Ngati Tama settlement becomes law

The Ngati Tama Claims Settlement Bill has been passed by Parliament today.

Treaty Negotiations Minister Margaret Wilson said this event of great significance for the tribe marks the settlement of long-held historical grievances in Taranaki and the beginning of a new era of progress.

Representatives of Ngati Tama were in the House to witness the passage of the Bill and Margaret Wilson encouraged all New Zealanders to read about the iwi’s history.

“It tells a sad history, about which some of us have a general awareness, but know little of the detail. It is a history all New Zealanders should be familiar with.

“It makes it clear why there must be restitution and why this nation must persevere with settlements. Everyone benefits if we can build a positive and co-operative future. This settlement will help Ngati Tama move on from the grievance they have carried over the past 150 years and contribute to the growth of the iwi and their community.”

This is the second of eight Taranaki settlements, which are in various stages of completion. These include Ngati Ruanui, whose legislation was passed in April, Ngaa Rauru who are scheduled to sign a Deed of Settlement shortly, and Ngati Mutunga and Te Atiawa who have signed Heads of Agreement with the Crown.

Ngati Tama have been in direct negotiations with the Crown since November 1996, when a Deed of Mandate was recognised. A Heads of Agreement was signed in September 1999. A Deed of Settlement, involving financial redress of $14.5 million, and a variety of cultural redress aiming to recognise and protect the interests of Ngati Tama in sites particularly significant to them, was signed in December 2001.

Margaret Wilson said the government was committed to progressing the settlement of valid historical Treaty claims. “There are people who like to criticise the current Treaty settlement process. They forget settlement is a two-way process seeking to restore, and in some instances activate, relationships.”

HISTORICAL ACCOUNT

From the Ngati Tama Claims Settlement Bill

introduction

This Part sets out an historical account of the events upon which the Crown’s acknowledgement and apology in Part 7 are based.

The cumulative effect of the Crown purchases in Taranaki carried out during the 1840s and 1850s created a situation that ultimately led to the outbreak of war. The Crown’s attempt in 1859 – 1860 to purchase the Pekapeka block on the south bank of the Waitara River, which settlers were anxious to acquire, touched off the war.

On 8 March 1859, Governor Gore Browne announced in Taranaki that “he would never consent to buy land without an undisputed title” and “would buy no man’s land without his consent”. At the same time he said he would not permit anyone to interfere in the sale of land “unless he owned part of it”.

Governor Gore Browne received poor advice from Crown officials concerning the nature of Te Atiawa rights at Waitara, and the situation there.

Martial law was proclaimed in Taranaki on 22 February 1860. The English text of the Proclamation stated that “active military operations are about to be undertaken by the Queen’s forces against Natives in the Province of Taranaki in arms against her Majesty’s sovereign authority”. The text as it was translated into Maori was read as a declaration of war as it proclaimed “the law of fighting [is] now introduced to Taranaki”. The Crown did not officially correct Taranaki Maori understandings of it, and it was left to individual colonists to explain the meaning of martial law to individual Maori.

Despite the continued dispute over the Pekapeka block, the Crown executed a deed of purchase for this area, and took military possession of the block early in March 1860. After the survey began on 13 March, opponents of the sale built a fortified pa on the block. The occupants subsequently refused a demand to surrender, and on 17 March the pa was attacked by Crown troops.

Due to the support received by Te Atiawa from within and outside of Taranaki, fighting between Crown forces and Maori continued for a year.

A peace agreement was reached in April 1861 with the involvement of Kingitanga representatives. The agreement provided that the Waitara purchase would be investigated. Governor Grey renounced the Crown’s claim to the block in May 1863, but by that time war had broken out between the Crown and iwi at Oakura. The Crown then continued armed campaigns in Taranaki until 1869, but there was little fighting in North Taranaki.

During the course of these campaigns, the Crown built redoubts at Pukearuhe and Waiiti to secure military occupation of the land and provide security for military settlements that would be established later on confiscated land. Both redoubts were built on waahi tapu.

confiscation

The confiscations, that were to have such long term and damaging impact on Ngati Tama, were effected by the New Zealand Settlements Act 1863. The Preamble stated that the North Island had been subject to “insurrections amongst the evil-disposed persons of the Native race”. There was no mention of the Crown’s role in initiating the wars.

The stated purposes of the Act were to provide for “the permanent protection and security of the well-disposed Inhabitants of both races”; the “prevention of future insurrection or rebellion”; and “the establishment and maintenance of Her Majesty’s authority and of Law and Order”. The stated means of achieving these ends was to place military and civilian settlers on the land.

The Act provided for the confiscation by the Crown of lands of Maori who were assessed to have been in “rebellion” against the authority of the Queen since 1 January 1863.

The Act provided for Maori land to be confiscated in accordance with the following process: where the Governor in Council was satisfied that a tribe or a “considerable number” of a tribe had, since 1 January 1863, been engaged in rebellion, he could declare the District within which land of that tribe was situated to be a district for the purposes of the Act; “Eligible Sites for settlements for colonisation” could then be set apart within such districts; and land reserved for the purpose of such settlements, whereupon such land was deemed to be Crown land.

The Act did not provide a definition of “rebel”. It did provide that no compensation would be granted to those who had been “engaged in levying or making war or carrying arms against Her Majesty the Queen or Her Majesty’s Forces in New Zealand”; had aided, assisted, or comforted such persons; counselled any other person to make or levy war; declined to deliver up arms when so required by proclamation.

On 30 January 1865 the Governor declared “Middle Taranaki” to be a confiscation district, and set aside blocks at Oakura and Waitara South as “eligible Sites for settlements for colonisation.” On 2 September 1865, the Governor declared two further confiscation districts: “Ngatiawa” and “Ngatiruanui”. The Governor also designated “Ngatiawa Coast” and “Ngatiruanui Coast” as eligible sites for settlement.

These eligible sites took in a substantial part of the land in the rohe of Ngati Tama, with the confiscation line cutting across the rohe of Ngati Tama. At this time, fighting had not reached most areas where land was confiscated.

All the Ngati Tama land that could be confiscated within the declared confiscation districts was confiscated, despite the declaration in the confiscation proclamation of 2 September 1865 that the land of “loyal inhabitants” would be taken only where “absolutely necessary for the security of the country”. The confiscations were also indiscriminate in that the lands taken greatly exceeded the minimum necessary for achieving the purposes of the New Zealand Settlements Act, and included the whole of the lands of the eligible sites, rather than just the lands required for the purpose of specific settlements.

The New Zealand Settlements Act does not mention punishment, but was punitive in nature. This is clear from contemporary government statements and from the Proclamation of 17 December 1864 that declared that the Governor would punish those “guilty of further violence” and take possession of and retain “such land belonging to the rebels as he may think fit”.

The Act also punished “loyal” Maori by enabling the Crown to deprive them of ownership of their lands. The Act provided for “loyals” to be compensated for confiscation as had been indicated by the Proclamation of Peace on 2 September 1865. This proclamation promised to restore land immediately to those who were prepared to submit to the Crown’s authority, but the promise was not fulfilled.

The British Colonial Office had misgivings about the scope and application of the Act, considering it “capable of great abuse” but allowed the legislation to proceed because final authority for any confiscation remained with the Governor. The Colonial Secretary instructed the Governor to withhold his consent to any confiscation, which was not “just and moderate”.

The Crown subsequently passed the New Zealand Settlements Acts Amendment Act 1866. This Act declared that all instruments and proceedings under the authority of the Settlements Act were “absolutely valid”, and that none of them were to be called into question “by reason of any omission or defect … in any of the forms or things” provided for in the Settlement Acts.

Extensive supplementary and subordinate legislation was passed by the Crown following the 1863 Act which added to the impact of the confiscations by extending the Crown’s control over the rights and property of Ngati Tama in Taranaki.

compensation court

A Compensation Court was set up under the New Zealand Settlements Act 1863 to compensate some of those whose lands were confiscated by the Crown. The compensation process and its outcomes added to the uncertainty, distress, and confusion among the people of Ngati Tama as to where they were to live and whether they had security of title.

Those considered to be “rebels” could not make claims. In many cases the Compensation Court relied on the evidence of very few witnesses, rather than fully investigating the circumstances of each person affected. The Compensation Court itself excluded others, such as those who did not appear at hearings, and many absentee iwi members. Hearings began in wartime, making it difficult for some claimants to attend.

All of the Compensation Court awards within the rohe of Ngati Tama were based on out-of court settlements. By the time these were made most of the readily useable land in the north had already been disposed of by the Crown. These settlements were not properly investigated by the Compensation Court.

All of the awards made by the Compensation Court on the basis of these settlements were made to individuals, rather than to hapu. Often awards did not include traditional whanau and hapu land. The awards did not reflect customary forms of land tenure.

The lands assigned by the Compensation Court on the basis of these awards were meagre in size and often of poor quality. These entitlements were often located in barren areas, including remote hills and bush. They did not include pa sites and urupa. Even for those judged entitled to an award, title was not issued until all the interests in the area were determined, the precise location settled, the areas surveyed by Crown agents, and the shares sealed by the Compensation Court. Meanwhile, expanding European settlement further reduced the amount and quality of the Crown lands available for allocation to Maori claimants.

Out of some 74,000 acres confiscated from Ngati Tama, 3,458 acres were awarded to Ngati Tama individuals. By 1880, title had not been issued to any of this land. Some claimants were informally aware of the location of their awards and believed that they had a right to occupy the land, only to find later that it was classed as Crown land.

Although the Compensation Court had the ability to award cash compensation instead of land if land was unavailable, it did not do so.

In 1867 the Crown promised awards of land to the absentee owners from each iwi. By 1880, these awards were still undefined on the ground.

A proclamation of November 1867 (which was repeated in 1870 and 1871) declared that, before any further sales of Crown land could be made, 5 percent of the value of every rural and suburban block to be sold in each confiscation district was to be reserved for such tribes as the Governor might appoint. By 1880, when the West Coast Commission began its investigations, this proclamation had still not been implemented.

parihaka

The prophets Te Whiti o Rongomai and Tohu Kakahi introduced a policy of passive resistance to the surveyors and the European settlers who followed. Prior to the Crown’s attack on Parihaka, this policy was supported by people of Ngati Tama and other iwi. Such resistance in 1879-1880 led to more than 420 “ploughmen” and 216 “fencers” being arrested and imprisoned. Most were denied a trial and many prisoners were held in the South Island.

Prison conditions were harsh and included hard labour. The detrimental impact of these conditions was compounded by ill-health and the effects of exile.

A series of special laws was passed in 1879 and 1880 to deal with these prisoners. These laws included provisions for imprisonment without trial, retrospective legalisation of detentions which had already taken place, arrests without warrants, and indefinite detention.

On 5 November 1881, more than 1500 Crown troops invaded and occupied Parihaka in order to dismantle the community. No resistance was offered. Over the following days some 1600 Maori were forcibly expelled from Parihaka and made to return to their own settlements. Houses and crops were systematically destroyed and stock was driven away or killed. Looting also occurred during the occupation. Taranaki Maori assert that women were raped and otherwise molested by soldiers.

Six men were arrested. Titokowaru was tried and imprisoned. Te Whiti and Tohu were held until 1883.

The West Coast Preservation Act 1882 allowed for the indefinite imprisonment of Te Whiti and Tohu without trial, and provided for meetings of more than fifty Maori to be disbanded. Restrictions on Maori gatherings were continued into 1883. Throughout this period, restrictions were also placed on Maori movement; entry into Parihaka was regulated by a pass system.

Some 5,000 acres of the promised reserve at Parihaka were taken by the Crown as compensation for the costs of “suppressing the … Parihaka sedition”.

In 1878 the Crown began to survey the confiscated lands of central Taranaki without having established the reserves promised to iwi in the area. The first West Coast Commission subsequently recommended that surveys and sales should not proceed unless “sufficient reserves” were made, but the second Commission bowed to pressure from the Native Minister and did not lay out the Parihaka reserve.

The Sim Commission concluded in 1927 that the Crown was directly responsible for the destruction of houses and crops, and “morally if not legally” responsible for “the acts of the soldiers who were brought to Parihaka”. It recommended the payment of £300 as an “acknowledgment, at least, of the wrong that was done to the Natives of Parihaka”.

west coast commissions

The first West Coast Commission was appointed in January 1880 to inquire into promises made by the Crown to Maori in Taranaki regarding land confiscated by the Government. Iwi were not given the option of settling matters by negotiation.

The Maori Member of Parliament appointed to the first Commission resigned, claiming that his fellow Commissioners were not impartial. The other Commissioners had previously been Ministers responsible for Native affairs, and had supported confiscation.

The functions of the first Commission were narrowly focused on the Compensation Court awards and specific Crown promises and did not empower the Commission to inquire into the question of fairness of the confiscations and compensation process. The first Commission refused to hear counsel who wished to question the validity of the confiscation and told Maori that it was not there to discuss such questions with them. These factors combined to minimise the amount of land considered eligible for return to Maori and maximised the amount available for settler use and occupation. The Commission focused most of its analysis on central Taranaki.

The first Commission concluded that many Crown promises were not kept. It noted several related problems including the shortage of land available for compensation awards and the lack of available land for Ngati Tama returnees, but offered no solutions.

The second Commission was appointed in December 1880 to implement the recommendations of the first Commission. It arranged for the return of title to Ngati Tama of approximately 4000 – 5000 acres. The second Commission did not make allowance for the quality of land returned when making its allocations. Almost all of the productive land confiscated in the rohe of Ngati Tama had already been provided to military settlers. Ngati Tama were left with insufficient agricultural land for their present and future needs.

The ownership of the blocks to be returned was determined by the second Commission without right of appeal by claimants. Of the land returned to Ngati Tama, all was under individualised title. Many of the reserves were protected against sale when granted, but these restrictions were later removed and much of this land was permanently alienated.

The second Commission recommended a system of management, which was subsequently adopted, that placed the reserves under the control of the Public Trustee rather than the owners.

The West Coast Commission was critical of the Native Land Court process, reporting that if Ngati Tama “had been allowed a rehearing, for which they applied, they would have most probably have succeeded in establishing their right to the land between Tongaporutu and the Confiscated Block, but the Chief Judge positively refused a rehearing.” The first West Coast Commission recommended an increase in the amount of land to be awarded to Ngati Tama, but the total remained small, and most of the land was of poor quality and included only a negligible amount of coastal land.

west coast reserves

The reserves made by the West Coast Commission did not revert to Maori to do with as they pleased. Rather, they were placed under the Public Trustee to administer under the West Coast Settlement Reserves Act 1881 with the owners losing control of their lands. The Public Trustee had full power to sell or lease the alienable reserves and lease the inalienable ones under terms imposed by statute.

In managing those reserves the Trustee was required to promote two goals, one being “the benefit of the Natives” and the other “the promotion of settlement”. The Act provided for leases of up to 21 years for agricultural purposes and 42 years for building purposes, with rents being based on “the best improved rent obtainable at the time”.

Much of the land under the Public Trustee’s administration was leased without the consent of the owners. While Europeans were granted long term leases on the reserves against which they could borrow, Maori were granted only short term leases and occupation licences.

The West Coast Settlement Reserves Act 1892 vested all West Coast Reserves in the Public Trustee in trust for the Maori owners with Maori thereby losing their legal ownership. The Act provided for perpetually renewable leases with rent based on the unimproved value of the land. In effect, these leases created permanent European settlements on the reserves. Leases previously granted by the Public Trustee which conflicted with the terms of the Crown grants were validated, as were earlier reductions in rent. Charges were made against rents including charges for surveying, constructing fences, drainage and roads.

The operation of the Maori reserved land perpetual lease regime was criticised in a number of inquiries from 1890 onwards. The 1912 Commission, for example, found that two facts stood out in respect of the legislation: “The first is that every legislative measure has been in favour of the lessees and the second, that on no occasion has the Native owner been consulted in reference to any fresh legislation”.

In 1934, after the arbitration system for settling rentals resulted in a reduction of rents, Maori successfully pursued the matter of low rents in the Supreme Court. In response the Government introduced legislation to amend the definition of improvements. In effect this nullified the court decision and led to a reduction in rents Maori would otherwise have received.

The Maori Reserved Land Act continued the system of perpetual leases, empowering the Maori Trustee to convert any outstanding fixed term leases to leases in perpetuity and to purchase land for on-sale to lessees.

Maori were further disassociated from their ancestral land in 1963 when titles were amalgamated. The beneficial owners no longer had a specific interest in their customary land but only a proportional interest in reserves throughout Taranaki. A 1967 amendment to the Maori Reserved Land Act facilitated sales. The Maori Trustee could sell lands to lessees, provided a proportion of the aggregated owners agreed, even if the owners with ancestral links to those blocks were opposed to selling.

By 1974 63.5% of reserved land originally vested in the Public Trustee had been sold and a further 26% was under perpetual lease.

The Paraninihi ki Waitotara Incorporation, in which all owners were shareholders, was formed in 1976 to administer perpetually leased lands transferred from the Maori Trustee. Owners no longer had any direct interest in their ancestral land.

Despite restrictions on alienation imposed by the Crown on Maori reserves in the nineteenth century in order to protect ownership, today less than 5% of the reserved land in Taranaki is owned by Maori people as Maori freehold land. Succession fragments interests, so that over time the returns to individuals have generally diminished.

ngati tama lands

The southern portion of Ngati Tama’s ancestral lands was included in the Taranaki confiscations of September 1865 as part of the “Ngatiawa Coast” eligible site in the “Ngatiawa” confiscation district. Prior to the formal confiscation, the military established a redoubt and settlement at Pukearuhe Pa to guard against a possible Waikato invasion. The fighting in Taranaki had not extended to Ngati Tama lands.

The Compensation Court awarded only a small portion of this land to 12 Ngati Tama individuals as entitlements. No Crown titles had been granted by 1880 when the first West Coast Commission began its investigations into unfulfilled Crown promises.

In 1882 the titles to two large blocks totalling more than 120,000 acres on the northern side of the confiscation line (Mohakatino-Parininihi and Mokau-Mohakatino) were investigated by the Native Land Court. Although the area was part of Ngati Tama’s ancestral lands Chief Judge Fenton awarded full ownership of both blocks to Ngati Maniapoto claimants, citing conquest and possession, although admitting that occupation prior to 1840 was “sparse”. The Judge subsequently refused to hear an appeal by Ngati Tama.

This outcome magnified the impact of any adverse consequences of decisions by the Compensation Court regarding Ngati Tama lands, and meant that in the future the Crown did not recognise Ngati Tama as being able to speak for these blocks. It also meant that Ngati Tama considered it futile to make further claims to land in this area through the Native Land Court.

The Crown has acquired Ngati Tama land under Public Works legislation. Land taken includes wahi tapu of particular significance to Ngati Tama.

As a result of these actions by the Crown, and the decisions of the Compensation and Native Land Courts, Ngati Tama in Taranaki were left with very little land and none in tribal ownership.

sim commission

The Sim Commission of 1926-27 was set up to investigate confiscations under the New Zealand Settlements Act 1863 and subsequent legislation, but its terms of reference were limited. It did not consider compensation for imprisonment or economic loss suffered. The Commission could only investigate whether confiscations exceeded what was “fair and just”, and was not permitted to consider any claim that Maori “who denied the Sovereignty of Her Majesty and repudiated Her authority could claim the benefit of the provisions of the Treaty of Waitangi”, nor whether the New Zealand Parliament had the power to pass the confiscation laws.

The Sim Commission had limited time and resources for its purpose and therefore did not fully investigate the return of land, wahi tapu and other taonga.

Despite the limitations placed on the Sim Commission, Ngati Tama and other iwi of Taranaki received serious consideration of their grievances for the first time. The Sim Commission found that:

“Teira was not entitled to sell the Waitara block without the consent of Wiremu Kingi and his people”;

“When martial law was proclaimed in Taranaki, and the Natives informed that military operations were about to be undertaken against them, Wiremu Kingi and his people were not in rebellion against the Queen’s sovereignty; and when they were driven from their land, their pas destroyed, their houses set fire to, and their cultivations laid waste they were not rebels, and they had not committed any crime”;

“The Natives were treated as rebels and war declared against them before they had engaged in rebellion of any kind, and in the circumstances they had no alternative but to fight in their own self-defence”;

“If the abandonment of the Waitara purchase had taken place before the occupation of Tataraimaka, it seems possible that the second Taranaki war would have been avoided”;

“The armed occupation of Tataraimaka was, in the circumstances, a declaration of war against the Natives”;

“Both of the Taranaki wars ought to be treated … as having arisen out of the Waitara purchase”;

“The Government was wrong in declaring war against the Natives for the purpose of establishing the supposed rights of the Crown under … [the Waitara] purchase”; and

“Although the Natives who took part in the second Taranaki war were engaged in rebellion within the meaning of the New Zealand Settlements Act 1863, we think that, in the circumstances, they ought not to have been punished by the confiscation of any of their lands.”

While these findings have been either developed or modified over time, modern scholarship confirms the general thrust of these findings.

The Sim Commission’s recommendations for an annuity of £5,000 for all the Taranaki confiscations and a single payment of £300 for the loss of property at Parihaka were not discussed with the iwi concerned by the government of the day and were never accepted as adequate. The timing of the payment of the annuity was uncertain, and the sums due in the early 1930s were not fully paid.

The Taranaki Maori Claims Settlement Act states that Maori agreed to accept the sums in full settlement of claims relating to the confiscations and Parihaka. There is no evidence that Ngati Tama or other iwi agreed to this. Neither these nor the previous annuities were inflation indexed, which subsequently became an issue.

natural resources

Iwi access to rivers, lakes, forests, swamps and foreshore has been affected by land loss. Land adjacent to rivers has been enclosed preventing iwi from accessing their traditional fisheries and fishing places.

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