The Land Court In Matakaoa
[p101-103 - Map of Matakoa and District - not available]
Chapter 4. THE LAND COURT INVESTIGATIONS OF TITLE TO MATAKAOA LAND: 1875 - 1909
I. The First Period 1875 - 86 (i) By Invitation: Judge Rogan’s Court of 1875; (ii) ‘Let that Court be Stopped Absolutely’: Judge Mackay and Judge Wilson’s Court of 1885 - 6.
II. The Second Period 1894 - 1909 (i) The First Sitting at Te Araroa: Judge Gudgeon’s Court of 1894; (ii) The Second Sitting at Te Araroa: Judge Sim’s Court of 1908 - 9.
From the previous chapter the reader has some understanding of the national-provincial and the Maori-European context in which the Maori Land Court at Matakaoa was established. While the Court proceedings are presented separately in this account they should be regarded as a continuation of the ‘negotiative’ process between Maori and European over land in this area.
In brief, the Native Lands Acts from 1865 to 1909 expanded the role of the Land Court. The 1865 Act had set up the Land Court to investigate the titles to land held under Maori customary practice. However by 1909 the Land Court was also expected to list and ascertain the proportionate shares of all owners, determine successions to personal estates, investigate the partitioning of land, render land inalienable or remove any such restrictions, inquire into the bona fides of any European purchaser and ensure sufficient land remained for the support of owners before land was registered as transferred, settle disputes between owners over the administration of their land.
This account is concerned primarily with the investigations of title to land in the Matakaoa district of the East Coast (Te Tai Rawhiti). The Court sessions fall into two groupings: those sittings held outside of Matakaoa  which correspond to early investigations (1875 - 86), and those held in Matakaoa itself, which correspond to the late sessions (1894 - 1909). The majority of the title investigations to Matakaoa land were conducted in four sessions spaced roughly ten years apart. During each of the ten year intervals both the land legislation and the role of the Land Court (Judge) changed:
If the attention of the Court or Judges is called to what has occurred on the same point in a previous Court they will say they are not guided by other Judges but by their own experience. There is no uniformity of practice in the Native Land Court.’
Colonel Porter of Land Court proceedings held on the East Coast in evidence 1891 Commission into Native Tenure AJHR 1891 G-1:12).
I have therefore chosen to describe each of these Court sessions separately. On one level the sessions were distinct, but on another level they were continuous. The evidence given in each succeeding Court session clearly shows that claimants watched the Judge closely to see what material he based his judgments on. In the next session this material was stressed as ‘proof’ of ownership by the local people in Court: In 1894 judgments hinged on the boundaries and names included in the gazetted application for investigation of title - in the next session, 1908, claimants produced these applications as Court exhibits to ‘prove’ land ownership.
I. The First Period 1875 - 1886
The earliest investigations of land in the Matakaoa district involved inland blocks under investigation for purchase or lease by Captain (later Colonel) Porter on behalf of the Crown. In general the official personnel of these investigations included a Land Court Judge, a ‘Native’ Assessor from another tribal district, an interpreter, a clerk, and a District Officer or Government Agent. The Court sessions held at Waiapu - Waipiro, Waiomatatini, and Port Awanui - were crowded. As many local people as could fit into the Church in 1875; the schoolhouse in 1885-6, or could listen to Court [p106] proceedings from outside, were present. Large groups of local people seldom attended Court sessions held further away, such as at Opotiki or Uawa; instead they appointed local individuals to represent their interests in Court. Once a case had been advertised for investigation by the Court it was the responsibility of all the other parties interested in the land to be present (irrespective of the distance the Court session was held from the block of land) in Court to defend their claims. Near the front were the key figures of the Court - the leading speakers of each party, the Chiefs or sons of Chiefs, and the old people; each party with its ‘kaiwhakahaere’ (conductor) and witnesses. Proceedings were conducted in Maori. The Court often opened with ‘great pomp’ and ceremony - ‘all being dressed in mats with feathers in the hair’ and speeches of welcome (Judge Mair, W.G. Diary 21st August 1883). A list of ‘New claims’ was read, and it was decided between the Judge and the leading persons present which, and in what order the claims were to be investigated. The brevity of the 1875 investigations - one to four pages of recorded evidence including a list of owners’ names, with a single claimant standing to relate his or her right to land through descent and occupation on behalf of his or her hapuu - clearly shows (and accounts of this are given in the evidence) that any disputes between opposing interests had been sorted out at meetings before-hand. In 1885-6 however, differences were not as effectively compromised at pre-Court meetings, and titles to land were contested in Court by one or more parties. By this session, from their experience of the Court investigations of Waiapu land, in which many of them shared interests, the Matakaoa people knew that unless their interests were stated in Court (rather than compromised at pre-Court meetings and then disregarded in Court), they lost their land. Court decisions were irrevocable  and land ownership was fixed for ever. The party recognised by the Court as the claimant (rather than the counter-claimant) was able to present their evidence and cross-examine after all the [p107] other parties had completed their case. Claimants were also generally awarded ownership, although Judge Rogan stated that the counter-claimants’ case was the most important to consider (AJHR 1877 G-5:37). The first party to apply for a hearing was commonly declared the claimant, and a situation developed in which ‘owners’ competed with one another to have their land investigated. The party declared the counter-claimant opened their case by giving evidence ‘in Chief’, that is each witness proceeded with their account without interruption, except for prompting by their own kaiwhakahaere, then they were cross-examined by the conductors of the other parties. At any time during these cross-examinations the Judge or the Assessor could ask for points of clarification. In the contested cases requests were often made by one party for an inspection of the Block under investigation. Most of these requests were granted and the Judge, the Assessor, and a party of claimants from each side went to the Block to examine the marks of occupation. In some instances this involved a distance of about thirty miles on horseback and the Court had to adjourn for three to four days (Judge Mair, W. Diary 11th December 1884). After all the evidence had been given by each party, the Court adjourned to prepare the judgment. During these early sessions the judgments were generally confirmations of the decisions reached by parties outside the Court (Matakaoa Block 1875), however where ownership was contested (1885-6) the judgments were prepared by the Judge and Assessor (the contribution made by Assessors varied according to the Judge in charge) overnight. In most cases the judgments were read aloud in Court in Maori, or both English and Maori (Judge Gudgeon, Waiapu M.B. 14). After the lists of ‘owners’ had been read in Court and the few objections, as to the inclusion or exclusion of certain names, settled, the Judge ordered a ‘Memorial of Ownership’ (1873 Act) or ‘Certificate of Title’ (1880 Native Lands Court Act see page 119).
(i) By Invitation: Judge Rogan’s Court of 1875
It does not appear to me that I can settle this matter. I will therefore adjourn the Court for a short time, and if you will discuss the matter outside you will do much better.’
Judge Rogan of his Land Court procedure in evidence Commission of Native Tenure AJHR 1891 G-1:59).
In 1874 at the Wharekahika Hui held by Iharaira Te Houkamau, Ngaati Porou decided to invite the Native Land Court to Waiapu to investigate land. After Iharaira Te Houkamau’s death in January 1875, meetings were held by Wikiriwhi Matauru and Mokena Kohere which resulted in the placing of a raahui (proclamation prohibiting the sale or lease of Matakaoa land) over the Matakaoa district to safeguard the land for the people and their children (Te Wananga 26th April 1875:7; Porter AJHR 1875 C-4:3; Te Harawira Huriwai Waiapu M.B. 39:15). Nevertheless Ropata Wahawaha put the 1874 decision into effect and applied to have the Court come to Waiapu. The first case to be gazetted for investigation by the Land Court at Waipiro (Waiapu) in 1875 was the Matakaoa Block. This block had been leased in 1874 by Iharaira Te Houkamau to Captain Porter. According to the Waiapu Resident Magistrate’s report, 1875 was the first year since the outbreak of war in 1865, that food was plentiful (Campbell AJHR 1875 G-1:15). Given the staging required for Land Court sessions, which like the Wharekahika Hui were well-attended, and that all those present had to be fed by the local people (see page 89), this was important.
As the first block to be heard by the Waiapu Court, the Matakaoa Block was a test-case. Like all blocks investigated by the Court, the Matakaoa Block had to be surveyed prior to the Court’s investigation of title. According to several claimants during the investigation of an adjoining block in 1908, - the Wharekahika Block - the survey of Matakaoa had been incorrect: ‘the original survey was made to take in the best portions of [p109] the land for Matakaoa the portion leased’ (Waiheke Turera, Waiapu M.B.40:141), although no objections had been raised when the survey was conducted in 1874 under the guidance of Wi Pahuru, a leading ‘kaumaatua’ of Wharekahika. In May 1875, one week before the Court was due to open at the small coastal settlement of Waipiro, local Maori people held a meeting at Wharekahika to settle the take for the Matakaoa Block (Manahi Parapara, Wharekahika Block, Waiapu M.B.41:120). The term take refers to the (1) root or stump, (2) base of a hill etc, (3) cause or reason, (4) means, (5) origin or beginning, (6) post in the palisading of a paa, (7) subject of an argument, (8) incantation or charm, (9) Chief, head of a hapuu or iwi (William, H. 1975:370). When this term is considered in conjunction with whakapapa which were given in Court to support claims to land, and that whakapapa is ‘the process of laying one thing upon another’ (Ngata, Sir A. 1944 Raurunui-a-Toi Lecture 1:6), in the way the flax plant characteristically grows - two ‘nurse or parent’ leaves give rise to two new leaves, which in turn become ‘nurse or parent’ leaves, which give rise to two more new leaves, and on through succeeding generations - then the several meanings of take converge. If one visualises the foundation ancestors as the outside leaves with the next and succeeding generations emerging from them in orderly progression, then the take of land are the foundation or outside leaves (or ancestors) from whom the people, and therefore their claims to land emerge. Interest in the Land Court was high and all those who attended the take meeting at Wharekahika, went to the Court at Waipiro (Manahi Parapara, Wharekahika Block, Waiapu M.B.41:120).
The Court opened at Waipiro on the 17th May 1875 in a building formerly used as a church. Given that the Queen as the Kaitiaki between Maori and Pakeha first united the spiritual side of the two people through the Word of God, and then united their human side by the Law, the choice of a church as a Courtroom was significant; it combined both spiritual [p110] and physical laws.
The Waipiro Court sat under the 1873 Native Lands Act and the 1874 Amendment Act and was presided over by Judge Rogan and Assessor Hone Peti. Rogan, a former surveyor, Land Purchase Commissioner, and Resident Magistrate at Kaipara, had held several Court sessions at Turanga and Uawa in 1870 (see pages 84-85), apparently much to the satisfaction of the people there:
Te taenga mai nei a Te Rokena ratou ko ona hoa Ateha, katahi ahau ka kite me te mea nei ano ko te ra ka rere ake i te rua, ka tata te awatea
- When Mr Rogan and his Assessors arrived here, it was to me as if the sun had risen from his bed and the light of day approached.’
Wi Pere in Te Waka Maori 2nd November 1875: 262-3).
Hone Peti was of Ngaa Puhi, from the Bay of Islands. His tribe had almost decimated Ngaati Porou through one-sided musket warfare in the eighteen-twenties (see page 33), but since that time some links of marriage had been created between the two tribes. In almost every Waiapu Court session the Assessors were from Ngaa Puhi. Originally the Assessors appointed to the Land Court were Chiefs who had remained employed by the Government in the Ruunanga system (see page 24). Their function under that system was to settle all matters concerning their own people. Their new office extended their influence to other tribes but only in matters concerning land. While there is some evidence that differences in tribal practices (and therefore probably customs relating to land ownership) were appreciated by Government policy-makers, it was superseded by the problem of finding disinterested parties to settle land ownership.
It is difficult to ascertain which Chiefs were present in the Court on this occasion (and which were not) other than those recorded as giving evidence, however because Ngaati Porou’s opposition to the introduction of Government land purchase policy to their territory was relatively strong (Porter, AJHR 1875 C-4:3), any matter concerning land and Government was certain to have ensured a high attendance.
The Court Proceedings
After the list of claims for the Court session had been read, Major Ropata Wahawaha requested an adjournment for one day as ‘the claimants to several blocks of land set down for investigation, had not yet arrived’ (Gisborne M.B. 2:123). As no objection was made, the Court assented and adjourned. The next day Major Ropata requested that several of the cases gazetted for this Court be adjourned to a future sitting; the application was granted (ibid). The first case called was Matakaoa, a block of 3,049 acres. Te Hatiwira Houkamau, the eldest son of Iharaira Te Houkamau, stood to represent his people, and after being sworn in he began:
I live at Matakaoa, the name of my tribe is - Whanau a TuWhakairiora, sub tribe of Ngatiporou, I know the land shewn on the map before the Court. The survey was ordered by my father Iharaira Houkamau, the boundaries were pointed out by Wi Pahuru, there was no dispute, I have a claim to this land and come from thence to prefer it - I was sent by the owners. We claim through right of conquest. The cause of quarrel which caused the fight ending in our obtaining possession of the land claimed, was one of our people was thrown over a cliff and killed - None of the original owners remain, they are exterminated. It is nine generations ago since we obtained the land - We are now in possession.
I put in a list of owners together with myself - The names of the Ancestors from whom we inherit the land are
Hukarere, and ) Brother
Makahuri ) (Brother)
The owners are
firstly descendants of Hukarere
Te Keepa Matoeohanga
Te Kooti Te Kaka
Te Wikiriwhi Matauru
Te muera Te Muru
Hiria Te Oriki
Te Rana Waitaiki
Heni Kahiwa and at page 167 -
I apply that judgment in this case may be deferred till Thursday ……
MATAKAOA (cont) 20 May, 1875
brought forward from page 126
Hare Kopa Kopa
Mere Karaka Tiratapu
Mereana Kawa Kawa
Hana Mahikino 63 names
Memorial of Ownership ordered
for Matakaoa 3049 acres
Mem of 0 1) £3-0-0
Hatiwira applied that the following persons be
appointed Receiver of Rent for
“Matakaoa” Hatiwira Houkamau
Te muera Rangipurua
Te Keepa Tieke
Approved - ’
Gisborne M.B. 2:124-6; 167).
If one considers the Maori Land Court as the arena in which Maori cultural ties with the land were translated into European concepts of ownership, although in the name of ‘native customary title to land’ - which was difficult to define even by 1861 as native land customs varied between districts (AJHR 1861 E-1:6, 20) - then it is necessary to focus on the two culture’s interpretations of the same situation. In many respects the two interpretations must have coincided sufficiently for the Court to proceed. Waiapu people had gained some familiarity with Court procedure through Grey’s Ruunanga system (a reinforcement of their existing experimentation with Pakeha law), the Resident Magistrate’s Court at Waiapu (which was run by the Chiefs in much the same way Ropata Wahawaha conducted the Maori Land Court), and accounts, if not first hand experience (cf. Mohi Turei’s appearance in Court at Uawa in 1870 see page 85), of the Land Court sittings at Turanganui and Uawa. However beyond these procedural [p114] understandings are ‘taken for granted’ aspects of culture which have greater significance when attempts are being made to translate a key concern - land ownership - from one culture into another. These considerations may have resulted in cross-cultural misinterpretation, sometimes unconscious, which may have affected the conclusions reached by the Court.
The lack of opposition in Court to the evidence and list of owners clearly demonstrated the justness of the claim in European cultural terms - ‘silence gives consent’, but more than one culture was operating in the Court and it was possible that Maori opposition would have been expressed differently - perhaps by non-attendance at the Court. When a meeting was convened by Hohepa Karapaina for instance, around 1894, to discuss the history of Wharekahika, one of the Chiefs did not attend. Another Chief would not allow the discussion to proceed without him; a letter was sent but the Chief continued in his refusal to attend, claiming it ‘was a bastard meeting’ (Manahi Parapara, Wharekahika Block, Waiapu M.B. 41:124). In 1885 Wi Ropata told the Court that ‘Many of his [Tuwhakataukai] descendants don’t approve of Mere Katene’s line, which is the reason they have not come before the Court’ (Ahirau Block, Waiapu M.B. 10:157). Some claimants in later cases suggested that many of those in Court during the Matakaoa investigation were intoxicated (ibid:120) but such statements are difficult to assess. There is no indication in the Minute Books that there was any disturbance in Court, although six months earlier Rogan had adjourned his Court at Gisborne ‘in consequence of the confusion and uproar caused by the Natives during the hearing of the evidence of ----------’ (Motu Block, Gisborne M.B. 1:261), and it is possible that such statements were used to destroy the credibility of the opposing claimant’s evidence. Rogan’s experience in land issues and Hone Peti’s assistance would have overcome some cultural differences, but their unfamiliarity in 1875 with the Waiapu people, and [p115] their legal position which prevented the discussion of Court issues outside the Court (Rogan AJHR 1877 G-5:37; Hone Peti ibid:40) meant that opposition could have existed outside the Courtroom without their being aware of it. While such ‘unexpressed opposition’ in European terms was unlikely for the Matakaoa investigation, there appears to have been some local criticism (from Waiapu residents whose rights to Matakaoa had been overlooked?) of Te Hatiwira Houkamau’s evidence. Four months after the judgment was delivered by Rogan, Te Hatiwira Houkamau wrote to Te Waka Maori (although the letter was not published) and received the following reply:
If this case [Matakaoa] should again be heard by the Court, that will be the proper time and place for all parties to go into the question of ancestry. In the meantime, what is said by opposing claimants, out of Court, will have no effect.’
(Te Waka Maori 21st September 1875).
Until Maori people were sufficiently familiar with Court proceedings, which assumed that people with ‘legitimate’ claims would attend to press their interests even against the word of their Chiefs should their rights be disregarded, the situation was fraught with possible cultural misinterpretation.
From the Minute Books there is no indication that the evidence took the form of whaikoorero (formal speech given on a marae or in similar situations) with an opening tauparapara and greeting, a kaupapa - the main body of the speech, and a whakamutunga - closing waiata (chant) (Mahuta, R. 1973). However speeches of welcome made to the Court on the first day of any hearing were not recorded, although occasionally a list of who spoke is given in the Minute Books. When the Court closed ‘the usual valedictory speeches were made by the Natives and replied to by the Court’ (Waiapu M.B 43:295) but again they were not recorded. In some investigations waiata and haka were given in Court as evidence but never recorded. Even today people seldom speak publicly in a Maori situation without some preface of [p116] greeting. It is therefore quite likely that Te Hatiwira Houkamau’s evidence was prefaced by a formal opening that was not recorded and that his evidence represents the kaupapa of his speech.
Although Te Hatiwira had succeeded his father as the Chief, he was relatively young (30-40 years) in Maori terms to be speaking with authority on a matter of tribal importance. Outside of the Court high-ranking elders of Wharekahika such as Te Irimana Houturangi and Wi Pahuru would probably have spoken before him. It is not clear whether these kaumaatua attended the Land Court, certainly Mokena Kohere never did (Kohere, R. 1949:38), instead his interests were represented by his son Tuhaka Mokena. While Mokena Kohere’s grandson attributes his non-attendance to indifference (ibid) it is also possible that he was not prepared to submit his mana to a Pakeha institution. The older Chiefs may well have seen their position as similar to that of the Judge and Assessor (cf. pages 85-87) - certainly Te Irimana Houturangi had seen the Chiefs’ and Governor’s roles as similar in 1860, and Te Makarini (McLean) settled a dispute with the Chiefs’ assistance in 1872, and if this was so, the Chiefs’ participation in Court proceedings except as decision-makers was most unlikely. In order to meet the rapid changes taking place selected individuals of the next generation were primed to represent their people’s interests in a Pakeha world; these individuals often became the kaiwhakahaere - conductors of Maori Land Court cases. What is interesting is that many of those selected were not the eldest sons of the Chiefly lines, but rather the second sons, and it is possible at least for that generation that the mana Maori held aloof from Pakeha jurisdiction. It was not until the following generation that the ability to operate both Maori and Pakeha cultural worlds could be found in single individuals, rather than in a family group.
The Nature of the Evidence
Te Hatiwira began his evidence by placing himself spatially (from [p117] Matakaoa) and by descent (of Whanau-a-Tuwhakairiora, and therefore descended from Tuwhakairiora) on the landscape appropriate to this claim. Having established his father’s mana to order the survey of Matakaoa without opposition (and thereby his own mana), he went on to demonstrate his people’s support (willingness to have him represent their claims) and established his right to speak. He briefly demonstrated his knowledge of the history of the land, claiming by conquest - ‘None of the original owners remain, they are exterminated’, continuous occupation - ‘nine generations’, and descent - he named the two ancestors from whom the land was inherited. Te Hatiwira Houkamau’s evidence was brief because at this time pre-Court meetings were held to discuss conflicting take and all disputes were settled, often by compromise, outside the Court. In this way a united front - traditionally adopted - could be presented to the outsider, in this case, the Judge. A careful inspection of the list of ‘owners’ reveals several people who lived in the Matakaoa district, but not at Hicks Bay (Mere Karaka, Hona Hautonga, Wikiriwhi Matauru ... ), and others who lived outside the Matakaoa district (Henare Potae and Porter’s wife Herewaka), all of whom were close kin of the Wharekahika people. While judgments appear to emphasise occupation as a criterion of ownership the Matakaoa list suggests that for the Maori people in Court in 1875 ‘potential occupancy’, that is the right to occupy land by descent and therefore through kin ties was at least as important as actual occupation (cf. page 48). In a sense the list of ‘owners’ is a reaffirmation of kin ties and the land from which they grew (or the ancestor from whom they ascend), the physical embodiment of their relationship to one another. All the main names of the area appear to be included and if these Chiefs represent the interests of their people, then the number of ‘owners’ may be much greater than indicated by the list.
As the year following this Court sitting was free from ‘land disputes of importance’ (Campbell AJHR 1876 G-1:29), it is probable the Court session [p118] was viewed by both Maori and European as successful. For many Pakeha the Court was viewed ‘as an instrument for acquiring lands for the Government’ (Locke, AJHR 1877 G-5:5), for others ‘the prestige of the Court should be maintained as an unprejudiced tribunal’ (ibid). In some sense the former quotation is appropriate since the land - the Matakaoa Block - that passed through the 1875 Waipiro Court was in fact, leased, however Rogan and Peti’s Court appears to have been conducted along lines similar to Iharaira Te Houkamau’s mediation of disputes, and McLean and the Chiefs’ settlement of the dispute between Wiremu Keiha and Paora Haenga in 1872 (see pages 86-87) where mana remained in Maori hands. In 1876 Tuta Nihoniho of Ngaati Porou wrote of Rogan:
[he] is a fair and impartial Judge; he gives every man a fair hearing each one can advance his claims freely, and whoever has right (tika) on his side is right, and whoever has wrong (he) is wrong’.
(Te Waka Maori 8th August 1876:2).
Certainly Rogan and Peti’s judgments confirmed decisions made outside the Court, or in the case of dispute they tried to mediate between the two parties to enable them to work out their own compromise. The role played by the Land Court in 1875 at Waipiro fits well within the expectations of the Kaitiaki frame of reference, namely that the Governor (or Government) appointed Europeans and Maori (Judges and Assessors) to ensure (tiaki) that land disputes were settled, that is to see that the ‘proper’ (tika) order - peace and harmony, was maintained (see page 66).
Campbell, the Resident Magistrate of Waiapu, noted that although little land had passed through the Court, the first sitting ‘had the good effect of removing the prejudices which many of the Natives were previously possessed’ (AJHR 1875 G-1:15). Despite settler lobbying urging the Government to take ‘more effective steps for getting hold of the Ngatiporou country’ (Taranaki Budget cited in Maori in Te Wananga 16th April 1875:62) - a comment unlikely to inspire Ngaati Porou confidence in European intentions - [p119] land purchase of the East Coast proceeded cautiously:
it is not my intention to solicit the cession of lands, but to explain the equitable wishes of the Government upon the subject, and so let the Natives themselves offer blocks.’
(Porter, Land Commissioner appointed by Ngaati Porou at Wharekahika in 1874, AJHR 1875 C 4:3).
In October 1875 Major Ropata Wahawaha went to Gisborne to arrange a further Land Court sitting at Waiapu (Te Wananga 6th November 1875:335).
(ii) ‘Let that Court be Stopped Absolutely’: Judge Mackay and Judge Wilson’s Court of 1885-6.
'The Court refused to grant the applications [that all cases before the Court be withdrawn] made and stated that summonses would be issued to compel those of applicants who refused to attend to appear before the Court when the cases were called.’
(Judge Mackay, A. 16th March 1885, Waiapu M.B. 7B:222).
Between 1875 and 1885 Ngaati Porou continued to operate politically along tribal lines (see Resolutions made at Wharekahika in 1874 page 90). In 1880 they sent men to support the Government against Te Whiti at Parihaka (Henare Pereto (Bristow), Wharekahika Block, Waiapu M.B. 43:307), but they were also involved in the Kotahitanga Movement (which later became known as the Maori Parliament) at this time. The old regime - McLean’s Native Department, which had proved so effective in protecting Ngaati Porou land from alienation between 1865 and 1875, had been superseded. The Native Department’s budget had been greatly reduced and the Land Court moved under the control of the Department of Justice. Under the 1880 Native Lands Court Act Court procedure was brought into line with the Courts of Justice: Prima facie cases were stated, conductors or lawyers were expected to appear on behalf of clients, each witness was required to present fresh evidence, Judges were trained solicitors ‘The Chief Judge says he must have lawyers’ (Wilson, J. 1884:8), and the Judge’s power was extended to include the using of law [p120] enforcement - summonses, fines, imprisonment, etc. - on people who were, in the opinion of the Judge, disruptive (even wasting the Court’s time) to Court procedure. Several Land Court Judges (among them Rogan) had retired and been replaced by solicitors - trained in law but not in native customary law (ibid:7).
Local county councils had been established and in their fervour to become financially independent, the pressure for land for European settlement intensified. Cook County Council, whose boundaries extended from Cape Runaway to Paritu (Mackay, J. 1949:397), urged the Government to hold Land Court sittings (to the Native Department, 10th December 1878, Letter Book I:246) and to lift the inalienability clauses from native lands: ‘such a restriction ... [was] an insuperable barrier to the settlement of large areas of land within the County’ (12th October 1880 ibid:529). Between 1876 and 1880 the Court was held at Waiomatatini for one month per year; usually in March or April when food was plentiful. Waiomatatini is a full day’s ride on horseback from Matakaoa, provided the Waiapu River is fordable. In response to the Council’s pressure for land the length and frequency of Waiapu Land Court sessions were increased so that more titles to land were investigated, and more land became potentially available for purchase. Land purchases, by Government agents and European settlers, could only be finalised after the Land Court had investigated the title and awarded ownership. On the other hand, one Land Court Judge contended, following Judge Young’s death from exposure after visiting the Waiapu, that ‘Waiomatatini was not ... a fit place to send a Court to in the winter’ (Wilson, J.A. 1884:33).
Several requests were sent to the Cook Council from Waiapu people for the extension and improvement of roading in their district (Piniha Ratapu, Hirini Ahunuku, Apirana Toko ara na matou katoa 19th October 1877; Pene Waipapa and others of Waiapu 14th November 1881; Henderson, E. of Matakaoa [p121] 2nd November 1882 and 10th August 1884; Paora Taihaaki 14th April 1884; Whitmore, G. 19th February 1885 etc.) and tenders for the road maintenance contract were submitted (McClutchy, H. 1881 Letter Book I No. 484, No. 622; Major Ropata October 1880; Brooking, J. letter of confirmation by Council 4th April 1881). To facilitate such schemes the Council applied to have the area proclaimed a ‘Native Rating District’ and although the Tax Department assured the Council that any outstanding rates on ‘Native’ lands would be paid by the Colonial Treasurer (letter 25th March 1884), the Council pressed ‘native owners’ of land within five miles of the bridle track for payment. In response the owners obstructed surveys of new tracks and in some cases, fences were erected across existing roads (Letter 147 12th October 1882: Maraea Morris vs Cook County Council several letters 1884). Even though clarification of all laws affecting native lands had been promised (Rate Collector’s Office to Ruka Aratapu 12th November 1880), the first the Waiapu people heard of this new rating law was the Council’s advertisement in Te Kahiti Maori (Henare Potae to Cook County Council 20th May 1884). Major Ropata, Henare Potae and others claimed that:
‘te utu penei a te Kawanatanga mo nga whenua Kotahi pauna mo te Eka, te kau Hereni mo te Eka.
Ina hoki ko te utu a te Kawanatanga e hoko nei i nga whenua kia matou 1/6, 2/-, 3/-. Ka mutu nga moni e puta ana kia matou o matou whenua e hokoa ana e te Kawanatanga.
Kaore matou e whakaae ki tenei utu Reiti. He taimaha rawa (20 May 1884)
- the Government’s charge for land is one pound per acre, ten shillings per acre.
Since the Government’s payment to us for land is 1/6, 2/-, 3/-. That is all the money given to us when our land is bought by the Government.
We do not agree to this rate payment. It is too much.’
The Tax Department, to which the Council forwarded their letter, thought it impossible that Maori-owned land was over-valued: ‘the quotation of from 1/6 to 3/- per acre can only refer to sales made very long since’ (Letter to Cook County Council 4th June 1884). Yet in 1877 Major Porter [p122]had negotiated the purchase of the Tututohora Block for 2/- per acre (Piniha te Rito, Tututohora Block, Waiapu M.B. 11:344) and in 1882 Aorangi Maunga Block at Waiapu for 2/5 per acre (AJHR 1883 G-6).
In the Northern Waiapu, relatively secure from Government land purchase under the proclaimed raahui of 1875 (see page 93), and buffered from the Cook County Council’s drive for ‘progress’ (European settlement and ownership of land) by the more accessible Waiapu, Native Committees flourished. These Committees for extensions of the ruunanga system given legal recognition by Governor Grey in 1861 (see page 24), were revitalised under the 1883 Native Committees Act. Under this Act Committees of local people were able, with Government approval, to settle land disputes (Brooking, J. AJHR 1883 G-1A:7) . Some years before this Act was passed, Waiapu people had told the Resident Magistrate that their authority to run their own affairs had been confirmed by the Treaty of Kohimaarama (Gudgeon, W. AJHR 1879 G-l:6). Local people preferred the fines imposed by their own Committees to those of the Resident Magistrate because, as they told the Resident Magistrate ‘[the fines] were kept in the district and did not go to the Government’ (ibid). Local Committee Chairman, Anaru Kahaki, stopped European policemen from crossing the boundary at Waiotautu (ibid), the southern boundary named in the 1875 Raahui, but personally assured Gudgeon, the Resident Magistrate, that every one of his magisterial decisions would be carried out. In one incident, which involved a breach of the Arms Act, the Northern Waiapu people not only handed over the guns but also proceeded to Auckland to give evidence for the prosecution, ‘the Greatest Chief of Ngatiporou, Te Hati Houkamau’ (Gudgeon, W. AJHR 1880 G-4:11) was arrested on a warrant and imprisoned for two months ‘without the slightest opposition by his people’ (ibid)
Despite Government legislation which ratified the Native Committees and the offer of blocks of land for lease at Te Kawakawa and Te Kautuku [p123] (Gudgeon AJHR 1879 G-1:6), surveys outside these two areas were obstructed and trig stations pulled down (Gudgeon AJHR 1880 G-4:11):
‘it was thro’ Te Mokena that Anaru went and pulled down trig stations. Anaru te Kahaki, Hori Wanoa, my young brother and Henare Paringatai were all caught and sent to prison.’
Te Harawira Huriwai, Horoera Block, Waiapu M.B. 39:79).
Local feeling at this time oscillated between uniting against the sale or lease of land, as proclaimed under the 1875 Raahui, and the pursuit of individual hapuu interests. Hapuu were quick to realise that a most effective way of settling old scores was to begin negotiations with Government agents for the sale of their opponent’s land (cf. Ngata, Sir A. 1940:101); in this way former enmities were revived. The attempt by some local groups to survey the land under the Raahui was also a direct attack on the mana of the Chiefs involved in the proclamation. This challenge had to be actively repulsed for the Chiefs to maintain their mana. Titles of ownership for land could not be issued without a deposited plan, therefore land was generally not investigated by the Court until it had been surveyed. In some instances cases proceeded on sketch plans produced in Court (Waiapu M.B. 1:205), but adjudged owners had to wait for survey maps for their title to be confirmed.
Porter, the Government Land Purchase Officer, deducted the survey costs from the payment for the land to ensure it could be investigated by the Court (AJHR 1876 G-5:9-10). He claimed this overcame the problem of ‘earnest money’ - advances of Government funds on land prior to the ascertainment of ownership by the Court, nevertheless several claimants refer to Government advances on land:
‘£200 [was] paid at Uawa for this land by the Government.’
Te Hati Haukamau, Ahomatariki Block, Waiapu M.B. 11:197).
‘The Government ... spent money in advances for purchase of these lands. That is why they were [p124] surveyed.’
(ibid, Tapatu Block, Waiapu M.B. 42:48).
Sensitivity to surveys probably began with the bitter experience of the Government surveying land for confiscation after the Hauhau troubles. When a survey party arrived at Wharekahika Iharaira Te Houkamau sent his son, Te Hatiwira, and Hare Kopakopa to oppose them:
‘I stood in front of the theodolite and asked reason for survey. Winter [the surveyor] replied that the object was to ascertain Hauhaus of Wharekahika. I replied that the only Hauhaus in Wharekahika were guns, ammunitions and provisions placed there by the Government in Makeronia [a paa on the Matakaoa Block] ... Winter said in that case he would go back and tell the Government. Winter then went away and survey there was stopped.’
(Te Hati Houkamau, Wharekahika Block, Waiapu M.B. 42:179-80).
According to Porter ‘the spirit of opposition’ to the surveys of Tututohora, Pukeamaru, Raukumara, and other blocks was ‘stirred up by the Napier Natives’ (AJHR 1877 G-7:13). It is not clear whether he meant by example - in the 1870’s some of the Hawke’s Bay Maori people repudiated former land sales - or by direct contact - Karaitiana Takamoana from Hawkes Bay may have been to the Matakaoa district to campaign for the Eastern electorate, or advocates of the ‘Repudiation Movement’ may have been travelling throughout New Zealand to encourage other tribes to repudiate land sales in their own districts. According to Mita Hane blocks of Matakaoa land were ‘sold secretly’ in Gisborne (Tapatu Block, Waiapu M.B. 42:14), and Te Hatiwira Houkamau said that ‘negotiations for the sale [of Ahomatariki] took place [at Tolaga Bay] unknown to the tribe’ (Ahomatariki Block, Waiapu M.B. 11:197). According to Gudgeon the first many owners knew of sale or negotiation for sale of their lands was the entry of surveyors onto their land (AJHR 1880 G-4:11):
‘we did not hear of it [the sale of the Pukerangiora Block to the Government] until the sale was made ... [p125] and a surveyor sent.’
(Hirini Kohi, Pukerangiora Block, Waiapu M.B. 10:345).
When the Government surveyor (Winter?) and his guide came to Raohaopoto (a site on the boundary) an ‘ope nui’ of all the women of Tuwhakairiora was there (Hakaraia Mauheni, Pariwhero Block, Waiapu M.B. 25:15).
‘[their Chief] Te Kahurangi said we have come to stop your survey. I [Hakaraia Mauheni] told [her] ... we will not listen to you for I have come to survey my land ... she said that land is not yours ... I said ... my survey will go to the Court room ... then Te Kahurangi said you will be interfered with. I replied very good I die on my land ... So we went guns on back and slashes [slashers] in hand to the survey ... [the next day] all of Tuwhakairiora mustered whether they had a right or not and danced the war dance here ... By this time Ropata [Wahawaha] had heard what was going on and feared lest someone should be killed.’
and suggested that the survey be stopped. Then ‘the Government urged the land should be surveyed to pay for their money’ (ibid) and the survey began and was again met by an ‘ope’. They ‘told me if you persist we shall have trouble ... from that date Pukerangiora survey was only a small one’ (ibid:16-17; Gudgeon, W. Resident Magistrate of Waiapu AJHR 1879 G-1:6; AJHR 1880 G-4:10). Although Te Hati Houkamau sent Mere Katene and others to stop the survey of the Omaika Block (Mere Katene Ahirau Block Waiapu M.B. 10:151), the survey at Ahomatariki was allowed to proceed:
‘Great indignation ensued when the money was produced by ------- to the tribe and it was determined to send it back but he Te Hati persuaded the people not to act precipitately, and eventually it was decided to return the money seeing that ------- was a man of great note among them and they did not wish to stultify him with the Government on account of the receipt of the money. We all agreed if the money had been returned the survey would not have been made.’
(Te Hati Houkamau, Ahomatariki Block, Waiapu M.B. 11:198).
By 1883 changes in ‘the organised opposition to surveys’ in the [p126] Northern Waiapu were beginning to take place (Brooking, J. AJHR G-IA:7-8). People appeared to want their land surveyed so that it would pass through the Court: ‘The reason I consented to it being included in the survey was that I might get it through the Court’ (Piriniha te Rito, Pukeamaru Block, Waiapu M.B. 6:228). Brooking attributed this change in attitude to jealousies arising over ownership and grievances caused by the decisions of the Native Committees (AJHR 1883 G-1A:8), but is more likely that since some sales and leases were being negotiated before ownership was confirmed by the Land Court, one strategy to make sure that owners were not overlooked, was to pass the land through the Court . For some people opposed to the Land Court, there was still a considerable difference between the Land Court investigations of ownership and the sale or even lease of land. During a meeting to discuss Government negotiations for the purchase of 2000 acres at Wharekahika:
‘Te Irimana [Houturangi] said he did not wish Wharekahika put thro’ the Court in his lifetime, but that the money was greater than the Court as the money meant the land was to be parted with altogether.’
(Te Hati Houkamau, Wharekahika Block, Waiapu M.B. 42:185).
Several applications for investigations of Matakaoa land were made and although these included coastal portions, when the Court began to investigate Matakaoa land in 1884, it confined its attention to land under negotiation for sale or lease to the Government. On the one hand the Court’s procedure reflects vested Government interests, but on the other hand the strategies to retain land on the local level make it difficult to know how much influence the Chiefs had on Porter’s expenditure on surveys and therefore indirectly on the cases heard by the Court.
The Court Proceedings
The blocks investigated in this session were: Ahirau, Pukerangiora, Pohautea, Aruhemokopuna, Tututohora, Ahomatariki (Raukumara), Oruataiaha, [p127] Pt. Ngatarewa, and Whakaangiangi (Waiapu M.B. 10-12).
With the influx of solicitor Judges, such as Mackay, Brookfield, O’Brien, Symonds, etc., the Court room was becoming more like a Court of Law and less a forum for discussion and compromise under Maori control (cf. Ropata Wahawaha’s 1875 Court at Waipiro), with disputes mediated by Judges and Assessors. A preference for written rather than oral proof was beginning to emerge, although as one witness demonstrated in Court, he could write other people’s names on the application for investigations (Rehearing of Puketauhinu, Judge Mair’s Notebooks MS A 31:138). For the first time contradictions in evidence found the Judge ruling that:
‘the witness has so often contradicted his own statements the Court cannot believe one word he says: and will therefore have to cancel all his evidence as not being reliable.’
(Judge Brookfield, Pukeamaru Block, Waiapu M.B. 6:240).
In one incident, after a Chief had unsuccessfully objected to one of the names on the list of owners read in Court, the Judge ordered that ‘Constable Stagpoole be instructed to take an action for perjury against ------- [the Chief]’ (ibid:312). The Judge’s decision was based on the fact that two witnesses (both close relations of the person named on the list) countered the objection (cf. footnote 20). In a Maori situation, or in the 1875 Land Court at Waipiri, the difference in age and rank between the Chief and the two witnesses would have meant the Chief’s objection was upheld, but in a Court which had been shifted towards the principles of European law by the 1880 Native Land Court Act, the word of every man was equal and the Chief was overruled and charged with perjury.
It was during this period that the investigation of ownership of land by the Maori Land Court began in earnest on the East Coast. Claimants’ attendance was mandatory as only those in Court were awarded ownership (AJHR 1886 G-9:14:
‘It has been proved over and over that if an owner absents himself, trusting to his tribe to protect his interest, he stands a very poor chance of getting his fair share of land.’
(Booth, J., Resident Magistrate Poverty Bay, AJHR 1884 G-1:17).
Despite this, some of the Matakaoa people, including the Chief Mokena Kohere, continued to stay aloof from the Land Court:
‘This chief did not get a single acre ... his descendants ... lost their lands where once their forbears flourished, they lost their three cemeteries and the ashes of their sires.’
(Kohere, R. 1949:100).
Other Matakaoa people probably lost their rights to land in the same way. Only those listed on the original title of ownership could apply for a rehearing (ibid). In this way the cost in time (absence from home and cultivations, children’s education, etc.) and money (food, grazing, etc.) was high; often so high that litigants who were awarded ownership were obliged to sell their land to offset their expenses (see page 152).
When the first protracted sittings opened in the school house at Waiomatatini in 1885, ‘several Natives ... addressed the Court on the subject of fees stating that if the fees were demanded at once they should be obliged to withdraw their cases now before the Court as they had no money.’ (Waiapu M.B. 7B:2). Judge Mackay stated that he would refer the matter to the Chief Judge but in the meantime ‘the fee of one pound would have to be paid in each application’ (ibid:14). As a result a number of claimants wanted to withdraw their applications altogether, but the Court would only allow three month’s adjournment (ibid). To break the mounting tension between the local people and Judge Mackay, an elder applied to have land, which Ngaati Porou wished to hand over to the Government for school purposes, investigated (Eruera Kawhia ibid). Then a European stood up and said he wanted the succession claims on behalf of his children to proceed. Eight claims were heard and a fee of £14-14-0 paid. When the local people saw [p129] the amount a European had to pay (they would have expected the Judge to show compassion towards his fellow tribesman), they renewed their applications for dismissals and adjournments of their own cases with some urgency (Wi Pewhairangi, address to Native Minister, Ballance AJHR 1885 G-1:74). While the first application by Te Hati Houkamau succeeded (the case was dismissed), several applications later, with claimants stating that they had ‘no money to pay the heavy fees demanded by the Government’ (Hana te Rore, Waiapu M.B. 7B:28), the Judge refused to allow anything more than a month’s adjournment on ‘new claims’. That afternoon ‘no applications were brought before the Court’ (that is, no local people attended the Court). Sir George Whitmore, respected British campaigner and resident of Waiapu, spoke to the Judge on behalf of Ngaati Porou, saying that he wished the fees lessened, but the presiding Judge stated that it was not in his power to make any reduction (Wi Pewhairangi AJHR 1885 G-1:74). Whitmore then set off for Auckland and succeeded in getting the Chief Judge to reduce the charges to five shillings for each application (ibid). In the meantime a meeting was held at Waiapu and it was decided that Ngaati Porou should travel to Whakato (near Gisborne) to lay their grievances before the Native Minister (ibid). One man however disagreed and then Ngati Porou became undecided: ‘they thought that if some of them came here [to Whakato], some of the people would proceed with the business [Land Court investigations of title] during their absence’ (Wi Pewhairangi ibid: cf. page 128). For the next four days the Court opened but no applicants attended (Waiapu M.B. 7B:30-33). On the fifth day five succession claims were settled and an application for an adjournment - ‘to allow people interested to get in their crops of oats which are now ripe’ (Hotene Porourangi ibid:34) - was granted. The next day the Court opened but again no claims were brought before it (ibid). Finally, nine days after the dispute over fees and claim dismissals the Court stated that:
‘authority had been received from the Chief Judge that fees might be reduced at the discretion of the Judge presiding ... no charge would be made for stating the case or for short cross-examinations [in title investigations, that is ‘new claims’].
The Court also encouraged the claimants to form a Committee to assist the Court in coming to a ‘just conclusion’, and agreed to hear succession claims to give claimants in ‘new claims’ an opportunity to arrange their cases (ibid). The Committee suggested by the Court was probably to encourage the local people to settle their disputes outside the Court - just as pre-Court meetings already discussed the take to be set up in Court - rather than to investigate the title to land (cf. 1900 Maori Lands Administration Act page 168). The Court was delayed for a further three days while the Waipiro Church was opened, then it began the title investigation of Hauanu Block .
Meanwhile a small party of Waiapu people, including Tamanui Te Ra - ‘the man of highest rank amongst Ngaati Porou; he is the head of their tribe, and whenever he speaks he speaks the wish of the whole tribe’ (Wi Pewhairangi AJHR 1885 G-1:74) - travelled to Whakato to meet Ballance, the Native Minister. They welcomed him ‘in remembrance of Sir Donald McLean, who has shown love to the Native people; come to us in the same spirit’ (Tamati te Rangituawaru ibid:66), and apologised for the small number of Ngaati Porou present - ‘it is on account of the Government work, the Land Court, that there are no people to welcome you today’ (Hirini te Kani ibid). At this time the Waikato people had become so aggrieved with the New Zealand Government over the land confiscations resulting from the 1860’s warfare, that they had gone to England to petition the Queen for her assistance. The Queen had referred the petitioners back to the New Zealand Government. For this reason King Movement supporters began to travel throughout the country to encourage other tribes to withdraw their land from the Land Court . Since land could not be purchased for European settlement (even under the 1863 New Zealand Settlements Act - see page 24) until the title of it had [p131] been ascertained by the Court, the King Movement supporters hoped that by stopping the flow of land for settlement throughout the country that they would force the Government to consider and rectify the Maori people’s grievances over land confiscations. The pan-tribal movement was becoming effective and to counteract it, Ballance, who had recently been appointed the Native Minister, also journeyed around the country, holding meetings to discuss the Maori people’s grievances, and thereby giving some visible semblance of empathy with their cause. In fact his motivation may well have stemmed from the pressure for land from settler electorates. Ballance assured those present that there was no need for the Maori people to go to England for rights and justice as it:
‘is the policy of the present Government to consult you, to listen to your grievances and to try to remove them, to assist and strengthen you in the possession of your lands, and to see that, when you part with your lands, you do it in the light of day’ (ibid:67).
Encouraged, Wi Pewhairangi requested the immediate adjournment of the Court at Waiomatatini as ‘the Native claimants have no money to pay the Court fees; ... let it be postponed until Native land laws are amended and … Native Committees for the various blocks have been appointed or elected’ (ibid:67). Although trouble arises in Court,
‘we know that certain people are entitled to certain blocks of land; but owing to the action of the Court, these people’s claims are not upheld, and they lose their land. There are some people who are well known to be owners of land, but, owing to their ignorance and incapability of conducting their case in the Court, their land passes into the hands of people who are better educated or who know how to conduct their claims better’ (ibid).
The Chief Tamanui Te Ra added,
‘I came here to support the request for an adjournment of that Court ... Let that Court [p132] be stopped absolutely ... We want you to go to Waiapu now, otherwise the Court will go on’ (ibid).
The speakers that followed - Wi Pere, Ruka Aratapu, Raniera te Heuheu, and others - all supported the request for an adjournment of the Land Court at Waiapu, but Ballance contended that he had previously received several applications for a Land Court at Waiapu, and remained unconvinced:
‘Is this the wish of the majority of the people? I have heard that some of the most important chiefs living there ... are in favour of this Court ... I have no power to adjourn the Court. That power rests with the people who have cases before the Court , and with the Chief Judge’ (ibid:72).
Just after the deputation returned to Waiapu, Hori Ropiha , a messenger from the Maori King arrived, and two weeks later Te Hatiwira Houkamau requested an adjourment of the Land Court so that Ropiha’s proposal ‘to withdraw all their cases from the Court’ could be discussed. After such a meeting Te Hati stated Ngaati Porou ‘would be in a position to state whether they would go on with their cases or not’ (Waiapu M.B. 7B:220). The Judge ‘saw no cause for an adjournment as whatever they might do would not alter or affect the intention of the Court to proceed with the hearing of the cases before it’ (ibid). Piniha te Rito supported Te Hati’s application and added that ‘they would take advantage of the meeting ... to arrange disputes between the parties interested in Tututohora in order to facilitate the work of the Court (ibid). The Judge somewhat placated replied that ‘an adjournment for that purpose was a different thing altogether’ (ibid). The next day Te Hati stated that:
‘the meeting ... had ... decided that all cases before the Court should be withdrawn ... he himself was not influenced by anything that Hori Ropiha had said but he could not oppose the wishes of the whole people ... Paratene Ngata and others who had taken the most active part in bringing about this decision ... ought to have been present ... it appeared that they had made [p133] him the mouthpiece and then deserted him’ (ibid:221).
The Judge refused to allow the cases to be withdrawn. Hone Paerata, Wi Pewhairangi, and others then said that ‘if their applications [for withdrawal] were not granted they would return home and not attend Court again this session’ (ibid:222). In that case, the Court announced ‘summonses would be issued to compel those of applicants who refused to attend to appear before the Court when the cases were called’ (ibid). In an attempt to retrieve and capitalise on the situation Paora Haenga and Tuta Nihoniho both requested the Court to proceed with their cases (ibid). After a long discussion it was decided to investigate Pohautea Block, but the next day it was adjourned as one of the claimants contended that he had Church business to attend to (ibid). Judge Mackay persisted in his investigation of ‘new claims’ for another seven months. While it is difficult to assess how much compulsion was required to force this land through the Court most of the judgments given in this session had to be reheard. The judgment delivered by Mackay at this time for the Waipiro Block resulted in three rehearings and two petitions to Parliament . During the summer (September - March) the Court was adjourned. When it opened again in ‘the old schoolhouse’ at Waiomatatini claimants immediately asked for a reduction of the Court fees. This time Judge Mackay, although convinced that any reduction would have the effect of prolonging proceedings and was therefore inadvisable, stated that the Court ‘would make the fees as light as possible’ (Waiapu M.B. 10:36-39). His role however, as legal administrator, as described in the previous session, continued. When the Ahirau Block was being investigated the Judge reminded claimants that:
‘under the Act [1880 Native Lands Court Act] it had power to impose penalties on persons bringing forward frivolous and vexatious claims to the detriment of the bona fide claimants of the land; and could make an order for costs in such cases which if not paid, [p134] the offender, could be brought before the ordinary Court of Justice for punishment and intimated that in future this power would be exercised by this Court under such circumstances’ (ibid:159).
Claimants in later Court sessions contended that ‘everything was confused in the days when the land was first put through’ (Paora Haenga, Omaewa Block, Waiapu M.B. 13:208); ‘it was a very peculiar Court’ (Te Hatiwira Houkamau - of the Whakaangiangi investigation - Horoera Block, Waiapu M.B. 39:147); ‘there was great amount of wrangling going on’ (Alfred Banks ibid:193) during the 1885-6 Court sessions . In the investigation of the subdivision of the Omaewa Block Judge Mackay arranged that instead of having counter-claimants everyone should have the opportunity of examining the claimant - Paora Haenga (ibid), however the case was adjourned so that a case of Major Porter’s could be heard, and all the parties did not get an opportunity to examine the claimant (ibid:194). Judge Mackay encouraged the parties to settle the matter themselves outside the Court, but they could not (Paora Haenga, Omaewa Block, Waiapu M.B. 10:38). Meanwhile a piece of paper was handed to Judge Mackay with subdivisions on it which gave each party a share of ‘good and bad land’ and a sea frontage - ‘I thought the division fair and upheld it (Hakaraia Mauheni ibid Waiapu M.B. 13:204). However the other party contended that the subdivision was incorrect - ‘it was just the opposite’ (Hemi Tapeka ibid:190), so the Court adjourned the case (Alfred Banks, Waiapu M.B. 13:192). Then the Native Minister arrived at Waiapu (cf. page 140), ‘to learn [the Waiapu people’s] requests and grievances and to receive their opinions on the proposed New Bill to be presented to Parliament ... regarding the disposition of Native lands’ (Waiapu M.B. 10:182). At the first Court session after the meeting with the Minister, Judge Mackay announced his departure for Wellington on ‘Parliamentary work’ (ibid:183). The case was brought before Judge Wilson , but before the evidence was completed ‘a gale of wind came and nearly blew [p135] the Courthouse down’ (Alfred Banks, Waiapu M.B. 13:192). Judge Wilson suggested that the interested parties should discuss the matter and come to some agreement. Then the Court adjourned to Awanui and the subdivision put forward in Judge Mackay’s court was awarded. When claimants tried to point out that the two blocks had been awarded to the wrong parties - No. 1 block should have gone to the descendants of Ikapohe, and No. 2 block should have gone to the descendants of Te Wai, Judge Wilson said: ‘That is for me to decide’ (ibid). The court session adjourned after the lists of names were handed in but before the ‘Certificate of Title’ (1880 Native Land Court Act) was awarded. In 1889 the case was brought before Judge Scammell, who after hearing the evidence, reversed the former judgment in accordance with the wishes of both parties (Waiapu M.B. 13:215).
Judge Wilson’s judgments compromised opposing claimants by dividing the block between them, although claimants had opened their cases with: ‘I claim the land exclusively and deny the right of Hakaraia. My hapu is Whanauataueaeru. My claim is from ancestry and occupation’ (Te Raana Waitaiki, Pukerangiora Block, Waiapu M.B. 10:316). This practice appears to have been successful in that few, if any applications were made for a rehearing after Wilson’s Court; it may however have undermined traditional ‘ownership’. His rulings were also pedantic: Two days after the judgment of Pukerangiora, a block embroiled in long-standing disputes and whose survey was stopped by an armed party in 1879 (see page 125), the Judge demanded that the lists be handed in within two days (Waiapu M.B. 10:366).
Like Mackay his concern was with efficiency. After informing Mohi Turei, in the investigation of the Pohautea Block, that his witness must not repeat evidence given by former witnesses (ibid Pohautea; 368), Judge Wilson refused to allow Karaitiana Pakura to call further witnesses, as on the conclusion of his cross-examination he had declined to do so. When Karaitiana suggested that the Court had misunderstood him, Judge Wilson [p136] said in that case he should have objected when the next claimant’s case was taken: ‘because the Natives here know well the way of the Court and are accustomed to them and that if the precedent was allowed the cases would be protracted indefinitely’ (ibid:368).
The Nature of the Evidence
The evidence given in this 1885-6 Court session demonstrates right of ownership in three main ways; negotiations with the Government for land sales, the conducting or disruption of survey parties, and land use. This evidence is supplemented by traditional histories of the land. When claimants open their case they state their ancestral right to the land, which is also a statement of their right to speak in regard to the land under investigation. Which of the three main topics are chosen to prove right of land ownership varies between claimants.
After each Court session the amount of land ‘finally acquired by the Government’ rose (AJHR Government Land Purchase Returns), which suggests that the function of the Land Court was to make land available for settlement. Local opinion at Matakaoa over land sales was divided. Claimants in this, and later sessions, suggest that land was sold ‘secretly’ in Gisborne (see page 124):
‘When I was at Whanganui the land was sold to the Government. I came back in 1876 on 2nd July. I landed at Uawa. I had been back about ⅓ year when Major Porter came on his way to te Kawakawa to survey this land - Some agreed to the survey Hati among the number, others objected. I spoke to Major Porter and asked him to raise the price or he would get no return for the money paid - he said if the land is not surveyed I want the money paid, refunded. I said I would pay back the £13, received by my matuas - Major Porter wanted the whole returned: the matter dropped’
(Piniha te Rito, Tututohora Block, Waiapu M.B. 11:344).
The money from these sales was divided at meetings; ‘I believe each hapu received money on account of the several pieces owned respectively [on the [p137] block]’ (Maraea Kaku, Tututohora Block, Waiapu M.B. 11:357). The sales of blocks to Government were cited in Court as proof of their ownership, and during the investigation of the Pukerangiora Block a document of the sale was produced as evidence (Waiapu M.B. 10:339). The impression given from the evidence is that negotiations with the Government were often entered into, to substantiate the claim to particular blocks of land in the Court. In the Pukerangiora judgment however, the land was awarded to the party who had not negotiated with the Government. As the £55 advanced by the Government on the land had gone to the wrong party a request was made for a refund. When Judge Wilson found that it could not be refunded, he ordered that the money ‘be made good out of other lands held by ... the Tuwhakairiora tribe’ (Waiapu M.B. 10:156). Both men and women negotiated land sales with the Government:
‘I know that Kokomuka was sold to the Government by Kiriona but it was a separate transaction to the sale of Ahomatariki’
(Paora Taihaaki, Aruhemokopuna Block, Waiapu M.B. 11:242);
‘Ripeka sold these two pieces to the government’
(Popata Pariohe, Tututohora Block, Waiapu M.B. 11:364).
Land was kept from sale by placing it under the care of Hamiona (Puha?, a respected Matakaoa kaumaatua) who was appointed a kaitiaki (trustee) under the 1875 proclamation (Te Hati Houkamau, Ahomatariki Block, Waiapu M.B. 11:264). Another strategy employed to stop land sales was to disrupt the survey. Women were first sent to stop the survey to signify peaceful resistance to the sale, as in the Omaika and Pukerangiora blocks . ‘Owners’ were invited to discuss their grievances and settle their disputes before Native Committees, but when this failed to halt the survey, men were sent to fight if necessary for their rights to the land . These disputes were often carried unresolved into the Land Court.
In this Court session detailed accounts of conducting survey parties around the boundaries were given, rather than a recital of boundaries, to [p138] demonstrate a right to the land. For the first time people identified as ‘pu korero’ - Himiona Turi, Kireona, Wi Tamatama - who possessed the knowledge of the history of the land, appeared in the Land Court as witnesses. In the Ahirau investigation the same ‘pu korero’ gave evidence for both parties (Waiapu M.B. 10). They were the advisors of the tribe - ‘they pointed out the boundaries of the part given and returned’ (Rihipeti Tawhena, Ahirau Block, ibid:160). The surveys were however, often conducted by the Chiefs: ‘I pointed out the boundaries at the survey in 1880. I remember when the survey was made. Te Rei conducted it’ (Himiona Turi, Ahirau Block, Waiapu M.B. 10:176). There is some evidence to suggest that tribal history was imparted on request before the Land Court came to the Waiapu district: ‘I remember when the Court first came here the old men had begun to recount the history of the land before then’ (Pita Rooki, Ahirau Block, Waiapu M.B. 10:165). When this knowledge contradicted the boundaries set down in the survey map on which the Land Court fixed the title of ownership, ‘owners’ of both adjoining land and the block under investigation, objected. In the Ahirau case, which was retained by Maori owners after the title investigation, a gift of land which had been recently returned by one group was included in the survey, and it was contended that:
‘the old people of us have included the part marked A in the survey of Ahirau in order that we may be defrauded of it and that they may alone be included in it as owners’
(Pita Rooki ibid:164).
Interestingly the Judges also used the ‘pu korero’ to confirm whakapapa in Court (Puketauhinu succession Waiapu M.B. 10:269). Following the survey the land was taken before the Court so that the ownership could be fixed and the sale completed.
The evidence given by claimants concerning occupation suggests that there were links between the Matakaoa and Waiapu districts: ‘They are in the habit of going backwards and forwards between Waiapu and there [Te Araroa]’ [p139](Neho Kopuka, Tututohora, Waiapu M.B. 11:359). Other claimants also suggest that residence patterns were flexible:
‘Wh-a-Tapuhi, Te Hinekehu and others came there on our invitation to assist us put gravel on the taro bed’
(Mere Karaka, Aruhemokopuna Block, Waiapu M.B. 11:157).
When it is remembered that these accounts were given to show right to land both by authority over it, and occupation, it is difficult to assess the amount of movement over the landscape, but certainly it appears more flexible than the European concept of fixed residence. Given that Judge Mackay based his judgments on occupation and that several of the blocks investigated in this session were inland blocks, only seasonally occupied to utilise forest products, the disjunction between the concept of fixed and flexible occupation becomes vitally important. Judge Mackay certainly recognised the flexible nature of Maori residence patterns over several generations, but refused to allow it:
‘If such a principle was sanctioned the whole of the tribal lands would become one vast estate in which the whole of the members of each hapu would become joint owners’
(Hauanu judgments, Waiapu M.B. 7B:216).
It is not clear however, whether he officially recognised the seasonal ebb and flow of residence. Claimants quickly adjusted cases to include evidence of occupation. In bush covered areas they gave details of collecting food from named trees, and named rat and bird-catching sites: ‘those are all the signs of occupation I know’ (Wi Ropata, Ahirau Block, Waiapu M.B. 10:93).
appeared to give detailed judgments based principally on proof of
‘even if the counter claimants ever had any right, which appears very doubtful, if the true history of this early tenure of this land could be ascertained, then it has become to use a Native expression kua mataotao noa atu [grown completely cold] and can not be revived’
(Hauanu judgment, Waiapu M.B. 7B:217).
In contrast Judge Wilson’s judgments were based on ‘ringa kaha’ - the strong arm. For him the most important evidence demonstrated the ability to hold land:
‘The Court does not consider that the descendants of Tamakoro were at any time in a position to dispute the claim of Te Aotaihi to the land under adjudication and dismisses their counterclaim accordingly.’
(Ahomatariki judgment, Waiapu M.B. 11:300-1).
There is some evidence to suggest that claimants shifted their cases to fit the Judges’ criteria but the changes are more readily seen during the next Court session.
The traditional histories given in this Court session are more detailed than those of 1875, but they are not the bulk of the evidence, which is restricted for the most part to events within the lifetime of the claimant. The traditional histories focus on gifts and conquests, and give the impression of an ever-changing or at least negotiable landscape of ‘ownership’ within ancestral boundaries. In the Aruhemokopuna judgment as:
‘neither of the tribes [hapuu?] are unanimous as to where the boundary is and error exists in the minds of some putting forth claims as to the side they belong to: such persons being closely connected with both sides’
(Waiapu M.B. 11:203)
the Judge drew a straight line through the block and awarded one side to the descendants of Huaanga and the other side to the descendants of Hinepare (ibid:232). When lists for this block were being prepared difficulties arose when people who were entitled to that part of the block not yet dealt with claimed to be included in the list (Hone Mokena ibid:233; Hori Mahua:302). Evidence given in Court clearly shows that boundaries were moved in traditional accounts to settle disputes (Paora Haenga, Waiapu M.B. 11:2), and that land was divided to settle disputes, even in the lifetime of the people in Court: ‘When Te Rei [Huna] and I got back he divided the hill - the south side to Kautaharua, and the north to [p141] Aowharua’ (Himiona Turi, Ahirau Block, Waiapu M.B. 10:171).
Claimants also referred to a continuous ebb and flow of people across the landscape:
‘The descendants of Te Aotarewa did not live exclusively at Waiapu but also at Kawakawa’
(Neho Kapuka, Ahomatariki Block, Waiapu M.B. 11:260);
‘Te Manu Koau came from Hawai they belonged to Whanau apanui. They were refugees - they were attacked by the people here on their arrival and the remnant were the people who worked on the land’
(Hoani Ngatai, Ahomatariki Block, Waiapu M.B. 11:276);
‘The second fight of Tuwhakairiora was to Whakaumaro at Matakaoa on account of Mohiraia. Ngaitumoana were defeated and driven to Otanga - ’
(Te Hati Houkamau, Ahomatariki Block, Waiapu M.B. 11:284).
This suggests that occupation and ‘ownership’ of land was a flexible on-going process. It also hints that the blocks surveyed and put through the Court were, because of their static quality, artificial constructs. The evidence on occupation however suggests that smaller groups, perhaps at the hapuu level, were closely associated, at least during the lifetime of the people in Court, with specific areas within ancestral lands. ‘I believe each hapuu received money on account of the several pieces owned respectively in the block’ (Maraea Kaku, Tututohora Block, Waiapu M.B 11:357). In the Ahirau case Himiona Turi states that ‘I have told you that it [the land] was not divided but I referred to parts only’ (Waiapu M.B 10:172). What appears to be emerging is a notion of ownership similar to Neho Kopuka’s statement concerning the sea - ‘shell-fish rocks were apportioned but there was no division of the fishing grounds (Tututohora Block, Waiapu M.B. 11:363). What I am suggesting is that land, like fishing grounds, was ‘owned’ or held in trust by large groups, which included several hapuu, and was not divided within the ancestral boundaries, while maara (cultivations) like mussel rocks, that is parts of the ancestral lands, were apportioned and closely associated with smaller groups (hapuu). [p142] The ‘ownership’ of these smaller areas was negotiable with other hapuu (cf. pages 50-51).
Government land purchase compounded the already complex situation where fluid and negotiative rights to land were being moulded to fit fixed notions of tenure, crystallised in perpetuity first by the survey and then by the award of title by the Land Court.
The traditional material in this session also hints at the existence of two types of mana - mana whenua (mana over land) and mana tangata (mana over people). I suggested (in Chapter 3) that during the 1860’s Land Wars, affiliations with the King Movement or the Government may have, in some instances, followed mana whenua and mana tangata lines. Traditions suggest that the person who received food from the land held the mana over that land (Ahomatariki Block, Waiapu M.B. 11:199). Claimants in the 1885-6 Court session certainly differentiate between mana tangata (mana over people) and mana whenua (mana over land):
‘The mana of Tuwhakairiora did not affect the ownership of the land, it existed only over the people’
(Keeti te Ahurangi, Ahomatariki Block, Waiapu M.B. 11:217);
‘The children of Hinerupe derived mana from their father Hukarere over the people as well as from their mother over the land’
(Piniha te Rito, ibid:250).
Coincident with the escalation of local difficulties the Land Court became judicial in character. Solicitor Judges concerned with efficiency expected each witness to produce fresh evidence relevant to the claimant’s case, as in a Court of Law; in this way the Judge was expected to discern the ‘truth’ (cf. John White’s comment on page 25). There was more than one culture operating in the Land Court and for Maori people ‘truth’ was established by consensus of opinion. For this reason witnesses were required by local criteria to go over the same evidence to demonstrate that their [p143]evidence was in fact common knowledge - ‘The whole of Ngatiporou know of the history I have given’ (Wi Ropata, Ahirau Block, Waiapu M.B. 10:93). Faced with criticisms of the cost of protracted sittings both on the claimants and as barriers to European settlement, Judges saw these tactics as the very cause of the trouble (see page 133). Under the judicial process (legislation by the 1880 Native Land Court Act) charges could be laid against people judged to be deliberately wasting the Court’s time (see page 134) and summonses could be issued to ensure the Court attendance of claimants so that the investigation of their land could proceed even without their consent (see page 133). The role of the Land Court as mediator between the Maori and Pakeha cultural worlds, guiding the translation of land ownership from one culture to another, had become distorted and dictatorial (cf. 1875 Waiapu Court). In the Matakaoa district however, the ‘whenua tuturu’ remained outside the jurisdiction of the Land Court and the united reservation against sale or lease without tribal consent protected these lands from negotiation by Government.
II The Second Period 1894-1909
The Matakaoa land investigated in this period was the land reserved from sale or lease by the 1875 Matakaoa Chiefs’ proclamation of ‘whenua tuturu’. Even today (1982), much of this land is retained by local people. Meetings to settle the take to be set up in Court had become less effective, and disputes were taken into the Court. For this reason the number of parties contesting ownership increased dramatically. In these sessions the evidence for each block often took more than four months to relate, even though the Court sat seven hours per day, six days a week, and filled some three-four, three hundred and fifty page minute books. In 1894 applications for land title investigations were recognised by Judge Gudgeon as proof of ownership. By 1908 several applications for the investigation of each block that was not yet investigated, had been lodged; these were submitted to Judge Sim, in the 1908 session, as proof of ownership (cf. Hohepa Karapaina, Waiapu M.B. 41:190).
At the commencement of each ‘new claim’ during this period, with so many applicants, claimants were required by the Judge to briefly declare their claim; and after ‘considerable discussion’ in which the people in the Court had an opportunity to set up claims or join parties, and parties with interests in common were encouraged to amalgamate their claims, the Judge decided the order in which the claims were to be heard. Proficient operators of Court procedure made a profession of conducting Land Court cases - in one instance Paratene Ngata of Waiapu appeared as a conductor in Thames in 1897 (Judge Mair, W. Diary, November 1897). Their payment was often an interest in the land under investigation. With the cases so hotly contested, judgments often took three-four days to prepare, and some hours to read aloud in Court (ibid 3rd-6th July 1888). After judgments were given, disputes over the allocation of the control of lists, the lists of owners, and the share allotment, commonly broke out in Court. In cases where [p145] objections could not be compromised, litigants had to give further evidence and the matter was decided by the Judge. The inability of local people to settle or compromise disputes outside the Court was probably not in their best interests, since it gave the Judge considerable power, not only over Court proceedings, but because land was at stake, also over the Matakaoa district.
(i) The First Sitting at Te Araroa: Judge Gudgeon’s Court of 1894
‘In this case the time of the Court and the money of the real owners of the land has been shamefully wasted by cases set up on behalf of ancestors who in the opinion of the Court have never had right or title to the land and who in some instances have never existed ... It does not appear to the Court that the owners of this land have any clear idea as to how they became possessed of it’
(Judge Gudgeon, Pakihikura judgment, Waiapu M.B. 24:245).
In 1886 legislation was passed which restored the Crown’s pre-emptive right of purchase. Under this Act a system of Boards with Maori majorities was to be set up to administer the disposal of land (Sorrenson, K. 1965:44). For two years no land passed from Maori to European ownership. Reportedly because of the combined Maori and European protest (cf. Martin, R. 1965:46) - the Maori people because control of their remaining estates had gone to the Crown, and Europeans because land was no longer being made available for settlement - the 1886 Act was repealed. In 1888 the direct purchase of shares from individuals, which could be partitioned out by the Land Court from large estates, was resumed. The 1888 Act also empowered the Governor-in-Council, on the application of a majority of ‘Native’ owners, to remove any restriction against alienation on the title or Crown grant of any ‘Native’ land. In 1890, MacKay (the former Waiapu Land Court Judge) was instructed by the Native Minister, to compile the opinions of various authorities on Native tenure. In 1891 a Commission was established to [p146] inquire into Native Land Law. The Conmissioners - Rees, MacKay, and James Carroll (Timi Kara) - roundly condemned the legislation which had, since the establishment of the Land Court, promoted the direct purchase of land from individual owners. The ensuing legislation first sought to validate the titles to land awarded by the Land Court, and then purchased by Europeans (1892 Validation Court Act and 1893 Validation of Titles Act). In 1894 the Native Lands Administration Act made all ‘Native’ land awarded title by the Land Court automatically freehold and subject to tax when leased to Europeans (preamble 1909 Native Land Act; Native Meetings at Wellington 1896). All Maori land to which the title had been ascertained by the Court, was also liable for rates - the non-payment of which, with the consent of the Native Minister, could result in loss of land, either by sale or lease (ibid). The 1894 Native Lands Court Act extended the function of the Land Court to:
(a) Investigate title and determine ownership;
(b) Partition land determine relative interests;
(c) Give effect to exchanges of land between natives and the Crown;
(d) Determine successions;
(e) Grant probate and letters of administration;
(f) Render land inalienable and vary or remove any such restrictions;
(g) Determine claims based on alienations made by natives and all questions arising from conflicting claimants;
(h) Confirm alienations;
(i) Restrain any person from injuring land subject to a Court application;
(j) Determine whether land shown on a certificate of title was held in trust for natives not on the title.
(Royal Commission of Inquiry 1980:15-16).
This legislation clearly shows that the Government was increasingly committed to alienating Maori land to Europeans and to the Crown.
At Waiapu people were becoming increasingly involved in pan-tribal movements, such as Kotahitanga, later known as the Maori Parliament, as their distrust and suspicion of Government policies affecting their land grew. In 1887 Mokena Kohere resigned from his seat on the Legislative Council, to which he had been appointed in 1872 (Kohere, R. 1949:40), and [p147] when a building was erected at Waiomatatini to be used specifically for the Land Court, he threatened to burn it down (ibid:38). The Waiapu people were also becoming involved in sheep-farming, grass-seed production, timber leases to Pakeha and Government, as well as growing vast quantities of maize, corn, wheat, and other crops. Unlike the 1850’s when these practices were under the control of individual Chiefs, operations at this time were controlled by ‘Native Committees’ made up of the leading members of hapuu (while the point I am trying to make is slightly overstated, I believe there was some shift in power). Co-operative stores, which generally held liquor licences, were dotted throughout the Matakaoa district - at Awanui (near Lottin Point), Mamaku (near the Matakaoa Block), Punaruku, Te Araroa, Horoera, Rangitukia, among other places. It was common practice for the eldest sons of the leading families of each hapuu to be involved in the running of these stores: Hone Mokena, Mokena Kohere’s son ran the store at Te Araroa; Paratene Ngata, the protegee of Ropata Wahawaha had stores at Awanui, Mamaku, and Rangitukia (Waiapu M.B. 40-43; Te Waka Maori). The fact that Chiefs’ sons were running these stores clearly suggests that where it was possible, Matakaoa people operated in keeping with traditional principles (cf. 1850 wheat growing, page 63).
In 1890 the Waiapu County Council was established from resident European settlers. Its first meeting was held at Port Awanui in the Resident Magistrate’s Courthouse. From that time all meetings were held at Tuparoa (Waiapu County Council Minute Book 1890-1902). Their records suggest that their greatest concern (and expenditure) was with roading. By 1891 they were trying to get a telephone line to connect Hicks Bay to the rest of The Coast (ibid:15), and writing to the Native Minister with a request for Judge Gudgeon’s Land Court to come to the district and stay there ‘until such times as arrears of work have been got through’ (ibid 22nd October 1891). [p148] They also discussed the possibility of the Government buying land at Hicks Bay (ibid:91), and some weeks later Colonel Porter negotiated with the Hicks Bay people for the site of a township there (Te Hatiwira Houkamau, Wharekahika Block, Waiapu M.B. 42:183). The surveyor however, found that the land was too swampy, and the town was relocated at Te Araroa (ibid). The Government also negotiated to buy 2,000 acres there to set up a port, but because local opinion was divided over the sale, the £500 was refunded and negotiations ceased (ibid:185). In Matakaoa this was common practice, money on land put one party in debt socially to the other, but once the money had been returned the social balance between the two parties was restored, and the negotiation for the land ceased.
There were no Land Court sittings on the East Coast in the years immediately following the 1886 Native Lands Administration Act, which by restoring the Crown’s pre-emptive right of purchase effectively halted the transference of land from Maori to European. This also suggests that the Land Court was principally designed to make land available for purchase, since land could have been investigated on behalf of Maori owners without contravening the 1886 Act. At Matakaoa, people appeared to follow one of three options: There were advocates of the Land Court such as Paratene Ngata who encouraged people to put their land through the Court, by advancing Government money on it - when Paratene Ngata, as Captain Porter’s assistant, purchased a portion of Wharekahika for £50 from Manahi Parapara the money was taken to the Chiefs Te Irimana Houturangi and Hone Hautonga. ‘They were angry with me and said, “You have children why did you do this?” ’. Paratene became anxious about his money, so Te Irimana and Hone refunded it. ‘Paratene said there was no harm done as none of the money was expended and the whole amount refunded to him’ (Manahi Parapara, Wharekahika Block, Waiapu M.B. 41:67). Their strategy may have been to ensure that the land was investigated before all the old people, who could act as mediators, died [p149] (cf. Mohi Turei 1874 Wharekahika Hui). Others, such as Te Irimana Houturangi, were adamant that they did not want the land investigated by the Court in their lifetime (Te Hati Houkamau, Wharekahika Block, Waiapu M.B. 42:185), and settled disputes through ‘Native’ Committees. Still others, according to Te Harawira Huriwai during the investigation of the Horoera Block, such as Himiona Apanui, opposed these Committees (Waiapu M.B. 39:96).
Most of the blocks investigated by the 1894 Land Court had been surveyed in time for investigation by the 1885-6 Court session; when the Matakaoa district was in the grip of severe boundary disputes (see pages 123-125). Although meetings were held to appoint survey guides and arrange boundaries, surveyed boundaries tended to overlap adjoining land. Objections were made during the survey as soon as people realised what was going on, but the minute books are full of references which suggest that the inland boundaries agreed upon by the meetings were altered either by the guide:
‘[The survey guides] put in a mark at Pohautakataka in order that the Kairuri [surveyor] might note the mark on his plan as a division between Mautotara and Rerepuhitai. The European who said this told me in front of the public home his name is Charley one of the survey party. I think he said it was 36½ chains from the mark to Mangakiokio Stream. I said probably [the guide’s] mark is not correct for where he went with me to take Arthur Brooking [for a timber lease] on to the land. Herewini Tamahori asked Te Katene the boundary between the two Blocks and Te Katene replied before witnesses and I and Hohepa Puni were angry at his reply and we said you have taken half Mautotara in. That is not the stone and Herewini admitted we were right … the surveyor replied I can only go by the mark of the Katene’
(Manahi Parapara, Mautotara Block, Waiapu M.B. 24:142-3);
or by the surveyor:
‘I left where the line got to the Orangimarama trig station and in my absence the surveyor carried the line straight to the S’West’
(Te Watene Korau, ibid:137).
The upshot was that unsettled boundary disputes were taken into the Land Court and investigations were protracted by becoming embroiled in survey disputes that could not be settled outside the Courtroom.
Meetings of hapuu were held to decide the take (ancestor see page 109) to set up before the Block Committee and the Land Court:
‘In Hinerupe whare Te Hati at a big meeting stood up to ask the takes to these Blocks. I stood up and said Tautahi to te Rauawa - Katene backed me up. In Mautotara I set up Te Kurawhakamauata and Te Katene admitted it. Then Te Hati asked about Rerepuhitai and I replied to Rangiteekehua and te Popata stood up and said te Kura was the tipuna - Makere Muruwhariki said Alas in her disgust … and said I am not in that land though I own Mautotara ... that stopped Popata’
(Manahi Parapara, Mautotara Block, Waiapu M.B. 24:144).
It was also decided at one of these meetings to fix the conquest of Uetaha and others as the ‘right “take” ’ since they were only conquering their own land: ‘Formerly the cases were set up under the “papatipu” right’ (Popata Pariohe, Tapatu Block, Waiapu M.B. 43:225). However it is difficult to assess how unanimous this decision was, that is whether it was made by both mana whenua (‘papatipu’) and mana tangata lines as those who refused to have their rights to land investigated may well have kept aloof from such meetings to express their disapproval (cf. page 75). Just as boundary disputes were taken unresolved into the Land Court, so too were the disputes over take.
This was also a period of revival and awareness of tradition. At pre-Court meetings the most eloquent of each hapuu spoke at length about their particular knowledge of the history of the land, to try to persuade the people of the merits of their take. However when one considers the divisions between hapuu over rights to land - ‘[only] when Tokata was investigated that any interference over these portions took place ... we have nothing to do with Manahi seeing his main idea is to shut others out’ (Keeti te Ahurangi, Wharekahika Block (of the Tokata boundary), Waiapu [p151] M.B. 40:60;77) - which destroyed the delicate balance built up over generations and the finality of the judgment made by the Land Court, it was probably also a period of great sorrow.
In 1888 the Land Court opened at Awanui for two days under the Resident Magistrate to hear and dispose of succession claims. One year later the Land Court re-opened at Waiomatatini for two months under Judge Scannell. No ‘new claims’ were investigated, although several subdivisions and allocations of shares of blocks heard by the 1885-6 Court session were completed. Judge Scannell and the Assessor interrupted the cross-examination of witnesses to ask points of clarification, however, they were very skilful in effecting compromise between opposing parties (Whakaangiangi Subdivision, Waiapu M.B. 13:161). Most of the land investigated by Judge Scannell was placed under restriction against alienation (cf. Judge Rogan in 1870 see page 85). In 1889 at the Waipiro Appellate Court Sir George Whitmore claimed that Judge Scannell’s restriction was injuring his lease-hold. The applicant’s lawyer also claimed that Judge Scannell omitted to follow the 1888 Amendment Act which allowed absolute restrictions placed over land provided the Land Court inquired into the sufficiency of land held by the owners. The application to lift Judge Scannell’s restriction was granted as Judges Barton and Von Sturmer decided the 1888 Act was unworkable:
‘The rehearing Judges of the Native Land Court cannot be expected to close their Court and occupy themselves in making active enquiries all over the country respecting the other lands (if any) owned by these 173 Natives and respecting the restrictions (if any) imposed upon such other lands’
(Waiapu M.B. 13:273).
The Court Proceedings
The Matakaoa Blocks investigated in this session include Maraehara, Mautotara, Pakihikura, Tokata, Pariwhero, Papatarata, Taumata-o-Manu, and [p152] Hauturu (Waiapu M.B. 14-15; 24-25). In 1891 Judge Gudgeon opened a two year continuous session at Waiomatatini. During the 1860’s warfare Gudgeon, with his knowledge of the Maori language, was placed with a Native contingent on the West Coast, first under Colonel McDonnell, and then later under Colonel Whitmore (who later settled at Tuparoa). He accompanied Ropata Wahawaha and Porter in their pursuit of Te Kooti through the Urewera country (Gudgeon, T. 1887:353-5). At the end of the war he was appointed the Resident Magistrate at Waiapu (1879-80). In 1879 he blamed the crop failure on the ‘utter laziness’ of the people, but was aware, and recorded that the old Maori people attributed it to their readoption of Christianity (AJHR 1879 G-l:6). When the Native Minister, Bryce, ordered the arrest of Te Whiti and Tohu at Parihaka, Gudgeon was called to command his former Native contingent there. A Ngaati Porou contingent which included Henare Pereto, Waiheke Tureia, Manahi Parapara(?), who later became important in the Land Court, was also at Parihaka, but it is not clear whether this was the contingent commanded by Gudgeon.
At the commencement of this session the Judge promised applicants that he would adjourn the Court to other East Coast settlements as soon as the Court’s work at Waiomatatini was completed. Although only one Matakaoa block was investigated by this Court, residents of Matakaoa, or more correctly joint residents of Matakaoa and Waiapu (see discussion on movement page 181) shifted to the Waiapu to look after their interests in Waiapu land brought before the Court. In accordance with the Maori custom of hospitality the local people were obliged to find food for these visitors (cf. Kohere, R. 1951:48) . The number of people at these Court sessions and the length of their stay stretched local resources to the limit, and during the sitting several applications were made to shift the Court because of food shortages. The attendance at these sessions is probably quite comparable to the month-long 1874 Hui at Wharekahika for which food was prepared for well over a year (see page 89).
This time the Court was held at Waiomatatini in the Government Courthouse (which Mokena Kohere had threatened to burn down) instead of the schoolhouse. In the 1885-6 Court session at Waiomatatini the children’s schooling was suspended for two years while the Court was conducted in the schoolhouse. The description of Te Araroa during the first Land Court there in 1894, suggests that schooling was disrupted even when the building was not directly involved (Booth, AJHR 1896 E-2:6). There is some evidence that children were taken to Block Committees to listen to the history of the land (Harawira Huriwai, Horoera Block, Waiapu M.B. 39:91) and it is probable they were taken to the Land Court for the same reason, although the school inspector suggests that the parents were so involved with the Land Court that their children’s education was neglected (Booth, AJHR 1896 E-2:6).
The Court opened proceedings by granting a survey, liens against the Aruhemokopuna Block which owners wished to retain. Paratene Ngata claimed the surveyor had agreed to survey the block for £7 and had received £3 so far, nevertheless the Judge awarded the surveyor costs in full of £52 (Waiapu M.B. 13:340). The Court arranged to hear succession claims on Saturdays and to spend the rest of the time investigating ‘new claims’.
Each ‘new claim’ commenced by claimants briefly outlining their right or take to the land. The claimant’s case was fixed as last, but the order in which the counter-claimants cases were heard was negotiable. The Judge arranged the order, and although the criteria used are not clear, it is probable that from his experience as the Resident Magistrate of Waiapu, he was aware of the rank and the links between some of the people in Court. On a marae the best speaker may either open proceedings or speak last to counter or sum up the points made by other speakers. In the Land Court the most advantageous position after that of the claimant, was at the end of the counter-claimants; at this stage in proceedings most of the [p154] evidence had been given and a case could be conducted to counteract that evidence. In most of the cases heard in the 1894 Court Manahi Parapara was given this position.
By the time the Court shifted to Te Araroa in 1894 (after a six months adjournment), most of the cases involved six or seven claims, often each to separate portions of the surveyed block. Some of the claimants intimated that their land was in fact part of an adjoining block which had been mistakenly (others contended deliberately) included in the survey.
In every investigation conductors represented the interests of their clients. In the Mautotara investigation Mereana Waipauhu opened her own case but relied on a conductor to cross-examine the witnesses of opponents. Certain other women also set up claims to land but to my knowledge there is no instance of women conducting cross-examinations in Court. The role played by these women - at meetings to settle take (see page 149), negotiating with the Government over land purchases - ‘Ripeka [Pare mamaku] sold these two pieces to the Government’ (Popata Pariohe, Tututohara Block, Waiapu M.B. 11:364), conducting survey parties (Ahirau Block, Waiapu M.B.10), and in Court - Keeti te Ahurangi set up claims to Tokata in 1894 and 1908; Mere Katene set up a claim to Ahirau in 1886; Mereana Waipauhu set up a claim to Mautotara in 1894; Mere Karaka appeared as the principal witness in Pohautea; Hana Te Rore requested the reduction of Court fees in Judge MacKay's 1885 Court and was a principal witness in Pakihikura - is comparable to the role of male 'puukoorero' (see page 138). When their extensive knowledge of traditional history, whakapapa, and boundaries was not given personally, they were cited by male claimants as the authorities from whom the knowledge was derived:
‘'Kuramaoa has many descendants, Makere Kuru whaiti is a leader and a learned woman and she does not know that Kuramaoa owns te Rauawa [Block]. Wi Takere, another pukorero, he does not claim te Rauawa'
(Manahi Parapara, Mautotara Block, Waiapu M.B. 24:149).
These women were descended from some of the most aristocratic lines in Ngaati Porou and for this reason they held the mana to speak (cf. Apirana Mahuika's Thesis 1973).
The evidence during this Court session was primarily confined to events that happened in the lifetime of the claimants. Most of the blocks were unoccupied and inland, and rights of ownership were expressed through detailed accounts of timber leases to Europeans, and the conduct of surveys:
‘'Haig came [and] asked for Rata and Karere trees, he was taken to Wharekahika - took £1 per tree - ratas sold by the ton - land of Punaruku was handed over to him for timber - gave 15 pounds ... After this we leased this land to McDonald ... McDonald only worked the timber £12 was received by me for this ... Winter surveyed this land of te Wh-a-Hineawe long ago and there was no trouble over that survey. The F.B. [Surveyor's Field Book] was lost so Winter told us, so no plan was ever made of the land'
(Manahi Parapara, Tokata Block, Waiapu M.B. 24:274-5).
demonstrate occupation, claimants pointed out sites on the map in
Court: 'on ridge of Oruataiaka was an "ara tawhito"
[ancient path] it belonged to Mahakireonui' (Hori Akuhata,
Taumata-o-Manu Block, Waiapu M.B. 24:361); listed who was buried on
the land: 'Mahaki and Manu are buried here in the Pa. Tamahanga is
buried here and Paheke a son of Taku are all
buried in Pa' (Rihipeti Parengatai, Taumata-o-Manu Block, ibid:368); admitted for the first time in Court, to being King Movement supporters during the 1865 confrontation: 'While I lived on this land totara trees were cut to make a whare for the King. Whare was called Maruangaanga: Te Hutana owned it' (Mereana Waipauhu, Mautotara Block, Waiapu M.B. 24:125).
The amount of traditional material given in Court as evidence, varied between claimants. For the first time traditional accounts include spiritual matters: 'Te Atuataheke is near a tapu [?] it is said that Kauwhakatuakina used to go there to his tuahu before war. Tuiti's atua was at Wahirere just outside the Block' (Manahi Parapara, Tokata Block, Waiapu M.B. 24:292), and cannibalism, although the latter appeared to be [p155] given to undermine the claimant's case, as she was a descendant of the ancestor who ate birds, rats, and men. Tactically it was important to undermine the credibility of opponents in Court, especially in the 1894 Court session because judgments were so often based on the credibility of witnesses.
Written evidence was also cited intermittently and it appears that once evidence including whakapapa had been given in Court and not disproved or challenged, then the Court was bound to accept it (Tapatu Waiapu M.B. 44:163). This legal practice assumed that with sufficient inquiry a single version of the facts would emerge, a concept which may not be cross-culturally applicable. When the Judge found the evidence 'contradictory and unsatisfactory to an extent that we have not experienced in any previous case here or elsewhere' (Maraehara judgment, Waiapu M.B. 15:104) he accepted former decisions by Block Committees (Maraehara judgment), letters by ‘Government side’ Chiefs: 'this letter is really a certificate in favour of that hapu' (Omaika judgment, Waiapu M.B. 25:273A:2), and early applications for the investigation of the land under investigation (Tokata Judgment, Waiapu M.B. 24:388) as the basis for his award of ownership.
When the conductors, who were often closely related to the people whom they represented, had completed their cross-examination of a witness, the witness's own conductor was allowed to re cross-examine. The Judge also cross-examined each witness and occasionally recalled them to give further evidence, however there is no indication that the Assessor did more than translate the judgments into Maori - they were read in Court in both English and Maori. Judgments in former Court sessions were often brief confirmations of decisions made at pre-Court meetings (Rogan's 1875 Court), or compromises between opposing claims (Wilson's 1886 Court); in only one instance was the evidence reviewed as ‘unusually conflicting and ...[p157] contradictory’ (Judge Wilson, Pohautea, Waiapu M.B. 11:9) and then only in a general way. In contrast Judge Gudgeon couched his detailed decisions, often spanning some ten-twelve pages, in terms of:
'this claim is the most impudent attempt to obtain land to which they have never had a shadow of Right'
(Pakihikura Judgment, Waiapu M.B. 24:249-50);
'this most annoying case ... the evidence of which is contradictory in the extreme, the tales cannot be reconciled ... there is no proof as to whom this land really belonged'
(Tokata Judgment, Waiapu M.B. 24:377; 387-8),
and personal attacks on claimants:
'the Court already said that Hare Paihia knows nothing about this land'
(Pariwhero Judgment, Waiapu M.B. 25:84),
'it is quite clear that Te Hati [Houkamau] knows nothing about the case'
(Tokata judgment, Waiapu M.B. 24:386),
'Watene Korau] can hardly expect the Court to believe that he was taught [of his rights to land] by his father who died about 1870 for Te Watene was certainly not more than 12 years of age at the time'
(Mautotara judgment, Waiapu M.B. 24:188).
As in 1886 when Judge Wilson was impelled to shift his Court as a 'malignant' fever was prevalent at Waiomatatini (Waiapu M.B. 11:232), a severe outbreak of influenza, which reached epidemic level at Te Araroa in 1895 (Booth, AJHR 1896 E-2:6), caused the Court's adjournment to Awanui. Clearly even where Land Court sessions were held near the land under investigation, the disruption to everyday life was substantial. Not only directly through disputes over surveyed boundaries, contested take in Court and during meetings both before and after the Court, but also indirectly in terms of getting people to shift near the Court so that they could attend protracted sessions, depleting food resources near the Court, taking time away from the cultivation of crops and sheep-farming, disrupting [p158] children's schooling and causing population decline - disease quickly reached epidemic level in the crowded conditions.
In September 1895 an 'unusually large number of the N'Porou' assembled in the Courthouse at Awanui (Waiapu M.B. 26:174). Paratene Ngata said that they had:
'resolved not to put the papatipu lands [‘whenua tuturu’] thro’ the Court as the Government thro’ their land purchase officers are taking their very homes from under them - and even buying their graveyards'
Porou had sent a petition to the Government and under the 'Native
Lands Acquisition Bill' land on which they were living was protected
from sale they felt that once the land had passed through the Court
the Government would begin to buy it from them (ibid:175). They also
objected to the new Land Bill, which restored the Crown's pre-emptive
right of purchase as it 'leaves the whole mana [price-fixing]
in the hands of the Government ... we have to take what is offered to
us' (ibid). Judge Gudgeon telegrammed the Government on behalf of
Ngaati Porou but a week later he received notification that the
Government was 'not disposed'
to curtailing land purchase in the area (copy of Telegram read in Court, Waiapu M.B. 26:184). Paratene Ngata then asked that all the papatipu cases be adjourned indefinitely and the Court granted his request (cf. Judge MacKay's reaction to the withdrawal of cases from the Court in 1886, see page 133). Two weeks later the Court adjourned from the Waiapu district and did not return until 1901; the papatipu cases were not investigated until 1908.
From the contentions over surveys recounted in the 1885-6 Court I suggested that land, like fishing-grounds was commonly-owned or held in trust by large groups composed of several hapuu, perhaps the descendants of [p159] the children of one ancestor. The area within these ancestral boundaries was not divided, although certain parts of it could be closely associated with a particular hapuu for one, two, sometimes several generations. The fact that there was not a single case set up by claimants which corresponded to the surveyed blocks under investigation by the 1894 Court, supports this interpretation.
Traditional accounts of the blocks investigated by this Court session suggest that inland areas of the Matakaoa district were regularly but sporadically occupied while people from several groups seasonally collected and utilised forest resources, mostly food - vegetable foodstuffs, birds and rats, but also timber for canoes, toetoe for insulating houses, flax for clothing, etc. This practice was disrupted by the 1860 warfare although some claimants tried to show ‘permanent occupation’ by claiming allegiance to the King Movement which occupied inland fortified paa (see page 74). After the war food was very scarce and 'people went everywhere searching for food' (Manahi Parapara, Wharekahika Block, Waiapu M.B. 41:120). People were brought from Waiapu to work these blocks in 1865 (Hoani Huriwai, Mautotara Block, Waiapu M.B. 24:102) and in this sense permanently occupied the land for the next decade. Both claimants and counter claimants emphatically declared that during this period there was no trouble on the land: ‘only since we remained off it that disturbances arose and I knew nothing what caused the interference’ (Keeti te Ahurangi, Wharekahika Block, Waiapu M.B. 40:59). In 1885 when the survey of these blocks almost escalated into pitched battles (see pages 124-5) the occupation of these blocks either for the growing or collection of food was suspended by the Chiefs (the 'Native' Committees?) until the Court ascertained ownership. By 1894, when the Court finally investigated these blocks (see section II of this chapter for the reason for the delay), Land Court claimants were aware of the importance of demonstrating to the Judge their right of ownership through occupation; the sporadic occupation of the blocks however, [p160] made this difficult. For this reason claimants both at pre-Court meetings and in the Court recounted and in a sense reactivated the disputes over the surveyed boundaries. All the cases investigated in the 1894 Court session revolved around the contention that adjoining blocks were included in the survey: ‘In my opinion a good deal of Hukarere and Makahuri's land was wrongly included in Tokata ... Now they are striving to take away another portion’ (Manahi Parapara, Wharekahika Block, Waiapu M.B. 42:227); or that parts of the block were not included: 'part of land which belongs to Tamateakui has been left out of the survey - viz. sea coast' (Keeti te Ahurangi, Tokata Block, Waiapu M.B. 24:296); or that the block under investigation ‘is not a distinct piece of itself’ (Eruera te Rore, Mautotara Block, Waiapu M.B. 24:106).
According to one
claimant there were no boundaries between united families (Himiona
Apanui, Wharekahika Block, Waiapu M.B. 40:213) which suggests that
one means of settling disputes may have been to create a boundary or
strip of 'no man's land' between opposing parties. The
disturbance or interference with boundaries signified war-like intent:
'The Whakaumu that Hinepare had opened Mohi prevailed upon Tamati, of the other side, to
close - Both sides wished to fight it out and leave the Whakaumu open, by this means fighting
(Hemi Tawhena, Aruhemokopuna Block, Waiapu M.B. 11:137).
The umu of different people were frequently named by claimants in Court as sites on boundaries:
'his body was cooked on the boundary line. It was decided by ——— that body should be kept and cooked at the boundary line to define the boundary and the place was thereafter called Te Umu o paraoa'
(Keeti te Ahurangi - of the Tokata-Wharekahika Boundary, Waiapu M.B. 40:62).
If, as I have contended, these strips of land were created to maintain a balance of peace between potential rivals and disturbance of them signified war then perhaps, even the guiding of a survey party along them was viewed [p161] as a serious attempt to revive the former dispute.
Certainly in some blocks boundaries were deliberately manipulated: 'I gave the boundaries there, because I was annoyed with Wha-Kahu and wished to defeat them' (Manahi Parapara - of the Tokata Block - Waiapu M.B. 40:100) but this was not always the case. In some investigations claimants' statements appear to directly contradict one another:
'There is no boundary between Pakihikura and Orangimarama [a subdivision of Mautotara]'
(Eru te Rore, Mautotara Block, Waiapu M.B. 24:107);
'the ridge is the true boundary between Pakihikura and Mautotara'
(Watene Korau, ibid:140),
but this is difficult to assess since claimants and counter claimants contended that the Mautotara Block was composed of three parts, and the survey party was guided around the outside boundaries of each of these parts by different individuals:
'Noa guided the survey and Hori Mahue but I don't know at what point he took up the work ... don't know if Katene Ngatoko was guide over the South side of Orangimarama line'
(Mereana Waipauhu, ibid:133).
It is clear from the Court evidence that certain people were commonly acknowledged as experts over the question of boundaries (as well as history and whakapapa) and that each group (family or hapuu) had its own expert in this field. The knowledge of these experts however, did not always concur: 'I consider the boundaries explained by Manahi Parapara are wrong each of us know our own history' (Tuhaka Mokena, Totara Block, Waiapu M.B. 25:211).
The divisions between local people over boundaries appears to me to signify much wider issues, namely the Maori and European cultural perceptions of land ownership and truth. Since the aim of this thesis is to explore Maori and European notions of land ownership through the [p162] description of the setting in which the Maori genre was translated into the European form, I shall confine my comments on this occasion to the issue of truth. For the European truth conveys the quality of being in agreement with a standard, a rule, facts, reality (Collins 1980:808). A single, correct and perhaps fixed version. For the Maori tika means ‘correct’, things following their natural or proper order (see page 159). ‘He tikanga, he pononga’ is an expression of emphatic assent, approval, or affirmation (Williams, H. 1975:291). This suggests that like the European notion of truth agreement is necessary but for the Maori the agreement is between people rather than with a fixed standard or rule. Tika appears to be a social conception of truth and different versions of traditions can exist simultaneously in different groups.
Speeches given at hui to decide the title to land have much in common with speeches made at other hui (funerals, weddings, tribal meetings) held on the marae. In both situations the history, the whakapapa and even the boundaries relating to the district are recited to make however, very different points. In the later hui the speechmakers usually utilise their knowledge to link and thereby unite the people present; in the former hui the differences between the people are stressed. The versions of each hapuu are brought into direct conflict and it is clear that land litigation divided the community even more decisively than the 1860 warfare:
'Rota Huna and I were great friends, matuas told Rota the history and Rota told it to me. At time of hearing of Papatarata, Rota and I were not good friends. We fell out because he claimed 1000 shares for himself in Pukeamaru’
Popata Pariohe, Tapatu Block, Waiapu M.B. 43:196);
'The cause of disturbance was quite strange and I said why did they not mention it in time of our
elders. The disputes were trivial. [Only] when Tokata was investigated that any interferences over these portions took place'
(Keeti te Ahurangi, Wharekahika Block, Waiapu M.B. 40:59-60).
kin-ties as close as one parent or grand-parent in common frequently
opposed one another over take, before Block Committees, and in
the Land Court, although in most cases the successful litigant
included these kin in the list of owners - ‘not ... thro' right
but out of
aroha’ (Waiheke Tureia, Whakararanui Block, Waiapu M.B. 39:234).
In the 1894 and 1908 Court sessions people also set up claims to single cultivations on the block under investigation. They completely denied a right to any other part of the block. These pockets of land within areas utilised by members of another hapuu have generally been gifted in payment for some activity such as avenging a death, building a canoe, ravishing a woman; as a marriage or betrothal gift, even simply out of 'aroha': ‘Tamateakui gave Te Aopare some of maaras on her land and Te Aopare did the same so they could live together’ (Keeti te Ahurangi, Tokata Block, Waiapu M.B. 24:297). This practice combined with the shifting fortunes of the mana of hapuu hints at the flexibility of rights to land even within one or two generations.
From this discussion and given the particular nature of the history of hapuu, it is small wonder that disputes arose when attempts were made to construct (draw on a map and thereby permanently fix) single lines from boundaries that were traditionally recited as points on the landscape which could be recast to fit the ancestral right being evoked. What I am suggesting is that not only was the 'ownership' of land under constant review, but the ancestral boundaries even between larger groups (cf. page 141) were negotiable and therefore capable of change just as a river, which was often used as a boundary, may change its course.
The Nature of the Evidence
The claimants in the 1894 Court session began each investigation by naming the portion of the block they claimed (during this session there was not a single claim that corresponded to the whole of the surveyed block [p164] under investigation), and the ancestor from whom their right to the land derived. While this set out their case in Court, it also demonstrated their right to speak. The Judge then arranged the order of the cases. Claimants began their evidence by reciting the boundaries of their claim, or the whakapapa from whom their ancestral right to the land was derived; some claimants recited both. Again this was a statement of their right to speak, and at the same time proof of ownership to the land. From the evidence given in Court knowledge of the history of the land, at least in terms of boundaries, was quite particular. When blocks were surveyed people were entrusted with guiding the survey party part of the way along the boundary:
'Q. Was not Tutere Mautoko selected by meeting at Te Rahui to conduct survey from Kopuarehua to Arohatatawa, Anaru te Kahaki from Kopuarehua to Pohatakataka, Hoani Mokopuna from Pohatakataka to Waipapa, Hori Wanoa from Waipapa to Wairau, and Hamahona from Wairau to Waiwhero, and Hori Wanoa again from Te Arohatatawa to Waiwhero?'
(Te Harawira Huriwai cross-examined by Tuhaka Kohere, Horoera Block, Waiapu M.B. 39:78).
Knowledge of boundaries was therefore an integral part of the evidence given in Court to prove rights to the land under investigation. Similarly the recitation of detailed traditions and whakapapa suggested knowledge of the land, and if it is accepted, as I believe it was by the Judges, that this knowledge was only reposited in those with rights to the land, then this type of evidence becomes proof of ownership. In the Pakihikura Investigation Hare Paihia read a waiata from a piece of paper in Court. Judge Gudgeon accepted this as proof of ownership: 'in spite of the evidence which is all against the claim of Hare Paihia he might nevertheless be entitled to a share in the land' (Judge Gudgeon, Pakihikura judgment, Waiapu M.B. 24:250). What is problematic in the Judge's interpretation of this scheme of 'particular' knowledge, is that claimants also suggest, in their evidence before the Court, that this knowledge (or aspects of it) was [p165] available on request: ‘I remember when the Court first came here the old men had begun to recount the history of the land before then’ (Pita Rooki, Ahirau Block, Waiapu M.B. 10:165). Iles (1981:278) says that in 1897, Land Court claimants at Tokomaru Bay also implied that information about the history of the land was freely available. However by 1908 Paratene Ngata, during the title investigation of the Wharekahika Block, stated:
'The old people were suspicious of the young ones and would not disclose the history. They were suspicious of Tiwana who came from a lawyer's office, and also of Apirana whom I had sent'
(Waiapu M.B. 42:107).
What this suggests is that the Land Court was affecting the transmittal of knowledge to the next generation. Knowledge was traditionally accorded a place of importance in Maori society, but now, in the Land Court, this knowledge had become a weapon to wield for power over land. This is not to suggest that orators did not also employ this knowledge on the marae to upstage their opponents. The difference is that the outcome of the attack in the Land Court was irrevocable. Defeat on the marae, and even in war, always carried with it the possibility of redress on some future occasion; in the Land Court defeat was permanent, the land was lost forever. There is also evidence to suggest that the evidence given by claimants in Court was quickly adapted to meet the local people's interpretation of the criteria used by the Judge. After two judgments were delivered that appeared to favour the claimants who had included a high proportion of traditional history in their cases, the amount of traditional material cited in the 1894 Court session increased.
The methods used to validate this traditional knowledge were principally that it was old and from traditional sources - 'the tradition of it has been handed down' (Ahirau Block, Waiapu M.B. 10:171), widely accepted - 'ancient story and widely known' (Te Harawira Huriwai, Horoera [p166] Block, Waiapu M.B. 39:58), and ‘the boundary of gift by Te Aopare running along Karakatuwhero is very widely known’ (Himiona Apanui, Tapata Block, Waiapu M.B. 43:132), and most importantly was told to the claimant by recognised authorities (recognised by both the local people and the Judge): ‘My tipuna Tamatama, a “pukorero” told me the history of this land’ (ibid).
As outlined in the Court proceedings, Judge Gudgeon’s decisions appear to have been based on the credibility of witnesses. External means, such as written documents, applications for land investigations, etc. were used by the Judge to decide ownership in several of the cases. Whether such faith in the written word was entirely justified is debatable - in 1885, during the rehearing of the Puketauhinu Block, a witness was brought before the Court by Paratene Ngata, the conductor for the Ngaati Porou claimants, to demonstrate his ability at forging signatures (Judge Mair’s Notebook on the Opotiki Court proceedings MS A-31).
There is also some evidence to suggest that mana lines of land and people were important in this Court session: ‘Hukarere had mana whenua as well as mana tangata’ (Manahi Parapara, Tokata Block, Waiapu M.B. 24:278). Popata Pariohe also described a meeting in 1894 at which it was decided to drop the papatipu (mana whenua) take - land line in favour of the conquest:
'many of them wished to drop the conquest, as Uetaha and others were only conquering their own land. It was only in 1894 that the conquest was fixed as the right “take” ... Formerly the cases were set up under the “papatipu right” ’
(Tapatu Block, Waiapu M.B. 43:224).
The remarks made in Court by claimants suggest that two lines of mana were operating in the Matakaoa district. Marriages were arranged to incorporate these two lines: ‘This land from here up to Matakaoa was all one take but Rerekohu had married the woman of this land’ (Manahi Parapara, Tokata Block, Waiapu M.B. 24:271). Several of the claims in the Land Court appear to revolve around the concept of rights over land (mana whenua) and rights [p167] over people (mana tangata), but it is not until the 1908-9 Court session that this concept is more explicitly stated by claimants.
(ii) The Second Sitting at Te Araroa: Judge Sim’s Court of 1908
'If any considerable body of people considered that a claim set up was too narrow, the Court would probably allow them to set up a separate case but it would not allow every individual to do so. These would be the principles on which the Court would base its arrangement of the cases but it would not make any rigid rule. It would deal with every case on its merits, and if sufficient cause were shown for setting up a separate case it would be allowed, even if not in accord with principles just enunciated.
The Court would proceed on the course that it had followed at previous sittings, that is not to shut out any person who showed any right to appear’
(Judge Sim, Wharekahika Block, Waiapu M.B. 40:14).
In 1898 Prime Minister Seddon and Native Minister James Carroll travelled throughout the country meeting Maori people, listening to their grievances, and proposing solutions. In 1900 the first of a series of Acts were passed which vitally affected the Maori people and their land.
The 1900 Maori Counils Act reinforced and extended pre-existing committees at Waiapu into local Maori councils to administer local affairs. Their recorded activities show that they were especially concerned with health (Gisborne Times 26th March 1902:2; AJHR 1903 G-1:3-4). The country was divided into tribal districts - the Horouta District for the East Coast - each with its own council comprised of representatives from each of the ‘Village Committees’ (cf. 1862 Ruunanga system).
During this period several cases of typhoid fever were reported on the East Coast (Gisborne Times 22nd May 1901:2), as well as epidemics of measles and influenza (AJHR 1896 E-2:6; AJHR 1898 E-2:8; Gisborne Times 27th April 1903:3). In 1901 Dr Davis established an East Coast practice and six months [p168] later Dr Lisle was appointed the District Health officer for the Waiapu County (Gisborne Times 5th February 1901:2; 18th September 1901:3). In 1903 attempts were made to vaccinate all children on ‘The Coast’ (ibid 17th September 1903:2) and in the same year the first Waiapu hospital was opened.
In 1902 some fifteen to sixteen hundred Maori people attended a Hui at Waiomatatini to discuss the ‘Kotahitanga o te Tiriti’, that is the Maori Parliament, and the Maori Councils (Te Pipiwharauroa 20th March 1902). According to the Native Minister, James Carroll, unanimous support for both the Maori Councils and the Land Councils (see page 169) was expressed at this meeting (Gisborne Times 3rd April 1902:3). Williams (1977:114) contends that these Councils overstepped the powers given to them, and on the East Coast several hapuu withdrew their support because, according to Apirana Ngata, they had been ‘led astray by agitators’. This was nothing new, my research of the Matakaoa district shows that local opinion was and probably always will be mixed, and ‘Village Committees’ or at least Committees on the hapuu level continued to exist with or without government legislation.
The period from 1886 to 1894 saw the beginning of large scale sheep-farming at Waiapu. The years that followed, consolidated this as the primary industry in the Ngaati Porou district. Maize, corn, barley, and wheat continued to be cropped successfully but dairy-herding, pig-raising, poultry and bee keeping, fruit tree cropping, grape and hop growing, and vegetable cultivation - cabbages, carrots, turnips, peas - were suggested as viable alternatives (Paratene Ngata, Te Pipiwharauroa August 1910). During the summer months when hundreds of Ngaati Porou travelled to Poverty Bay to work in the rye-grass industry (Kohere, R. 1951:47), women and children virtually kept the Ngaati Porou farms afloat (McConnell, R. 1980). In 1899 Apirana Ngata estimated that over 3,000 acres of Ngaati Porou land had passed to the Crown since 1893. The three types of land retained by [p169] Maori people were blocks leased to Pakeha, on which Maori people gained skills to work the land - clearing bush, fencing, shearing sheep, sowing pasture, etc; land awarded to Maori owners by the Court; and papatipu land, most of which had been surveyed (He Kupu Whakamarama September 1899:7-8). In the early years of the new century special land meetings were held throughout the Waiapu area (Gisborne Times 14th July 1902:3) and every attempt was made by Apirana Ngata to encourage the visible utilisation of all land still under Maori control (cf. 1905 Native Lands Act and the Stout-Ngata Land Commission 1907-9 re: land unsuitable for Native occupation, see page 169). in 1903 a branch of the New Zealand Farmers Union was founded at Tuparoa (ibid 16th July:3) and by 1920 the Waiapu district was so prosperous that a further County Council - the Matakaoa County Council - was formed with headquarters at Te Araroa.
In 1900 the Maori Lands Administration Act empowered the Maori Land Councils set up under the 1900 Maori Councils Act to alienate and administer Maori land (Introduction to the 1909 Native Lands Act xxiii). Each Council consisted of one European president (a Judge of the Native Land Court), two or three appointed members (one of whom was to be Maori), and two or three Maori members elected from the land district of the Council (McRae, J. 1981:65). Although their jurisdiction overlapped that of the Native Land Court their activities were not directly concerned with the investigation of titles to land. Under this Act Maori claimants of papatipu blocks were empowered to elect a committee of five to nine members to investigate the title to land. Their decision however had to be ratified first by the Land Council and then by the Land Court. Any objections to the Comittees’ decisions were heard by the Land Council and if they could not be resolved were referred to the Land Court (ibid:66).
In the 1905 Maori Lands Settlement Act these Land Councils were renamed Land Boards. They were given extensive powers to lease or mortgage land on [p170] behalf of Maori owners, but without their consent, provided the Native Minister declared the land unsuitable for Native occupation. The criteria used for this decision is uncertain, however Ngaati Porou attempts to visibly utilise all their land in farming and cropping suggests it was probably the familiar cry of 'idle land' (cf. Earl Grey's 1846 Despatch page 19). This jurisdiction was also extended to all Maori land, including 'papatipu' blocks, for which rates were payable, but remained unpaid (Introduction to the 1909 Native Lands Act). In 1906 this power was further extended to all Maori land infested with noxious weeds (ibid), and in 1907 land reported as not required for Maori occupation by the Stout-Ngata Commission, could be disposed of by the Land Boards - half by sale and the other half by lease for a period not exceeding fifty years (ibid).
The Maori Land Council on the East Coast was presided over by Judge Barton. He was assisted by John Townley, Edward Joyce, and Heta te Kani from Uawa (He Kupu Whakamarama, January 1902:5). In 1902 Barton resigned (Gisborne Times 26th June 1902:2) and Colonel Porter, the former Government Land Purchase Commissioner appointed by Ngaati Porou at the 1874 Wharekahika Hui, was appointed president. When the Land Councils became Land Boards, Porter retained his position. Although the Matakaoa Committees set up under the 1883 Native Committees Act were empowered to act under the 1900 legislation, and titles to papatipu blocks were investigated by Committees, since the 1908-9 Land Court investigations are packed with references to evidence given before these Committees, neither the Land Council nor the Land Board conferred title to a single acre of Matakaoa land. I can only assume from the divisive take set up in the Land Court in 1908 that this was because the objections brought before the Land Board were unable to be resolved.
The Court Proceedings
The blocks investigated by this Court include Marangairoa No. 2, Marangairoa 1A (Whakararanui), Marangairoa 1B (Horoera), Wharekahika, and Tapatu Waitangirua. These blocks were surveyed just prior to the 1894 Court session. Reports of surveys frequently disrupted, trig stations overturned, theodolites confiscated, trees felled around the survey party as it was observing, as well as threats to shoot Maoris pointing out boundaries (Wheeler cited in Jourdain, W. 1925:221) clearly suggest that local feeling over the passage of the ‘whenua tuturu’ (created by the 1875 proclamation) through the Court was strongly divided.
When the Land Court opened at Tuparoa in February 1908 Judge Sim, the former Registrar of the Maori Land Boards (established under the 1900 Maori Lands Administration Act), granted the local people’s request to adjourn the Court to Te Araroa, as several large blocks were to be investigated there (Waiapu M.B. 36:1). He added that the Court ‘would do everything to assist the Natives and facilitate the business’ (ibid).
The Court was held in Hovell’s Hall. Most of the litigants from former sessions were present. Their speeches of welcome, although not recorded in entirety, suggest that several of the claimants viewed the Land Court more favourably than their own Papatipu Block Committees established by the 1900 Act (see McRae, J. 1981 for an account of the effectiveness of these Committees in Tai Tokerau):
'I am the person who objected to Papatipu Block Committee and I did not appear before them. I instructed my people not to set up a case, and they did not set up a case’
(Waiheke Tureia, Waiapu M.B. 6:5);
'I have no liking for a Native Committee. Leave matters to be settled by the Native Land Court’
(Whaaka Tamariki, Wharekahika Block, Waiapu M.B. 43:355).
The Court suggested that to ‘save both the Natives and itself time and [p172] trouble’ the recorded minutes of the Papatipu Block Committee’s investigations of title would be made available. It was however, possible for anyone to set up a case to the land whether they had appeared before the Conunittee or not. Then a discussion arose over the order in which the cases should be investigated. Several litigants stated that the elders had decided at a meeting that the Marangairoa No. 2 Block should be taken first; almost as many urged that Tapatu and Wharekahika - ‘fresh food’ - should be investigated first. The Judge said that since Marangairoa No. 2 had been investigated first by the Papatipu Committee, and ‘it seemed to be the wish of the elders and people that Marangairoa No. 2 should be first’ (ibid:3), then that case would open the session. Judge Sim requested all parties to lodge a whakapapa with the Court before going on with their case.
At pre-Court meetings the combined knowledge about the particular ancestors of those present was appraised. If the accounts proved to be too fragmentary, both in terms of content and narrowness (leaving out some of those present at the meeting), then another ancestor was put forward:
'If I could have given a clear whakapapa from Te Mingi I would have not abandoned that name. We tried very hard to establish a whakapapa but failed. Attempts are often made to establish names on the land as ancestors and when the attempt fails, the case very often falls’
(Hare Kopa Kopa, Wharekahika Block, Waiapu M.B. 42:10).
Each case opened with a debate over the order in which claims to the block were to be heard by the Judge. Each party was required to briefly state their claim, and people in Court with interests in the block, who had not yet applied for an investigation, were given the opportunity to join their claim to others, or to set up claims of their own. So many claims were set up at the beginning of the Wharekahika investigation that Judge Sim, having looked over the cases, suggested that many of the take overlapped, and requested claimants ‘possessing common take’ to unite, as it was ‘not in [p173] the interests of either the Natives nor the Court that a case should be split into several divisions’ (Waiapu M.B. 40:13). To foster the amalgamation of claims the Court adjourned for the afternoon, and it was not until the next morning that the order of the cases was finally decided. Some of the parties claimed several different portions of the block, and set up different take to each portion. Others set up more than one take over the whole block:
'I am also claiming to a certain portion of the block under Te Hukarere - I have another source of right to portion of block called Hiwihiwi thro’ conquest by Tarerekoau. The ancestor I claim under is Rangituatini. That is a portion of Pariwhero block which has already been dealt with by the Court, but this portion was left out. As to claim by Heni Morete and Henare Peti, I dispute their right. It was a gift for tattooing my ancestor and I dispute the gift as to certain portions’
(Waiheke Tureia, Marangairoa No. 2, Waiapu M.B. 36:7),
and still other parties, as in the 1894 Court session, claimed single maara (cultivations) on the block under investigation:
'I do not wish to set up a separate case at present, but if my rights are neglected I will apply to Court for leave to set up a case at a later stage of proceedings. My claim is only a small portion called Rongoatupaia - that is name of maara’
(Manihera Waititi, Wharekahika Block, Waiapu M.B. 40:19).
In the 1894 Court session boundaries were given only by some claimants; in 1908 several claimants opened their cases by giving the boundaries of the portion they claimed. In every case where the block adjoined the sea, the coastline was given as the boundary. There were few accounts given in this session about surveys (cf. the 1885-6 and 1894 Court sessions), although negotiations with the Government for timber leases, the port and township at Hicks Bay, etc. were elaborated. More information was given about the King Movement and its effect on the area, than in any other session. The two claimants who particularly emphasised this material both fought on the ‘Government side’, on the East Coast and in Taranaki, in their youth. As both claimants occupied the land under investigation during the period of [p174] warfare, their accounts illustrated both their loyalty to the Government and occupation. Descriptions of the tribal meetings (1872 Mataahu, 1874 Wharekahika, 1875 Horoera and Pakihi) were also given, although it is not clear whether these were viewed as significantly by the Judge as the local people. There were also a number of references to cannibalism and spiritual practices:
'When Rangi paturi was killed at Tokakuku, Te Whatu cut a portion off the body, and took it to the Kainga of Kirikiri where it was cooked and given to Tamaitioterangi who ate of it. After that, she took her meals in the daytime’
(Popata Pariohe, Tapatu Block, Waiapu M.B. 42:172);
'Te Aratangata was bewitched and died at Waitekaha. Parua did the bewitching. His body was brought back. The people slept at Wharauma. Parua bewitched a water jar. Titirohia woke up, drank from jar, and died’
(Himiona Apanui, Tapatu Block, Waiapu M.B. 42:121).
As in 1894, claimants were generally represented by kaiwhakahaere (conductors), most of whom were part of the ‘educated’ (in Pakeha schools), up and coming generation. The older Chiefs often conducted their own cases. By this Court session most of the parties were well versed in Land Court tactical procedure. Several claimants when confronted by contradictions in their evidence, either from former Court sessions or before Block Connittees, pleaded inexperience during that time: ‘I was inexperienced in Court work when I said Tamakoro’s land was between Tauranga-Kautuku and Kopuapounamu’ (Himiona Apanui, Tapatu Block, Waiapu M.B. 42:132).
The 1908-9 Court procedure included many of the characteristics of former sittings. The focus of evidence however, shifted markedly from survey dispute to traditional histories and occupation. Most of the blocks investigated in this session are coastal, and during the 1840’s and 1850’s, when Ngaati Porou experimented so successfully with introduced crops, this was the land on which they were grown. Occupation and cultivation of the land was demonstrated by naming maara on the land. Crops such as kuumara, [p175] and taro appeared to have been the special concerns of family groups, while karaka, fern root, etc. were harvested from the same site by several groups. In this Court session claimants referred to the cultivation of mussel rocks : ‘[we] set up a rahui so that we might cultivate. The rahui referred to is that over the kukus mussels’ (Keeti te Ahurangi, Wharekahika Block, Waiapu M.B. 40:63), and the harvesting of named fishing grounds. Like maara on the land mussel rocks were ‘owned’ by family groups, while fishing grounds were not divided, but held in joint ownership by several hapuu:
'Te Kupenga is a cultivation there, Oparara is a hapuka fishing ground, Raorakou a hapuka fishing ground, Kopuakoura, another fishing ground, Makorokoro a moki fishing ground, Kahuitara, another moki fishing ground, Te Nikau, a fishing ground, Te Roherohe another fishing ground. Te Araaka, hapuka fishing ground. All these belonged to my tipunas, Whakarae and his “uri” ’.
(Waiheke Tureia, Wharekahika Block, Waiapu M.B. 40:107-8).
In former Court sessions kaiwhakahaere (conductors) were prevented from giving evidence under the rules of judicial practice, their function being to present the case and cross-examine. In Judge Sim’s Court however, they were permitted to supplement their witnesses’ evidence, provided the information could not be supplied by any other witness in their case (Waiapu M.B. 42:129). The questioning of witnesses by kaiwhakahaere was for the first time recorded in the minute books. Some of the kaiwhakahaere favoured the use of evidence from former Court sessions - Papatipu Block Committee Minute Books, Appellate Court Minute Books, and Native Land Court Minute Books - to cross-examine their opponent’s witnesses:
'Paihia may have given whakapapa tracing Arero from Kopuni in Whakaangiangi case
Te Arero = Hapaikawa
A. I am not clear about that. That that may be correct, but Hare Paihia did not tell me. I still say I do not know about Te Arero’s descent.
- I admit I gave that whakapapa in Whakaangiangi case (M.B. No.12 p.127) but it was given to me by Hare Paihia. If it is wrong then it was Hare Paihia’s fault. I was only the conductor’
Te Hati Houkamau cross-examined by Waiheke Tureia, Horoera Block, Waiapu M.B. 39:156).
The Court accepted the validity of both traditions and whakapapa provided they had been recited undisputed in former Court sessions:
'According to Popata’s whakapapa in Tututohora case (MB 11 p.64) Karamea must have three parents. That shows that Popata’s whakapapas require scrutiny and I ask the Court to enquire into them’
(Waiheke Tureia, Tapatu Block, Waiapu M.B. 44:162).
Popata in reply says no objection to whakapapa made in Court at that time, when first gave whakapapas in Court in Tapatu case ... He said he was inexperienced in the Tututohora Case he should have stated ...
In Papatarata case many people were put in under “aroha” and not under the ancestors. Popata Pariohe said that the Court might perhaps take a wrong view, if he did not call a witness as to the whakapapa.
The Court said that as Popata had given the wh’papas and they had not been disproved the Court was bound to accept them’
(Tapatu Block, Waiapu M.B. 39:162-3).
In the 1908 Court session there was a shift to using written rather than oral debates. By 1908 family traditions, formerly handed down in oral form, had been recorded in books. Members of families faced with objections to their account of traditions or whakapapa by counter claimants, produced these books in Court to validate their evidence:
'Waiheke Tureia produced ancient book showing that Tutokotaua was child of Te Auiti’
(Tapatu Block, Waiapu M.B. 44:239);
I cannot say of my own knowledge, but I have a book with it in. I can produce if necessary’
(Hori Mahue, Wharekahika Block, Waiapu M.B. 40:37).
These books were also used at pre-Court meetings:
'At first meetings at your house I pointed out my “take” to you. The people of the case had previously arranged at Wharekahika that Tahania was to be the “take” for the whole block. That was to be our joint “take”.
I admit I gave you whakapapa shewing descent of Te Mingi from Kairoro and my descent from Te Mingi, but I said wait till I get my book so that matter can be cleared up. I admit I never brought my book to you. Finding there was doubt about the whakapapa I did not give it to the Court’
(Hare Kopakopa, Wharekahika Block, Waiapu M.B. 42:12).
Gazetted applications for Court hearings , which had been pivotal in the 1894 Court judgments, were also produced, either to contradict boundaries given in 1908, or to show by their early date, the justness of the litigant’s claim to ownership (Hohepa Karapaina, Wharekahika Block, Waiapu M.B. 41:190).
In Judge MacKay’s Court there was no record that conductors summed up their evidence. In Judge Gudgeon’s Court claimants sometimes read a prepared statement aloud in Court at the end of their case, but appeared reluctant to address the Court (Waiapu M.B. 14:312). In 1908 the claimants of each case addressed the Court at length. During the final summing up in the Horoera investigation, the Court sat late into the night for two days before the speeches (of eleven claimants) were completed (Waiapu M.B. 39:171-2).
In Judge Sim’s Court of 1908 the Assessor, Haaka Tautuhi, (of Waikato?) played an active role. He conducted most of the Court’s cross-examination of witnesses. The only other Court in which the Judge and Assessor appeared to equally share responsibility for the Court was in Judge Rogan’s 1875 Court. Like Gudgeon, Sim and Tautuhi’s judgments spanned some ten-twelve pages. In every case the land was made inalienable except by way of lease. When Henare Ahuriri, the conductor of Wi Arapata’s claim to Wharekahika, asked the Court to take the cripple, Henare Koronga’s evidence by Commission, the Court said that:
'it would leave the case open, for the purpose of getting the evidence from Henare Koronga. If Henare could be brought here, well and good, if not the Court would consider the advisability of going itself to Wharekahika to get Henare Koronga’s evidence’
(Wharekahika Block, Waiapu M.B. 40:48).
Sim and Tautuhi’s judgments appear to be based principally on occupation:
'in many of the cases brought before this Court it looks as if the claimants being certain of the occupation of a particular ancestor, built up a take to account for the occupation.
Owing to the weakness of all the “takes” the Court is compelled to base its decision primarily on occupation’
(Whakararanui judgment, Waiapu M.B. 39:184).
When the Marangairoa No. 2 judgment was read, Waiheke Tureia suggested that the Court had merely followed the Block Committee’s decision. However the Judge contended that both he and the Assessor:
'had taken a great deal of time and pains to go carefully through all the evidence, and had come to an absolutely independent conclusion. That it had agreed with the Committee Report in a great many points was simply because the weight of evidence was in that direction’
(Waiapu M.B. 36:296).
As will be recalled from the 1885-6 session negotiations were made with the Court to lower the cost of investigations. Where land was sold or leased to the Government money was advanced for the survey or its cost subtracted from the total payment for the block. Where land was retained by owners, as in 1894, survey liens (Aruhemokopuna Block) were charged against the land, which meant that the land had to be sold or leased to meet costs. However where land such as the papatipu blocks, that is the ‘whenua tuturu’ were surveyed and later investigated by the Court some other means of raising money had to be found. The cost to set up cases in Court in 1875, at least for the Matakaoa Block, was £2-0-0 for the hearing and £1-0-0 for the Memorial of Ownership (Gisborne M.B. 2:167); in 1885-6 costs were briefly nothing, and then £1-0-0 per witness, 2/- for swearing [p179] in, and £l-0-0 for a Certificate of Title - for the Aruhemokopuna Block this amounted to £15-0-0 for the hearing and £4-0-0 for the Order of Ownership (Waiapu M.B. 11:131); in 1894 the cost was £1-2-0 per day per witness, £1-0-0 per day per cross-examination, plus £1-0-0 for an Order of Ownership - in the Mautotara Block the Judge awarded four separate pieces at £1-0-0 each (Waiapu M.B. 24:358); in 1908 the costs for witnesses and cross-examinations remained approximately the same, but with several cases set up in Court for every block, each with two or three witnesses, the overall cost of the Court proceedings increased dramatically. Subscriptions were collected to meet the costs of the survey and the Court, and from the number of disputes in Court over omissions in the ownership lists, it is clear that support for the people in Court, in subscriptions or by supplying them with food, was necessary to ensure a place in the lists of ownership:
'some of the people did not assist in advancing the case, and those who bore the burden think they should assist’
(H.T. Paipa, Marangairoa No. 2, Waiapu M.B. 39:50);
'The Court said that there was no doubt that people who had not assisted the case should get slightly smaller shares’
(Wharekahika Block, Waiapu M.B. 43:218).
In some cases even this was not enough:
'Outside the court, [he] admitted our right, and said he would urge it before the Court. We paid him money to assist in putting the case before the Court. We have stayed here on the strength of (his) word, and now he is allowing us no shares’
> (Hemi Whakarara, Tapatu Block, Waiapu M.B. 44:90-91).
Included in the Judge’s decision was the number of shares to be allocated to each descendant group of the ancestor awarded ownership. People were appointed by locals to be in charge of these lists. Claimants who had been unsuccessful in the first round of litigation were frequently found to be in control of at least one list, apparently in conjunction with their former opponents. The take set up in the investigation of title (the first [p180] round) may have been divisive, but people had more than one line of descent. In the second round (ascertainment of lists of owners) different lines of descent, which linked opponents, were evoked. Meetings were convened outside the Court, generally at HINERUPE marae, to decide the names to include in the list of owners and the allocation of shares. With people going directly from the Court to these ‘list’ discussions, the amount of time spent on land matters was considerable. By 1908 disputes over the allocation of shares was common practice. Litigants took these disputes into the Court to be settled by the Judge, and further evidence of traditional histories and whakapapa were recounted of shares to be allocated to each descendant group of the ancestor awarded ownership. People were appointed by locals to be in charge of these lists. Claimants who had been unsuccessful in the first round of litigation were frequently found to be in control of one list, apparently in conjunction with their former opponent. Meetings were convened outside the Court, generally at HINERUPE marae, to decide the names to include in the list and the allocation of shares. By 1908 disputes over the allocation of shares was common practice. Litigants took these disputes into the Court to be settled by the Judge, and further evidence of traditional histories and whakapapa were recounted during these investigations. Claimants stated that people were included in the lists of ownership for several reasons:
'Some descendants of Te Aowharura have been admitted into lands of other children of Hinerupe - but there are various ways of getting in - money, aroha, and intermarriages’
(Waiheke Tureia, Tapatu Block, Waiapu M.B. 43:99);
'In Papatarata case many people were put in under “aroha” and not under the ancestors’
(Popata Pariohe, Tapatu Block, Waiapu M.B. 44:162).
This suggests that even within the fixed tenure created by the Land Court people found a little room to manoeuvre.
The Nature of the Evidence
The methods employed to validate evidence in this Court session are both Maori and Pakeha. Meetings, and the decisions of elders are still used to justify or validate evidence in Court, but so are written documents. More than in any other Court session, evidence that had been acceptable to earlier Courts was produced as ‘proof’ to demonstrate ownership of land. This proof was also used to undermine the credibility of witnesses. While there appear to be few accounts of survey disputes, at least in comparison to the evidence given in the 1885-6 Court session, I suggest that this is because the disputes have shifted to become open challenges of traditional histories and whakapapa. Written, and by implication fixed, accounts are being used as the weapons in this challenge.
In the evidence given before the Court during this session claimants refer persistently to their own movement across the landscape:
'Those persons lived here and at Waiapu. They went backwards and forwards, but their permanent residence was here’
(Himiona Apanui, Tapatu Block, Waiapu M.B. 39:122);
'Our occupation was intermittent, first at Okarae, then Wharekahika and so on. It was so with Hare Reweti and the others they would stay at Okarae [near Lottin Point] for a time, then go to Whangaparaoa and so on’
(Hare Kopakopa, Wharekahika Block, Waiapu M.B. 41:371);
'my section would live with the Hunaara people and then go away’
(Keeti te Ahurangi, Horoera Block, Waiapu M.B. 39:244);
'Wharepa [an ancestor] lived sometimes at Wharekahika and sometimes at Waiapu - don’t know where Uenuku born, but Uenuku’s children were born in Waiapu and then came here, while Paia still living.
Te Aowhakama and his wife Te Aotaihi (of Kopuni) were here [Te Kawakawa] after they had been at Horoera’
(Te Keepa Patahuri, Wharekahika Block, Waiapu M.B. 41:264).
This suggests that not only in the lifetime of the people in Court but even [p182] in pre-contact times there was an ebb and flow of people across the landscape. Harawira Huriwai stated the people shifted their residence out of ‘good feeling’ and their relationship with others (Horoera Block, Waiapu M.B. 39:27). He also pointed out that some of the people who have rights to the Horoera Block live at Waiapu, some at Kawakawa, some up Awatere River, and that they are called Wha Tuterangiwhiu, Wha Kopuni, Wha Hunaara, Wha Kahuteiro (Horoera Block, Waiapu M.B. 39:94). Another claimant, Popata Pariohe claimed that hapuu names were dependent on residence: ‘When they lived on this side of Takanga they were known as Wha Te Aopare. At Takanga they were known as Wha Tuwhakairioraiti’ (Tapatu Block, Waiapu M.B. 43:186); while Henare Koronga suggests that even take to land could shift: ‘No permanent “take’s” there. Those I had were ancient ones which I do not now recognise’ (Wharekahika Block, Waiapu M.B. 40:311). Therefore it appears that not only was occupation fluid, but also rights to land and the name one evoked to claim these rights.
In the evidence given before the Court in this session, claimants for the first time refer to rights to land growing cold, apparently in response to the Land Court:
'I would not have objected to the others. Their rights to land were still warm but owing to their having set up cases, I am strong against them. I treated them leniently in Papatarata case’
Popata Pariohe, Tapatu Block, Waiapu M.B. 43:180).
There is also some indication that shortly before Land Court sessions commenced, groups of claimants travelled to blocks firstly, to familiarise themselves with the land and the sites of occupation, and secondly, to warm up their rights to the land:
'Perhaps you have come to try and make your right warm. The days are coming when Wharekahika will be put thro’ the Court and you will then be setting up cases. I will not prevent that but now I object to your staying here’
(Whaaka Tamariki, Wharekahika Block, Waiapu M.B. 41:328).
People also began to occupy all their rights to land for limited periods to ensure their residence patterns fitted the criteria used by the Court in awarding title to land: ‘he knew that residence would save the land so he went back to Waiapu’ (Hana te Rore, Pakihikura Block, Waiapu M.B 24:185).
Evidence given in this session also suggests that ownership was, prior to the awards of title made by the Land Court, quite flexible. People were placed on land: ‘Anaru’s occupation at Horoera was not ancestral, it was Te Mokena who placed both Anaru and Karepa on the land’ (Te Hatawira Houkamau, Horoera Block, Waiapu M.B. 39:144); and maara (cultivations) were gifted in exchange for avenging death, tattooing, building canoes, etc. There is some indication that boundaries were fixed to settle disputes in former times (Manahi Parapara, Tokata Block, Waiapu M.B. 24:266), however a number of groups could live on the same land at different times (Paora Taihaaki, Ahomatariki Block, Waiapu M.B. 11:230). Local Matakaoa people referred to the land in terms of a named ancestor rather than a block throughout their cases. In 1879 a boundary between the two tribes Whanau-a-Apanui and Ngaati Porou was fixed (Hohepa Karapaina, Wharekahika Block, Waiapu M.B. 41:223).
Another theme which emerges from all the judgments delivered in this Court session is that the blocks were occupied by what Judge Sim termed ‘papatipu people’:
'When the land changed ownership either by conquest or occupation the ‘papatipu people’ remained in occupation, and the two lines intermarried’
(Whakararanui judgment, Waiapu M.B. 39:182; cf. Horoera judgment, ibid:191).
Claimants in this Court session persistently distinguish between two lines of descent, mana whenua (authority over land) or papatipu and mana tangata (authority over people):
'a rangatira has mana over the people only or sometimes over both people and land ... During his lifetime Te Houkamau Iharaira Te Houkamau had mana over the land at Wharekahika and over the people too. As to the land sometimes his [p184] brothers had greater “mana” than he ... The parents gave land to the female children’
(Waiheke Tureia, Wharekahika Block, Waiapu M.B. 40:107; 149).
The claims to the block investigated in this session revolve around the two rights to land. Even claimants whose take was reliant on mana tangata admit: ‘Tuwhakairiora had no land rights his right was his descent from Porourangi and his ringakaha’ (Te Hati Houkamau, Horoera Block, Waiapu M.B. 39:134), this claimant also suggested however that the ‘papatipu is not a reliable “take” ’ (Wharekahika Block, Waiapu M.B. 40:23). Another claimant pointed out to the Court that the ringakaha (mana tangata) over papatipu (mana whenua) had been accepted by former Court sessions (Popata Pariohe, Tapatu Block, Waiapu M.B. 43:183). The relationship between the two lines:
'I don’t admit or deny the cases before the Court - they all come under mine. The mana belonged to Tuwhakairiora, and those who got their rights got it from him’
(Te Hati Houkamau, Horoera Block, Waiapu M.B. 39:152)
hints that a balance between the two lines existed.
The early Court sessions (1885-6) awarded ownership of land primarily to mana tangata lines - conquests of land and people. In 1908 the judgments based principally on occupation (which as I have suggested was in a constant state of flux) favoured the papatipu or mana whenua line. judgment in favour of either line denies the fact that these two lines had co-existed (peacefully?) for several generations.
The evidence given in this session suggests a constant ebb and flow of people across the landscape. An almost equally fluid potential ownership of land, and that land and sea were both ‘owned’; smaller portions - maara of mussels and vegetable foodstuffs were the special concerns of family groups (hapuu?), while fishing grounds and bush reserves were ‘owned’ jointly and utilised jointly by several groups (hapuu) linked by descent [p185] from a common ancestor.
In the 1875 Court local people claimed whole blocks under a tribal name; the boundaries were defined by the surveyor’s map and no whakapapa was given, and only the briefest of tribal history. In 1885-6 whole blocks as defined by the surveyor’s map were again claimed, and only one hapuu (not tribal) name was given: ‘I live at Te Kawakawa. My hapu is Te Whanau-a-Hinerupe of Te Whanau-a-Tuwhakairiora tribe’ (Piniha te Rito, Aruhemokopuna Block, Waiapu M.B. 11:243). This session was the first in which whakapapa appeared in the evidence, and it will be recalled the Matakaoa district was fraught with survey disputes. The two Judges began to apportion titles to land between groups (e.g. Aruhemokopuna judgment, Waiapu M.B. 11). In 1894 claimants went into Court and claimed only portions of the surveyed land: ‘I know the land Pakihikura - claim only part of this land’ (Manahi Parapara, Pakihikura Block, Waiapu M.B. 24:150). For the first time claimants gave brief boundaries, and more than one hapuu name to the land. In 1908 the claims to portions even include single maara on the land under investigation. Boundaries and whakapapa were given in every claim. For the first time however in Court whakapapa was disputed. This suggests that local people in their evidence in Court attempted to accommodate European concepts of ownership to fit their own. Not only was occupation, fixed ownership, and land rather than sea ownership stressed, but the way people set up their claims to the land in the Land Court was also tailored to fit the individual Land Court Judges criteria of ownership.
 By negotiative I include the whole gamut of interaction from co-operation and adjustment through to protest and warfare.
 In 1900 this role was handed to the Maori Land Councils under the Maori Land Administration Act.
 Court sessions were held at Opotiki (about eighty miles north of Te Araroa), Waipiro, Waiomatatini, Port Awanui (about thirty miles south of Te Araroa), and Uawa (about eighty miles south of Te Araroa) from 1875 to 1886.
 Of four cases heard before the Appellate Court at Waipiro in 1895, only one former judgment was left unaltered (Judge Mair, W.G. Diary 21st January-26th March MS-A31).
 Local people applied to have their land (surveyed blocks) investigated by the Court. These applications were gazetted in Te Kahiti along with the date of the Court investigation of title to notify all interested (those with claims) parties.
 Porter, who fought alongside the Government-side leader Ropata Wahawaha (see footnote 11) in 1868 at Ngatapa, and pursued Te Kooti through the Urewera country in 1870-2, married a close relation of the Chief Henare Potae of Tokomaru Bay. He was very close to Ropata Wahawaha - published a book on Ropata’s life - almost like a son. In 1874 at the Wharekahika Hui of Iharaira Te Houkamau, he was appointed by Ngaati Porou (in preference to Wilson who already had been appointed by the Government) as the Government Land Commissioner for the Waiapu. The Chief Herewini Tamahori claimed Porter had ‘grown up amongst them’ and Tamati Kakano said his ‘worth was known to all the people’ (Te Waka Maori, Wharekahika Hui Report lst December 1874:286-8).
 Only people whose names were included in the list of awarded owners could apply for a rehearing, and then it was over to the discretion of the Chief Judge (1873 Native Lands Act).
 In at least one case the judgment, which took two days to read, was given solely in English in Court (Judge Mair, W. Diary 12th March 1900 of Judge MacKay).
 One of the Wharekahika Chiefs who attended the conference at Kohimaarama in 1860 (see page 61).
 cf. Judges of 1885-1886, 1894 and 1908.
 Ropata Wahawaha was a key figure in land negotiations between Ngaati Porou and Government. In 1865, during the fighting between the Hauhau and the Government at Waiapu, Ropata Wahawaha distinguished himself as one of the Ngaati Porou leaders who fought on the Government-side. In 1868 he led the Ngaati Porou contingent against Te Kooti at Ngatapa (inland from Gisborne), and from 1870-2 he, accompanied by Porter (see footnote 6), pursued Te Kooti through the Urewera country. In 1878 he was presented with a Sword of Honour and appointed to the Legislative Council. He died at Gisborne in 1897 and was buried with full military honours at Waiomatatini (MacKay, J. 1949:297).
 Te Hatiwira Houkamau distinguished himself in leading, with Paratene Ngata, a contingent of Ngaati Porou to Taranaki in 1867. As the eldest son of the Ariki Iharaira Te Houkamau he became, on his father’s death, the Chief of Te Whanau-a-Tuwhakairiora. Like his father, he actively negotiated with Government to bring peace between the two peoples - Maori and Pakeha. He was a key figure in all the Land Court sessions held on the East Coast.
 ‘When in Court, to support that claim, I always swore to the truth on your Bible. I rubbed my nose well on it, and then I traced my descent ... ’ (Kowhia Ngutu Kaka in McDonnell n.d.:495).
 These rent receivers were closely related high-ranking elders (or Chiefs) from Wharekahika (Hicks Bay).
 Mana generally descends through Chiefly lines by primogeniture. Mokena Kohere’s eldest son, Hone Mokena only appears in the Court minute books as an advisor or mediator, never as a witness or a claimant, although his name is included in ownership lists (1885-1886 Court sittings). He never appears to be in a position to be judged or his authority questioned, in fact Judge MacKay and Judge Wilson asked his advice. Another son of Mokena Kohere, Tuhaka Mokena conducted several cases.
 Rogan and his Assessors appear to have worked closely together: ‘The judgment given had been agreed upon between me and the Assessor ... ’ (Rogan, AJHR 1877 G-5:39); ‘The judgment of Waingaromia No. 2 was mostly mine ... ’ (Hone Peti, ibid:40).
 For a comprehensive account of these Committees see Jane McRae’s 1981 thesis - Participation: Native Committees (1883) and Papatupu Block Committees (1900) in Tai Tokerau.
 Under the 1874 Land Amendment Act a majority of shareholders were required to sign their agreement for sale, lease, or mortgage of their land. The 1878 Amendment Act, the Native Land Court Act of 1880, the 1883 Amendment Act, and the 1886 Native Land Administration Act, all reinforced the intention of the 1874 Amendment Act. It was possible to circumvent these restrictions (except for the 1886 Act) by lodging an application for a partition with the Land Court.
 A block south of the Waiapu River and therefore outside the Matakaoa district.
 He continued: ‘There were two great chiefs of Ngatiporou - Te Hokamo, who is dead, and Tamanui Tera, who is the great surviving chief’ (Wi Pewhairangi, AJHR 1885 G-1:74).
 Cf. the spread of the Paimarire religion and the Hauhau Movement in the 1860’s.
 During the Ngamoe title investigation the kuia Tuihana Tawhiri wanted to set up a claim in her own right. Tuta Nihoniho informed the Court that she was his senior relation. When the Court asked her why she disclaimed connection with her own tribe, ‘she explained that she had lost one of her cases by her first cousin’s mismanagement of it’. The Court would not allow her to set up a separate case (Waiapu M.B. 11:86).
 Cf. page 133.
 Hori Ropiha accompanied King Tawhiao to England to request the Queen to fulfill the promises of the Treaty of Waitangi in regard to the large land confiscations suffered by Waikato after the 1860 warfare.
 A descendant of one of the claimants in this case has written a thesis relating the history of this block. The thesis concludes with a discussion of the Waipiro investigation by the Land Court (Te Awarau, W.M. 1927).
 Claimants in the Land Court never referred to any other Court sessions in this way.
 This Bill later became the 1886 Equitable Owners Act. Under the 1873 Native Lands Act, all shares to land had to be decided by the adjudged owners and confirmed by the Land Court. Court sessions were often involved in disputes over share allocation. This Act, by awarding equal rights, that is equal shares to all owners tried to overcome this problem, but at the same time it meant that people with more than one line of descent to the land (and therefore more than one right to the land) were disadvantaged, and high-born people - rangatira lines - were made equivalent, in terms of shares received, to ‘slaves’.
Ko tena te Wirihana, he
pakeke - he pukeko no Opotiki’
Ko tena te Wirihana, he
pakeke - he pukeko no Opotiki’
He was rejected as the Government Land Commissioner for the Ngaati Porou district in favour of Porter (ibid).
 The reason for shifting the Court to Awanui given in the Minute Book was ‘that a fever of a malignant form had appeared at Waiomatatini’ (Waiapu M.B. 11:232).
 In all but one case of survey dispute cited during the title investigations by the 1885-6 Court, Government land purchase was involved.
 When Te Hati Houkamau and Hare Kopakopa were sent by Iharaira Te Houkamau to stop the European confiscation survey of Wharekahika (see page 124) the intent of menace may well have been the same.
 Harris made the same point in 1891 before the Native Lands Commission at Turanganui (AJHR 1891 G-1).
 Manahi Parapara and Te Hatiwira Houkamau shared the same mother, a woman of high-rank, Ripeka Te Paremamaku. She was married to Iharaira Te Houkamau until the missionary Rota Waitoa told Te Houkamau that to be a Christian he must have only one wife. She remarried and Manahi was one of the offspring of this union. Manahi Parapara, like so many Matakaoa people of his generation, appears to have been part of the Ngaati Porou contingent sent to Taranaki in 1867. From 1894, he became one of the key figures in the Land Court of Matakaoa.
 Ripeka Te Paremamaku, Mere Katene’s sister and the mother of Manahi Parapara and Te Hatiwira Houkamau appears to have kept aloof from the Land Court (cf. Mokena Kohere page 116).
 In the cross-examination of Mereana Waipauhu in the investigation of the Mautotara Block Renata Tihore recited a whakapapa and asked her whether it was true, she replied ‘all the people you mention belong here but don’t know if they have a right’ (Waiapu M.B. 24:135).
 Contention in this Court was less than in 1908, yet the 1908 judgments were much shorter. The length of judgment reflects, I believe, the style in which Judge Gudgeon conducted his Court.
 By the age of seven Eruera Kawhia Stirling had been taught important aspects of history, whakapapa and boundaries of the big blocks around Raukokore (Stirling/Salmon 1976:154).
 Judge Gudgeon also suggested:
 This includes meetings to decide the take, Block Committees and the Land Court and meetings to decide the lists of names to be attached to the title.
 These two women were sisters and famed ancestors of the Matakaoa district.
 Under the 1904 Native Lands Rating Act rates were payable on all Maori land previously investigated and awarded title by the Native Land Court (Introduction to the 1909 Native Lands Act).
 Porter had recently returned from active duty - leading the East Coast Hussar to the Boer War.
 See footnote 5.
A gazetted application for a Court hearing