Associate counsel for claimants pointed out that the restriction on alienation in the 1866 Act was repealed by the 1867 provision which was in turn repealed by the 1873 provision which did not accurately reflect the limitation contained in the 1881 grant (I1(d):21-23). "The Crown was certainly not empowered" by s5 Volunteers and Others Land Act 1877 "to vary the terms of its agreement with Parore ex poste facto in any manner that it chose" (I1(d):22).

A perusal of the Maori language version of the Deed... reveals... there was simply no room for any reference to the restriction on alienation. The English language version... states that Parore signed the Deed "after the contents had been explained to [him] by an Interpreter of the Court and [he] appearing clearly to understand the meaning of the same".

It must be assumed that the honour of the Crown was upheld in this respect and the Deed was fully and truthfully explained to Parore. Furthermore, as the Crown's agents had drafted the Deed the contra proferentum rule... applies: the Deed must be interpreted in favour of the non-drafting (Maori) party. That is, the Crown should be held to the bargain its agents had recorded.

...it is more likely than not that the restriction on alienation was a specific negotiated term of the agreement between Parore and the Crown rather than just Preece's sloppy attempt to mimic repealed legislation. The restriction on alienation is also consistent with Parore's cultural understanding of the transaction, that is that he took the land as a kaitiaki. (I6(c):11-12)

As to Crown counsel's rhetorical question:

that if Parore Te Awha's agreement with the Crown was that the Taharoa Native Reserve be made inalienable by sale or long-term lease... to what degree could the rangatiratanga of one generation be fettered by the rangatiratanga of an earlier later generation? (I6(c):12)

Associate counsel for claimants submitted that it was misguided:

The restriction on alienation was an essential quid pro quo for the fact that the title was to be individualised.... [It] would have been likely to have eased any concern Parore may have had about the individualisation and effectively nullified (at least for [the] time the restriction remained in force), the effects of that individualisation. (I6(c):12-13)

The evidence we were given clearly demonstrates that the Taharoa Native Reserve was never used exclusively by Parore's tupuna, nor was there any effort to exclude any Maori from exercising traditional methods of fishing there or living there or using the reserve for a base for gum-digging:

Parore was a trustee of this land, if not in law, then in fact and Maori tradition, for all tangata whenua who had connection with that place. (C18:4)

Parore Te Awha died on 27 September 1887 and on 14 September 1891 his grandson, Pouaka (Waata) Te Awha applied to the court for a succession order and was advised to send for the will (A10:36). A granddaughter, Te Pouritanga Waata, asked for a succession order for herself and her brother in January 1892 (A10:38-39). The will, dated 30 November 1885, was produced in court and on 21 January 1892 ten succession orders were made in favour of the persons mentioned in it (A10:41, 46). This was amended to eight persons after a deed dated 3 December 1887 was produced, signed by two persons making over their interests in Parore's estate to Pouaka Waata. Thus Pouaka Waata received three shares and the other seven one share each (A10:47-48). Although in law they were beneficial owners of the Taharoa block, tangata whenua continued to exercise their traditional fishing rights and to protect their wahi tapu.

Meanwhile, on 14 March 1888, a governor's warrant had been obtained to take land for a road (A10:34) which was surveyed through the Kai Iwi gumfield in 1889. The road line through Taharoa, area 4 acres 0 roods 20 perches, is noted on the survey plan as being "taken by consent of owners" (H8(a):1; H8:4). The Crown researcher was unable to locate any information about the agreement with the owners. A number of tracks ran through the Taharoa block at this time and it seemed to him that there was a strong possiblity the road was in existence before it was surveyed as a public road; which might explain the apparent willingness of owners to consent (H8:4-5). As Parore had died and succession orders had not been made, the identity of those who consented remains a mystery. The commissioner of Crown lands was to comment in 1950, "it is most unlikely that the Maori owners were compensated for this loss" (H8(a):69-70; H8:19).

The land surrounding the Taharoa Native Reserve was declared a kauri gum reserve at the turn of the century. In accordance with a recommendation from the Auckland Scenery Preservation Board, 1908, the Department of Lands and Survey recorded that a wide strip around Lakes Taharoa and Waikere was suitable for a scenic reserve (H8(a):12-14; H8:6). In 1909 the way was cleared for future land purchasing activities with the removal of all prohibitions or restrictions on alienation of native land.

Crown interest in purchasing the Taharoa Native Reserve was aroused in 1920-1921 by a subdivision scheme for soldier settlers, a request from the Hobson County Council for the reservation of the whole catchment area and the continuing intention to make the Kai Iwi lakes a scenic reserve. But the land was too poor to bear the cost of roading and no funds to purchase it were available. Part of it was let for short term grazing and part was set aside for systematic gum recovery 1921-1924 (H8:7-9).

Between 1921 and 1950 several offers and counter offers were made. First a European who seems to have been an advocate of scenic preservation, provisionally bought the reserve at 1 per acre but one Maori owner refused to sign. The European's solicitor then offered the land to the Crown at double the price he had paid to the Maori owners but the Crown declined to purchase it at that price (H8:10-12). In 1925 an inquiry from the chairman of the Hobson County Council about forming a road to service both farmland and the lakes revived proposals for a scenic reserve. Two European sections fronting Lake Taharoa were purchased but a further attempt to acquire the reserve foundered because it was now leased for 25 years and the owners wanted at least 2 per acre (H8:14-15). Contrary to the oral evidence we were given, government officers of the day believed the land was of no value to the owners. Presumably they failed to realise it was used by local hapu seasonally as an eel fishery and spasmodically for gum digging.

An inquiry about the lakes in 1948 from the Department of Internal Affairs, renewed interest in purchasing, this time "in connection with the conservation of game" (A10:119; H8:17). An offer of 75 (a 25 per cent premium on government valuation) was offered to a meeting of owners in January 1950. Five of nine owners holding 36 per cent of the shares unanimously voted against the proposal but intimated they would support a resolution to sell at 1 per acre (H8:18-19). As the area now formed "an isolated wedge into Crown land" which the Department of Lands and Survey "were scheming for development" and there was some doubt that the owners had ever been compensated for the road reserve taken in 1888, approval was granted to increase the Crown's offer to 1 per acre (H8(a):69-70; A10:101; H8:19).

At another meeting in August 1950, six owners representing 50.8 per cent of the shares agreed to sell for 250 nett and the Crown met unpaid rates (9 6s 0d) and survey charges (1 18s 0d). The sale was confirmed by the Maori Land Court on 23 January 1951, adopted by the Board of Maori Affairs on 26 June 1951 and gazetted on 28 February 1952 (A10:76, 93; C18:10-11). As a straight majority of owners present at the meeting had agreed to the sale, it complied with the requirements in ss417-418 Native Land Act 1931 (H8:21).

The largest single shareholder in the reserve was Parore Te Awha's great great grandson, Te Puma Louis Wellington Parore who, in 1949, held 34.8 per cent of the shares. A counsel for Maori in land transactions who for many years had worked as a licensed, first grade interpreter{FNREF:0-86472-088-2:3.2.3:19}, he was not present at either of the owners' meetings; nor did he participate in the sale (H8:21). The Crown researcher conceded that it was unclear if he knew about the meeting in August 1950 that led to the eventual sale. Only two weeks' notice was given of the meeting which was held in Dargaville. The only contact address the Maori Land Court had for Lou Parore was care of the member for northern Maori. The Crown researcher went on to point out that no record had been found of any subsequent protest from Lou Parore although he would have been well aware of the avenues of protest open to him (H8:21-22).

Robert Parore explained that his grandfather spent the greater part of the years 1948 to 1953 in Auckland, and for a lot of the time was in and out of hospital. Clearly he was not fit enough to attend the meeting. Nor was there any evidence that he was aware that the block was in any way under threat. He died in March 1953, aged 65 years (C33:1-2). In an exchange of views with associate counsel for the claimants, the Crown researcher questioned whether Lou Parore's absence was coincidence. In his opinion the Crown only succeeded in purchasing the reserve because Lou Parore was not present. Robert Parore found it incredible that the largest shareholder:

a respected Rangatira opposed to the further alienation of ancestral land and by far the most able member of the hapu concerning dealings with the Maori Land Court... did not participate in the sale.... [and] was sold out without his consent. (C18:11)

In our view the Maori Land Court should have informed and consulted the owner with the largest share, namely Lou Parore. The Crown purchase of the Taharoa Native Reserve breached the agreement between Preece and Parore that the reserve be made inalienable, that is, the terms on which Parore agreed to sell the Maunganui block to the Crown. Furthermore it seems unlikely that any officer of the Crown explained to Parore Te Awha that reserves made under the Volunteers and Others Land Act 1877 could be alienated with the governor's consent. We share the claimants' view that Parore singled out this reserve to keep for tangata whenua and that it "was only lost after the Crown changed the rules" (I1(d):14). Even after the Crown's purchase in 1950 tangata whenua continued to use the land and eel fishery in traditional ways.

WAIRAU NATIVE RESERVE

3.2.4 The 171 acre Wairau Native Reserve was cut out of Wairau south when it was ceded to the Crown on 28 January 1879 to preserve and protect the Wairau he wahi tapu and a traditional fishing area. The external boundaries of the reserve were those delineated on Campbell's 1870 survey plan (ML 2012).

Oral evidence by Waimamaku witnesses at the fourth hearing and on a site visit demonstrated the continuing value and importance of the reserve to tangata whenua.

Simon Reuben talked about burial caves in and around the Wairau wahi tapu. When the time was ripe for his father and his Uncle Pera to show him the caves, the bones had already been collected and buried next to the church. He had been in one of the caves and seen where their tupuna had been laid to rest in a sitting position opposite each other-you could see the black marks left by the head and shoulders on the sandstone. He had counted 45 bodies. The entrance to the cave was well hidden. There were markers at the entrance but you had to know what you were looking for in order to see them. To find those caves you had to be the right person, the right descendant (D7:6-7). At Te Pure a lot of people were buried in the sand, for the last time during the influenza epidemic of 1918. The sand was easier to dig and the graves were braced with ti trees. But the river changed its course and took Te Pure with it (D7:9)

Reihana Paniora told us the coastal area south from the Waimamaku river to Motuhuru was a traditional place for kai moana (Motuhuru, the yellow rock, marked the traditional boundary between Waipoua and Waimamaku (D12:7)). Meri Wihongi, a descendant of Moetara, still remembered the days they camped at the Wairau and Reihana's mum would get crayfish with grandmother Ria Paniora. The kai they lived off at the beach were kina, paua and pupu (D19:3-4).

In 1897 an application to the Native Land Court for an investigation of title to Wairau he wahi tapu was made by Reupena Tuoro and six others and dismissed (D3:54-55). A further application was made in 1902, this time from Ngakuru Pana and Peneti Pana. Plan 2012B was produced in court. Three separate orders were made by the court on 9 June 1905 for Wairau wahi tapu No 1 (153 acres 7 roods), No 2 (12 acres) and No 3 (5 acres 7 roods). Seventeen names of owners with equal shares were listed for No 1, four for No 2 and four for No 3. The standard restriction making the share of each owner "inalienable, or inalienable except by lease for a period not exceeding twenty-one years" was crossed out on the court order for Wairau wahi tapu No 1. The shares of each owner for No 2 and No 3 were declared to be "absolutely inalienable" (D3:43-48).

Wairau wahi tapu No 1 was included in a scheme of consolidation under s161 Native Land Act 1931 known as the Hokianga Consolidation Scheme (D3:49) and was utilised for Maori land development.

The beneficial owners of Wairau wahi tapu No 2 and No 3 were in effect "trustees" as their shares were absolutely inalienable.