Background
(1) The Treaty of Waitangi (Te Tiriti o Waitangi) was signed in 1840. The terms of the Treaty of Waitangi (Te Tiriti o Waitangi) in English and Māori are set out in Schedule 1 of the Treaty of Waitangi Act 1975:
(2) This Preamble presents, in summary form, the historical account set out in the deed of settlement entered into by Ngāti Whātua o Kaipara and the Crown:
Ngāti Whātua o Kaipara
(3) At 1840, the hapū of what is now termed Ngāti Whātua o Kaipara, namely Te Tao Ū, Ngāti Whātua Tūturu, Ngāti Rango, the people of Puatahi who are Ngāti Hine, and other related groups, occupied settlements and used resources throughout Kaipara, Mahurangi, and Tāmaki. With the exception of Ngāti Hine, whose presence developed as a result of a tuku (gift) of land following the battle of Te Ika a Ranganui (1825), these groups had gained rights in land through conquest and strategic intermarriage in the early decades of the eighteenth century:
The Treaty of Waitangi and Ngāti Whātua o Kaipara
(4) The relationship between Ngāti Whātua and the Crown was founded on the partnership created in 1840 through the signing of the Treaty of Waitangi, and the provision of land at Waitematā as the site for the new nation’s capital:
(5) Both parties intended the Treaty to create a partnership—the union of 2 peoples under the protection of the Queen from which both would mutually benefit. Through the Treaty, Ngāti Whātua o Kaipara agreed to the establishment of a British system of law and government (kāwanatanga), and to give their loyalty, support, and assistance to the Crown. Ngāti Whātua o Kaipara also agreed to make land available for settlement by allowing their land to be subject to “pre-emption”, a Crown monopoly on the purchase of land. The Crown, in return, promised it would protect the interests of Māori in the acquisition of land and the development of the colony generally. Ngāti Whātua o Kaipara would receive all the rights and privileges of British subjects and, in the Māori text, protection of chiefs’ tino rangatiratanga over their lands, villages and treasures:
Pre-1865 transactions
(6) Before 1865, the Crown actively fostered its Treaty partnership with Ngāti Whātua o Kaipara and worked closely with leading chiefs whose support was required for the Crown to secure the land needed both for settlement and to help fund colonisation. For Ngāti Whātua, European settlement presented significant opportunities for trade and development, and the introduction of English law was welcomed. Assurances given by Crown officials, together with policies instituted to promote the interests of Ngāti Whātua and Māori generally, secured for the Crown the support and co-operation it needed. Ngāti Whātua provided resources and protection for the colony, including a substantial amount of land for the new settlement of Auckland. Early governors personally affirmed Ngāti Whātua’s status as a loyal and friendly tribe:
(7) Between 1844 and 1845, the Crown waived pre-emption and allowed Māori to sell land directly to settlers. The Crown promised to protect Māori interests in those transactions and to reserve a tenth of all land purchased for schools, hospitals, and other benefits. However, those reserves were never established:
(8) The Crown subsequently established a Commission to ascertain whether purchasers had complied with the terms of the waiver proclamation. The Commission did not inquire into the nature of transactions from a Māori perspective. If Māori told the Commission they had transferred land to a settler, customary title was deemed to have been extinguished regardless of the transaction’s merits. The land then became Crown land and, under its “surplus lands” policy, the Crown could choose to issue a land grant to the settler or retain land for itself as a “surplus”. In total, approximately 6 000 acres of land were granted to settlers in the upper Waitematā Harbour area and the Crown retained a surplus of around 24 000 acres:
(9) Ngāti Whātua o Kaipara sold land to the Crown to encourage European settlement. Crown policy was to purchase at a low price and on-sell at high prices. Crown promises to provide settlement and benefits such as health services and schools were integral to securing Ngāti Whātua o Kaipara consent. Between 1848 and 1853, the Crown purchased further land around the upper Waitematā Harbour. These purchases and the pre-emption waiver sales totalled around 56 000 acres. No reserves for Māori were established within this area and Ngāti Whātua o Kaipara were left with no land in the upper Waitematā area:
(10) From the mid-1850s to 1868, the Crown purchased around 225 000 acres between Riverhead and Oruawharo. Some small reserves were created, but the Crown established no effective mechanism to ensure they remained in Māori control. The Crown itself purchased many of the reserves:
(11) In 1864, Ngāti Whātua o Kaipara gifted 10 acres for public purposes. Helensville later grew around this gift. One acre was set aside for Māori purposes, but was subsequently transferred to the Helensville Town Board, despite Ngāti Whātua o Kaipara protest. Over time, the Crown breached the terms of the gift by alienating parts of the block to private parties, rather than returning them to Ngāti Whātua o Kaipara when they were no longer required for public purposes:
Marginalisation and protest
(12) In 1852, the British Government granted New Zealand a new constitution to establish a representative settler Parliament. However, the right to vote was based on holding property under Crown titles and most Māori, including Ngāti Whātua o Kaipara, did not qualify to vote and had no direct representation in national or provincial government:
(13) In 1860, Ngāti Whātua protested at the Kohimaramara Conference against a number of government measures they linked to their lack of representation in government. They asked the Crown for equality with the settlers by allowing for representation in provincial authorities and the General Assembly. They based this request on the Treaty of Waitangi and the loyalty they had shown the Crown since 1840:
(14) In 1867, 4 Māori seats were established in the General Assembly. Ngāti Whātua leaders argued that the 4 Māori would be swamped by the 41 Pākehā representatives and that Māori and Pākehā should be equally represented in government:
(15) By the late 1860s, Ngāti Whātua o Kaipara had sold or been divested of around two-thirds of their land in South Kaipara. They had received, in return, few of the benefits promised by the Crown. Ngāti Whātua o Kaipara were also outnumbered by Pākehā settlers and, with other Māori, denied a significant role in government. They began a slide towards ill-health that was to continue unimpeded in the years ahead:
Native Land Court
(16) The Native Land Court, established in 1862, was intended to speed up the alienation of Māori land and to open up lands for settlement. Through individualisation, the Crown also sought to detribalise Māori and promote their eventual assimilation into European culture. This was not explained to Ngāti Whātua o Kaipara when they welcomed the court in 1864 as a means of controlling and managing their lands:
(17) The Crown selected Kaipara as the first region for the Native Land Court to operate. Initially, Ngāti Whātua o Kaipara rangatira were active participants in the court process and between 1864 and 1871 title to around 109 000 acres was determined in South Kaipara. However, survey costs, court costs, and other costs placed a significant burden on Ngāti Whātua o Kaipara. The individualisation of title also had a profound effect. Ngāti Whātua o Kaipara held their land collectively but under the Native Lands Act 1865 the court was required to award tribal lands to 10 individuals or less. Those listed were expected to act as trustees for their hapū but they had no legal responsibility to other owners. This meant that if individual title holders got into debt, land in which members of the iwi or hapū collectively held an interest could be lost:
(18) Nor did the law provide a way for the owners to collectively manage their land. This meant it was difficult for owners to accumulate capital and make improvements. Frequently, owners had little option but to use sale proceeds to meet their immediate needs. From the 1870s, private parties increasingly negotiated for the purchase of Ngāti Whātua land with individual owners, rather than the collective body of owners in a block:
(19) These issues were further exacerbated by the rules of succession provided by the court, which required the land to be divided equally amongst the owners' successors. With each succeeding generation, individual shares became smaller and less economic until management of the land was impossible and the land was effectively unusable:
(20) The immediate costs imposed by the court process, and the individualisation and fragmentation of title that resulted, encouraged the alienation of land. When Ngāti Whātua o Kaipara first entered the court process they sought to use strategic sales of small blocks of land to encourage settlement. As the 1870s continued, Ngāti Whātua o Kaipara struggled to contain alienations as individual debt rose. By 1880, the Ngāti Whātua situation was such that they were no longer selling land as a strategic move to promote the development of the area, but to repay debts and raise much-needed income:
(21) The Crown also purchased 9 400 acres in the 1870s despite warnings from officials that Ngāti Whātua o Kaipara could not afford to lose any more land. The sales were achieved by renewed promises from Crown agents that European settlement and schools would be established, and Ngāti Whātua o Kaipara would derive some lasting collateral benefit:
(22) In 1871, Ngāti Whātua o Kaipara gifted much of the land for the railway between Te Awaroa and Pitoitoi and were promised 1 acre would be reserved for them at each end of the line. Accommodation was to be provided on these reserves. The railway was completed in 1876, and in 1879, a 1-acre reserve at Helensville was provided from the 10-acre block Ngāti Whātua had earlier gifted for public purposes. None of the other commitments were met. Elsewhere in South Kaipara, numerous other pieces of Ngāti Whātua o Kaipara land were taken for railways, roading, and public services, sometimes against the wishes of the owners or without compensation or consultation:
(23) The railway encouraged settlement, and Te Awaroa (Helensville) became the township that Ngāti Whātua o Kaipara had anticipated. However, Ngāti Whātua o Kaipara were unable to capitalise on rising land values because of the extensive tracts of land sold to the Crown in the 1850s and 1860s. Much of their remaining land was of minimal economic and agricultural value:
(24) Throughout the late 1870s and 1880s, Ngāti Whātua continued to voice concerns over their level of representation in government. They spoke or wrote to the governor, Imperial authorities, visiting dignitaries, provincial leaders, and their local resident magistrate. From 1877, a series of well-attended pan-tribal conferences, or Parliaments, were hosted by Ngāti Whātua at Kohimarama, Otamatea, Reweti, Aotea, and Ōrākei. Ngāti Whātua leaders led protests about the effects of land alienation and problems with the Native Land Court. None of these protests had any lasting effect on land laws or the Government’s stance:
Twentieth century
(25) By 1900, Ngāti Whātua o Kaipara were an overshadowed minority in South Kaipara. They had lost around 90% of their lands held at 1840 and retained around only 38 000 acres. Much of this was sandhills or marginal country isolated from areas of settlement. It was scarcely sufficient to permit Ngāti Whātua o Kaipara to maintain a subsistence lifestyle, let alone provide for future development:
(26) A considerable proportion of the remaining land became tied up in long-term leases administered by the Tokerau District Māori Land Board, rather than being farmed by Ngāti Whātua o Kaipara themselves. The board’s management of these leases was sometimes inadequate, and leases could lead to piecemeal partitions and sales by owners who were facing the financial stresses of poverty:
(27) In 1906, the Crown compulsorily vested the Otakanini block (7 638 acres) in the Tokerau District Māori Land Board without consulting the owners. The board leased most of the block for 25 years, with a right of renewal for a total of 50 years. During this time, the owners had no meaningful role in the administration of their own land. The board did not regularly monitor the leases and at their end in 1958 Otakanini was in very poor condition. The owners took legal action against the lessees, but did not recover all the money owed. The poor condition of the land meant that the owners have had a long and expensive struggle to retain and develop Otakanini since 1958 and that few dividends or other assistance could be provided to Ngāti Whātua o Kaipara:
(28) The Kakaraea block was also compulsorily vested by the board without consultation with the owners and then in 1915 leased out for 45 years. In 1957, near the end of the lease, the owners had little option but to sell the land to the Crown because they could not raise the finance to pay the lessee compensation for improvements. The board had not retained any portion of the rentals to ensure the owners could pay for those improvements:
(29) For much of the twentieth century, the Crown preferred to purchase or compulsorily acquire land it needed for public purposes through public works legislation. The Crown acquired over 9 000 acres of Ngāti Whātua o Kaipara’s remaining land for Woodhill Forest during sand dune reclamation work along South Head. These takings included 4 significant and well-identified wāhi tapu and urupā of great significance to Ngāti Whātua o Kaipara that would otherwise have remained in customary ownership. The takings also failed to provide for legal access to the west coast to gather kaimoana, which was a staple part of the diet for many whānau, the loss of which caused further deprivation:
(30) From the 1930s, Ngāti Whātua o Kaipara benefited from employment as forestry workers in Woodhill and Riverhead. However, many Ngāti Whātua o Kaipara were made redundant in the 1980s when the Crown reformed the forestry sector without consulting Ngāti Whātua. By the late 1990s, 75% of the land Ngāti Whātua o Kaipara had held in 1900 had been alienated by sale or taken for public works. Ngāti Whātua o Kaipara were virtually landless and had been so since the end of the nineteenth century:
Socio-economic impacts
(31) Throughout the twentieth century, the breakdown in the Treaty partnership and the cumulative effects of landlessness and neglect resulted in the dislocation and impoverishment of Ngāti Whātua o Kaipara. Ngāti Whātua o Kaipara have been alienated from their lands, culture, and language, with the rich fabric of hapū and iwi life having been irreparably damaged. Poor economic circumstances forced many Ngāti Whātua o Kaipara to move to Auckland and other urban centres in search of work. Living conditions for those who remained in South Kaipara resembled rural slums:
(32) Despite the endemic nature of the health problems affecting Ngāti Whātua o Kaipara communities in the latter part of the nineteenth century, which were increasingly aggravated by poverty, only limited health services were provided by the Crown. In the twentieth century, the ability of Ngāti Whātua o Kaipara to take advantage of educational opportunities continued to be affected by poverty and poor health, and by difficulties created by distance and poor roads:
(33) While the Crown tried to deal with some of the social consequences of poverty and unemployment, it did not solve the fundamental problem of the marginal economic position of Ngāti Whātua o Kaipara in South Kaipara. However, despite the failure of successive Crown administrations to honour the Treaty partnership and its reciprocal obligations, Ngāti Whātua o Kaipara have steadfastly continued to hold to the principles that underpin this relationship: