EAST COAST TITLE RE-ORGANISATION IN THE TWENTIETH CENTURY A SCOPING REPORT

Transcription

1 THE EAST COAST INQUIRY DISTRICT EAST COAST TITLE RE-ORGANISATION IN THE TWENTIETH CENTURY A SCOPING REPORT Commissioned by the Crown Forestry Rental Trust for the East Coast District Inquiry Research Programme Dr Grant Young Associate Professor Michael Belgrave August 2007

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3 CONTENTS A INTRODUCTION 5 B PROJECT BRIEF 8 C EAST COAST CLAIMS 10 D DEFINITION OF TITLE RE-ORGANISATION 13 E METHODOLOGICAL ISSUES 15 F EXISTING RESEARCH ON TITLE RE-ORGANISATION 18 G CONSOLIDATION SCHEMES 21 i Legislation 21 ii The East Coast Schemes 23 iii The Process 24 iv The Outcome 29 H AMALGAMATION AND COMBINED PARTITION 38 I CONVERSION 41 J MAORI AFFAIRS AMENDMENT ACT K RECOMMENDATIONS 56 i Approach 56 ii Structure 60 iii Timeframe 65 L BIBLIOGRAPHY 66 M APPENDIX 83 3

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5 A INTRODUCTION 1. This scoping report, which has been commissioned by the Crown Forestry Rental Trust for the East Coast District Inquiry Research Programme, is a planning document designed to assess whether further research on East Coast title re-organisation is necessary. The conclusions to this report recommend that further research is necessary. The report assesses the evidence available to consider East Coast title reorganisation and an approach for a more substantial research project is also suggested in the conclusions. In summary, this approach has three parts: Quantitative overview (including land which went into the schemes, the final status of land which came out of the schemes and the extent to which conversion was applied to East Coast lands); Processes of title re-organisation (that is, the policy and legislation which informed title re-organisation and the practice as it affected Maori landowners); Case studies of outcomes (particularly the extent to which subsequent title re-organisation or adverse outcomes, such as alienation by sale, receivership leases or substantial rates arrears, were a consequence of earlier title re-organisation). 2. In addition to recommending this approach for the main project, this scoping report provides background information regarding the nature of title re-organisation and the kinds of issues which need to be addressed in the main project. It discusses definitions of title re-organisation and methodological issues associated with the proposed project before providing an overview of different forms of title reorganisation. The forms examined are consolidation, amalgamation and combined partition, conversion and Europeanisation (primarily under Part I of the Maori Affairs Amendment Act 1967 but also in relation to previous statutory provisions which allow Maori landowners to convert their landholdings from Maori land to European land). The approach which is outlined in this report is based on initial research at the Maori Land Court in Gisborne, Archives New Zealand in Auckland in Wellington, the Office of the Maori Trustee in Gisborne and Land Information New Zealand in Wellington (which manages the records of the former Gisborne district office of the Department of Lands and Survey). 3. During the course of this project, one of the authors was able to meet with East Coast claimants at the fourth East Coast research hui held in Gisborne where the issues 5

6 raised by this report and the approach for the main project was discussed. A further meeting was also held with the Aitanga a Hauiti cluster and some of their counsel. These meetings were extremely productive and we thank all those who participated for their very useful comments and feedback on an earlier draft of this report. In the context of these meetings, it was not possible to discuss with claimants, as we had hoped, specific issues of concern arising out of title re-organisation which relate to their individual claims. In an earlier progress report, we wrote of the importance of claimants identifying case studies to ensure that the report directly addresses claim issues they have raised. 4. Unfortunately, it has not been possible, in this scoping report, to provide detailed recommendations on the case studies to be investigated further. However, we still consider this a vital exercise and believe it will be possible to achieve the same outcome during the early stages of the main project. During meetings with claimants, it was clear that many had specific concerns which they wanted investigated and that they had significant personal knowledge of their specific grievances about title reorganisation which need to be examined further. Indeed, in consequence of our meetings with claimants we have added a further recommendation that formal and/or informal interviews should be undertaken with claimants. 5. As part of the main project, therefore, it will be recommended that a series of site visits with claimants, combined with formal and informal interviews with them on the land, should be undertaken as soon as possible after the commencement of the project. This will allow claimants to physically identify the land and explain their understandings of what happened. This is particularly significant as one of the key issues raised by claimants, particularly in relation to consolidation schemes, was the importance of locations in the final consolidated blocks. Where owners were located is an issue which has been identified as one of considerable importance and this can best be understood by standing on the land with claimants. 6. This scoping report commences with a discussion of the project brief and identifies the East Coast claims which specifically address some form of title re-organisation. Included with the table of claims is a column which sets out any specific blocks referred to in the claims as these constitute case studies for further investigation (whatever the outcome of the site visits might be in terms of selecting further case 6

7 studies). The scoping report then moves on to address conceptual issues arising out of the proposed project including definitions of what constitutes title re-organisation and some of the methodological questions which need to be addressed. The existing research on title re-organisation is reviewed to provide a basis for assessing what further research might be necessary. 7. Four sections of the report then deal with the four kinds of title re-organisation identified (consolidation schemes, amalgamation and combined partition, conversion and the Maori Affairs Amendment Act 1967). A policy and legislation overview is provided along with a discussion of how a particular form of title re-organisation operated on the East Coast. Case studies to illustrate the kinds of analysis which can be undertaken using the data available are included in the sections and in the appendix at the end of the report. The report concludes with a series of recommendations on approach and structure. A bibliography provides a complete list of records which were identified during the course of the project as having relevance to East Coast title re-organisation. 7

8 B PROJECT BRIEF 1. The Contractor will prepare a scoping report on East Coast title reorganisation in the 20th century. This will complement the substantial work already undertaken by Tony Walzl. The Contractor will consider the following issues: 1.1. The circumstances and extent of land alienation in the East Coast Inquiry District after 1930; 1.2. The Maori land titles and administration system in the twentieth century as it operated on the East Coast, concentrating on the operations of the Native Land Court; 1.3. An extension of work already done on the outcomes for East Coast Maori of legislation affecting Maori land, in particular that relating to interests in land deemed uneconomic ; 1.4. Any significant issues relating to the role of the Maori Trustee or the Public Trustee in the administration of Maori land; 1.5. An extension of the work already undertaken by Tony Walzl relating to incorporations and consolidation schemes and their success or otherwise in overcoming the problem of title fragmentation in both the short and the long term. This might include the selection of one or more in-depth case studies of incorporations or consolidation schemes. 2. The research should discuss the scope of problems created by fragmentation of Maori land titles in the twentieth century on the East Coast. As far as possible, it should work towards providing an overall evaluation of the adequacy and effectiveness of the mechanisms provided by the Crown for the retention, management and development of Maori land throughout the 20th century and the outcomes of these systems for Maori in the East Coast Inquiry District. 3. The Contractor will recommend a proposed approach for a full project. The scoping report will include a comprehensive bibliography, proposed chapter structure, and the proposed timeframe for completion of the full report. 8. We have assumed that paragraphs 1.2 to 1.5 should be read with the proviso that these issues should relate to title re-organisation. That is, that this project is to look at land alienation after 1930 as it relates to title re-organisation (though would note that early consolidation schemes prior to 1930 were closely connected to Crown purchase activity), the operations of the Native Land Court as they relate to title re- 8

9 organisation, the role of the Maori Trustee or the Public Trustee in relation to title reorganisation and so on. We make this assumption because several of these issues are also included in the final brief for Project 7: Report on Twentieth century East Coast Lands Issues : Paragraphs 1.1, 1.2 and 1.3 above are specifically included in that brief (paragraphs 3.2, 3.1 and respectively); The issues raised in paragraphs 1.4, 1.5 and 2 are not specifically referred in the twentieth century project brief but could be included in more general provisions (for 1.4 refer 3.2 and 3.3, for 1.5 refer and and for 2 refer 3.1); The twentieth century project brief does not refer to the use of incorporations though this would presumably be included in the general section on the operation of the Native Land Court (as incorporations were often but not always associated with title re-organisation) which would also deal with title fragmentation in general. 9. It is acknowledged that key issues noted in the project brief for the twentieth century project are regional development and land tenure and land use patterns which are clearly beyond the scope of the title re-organisation project. In general, the title reorganisation project brief focuses on the structures which allowed retention, management and development of Maori land, while the twentieth century project brief addresses alienation (by sale and lease), the general operations of the Native Land Court, economic development and land use. 9

10 C EAST COAST CLAIMS 10. The claims listed in the following table are those which directly or indirectly address some form of title re-organisation. 10

11 Claim Claimant and kinship group/organisation Blocks noted in claims Wai 272 Apirana Mahuika for Te Runanga o Ngati Porou Wai 390 Hone Meihana Taumanu for Te Runanga o Paikea (comprising Te Aitanga a Hauiti and associated hapu) Wai 526 George Evans for Te Whanau o Te Atarangi Tukino Hoia Station and Wharekahika B10 Wai 750 Sandy Hovell for the family of Tom Hovell Waitangirua 2 and Pipituangi Wai 931 Paitini Piwa Kupenga for Te Aowera of Ngati Porou Wai 971 Horimatua (George) Evans of Te Whanau a Hinerupe for the Wharekahika B10 descendants of Rongomaitapui and Uetaha Wai 976 Tui Marino and others for Te Aitanga a Hauiti Wai 1171 Albert Beach for the descendants of Henriette Beach Manutahi A23 Wai 1172 Luke Donnelly for the Donnelly whanau Ahiateatua B Wai 1179 Nelly Paenga for the descendants of Kereama Kaipara and Mokena Horua Puhunga A7C, Puhunga A7B2B, Waiaranga A4A and Tauwhareparae 1E Wai 1185 Barney Dewes Wharekahika A1 Wai 1249 Ahipene Rangi Paenga for Ngati Konohi Authority Whangara Consolidation Scheme Incorporated Wai 1281 Ian Paranihi Dewes for Te Aitanga a Mate, Whanau Rakairoa, Ngai Taharora and Iri Te Kura Wai 1292 Wiremu Akuhata Rangihuna for hapu of Ruawaipu Wharekahika Wai 1304 Rawiri Kutia and others for Nga Uri a Nikorima Te Pahu Puatai 1, Puatai 4, Pakarae 1A, Pakarae 1C, Paremata 2C, Paremata 2D, Paremata 3, Paremata 4, Paremata 64, Paremata 73, Paremata 73A, Whangara B1B, Whangara C10, Whangara H1B, Whangara H4B, Whanga H5, Whangara H6, Whangara N2, Wai 1316 Kopua Kaa on behalf of Wi Paati and his descendants and the descendants of Ruawaipu Pokotakina A Marangairoa B20 (Mangaehu), Marangairoa B21 (Te Ahiweka), Marangairoa C1 (Rangitukia), Marangairoa C2 (Maungapohatu), Marangairoa C3 (Makahikatoa) (Rangitukia Station) 11

12 Wai 1317 Wai 1322 Wai 1338 Alice Lorraine Jamieson for Harata Henihana and her descendants Justin Renata for Te Whanau a Hinerupe of Ruawaipu Mehua Koia-Papuni and others for the descendants of Pineaha Koia, Wikiriwhi Matauru, Hape Haerewa and Ripeka Tahuru of Ruawaipu Wharekahika 1 Marangairoa 1C (Pakihi) 12

13 D DEFINITION OF TITLE RE-ORGANISATION 11. Defining title re-organisation is a key feature in dealing with these issues. We define title re-organisation broadly so that any action which changes the fundamental characteristics of an existing title to Maori land is included. Generally title reorganisation is associated with the Native Land Court and the Maori Land Court but this is not a definition of title re-organisation. This is because some actions of the Court may relate to title re-organisation at some point but the same actions may not at another. For example, partition, succession, exchange and incorporation orders can be associated with consolidation schemes a form of title re-organisation but on other occasions may simply relating to the general administration of Maori land. In our view, title re-organisation involves the actions of the Native Land Court and the Maori Land Court when they are engaging in the following activities: Consolidation; Amalgamation (under Section 435); Conversion (of uneconomic interests on consolidation of title orders); Part I declarations under the Maori Affairs Amendment Act 1967 ( Europeanisation of Maori land); Combined partitions. 12. In all these cases, the Court s actions change the ownership of the land so that existing owners of the land or their descendants are no longer necessarily owners of the land (though they may retain an interest in a similar or modified form). Either the boundaries of the land changed or the ownership of the land changed or both. 13. It should be noted that we have taken such a broad approach to title re-organisation because there is an ongoing history of attempts through the twentieth century to deal with the problems of fragmentation and multiple ownership which arose out of the administration of the Native Land Court and later the Maori Land Court. Title reorganisation was one solution developed to these problems. The other major solution to these problems was to impose legal structures over the top of the owners meetings of owners, statutory agents, incorporations and trusts to alienate or administer the land on behalf of the owners. We do not include these in our definition of title re-organisation because the title was not modified prior to establishing a new structure to administer the land. As such, we consider these matters of general Maori 13

14 land administration. On occasion, such structures are relevant to title re-organisation in that after a title was modified, an incorporation, trust or statutory agent was appointed to administer the land and such issues will be significant for this project. This will occur where subsequent administration is connected directly to a title reorganisation scheme. The primary circumstance where this will occur is when the costs associated with a title re-organisation scheme cause major problems for the ongoing viability of the incorporation or trust. 14

15 E METHODOLOGICAL ISSUES 14. In our first progress report, we stated that it is unlikely that a comprehensive research project which can investigate all incidents of title re-organisation involving East Coast lands would either be acceptable to a funding organisation or, more importantly, practicable. We considered the amount of time required and the volume of research necessary render such an approach effectively unworkable. The question was therefore reduced to what was the best way of providing an overall view of title reorganisation, especially in relation to legislation and policy, as well as detail of how both were applied on the ground and how Maori landowners were affected by title reorganisation or responded to different actions regarding title re-organisation. 15. After undertaking further research, we believe that a comprehensive research project which investigates all or most of the incidents of title re-organisation involving East Coast lands is viable. Our initial concerns were based on the possibility that the records would not provide the data required for comprehensive analysis especially in relation to the consolidation schemes (which would form the most significant portion of the main project). Significant data has been located through further research. In particular, volumes prepared for the later consolidation schemes (after the mid-1940s) contain key data about individual blocks which went into the consolidation scheme (included title information, occupation and unpaid charges). 16. There are two issues which arise out of this information. The first is the extent to which the data is comprehensive. The volumes contain data about a very considerable number of blocks but it may not deal with all the land dealt with in the later consolidation schemes. The second is the availability of data relating to the earlier consolidation schemes (prior to 1940). Documentary evidence relating to the substance of these schemes is limited. Some Gisborne records relating to them have been located but not for all the schemes. The Head Office records are more complete and do provide a very useful perspective on the process, complaints which arose and the way those complaints were dealt with. They also provide some information on the blocks which went into the schemes and the blocks which came out of them though further data from Court records will need to be located to provide a complete picture. Fortunately the area and number of blocks dealt with in these earlier schemes are much more modest than the area and number of blocks subject to consolidation in the 15

16 later schemes (especially the last two instalments of the Northern Waiapu scheme and the Whangara scheme). 17. Following consolidation, there is the question of what happened to the land. It should be possible to answer this question using the records available at the Court supplemented by title documentation held by Land Information New Zealand. This might include partitioning, amalgamation, alienation, declarations under Part I of the Maori Affairs Amendment Act 1967 or retention as Maori land. This question may be addressed as part of the twentieth century land administration project but the focus here would be on the success of title re-organisation as shown by the capacity to effectively utilise the land after consolidation. As such, it would be necessary to trace the subsequent history of consolidated blocks both as a quantitative exercise and, once that exercise was completed, to consider in more detail case studies selected to illustrate in more detail broader trends in land administration following consolidation. For example, such a quantitative and qualitative approach would allow consideration of the amalgamation of consolidated blocks and the application of Part I of the Maori Affairs Amendment Act 1967 ( Europeanisation by declaration). As is discussed below, some of the Marangairoa blocks which came out of the final instalment of the Northern Waiapu Consolidation Scheme were amalgamated in the 1970s because the larger block of hill country could be more effectively utilised by the owners for forestry purposes. 18. In consequence, therefore, our suggestion in the progress report that there were three possible approaches is modified considerably. An initial assessment of Maori land is undertaken to identify the title re-organisation schemes and the land affected is essential. This would include compiling a database of all original Maori land block partitions and examining what happened to them. From this database, a comprehensive list of all the partitions affected by some form of title re-organisation could be extracted. Patterns of partition prior to title re-organisation could, for example, be assessed and general data relating to the use of declarations under Part I of the Maori Affairs Amendment Act 1967 compiled. Further consideration of records generated by the Maori Trustee is required but the issue of examining files relating to blocks where title re-organisation occurred because usually the Maori 16

17 Trustee was appointed to manage lands where incorporations or trusts had collapsed due to indebtedness. 19. This process will also help in identifying blocks where title re-organisation failed. In both cases either subsequent modification of titles to blocks subject to titlereorganisation or the impact of debt working with claimants to identify blocks of particular concern is a crucial feature of the project. Where issues arose, further more detailed research could be undertaken to examine the block and the impact of title reorganisation where it led to later problems. Such case studies would be for the purposes of assessing the impact of title re-organisation rather than assessing the impact of the various schemes which would be dealt with comprehensively (in quantitative terms, the processes applied and the outcomes including complaints). 17

18 F EXISTING RESEARCH ON TITLE RE-ORGANISATION 20. There are two reports which deal with one aspect of title re-organisation on the East Coast: consolidation. Tony Walzl s report, The East Coast: Overview of Land Management and Development Issues ( ) (July 2003), has several sections which deal with consolidation. Katherine Orr-Nimmo s report, The Sun of Advancement and Progress?: an overview report on East Coast District Claims (December 2000) deals with consolidation in a section on consolidation, rating and land development. Mr Walzl s report is based on research using Native Department and Department of Maori Affairs Head Office files and provides a great deal of information about disputes and complaints regarding consolidation but a limited view of what was actually happening on the ground to owners and their interests in land. His emphasis is on the legal steps taken to start and complete a consolidation scheme. Complaints, where they arose in between are examined, but there is little detail on how the schemes were developed and the way in which owners were given the opportunity to participate. This reflects the kind of records used and the focus of an ambitious and wide ranging report which deals with more significant general issues of land development and utilisation. 21. Dr Orr-Nimmo s report is also an overview report which deals with a wide range of general issues arising out of East Coast claims. One of the sections of this extensive report deals with consolidation (as well as rating and land development). She relies on the Head Office files also used by Mr Walzl but has also examined district office records held at the Maori Land Court in Gisborne. These provide a more detailed perspective on the process and the way in which owners participated in consolidation of their lands though Dr Orr-Nimmo acknowledges more work is required: Detailed files about the implementation of the schemes in specific areas have not been looked at for this report. A review of such files and of Native Land court minutes related to consolidation might shed additional light on the level of consultation with Maori over consolidation. One significant question that remains unanswered is how decisions were made as to what land would be given to the Crown in return for sums it claimed for Crown purchases and for expenses such as survey costs and amounts due for rates compromises. 22. In general, this report provides a very useful overview of the operation of the consolidation schemes, the complaints which arose out of them and the way those complaints were addressed. It also has a very useful discussion of the impact of rates 18

19 compromises in terms of land alienation and which, as the above quote notes, requires further investigation. Some of the data to identify the unpaid charges imposed on preconsolidation blocks of land have been located and feeding this material into a database would allow these issues to be assessed in terms of quantum. 23. Both reports, therefore, show that consolidation on the East Coast commenced prior to 1920 and was closely associated with Crown purchase activity. That is, the consolidation schemes were used to provide the Crown with parcels of land on the basis of undivided individual interests acquired as well as establish whanau farms for individual whanau to establish dairy farms on. Thus, consolidation was not only associated with development of Maori land but the alienation of land to the Crown as well. This followed the acquisition of individual undivided interests by the Crown after the first world war and during the 1920s. The consolidation schemes allowed this very untidy situation to be cleaned up by providing the Crown with a substantial and contiguous land holding rather than a patchwork of small partitions in a series of existing blocks. This practice reflects the experience of Maori landowners elsewhere in Tairawhiti and the North Island. 24. These two reports, however, have five limitations. They are: In focusing on the schemes in general, they lack detail about what land was dealt with in consolidation schemes and how it was reconstituted; The nature and extent of participation by the owners in the schemes is not considered in any significant way; Statistical analysis of Maori landholdings going into the schemes and subsequent alienations either as part of the scheme or following consolidation is not provided; Limited assessment of the effectiveness of the schemes (in terms of the capacity of Maori landowners to either utilise the new blocks, retain them or manage them); They focus primarily on the consolidation schemes and do not consider other forms of title re-organisation such as Part I declarations, amalgamations and conversion. 25. As noted above, in relation to Mr Walzl s report, his report and Dr Orr-Nimmo s report have a much broader and more general focus. Detailed analysis of title reorganisation is not the purpose of either report so there are a number of crucial points which require further more detailed investigation. Such issues do need to be addressed though especially if conclusions are to be reached on the quantum impact 19

20 of title re-organisation on East Coast Maori landholdings and the capacity of Maori landowners to retain, utilise and manage their remaining lands. 20

21 G CONSOLIDATION SCHEMES 26. The consolidation schemes were by far the most significant form of title reorganisation on the East Coast during the twentieth century. They affected with hundreds of thousands of acres and the interests of many thousands of owners. Research relating to the schemes will be the most complicated and time consuming for the project and compiling and analysing the database the most significant tasks. This section of the scoping report provides a general overview of the process of consolidation and the East Coast schemes. It commences with a discussion of the legislation which governed consolidation, provides a table of the East Coast schemes, gives a general overview of the process and the activities of officials at Gisborne, identifies some of the blocks affected by consolidation and discusses two case studies designed to show what happened to blocks following consolidation. i LEGISLATION 27. The Native Land Act 1909 contained provisions for the consolidation of interests in Maori land (Sections 130 and 131). Under this statute, applications were made by the Native Minister for the Court to prepare a scheme of consolidation which related only to Maori freehold land. Such a scheme could be submitted to the governor for approval and the scheme was returned to the Court to issue orders to give effect to the scheme. Under Section 132, the governor could prohibit alienation pending the completion of a scheme of consolidation. 28. These provisions were modified in subsequent years but all were repealed by the Native Land Amendment and Native Land Claims Adjustment Act 1923 (Section 7(18)) which included detailed provisions for carrying out a scheme of consolidation. Sections 6(1) gave the Native Minister power to apply to the Court to prepare a scheme of consolidation and gave the Court powers to arrange the scheme. The Court could, as part of the consolidation, make any necessary succession and trustee orders, and no fees or duty were due on any succession order made. The Court could also include any European or Crown land in the scheme in addition to Maori land (Section 6(2)). Any scheme could be submitted to the Native Minister under Section 6(5) for approval but could be returned by the Native Minister to the Court or the Appellate Court for further consideration. The Native Minister could confirm the scheme if he 21

22 was satisfied it was just and equitable (Section 6(6)). Once the scheme was confirmed, the Court could make the necessary orders of exchange and other orders under Section 7 to carry out the scheme. Where the Crown held an interest in any land in a consolidation scheme, the Court could make an order defining the interests of the Crown (Section 7(4)). Other provisions dealt with the Court s powers in relation to such land. The legislation also included arrangements for creating roads in land subject to a consolidation scheme. Orders made under Section 7 were not subject to a right of appeal to the Appellate Court (Section 7(16)). Section 8 allowed the governor-general in council to extend prohibitions from time to time as may appear expedient. 29. Over the next few years, the provisions relating to consolidation were modified and further powers added through Native Land Amendment and Native Land Claims Adjustment Acts. Section 25 of the Native Land Amendment and Native Land Claims Adjustment Act 1927 established a system for the payment of rates outstanding on land contained in a consolidation scheme. The Court could issue a certificate showing the amount to be paid by the Crown and this sum would be paid out of the Native Land Settlement Account as for a purchase or acquisition of Native land. Under sub-section 4, the Court had jurisdiction, whether or not the scheme was completed, to make an order vesting land in His Majesty to the value of the sums from time to time paid under the authority of a certificate of the Court as in this section mentioned. 30. These amendments were consolidated in Part VII of the Native Land Act 1931 which dealt with exchange and consolidation. The Court could make orders of exchange, either alienating Maori land or vesting European land in a Maori (Sections 155 to 157). Under Section 158, the Court had to be satisfied that: The exchange was for the benefit of the Maori owners. No Maori would become landless because of the exchange. The interests to be exchanged were approximately equal in value. Where the interests were unequal, a sufficient sum of money had been paid. All Maori in whom the land was vested consented to the exchange. 31. As for consolidations, Section 161 gave the Native Minister power to apply to the Court to prepare a scheme of consolidation. The application had to specify the 22

23 boundaries of Maori land to be consolidated but the Court could add any further Maori land, Crown land or European land necessary or desirable for the more effective consolidation of the interests of the Native owners. Section 162 contained provisions for exchange and stated that such exchanges were not subject to the restrictions discussed above (Section 162(1)). Section 167 gave the governor power to prohibit alienation for a period of up to 12 months where a consolidation was in progress. The provisions relating to the preparation of a scheme of consolidation, namely approval by the Native Minister, the powers of the Court to issue orders to carry out the scheme and the payment of current and outstanding rates, remained essentially unchanged from the legislation put in place from 1923 onwards. 32. Part XVIII of the Maori Affairs Act 1953 dealt with consolidation schemes. The new statute retained the basic features of the method of consolidation but streamlined the provisions. Sections relating to rates were removed and the Court was given a general power to set apart any land for sale to meet the cost of survey, roading, drainage or other improvements or for the discharge of any liabilities or encumbrances (Section 200(2e)). There were, however, two important changes. The first was that European land could not be included in a consolidation scheme unless it was owned by Maori or the owners had given their written consent to inclusion (Section 196(4)). In addition, Crown land could only be included in a scheme with the consent of the Land Settlement Board under the Land Act The second important change allowed the Court to issue a recommendation in relation to any uneconomic interest (less than 25). The recommendation, to the Maori Trustee, was to acquire such interests using money from the Conversion Fund at a price set by the Court (Section 200(2d)) and Section 200(4)). The consent of the Maori Trustee was required before a vesting order could be issued vesting uneconomic interests subject to a recommendation under Section 200 in the Maori Trustee (Section 201). ii THE EAST COAST SCHEMES Scheme Instalment Recommendation Confirmation Waipiro First 3 February 1917 Taumata-Patiti 30 April May 1915 (Nuhiti) Akuaku 7 June 1923 Waipiro Second 7 December June 1924 Waiapu First 22 August September

24 Waiapu Second 26 December January 1931 Tuparoa First 5 September 1925 Tuparoa Second 19 June June 1926 Tuparoa Third 7 July July 1926 Whangara 7 November March 1954 Northern Waiapu First 17 April May 1932 Northern Waiapu Second 17 April May 1932 Northern Waiapu Third 24 May 1933 Confirmation recalled Northern Waiapu Fourth 25 May August 1939 Northern Waiapu Fifth 30 May July 1941 Northern Waiapu Sixth 7 November February 1942 Northern Waiapu Seventh 12 July August 1956 iii THE PROCESS 33. Initial research suggests that the very earliest schemes, primarily those undertaken prior to the mid-1920s, were facilitated and closely monitored by Apirana Ngata. Indeed, Judge Browne, in complaining about a lack of clerical assistance to prepare the final documents for the Te Akuaku Consolidation Scheme, noted that it was one of the Hon. Mr Ngata s consolidations, upon which he has spent a consider amount of time and done a great deal of work. 1 Ngata met with owners, prepared a request for the Native Minister to apply to the Native Land Court for a scheme of consolidation (which included a list of blocks), obtained the consent and signatures of the owners and then went through the ownership lists and prepared the scheme for submission to the Court for approval. Judge Jones made the recommendations to the Native Minister who had to approve the scheme before it was returned to the Court for (succession, consolidation and exchange) orders to be made to give effect to the scheme. 34. Initial research suggests that the Crown was frequently a beneficiary of consolidation on the East Coast because the undivided interests acquired in many different partitions of the blocks were consolidated into one part of the block in a single contiguous area. It is important to note, therefore, that development did not always follow consolidation: some instalments or schemes were designed to clean up the Crown s purchase activity, not simplify titles prior to development. Another function of the consolidation schemes was to deal with any outstanding charges, primarily rates and survey charges. These charges applied to the old blocks and payment of the charges 1 Browne to Jones, 23 September 1922, MA /91, Archives New Zealand, Wellington. 24

25 would generally be made by the Crown which would be compensated by land in the new consolidated block. Officials tended to negotiate a settlement of all rate arrears with the relevant county. 35. Consolidation schemes undertaken during the late 1920s and the 1930s (until the start of the Second World War) were managed by an official of the Tairawhiti District Maori Land Board based at Tikitiki assisted by another board official based at Gisborne. The latter provided title information and other data to the former who conducted meetings with owners to determine boundaries of new blocks and who would receive what land. This official and the groups of owners, primarily with the heads of those groups, worked together to develop a scheme of consolidation. These were presented at meetings so that concerns could be identified and considered and resolutions to complaints negotiated. The schemes or instalments were submitted to the Court, generally Judge Carr, who issued recommendations to the Native Minister. As in the earlier process, once approval had been received from the minister, the recommendations were returned to the Court where orders were prepared and surveys completed to give effect to the scheme. 36. Those instalments of the Northern Waiapu Consolidation Scheme and the Whangara Consolidation Scheme which were completed in the 1950s were based partly on work undertaken but not completed during the 1940s. In fact, some of the earlier instalments of the Northern Waiapu scheme were included in the seventh instalment of the scheme. With the creation of the Department of Maori Affairs, under the Maori Affairs Act 1953, a consolidation section at Gisborne administered consolidations and completed this work though Judge Norman Smith was a key figure in completing these schemes. The final instalment of the Northern Waiapu scheme cleared up all the remaining work which had not been completed in the previous two decades and was a significant undertaking involving hundreds of blocks. Once Judge Smith had endorsed the scheme agreed with owners, his recommendation was submitted to the Minister of Maori Affairs for consent. Orders were issued by the Court after this consent was given. 37. The basis for the consolidation scheme was usually the unimproved value of an interest and it was on this basis that the size of the new interest was calculated. The actual area of an interest was not a consideration. However, initial research has 25

26 identified at least one example where area was the basis for consolidation rather than value. Another example has also been located where the consolidation was effectively a new partition so that individual owners could consolidate their relative interests in several partitions of the parent block in a single partition. Owners were evacuated from the existing block and the value of their combined interest calculated. In this process, groups of owners were formed so that members of the same family or extended family were in the same group for the purposes of determining a location. The location was the new block of land which was awarded to the group to reflect the value of their combined interests. As instalments progressed, it was not unusual for certain owners not to be allocated a location in the scheme on the basis that their interest would be located in a later instalment. At least one instance of this has been referred to in the existing research and it needs to be considered further. 38. Consolidation was a complicated and time-consuming process which required experienced and respected staff who could do the title work and negotiate with Maori landowners. Staffing problems were a constant issue for the Tairawhiti schemes. For example, a report to the registrar from a staff member at the Tairawhiti District Maori Land Board in 1935, in relation to the North Waiapu Consolidation Scheme, emphasised the difficulties of staffing the consolidation section of the board in Gisborne. In general little progress had been made on this scheme. In relation to staff: At the commencement of the scheme, Messrs Swift and Tureia were to do the office work and field staff comprised Messrs Goldsmith, Karauria and Waikare. Mr Swift only spent a short period on the scheme before taking over development work and Mr Tureia was not relieved from his duties in the Board. Formerly the whole of my time was taken up with the Tuparoa and Waiapu schemes but for the past year I have been able to spend about 1/3 of my time on the North Waiapu scheme. The field staff has suffered similarly. Mr Waikare died some 3 years ago and was not replaced. Mr Goldsmith terminated his duties about 18 months ago and the sole field officer is now Mr Karauria whose services were utilised by the development branch for a considerable period According to the registrar, Mohaka and Northern Waiapu were the major schemes operating in the Tairawhiti District. 3 The registrar referred to Swift s report in relation to the Mohaka scheme and added: 2 Leahy to the Registrar, 9 July 1935, MA 1 29/5 Box 577, Archives New Zealand, Wellington. 3 Thompson to the Under Secretary, 9 July 1935, ibid. 26

27 Consolidation work was temporarily shelved here while the land was being developed. It is now desirable that operations should be resumed. If the help of Judge Harvey who, as Commissioner of the Court, conducted the initial work and is specially able to complete it is available, rapid progress should now be possible. It will be necessary however to detach Mr Swift from his present duties for about six months in order to carry out the clerical work involved. A junior clerk may also be required if any re-distribution of values is found necessary. 40. In Northern Waiapu, the registrar noted that a great deal of work was still required as the scheme was in its initial stages. He added that Leahy and Karauria were working full-time on the clerical requirements of the scheme but [n]ot having the necessary mana they are at a disadvantage in grouping, when it becomes necessary to persuade diffident owners to give up ancestral rights to various blocks for consolidated holdings. 41. The difficulties presented by the lack of staff were acknowledged by the Under Secretary. 4 He suggested the registrar concentrate staff on one scheme at a time and complete it before starting another. However, in November 1941, the Native Minister decided that consolidation work was a priority. 5 He wanted to clear titles in readiness for the rehabilitation of Maori Returned Soldiers after the War : It is necessary not to speculate on the shortness of the duration of the war. There is always a tendency to assume that its duration will have some relation to that of the last war. However natural this tendency it is really not based on reason. The war may be a matter of very many years and policy must not be based on the assumption that it will be concluded in anything like the time of the last war. Consolidation is not a work that employs a vast number of men. It is, it seems to me, very much like the work of an architect in drawing plans where the work of the one man, although taking some considerable time, is a preliminary preparation to the work of the great number of men. As soon as the war is over we do not then want to have the work of hundreds or thousands held up for a year or two while this preliminary work is being accomplished. Please push on the work of consolidation with all speed in every district. If you have not trained men get the men and train them. I do not know to what extent remaining men may be liable for military service but if an appreciable proportion of them are so liable please see that a sufficient number are reserved for a period which would be long enough to enable others to train to take their places. Try to see that the men you train are not ones likely to be shortly called up for military service. Have the work pushed on steadily in every district to finality. Upon the conclusion of the war there is bound to be immense strain on all organisations which prepare for employment of returned soldiers and those whose operations have been suspended by war conditions. Native development schemes will certainly be in this list and it is therefore of vital importance that in the crisis of repatriation the development should not be delayed by having to wait for anything that can possibly be done now. Please therefore look upon this matter as important and urgent. 4 Campbell to Thompson, 22 August 1935, ibid. 5 Campbell to Thompson, 5 November 1941, ibid. 27

28 42. The minister s view was unambiguous, and the Under Secretary asked for a full report on consolidation including recommendations to increase the staff to undertake the work on areas which were most suitable for soldier settlement. A table in the memorandum set out the circumstances of consolidation in the Tairawhiti district: Nuhiti 5,932 acres Completed 1917 Waipiro 29,647 acres Completed 1924 Akuaku 10,930 acres Completed 1932 Tuparoa 33,275 acres Completed 1932 Waiapu No record Approved but no further information on record Mohaka 42,300 acres Nearing completion Northern Waiapu 126,000 acres In progress 43. One staff member (Mr Nikora) was working on the Mohaka scheme while two others were working on the Northern Waiapu scheme. 44. Another issue which is important to consider in relation to the schemes is the nature of the recommendation submitted to the minister for confirmation. As noted above, officials negotiated with the owners and, once agreement had been reached, submitted proposals to the Court which issued a recommendation to the minister. The legal status of these recommendations was considered when the registrar at Gisborne was asked to provide a report to the Crown Solicitor on an instalment of the Mohaka Consolidation Scheme. One of the former owners in a block had issued a notice of intention to commence action against the Crown under the Crown Suits Act The action was against the Crown for specific performance of a contract which involved the alienation of his interest in a Maori land in exchange for a piece of Crown land. The final question the Crown Solicitor asked was under what authority or jurisdiction did the Court purport to act if, as I understand to be the case, it subsequently made some order vesting some part of, or interests in, 1C4B1? The registrar s response was heavily qualified but it did raise an important point in relation to the implementation of the consolidation scheme: The point raised as to the Court s jurisdiction to vary a scheme after approval by the Minister may require a decision from a higher court. Obviously it is necessary to start consolidation on some elastic basis, hence the desirability of framing and obtaining preliminary approval of a tentative location framework, or scheme, before 6 Currie to Campbell, 28 November 1935; Campbell to Thompson, 30 November 1935, MA 1 29/5 Box 577, Archives New Zealand, Wellington.. 28

29 proceeding to make definite title orders. Probably if after approval by the Minister it was found necessary to make drastic alterations of a fundamental extent, it would be proper to re-submit for approval as a scheme before entering upon the making of title orders. The word scheme eloquently expresses the idea of a preliminary proposal and apparently the Minister s approval only amounts to an authority to proceed with its elaboration. The approval cannot in any sense be deemed to establish legal title, or even the right by any party to call for title. Were this otherwise, the result would be that the ultimate jurisdiction vested in the Minister instead of in the Court Likewise, with a report on a petition regarding the Mohaka Consolidation Scheme, the registrar supplied a copy of the memorandum from the then registrar to Judge Carr enclosing an instalment of the scheme for his signature. The document had been annotated by the judge who noted that some objections had been raised by owners which would be considered before the final orders were issued: It will serve to illustrate the tentative nature of the schemes as submitted for the Minister s approval. 8 Thus, even though a recommendation had been issued, the final outcome of the scheme remained uncertain even if ministerial confirmation was given. iv THE OUTCOME 47. Identifying the blocks which went into the schemes and the blocks which came out of the schemes is a difficult exercise. Data relating to the earliest schemes is difficult to locate and extremely fragmented. Even finding the recommendations can be a problem though all the relevant Head Office files have been reviewed and a number of the earlier recommendations have been located. Data relating to the schemes in the late 1920s and 1930s is less fragmented but still problematic. Some correspondence files have been located at the Maori Land Court in Gisborne though they are probably not a complete series. Further records of this nature might be located during the reorganisation of the records rooms at the Court. Most, if not all, of the recommendations have been located and they show the consolidated blocks but do not necessarily provide sufficient information about the old blocks. 48. Very good quality data relating to the schemes completed in the 1950s has been located though whether it is complete is unclear and this issue would only be resolved if the full project proceeds and more in-depth research undertaken. Staff compiled bound volumes giving Abstracts of Titles as part of the schemes (primarily the later installments of the Northern Waiapu scheme and the Whangara scheme). They show 7 Thompson to Campbell, 9 January 1936, ibid. 8 Thompson to Campbell, 3 February 1936, ibid. 29

30 each of the blocks which went into the scheme, the area, date of partition order, valuation details, status of the survey, unpaid charges (rates and survey liens), value for consolidation, any formal occupation of the block (such as houses, farm buildings, or a lease) and general comments. There is also available what appears to be a complete recommendation which lists the consolidation blocks, areas, the portions of the former blocks included in the new block, values and the individual or group awarded the block. 49. To assess the available data, a key task undertaken in this scoping report has been identifying the blocks affected by consolidation through the twentieth century. Though far from complete, this list currently contains over 800 individual partitions. The parent blocks affected by consolidation include: Ahioteatua Ahikouka Akuaku Angaanga Aruhemokopuna Hahau Haronga a Te Kahu Hauturu Herenga Herupara Hinetiraha Kaiinanga Kairapirapi Kaupekahaumia Kumete Kuratau Mangaharei Mangaotawhito Manutahi Maraehara Marahea Marangairoa Matakaoa Mautoara Mawhai Ngawhakatutu Nuhiti Ohineakai Omaewa Omaika Orua Oruataiaka 30

31 Pahitaua Pakarae Pakihikura Panikau Papatarata Paraeroa Pariwhero Pipituangi Pohautea Pohooterangi Pokotakina Poroporo Pouawa Puatai Puhunga Pukekahu Pukemanuhiri Pukemanuka Pukerangiora Putiki Rangikohua Reporua Rotokautuku Rotootahe Tahinga a Karuai Tangoiro Tapatu Waitangirua Tapuaehikitia Tarata Taumataomanu Taumataotewhatui Taumatapatiti Tauwharerata Tihiomanono Tikapa a Hine Kopeka Tikitiki Tokaroa Tokata Tokomaru Totaranui Tuawhatu Turitaka Tutarawananga Tutu Tututohora Tutuwhinau Waihoa Waihouru Waihuka Waimatatini 31

32 Waiorongomai Waioue Waipiro Wairoa Waitangi Waitekaha Whakaangiangi Whakarei Whakaumu Whangara Wharau Wharekahika Wharikirauponga Whetumatarau 50. The location of the parent blocks is shown on the maps on the following pages. It should be noted that the purpose of the map is to show the general location of the consolidation schemes. The maps do not show the specific parts of the blocks which went into the consolidation schemes so that, for example, parts of the blocks which are shaded may have already been acquired by the Crown so were not included in the schemes. More detailed and comprehensive data will be compiled for the main project from which further maps can be produced. 51. To assist in showing the type of information we want to be able to extract from the database, we have prepared a table giving details of two consolidated blocks: Marangairoa and Whetumatarau. These two blocks have been chosen for no particular reason other than as case studies and, while most of the data has been located, there is still some left to collect. However, at this stage, we are able to show what subsequently happened to almost all of the Marangairoa and Whetumatarau blocks after consolidation. The table (located in the appendix at the end of the report) shows which blocks were alienated, partitioned, amalgamated, subject to Part I declarations issued under the Maori Affairs Amendment Act 1967 and became European land and which are still Maori land (where the block was not subsequently modified). From this data, two further tables have been prepared and these are set out in the report below. One shows the Marangairoa consolidation blocks subsequently amalgamated to form larger blocks and therefore subject to further amalgamation while the other shows the Marangairoa and Whetumatarau blocks subject to Part I declarations (including blocks declared European land but subsequently returned to the status of Maori land by order of the Maori Land Court). 32

33 33

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